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, 

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4292 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

2Cargo tanks used to transport corrosive materials 

must also undergo a lining inspection (if the tank 

is lined) or a thickness test (if the tank is unlined), 

and be marked ‘‘L’’ to indicate the lining inspection 

or ‘‘T’’ for the thickness test. 49 CFR 180.407(c), 

180.415(b). 

3 Inspection and test records for Specification MC 

330 and MC 331 cargo tanks must be retained by 

the carrier ‘‘during the period the cargo tank is in 

the carrier’s service and for one year thereafter,’’ at 

the carrier’s principal place of business or, with 

approval of the Federal Motor Carrier Safety 

Administration (FMCSA), at a regional or terminal 

office. 49 CFR 180.417(c)(2). 

and Pennsylvania environmental 

agencies, and Region 2; 

2. Attempt to resolve the issue 

concerning the marking requirements in 

6 NYCRR 230.4(a)(3) by adding to the 

HMR a separate marking on a cargo tank 

which has been leakage tested under 

EPA Method 27 in order to ‘‘establish a 

national, uniform marking requirement 

for cargo tanks tested for vapor tightness 

in accordance with EPA regulations 

instead of, or in addition to, the leak test 

procedures specified in the HMR.’’ Final 

rule, ‘‘Requirements for Cargo Tanks,’’ 

68 FR 19258, 19263 (Apr. 18, 2003). 

3. Determine whether NYSDEC was 

still enforcing its marking and record 

keeping requirements after issuance of 

PHMSA’s 2003 final rule adding the 

EPA Method 27 marking to the HMR. 

NTTC has recently advised that 

NYSDEC is continuing to enforce its 

different marking provisions in 6 

NYCRR 230.4(a)(3) and its record 

keeping requirements in 6 NYCRR 

230.6(b) and (c). In October 2007, NTTC 

submitted a copy of a July 22, 2006 

citation issued to one of its members for 

failing to maintain records of the 

pressure vacuum test on the vehicle and 

photographs of tank trucks marked 

‘‘NYS DEC’’ plus the month and year of 

the most recent pressure-vacuum test. 

NTTC also stated that NYSDEC has not 

responded to inquiries about the present 

level of enforcement of these 

requirements. 

Neither NTTC’s application nor any of 

the comments indicate that NYSDEC 

has been actively applying the 

requirements for a pressure-vacuum 

test, or the marking and record keeping 

requirements challenged by NTTC, to 

rail tank cars used to transport gasoline 

or other petroleum products. PHMSA 

understands that relatively little 

gasoline is transported by rail. PHMSA’s 

Office of Hazardous Materials Safety 

concluded that less than 1.5% of the 

tonnage of petroleum products moves 

by rail, in its 1998 study of ‘‘Hazardous 

Materials Shipments.’’ Based on the 

2002 Vehicle Inventory Use Survey 

maintained by the U.S. Bureau the 

Census, PHMSA estimates that, in 

contrast, there are approximately 40,000 

cargo tank motor vehicles in service 

which deliver some 332 million gallons 

of gasoline each day in the United 

States. While PHMSA understands that 

motor vehicle deliveries of gasoline are 

primarily local (traveling an average of 

50 miles per trip), both NTTC and ESPA 

stated that gasoline tank trucks are 

regularly moved from southern states to 

the northeast in winter. ESPA also noted 

that ‘‘it is common for gasoline and 

other petroleum transport vehicles in 

New York to switch cabs and cargo 

tanks for delivery,’’ so that the test 

record must be transferred ‘‘whenever a 

cab and a cargo tank are interchanged.’’ 

The difficulty (if not impossibility) of 

maintaining test and repair records with 

a rail tank car is a final reason to assume 

that NYSDEC is not applying its 

marking and record keeping 

requirements to rail tank cars. 

For these reasons, this determination 

considers the NYSDEC marking and 

recordkeeping requirements only as 

applied to motor vehicles and does not 

address whether Federal hazardous 

material transportation law preempts 

these requirements with respect to rail 

tank cars. 

B. Cargo Tank Testing, Marking, and 

Recordkeeping Requirements in the 

HMR 

The HMR contain requirements for 

the design, manufacture, and 

maintenance of the cargo tank on a 

motor vehicle used to transport 

gasoline, including marking the cargo 

tank to indicate when periodic testing 

has been performed and keeping records 

that the testing has been successfully 

performed. The requirements for 

maintenance and periodic testing of 

cargo tanks are contained in 49 CFR part 

180, subpart E, which was added to the 

HMR in 1989. Final rule, ‘‘Requirements 

for Cargo Tanks,’’ 54 FR 24982 (June 12, 

1989); delay of effective date, response 

to petitions for reconsideration and 

revisions, 55 FR 37028 (Sept. 7, 1990); 

corrections and revisions, 56 FR 27872 

(June 17, 1991). 

In this final rule, PHMSA required 

that a cargo tank used to transport 

gasoline or other petroleum products 

must undergo a leakage test and an 

external visual inspection every year, 

and an internal visual inspection and 

pressure test every five years. 49 CFR 

180.407(c). The person performing or 

witnessing the required tests and 

inspections must be a registered 

inspector, familiar with DOT 

specification cargo tanks, and trained 

and experienced in the inspection and 

testing equipment utilized. 49 CFR 

180.409. After completion of the 

required inspection or test, the cargo 

tank must be marked durably and 

legibly with the month and year of the 

test or inspection and the type of test or 

inspection performed; the marking must 

be at least 1.25 inches high and located 

near the specification plate or on the 

front head; and the following 

abbreviations are authorized: 

V for external visual inspection and test 

I for internal visual inspection 

P for pressure test 

K for leakage test 

49 CFR 180.415.2 Each test or inspection 

must be documented in a report 

containing certain required information, 

and the owner and the motor carrier (if 

not the owner) must retain a copy of the 

test and inspection reports until the 

next successful test or inspection of the 

same type. 49 CFR 180.417(b).3 Records 

of any repairs to the cargo tank, 

‘‘including notation of any tests to verify 

the suitability of the repair,’’ must be 

retained at the vehicle owner’s principal 

place of business. 49 CFR 180.413(f). 

Repair records must be provided to a 

person who purchases or leases the 

cargo tank for more than 30 days. 49 

CFR 180.417(d). 

In the June 12, 1989 final rule, 

PHMSA specifically provided that 

‘‘Where applicable, the [EPA Method 

27] is an acceptable alternative test’’ for 

performing the leakage test. 49 CFR 

180.407(h)(2), as adopted at 54 FR 

25037. As revised in PHMSA’s further 

final rule published in the Federal 

Register on April 18, 2003 (68 FR 

19258, 19288), § 180.407(h)(2) currently 

provides that: 

(2) Cargo tanks used to transport petroleum 

distillate fuels that are equipped with vapor 

collection equipment may be leak tested in 

accordance with the Environmental 

Protection Agency’s ‘‘Method 27— 

Determination of Vapor Tightness of Gasoline 

Delivery Tank Using Pressure-Vacuum Test,’’ 

as set forth in Appendix A to 40 CFR part 60. 

Test methods and procedures and maximum 

allowable pressure and vacuum changes are 

in 40 CFR 63.425(e)(1). The hydrostatic test 

alternative, using liquid in Environmental 

Protection Agency’s ‘‘Method 27— 

Determination of Vapor Tightness of Gasoline 

Delivery Tank Using Pressure-Vacuum Test,’’ 

may not be used to satisfy the leak testing 

requirements of this paragraph. The test must 

be conducted using air. 

In the April 18, 2003 final rule, 

PHMSA also amended the test and 

inspection marking requirements in 

§ 180.415(b)(2) to add the abbreviation 

‘‘K–EPA27 for a cargo tank tested under 

§ 180.407(h)(2) after October 1, 2004.’’ 

Id. at 19290. In the preamble id. at 

19263), PHMSA stated that this 

Special marking will allow an inspector to 

know the tank was tested using the EPA 

Method 27 test and also standardize the 

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Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4293 

4 In accordance with 49 CFR part 350, States 

which adopt and enforce ‘‘State safety laws and 

regulations that are compatible with’’ the Federal 

Motor Carrier Safety Regulations, 49 CFR parts 390– 

397, and the HMR qualify for grants under the 

Federal Motor Carrier Safety Assistance Program 

(MCSAP). 49 CFR 350.201. FMCSA has advised that 

New York State received $7,399,535 in Basic and 

Incentive MCSAP grant awards for fiscal year 2008. 

marking for tanks undergoing this test 

throughout the United States. RSPA’s 

marking requirement will preempt state 

marking requirements for cargo tanks tested 

with the EPA Method 27 test, eliminating 

possible confusion by enforcement personnel 

attempting to verify that a cargo tank has met 

the HMR leak test requirements. 

C. New York State Requirements 

The New York State Commissioner of 

Transportation has adopted the HMR as 

state law, including the requirements in 

49 CFR part 180 for the maintenance 

and testing of cargo tanks. 17 NYCRR 

820.8(j). Prior to 2004, the requirements 

in the HMR were incorporated by 

reference in 17 NYCRR part 507. When 

the New York State Department of 

Transportation (NYSDOT) revised and 

relocated these provisions to 17 NYCRR 

part 820, it stated that its purpose was: 

To provide consistency, regarding 

commercial motor vehicles and operational 

requirements for drivers involved in 

commerce, with the standards and 

requirements of the Code of Federal 

Regulations that have been incorporated by 

reference and to provide clearer language to 

describe what is required to better preserve 

public safety. 

NYS Register, Oct. 13, 2004, p. 16. In its 

earlier notice of proposed rulemaking 

on these changes, NYSDOT stated that: 

The update to these regulations is essential 

to prevent jeopardizing the 7 million dollars 

of federal funding New York State receives 

annually to perform commercial vehicle 

safety programs. This update ensures 

uniformity in enforcement efforts for those 

motor carriers traveling solely within New 

York State as well as for those carriers 

traveling through the State. 

NYS Register, June 2, 2004, p. 24.4

Under its ‘‘Regulatory Flexibility 

Analysis’’ (id.) NYSDOT added that: 

The updated regulations will be more 

consistent with federal requirements which 

will facilitate a better understanding of what 

is required of the drivers and motor carriers 

operating vehicles subject to both NYSDOT 

and USDOT safety requirements. In most 

cases, the Department has made its 

commercial vehicle safety regulations 

consistent with the current Federal 

requirements and State statutes. As a result, 

there will be less confusion for drivers and 

motor carriers operating in both intrastate 

and interstate commerce. 

Authorized employees of NYSDEC, as 

well as NYSDOT, police officers 

(including the New York State Police) 

and FMCSA, must be afforded 

‘‘reasonable opportunity to enter 

vehicles or any place where hazardous 

materials are offered into commerce for 

the purpose of inspection to determine 

compliance with the provisions of this 

Part.’’ 17 NYCRR 820.8(i). 

Nonetheless, NYSDEC has adopted 

and applies separate regulations to a 

‘‘gasoline transport vehicle,’’ defined as 

‘‘[a]ny tank truck, trailer or railroad tank 

car, with a capacity of 300 gallons or 

more, used for the transportation of 

gasoline.’’ 6 NYCRR 230.1(b)(5). These 

regulations prohibit a gasoline transport 

vehicle from being filled or emptied 

unless the vehicle passes an annual 

vacuum-pressure test performed in 

accordance with EPA Method 27 and 

the vehicle ‘‘displays a marking near the 

U.S. Department of Transportation 

certificate plate, in letters and numerals 

at least two inches high, which reads: 

NYSDEC and the date on which the 

gasoline transport vehicle was last 

tested.’’ 6 NYCRR 230.4(a)(3), (b). The 

vehicle owner must retain records of 

pressure-vacuum testing and repairs for 

two years, and a ‘‘copy of the most 

recent pressure-vacuum test results, in a 

form acceptable to the [NYSDEC] 

commissioner must be kept with the 

gasoline transport vehicle.’’ 6 NYCRR 

230.6(b), (c). 

According to NYSDEC, these marking 

and record keeping requirements are 

part of its SIP promulgated pursuant to 

Section 110 of the Clean Air Act (42 

U.S.C. 7410) which requires States to 

implement, maintain and enforce 

National Ambient Air Quality Standards 

(NAAQS) for specific pollutants, 

including ozone. NYSDEC stated that, 

‘‘[o]nce a SIP has been approved by EPA 

it becomes enforceable as a matter of 

Federal law,’’ and the Clean Air Act 

‘‘specifically allows EPA to bring an 

enforcement action against any person 

who has violated or is in violation of 

any requirement or prohibition of a 

SIP.’’ 

NYSDEC stated that part of its 

‘‘strategy to attain the NAAQS for 

ozone’’ is the requirement in 6 NYCRR 

230.4(b) to perform an annual pressurevacuum test to determine that a gasoline 

transport vehicle is ‘‘vapor-tight,’’ 

pursuant to the suggestion in the EPA 

1978 CTG. NYSDEC stated that its 

marking ‘‘requirement had its genesis in 

the EPA’s 1978 CTG document which 

suggested labeling the tank truck with 

the date of the vapor tightness 

inspection and the tank identification 

number.’’ It did not indicate that the 

EPA 1978 CTG included any 

recommendation for requiring that the 

test results must be maintained on the 

gasoline transport vehicle itself, or that 

test and repair records must be retained 

for any specific period of time. 

New York is a part of the Northeast 

‘‘ozone transport region’’ (OTR) 

encompassing 11 States, the District of 

Columbia, and part of Virginia. See 42 

U.S.C. 7511c(a). NYSDEC submitted 

copies of these States’ regulations to 

support its assertion that all of the 

States in the Northeast OTR require 

gasoline transport vehicles to undergo a 

pressure-vacuum test and allow or 

require the use of EPA Method 27 as an 

acceptable means of performing the 

pressure-vacuum test. However, 

contrary to comments by NYSDEC and 

the Pennsylvania and Delaware 

environmental agencies, there is a 

remarkable lack of consistency among 

the marking and record keeping 

requirements of the States in the 

Northeast OTR. First of all, only 

NYSDEC and two other States in the 

Northeast OTC (Vermont and 

Massachusetts) specifically provide 

discretion to accept an ‘‘equivalent 

certification in another State.’’ 

In comparison to provisions on the 

size (2′′) and lettering (‘‘NYSDEC’’) of 

the marking requirement in 6 NYCRR 

230.4(c), 

—Only three other States (Maine, 

Massachusetts, and Connecticut) 

specify that the marking on the 

vehicle include letters referring to the 

State environmental agency (e.g., 

‘‘DEC’’ or ‘‘DEP’’). 

—Only two other States (Maine and 

Massachusetts) specify the size of the 

required marking (2′′). 

—Two States (Virginia and Maryland) 

specify that the marking contain the 

test expiration date, rather than the 

date that the most recent test was 

performed. 

—One State (Maine) requires the 

marking in two places (on ‘‘both the 

left and right bulkhead of the tank 

truck’’). 

In comparison to the NYSDEC record 

keeping requirements in 6 NYCRR 

230.6(b) and (c), only four other States 

in the Northeast OTR (New Hampshire, 

Pennsylvania, New Jersey, and 

Delaware) require a copy of the test 

results to be carried on the vehicle. A 

total of seven states (including New 

York) require retention of repair records, 

and the retention period for test records 

in other States in the Northeast OTR 

varies from one year (Pennsylvania) to 

five years (Connecticut); three States do 

not specify a time period that test 

records must be retained. 

II. Federal Preemption 

As discussed in the June 2, 1998 

notice, 49 U.S.C. 5125 contains express 

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4294 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

5These revisions are contained in the Hazardous 

Materials Transportation Safety and Security 

Reauthorization Act of 2005, which is Title VII of 

the Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users 

(SAFETEA–LU), Public Law 109–59, 119. Stat. 1891 

(Aug. 10, 2005). Further editorial corrections to 

§ 5125 were made in Section 302 of the SAFETEA– 

LU Technical Corrections Act of 2008, Public Law 

110–244, 122 Stat. 1618 (June 6, 2008). 

preemption provisions that are relevant 

to this proceeding. 63 FR at 30033–34. 

As amended by Section 1711(b) of the 

Homeland Security Act of 2002 (Pub. L. 

107–296, 116 Stat. 2320), 49 U.S.C. 

5125(a) provides that—in the absence of 

a waiver of preemption by DOT under 

§ 5125(e) or specific authority in another 

Federal law—a requirement of a State, 

political subdivision of a State, or 

Indian tribe is preempted if 

(1) Complying with a requirement of the 

State, political subdivision, or tribe and a 

requirement of this chapter, a regulation 

prescribed 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 tribe, as applied or enforced, 

is an obstacle to accomplishing and carrying 

out this chapter, a regulation prescribed 

under this chapter, or a hazardous materials 

transportation security regulation or directive 

issued by the Secretary of Homeland 

Security. 

These two paragraphs set forth the 

‘‘dual compliance’’ and ‘‘obstacle’’ 

criteria that PHMSA had applied in 

issuing inconsistency rulings (IRS) prior 

to 1990, under the original preemption 

provision in the Hazardous Materials 

Transportation Act (HMTA). Public Law 

93–633 § 112(a), 88 Stat. 2161 (1975). 

The dual compliance and obstacle 

criteria are based on U.S. Supreme 

Court decisions on preemption. 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). 

Subsection (b)(1) of 49 U.S.C. 5125, as 

slightly revised in 2005,5 provides that 

a non-Federal requirement concerning 

any of the following subjects is 

preempted—unless authorized by 

another Federal law or DOT grants a 

waiver of preemption—when the nonFederal requirement is not 

‘‘substantively the same as’’ a provision 

of Federal hazardous material 

transportation law, a regulation 

prescribed under that law, or a 

hazardous materials security regulation 

or directive issued by the Secretary of 

Homeland Security: 

(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. 

(E) The designing, manufacturing, 

fabricating, inspecting, marking, maintaining, 

reconditioning, repairing, or testing of a 

package, container, or packaging component 

that is represented, marked, certified, or sold 

as qualified for use in transporting hazardous 

material. 

To be ‘‘substantively the same,’’ the 

non-Federal requirement must conform 

‘‘in every significant respect to the 

Federal requirement. Editorial and other 

similar de minimis changes are 

permitted.’’ 49 CFR 107.202(d). 

The 2002 and 2005 amendments to 

the preemption provisions in 49 U.S.C. 

5125 reaffirmed Congress’s longstanding view that a single body of 

uniform Federal regulations promotes 

safety (including security) in the 

transportation of hazardous materials. 

More than thirty years ago, when it was 

considering the HMTA, the Senate 

Commerce Committee ‘‘endorse[d] the 

principle of preemption in order to 

preclude 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 Congress expanded the 

preemption provisions in 1990, it 

specifically found that: 

(3) 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, 

(4) 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, 

(5) 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. 

Public Law 101–615 § 2, 104 Stat. 3244. 

A United States Court of Appeals has 

found that uniformity was the 

‘‘linchpin’’ in the design of the Federal 

laws governing the transportation of 

hazardous materials. Colorado Pub. Util. 

Comm’n v. Harmon, 951 F.2d 1571, 

1575 (10th Cir. 1991). 

Under 49 U.S.C. 5125(d)(1), any 

person (including a State, political 

subdivision of a State, or Indian tribe) 

directly affected by a requirement of a 

State, political subdivision or tribe may 

apply to the Secretary of Transportation 

for a determination whether the 

requirement is preempted. The 

Secretary of Transportation has 

delegated authority to PHMSA to make 

determinations of preemption, except 

for those that concern highway routing 

(which have been delegated to FMCSA). 

49 CFR 1.53(b). 

Section 5125(d)(1) requires that notice 

of an application for a preemption 

determination must be published in the 

Federal Register. Following the receipt 

and consideration of written comments, 

PHMSA publishes its determination in 

the Federal Register. See 49 CFR 

107.209. A short period of time is 

allowed for filing of petitions for 

reconsideration. 49 CFR 107.211. A 

petition for judicial review of a final 

preemption determination must be filed 

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). 

Preemption determinations do not 

address issues of preemption arising 

under the Commerce Clause, the Fifth 

Amendment or other provisions of the 

Constitution, or statutes other than the 

Federal hazardous material 

transportation law unless it is necessary 

to do so in order to determine whether 

a requirement is authorized by another 

Federal law, or whether a fee is ‘‘fair’’ 

within the meaning of 49 U.S.C. 

5125(f)(1). A State, local or Indian tribe 

requirement is not authorized by 

another Federal law merely because it is 

not preempted by another Federal 

statute. Colorado Pub. Util. Comm’n v. 

Harmon, above, 951 F.2d at 1581 n.10. 

In making preemption determinations 

under 49 U.S.C. 5125(d), PHMSA is 

guided by the principles and policies set 

forth in Executive Order No. 13132, 

entitled ‘‘Federalism.’’ 64 FR 43255 

(Aug. 10, 1999). Section 4(a) of that 

Executive Order authorizes preemption 

of State laws only when a statute 

contains an express preemption 

provision, there is other clear evidence 

that Congress intended to preempt State 

law, or the exercise of State authority 

directly conflicts with the exercise of 

Federal authority. Section 5125 contains 

express preemption provisions, which 

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Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4295 

6Separate from the issue whether the NYSDEC 

marking and record keeping requirement are 

‘‘authorized by another law of the United States,’’ 

the explicit language of 49 U.S.C. 5125(d) resolves 

the issues of a ‘‘Federal right of action,’’ ‘‘standing,’’ 

and ‘‘subject matter jurisdiction,’’ in providing that 

any person ‘‘directly affected’’ by the NYSDEC’s 

requirements (as NTTC’s members are) may apply 

to DOT for an administrative preemption 

determination and for DOT to issue a determination 

on that application. The Court of Appeals for the 

Sixth Circuit held that the ‘‘unique * * * 

structure’’ of the administrative determination 

procedure ‘‘does not mirror * * * civil litigation’’ 

but rather ‘‘falls within the rule-making process 

lying at the center of the responsibilities of federal 

executive agencies.’’ Tennessee v. U.S. Dep’t of 

Transportation, 326 F.3d 729, 734, 735, 736 (6th 

Cir. 2003). Thus, doctrines of a ‘‘right of action,’’ 

‘‘standing,’’ and ‘‘jurisdiction’’ simply do not apply. 

In PD–20(RF), ‘‘Cleveland, Ohio Requirements for 

Transportation of Hazardous Materials,’’ 66 FR 

29867, 29869 (June 1, 2001), PHMSA and FMCSA 

addressed, and rejected, arguments that the historic 

‘‘police power’’ of States and localities can trump 

‘‘DOT’s authority to regulate the transportation of 

hazardous materials in commerce and to find, by 

regulation or other process, that a non-Federal 

requirement on transportation conflicts with the 

Federal hazardous material transportation law and 

is preempted.’’ 

PHMSA has implemented through its 

regulations. 

III. Discussion 

The central issue to be resolved in 

this proceeding is whether the NYSDEC 

marking and recordkeeping 

requirements are ‘‘authorized by another 

law of the United States.’’ 49 U.S.C. 

5125(a), (b)(1). While NYSDEC asserted 

that there are ‘‘four issues’’ to be 

considered, all of them appear to relate 

to and depend on the argument that its 

requirements are ‘‘authorized by another 

law of the United States.’’ NYSDEC 

stated that (1) there is ‘‘no Federal right 

of action’’ when its requirements are 

authorized by another law of the United 

States; (2) PHMSA lacks ‘‘subject matter 

jurisdiction’’ and ‘‘the only valid action 

[PHMSA] can take here is to dismiss or 

deny the application on the basis that 

the challenged regulations are federally 

authorized’’; (3) NTTC lacks standing 

because it has not shown that it or its 

members ‘‘have a legally protected 

interest in avoiding compliance with the 

Clean Air Act’’; and (4) the 1990 Clean 

Air Act Amendments ‘‘left room for 

states to regulate, recognizing the 

important role they historically played 

in protecting the public health and 

welfare through air pollution 

measures.’’ 6

The three State environmental 

protection agencies and Region 2 also 

contend that the NYSDEC marking and 

record keeping requirements are 

‘‘authorized by another law of the 

United States.’’ The Pennsylvania 

Department of Environmental Protection 

stated that ‘‘an EPA approved SIP is 

federal law and enforceable as such.’’ 

The Connecticut Department of 

Environmental Protection stated that 

‘‘compliance by all states with EPA 

CAA requirements is essential for 

improvements in the levels of ozone 

experienced by citizens of all states.’’ 

The Delaware Department of Natural 

Resources and Environmental Control 

stated that all states in the Northeast 

OTR ‘‘have adopted rules substantially 

equivalent’’ to the EPA 1978 CTG for 

gasoline tank trucks, and ‘‘these states 

relied on the provisions of the Clean Air 

Act as a basis for these rules.’’ Region 

2 stated that the NYSDEC marking and 

recordkeeping requirements responded 

to the EPA 1978 CTG and were 

approved by EPA ‘‘based on the fact that 

they adequately addressed the 

requirements for control of gasoline tank 

trucks as identified in EPA’s December 

1978 CTG.’’ 

The Clean Air Act, itself, does not 

specifically authorize the NYSDEC 

marking and record keeping 

requirements. Rather, that Act requires 

each State to adopt and submit to EPA 

‘‘a plan which provides for 

implementation, maintenance, and 

enforcement of’’ the national ambient 

air quality standards within that State. 

42 U.S.C. 7410(a)(1). While the EPA 

1978 CTG specifies the use of a 

pressure-vacuum test to assure that the 

gasoline tank is leak tight, that CTG 

does not require—or authorize—the 

specific NYSDEC marking and record 

keeping requirements. Rather the EPA 

1978 CTG contains only two provisions 

under ‘‘Record Keeping and Reporting 

Requirements.’’ 

First, in Section II.D.1, ‘‘Each truck 

must have a sticker displayed on each 

tank indicating the identification 

number of the tank and the date each 

tank last passed the pressure and 

vacuum test. This sticker must be 

located near the Department of 

Transportation Certification plate.’’ The 

K–EPA27 marking added to 49 CFR 

180.415(b)(2) in PHMSA’s April 18, 

2003, final rule clearly fits the standard 

of ‘‘a sticker’’ with ‘‘the date each tank 

last passed the pressure and vacuum 

test * * * located near the Department 

of Transportation Certification plate.’’ 

Second, in Section II.D.2, ‘‘Bulk 

terminal, bulk plant and service station 

owners or operators must keep records 

for two years indicating the last time the 

vapor collection facility passed’’ the 

standards for these fixed facilities and 

‘‘identifying points at which VOC 

leakage exceeded a prescribed level.’’ 

The EPA 1978 CTG contains no 

provision specifically authorizing—or 

even suggesting—that a State require 

that records of the vacuum-pressure test 

must be carried on the gasoline 

transport vehicle or that test and repair 

records must be retained for two years. 

The Clean Air Act does require a State 

to include ‘‘a program to provide for the 

enforcement of’’ the ‘‘emission 

limitations and other control measures, 

means, or techniques’’ in its SIP, 42 

U.S.C. 7110(a)(2)(A), (C), but those 

provisions do not insulate from 

preemption under 49 U.S.C. 5125 any 

enforcement measures that NYSDEC 

asserts are ‘‘effective and practicable 

* * * to implement and ensure 

compliance with the air pollution 

standards set forth in [6 NYCRR] Part 

230 and * * * necessary for the 

Department to get approval from EPA 

for its SIP revisions containing Part 

230.’’ Rather, the Clean Air Act and 

Federal hazardous material 

transportation law must be read in a 

manner that carries out the provisions of 

both, if at all possible. This is made 

clear by Section 310 of the Clean Air 

Act which provides, with an exception 

that is not relevant here, that ‘‘Act shall 

not be construed as superseding or 

limiting the authorities and 

responsibilities, under any other 

provision of law, of * * * any other 

Federal officer, department, or agency.’’ 

42 U.S.C. 7610(a). 

EPA has previously stated that its 

authorization of a State hazardous waste 

program does not resolve issues of 

preemption under Federal hazardous 

material transportation law. Rather, 

‘‘preemption issued under other Federal 

laws * * * do not affect the State’s 

RCRA authorization.’’ EPA’s Final 

Authorization of State Hazardous Waste 

Management Program for California, 57 

FR 32726, 32728 (July 23, 1992). ‘‘In 

addition, EPA does not believe that an 

individual State’s authorization 

application is the appropriate forum to 

resolve problems which clearly affect a 

large number of States. * * * [A] 

process is already in place intended to 

address the problem pursuant to’’ 

Federal hazardous material 

transportation law. Id. See also the 

discussion of this authorization and 

other EPA letters in PD–12(R), ‘‘New 

York Department of Environmental 

Conservation Requirements on the 

Transfer and Storage of Hazardous 

Wastes Incidental to Transportation,’’ 60 

FR 62527, 62534 (Dec. 5, 1995), decision 

on petition for reconsideration, 62 FR 

15970 (Apr. 3, 1997), petition for 

judicial review dismissed, New York v. 

U.S. Dep’t of Transportation, 37 F. 

Supp. 2d 152 (N.D.N.Y 1999). 

The same principle applies here. 

Region 2’s approval of New York’s SIP 

does not address or resolve issues of 

preemption under 49 U.S.C. 5125 with 

respect to the enforcement measures in 

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4296 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

the SIP. This was made clear in 

PHMSA’s April 18, 2003, final rule, 

which was coordinated with EPA. As 

we stated in the preamble to the final 

rule, the additional K–EPA27 ‘‘marking 

requirement will preempt state marking 

requirements for cargo tanks tested with 

the EPA Method 27 test, eliminating 

possible confusion by enforcement 

personnel attempting to verify that a 

cargo tank has met the HMR leak test 

requirements.’’ 68 FR at 19263. 

The portion of 6 NYCRR 230.4(a)(3) 

which requires marking the ‘‘date each 

tank last passed the pressure and 

vacuum test * * * near the U.S. 

Department of Transportation certificate 

plate,’’ is ‘‘substantively the same as’’ 

requirements in the HMR. Otherwise, 

however, the provisions that specify 

that the marking be a minimum 2′′ size 

and include ‘‘NYSDEC’’ clearly go 

beyond—and are not substantively the 

same as—requirements in 49 CFR 

180.415(b) for the marking of a 

packaging or container that is 

‘‘represented, marked, certified, or sold 

as qualified for use in transporting 

hazardous material.’’ 

Similarly, the recordkeeping 

requirements in 6 NYCRR 230.6(b) and 

(c) are substantively different from 

specific requirements in the HMR on 

‘‘inspecting,’’ ‘‘maintaining,’’ 

‘‘repairing’’ and ‘‘testing a package [or] 

container * * * that is represented, 

marked, certified, or sold as qualified 

for use in transporting hazardous 

material in commerce.’’ 

A State requirement for additional 

markings on the cargo tank itself 

increases the potential that the markings 

required by the HMR will not be 

complete or clear and that shipments 

will be delayed by State inspectors who 

are familiar only with their own State’s 

requirements, or by Federal inspectors 

who cannot discern which markings are 

those required by the HMR. The 

inconsistencies among the gasoline tank 

truck marking requirements of the 

different States in the Northeast OTR 

and these States’ lack of complete 

reciprocity amply demonstrate the need 

for a uniform Federal marking system to 

eliminate confusion whether a cargo 

tank has undergone the required 

inspections and tests. 

Confusion and non-compliance are 

also created by the requirement in 6 

NYCRR 230.6(b) to maintain a copy of 

the pressure-vacuum test results on the 

transport vehicle. In the Harmon case, 

the Court of Appeals found that the 

HMR ‘‘require only that a limited 

amount of documentation be carried in 

the vehicle, which avoids carrier 

confusion and promotes quick access to 

critical documentation. Colorado’s 

requirement of additional information 

[to carry an inspection report on the 

vehicle] could create confusion in an 

emergency situation and could thereby 

increase the potential hazard’’ during 

transportation. 951 F.2d at 1583. 

Contrary to the assertion of the 

Pennsylvania Department of 

Environmental Protection, a 

requirement to carry the test and repair 

records on the vehicle does not 

eliminate ‘‘the need to place a copy of 

the results in archived files.’’ The 

FMCSA (or NYSDOT) inspector who 

visits a carrier’s principal place of 

business or regional or terminal office 

will be frustrated when the test results 

are not maintained at that location, but 

only on the vehicle. As NPGA 

commented, ‘‘the vehicle file is the 

primary source of information regarding 

the vehicle’s qualifications for 

continued use,’’ and the requirement to 

maintain test and repair records on the 

vehicle ‘‘would seem to cause the 

vehicle owner to not comply with these 

DOT requirements.’’ The differences 

among the States within the Northeast 

OTR make confusion and lack of 

compliance with the HMR’s 

requirements inevitable. 

NYSDEC’s two-year retention period 

for records of pressure-vacuum testing 

and repairs in 6 NYCRR 230.6(c) also 

creates confusion and potential noncompliance. Most seriously, this 

provision tells cargo tank owners that 

they may discard repair records after 

two years, but the HMR require that 

records of repair must be retained 

‘‘during the time the cargo tank motor 

vehicle is in service and for one year 

thereafter.’’ 49 CFR 180.413(f). In 

addition, the requirement to retain more 

than one set of pressure-vacuum test 

records (covering the last two or more 

annual tests, depending on the State) 

will inevitably lead to confusion as to 

which set of records cover the most 

recent testing. 

IV. Ruling 

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. However, that marking 

must be substantively the same as 

specified in 49 CFR 180.417(b): ‘‘K– 

EPA27’’ in association with the date 

(month and year) of the most recent test. 

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, inspecting, maintaining, 

repairing, or testing of a package or 

container that is represented, marked, 

certified, or sold as qualified for 

transporting hazardous material. 

V. Petition for Reconsideration/Judicial 

Review 

In accordance with 49 CFR 

107.211(a), any person aggrieved by this 

decision may file a petition for 

reconsideration within 20 days of 

publication of this decision in the 

Federal Register. A petition for judicial 

review of a final preemption 

determination must be filed 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). 

This decision will become PHMSA’s 

final decision 20 days after publication 

in the Federal Register if no petition for 

reconsideration is filed within that time. 

The filing of a petition for 

reconsideration is not a prerequisite to 

seeking judicial review of this decision 

under 49 U.S.C. 5127(a). 

If a petition for reconsideration is 

filed within 20 days of publication in 

the Federal Register, the action by 

PHMSA’s Chief Counsel on the petition 

for reconsideration will be PHMSA’s 

final action. 49 CFR 107.211(d). 

Issued in Washington, DC on January 15, 

2009. 

David E. Kunz, 

Chief Counsel. 

[FR Doc. E9–1431 Filed 1–22–09; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–2008–0333] 

Pipeline Safety: Requests for Special 

Permit 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA); DOT. 

ACTION: Notice. 

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