[Federal Register Volume 61, Number 13 (Friday, January 19, 1996)]
[Notices]
[Pages 1432-1434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-547]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. PDA-14(R)]
Application by National Tank Truck Carriers, Inc., for a
Preemption Determination as to Hazardous Materials Requirements Imposed
by the City of El Paso, Texas
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Public notice and invitation to comment.
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SUMMARY: The National Tank Truck Carriers, Inc. (NTTC) has applied for
an administrative determination as to whether the Federal hazardous
material transportation law preempts certain provisions of Chapter 9.56
of the City of El Paso, Texas Municipal Code requiring motor carriers
or operators that transport hazardous materials to obtain a permit
based on inspections which are conducted only during limited time
periods, from November 1 through December 31 of each year.
DATES: Comments received on or before March 4, 1996, and rebuttal
comments received on or before April 18, 1996, will be considered
before an administrative ruling is issued by RSPA's Associate
Administrator for Hazardous Materials Safety. Rebuttal comments may
discuss only those issues raised in comments received during the
initial comment period and may not discuss new issues.
ADDRESSES: The application and any comments received may be reviewed in
the Dockets Unit, Research and Special Programs Administration, Room
8421, 400 Seventh Street, SW, Washington, DC 20590-0001 (Tel. No. [202]
366-4453). Comments and rebuttal comments on the application may be
submitted to the Dockets Unit at the above address, and should include
the Docket Number (PDA-14(R)). Three copies of each should be
submitted. In addition, a copy of each comment and each rebuttal
comment must be sent to: (1) Mr. Clifford J. Harvison, President,
National Tank Truck Carriers, Inc., 2200 Mill Road, Alexandria, VA
22314; and (2) Mr. David Caylor, City Attorney, City of El Paso, #2
Civic Center Plaza, Ninth Floor, El Paso, TX 79901. A certification
that a copy has been sent to each person must also be included with
each comment. (The following format is suggested: ``I hereby certify
that copies of this comment have been sent to Messrs. Harvison and
Caylor at the addresses specified in the Federal Register.'')
FOR FURTHER INFORMATION CONTACT: Karin V. Christian, Attorney, Office
of the Chief Counsel, Research and Special Programs Administration,
U.S. Department of Transportation, 400 Seventh Street SW, Washington,
DC 20590-0001 (Tel. No. [202] 366-4400).
SUPPLEMENTARY INFORMATION:
I. NTTC'S Application for a Preemption Determination
On December 10, 1995, NTTC applied for a determination that the
Federal hazardous material transportation law preempts certain
provisions of Chapter 9.56 of the City of El Paso, Texas Municipal Code
requiring motor carriers or operators transporting hazardous materials
to obtain permits based on inspections conducted only during limited
periods of time, from November 1 through December 31 of each year.
Section 9.56.080 of the City of El Paso Municipal Code states:
(a) It is unlawful for any motor carrier or operator to transport
hazardous materials from a point of origin within the city or to a
point of destination within the city without a permit issued by the
Fire Marshal, or his designee.
(b) The annual inspection period shall be from November 1 through
December 31 of each year.
(c) A permit fee of Fifty Dollars ($50.00) per vehicle shall be
paid upon inspection of the vehicle. Vehicles failing inspection shall
be assessed an additional Twenty-Five Dollars ($25.00) fee for
reinspection.
(d) No permit issued under this Chapter shall be transferable from
one person to another nor from one vehicle to another. The permit shall
be visibly posted in each vehicle.
The text of NTTC's application is set forth in Appendix A. The
attachments to the application, consisting of a copy of the ordinance
adopting a new Chapter 9.56 of the El Paso Municipal Code and an El
Paso Fire Department letter confirming active enforcement of the
ordinance, may be examined at RSPA's Dockets Unit. Copies of the
attachments will be provided at no cost, upon request to RSPA's Dockets
Unit (see the address and telephone number set forth in the Addresses
section above.)
II. Preemption Under the Federal Hazardous Material Transportation Law
The Hazardous Materials Transportation Act (HMTA) was enacted in
1975 to give the Department of Transportation greater authority ``to
protect the Nation adequately against the risks to life and property
which are inherent in the transportation of hazardous materials in
commerce.'' Pub. L. 93-633 Sec. 102, 88 Stat. 2156, amended by Pub. L.
103-272 and codified as revised in 49 U.S.C. 5101. A key aspect of HMTA
is that it replaced a patchwork of State and local laws. On July 5,
1994, the HMTA was among the many Federal laws relating to
transportation that were revised, codified and enacted ``without
substantive change'' by Public Law 103-272, 108 Stat. 745. The Federal
hazardous material transportation law is now found in 49 U.S.C. Chapter
51.
A statutory provision for Federal preemption was central to the
HMTA. In 1974, 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). More recently, the U.S.
Court of Appeals for the Tenth Circuit found that uniformity was the
``linchpin'' in the design of the HMTA, including the 1990 amendments
which expanded the preemption provisions. Colorado Public Utilities
Comm. v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).
Following the 1990 amendments and the subsequent 1994 codification
of the Federal law governing the transportation of hazardous material,
in the absence of a waiver of preemption by the Department of
Transportation (DOT) under 49 U.S.C. 5125(e), ``a requirement of a
State, political subdivision of a State, or Indian tribe'' is
explicitly preempted (unless it is authorized by another Federal law)
if--
(1) complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) the requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.
49 U.S.C. 5125(a). These two paragraphs set forth the ``dual
compliance'' and ``obstacle'' criteria which RSPA consistently has
applied since 1978.
In the 1990 amendments to the HMTA, Congress also confirmed that
there is no room for deviations from
[[Page 1433]]
Federal requirements in certain key matters involving the
transportation of hazardous material. Under the present codified
statute, a non-Federal requirement ``about any of the following
subjects, that is not substantively the same as a provision of this
chapter or a regulation prescribed under this chapter,'' is preempted
unless it is authorized by another Federal law or DOT grants a waiver
of preemption. Section 5125(b)(1) lists these five ``covered subjects''
as:
(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 design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
RSPA has defined ``substantively the same'' to mean ``conforms in every
significant respect to the Federal requirement. Editorial and other
similar de minimis changes are permitted.'' 49 CFR 107.202(d).
Under 49 U.S.C. 5125(d)(1), any person directly affected by a
requirement may apply to the Secretary of Transportation for a
determination whether a State, political subdivision, or Indian tribe
requirement is preempted by the Federal hazardous material
transportation law. Notice of an application for a preemption
determination must be published in the Federal Register, and the
applicant is precluded from seeking judicial relief on the ``same or
substantially the same issue'' of preemption for 180 days after the
application, or until the Secretary takes final action on the
application, whichever occurs first. Following the receipt and
consideration of written comments, RSPA publishes its determination in
the Federal Register. See 49 C.F.R. 107.209(d). A party to a preemption
determination proceeding may seek judicial review of the determination
in U.S. district court within 60 days after the determination becomes
final. 49 U.S.C. 5125((f).
The Secretary of Transportation has delegated to RSPA the authority
to make determinations of preemption, except for those concerning
highway routing, which have been delegated to the Federal Highway
Administration. 49 CFR 1.53(b). RSPA's regulations concerning
preemption determinations are set forth at 49 CFR 107.201-107.211.
Under these regulations, RSPA's Associate Administrator for Hazardous
Materials Safety issues preemption determinations. Any person aggrieved
by RSPA's decision on an application for a preemption determination may
file a petition for reconsideration within 20 days of service of that
decision. 49 CFR 107.211(a).
The decision by RSPA's Associate Administrator for Hazardous
Materials Safety becomes RSPA's final decision 20 days after service 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 under 49 U.S.C. 5125(f). If a petition for
reconsideration is filed, the action by RSPA's Associate Administrator
for Hazardous Materials Safety on the petition for reconsideration is
RSPA's final agency action. 49 CFR 107.211(d).
Preemption determinations do not address issues of preemption
arising under the Commerce Clause of the Constitution or under 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.
In making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policy set forth in Executive Order No.
12,612, entitled ``Federalism'' (52 FR 41685 [Oct. 30, 1987]). Section
4(a) of that Executive Order authorizes preemption of State laws only
when a statute contains 10 an express preemption provision, there is
other firm and palpable evidence of Congressional intent to preempt, or
the exercise of State authority directly conflicts with the exercise of
Federal authority. Section 5125 contains express provisions, which RSPA
has implemented through its regulations.
III. Public Comment
All comments should be limited to the issue of whether the cited
provisions of Chapter 9.56 of the City of El Paso Municipal Code are
preempted by the Federal hazardous material transportation law.
Comments should specifically address the preemption criteria
(``substantively the same,'' ``dual compliance,'' and ``obstacle''
tests described in Part II above) and whether the City of El Paso
Municipal Code requirements are ``otherwise authorized by Federal
law.''
Persons intending to comment should review the standards and
procedures governing RSPA's consideration of applications for
preemption determinations, set forth at 49 CFR 107.201-107.211.
Issued in Washington, DC on January 11, 1996.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
Appendix A--A Petition Seeking a ``Preemption Determination'' With
Regard to Specified Laws and Ordinances of the City of El Paso, Texas.
Filed by: National Tank Truck Carriers, Inc.
Before The Administrator:
National Tank Truck Carriers, Inc. (NTTC) is a trade association
representing over 200 motor carriers specializing in the transportation
of hazardous materials, hazardous substances and hazardous wastes in
cargo tank motor vehicles. Typically, this association's membership
operates vehicles over irregular routes throughout the continental
United States.
Virtually all of the members of NTTC are involved in the ``common
carrier'' transportation of commodities regulated as ``hazardous
materials'' by the Administrator. Given the nature of ``common
carriage'', individual members of this [association], having neither a
domicile nor a terminal in El Paso, Texas, are (nonetheless) called
upon to perform transportation services into, out of and through that
City. Thus, the interests of this Association (and its individual
members) are impacted.
Most recently, this association has become aware that the City of
El Paso, Texas intends an active enforcement program relative to
provisions of Chapter 9.56 of that city's ``Municipal Code'' (herein
referred to, alternatively, as ``the Ordinance''). A copy of Chapter
9.56 (as forwarded to NTTC by the City Clerk's office of the City) is
appended to this petition. Also attached is a copy of a letter from the
City's Fire Department underscoring the intention of the City to
conduct vehicle inspections, during a limited period of time.
Presumably, the vehicular inspections are a prerequisite to obtaining a
permit mandated by the Ordinance. We enclose this letter only to
underscore the fact that active enforcement is contemplated by the
City. The issue is not moot.
NTTC's Position
NTTC believes that substantial provisions of the City of El Paso's
Chapter 9.56, as enforced, are preempted by the Hazardous Materials
Transportation Uniform Safety Act (as amended) (``the Act''), and we
ask that
[[Page 1434]]
following public notice and opportunity for comment the Administrator
issue a formal determination of preemption. Specifically, NTTC believes
that the El Paso regulation, as currently applied and enforced, would
cause a motor carrier to violate 49 CFR 177.853(a).
A Brief Description of the Issue
On December 29, 1993, officials of the City of El Paso codified
revisions of Chapter 9.56 of the city's Municipal Code. Certain
provisions of the new Ordinance encompass ``findings'', various
definitions, ``minimum safety requirements'', a routing scheme
(including allowable circumstances for deviation), ``permits and
fees'', ``violations and penalties'', etc. It would appear that the
Ordinance is enforceable against any commercial vehicle laden with
hazardous materials, regardless of configuration (e.g. cargo tank vs.
van trailer, etc.). Moreover, via the Ordinance the city adopts certain
portions of the Administrator's Hazardous Materials Regulations (HMR)
as its own.
According to NTTC's interpretation of Chapter 9.56, virtually any
transporter having cause to pick-up and/or deliver regulated quantities
of any hazardous material (as defined within the HMR), at any time in a
given year at any place in the City, would be required to present any
and all vehicles used in such transportation at designated points
within the city, between November 1 and December 31, each year, for
inspection. We assume that the inspection would evaluate compliance
with relevant Federal regulations. Presuming satisfactory completion of
the inspection, the vehicle owner would pay a fee (for the inspection)
and be issued a ``permit''. That permit would be valid for one year and
must be ``visibly posted'' in the vehicle. Permits may not be
transferred from vehicle to vehicle.
The permit is subject to revocation, suspension, modification or
denial, and an appeal process is in place. The provisions of the 14
Ordinance are enforceable by designated city employees and the
penalties for non-compliance are substantial.
Safety and Operational Considerations
From the standpoint of its impact on the tank truck industry,
Chapter 9.56 is little more than a series of enforceable requirements
rolled into one. Herein, NTTC will concentrate on two areas of concern;
namely, the ``permit'' and the ``inspection''.
Historically, the Administrator has charged petitioners (in these
disputes) to evaluate state and local restrictions in terms of the
``dual compliance test'' and/or the ``obstacle test''.
Standing alone, neither the inspection program nor the permit
scheme invite review. Certainly, NTTC would not question the efficacy
of safety inspections conducted by trained personnel and aimed at
measuring compliance with Federal safety regulations. Similarly (and
beginning with IR#2), the Administrator has held that a permit, per se,
is not necessarily preempted.
In the case of the El Paso law, however, the inspection and the
permit are linked, inexorably. One cannot obtain a permit without an
inspection and one cannot have a vehicle inspected unless he/she
presents that vehicle before city officials at specific points and
within a very narrow time frame.
Argument
NTTC believes that the Administrator need not go beyond his
findings and ruling in the matter of PD-4(R); Docket No. PDA-6(R)
``California Requirements Applicable to Cargo Tanks Transporting
Flammable and Combustible Liquids; Decision on Petition for
Reconsideration'' to justify a ruling that the El Paso Ordinance is
(similarly) preempted.
Perhaps unknowingly, the City of El Paso has taken the preempted
provisions of the California Vehicle Code and added a new and sharply
limiting twist. California required an in-bound vehicle to remain in
that state (whether loaded or empty) until a safety inspection had been
performed. In the alternative, a carrier could ``pre-notify''
California officials of a shipment bound for its jurisdiction and
``schedule'' an inspection. El Paso, on the other hand, would not only
replicate California's preempted ``waiting'' period, it would compound
the felony by limiting inspection times to a time frame within November
1 and December 31.
As we noted in the California docket, ``the call and demand nature
of common carriage means that management may be unaware that a given
vehicle, dispatched from a given terminal at a given time, is destined
for California.'' Obviously, the same holds true for El Paso.
Even if the City amends its current procedures for performing
inspections and issuing permits such must only be done within
constraints clearly outlined by the Administrator, to wit: (a
jurisdiction) may not require an inspection as a condition of
travelling on (that jurisdiction's) roads when the inspection cannot be
conducted without delay because an inspector must come to the place of
inspection from another location. (PD-4(R); Docket No. PDA-6(R);
Decision on Petition for Reconsideration. Issued February 7, 1995).
We grant the fact that, in the case of El Paso's ordinance some
circumstances differ from those explored in the California decision,
but the burden is the same, to wit: the carrier is compelled to present
its vehicle (whether laden or empty) for inspection at a specific place
and within a narrow time frame. The net impact of the city's law
replicates the opportunities (and actualities) for delay preempted in
California.
Paraphrasing the Administrator's rationale in preempting the
California regulations, we suggest that, ``. . . (El Paso) is free, and
is encouraged, to conduct inspections of cargo tanks and portable tanks
at POEs, other roadside inspection locations, and terminals. However,
it may not require an inspection as a condition of travelling on (El
Paso's) roads when the inspection cannot be conducted without
(unnecessary) delay. . . .''
Additionally, and as noted by NTTC in other proceedings, should
other state or local jurisdictions enact requirements replicating El
Paso's the result would be chaotic. We foresee wandering parades of
trucks, of all shapes and sizes, crossing the nation's landscape
seeking safety inspections in the off-hand chance that sometime in the
next 365 days they might required to pick up and/or deliver a load to
one or more of the inspecting jurisdictions. We see the windshields of
those trucks so plastered with ``permits'' that the driver's field of
vision is through a ``paper tunnel''.
Frankly, we doubt that the City has any realistic idea of the
tumult that would result from comprehensive enforcement of Chapter
9.56.
Summary
Chapter 9.56 of the El Paso Municipal Code imposes an inspection
and permit scheme which, in substance and enforcement, replicates that
of the State of California which was preempted by the Administrator. As
such, it deserves (indeed, mandates) a similar fate.
(Note: A copy of this petition has been sent via first class
mail to the Office of the City Clerk and the Office of the Mayor of
El Paso, Texas).
Respectfully submitted:
Clifford J. Harvison,
President.
[FR Doc. 96-547 Filed 1-18-96; 8:45 am]
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