
[Federal Register: January 23, 2009 (Volume 74, Number 14)]
[Notices]               
[Page 4291-4296]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja09-126]                         

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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.

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    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 pressure-vacuum 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).
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    \1\ Effective 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, 
Sec.  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.
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    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,

[[Page 4292]]

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).
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    \2\ Cargo 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).
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    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), Sec.  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 Sec.  180.415(b)(2) to add the 
abbreviation ``K-EPA27 for a cargo tank tested under Sec.  
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

[[Page 4293]]

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:
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    \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.

    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 
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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 
pressure-vacuum 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

[[Page 4294]]

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 Sec.  
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 
Sec.  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 non-Federal 
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:
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    \5\ These 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 Sec.  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).

    (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 long-standing 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 Sec.  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

[[Page 4295]]

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\
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    \6\ Separate 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.''
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    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

[[Page 4296]]

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 non-compliance. 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 pressure-vacuum 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
