[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Notices]
[Pages 21838-21840]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08691]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2014-0003 (PDA-37(R)]


New York City Permit Requirements for Transportation of Certain 
Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by 
the American Trucking Associations, Inc. (ATA) for an administrative 
determination whether Federal hazardous material transportation law 
preempts requirements of the New York City Fire Department for a permit 
to transport certain hazardous materials by motor vehicle through New 
York City, or for transshipment from New York City, and the fee for the 
permit.

DATES: Comments received on or before June 2, 2014 and rebuttal 
comments received on or before July 16, 2014 will be considered before 
an administrative determination is issued by PHMSA's Chief Counsel. 
Rebuttal comments may discuss only those issues raised by comments 
received during the initial comment period and may not discuss new 
issues.

ADDRESSES: ATA's application and all comments received 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. The application and all 
comments are available on the U.S. Government Regulations.gov Web site: 
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2014-0003 and may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: 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.
     Hand Delivery: 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, between 9:00 a.m. and 
5:00 p.m., Monday through Friday, except Federal holidays.
    A copy of each comment must also be sent to (1) Boyd Stephenson, 
Director, Hazardous Materials & Licensing Policy, American Trucking 
Associations, 950 Glebe Road, Suite 210, Arlington, VA 22203, and (2) 
Salvatore J. Cassano, Commissioner, New York City Fire Department, 9 
Metrotech Center, New York, NY 11201. A certification that a copy has 
been sent to these persons must also be included with the comment. (The 
following format is suggested: ``I certify that copies of this comment 
have been sent to ATA and the New York City Fire Department at the 
addresses specified in the Federal Register.'')
    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 a comment 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 (65 FR 19477-78), or you may visit http://www.regulations.gov.
    A subject matter index of hazardous materials preemption cases, 
including a listing of all inconsistency rulings (IRs) and preemption 
determinations (PDs), is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Regulations,'' then on 
``Preemption of State and Local Laws'' (in the ``Hazmat Safety'' 
column). A paper copy of the index will be provided at no cost upon 
request to Mr. Hilder or Mr. Lopez, at the address and telephone number 
set forth in FOR FURTHER INFORMATION CONTACT below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder or Vincent Lopez, 
Office of Chief Counsel (PHC-10), Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE., Washington, DC 20590; telephone No. 202-366-4400; 
facsimile No. 202-366-7041.

[[Page 21839]]


SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    ATA has applied to PHMSA for a determination whether Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts 
the provisions in Section 2702-02 of Title 3 of the Rules of the City 
of New York which allow ``motor vehicles for which a permit has been 
issued'' to transport

flammable liquids, combustible liquids, compressed gases, and 
explosives, including fireworks in interstate and intrastate 
commerce, through the city without pickup or delivery, and with 
respect to deliveries of such materials to wharfs or piers, airports 
and shipping terminals for transshipment out of the city . . . 
without conforming to the routing, time, escort and other 
requirements of this section.\1\
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    \1\ Section 2707-02(a), (b)(2) (emphasis supplied; other italics 
omitted). Small arms ammunition and paints, varnishes, and other 
paint products are ``not subject to this section.'' The ``other 
requirements of this section'' include (a) prohibitions against 
fueling the motor vehicle in the City, or parking, standing, or 
transferring hazardous material from one container or vehicle to 
another except in the case of emergency, and (b) requirements to 
avoid congested areas and notify the Fire and Police Departments in 
the event of a breakdown or collision.
    ATA has also applied for a determination whether Federal 
hazardous material transportation law preempts permit and fee 
requirements of Pittsburgh, Pennsylvania. See Docket No. PHMSA-2014-
0002 (PDA-36(R)).

    ATA states that motor carriers ``must file a separate application 
for each tractor or trailer,'' and pay a $210 fee ``for each tractor or 
trailer to be inspected, and, if approved, must be ready to present 
copies of the permit to enforcement officials at their request.'' \2\ 
The copy of the permit form provided by ATA contains spaces for the 
truck and trailer numbers and the date of inspection of the vehicle or 
trailer, and also indicates that the ``Permit expires (1) one year from 
the above date'' and ``This letter shall be carried in the cab of the 
truck and it shall be presented upon request to Fire Department 
representative.''
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    \2\ ATA states that the ``$210 fee to inspect each tractor or 
trailer'' is ``far above the prevailing norm'' and that ``[o]ther 
hazardous materials transportation permits cost significantly less. 
For instance, the entire state of California mandates only $100 per 
motor carrier.''
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    In summary, ATA contends that the:

    City of New York's regulatory regime is deficient in several 
ways. Only motor carriers are required to obtain City of New York's 
permit, which imposes an unfair burden on a single mode of 
transportation. The permit requirements apply only to some carriers 
and impedes their drivers' ability to comply with 49 CFR 177.800(d), 
which mandates that ``hazardous materials must be transported 
without unnecessary delay.'' Finally, City of New York cannot show 
that it is using funds generated from its permit fees for hazardous 
materials enforcement and emergency response training.

II. Federal Preemption

    Section 5125 of Title 49, United States Code (U.S.C.), contains 
express preemption provisions relevant to this proceeding. Subsection 
(a) provides that a requirement of a State, political subdivision of a 
State, or Indian tribe is preempted--unless the non-Federal requirement 
is authorized by another Federal law or DOT grants a waiver of 
preemption under Sec.  5125(e)--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.\3\
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    \3\ These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that 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). PHMSA's predecessor 
agency, the Research and Special Programs Administration, applied 
these criteria in issuing inconsistency rulings under the original 
preemption provisions in Section 112(a) of the Hazardous Materials 
Transportation Act (HMTA), Public Law 93-633, 88 Stat. 2161 (Jan. 3, 
1975).

    Subsection (b)(1) of 49 U.S.C. 5125 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 Department of Homeland 
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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 a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material.\4\
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    \4\ 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).

    In addition, 49 U.S.C. 5125(f)(1) provides that a State, political 
subdivision, or Indian tribe ``may impose a fee related to transporting 
hazardous material only if the fee is fair and used for a purpose 
related to transporting hazardous material, including enforcement and 
planning, developing, and maintaining a capability for emergency 
response.'' \5\
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    \5\ See also 49 U.S.C. 5125(c) containing standards which apply 
to preemption of non-Federal requirements on highway routes over 
which hazardous materials may or may not be transported.
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    The preemption provisions in 49 U.S.C. 5125 reflect Congress's 
long-standing view that a single body of uniform Federal regulations 
promotes safety (including security) in the transportation of hazardous 
materials. Some forty years ago, when 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). A United States Court of Appeals has found 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).

III. Preemption Determinations

    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 concerning highway routing (which have been delegated to the 
Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in

[[Page 21840]]

the Federal Register. See 49 CFR 107.209(c). 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 addition, PHMSA does not generally consider 
issues regarding the proper application or interpretation of a non-
Federal regulation, but rather how such requirements are actually 
``applied or enforced.'' Rather, ``isolated instances of improper 
enforcement (e.g., misinterpretation of regulations) do not render such 
provisions inconsistent'' with Federal hazardous material 
transportation law, but are more appropriately addressed in the 
appropriate State or local forum. PD-14(R), Houston, Texas, Fire Code 
Requirements on the Storage, Transportation, and Handling of Hazardous 
Materials, 63 FR 67506, 67510 n.4 (Dec. 7, 1998), decision on petition 
for reconsideration, 64 FR 33949 (June 24, 1999), quoting from IR-31, 
Louisiana Statutes and Regulations on Hazardous Materials 
Transportation, 55 FR 25572, 25584 (June 21, 1990), appeal dismissed as 
moot, 57 FR 41165 (Sept. 9, 1992), and PD-4 (R), California 
Requirements Applicable to Cargo Tanks Transporting Flammable and 
Combustible Liquids, 58 FR 48940 (Sept. 20, 1993), decision on 
reconsideration, 60 FR 8800 (Feb. 15, 1995).
    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)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). 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 Congress intended 
to preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. The President's May 
20, 2009 memorandum sets forth the policy ``that preemption of State 
law by executive departments and agencies should be undertaken only 
with full consideration of the legitimate prerogatives of the States 
and with a sufficient legal basis for preemption.'' Section 5125 
contains express preemption provisions, which PHMSA has implemented 
through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts 
the City of New York's requirements for a permit for transporting these 
hazardous materials by motor vehicle through the City, or for 
transshipment from the City, and the fee for obtaining the permit. 
Comments should specifically address the preemption criteria discussed 
in Part II above and set forth in detail the manner in which these 
requirements are applied and enforced, including:
     Any requirements or conditions for issuance of a permit, 
other than completion of the application form, payment of the permit 
fee, and inspection of the tractor or trailer;
     the amount of time taken by the City to conduct the 
inspection and issue a permit; and
     for each of the past three calendar (or fiscal) years, the 
total amount of permit fees collected by the City and all purposes for 
which these fees have been used (including an identification of the 
specific accounts into which the permit fees were deposited).

    Issued in Washington, DC, on April 11, 2014.
Vanessa L. Allen Sutherland,
Chief Counsel.
[FR Doc. 2014-08691 Filed 4-16-14; 8:45 am]
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