
[Federal Register: August 26, 2010 (Volume 75, Number 165)]
[Notices]               
[Page 52591-52592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au10-116]                         

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-98-3599 (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 reopening period for comments on petition for 
reconsideration of administrative determination of preemption.

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    Petitioner: New York State Department of Environmental Conservation 
(NYSDEC).

SUMMARY: PHMSA is reopening the period for comments on NYSDEC's 
petition for reconsideration of PHMSA's January 23, 2009 administrative 
determination with respect to the findings that Federal hazardous 
material transportation law preempts the requirements in 6 NYCRR 
230.6(b) and (c) for maintaining a copy of the most recent pressure-
vacuum test results with the gasoline transport vehicle and retaining 
pressure-vacuum test and repair results for two years, respectively.

DATES: Comments received on or before October 12, 2010, will be 
considered before a decision on NYSDEC's petition for reconsideration 
is issued by PHMSA's Chief Counsel.

ADDRESSES: All documents in this proceeding, including PHMSA's January 
23, 2009 preemption determination (PD-19(R)), NYSDEC's petition for 
reconsideration, and the comments submitted on the petition for 
reconsideration may be reviewed in the Docket Operations Facility (M-
30), U.S. Department of Transportation, West Building Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. All 
documents in this proceeding are also available on the U.S. Government 
Regulations.gov Web site: http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-98-3599 \1\ and may be 
submitted to the docket in writing or electronically. Mail or hand 
deliver three copies of each written comment to the above address. If 
you wish to receive confirmation of receipt of your

[[Page 52592]]

comments, include a self-addressed, stamped postcard. To submit 
comments electronically, log onto the U.S. Government Regulations.gov 
Web site: http://www.regulations.gov. Use the Search Documents section 
of the home page and follow the instructions for submitting comments.
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    \1\ As published in the Federal Register, PHMSA's January 23, 
2009 determination in PD-19(R) indicated an incorrect docket number 
(99-3559, instead of 98-3559). However, all comments submitted on 
NYSDEC's petition for reconsideration have been placed in the proper 
docket.
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    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (70 FR 19477-78), or you may visit http://www.dot.gov.

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

    In PD-19(R), published in the Federal Register on January 23, 2009 
(74 FR 4291), PHMSA considered NYSDEC's requirements for marking a 
gasoline transport vehicle, near the DOT specification plate, to 
indicate that it has been successfully tested for vapor tightness in 
accordance with the U.S. 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, 
and related requirements for maintaining records of pressure-vacuum 
test results.
    PHMSA found that Federal hazardous material transportation law 
preempts the requirements (1) that the marking must be a minimum two 
inches and contain ``NYS DEC'' (6 NYCRR 230.4(a)(3)); (2) for 
maintaining a copy of the most recent pressure-vacuum test results with 
the gasoline transport vehicle (6 NYCRR 230.6(b)); and (3) to retain 
pressure-vacuum test and repair results for two years (6 NYCRR 
230.6(c)), 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.
    Within the 20-day time period provided in 49 CFR 107.211(a), NYSDEC 
submitted a petition for reconsideration of PHMSA's decision in PD-
19(R). The American Trucking Associations, Inc. (ATA) and its 
affiliated National Tank Truck Carriers, Inc. (NTTC) submitted comments 
in response to NYSDEC's petition for reconsideration. Subsequently, 
NYSDEC purported to ``object'' to the ATA and NTTC comments and, 
thereafter, called attention to the President's May 20, 2009 Memorandum 
on ``Preemption'' (74 FR 24693 (May 22, 2009)), to which ATA submitted 
a further response.
    Recently, PHMSA received e-mails from counsel for NTTC asking about 
the status of PHMSA's decision on NYSDEC's petition for reconsideration 
and indicating that NYSDEC was seeking to settle a citation issued to a 
motor carrier in 2006.

II. EPA Requirements

    When PHMSA issued its determinations in PD-19(R), we were unaware 
of a final rule published by EPA on January 10, 2008, that added to 40 
CFR part 63 a new subpart CCCCCC on ``National Emission Standards for 
Hazardous Air Pollutants for Source Category: Gasoline Dispensing 
Facilities.'' 73 FR 1916. In Table 2 of this subpart, EPA adopted the 
requirement, effective on the date of publication in the Federal 
Register, that: ``The filling of storage tanks at GDF [gasoline 
dispensing facilities] shall be limited to unloading by vapor-tight 
gasoline cargo tanks. Documentation that the cargo tank has met the 
specifications of EPA Method 27 shall be carried on the cargo tank.'' 
73 FR at 1949 (emphasis supplied). In addition, EPA has advised PHMSA 
that the following recordkeeping requirement in 40 CFR 63.10(b)(1) is 
applicable to records of the Method 27 pressure-vacuum test:

    The owner or operator of an affected source subject to the 
provisions of this part shall maintain files of all information 
(including all reports and notification) required by this part 
recorded in a form suitable and readily available for expeditious 
inspection and review. The files shall be retained for at least 5 
years following the date of each occurrence, measurement, 
maintenance, corrective action, report, or record. At a minimum, the 
most recent 2 years of data shall be retained on site. The remaining 
3 years of data may be retained off-site. Such files may be 
maintained on microfilm, on a computer, on computer floppy disks, on 
magnetic tape disks, or on microfiche.

(emphasis supplied)
    In response to petitions for reconsideration of its January 10, 
2008 final rule, EPA has published a notice proposing to make 
amendments and clarifications to its requirements in 40 CFR part 63. 74 
FR 66470 (Dec. 15, 2009). Among the proposals in the EPA notice is a 
proposal to revise the retention requirement in Table 2 to subpart 
CCCCCC of part 63 to provide that ``Documentation that the cargo tank 
has met the specifications of EPA Method 27 shall be carried with the 
cargo tank, as specified in Sec.  63.11125(c).'' 74 FR at 66494 
(proposed new language in italics). Proposed new paragraph (c) of 
section Sec.  63.11125 would provide:

    (c) Each owner or operator of a gasoline cargo tank subject to 
the management practices in Table 2 to this subpart must keep 
records documenting vapor tightness testing for a period of 5 years. 
Documentation must include each of the items specified in Sec.  
63.11094(B)(1) through (viii). Records of vapor tightness must be 
retained as specified in either paragraph (c)(1) or paragraph (c)(2) 
of this section.
    (1) The owner or operator must keep all vapor tightness testing 
records with the cargo tank.
    (2) As an alternative to keeping all records with the cargo 
tank, the owner or operator may comply with the requirements of 
paragraphs (c)(2)(i) and (ii) of this section.
    (i) The owner or operator may keep records of only the most 
recent vapor tightness test with the cargo tank and keep records for 
the previous 4 years at their office or another central location.
    (ii) Vapor tightness testing records that are kept at a location 
other than with the cargo tank must be instantly available (e.g., e-
mail or facsimile) to the Administrator's designated representative 
during the course of a site visit or within a mutually agreeable 
time frame. Such records must be an exact duplicate image of the 
original paper copy record with certifying signatures.

74 FR at 66492-93.

III. Public Comments

    Interested parties are invited to comment on the effect on the 
pending petition for reconsideration of PD-19(R) of the existing 
Federal requirements promulgated at 40 CFR part 63, subpart CCCCCC, and 
the proposed changes to subpart CCCCCC of 40 CFR part 63. Comments 
should specifically address, with respect to each aspect of the NYSDEC 
recordkeeping requirements in 6 NYCRR 230.6(b) and (c), whether those 
requirements are ``authorized by another law of the United States,'' 
under the preemption criteria set forth in 49 U.S.C. 5125(a) and 
(b)(1).

    Issued in Washington, DC on August 23, 2010.
Bizunesh Scott,
Chief Counsel.
[FR Doc. 2010-21315 Filed 8-25-10; 8:45 am]
BILLING CODE 4910-60-P

