Hazardous Materials: New York City Permit Requirements for Transportation of Certain Hazardous Materials, 31390-31396 [2017-14147]
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Federal Register / Vol. 82, No. 128 / Thursday, July 6, 2017 / Notices
Southeastern Alaska and waters north
of a line between Gore Point to Cape
Suckling [including the North Gulf
Coast and Prince William Sound]).’’
The complete application is given in
DOT docket MARAD–2017–0110 at
https://www.regulations.gov. Interested
parties may comment on the effect this
action may have on U.S. vessel builders
or businesses in the U.S. that use U.S.flag vessels. If MARAD determines, in
accordance with 46 U.S.C. 12121 and
MARAD’s regulations at 46 CFR part
388, that the issuance of the waiver will
have an unduly adverse effect on a U.S.vessel builder or a business that uses
U.S.-flag vessels in that business, a
waiver will not be granted. Comments
should refer to the docket number of
this notice and the vessel name in order
for MARAD to properly consider the
comments. Comments should also state
the commenter’s interest in the waiver
application, and address the waiver
criteria given in § 388.4 of MARAD’s
regulations at 46 CFR part 388.
Privacy Act
In accordance with 5 U.S.C. 553(c),
DOT/MARAD solicits comments from
the public to better inform its
rulemaking process. DOT/MARAD posts
these comments, without edit, to
www.regulations.gov, as described in
the system of records notice, DOT/ALL–
14 FDMS, accessible through
www.dot.gov/privacy. In order to
facilitate comment tracking and
response, we encourage commenters to
provide their name, or the name of their
organization; however, submission of
names is completely optional. Whether
or not commenters identify themselves,
all timely comments will be fully
considered. If you wish to provide
comments containing proprietary or
confidential information, please contact
the agency for alternate submission
instructions.
Authority: 49 CFR 1.93(a), 46 U.S.C.
55103, 46 U.S.C. 12121.
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By Order of the Maritime Administrator.
Dated: June 29, 2017.
Gabriel Chavez,
Acting Secretary, Maritime Administration.
[FR Doc. 2017–14094 Filed 7–5–17; 8:45 am]
BILLING CODE 4910–81–P
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
[Docket No. MARAD–2017–0105]
Requested Administrative Waiver of
the Coastwise Trade Laws: Vessel
WICKED WITCH; Invitation for Public
Comments
Maritime Administration,
Department of Transportation.
ACTION: Notice.
AGENCY:
The Secretary of
Transportation, as represented by the
Maritime Administration (MARAD), is
authorized to grant waivers of the U.S.build requirement of the coastwise laws
under certain circumstances. A request
for such a waiver has been received by
MARAD. The vessel, and a brief
description of the proposed service, is
listed below.
DATES: Submit comments on or before
August 7, 2017.
ADDRESSES: Comments should refer to
docket number MARAD–2017–0105.
Written comments may be submitted by
hand or by mail to the Docket Clerk,
U.S. Department of Transportation,
Docket Operations, M–30, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590. You may also
send comments electronically via the
Internet at https://www.regulations.gov.
All comments will become part of this
docket and will be available for
inspection and copying at the above
address between 10:00 a.m. and 5:00
p.m., Monday through Friday, except
federal holidays. An electronic version
of this document and all documents
entered into this docket is available at
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Bianca Carr, U.S. Department of
Transportation, Maritime
Administration, 1200 New Jersey
Avenue SE., Room W23–453,
Washington, DC 20590. Telephone 202–
366–9309, Email Bianca.carr@dot.gov.
SUPPLEMENTARY INFORMATION: As
described by the applicant the intended
service of the vessel WICKED WITCH is:
—Intended Commercial Use of Vessel:
sailboat cruising
—Geographic Region: ‘‘Maryland,
Virginia, District of Columbia and
Florida’’
SUMMARY:
The complete application is given in
DOT docket MARAD–2017–0105 at
https://www.regulations.gov. Interested
parties may comment on the effect this
action may have on U.S. vessel builders
or businesses in the U.S. that use U.S.-
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flag vessels. If MARAD determines, in
accordance with 46 U.S.C. 12121 and
MARAD’s regulations at 46 CFR part
388, that the issuance of the waiver will
have an unduly adverse effect on a U.S.vessel builder or a business that uses
U.S.-flag vessels in that business, a
waiver will not be granted. Comments
should refer to the docket number of
this notice and the vessel name in order
for MARAD to properly consider the
comments. Comments should also state
the commenter’s interest in the waiver
application, and address the waiver
criteria given in § 388.4 of MARAD’s
regulations at 46 CFR part 388.
Privacy Act
In accordance with 5 U.S.C. 553(c),
DOT/MARAD solicits comments from
the public to better inform its
rulemaking process. DOT/MARAD posts
these comments, without edit, to
www.regulations.gov, as described in
the system of records notice, DOT/ALL–
14 FDMS, accessible through
www.dot.gov/privacy. In order to
facilitate comment tracking and
response, we encourage commenters to
provide their name, or the name of their
organization; however, submission of
names is completely optional. Whether
or not commenters identify themselves,
all timely comments will be fully
considered. If you wish to provide
comments containing proprietary or
confidential information, please contact
the agency for alternate submission
instructions.
Authority: 49 CFR 1.93(a), 46 U.S.C.
55103, 46 U.S.C. 12121
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By Order of the Maritime Administrator.
Dated: June 29, 2017.
Gabriel Chavez,
Acting Secretary, Maritime Administration.
[FR Doc. 2017–14090 Filed 7–5–17; 8:45 am]
BILLING CODE 4910–81–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
[Docket No. PHMSA–2014–0003; PD–37(R)]
Hazardous Materials: New York City
Permit Requirements for
Transportation of Certain Hazardous
Materials
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Notice of administrative
determination of preemption.
AGENCY:
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Federal Register / Vol. 82, No. 128 / Thursday, July 6, 2017 / Notices
Applicant: American Trucking
Associations, Inc.
Local Law Affected: New York City
Fire Code (FC) 2707.4 and 105.6.
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.
SUMMARY: Inspection and Permit
Requirement—Federal hazardous
material transportation law preempts
the Fire Department of the City of New
York’s permit and inspection
requirements, FC 2707.4 and 105.6
(transportation of hazardous materials),
with respect to trucks based outside the
inspecting jurisdiction, because
scheduling and conducting a vehicle
inspection (as required for a permit)
may cause unnecessary delays in the
transportation of hazardous materials
from locations outside the City of New
York.
Permit Fee—Federal hazardous
material transportation law preempts
FDNY’s permit fee requirement.
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 20590;
Telephone No. 202–366–4400;
Facsimile No. 202–366–7041.
SUPPLEMENTARY INFORMATION:
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I. Background
A. Application and Public Notice
The American Trucking Associations
(ATA) applied to PHMSA for a
determination on whether Federal
hazardous material transportation law,
49 U.S.C. 5101 et seq., preempts the City
of New York’s requirement that those
wishing to transport hazardous
materials by motor vehicle must, in
certain circumstances, obtain a permit.
This requirement is set forth in the FC
in Title 29 of the New York City
Administrative Code. The Fire
Department of the City of New York
(FDNY) implements the FC rules in
Title 3 of the Rules of the City of New
York. The relevant provisions of the FC
and the FDNY rules regarding the City
of New York’s hazardous materials
inspection and permitting program, and
related fees, include:
• FC 2707—sets forth the
requirements for the transportation of
hazardous materials;
• FC 2707.3—prohibits the
transportation of hazardous materials in
quantities requiring a permit without
such permit;
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• FC 2707.4 and 105.6—permit
requirement and exclusions;
• FDNY Rule 2707–02—sets forth
routing, timing, escort, and other
requirements for the transportation of
hazardous materials; provides that
permit holders need not conform to
these requirements; and
• FC Appendix A, Section A03.1(39)
and (67)—specifies the permit
(inspection and re-inspection) fees.
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.’’ 1
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. The
permit form also indicates that the
‘‘Permit expires (1) one year from the
above date’’ and the requirement that
‘‘This letter shall be carried in the cab
of the truck and it shall be presented
upon request to Fire Department
representative.’’
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 the 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, the City of New York (City) cannot
show that it is using funds generated from its
permit fees for hazardous materials
enforcement and emergency response
training.
PHMSA published notice of ATA’s
application in the Federal Register on
April 17, 2014. 79 FR 21838. On June
2, 2014, the comment period closed
without any interested parties
submitting comments. On April 27,
2015, we published a notice of delay in
processing ATA’s application in order
to conduct additional fact-finding and
legal analysis in response to the
application. 80 FR 23328. In order to
ensure PHMSA had all of the relevant
information before making a
determination, we sent a letter to FDNY
and requested that it submit its position
on whether the HMTA preempts the
New York City requirements that are the
subject of this proceeding. On August
1 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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20, 2015, FDNY submitted its comments
on ATA’s application. On October 1,
2015, we published a notice announcing
that we were reopening the comment
period in the proceeding to provide
interested parties the opportunity to
address any of the issues raised by the
FDNY comments. 80 FR 59244.
In response to the October notice, we
received written comments from ATA,
Nouveau, Inc. (Nouveau), and the
American Coatings Association (ACA).
ATA indicated that its comments were
intended to ‘‘provide clarity’’ to the
FDNY comments submitted by
demonstrating that the City’s
registration requirement for transporting
certain hazardous materials imposes an
unnecessary delay and that the
associated fees are significantly higher
than similar fees charged by other
jurisdictions. Moreover, ATA argues
that that revenue collected by the City
is not being used for an acceptable
purpose.
Additionally, ATA in its comments
sought to demonstrate for the first time
that other requirements in the City’s
regulations were preempted, including
requirements for loading and unloading,
as well as the display requirement for
FNDY’s inspection sticker. However,
because ATA did not raise these
arguments in its initial petition, they
cannot be considered now.
Generally, Nouveau and ACA support
ATA’s position that certain provisions
of FDNY’s hazardous materials
requirements are preempted by the
HMTA.
B. Prior Administrative Proceedings
As FDNY points out in its submission,
this is not the first time that the City’s
regulations governing the transportation
of hazardous materials have been
adjudicated by the U.S. Department of
Transportation (DOT or Department).
Specifically, in support of its position,
FDNY points to the Research and
Special Programs Administration’s
(RSPA) 2 determination in the
proceeding, City of New York
Application for Waiver of Preemption as
2 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, section 2, 118
Stat. 2423 (Nov. 30, 2004)); and 49 CFR 1.96(b), as
amended at 77 FR 49987 (Aug. 17, 2012). For
consistency, the terms ‘‘PHMSA,’’ ‘‘the agency,’’
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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to the Fire Department Regulations
Concerning Pickup/Delivery
Transportation of Flammable and
Combustible Liquids and Flammable
and Combustible Gases, Waiver of
Preemption Determination (WPD)–1, 57
FR 23278 (June 2, 1992), and asserts that
the Department had ‘‘previously
considered FDNY’s inspection and
permitting program, and related fees,
and determined that they were not
preempted[.]’’ However, FDNY’s
discussion of the past administrative
action involving its hazardous materials
inspection and permitting program does
not accurately reflect the agency’s prior
position on this issue. Therefore, as a
preliminary matter, PHMSA believes it
is important to review the significant
actions taken by the agency in prior
administrative proceedings involving
the City’s hazardous materials
inspection and permit requirements.
In Inconsistency Ruling (IR)–22, City
of New York Regulations Governing
Transportation of Hazardous Materials,
52 FR 46574 (December 8, 1987),
Decision on Appeal, 54 FR 26698 (June
23, 1989), the agency addressed a
preemption challenge to the City’s
directives requiring tank truck carriers
to receive permits before transporting
hazardous materials in the city. In IR–
22, the agency ‘‘found that the City
created its own independent set of cargo
containment, equipment and related
requirements that overlap extensive
HMR requirements, are likely to
encourage noncompliance with the
HMR, and concern subjects that
[PHMSA] has determined are its
exclusive province under the HMTA.
Furthermore, [the agency] found that the
City’s directives result in serious delays
in the transportation of hazardous
materials.’’ 54 FR at 26699. Because the
City’s containment system and
equipment requirements were found to
be intimately tied to a permitting
system, the agency ‘‘determined that the
City’s permitting system for
transportation of certain hazardous
materials is inconsistent with the
HMTA and the HMR, and, therefore,
preempted.’’ Id.
The City appealed the IR–22 ruling,
challenging the agency’s findings, and
arguing that its permitting system does
not cause delays. In the Decision on
Appeal, PHMSA’s Administrator
affirmed IR–22, upholding the
preemption of the City’s permitting
system. City of New York Regulations
Governing Transportation of Hazardous
Materials, Decision on Appeal, 54 FR
26698 (June 23, 1989). PHMSA, in
affirming the finding that the permit
system caused delay, said the City’s
‘‘burdensome permit application
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requirements, its unfettered discretion
in granting permits, and the time
needed to process applications create
delays in the transportation of
hazardous materials.’’ Furthermore, the
agency said ‘‘the delays caused by the
City’s permit system are unnecessary
because the City’s permit requirements
are inconsistent with the HMTA.’’ 54 FR
at 26705.
Subsequently, the City sought a
waiver of preemption for many of the
requirements found to be preempted in
the IR–22 proceeding, including the
permit requirements. WPD–1, City of
New York Application for Waiver of
Preemption as to the Fire Department
Regulations Concerning Pickup/
Delivery Transportation of Flammable
and Combustible Liquids and
Flammable and Combustible Gases, 57
FR 23278 (June 2, 1992). In WPD–1,
PHMSA denied the City’s application
for a waiver of preemption as to the
design and construction requirements
for trucks transporting flammable and
combustible liquids; granted a waiver of
preemption as to the requirements on
emergency transfers and discharging
gasoline by gravity into underground
tanks; and dismissed the City’s
application without prejudice for lack of
information as to the requirements for
transporting compressed gases. In
addition, PHMSA found that the City’s
‘‘inspection and permit requirements (as
general safety measures, separate from
its equipment requirements) . . . are not
preempted’’ and therefore, took no
action with respect to those
requirements. 57 FR at 23278. However,
the agency was careful to note that its
finding on this issue was a narrow one,
limited by statutory requirements.
Specifically, the agency initially said
‘‘[t]he permit requirements of the City
are part of, and tied to, the City’s design
and construction requirements which
[PHMSA] found to be preempted by the
HMTA. For that reason, the permit
requirements were held [in IR–22] to be
preempted as well.’’ 57 FR at 23294,
referencing IR–22; 52 FR 46582. Thus,
while PHMSA denied the request for a
waiver of preemption as to the City’s
permit requirements, the agency noted
that the permit requirements, when
considered separate and apart from the
City’s design and construction
requirements, might not be preempted
by the HMTA, ‘‘provided that (1) the
annual permit fee is ‘equitable’ and is
‘used for purposes related to the
transportation of hazardous materials
. . .’.’’ 57 FR at 23295.
The WPD–1 decision does not
mandate a finding in favor of the City
here, for two reasons. First, PHMSA was
addressing arguments based on the
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City’s design and construction
requirements, and merely noted in the
abstract that preemption might not
apply to the City’s inspection and
permit requirements, providing that
other factors were met. The WPD–1
decision did not address the argument
that ATA now presents in this
proceeding specifically that the City’s
inspection and permitting program
requirements, and related fees, should
be preempted because the program
causes unnecessary delay and
unreasonable cost. Second, PHMSA
expressly noted that the City’s permit
requirement could avoid being
preempted only if the annual permit fee
was ‘‘equitable’’ and ‘‘used for purposes
related to the transportation of
hazardous materials.’’ ATA contends
that the City fails to meet these
requirements.
C. Preemption Under Federal
Hazardous Material Transportation Law
As discussed in the April 17, 2014
notice, 49 U.S.C. 5125 contains express
preemption provisions relevant to this
proceeding. 79 FR 21838, 21839–40.
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 section 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
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
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).
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another Federal law or DOT grants a
waiver of preemption—when the nonFederal 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 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 and other written hazardous
materials transportation incident
reporting involving State or local
emergency responders in the initial
response to the incident.
(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 in commerce.4
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
The preemption provisions in 49
U.S.C. 5125 reflect Congress’s longstanding 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 Hazardous Materials Transportation
Act, 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
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).
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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hazardous materials transportation.’’ S.
Rep. No. 1192, 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).
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 Indian
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
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 nonFederal regulation, but rather how such
requirements are actually ‘‘applied or
enforced.’’ Rather, ‘‘isolated instances of
improper enforcement (e.g.,
misinterpretation of regulations) do not
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31393
render such provisions inconsistent’’
with Federal hazardous material
transportation law, but are more
appropriately addressed in the
appropriate State or local forum.
Preemption Determination (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.
II. Discussion
A. Inspection and Permit Requirement.
ATA argues that the FDNY permit and
inspection requirements cause
unnecessary delays because the process
‘‘delays drivers whose fastest route is
through the city[.]’’
FDNY believes its permit and
inspection process is ‘‘lawful and
proper, consistent with Federal law and
regulations, promotes public safety . . .
and does not unreasonably burden
interstate commerce or motor carriers.’’
According to FDNY, the permit
process has been streamlined in recent
years to provide for the immediate
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issuance of the permit, provided of
course, that the vehicle passes the
inspection. FDNY explains that a motor
carrier can obtain a same day inspection
by simply showing up at FDNY’s
Hazardous Cargo Unit (HCU). Or
alternatively, the motor carrier can make
arrangements to have its fleet inspected
at its own facility. FDNY estimates the
whole process takes approximately 30
minutes.
PHMSA has acknowledged that
vehicle and container inspections are an
‘‘integral part of a program to assure the
safe transportation of hazardous
materials in compliance with the HMR.’’
PD–28(R), Town of Smithtown, New
York Ordinance on Transportation of
Liquefied Petroleum Gas, 67 FR 15276,
15278 (Mar. 29, 2002).
Also, the agency has specifically
found that inspections conducted by
State or local governments to assure
compliance with Federal or consistent
requirements are themselves consistent
with Federal hazardous material
transportation law and not preempted.
PD–28(R) at 15278; PD–4(R), California
Requirements Applicable to Cargo
Tanks Transporting Flammable and
Combustible Liquids, 58 FR 48933,
48940 (Sept. 20, 1993), Decision on
Petition for Reconsideration, 60 FR 8800
(Feb. 15, 1995), quoting IR–20,
Triborough Bridge and Tunnel
Authority Regulations, etc., 52 FR
24396, 24398 (June 30, 1987).
Accordingly, the agency ‘‘has
encouraged States and local
governments to adopt and enforce the
requirements in the HMR ‘through both
periodic and roadside spot
inspections.’ ’’ PD–28(R) at 15278,
quoting PD–4(R), 58 FR at 48940 and
PD–13(R), Nassau County, New York,
Ordinance on Transportation of
Liquefied Petroleum Gases, 63 FR
45283, 45286 (Aug. 25, 1998), Decision
on Petition for Reconsideration, 65 FR
60238 (Oct. 10, 2000), quoting from
WPD–1, New York City Fire Department
Regulations, etc., 57 FR 23278, 23295
(June 2, 1992).
But to be consistent with the HMTA
and the HMR, a non-Federal inspection
of a vehicle or container used to
transport a hazardous material must not
conflict with the requirement in 49 CFR
177.800(d), which states:
All shipments of hazardous materials must
be transported without unnecessary delay,
from and including the time of
commencement of the loading of the
hazardous material until its final unloading
at destination.
In prior decisions, the agency has
identified several principles regarding
unnecessary delay that are relevant to
this proceeding.
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First, travel and wait times associated
with an inspection are not generally
considered unnecessary delays. PD–
13(R), Decision on Petition for
Reconsideration, 65 FR 60238, 60243
(Oct. 10, 2000); PD–4(R) at 48941.
However, a delay of hours or days
waiting for the arrival of an inspector
from another location is unnecessary,
because it substantially increases the
time hazardous materials are in
transportation, increasing exposure to
the risks of the hazardous materials
without corresponding benefit. PD–
28(R) at 60243; PD–4(R) at 48941.
Second, a State’s annual inspection
requirement applied to vehicles that
operate solely within the State is
presumptively valid because it would
not create the potential for delays
associated with entering the State or
being rerouted around the State. A
carrier whose vehicles are based within
the inspecting jurisdiction should be
able to schedule an inspection at a time
that does not disrupt or unnecessarily
delay deliveries. 65 FR at 60243; 60 FR
at 8803; PD–13(R) at 45286.
But, when applied to vehicles based
outside of the inspecting jurisdiction, a
State or local periodic inspection
requirement has an inherent potential to
cause unnecessary delays because the
call and demand nature of common
carriage makes it impossible to predict
in advance which vehicles may be
needed for a pick-up or delivery within
a particular jurisdiction and impractical
to have all vehicles inspected every year
(or alternatively, inspection of select
vehicles dedicated to the inspecting
jurisdiction). PD–28(R) at 15279,
referring to the discussion in PD–4(R) 58
FR at 48938–41, and PD–13(R), 65 FR
60242–44.
Last, a State or local government may
apply an annual inspection requirement
to trucks based outside its jurisdictional
boundaries ‘‘only if the [State or local
government] can actually conduct the
equivalent of a ‘spot’ inspection upon
the truck’s arrival within the local
jurisdiction. The [State or local
government] may not require a permit or
inspection for trucks that are not based
within the local jurisdiction if the truck
must interrupt its transportation of
[hazardous materials] for several hours
or longer in order for an inspection to
be conducted and a permit to be
issued.’’ 65 FR at 60244.
Applying these principles to FDNY’s
permit and inspection program, it
appears that the program would not
cause unnecessary delays in the
transportation of hazardous materials
with respect to motor vehicles that are
based within FDNY’s jurisdiction. As
noted in PD–13(R), motor carriers based
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within the inspecting jurisdiction
‘‘should be able to present their trucks
for an inspection . . . without incurring
an unnecessary delay in the delivery of
[hazardous materials]. They should be
able to plan and schedule inspections
without any interruption of deliveries.’’
65 FR at 60244. And on the few
occasions where an inspection must be
performed on short notice, it is
reasonable to consider this an exception
and simply a part of doing business,
rather than an unreasonable delay under
the HMR. Id.
However, with respect to motor
vehicles that are based outside the
inspecting jurisdiction, FDNY’s process
doesn’t appear to be as flexible or
accommodating as it portrays. For
example, although FDNY says a sameday inspection at the HCU is possible,
the unit is only open for operation,
Monday through Friday, from 7:30 a.m.
to 3:00 p.m. Since the permit and
inspection program is not limited to one
specific class of hazardous material, and
considering that the HCU is only open
weekdays until 3:00 p.m., an
unpermitted motor carrier based outside
FDNY’s jurisdiction would have no
recourse when it arrives to pick up or
deliver hazardous materials in the City
(requires a permit) and discovers that
the HCU is closed. FDNY indicates that
there is some flexibility in performing
inspections, i.e., a motor carrier can
arrange for fleet inspections at its own
facility, and that it has co-located FDNY
inspection operations with other
regulatory departments. But fleet
inspections at a motor carrier’s own
facility appear to be impractical where
the facility is located outside the City’s
jurisdiction. And, although co-locating
the HCU with the City’s other regulatory
departments may be an operational
convenience, it is not relevant to the
issue here. More importantly, FDNY is
silent on whether it is capable of
performing a ‘spot’ inspection upon a
motor carrier’s arrival within its
jurisdiction. Therefore, it does not
appear that FDNY is able to conduct
inspections and issue permits ‘‘on
demand.’’ As ATA pointed out, FDNY is
‘‘unable to apply the inspection and
permitting process at the roadside[,]’’
and ‘‘FDNY’s policy requires the truck
to ‘interrupt its transportation . . . for
several hours’ by traveling to the FDNY
inspection site and being inspected
before returning to productive
service[.]’’ Comments of ATA at 5,
quoting 67 FR at 15279. Although ATA
did not specify that its members have
actually experienced delays of this kind
and duration, our prior determinations
on this issue support the position that
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when FDNY is confronted with the
unannounced arrival of a motor carrier
based outside its jurisdiction, it should
be capable of conducting the equivalent
of a spot or roadside inspection to avoid
unnecessary delays. FDNY has not
shown that its program has this
flexibility.
PHMSA, for the reasons set forth
above, finds that the HMTA does not
preempt FDNY’s permit and inspection
requirements, FC 2707.4 and 105.6
(transportation of hazardous materials),
with respect to motor vehicles that are
based within the inspecting jurisdiction.
On the other hand, PHMSA finds that
FDNY’s permit and inspection
requirements create an obstacle to
accomplishing and carrying out the
HMR’s prohibition against unnecessary
delays in the transportation of
hazardous materials on vehicles based
outside of the inspecting jurisdiction.
Accordingly, the HMTA preempts
FDNY’s permit and inspection
requirements, FC 2707.4 and 105.6
(transportation of hazardous materials),
with respect to trucks based outside the
inspecting jurisdiction.
B. Permit Fee.
ATA challenges FDNY’s
transportation of hazardous materials
permit fee on the grounds that it is not
‘‘fair’’ and that it is not being used for
purposes that are related to the
transportation of hazardous material.
ATA also alleges that FDNY has not
sufficiently accounted for the revenues
generated by its ‘‘hazardous materials
registration program.’’ Nouveau echoed
ATA’s assertion that FDNY is not using
the revenue generated from the fees for
authorized purposes and contends that
FDNY has not provided any evidence
regarding the collection and use of the
fees.
According to FDNY, permit revenues,
like all revenues received by City
agencies, are paid into a general City
fund, with the amounts credited toward
agency, bureau and unit operations.
Over the past three years, annual
revenue generated from the permit fees
ranged from $250,000 to $450,000.6
FDNY claims it expends on an annual
basis, ‘‘tens of millions of dollars’’ for its
hazardous materials response
operations, including staffing, training
and equipping the HMU and other
specialized units, but it provided no
specific figures.
It is FDNY’s position that its
inspection and permitting program, and
related fees, are not preempted because
it believes the agency already addressed
this issue, and found that the
6 FY2013;
FY2015 (July 1 through June 30).
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requirements were not preempted.
However, as discussed above in the
prior administrative proceedings
section, the WPD–1 language was
conditioned on the City separating and
severing the permit fee requirements
from the preempted truck design and
construction requirements. More
importantly however, PHMSA expressly
noted that the City’s permit requirement
could only avoid being preempted if the
annual permit fee was ‘‘equitable’’ and
‘‘used for purposes related to the
transportation of hazardous materials.’’
Since that time, the City’s current
inspection and permitting (including
fees) regulatory scheme has not been
challenged on these issues. Therefore,
FDNY’s contention that its permit fees
are valid based on the language in
WPD–1 is not persuasive. The challenge
to the validity of the permit fees as now
raised in this proceeding, requires that
PHMSA determine that the fees satisfy
the statutory requirements.
The HMTA provides that ‘‘[a] State,
political subdivision of a State, 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.’’ 49
U.S.C. 5125(f)(1). In prior preemption
determinations, PHMSA has utilized
tests for determining whether a fee is
‘‘fair’’ and whether it is ‘‘used for a
purpose related to transporting
hazardous material.’’
1. The Fairness Test
PHMSA has determined that the test
of reasonableness in EvansvilleVanderburgh Airport Auth. v. Delta
Airlines, Inc. 405 U.S. 707, 92 S.Ct. 1349
(1972) ‘‘appears to be the most
appropriate one for interpreting the
fairness requirement in [the HMTA].’’
PD–21, Tennessee Hazardous Waste
Transporter Fee and Reporting
Requirements, 64 FR 54474, 54478
(October 6, 1999).7
In Evansville-Vanderburgh, the
Supreme Court found that a state or
local ‘‘toll’’ would pass constitutional
muster ‘‘so long as the toll is based on
some fair approximation of use or
privilege for use . . . and is neither
discriminatory against interstate
commerce nor excessive in comparison
with the governmental benefit
7 Complaint for judicial review, Tennessee v. U.S.
Dept. of Transportation, C.A. No. 3–99–1126 (M.D.
Tenn.), filed Dec. 3, 1999; order denying claim of
state sovereignty (Feb. 27, 2001); affirmed and
remanded, 326 F.3d 729 (6th Cir.); cert. denied, 124
S.Ct. 464 (2003); judgment in favor of DOT and
AWHMT (June 28, 2004).
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31395
conferred[.]’’ 405 U.S. at 716–17, 92
S.Ct. at 1355. Following EvansvilleVanderburgh, the Court stated that ‘‘a
levy is reasonable under Evansville if it
(1) is based on some fair approximation
of the use of the facilities, (2) is not
excessive in relation to the benefits
conferred, and (3) does not discriminate
against interstate commerce.’’ Northwest
Airlines, Inc. v. Kent, 510 U.S. 355, 367–
68, 114 S.Ct. 855, 864 (1994).
In PD–21, PHMSA evaluated
Tennessee’s requirement for hazardous
waste transporters to pay an annual
$650 remedial action fee. In that matter,
PHMSA observed that there was no
evidence that Tennessee’s annual fixed
fee had any approximation to a
transporter’s use of roads or other
facilities within the State or that there
were genuine administrative burdens
that prevented the application of a more
finely graduated fee. Id. PHMSA thus
concluded that the fee was not ‘‘fair’’
and was preempted.
In PD–18, Broward County, Florida’s
Requirements on the Transportation of
Certain Hazardous Materials to or From
Points in the County, 65 FR 81950
(December 27, 2000), Decision on
Petition for Reconsideration, 67 FR
35193 (May 17, 2002), PHMSA
preempted the County’s licensing fee for
hazardous waste transporters. In making
its determination, the agency followed
the fairness test discussed in Tennessee
and emphasized that a fee discriminates
against interstate commerce if there is a
‘‘lack of any relationship between the
fees paid and the respective benefits
received by interstate and intrastate
carriers.’’ PD–18 at 81959 (quoting PD–
21). The agency went on to say that the
case in Broward County was similar to
the situation in Tennessee because the
County ‘‘requires that any person
transporting . . . waste ‘to from, and
within’ the County must obtain a waste
transporter license.’’ PHMSA also noted
that the fee for obtaining the waste
transport license ‘‘apparently is the
same for every transporter’’ without
being based on some fair approximation
of use of facilities, i.e., roads or other
facilities within the State. PD–18 at
81959.
Here, FDNY has acknowledged its
permit fee is a flat fee applicable to
motor carriers whether they are engaged
in interstate or intrastate transportation
of hazardous materials. Moreover,
FDNY admitted that it does not
maintain statistics as to whether motor
carriers are engaged in interstate or
intrastate commerce. Consequently,
since there is no evidence showing that
FDNY’s flat fee is apportioned to a
motor carrier based on some
approximation of the benefit conferred
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to the permit holders, it discriminates
against interstate commerce.
Furthermore, there is no evidence that
a more finely graduated fee would pose
genuine administrative burdens on the
City. PHMSA therefore finds that the
FDNY’s permit fee is not fair and is
preempted.
2. The ‘‘Used For’’ Test
Under the HMTA, a State, political
subdivision of a State, or Indian tribe
may impose a fee related to transporting
hazardous material, but only if the fee
is used for a purpose related to
transporting hazardous material,
including enforcement and planning,
developing, and maintaining a
capability for emergency response. 49
U.S.C. 5125(f)(1). Therefore, nonFederal fees that are collected in
relation to the transportation of
hazardous materials must be used for a
related purpose; otherwise they are
preempted. PD–22, New Mexico
Requirements for the Transportation of
Liquefied Petroleum Gas, 67 FR 59386
(Sept. 20, 2002); PD–18 at 81959; PD–21
at 54479.
In prior preemption determinations,
PHMSA has acknowledged that a State,
political subdivision of a State, or
Indian tribe does not have to create and
maintain a separate account for fees
related to the transportation of
hazardous materials. However, ‘‘[i]f the
[non-Federal entity] prefers not to create
and maintain a separate fund for fees
paid . . . then it must show that it is
actually spending these fees on the
purposes permitted by the law. In this
area where only the [non-Federal entity]
has the information concerning where
these funds are spent, more specific
accounting is required.’’ PD–21 at
54479.
FDNY acknowledged that the revenue
it receives through its permit program is
put into a general City fund; which is
permissible, provided it can show the
funds are used for purposes related to
the transportation of hazardous
materials. FDNY believes that the
revenue is used for permitted purposes
because it contributes to the cost of
staffing, training, and equipping its
HCU. However, FDNY also indicated
that the inspection fee largely covers the
cost of the inspection and the
administrative processing of the permit.
Here, apart from general statements
about how the revenue is used, FDNY
does not provide specific figures.
FDNY’s failure to provide definitive
information on the allocation of permit
revenues is not sufficient to refute
ATA’s direct challenge of the permit fee
on the grounds that FDNY has not
sufficiently accounted for revenues
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18:13 Jul 05, 2017
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generated by its hazardous materials
registration program. Therefore, without
any evidence from FDNY on how it uses
the permit fees that it collects, PHMSA
cannot find that the fees are used for
purposes related to hazardous materials
transportation, and thus, FDNY’s permit
fee is preempted under the ‘‘used for’’
test.
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 June 29,
2017.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2017–14147 Filed 7–5–17; 8:45 am]
BILLING CODE 4910–60–P
III. Ruling
Inspection and Permit Requirement—
PHMSA finds that FDNY’s permit and
inspection requirements, FC 2707.4 and
105.6 (transportation of hazardous
materials), create an obstacle to
accomplishing and carrying out the
HMR’s prohibition against unnecessary
delays in the transportation of
hazardous materials on vehicles based
outside of the inspecting jurisdiction.
Accordingly, the HMTA preempts
FDNY’s permit and inspection
requirements with respect to vehicles
based outside the inspecting
jurisdiction. PHMSA, however, finds
that the HMTA does not preempt
FDNY’s permit and inspection
requirements with respect to motor
vehicles that are based within the
inspecting jurisdiction.
Permit Fee—PHMSA finds that FDNY
has not shown that the fee it imposes
with respect to its permit and inspection
requirements is ‘‘fair’’ or ‘‘used for a
purpose related to transporting
hazardous material,’’ as required by 49
U.S.C. 5125(f)(1). Accordingly, the
HMTA preempts FDNY’s permit fee
requirement.
IV. 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
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DEPARTMENT OF THE TREASURY
Promoting Energy Independence and
Economic Growth; Request for
Information
Department of the Treasury.
Request for information.
AGENCY:
ACTION:
Through this request for
information, the Department of the
Treasury is soliciting input from the
public on implementation and
compliance with Executive Order
13783, Promoting Energy Independence
and Economic Growth.
DATES: Comment due date: July 14,
2017.
SUMMARY:
Interested persons are
invited to submit comments in response
to this notice according to the
instructions below. All submissions
must refer to the document title.
Treasury encourages the early
submission of comments.
Electronic Submission of Comments.
Interested persons must submit
comments electronically through the
Federal eRulemaking Portal at https://
www.regulations.gov. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt, and enables the Department to
make comments available to the public.
Comments submitted electronically
through the https://www.regulations.gov
Web site can be viewed by other
commenters and interested members of
the public. Commenters should follow
the instructions provided on that site to
submit comments electronically.
Public Inspection of Comments. In
general, all properly submitted
comments will be available for
inspection and downloading at https://
www.regulations.gov.
Additional Instructions. In general,
comments received, including
attachments and other supporting
materials, are part of the public record
and are made available to the public. Do
not enclose any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure.
ADDRESSES:
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[Federal Register Volume 82, Number 128 (Thursday, July 6, 2017)]
[Notices]
[Pages 31390-31396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14147]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2014-0003; PD-37(R)]
Hazardous Materials: New York City Permit Requirements for
Transportation of Certain Hazardous Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of administrative determination of preemption.
-----------------------------------------------------------------------
[[Page 31391]]
Applicant: American Trucking Associations, Inc.
Local Law Affected: New York City Fire Code (FC) 2707.4 and 105.6.
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.
SUMMARY: Inspection and Permit Requirement--Federal hazardous material
transportation law preempts the Fire Department of the City of New
York's permit and inspection requirements, FC 2707.4 and 105.6
(transportation of hazardous materials), with respect to trucks based
outside the inspecting jurisdiction, because scheduling and conducting
a vehicle inspection (as required for a permit) may cause unnecessary
delays in the transportation of hazardous materials from locations
outside the City of New York.
Permit Fee--Federal hazardous material transportation law preempts
FDNY's permit fee requirement.
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 20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.
SUPPLEMENTARY INFORMATION:
I. Background
A. Application and Public Notice
The American Trucking Associations (ATA) applied to PHMSA for a
determination on whether Federal hazardous material transportation law,
49 U.S.C. 5101 et seq., preempts the City of New York's requirement
that those wishing to transport hazardous materials by motor vehicle
must, in certain circumstances, obtain a permit. This requirement is
set forth in the FC in Title 29 of the New York City Administrative
Code. The Fire Department of the City of New York (FDNY) implements the
FC rules in Title 3 of the Rules of the City of New York. The relevant
provisions of the FC and the FDNY rules regarding the City of New
York's hazardous materials inspection and permitting program, and
related fees, include:
FC 2707--sets forth the requirements for the
transportation of hazardous materials;
FC 2707.3--prohibits the transportation of hazardous
materials in quantities requiring a permit without such permit;
FC 2707.4 and 105.6--permit requirement and exclusions;
FDNY Rule 2707-02--sets forth routing, timing, escort, and
other requirements for the transportation of hazardous materials;
provides that permit holders need not conform to these requirements;
and
FC Appendix A, Section A03.1(39) and (67)--specifies the
permit (inspection and re-inspection) fees.
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.'' \1\
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. The permit form also indicates that the ``Permit expires (1)
one year from the above date'' and the requirement that ``This letter
shall be carried in the cab of the truck and it shall be presented upon
request to Fire Department representative.''
---------------------------------------------------------------------------
\1\ 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.''
---------------------------------------------------------------------------
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 the 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, the City of New York (City)
cannot show that it is using funds generated from its permit fees
for hazardous materials enforcement and emergency response training.
PHMSA published notice of ATA's application in the Federal Register
on April 17, 2014. 79 FR 21838. On June 2, 2014, the comment period
closed without any interested parties submitting comments. On April 27,
2015, we published a notice of delay in processing ATA's application in
order to conduct additional fact-finding and legal analysis in response
to the application. 80 FR 23328. In order to ensure PHMSA had all of
the relevant information before making a determination, we sent a
letter to FDNY and requested that it submit its position on whether the
HMTA preempts the New York City requirements that are the subject of
this proceeding. On August 20, 2015, FDNY submitted its comments on
ATA's application. On October 1, 2015, we published a notice announcing
that we were reopening the comment period in the proceeding to provide
interested parties the opportunity to address any of the issues raised
by the FDNY comments. 80 FR 59244.
In response to the October notice, we received written comments
from ATA, Nouveau, Inc. (Nouveau), and the American Coatings
Association (ACA). ATA indicated that its comments were intended to
``provide clarity'' to the FDNY comments submitted by demonstrating
that the City's registration requirement for transporting certain
hazardous materials imposes an unnecessary delay and that the
associated fees are significantly higher than similar fees charged by
other jurisdictions. Moreover, ATA argues that that revenue collected
by the City is not being used for an acceptable purpose.
Additionally, ATA in its comments sought to demonstrate for the
first time that other requirements in the City's regulations were
preempted, including requirements for loading and unloading, as well as
the display requirement for FNDY's inspection sticker. However, because
ATA did not raise these arguments in its initial petition, they cannot
be considered now.
Generally, Nouveau and ACA support ATA's position that certain
provisions of FDNY's hazardous materials requirements are preempted by
the HMTA.
B. Prior Administrative Proceedings
As FDNY points out in its submission, this is not the first time
that the City's regulations governing the transportation of hazardous
materials have been adjudicated by the U.S. Department of
Transportation (DOT or Department). Specifically, in support of its
position, FDNY points to the Research and Special Programs
Administration's (RSPA) \2\ determination in the proceeding, City of
New York Application for Waiver of Preemption as
[[Page 31392]]
to the Fire Department Regulations Concerning Pickup/Delivery
Transportation of Flammable and Combustible Liquids and Flammable and
Combustible Gases, Waiver of Preemption Determination (WPD)-1, 57 FR
23278 (June 2, 1992), and asserts that the Department had ``previously
considered FDNY's inspection and permitting program, and related fees,
and determined that they were not preempted[.]'' However, FDNY's
discussion of the past administrative action involving its hazardous
materials inspection and permitting program does not accurately reflect
the agency's prior position on this issue. Therefore, as a preliminary
matter, PHMSA believes it is important to review the significant
actions taken by the agency in prior administrative proceedings
involving the City's hazardous materials inspection and permit
requirements.
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\2\ 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,
section 2, 118 Stat. 2423 (Nov. 30, 2004)); and 49 CFR 1.96(b), as
amended at 77 FR 49987 (Aug. 17, 2012). For consistency, the terms
``PHMSA,'' ``the agency,'' 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 Inconsistency Ruling (IR)-22, City of New York Regulations
Governing Transportation of Hazardous Materials, 52 FR 46574 (December
8, 1987), Decision on Appeal, 54 FR 26698 (June 23, 1989), the agency
addressed a preemption challenge to the City's directives requiring
tank truck carriers to receive permits before transporting hazardous
materials in the city. In IR-22, the agency ``found that the City
created its own independent set of cargo containment, equipment and
related requirements that overlap extensive HMR requirements, are
likely to encourage noncompliance with the HMR, and concern subjects
that [PHMSA] has determined are its exclusive province under the HMTA.
Furthermore, [the agency] found that the City's directives result in
serious delays in the transportation of hazardous materials.'' 54 FR at
26699. Because the City's containment system and equipment requirements
were found to be intimately tied to a permitting system, the agency
``determined that the City's permitting system for transportation of
certain hazardous materials is inconsistent with the HMTA and the HMR,
and, therefore, preempted.'' Id.
The City appealed the IR-22 ruling, challenging the agency's
findings, and arguing that its permitting system does not cause delays.
In the Decision on Appeal, PHMSA's Administrator affirmed IR-22,
upholding the preemption of the City's permitting system. City of New
York Regulations Governing Transportation of Hazardous Materials,
Decision on Appeal, 54 FR 26698 (June 23, 1989). PHMSA, in affirming
the finding that the permit system caused delay, said the City's
``burdensome permit application requirements, its unfettered discretion
in granting permits, and the time needed to process applications create
delays in the transportation of hazardous materials.'' Furthermore, the
agency said ``the delays caused by the City's permit system are
unnecessary because the City's permit requirements are inconsistent
with the HMTA.'' 54 FR at 26705.
Subsequently, the City sought a waiver of preemption for many of
the requirements found to be preempted in the IR-22 proceeding,
including the permit requirements. WPD-1, City of New York Application
for Waiver of Preemption as to the Fire Department Regulations
Concerning Pickup/Delivery Transportation of Flammable and Combustible
Liquids and Flammable and Combustible Gases, 57 FR 23278 (June 2,
1992). In WPD-1, PHMSA denied the City's application for a waiver of
preemption as to the design and construction requirements for trucks
transporting flammable and combustible liquids; granted a waiver of
preemption as to the requirements on emergency transfers and
discharging gasoline by gravity into underground tanks; and dismissed
the City's application without prejudice for lack of information as to
the requirements for transporting compressed gases. In addition, PHMSA
found that the City's ``inspection and permit requirements (as general
safety measures, separate from its equipment requirements) . . . are
not preempted'' and therefore, took no action with respect to those
requirements. 57 FR at 23278. However, the agency was careful to note
that its finding on this issue was a narrow one, limited by statutory
requirements. Specifically, the agency initially said ``[t]he permit
requirements of the City are part of, and tied to, the City's design
and construction requirements which [PHMSA] found to be preempted by
the HMTA. For that reason, the permit requirements were held [in IR-22]
to be preempted as well.'' 57 FR at 23294, referencing IR-22; 52 FR
46582. Thus, while PHMSA denied the request for a waiver of preemption
as to the City's permit requirements, the agency noted that the permit
requirements, when considered separate and apart from the City's design
and construction requirements, might not be preempted by the HMTA,
``provided that (1) the annual permit fee is `equitable' and is `used
for purposes related to the transportation of hazardous materials . .
.'.'' 57 FR at 23295.
The WPD-1 decision does not mandate a finding in favor of the City
here, for two reasons. First, PHMSA was addressing arguments based on
the City's design and construction requirements, and merely noted in
the abstract that preemption might not apply to the City's inspection
and permit requirements, providing that other factors were met. The
WPD-1 decision did not address the argument that ATA now presents in
this proceeding specifically that the City's inspection and permitting
program requirements, and related fees, should be preempted because the
program causes unnecessary delay and unreasonable cost. Second, PHMSA
expressly noted that the City's permit requirement could avoid being
preempted only if the annual permit fee was ``equitable'' and ``used
for purposes related to the transportation of hazardous materials.''
ATA contends that the City fails to meet these requirements.
C. Preemption Under Federal Hazardous Material Transportation Law
As discussed in the April 17, 2014 notice, 49 U.S.C. 5125 contains
express preemption provisions relevant to this proceeding. 79 FR 21838,
21839-40. 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 section 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).
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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
[[Page 31393]]
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 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 and other
written hazardous materials transportation incident reporting involving
State or local emergency responders in the initial response to the
incident.
(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 in commerce.\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 Hazardous
Materials Transportation Act, 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. 1192, 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).
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 Indian 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 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. Preemption Determination (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.
II. Discussion
A. Inspection and Permit Requirement.
ATA argues that the FDNY permit and inspection requirements cause
unnecessary delays because the process ``delays drivers whose fastest
route is through the city[.]''
FDNY believes its permit and inspection process is ``lawful and
proper, consistent with Federal law and regulations, promotes public
safety . . . and does not unreasonably burden interstate commerce or
motor carriers.''
According to FDNY, the permit process has been streamlined in
recent years to provide for the immediate
[[Page 31394]]
issuance of the permit, provided of course, that the vehicle passes the
inspection. FDNY explains that a motor carrier can obtain a same day
inspection by simply showing up at FDNY's Hazardous Cargo Unit (HCU).
Or alternatively, the motor carrier can make arrangements to have its
fleet inspected at its own facility. FDNY estimates the whole process
takes approximately 30 minutes.
PHMSA has acknowledged that vehicle and container inspections are
an ``integral part of a program to assure the safe transportation of
hazardous materials in compliance with the HMR.'' PD-28(R), Town of
Smithtown, New York Ordinance on Transportation of Liquefied Petroleum
Gas, 67 FR 15276, 15278 (Mar. 29, 2002).
Also, the agency has specifically found that inspections conducted
by State or local governments to assure compliance with Federal or
consistent requirements are themselves consistent with Federal
hazardous material transportation law and not preempted. PD-28(R) at
15278; PD-4(R), California Requirements Applicable to Cargo Tanks
Transporting Flammable and Combustible Liquids, 58 FR 48933, 48940
(Sept. 20, 1993), Decision on Petition for Reconsideration, 60 FR 8800
(Feb. 15, 1995), quoting IR-20, Triborough Bridge and Tunnel Authority
Regulations, etc., 52 FR 24396, 24398 (June 30, 1987).
Accordingly, the agency ``has encouraged States and local
governments to adopt and enforce the requirements in the HMR `through
both periodic and roadside spot inspections.' '' PD-28(R) at 15278,
quoting PD-4(R), 58 FR at 48940 and PD-13(R), Nassau County, New York,
Ordinance on Transportation of Liquefied Petroleum Gases, 63 FR 45283,
45286 (Aug. 25, 1998), Decision on Petition for Reconsideration, 65 FR
60238 (Oct. 10, 2000), quoting from WPD-1, New York City Fire
Department Regulations, etc., 57 FR 23278, 23295 (June 2, 1992).
But to be consistent with the HMTA and the HMR, a non-Federal
inspection of a vehicle or container used to transport a hazardous
material must not conflict with the requirement in 49 CFR 177.800(d),
which states:
All shipments of hazardous materials must be transported without
unnecessary delay, from and including the time of commencement of
the loading of the hazardous material until its final unloading at
destination.
In prior decisions, the agency has identified several principles
regarding unnecessary delay that are relevant to this proceeding.
First, travel and wait times associated with an inspection are not
generally considered unnecessary delays. PD-13(R), Decision on Petition
for Reconsideration, 65 FR 60238, 60243 (Oct. 10, 2000); PD-4(R) at
48941. However, a delay of hours or days waiting for the arrival of an
inspector from another location is unnecessary, because it
substantially increases the time hazardous materials are in
transportation, increasing exposure to the risks of the hazardous
materials without corresponding benefit. PD-28(R) at 60243; PD-4(R) at
48941.
Second, a State's annual inspection requirement applied to vehicles
that operate solely within the State is presumptively valid because it
would not create the potential for delays associated with entering the
State or being rerouted around the State. A carrier whose vehicles are
based within the inspecting jurisdiction should be able to schedule an
inspection at a time that does not disrupt or unnecessarily delay
deliveries. 65 FR at 60243; 60 FR at 8803; PD-13(R) at 45286.
But, when applied to vehicles based outside of the inspecting
jurisdiction, a State or local periodic inspection requirement has an
inherent potential to cause unnecessary delays because the call and
demand nature of common carriage makes it impossible to predict in
advance which vehicles may be needed for a pick-up or delivery within a
particular jurisdiction and impractical to have all vehicles inspected
every year (or alternatively, inspection of select vehicles dedicated
to the inspecting jurisdiction). PD-28(R) at 15279, referring to the
discussion in PD-4(R) 58 FR at 48938-41, and PD-13(R), 65 FR 60242-44.
Last, a State or local government may apply an annual inspection
requirement to trucks based outside its jurisdictional boundaries
``only if the [State or local government] can actually conduct the
equivalent of a `spot' inspection upon the truck's arrival within the
local jurisdiction. The [State or local government] may not require a
permit or inspection for trucks that are not based within the local
jurisdiction if the truck must interrupt its transportation of
[hazardous materials] for several hours or longer in order for an
inspection to be conducted and a permit to be issued.'' 65 FR at 60244.
Applying these principles to FDNY's permit and inspection program,
it appears that the program would not cause unnecessary delays in the
transportation of hazardous materials with respect to motor vehicles
that are based within FDNY's jurisdiction. As noted in PD-13(R), motor
carriers based within the inspecting jurisdiction ``should be able to
present their trucks for an inspection . . . without incurring an
unnecessary delay in the delivery of [hazardous materials]. They should
be able to plan and schedule inspections without any interruption of
deliveries.'' 65 FR at 60244. And on the few occasions where an
inspection must be performed on short notice, it is reasonable to
consider this an exception and simply a part of doing business, rather
than an unreasonable delay under the HMR. Id.
However, with respect to motor vehicles that are based outside the
inspecting jurisdiction, FDNY's process doesn't appear to be as
flexible or accommodating as it portrays. For example, although FDNY
says a same-day inspection at the HCU is possible, the unit is only
open for operation, Monday through Friday, from 7:30 a.m. to 3:00 p.m.
Since the permit and inspection program is not limited to one specific
class of hazardous material, and considering that the HCU is only open
weekdays until 3:00 p.m., an unpermitted motor carrier based outside
FDNY's jurisdiction would have no recourse when it arrives to pick up
or deliver hazardous materials in the City (requires a permit) and
discovers that the HCU is closed. FDNY indicates that there is some
flexibility in performing inspections, i.e., a motor carrier can
arrange for fleet inspections at its own facility, and that it has co-
located FDNY inspection operations with other regulatory departments.
But fleet inspections at a motor carrier's own facility appear to be
impractical where the facility is located outside the City's
jurisdiction. And, although co-locating the HCU with the City's other
regulatory departments may be an operational convenience, it is not
relevant to the issue here. More importantly, FDNY is silent on whether
it is capable of performing a `spot' inspection upon a motor carrier's
arrival within its jurisdiction. Therefore, it does not appear that
FDNY is able to conduct inspections and issue permits ``on demand.'' As
ATA pointed out, FDNY is ``unable to apply the inspection and
permitting process at the roadside[,]'' and ``FDNY's policy requires
the truck to `interrupt its transportation . . . for several hours' by
traveling to the FDNY inspection site and being inspected before
returning to productive service[.]'' Comments of ATA at 5, quoting 67
FR at 15279. Although ATA did not specify that its members have
actually experienced delays of this kind and duration, our prior
determinations on this issue support the position that
[[Page 31395]]
when FDNY is confronted with the unannounced arrival of a motor carrier
based outside its jurisdiction, it should be capable of conducting the
equivalent of a spot or roadside inspection to avoid unnecessary
delays. FDNY has not shown that its program has this flexibility.
PHMSA, for the reasons set forth above, finds that the HMTA does
not preempt FDNY's permit and inspection requirements, FC 2707.4 and
105.6 (transportation of hazardous materials), with respect to motor
vehicles that are based within the inspecting jurisdiction. On the
other hand, PHMSA finds that FDNY's permit and inspection requirements
create an obstacle to accomplishing and carrying out the HMR's
prohibition against unnecessary delays in the transportation of
hazardous materials on vehicles based outside of the inspecting
jurisdiction. Accordingly, the HMTA preempts FDNY's permit and
inspection requirements, FC 2707.4 and 105.6 (transportation of
hazardous materials), with respect to trucks based outside the
inspecting jurisdiction.
B. Permit Fee.
ATA challenges FDNY's transportation of hazardous materials permit
fee on the grounds that it is not ``fair'' and that it is not being
used for purposes that are related to the transportation of hazardous
material. ATA also alleges that FDNY has not sufficiently accounted for
the revenues generated by its ``hazardous materials registration
program.'' Nouveau echoed ATA's assertion that FDNY is not using the
revenue generated from the fees for authorized purposes and contends
that FDNY has not provided any evidence regarding the collection and
use of the fees.
According to FDNY, permit revenues, like all revenues received by
City agencies, are paid into a general City fund, with the amounts
credited toward agency, bureau and unit operations. Over the past three
years, annual revenue generated from the permit fees ranged from
$250,000 to $450,000.\6\ FDNY claims it expends on an annual basis,
``tens of millions of dollars'' for its hazardous materials response
operations, including staffing, training and equipping the HMU and
other specialized units, but it provided no specific figures.
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\6\ FY2013; FY2015 (July 1 through June 30).
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It is FDNY's position that its inspection and permitting program,
and related fees, are not preempted because it believes the agency
already addressed this issue, and found that the requirements were not
preempted. However, as discussed above in the prior administrative
proceedings section, the WPD-1 language was conditioned on the City
separating and severing the permit fee requirements from the preempted
truck design and construction requirements. More importantly however,
PHMSA expressly noted that the City's permit requirement could only
avoid being preempted if the annual permit fee was ``equitable'' and
``used for purposes related to the transportation of hazardous
materials.'' Since that time, the City's current inspection and
permitting (including fees) regulatory scheme has not been challenged
on these issues. Therefore, FDNY's contention that its permit fees are
valid based on the language in WPD-1 is not persuasive. The challenge
to the validity of the permit fees as now raised in this proceeding,
requires that PHMSA determine that the fees satisfy the statutory
requirements.
The HMTA provides that ``[a] State, political subdivision of a
State, 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.'' 49 U.S.C. 5125(f)(1). In prior preemption determinations,
PHMSA has utilized tests for determining whether a fee is ``fair'' and
whether it is ``used for a purpose related to transporting hazardous
material.''
1. The Fairness Test
PHMSA has determined that the test of reasonableness in Evansville-
Vanderburgh Airport Auth. v. Delta Airlines, Inc. 405 U.S. 707, 92
S.Ct. 1349 (1972) ``appears to be the most appropriate one for
interpreting the fairness requirement in [the HMTA].'' PD-21, Tennessee
Hazardous Waste Transporter Fee and Reporting Requirements, 64 FR
54474, 54478 (October 6, 1999).\7\
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\7\ Complaint for judicial review, Tennessee v. U.S. Dept. of
Transportation, C.A. No. 3-99-1126 (M.D. Tenn.), filed Dec. 3, 1999;
order denying claim of state sovereignty (Feb. 27, 2001); affirmed
and remanded, 326 F.3d 729 (6th Cir.); cert. denied, 124 S.Ct. 464
(2003); judgment in favor of DOT and AWHMT (June 28, 2004).
---------------------------------------------------------------------------
In Evansville-Vanderburgh, the Supreme Court found that a state or
local ``toll'' would pass constitutional muster ``so long as the toll
is based on some fair approximation of use or privilege for use . . .
and is neither discriminatory against interstate commerce nor excessive
in comparison with the governmental benefit conferred[.]'' 405 U.S. at
716-17, 92 S.Ct. at 1355. Following Evansville-Vanderburgh, the Court
stated that ``a levy is reasonable under Evansville if it (1) is based
on some fair approximation of the use of the facilities, (2) is not
excessive in relation to the benefits conferred, and (3) does not
discriminate against interstate commerce.'' Northwest Airlines, Inc. v.
Kent, 510 U.S. 355, 367-68, 114 S.Ct. 855, 864 (1994).
In PD-21, PHMSA evaluated Tennessee's requirement for hazardous
waste transporters to pay an annual $650 remedial action fee. In that
matter, PHMSA observed that there was no evidence that Tennessee's
annual fixed fee had any approximation to a transporter's use of roads
or other facilities within the State or that there were genuine
administrative burdens that prevented the application of a more finely
graduated fee. Id. PHMSA thus concluded that the fee was not ``fair''
and was preempted.
In PD-18, Broward County, Florida's Requirements on the
Transportation of Certain Hazardous Materials to or From Points in the
County, 65 FR 81950 (December 27, 2000), Decision on Petition for
Reconsideration, 67 FR 35193 (May 17, 2002), PHMSA preempted the
County's licensing fee for hazardous waste transporters. In making its
determination, the agency followed the fairness test discussed in
Tennessee and emphasized that a fee discriminates against interstate
commerce if there is a ``lack of any relationship between the fees paid
and the respective benefits received by interstate and intrastate
carriers.'' PD-18 at 81959 (quoting PD-21). The agency went on to say
that the case in Broward County was similar to the situation in
Tennessee because the County ``requires that any person transporting .
. . waste `to from, and within' the County must obtain a waste
transporter license.'' PHMSA also noted that the fee for obtaining the
waste transport license ``apparently is the same for every
transporter'' without being based on some fair approximation of use of
facilities, i.e., roads or other facilities within the State. PD-18 at
81959.
Here, FDNY has acknowledged its permit fee is a flat fee applicable
to motor carriers whether they are engaged in interstate or intrastate
transportation of hazardous materials. Moreover, FDNY admitted that it
does not maintain statistics as to whether motor carriers are engaged
in interstate or intrastate commerce. Consequently, since there is no
evidence showing that FDNY's flat fee is apportioned to a motor carrier
based on some approximation of the benefit conferred
[[Page 31396]]
to the permit holders, it discriminates against interstate commerce.
Furthermore, there is no evidence that a more finely graduated fee
would pose genuine administrative burdens on the City. PHMSA therefore
finds that the FDNY's permit fee is not fair and is preempted.
2. The ``Used For'' Test
Under the HMTA, a State, political subdivision of a State, or
Indian tribe may impose a fee related to transporting hazardous
material, but only if the fee is used for a purpose related to
transporting hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency response. 49
U.S.C. 5125(f)(1). Therefore, non-Federal fees that are collected in
relation to the transportation of hazardous materials must be used for
a related purpose; otherwise they are preempted. PD-22, New Mexico
Requirements for the Transportation of Liquefied Petroleum Gas, 67 FR
59386 (Sept. 20, 2002); PD-18 at 81959; PD-21 at 54479.
In prior preemption determinations, PHMSA has acknowledged that a
State, political subdivision of a State, or Indian tribe does not have
to create and maintain a separate account for fees related to the
transportation of hazardous materials. However, ``[i]f the [non-Federal
entity] prefers not to create and maintain a separate fund for fees
paid . . . then it must show that it is actually spending these fees on
the purposes permitted by the law. In this area where only the [non-
Federal entity] has the information concerning where these funds are
spent, more specific accounting is required.'' PD-21 at 54479.
FDNY acknowledged that the revenue it receives through its permit
program is put into a general City fund; which is permissible, provided
it can show the funds are used for purposes related to the
transportation of hazardous materials. FDNY believes that the revenue
is used for permitted purposes because it contributes to the cost of
staffing, training, and equipping its HCU. However, FDNY also indicated
that the inspection fee largely covers the cost of the inspection and
the administrative processing of the permit. Here, apart from general
statements about how the revenue is used, FDNY does not provide
specific figures. FDNY's failure to provide definitive information on
the allocation of permit revenues is not sufficient to refute ATA's
direct challenge of the permit fee on the grounds that FDNY has not
sufficiently accounted for revenues generated by its hazardous
materials registration program. Therefore, without any evidence from
FDNY on how it uses the permit fees that it collects, PHMSA cannot find
that the fees are used for purposes related to hazardous materials
transportation, and thus, FDNY's permit fee is preempted under the
``used for'' test.
III. Ruling
Inspection and Permit Requirement--PHMSA finds that FDNY's permit
and inspection requirements, FC 2707.4 and 105.6 (transportation of
hazardous materials), create an obstacle to accomplishing and carrying
out the HMR's prohibition against unnecessary delays in the
transportation of hazardous materials on vehicles based outside of the
inspecting jurisdiction. Accordingly, the HMTA preempts FDNY's permit
and inspection requirements with respect to vehicles based outside the
inspecting jurisdiction. PHMSA, however, finds that the HMTA does not
preempt FDNY's permit and inspection requirements with respect to motor
vehicles that are based within the inspecting jurisdiction.
Permit Fee--PHMSA finds that FDNY has not shown that the fee it
imposes with respect to its permit and inspection requirements is
``fair'' or ``used for a purpose related to transporting hazardous
material,'' as required by 49 U.S.C. 5125(f)(1). Accordingly, the HMTA
preempts FDNY's permit fee requirement.
IV. 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 June 29, 2017.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2017-14147 Filed 7-5-17; 8:45 am]
BILLING CODE 4910-60-P
