Notice2021-11494
Hazardous Materials: The New York State Department of Environmental Conservation Requirements on Gasoline Transport Vehicles
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 7, 2021
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
This proceeding was initiated in February 1998, when the National Tank Truck Carriers, Inc. (NTTC) applied to the Pipeline and Hazardous Materials Safety Administration \1\ (PHMSA) for a determination that the HMTA preempted certain marking and record keeping requirements of the New York State Department of Environmental Conservation (NYSDEC). PHMSA found that the HMTA preempted the NYSDEC requirements because the requirements were 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. NYSDEC's petition for reconsideration of that decision is dismissed on the grounds of mootness. NYSDEC has made significant revisions to its regulations, and the revised rules do not appear to impose the same requirements on regulated entities as the previous version of the rules that were challenged in this proceeding. It therefore does not appear that reconsidering PHMSA's preemption determination regarding the now- superseded NYSDEC rules would have any practical effect. ---------------------------------------------------------------------------
Full Text
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<title>Federal Register, Volume 86 Issue 107 (Monday, June 7, 2021)</title>
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[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Notices]
[Pages 30371-30372]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11494]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-98-3599; PD-19(R)]
Hazardous Materials: The New York State Department of
Environmental Conservation Requirements on Gasoline Transport Vehicles
AGENCY: Pipeline and Hazardous Materials Safety Administration,
Department of Transportation (DOT).
ACTION: Dismissal of petition for reconsideration of an administrative
determination of preemption.
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SUMMARY: This proceeding was initiated in February 1998, when the
National Tank Truck Carriers, Inc. (NTTC) applied to the Pipeline and
Hazardous Materials Safety Administration \1\ (PHMSA) for a
determination that the HMTA preempted certain marking and record
keeping requirements of the New York State Department of Environmental
Conservation (NYSDEC). PHMSA found that the HMTA preempted the NYSDEC
requirements because the requirements were 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.
NYSDEC's petition for reconsideration of that decision is dismissed on
the grounds of mootness. NYSDEC has made significant revisions to its
regulations, and the revised rules do not appear to impose the same
requirements on regulated entities as the previous version of the rules
that were challenged in this proceeding. It therefore does not appear
that reconsidering PHMSA's preemption determination regarding the now-
superseded NYSDEC rules would have any practical effect.
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\1\ At the time of NTTC's application, PHMSA did not exist.
PHMSA was created on February 20, 2005, when the Secretary of
Transportation redelegated hazardous materials safety functions from
the Research and Special Programs Administration (RSPA) to PHMSA's
Administrator. For consistency, the terms ``PHMSA,'' ``the agency,''
and ``we'' are used throughout this decision, regardless of whether
an action was taken by RSPA before February 20, 2005, or by PHMSA
after that date.
FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
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20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.
SUPPLEMENTARY INFORMATION:
Petitioner: New York State Department of Environmental
Conservation.
Local Law Affected: New York Codes, Rules and Regulations (NYCRR),
Chapter 6, Sections 230.4(a)(3), 230.6(b) & (c).\2\
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\2\ The NYSDEC repealed and replaced Part 230, with an effective
date of February 11, 2021. The marking requirement in 6 NYCRR
230.4(a)(3), as amended, was recodified in 6 NYCRR 230.6(a)(2). The
recordkeeping and retention requirements of 6 NYCRR 230.6(b) and
(c), as amended, were recodified in 6 NYCRR 230.7(a)(1) and (a)(2),
respectively.
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Applicable Federal Requirements: Federal Hazardous Material
Transportation Law (HMTA), 49 U.S.C. 5101 et seq., and the Hazardous
Materials Regulations (HMR), 49 CFR parts 171-180.
Mode Affected: Highway.
I. Background
This proceeding was initiated in February 1998, when NTTC applied
to PHMSA for a determination that the HMTA preempted certain marking
and record keeping requirements of NYSDEC.
After NTTC filed its application, two key rulemakings occurred that
delayed PHMSA's decision on NTTC's claims. The rulemakings, one
initiated by PHMSA, and the other by the United States Environmental
Protection Agency (EPA), although not related, addressed many of the
issues raised in NTTC's application. The agencies' rulemaking
activities spanned several years and culminated in December 2009, when
EPA issued a rule change and clarification of its rules.\3\
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\3\ Final Rule, 73 FR 1916 (January 10, 2008); corrections, 73
FR 12275 (March 7, 2008); Final Rule with amendments and
clarifications, 76 FR 4156 (January 24, 2011).
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[[Page 30372]]
Earlier in 2009, and subsequent to the publication of final rules
in each of the PHMSA and EPA rulemakings, but before EPA's
clarification of its rules, PHMSA issued its decision on NTTC's
application. On January 23, 2009, PHMSA published in the Federal
Register its determination of NTTC's application in Preemption
Determination No. 19(R) (PD-19(R)), 74 FR 4291.\4\ PHMSA found that the
HMTA preempted the following NYSDEC requirements because the
requirements were 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:
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\4\ As published in the Federal Register, the agency's January
23, 2009 determination in PD-19(R) indicated an incorrect docket
number (99-3559, instead of 98-3559).
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<bullet> 6 NYCRR 230.4(a)(3)--requirement that the marking must be
a minimum two inches and contain ``NYS DEC'';
<bullet> 6 NYCRR 230.6(b)--requirement for maintaining a copy of
the most recent pressure-vacuum test results with the gasoline
transport vehicle; and
<bullet> 6 NYCRR 230.6(c)--requirement to retain pressure-vacuum
test and repair results for two years.
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). NYSDEC asked PHMSA to rescind its preemption determination and
dismiss the application by NTTC. In April 2009, PHMSA extended the
period for comments on NYSDEC's petition due to the unusually long
period it took for the agency to issue PD-19(R). This action was
followed by another extended period of inactivity until August 26,
2010, when PHMSA reopened the period for comments on NYSDEC's petition
for reconsideration to receive comments on EPA's rule changes. The
matter has remained dormant since that time based on PHMSA's
understanding that NYSDEC was planning to revise its regulations.
On February 12, 2020, NYSDEC proposed a rulemaking to repeal and
replace 6 NYCRR Part 230 Gasoline Dispensing Sites and Transport
Vehicles. Volume XLII, Issue 6, N.Y. Reg, 8 (February 12, 2020). The
adopted requirements in 6 NYCRR Part 230, sections 230.6 and 230.7,
became effective on February 11, 2021. These provisions contain revised
versions of the requirements that were at issue in this proceeding for
marking gasoline transport vehicles and recordkeeping and reporting
requirements.
II. Dismissal on Grounds of Mootness
NYSDEC's legislative changes to its rules have rendered moot
NYSDEC's petition for reconsideration of PHMSA's 2009 preemption
determination.
NYSDEC, in its February 12, 2020, rulemaking proposal, required
pressure-vacuum cargo tank testing and markings that align with DOT's
testing and marking requirements. NYSDEC indicated that the proposed
amendments would make the requirements consistent on the state and
federal level. Furthermore, NYSDEC proposed to revise the gasoline
transport vehicle recordkeeping retention requirements from 2 years to
5 years in order to align with the current version of the EPA's
recordkeeping requirement located at 40 CFR part 63 subpart CCCCCC.
The recently adopted requirements in 6 NYCRR Part 230, sections
230.6 and 230.7, became effective on February 11, 2021. These
provisions contain the requirements that were at issue in this
proceeding for marking gasoline transport vehicles and recordkeeping
and reporting requirements. The provision for the marking of gasoline
transport vehicles states:
(a) No owner or operator of a gasoline transport vehicle may
transport gasoline or allow the vehicle to be filled or emptied in
New York State unless the gasoline transport vehicle meets:
(1) the federal Department of Transportation (DOT) requirements
for leak testing as required by 49 CFR 180.407(h) (see Table 1,
Section 200.9 of this Title); and
(2) the federal DOT requirements for test markings as required
by 49 CFR 180.415 (see Table 1, Section 200.9 of this Title).
6 NYCRR 230.6.
The recordkeeping and reporting provision states:
(a) The owner of any gasoline transport vehicle subject to the
leak testing requirements outlined in section 230.6(a) of this Part
shall keep:
(1) leak testing records with information as prescribed by 49
CFR 180.417(b)(1) and (2) (see Table 1, Section 200.9 of this Title)
for 5 years; and
(2) a copy of the most recent leak testing results with the
gasoline transport vehicle.
6 NYCRR 230.7.
In light of the facts and circumstances described above, it is
apparent the NYSDEC rules that PHMSA found were preempted under the
HMTA--and subject of NYSDEC's petition for reconsideration--have been
significantly revised. On their face, the revised rules do not appear
to impose the same requirements on regulated entities as the previous
version of the rules that were challenged in this proceeding.
Consequently, it would be inappropriate for PHMSA to render a decision
on a petition for reconsideration that was filed more than a decade
ago, for relief from the agency's preemption determination that was
based on a previous version of NYSDEC's pressure-vacuum cargo tank
testing and markings requirements when those requirements have recently
undergone significant revisions. It appears that issuing a decision on
the petition for reconsideration would have no practical effect on any
party.
III. Ruling
For the reasons set forth above, NYSDEC's petition for
reconsideration is dismissed because the issues raised in the petition
are moot.
Going forward, any person directly affected by the revised NYSDEC
rules (including a State, political subdivision of a State, or Indian
tribe) may apply to PHMSA for a decision on whether the revised rules
are preempted by the HMTA. 49 U.S.C. 5125(d); 49 CFR 107.203.
Similarly, any person who thinks there is a practical reason for PHMSA
to revisit its preemption decision regarding the now-superseded rules
may apply to PHMSA for a new decision on that question.
Issued in Washington, DC, on May 26, 2021.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2021-11494 Filed 6-4-21; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on June 7, 2021.
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