Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4287 

NEW SPECIAL PERMITS—Continued 

Application 

No. Docket No. Applicant Regulation(s) affected Nature of special permits thereof 

14801–N ...... ........................ CVS Transportation, 

L.L.C., Woon-socket, RI.

49 CFR 171.8 Materials of 

Trade.

To authorize the transportation in commerce of certain hazardous materials as Materials of Trade 

when transported by a dedicated contract carrier 

and meet all the provisions of 49 CFR 173.6. 

(mode 1) 

14802–N ...... ........................ Sporting Arms and Ammunition Manufacturers’ Institute, Inc. Newtown, 

CT.

49 CFR 173.6 ................... To authorize the transportation in commerce of certain Division 1.4S explosives under the Materials of 

Trade exception in 49 CFR 173.6. (mode 1) 

[FR Doc. E9–1176 Filed 1–22–09; 8:45 am] 

BILLING CODE 4909–60–M 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. RSPA–00–8026 (PD–26(R))] 

Massachusetts’ Definitions of 

Hazardous Materials 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice of administrative 

determination of preemption. 

Applicant: Boston and Maine 

Corporation (Boston and Maine). 

Local Laws Affected: Massachusetts 

General Laws (M.G.L.) chapter 21 E, 

section 2 (ch. 21 E); and chapter 21 K, 

section 1 (ch. 21 K). 

Applicable Federal Requirements: 

The Federal Hazardous Material 

Transportation Law (Federal Hazmat 

Law), 49 U.S.C. 5101 et seq., and the 

Hazardous Materials Regulations 

(HMR), 49 CFR parts 171–180. 

Modes Affected: Rail and Highway. 

SUMMARY: The Federal Hazmat Law does 

not preempt the definitions of 

‘‘hazardous material’’ in M.G.L. chs. 21 

E and 21 K. As applied and enforced, 

the challenged provisions of 

Massachusetts’ laws are not an 

‘‘obstacle’’ to accomplishing and 

carrying out the Federal Hazmat Law, 

the HMR, or a hazardous materials 

transportation security regulation or 

directive issued by the Secretary of 

Homeland Security. Because a regulated 

entity may comply with the State and 

Federal requirements at the same time 

the Massachusetts’ laws are not 

preempted under the ‘‘dual 

compliance’’ test. These definitions and 

State requirements also do not concern 

any of the five subject areas in which 

State Authority is expressly preempted 

by the Federal Hazmat Law, and State 

enforcement of these laws does not 

otherwise frustrate Congressional intent. 

FOR FURTHER INFORMATION CONTACT: 

Thomas D. Seymour, Office of Chief 

Counsel, Pipeline and Hazardous 

Materials Safety Administration, (202) 

366–4400, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room E26–322, 

Washington, DC 20590; e-mail: 

tom.seymour@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Issues Under Consideration 

In this determination, PHMSA 

considers the definitions of ‘‘hazardous 

material’’ as contained in M.G.L. chs. 21 

E and 21 K. Chapter 21 E and entitled 

‘‘Massachusetts Oil and Hazardous 

Materials Release Prevention and 

Response Act’’ to be parallel with the 

Federal Comprehensive Environmental 

Response, Compensation and Liability 

Act, 42 U.S.C. 9601 et seq. (‘‘CERCLA’’ 

or ‘‘Superfund law’’). Chapter 21 K, 

‘‘Mitigation of Hazardous Materials,’’ 

governs the State’s emergency 

mitigation response to a release, or 

threat of release, of materials 

determined by the state to pose a risk of 

contamination to the local environment. 

This statute authorizes the 

Massachusetts Department of Fire 

Services to deploy personnel and 

equipment for emergency mitigation 

response caused by a release, or threat 

of release, of materials determined to be 

a potential environment contaminant. 

Chapter 21 K also provides for the 

dispatch of trained personnel to 

evaluate a potential risk of 

contamination to the environment. 

Both M.G.L. chs. 21 E and 21 K use 

the term ‘‘hazardous material’’ to refer 

to substances triggering the laws’ 

requirements. Under Chapter 21 E a 

‘‘hazardous material’’ is defined as: 

A material including but not limited to, 

any material, in whatever form, which 

because of its quantity, concentration, 

chemical, corrosive, flammable, reactive, 

toxic, infectious or radioactive 

characteristics, either separately or in 

combination with any substance or 

substances, constitutes a present or potential 

threat to human health, safety, welfare, or to 

the environment, when improperly stored, 

treated, transported, disposed of, used, or 

otherwise managed. 

Chapter 21 K contains the same 

definition except that it expressly 

identifies ‘‘oil’’ as a hazardous material. 

II. Background 

A. Summary of Facts 

On June 27, 1999, six railcars from a 

Boston and Maine train derailed in the 

Charlemont, MA area, causing an 

unidentified material to leak into the 

ground and nearby Deerfield River. The 

Charlemont Fire Department responded 

to the incident and, when it could not 

identify the material, called the 

Massachusetts Hazardous Material 

Response Team. When the Response 

team identified the material, and 

determined it did not pose a risk to the 

environment, the team abandoned 

further cleanup efforts and turned the 

scene over to Boston and Maine’s 

personnel. 

Massachusetts later presented an 

invoice to Boston and Maine for the cost 

of the response and the discontinued 

cleanup. Boston and Maine objected and 

sought relief through state 

administrative procedures. 

Subsequently, Boston and Maine filed a 

complaint in Massachusetts Superior 

Court for Middlesex County, alleging 

errors in law associated with the 

Massachusetts Department of Fire 

Services’ assessment of the response 

costs. While the State civil action was 

pending, Boston and Maine filed the 

present request for an Administrative 

determination of preemption. (The 

petition was filed with the Research and 

Special Programs Administration 

(RSPA) the predecessor of the Pipeline 

and Hazardous Materials Safety 

Administration (PHMSA)). For ease of 

reading, this publication will refer to 

PHMSA in describing the agency’s 

conduct during this proceeding. 

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4288 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

B. Application for Preemption 

Boston and Maine applied for a 

determination of preemption, 

contending the Federal Hazmat Law 

preempts the definitions of ‘‘hazardous 

material’’ contained in M.G.L. chs. 21 E 

and 21 K. Boston and Maine makes 

three arguments for preemption: (1) The 

definitions of ‘‘hazardous material’’ in 

the Massachusetts laws are not 

substantively the same as those in the 

Federal Hazmat Law; (2) the definitions 

pose an obstacle to the uniform 

regulation of transportation; and (3) by 

passing 49 U.S.C. 5125(b), Congress 

intended the Federal Hazmat Law to 

encompass all aspects of a response to 

a release or threat of release of a 

hazardous material while in 

transportation. 

On November 16, 2000, PHMSA 

published a Notice in the Federal 

Register inviting interested parties to 

comment on the application (65 FR 

69365). In response to requests from 

Massachusetts, and to give the parties 

an opportunity to research and analyze 

the issues, PHMSA twice extended the 

time for public comment (65 FR 79458 

(Dec. 19, 2000), 66 FR 8845 (Feb. 2, 

2001)). 

C. Federal Preemption 

In the absence of a waiver of 

preemption by DOT (49 U.S.C. 5125(e)) 

or a grant of specific authority in 

another Federal law, the Federal Hazmat 

Law preempts a requirement of a State, 

political subdivision of a State, or 

Indian tribe if: 

(1) Complying with a requirement of the 

State, political subdivision or tribe and a 

requirement of this chapter or a regulation 

issued under this chapter, or a hazardous 

materials transportation security regulation 

or directive issued by the Secretary of 

Homeland Security is not possible; or 

(2) The requirement of the State, political 

subdivision, or Indian tribe, as applied or 

enforced, is an obstacle to accomplishing and 

carrying out this chapter or a regulation 

prescribed under this chapter or a hazardous 

materials transportation security regulation 

or directive issued by the Secretary of 

Homeland Security (49 U.S.C. 5125(a)). 

The two paragraphs in 49 U.S.C. 5125(a) 

set forth the ‘‘dual compliance’’ and 

‘‘obstacle’’ tests. Prior to the 1990 

codification of these two tests, PHMSA 

applied the tests when issuing 

inconsistency rulings under the original 

preemption provisions in the Hazardous 

Materials Transportation Act (HMTA) 

(Pub. L. 93–633, 112(a), 88 Stat. 2161 

(1975)). The two tests evolved from U.S. 

Supreme Court decisions (See Hines v. 

Davidowitz, 312 U.S. 52 (1941); Florida 

Lime & Avocado Growers, Inc. v. Paul, 

373 U.S. 132 (1963); Ray v. Atlantic 

Richfield, Inc., 435 U.S. 151 (1978)). 

PHMSA also has preemption 

authority under a ‘‘substantively the 

same’’ test (49 U.S.C. 5125(b)(1)). A nonFederal requirement concerning any of 

the subjects listed in 49 U.S.C. 

5125(b)(1), which is not ‘‘substantively 

the same as’’ a provision of the Federal 

Hazmat Law or a regulation prescribed 

under that law, or a hazardous materials 

transportation security regulation or 

directive issued by the Secretary of 

Homeland Security, is preempted unless 

the non-Federal requirement is 

authorized by another Federal law or 

DOT grants a waiver of preemption. 

Section 5125(b)(1) of 49 U.S.C. lists the 

following categories: 

(A) The designation, description, and 

classification of hazardous material; 

(B) The packing, repacking, handling, 

labeling, marking, and placarding of 

hazardous material; 

(C) The preparation, execution, and use of 

shipping documents related to hazardous 

material and requirements related to the 

number, contents, and placement of those 

documents; 

(D) The written notification, recording, and 

reporting of the unintentional release in 

transportation of hazardous material; and 

(E) The design, manufacturing, fabricating, 

marking, maintenance, reconditioning, 

repairing, or testing of a packaging or a 

container represented, marked, certified, or 

sold as qualified for use in transporting 

hazardous material. 

These areas ‘‘are critical both to the 

safe transportation of hazardous 

materials and the free flow of 

commerce,’’ and any non-Federal law or 

requirement falling within one of these 

areas creates an obstacle if the nonFederal requirement is substantively 

different (PD–23 (RF); Morrisville, PA, 

Requirements for Transportation of 

‘‘Dangerous Waste,’’ Decision on 

Petition for Reconsideration, 67 FR 

2948, 2949 (Jan. 22, 2002), internal 

quotes omitted). The non-Federal 

requirement must ‘‘conform in every 

significant respect to the Federal 

requirement to be considered 

substantively the same. Editorial and 

other similar de minimis changes are 

permitted’’ (49 C.F.R. 107.202(d)). 

The preemption provisions in 49 

U.S.C. 5125 are intended to promote the 

safe movement of goods in interstate 

commerce by ‘‘preclude[ing] a 

multiplicity of State and local 

regulations and the potential for varying 

as well as conflicting regulations in the 

area of hazardous materials 

transportation’’ (S. Rep. No. 1102, 93rd 

Cong. 2nd Sess. 37 (1974)). When 

amending the HMTA in 1990, Congress 

specifically found: 

(1) Many States and localities have enacted 

laws and regulations which vary from 

Federal laws and regulations pertaining to 

the transportation of hazardous materials, 

thereby creating the potential for 

unreasonable hazards in other jurisdictions 

and confounding shippers and carriers which 

attempt to comply with multiple and 

conflicting registration, permitting, routing, 

notification, and other regulatory 

requirements, 

(2) Because of the potential risks to life, 

property, and the environment posed by 

unintentional releases of hazardous 

materials, consistency in laws and 

regulations governing the transportation of 

hazardous materials is necessary and 

desirable, 

(3) In order to achieve greater uniformity 

and to promote the public health, welfare, 

and safety at all levels, Federal standards for 

regulating the transportation of hazardous 

materials in intrastate, interstate, and foreign 

commerce are necessary and desirable (Pub. 

L. 101–615, 2, 104 Stat. 3244). 

Uniformity is the ‘‘linchpin’’ in the 

design of the HMTA, including the 1990 

amendments expanding the original 

preemption provisions (Colorado Pub. 

Util. Comm’n v. Harmon, 951 F.2d 1571, 

1575 (10th Cir. 1991)). (In 1994, 

Congress revised, codified, and enacted 

the HMTA ‘‘without substantive 

change,’’ at 49 U.S.C. Chapter 51 (Pub. 

L. 103–272, 108, Stat. 745)). 

Any person directly affected by a nonFederal law or regulation may apply to 

the Secretary of Transportation for a 

determination whether a State, local or 

tribal requirement is preempted (49 

U.S.C. 5125(d)(1)). The Secretary of 

Transportation delegated to PHMSA the 

authority to make determinations of 

preemption concerning hazardous 

materials transportation issues, except 

for issues concerning highway routing, 

which the Secretary delegated to the 

Federal Motor Carrier Safety 

Administration (49 CFR 1.53(b) and 

1.73(d)(2)). 

PHMSA Preemption determinations 

do not address issues of preemption 

arising under the Commerce Clause, the 

Fifth Amendment or other provisions of 

the Constitution. Preemption 

determinations issued by PHMSA also 

do not address questions arising under 

other Federal statutes unless it becomes 

necessary to determine whether the 

requirement questioned in the 

preemption request is authorized or 

required by another Federal law. 

In making preemption 

determinations, PHMSA is guided by 

the principles of Federalism and the 

policies set forth in Executive Order No. 

13132 (64 FR 43255 (August 10, 1999)). 

PHMSA may preempt a State law only 

if a Federal statute contains an express 

preemption provision, there is other 

clear evidence that Congress intended to 

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Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4289 

preempt State law, or the exercise of 

State authority directly conflicts with 

the exercise of Federal authority. The 

Federal Hazmat Law contains an 

express preemption provision at section 

5125, and PHMSA implemented this 

provision through its regulations. 

PHMSA must publish a notice of an 

application for a preemption 

determination in the Federal Register 

(49 U.S.C. 5125(d)(1)). Following the 

receipt and consideration of written 

comments, PHMSA must publish its 

determination in the Federal Register 

(49 CFR 107.209(d) and 107.211(d)). 

D. Summary of Comments to 

Application for Preemption 

Nufarm, Inc (Nufarm), and the 

National Tank Truck Carriers, Inc. 

(NTTC) provided comments in support 

of Boston and Maine’s application 

(RSPA–2000–8026–8 and RSPA–2000– 

8026–10 respectively). Nufarm and 

NTTC urge PHMSA to declare the 

Massachusetts provisions preempted on 

the ground that the definitions in 

question are not substantively the same 

as the definition found in the Federal 

Hazmat Law. 

PHMSA received comments in 

opposition to Boston and Maine’s 

application from: (1) The Massachusetts 

Attorney General (AG), on behalf of (a) 

The Commonwealth of Massachusetts, 

(b) Massachusetts Department of Fire 

Services, and (c) Department of 

Environmental Protection; (2) the State 

of New York (Department of 

Environmental Conservation and the 

Attorney General); (3) the Fire Chief for 

Devens, Massachusetts; (4) the Fire 

Chiefs’ Association of Massachusetts, 

Inc.; (5) the State of Vermont; (6) the 

State of Connecticut; and (7) the 

Massachusetts Public Interest Group 

(MASSPRG). 

The Massachusetts AG argues the 

intention of Congress in passing the 

Federal Hazmat Law was not to preempt 

the entire field of a State’s emergency 

response necessitated by the threat of 

environmental contamination. 

Accordingly, the AG argues, the State 

laws in question do not frustrate, and 

are not an obstacle to, the 

accomplishment of the goals of the 

Federal Hazmat Law or the regulations 

promulgated thereunder. 

Likewise, the AG asserts that PHMSA 

should not find that the Federal Hazmat 

Law preempts State requirements under 

the dual-compliance test, because a 

person may simultaneously comply 

with both the Federal and non-Federal 

laws and regulations. MASSPRG agrees 

with the Commonwealth’s dualcompliance argument (RSPA–2000– 

8026–12). 

In the alternative, the AG challenges 

the applicability of the preemption 

standards. The AG contends that the 

Federal Hazmat Law has no application 

to the subjects addressed in M.G.L. Chs. 

21 E and 21 K, because once a release 

occurs, the materials are no longer in 

transportation (See also letters from 

MASSPRG, The State of New York 

(RSPA–2000–8026–14); Deven’s Fire 

Chief (RSPA–2000–80226–15) and the 

Fire Chiefs’ Association of 

Massachusetts (RSPA–2000–8026–16)). 

Lastly, the AG argues preemption is 

not appropriate because other Federal 

laws, such as CERCLA and Superfund 

Amendments and Reauthorization Act 

(SARA), title III, require States to 

respond to releases of potentially 

hazardous materials or environmental 

contaminants. The existence of such 

laws, the AG argues, shows Congress 

did not intend for the Federal Hazmat 

Law to apply to emergency response 

situations. 

III. Discussion 

A. ‘‘Substantively the Same’’ Test 

In the Federal Hazmat Law, Congress 

provided for express preemption of a 

non-Federal requirement ‘‘about * * * 

the designation, description, and 

classification of hazardous materials’’ 

not ‘‘substantively the same’’ as the 

provisions of Title 49, Chapter 51 of the 

United States Code (49 U.S.C. 5125(b)). 

In order to fully evaluate Boston and 

Maine’s claim, PHMSA must look at the 

goals and objectives of the Federal 

Hazmat Law and the State laws in 

question. When reviewing the goals and 

objectives of these laws, PHMSA 

‘‘start[s] with the assumption that the 

historic police powers of the States were 

not to be superseded by the Federal 

[Hazmat Law] unless that was the clear 

and manifest purpose of Congress’’ Rice 

v. Santa Fe Elevator Corp., 331 U.S. 218, 

230 (1947). Physical cleanup after a 

release of a material is traditionally a 

police power of the State (Inconsistency 

Ruling No. 2; State of Rhode Island 

Rules and Regulations Governing the 

Transportation of Liquefied Natural Gas 

and Liquefied Propane Gas Intended To 

Be Used by a Public Utility (44 FR 

75566, 75568, Dec. 20, 1979)). 

The purpose of the Federal Hazmat 

Law is to ‘‘provide adequate protection 

against the risk to life and property 

inherent in the transportation of 

hazardous materials in commerce’’ (49 

U.S.C. 5103(b)). Massachusetts General 

Law ch. 21 K is intended to provide for 

the quick, efficient, and effective 

cleanup of releases of environmental 

contaminants and the evaluation of 

threats of releases of materials possibly 

posing a threat to the environment. It 

provides the mechanism by which the 

State or private individuals may seek 

recompense for the costs of response 

and cleanup caused by a release of 

certain materials into the environment. 

The focus of ch. 21 K is environmental 

protection, not the transportation of 

hazardous materials. 

Massachusetts General Law ch. 21 E 

focuses on the State response to, and 

cleanup of, a release of environmental 

contaminants and, to that end, requires 

the identification of materials that may 

contaminate the local environment. This 

statute allows proper state authorities to 

determine which materials cause, or 

might cause, a contamination to the 

local environment if released. The 

Federal Hazmat Law requires the DOT 

to also identify materials that pose a risk 

to the environment. However, in 

contrast to the Massachusetts laws, the 

Federal Hazmat Law endeavors to 

ensure that materials are transported 

without release. With a primary focus 

on preventing a release, the Federal 

Hazmat Law serves a more limited 

environmental role after a release that 

necessitates a cleanup or mediation. For 

example, if a release of a hazardous 

material occurs during transportation, 

the Federal Hazmat Law, through the 

HMR, ensures that first responders 

receive adequate information 

concerning the materials listed in the 

HMR, and it also requires the reporting 

of release information to the appropriate 

authorities. 

The Massachusetts laws do not 

directly or indirectly affect or conflict 

with the transportation of hazardous 

materials or with transportation in 

general. The State’s use of the term 

‘‘hazardous material’’ to describe 

materials that may contaminate the local 

environment does not bring it into 

conflict with Federal law and is not a 

basis for preemption. 

Given the distinct purposes served by 

the Federal Hazmat Law and the State 

laws, the lack of direct or indirect effect 

or conflict between them, and the 

States’ traditional police powers in 

matters involving environmental 

protection, the Massachusetts laws are 

not preempted under 49 U.S.C. 5125(b). 

Accordingly, we need not address the 

question of whether a material remains 

in transportation after a release has 

occurred. 

B. Obstacle Test 

In applying the ‘‘obstacle’’ test, we 

consider any and all requirements 

imposed by the HMR, including those 

governing packaging; the marking and 

labeling of packages; and the reporting 

of a release occurring during 

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4290 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

transportation. We next consider 

whether the non-Federal requirement 

‘‘as applied and enforced’’ stands in the 

way of compliance with, or enforcement 

of, the Federal Hazmat Law. 

The State laws currently under 

consideration provide authority to 

respond to a release or threat of release 

of materials that Massachusetts found to 

pose a risk to the soil, water, or 

environment of Massachusetts. These 

laws also allow for the cleanup of 

contaminants and the recovery of the 

cleanup and response costs. No 

evidence in the record suggests that ch. 

21 E or 21 K, as applied and enforced, 

interferes with accomplishing the 

packaging, marking, labeling, reporting, 

or any other provision of the HMR. 

Neither Boston and Maine, nor any 

commenter, has alleged or shown 

Massachusetts to be applying or 

enforcing either ch. 21 E or 21 K in a 

manner imposing different or additional 

requirements on a carrier, or any other 

persons subject to the HMR. 

Accordingly, M.G.L. chs. 21 E and 21 K 

are not preempted by the Federal 

Hazmat Law by operation of the 

‘‘obstacle’’ test. 

C. Dual Compliance Test 

For similar reasons, we do not find 

M.G.L. chs. 21 E or 21 K preempted 

under the ‘‘dual compliance’’ test. 

Nothing in those laws, including the 

subject definitions, affects either: (1) 

The manner in which a shipper must 

package, label, or mark a hazardous 

material for transportation; (2) the 

duties of a carrier when it accepts a 

shipment of hazardous materials 

complying with the HMR; or (3) a 

carrier’s obligation to report a release of 

a material determined by the Secretary 

of Transportation to be a ‘‘hazardous 

material.’’ Therefore, the facts presented 

in this matter show a person can 

simultaneously comply with the 

requirements of the Federal Hazmat Law 

and the State laws. 

D. Intent of Congress 

Finally, we consider the contention of 

Boston and Maine that the 

Massachusetts laws fall within a 

regulatory field that Congress intended 

would be exclusively reserved to 

PHMSA. We conclude to the contrary. 

On matters concerning the physical 

response and cleanup of contamination, 

Congress left room for States and 

localities to exercise their traditional 

authority. 

PHMSA enters this field in limited 

respects, imposing certain requirements 

related to the release of designated 

hazardous materials in or in connection 

with transportation. Other Federal 

agencies regulate aspects of releases or 

threats of releases of hazardous 

materials and any other materials posing 

a risk to the environment. Congress 

granted the Environmental Protection 

Agency (EPA), and Occupational Safety 

and Health Administration (OSHA) 

authority to regulate aspects of the 

response to a release or threat of release 

of hazardous materials. Furthermore, 

States have retained their traditional 

authority relating to the release or threat 

of release of materials occurring within 

State borders. 

Under the Federal Hazmat Law, 

PHMSA promulgates regulations 

requiring a person offering hazardous 

materials for transportation to provide 

carriers with certain emergency 

response information to accompany the 

hazardous materials while in 

transportation. The mandatory 

information includes: (1) Information 

regarding the materials present in the 

shipment, (2) what hazards the 

materials may present, (3) how to treat 

the materials, (4) preliminary first aid 

measures, and (5) how to avoid risk of 

injury. This information is conveyed by 

the placarding of the transport vehicle, 

the marking and labeling of the 

packaging, and the content of shipping 

papers. PHMSA also regulates incident 

reporting and recording, prescribing 

when, how, and to whom reports must 

be made of hazardous materials releases 

occurring during transportation. 

PHMSA has long recognized that the 

actual physical response and cleanup 

after a release of materials during 

transportation is a local responsibility. 

In Inconsistency Ruling No. 2; State of 

Rhode Island Rules and Regulations 

Governing the Transportation of 

Liquefied Natural Gas and Liquefied 

Propane Gas Intended To Be Used by a 

Public Utility (44 FR 75566, Dec. 20, 

1979), PHMSA identified subjects as to 

which the need for national uniformity 

is so crucial and the scope of the HMTA 

(now Federal Hazmat Law) is so 

pervasive that State or local regulations 

would present obstacles to the HMTA. 

PHMSA also identified subjects as to 

which the Federal Hazmat Law and 

HMR did not (and still do not) apply. 

Specifically, PHMSA stated: 

Despite the dominant role that Congress 

contemplated for the Departmental 

standards, there are certain aspects of 

hazardous materials transportation that are 

not amenable to effective nationwide 

regulation. One example is safety hazards 

that are peculiar to a local area. * * * 

Another example is emergency response 

activity. Although the Federal Government 

can regulate in order to avert situations 

where emergency response is necessary, and 

can aid in local and State planning and 

preparing, when an accident does occur, 

response is, of necessity, a local 

responsibility (44 FR at 75568). 

The HMR also prescribe requirements 

for written notification, recording, and 

reporting after a release of a material the 

Secretary of Transportation has deemed 

poses ‘‘an unreasonable risk to health 

and safety or property’’ when the 

material is in transportation or in 

storage incidental to its movement in 

transportation. The Secretary of 

Transportation lists these materials in 

49 CFR 172.101. Even as to those 

materials, the Federal Hazmat Law does 

not authorize PHMSA to regulate the 

cleanup, assessment, remediation, 

evaluation of releases of such materials, 

or to seek reimbursement for the costs 

caused by a release of such materials. 

In short, in the area of response and 

cleanup of materials released during 

transportation, the Federal Hazmat Law 

does not provide PHMSA authority that 

‘‘is so pervasive as to make reasonable 

the inference that Congress left no room 

for the state to supplement it.’’ 

Accordingly, we do not find that the 

Massachusetts laws regulate a field 

reserved to PHMSA by Federal law and 

are not otherwise persuaded that in 

adopting the Federal Hazmat Law, 

Congress intended to preempt laws such 

as the Massachusetts laws under 

consideration here. 

V. Ruling 

The Federal Hazmat Law does not 

preempt Massachusetts’ definitions of 

hazardous materials contained in 

M.G.L., Ch. 21 E, section 2 and Ch. 21 

K, section 1 because these definitions 

relate solely to environmental response 

and cleanup requirements. The State 

requirements as applied and enforced 

are not an obstacle to accomplishing 

and carrying any provision of the 

Federal Hazmat Law, the HMR, or a 

transportation security regulation or 

directive issued by the Secretary of 

Homeland Security and do not concern 

any of the five subject areas reserved to 

federal jurisdiction under 49 U.S.C. 

5125(b) or 49 CFR 171.202(a). 

VI. Petition for Reconsideration/ 

Judicial Review 

This determination is a final agency 

action upon publication in the Federal 

Register (49 CFR 107.209(c), as 

amended at 71 FR 30067 [May 25, 

2006]), except with respect to a person 

who files a timely petition for 

reconsideration. In accordance with 49 

CFR 107.211(a) (as amended at 71 FR 

30068 [May 25, 2006]), a person 

aggrieved by this determination may file 

a petition for reconsideration within 20 

days of publication of this 

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Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4291 

1Effective February 20, 2005, PHMSA was 

created to further the ‘‘highest degree of safety in 

pipeline transportation and hazardous materials 

transportation,’’ and the Secretary of Transportation 

redelegated hazardous materials safety functions 

from the Research and Special Programs 

Administration (RSPA) to PHMSA’s Administrator. 

49 U.S.C. 108, as amended by the Norman Y. 

Mineta Research and Special Programs 

Improvement Act (Pub. L. 108–426, § 2, 118 Stat. 

2423 (Nov. 30, 2004)); and 49 CFR 1.53(b), as 

amended at 70 FR 8301–02 (Feb. 18, 2005). For 

consistency, the terms ‘‘PHMSA’’ and ‘‘we’’ are 

used in the remainder of this determination, 

regardless of whether an action was taken by RSPA 

before February 20, 2005, or by PHMSA after that 

date. 

determination in the Federal Register. 

The filing of a petition for 

reconsideration is not a prerequisite to 

seeking judicial review under 49 U.S.C. 

5127(a). 

A person who is adversely affected or 

aggrieved by a preemption 

determination may file a petition for 

judicial review of that determination in 

the United States Court of Appeals for 

the District of Columbia or in the Court 

of Appeals for the United States for the 

circuit in which the petitioner resides or 

has its principal place of business, 

within 60 days after the determination 

becomes final. 49 U.S.C. 5127(a). 

Issued in Washington, DC on this 15th day 

of January, 2009. 

David E. Kunz, 

Chief Counsel. 

[FR Doc. E9–1419 Filed 1–22–09; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–99–3599 (PD–19(R))] 

New York State Department of 

Environmental Conservation 

Requirements on Gasoline Transport 

Vehicles 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice of administrative 

determination of preemption. 

Local Laws Affected: New York 

Codes, Rules and Regulations (NYCRR), 

Chapter 6, Sections 230.4(a)(3), 230.6(b) 

& (c). 

Applicable Federal Requirements: 

Federal hazardous material 

transportation law, 49 U.S.C. 5101 et 

seq., and the Hazardous Materials 

Regulations (HMR), 49 CFR Parts 171– 

180. 

Modes Affected: Highway. 

SUMMARY: Federal hazardous material 

transportation law does not preempt 

that part of 6 NYCRR 230.4(a)(3) 

requiring that a gasoline transport 

vehicle must be marked, near the U.S. 

DOT specification plate, with the date 

on which the tank was last tested for 

vapor tightness. Federal hazardous 

material transportation law preempts (1) 

the provisions in 6 NYCRR 230.4(a)(3) 

which require that the marking be a 

minimum two inches and contain ‘‘NYS 

DEC’’; (2) the requirement in 6 NYCRR 

230.6(b) for maintaining a copy of the 

most recent pressure-vacuum test 

results with the gasoline transport 

vehicle; and (3) the requirement in 6 

NYCRR 230.6(c) to retain pressurevacuum test and repair results for two 

years, because these requirements are 

not substantively the same as 

requirements in the HMR on the 

marking, maintaining, repairing, or 

testing of a package or container that is 

represented, marked, certified, or sold 

as qualified for transporting hazardous 

material. 

FOR FURTHER INFORMATION CONTACT: 

Frazer C. Hilder, Office of Chief 

Counsel, Pipeline and Hazardous 

Materials Safety Administration, U.S. 

Department of Transportation, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590–0001 (Tel. No. 202–366– 

4400). 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Application 

In this determination, PHMSA 

considers whether the Federal 

hazardous material transportation law 

preempts the following requirements of 

the New York State Department of 

Environmental Conservation (NYSDEC): 

—Marking a gasoline transport vehicle, ‘‘near 

with U.S. Department of Transportation 

certificate plate, in letters and numerals at 

least two inches high, which reads: NYS 

DEC and the date on which the gasoline 

transport vehicle was last tested’’ for vapor 

tightness (6 NYCRR 230.4(a)(3)); 

—Maintaining a copy of the ‘‘most recent 

pressure-vacuum test results * * * with 

the gasoline transport vehicle’’ (6 NYCRR 

230.6(b)); and 

—Retaining test and repair records ‘‘for two 

years after the testing occurred’’ (6 NYCRR 

230.6(c)). 

In February 1998, the National Tank 

Truck Carriers, Inc. (NTTC) applied for 

a determination that the Federal 

hazardous materials transportation law 

preempts these marking and record 

keeping requirements. NTTC has not 

challenged the underlying requirement 

in 6 NYCRR 230.4(b) that gasoline 

transport vehicles undergo the annual 

pressure-vacuum test set forth in 

‘‘Reference method 27 in Appendix A of 

40 CFR’’ (EPA Method 27). NTTC also 

stated it has no quarrel with the 

requirement in 6 NYCRR 230.6(a) to 

‘‘maintain records of pressure-vacuum 

testing and repairs.’’ 

In a notice published in the Federal 

Register on June 2, 1998 (63 FR 30032), 

the Research and Special Programs 

Administration (PHMSA’s predecessor 

agency) 1 invited interested persons to 

submit comments on NTTC’s 

application. In response to this notice, 

comments were submitted by NYSDEC; 

the environmental agencies of three 

other States (Connecticut, Delaware, and 

Pennsylvania); Region 2 of the U.S. 

Environmental Protection Agency 

(Region 2); and four industry 

associations: Association of American 

Railroads (AAR), Empire State 

Petroleum Association, Inc. (ESPA), 

National Propane Gas Association 

(NPGA), and Petroleum Marketers 

Association of America (PMAA). 

NYSDEC, NTTC, and AAR submitted 

rebuttal comments. PHMSA denied 

NYSDEC’s request to formally extend or 

reopen the comment period, but advised 

NYSDEC that an interested person may 

always bring new developments or 

address a newly raised issue under the 

procedural regulations which provide 

that ‘‘Late-filed comments are 

considered so far as practicable.’’ 49 

CFR 107.205(c). 

In its application, NTTC stated that its 

members had received citations for 

violations of these requirements. ESPA 

confirmed that these requirements were 

being actively enforced and stated that, 

in January and February 1998, NYSDEC 

‘‘conducted separate enforcement 

details outside the ports of Albany and 

Rensselaer in upstate New York. 

Numerous citations were issued alleging 

the failure to post a mandated DEC label 

and the failure to keep a copy of the 

tank test results with the cargo tank or 

transport vehicle.’’ 

PHMSA’s decision on NTTC’s 

application has been delayed in order 

for PHMSA to: 

1. Consult with the U.S. 

Environmental Protection Agency (EPA) 

whether the NYSDEC marking and 

record keeping requirements are 

authorized by the Clean Air Act, 42 

U.S.C. 7401 et seq., EPA’s December 

1978 control technology guidance 

document ‘‘Control of Volatile Organic 

Compound Leaks from Gasoline Tank 

Trucks and Vapor Collection Systems’’ 

(EPA 1978 CTG), and Region 2’s 

approval of New York’s State 

Implementation Plan (SIP) (see 51 FR 

21577 [June 13, 1986]), as contended by 

NYSDEC, the Connecticut, Delaware, 

mstockstill on PROD1PC66 with NOTICES