Pipeline and Hazardous Materials Safety Administration

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination No. PD-13(R); Docket No. RSPA-97-2581 (PDA-
16(R))]

Nassau County, New York, Ordinance on Transportation of Liquefied
Petroleum Gases

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of administrative determination of preemption by RSPA's
Associate Administrator for Hazardous Materials Safety.

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APPLICANT: New York Propane Gas Association (NYPGA).

LOCAL LAWS AFFECTED: Nassau County, New York, Ordinance No. 344-1979,
Sections 6.7(A) & (B) and Section 6.8.

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials
Regulations, 49 CFR Parts 171-180.

MODES AFFECTED: Highway.

SUMMARY: Federal hazardous material transportation law preempts the
requirement in Section 6.8 of Nassau County, New York Ordinance No.
344-1979 for a certificate of fitness, insofar as that requirement is
applied to a motor vehicle driver who sells or delivers liquefied
petroleum gas (LPG), because Section 6.8 imposes on drivers of motor
vehicles used to deliver LPG more stringent training requirements than
provided in the HMR. This requirement is not preempted with respect to
persons who sell or transfer LPG but do not drive the motor vehicle
from which (or to which) the LPG is transferred.

There is insufficient information to find that Federal hazardous
materials law preempts the requirement in Sections 6.7(A) and (B) of
Ordinance No. 344-1979 for a permit to pick up or deliver LPG within
Nassau County. The application and comments submitted in this
proceeding fail to show that this requirement, as applied and enforced,
creates an obstacle to accomplishing and carrying out Federal hazardous
material transportation law or the HMR. The record does not support
findings that the requirement for a permit causes an unnecessary delay
in the transportation of hazardous materials; that the permit fee is
unfair or used for purposes other than relating to transporting
hazardous materials; or that the permit sticker is a labeling or
marking of hazardous material (within the meaning and intent of the
HMR's hazard communication requirements).

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

A. Application and Public Notice

NYPGA has applied to RSPA for a determination that Federal
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts
Sections 6.7(A) and (B) and Section 6.8 of Nassau County, New York,
Ordinance No. 344-1979, concerning Fire Department permits and
``certificates of fitness'' for the delivery of LPG (including propane)
within Nassau County. NYPGA challenges requirements of the Fire
Department for issuance of these permits and certificates of fitness,
including fees, vehicle inspections, and written and practical
examinations.

Permits. Sections 6.7(A) and (B) of Ordinance No. 344-1979 provide
as follows:

A. No person, firm or corporation shall use or cause to be used,
any motor vehicle, tank truck, tank semi-trailer, or tank truck
trailer for the transportation of Liquefied Petroleum Gas, unless
after complying with these regulations a permit to operate any such
vehicle has been obtained from the Nassau County Fire Marshal. No
permit shall be required under this section for any motor vehicle
that is used for the transportation of Liquefied Petroleum Gas, not
operated or registered by an authorized dealer, in containers not
larger than ten (10) gallons water capacity each (approximately
thirty-four (34) pounds propane capacity) with aggregate, water
capacity of twenty-five gallons (approximately eighty-seven (87)
pounds propane capacity) or when used in permanently installed
containers on the vehicle as motor fuel. This section shall not
apply to any motor vehicle, tank truck, tank semi-trailer or tank
truck trailer traveling through Nassau County and making no
deliveries within the County.

B. The permit shall be given full force and effect for a period
of one (1) year.

In order to obtain a permit, the owner of a vehicle used to deliver
LPG must pay a fee of $150, or $75 for renewal, and have the vehicle
inspected. Inspections are normally conducted by appointment only on
two days each month, although Nassau County states that this schedule
is ``flexible and does not apply to new vehicles.'' When a permit is
issued, a permit ``sticker'' must be placed on the vehicle.

Certificate of Fitness. Section 6.8(A) of Ordinance No. 344-1979
requires a ``Certificate of Fitness issued by the Fire Marshal,''
effective for a year and renewable, to be held by ``[a]ny person
filling containers at locations where Liquefied Petroleum Gas is sold
and/or transferred from one vessel to another * * *'' Section 6.8(I) of
the ordinance further specifies that a certificate of fitness is
required for any person who ``Fill[s] containers permanently located
and installed outdoors equipped with appurtenances for filling by a
cargo vehicle at consumer sites,'' or ``Sell[s] Liquefied Petroleum Gas
or transfer[s] Liquefied Petroleum Gas from one vessel into another.''
NYPGA states that this means that each driver of a vehicle used to
deliver propane in Nassau County must hold a certificate of fitness.

Other subsections of Sec. 6.8 provide that an applicant for a
certificate of fitness must complete ``forms provided by the Fire
Marshal * * * accompanied by the applicable fee'' (Sec. 6.8(B)); must
demonstrate proof of qualifications and physical competence (Sec.
6.8(C)); and must undergo an investigation that ``include[s] a written
examination regarding the use, makeup and handling of Liquefied
Petroleum Gas and * * * a practical test'' (Sec. 6.8(D)). The affidavit
of Nassau County's Supervising Fire Inspector indicates that the
certificate of fitness is issued in the form of ``an ID card which must
be produced upon the request of anyone (in Nassau County) for whom [the
holder] seeks to render his services or the Fire Marshal.'' It appears
from the affidavit and NYPGA's application that an applicant for a
certificate of fitness must:

--Submit a notarized application form (Exhibit 7 to NYPGA's
application) accompanied by a $150 fee;
--Take a written examination, given by appointment at the Fire
Marshal's Office, and have a photograph taken for the identification
card; and
--Undergo a practical examination given at the applicant's place of
employment.

The written and practical examinations are not required for
renewing the certificate of fitness, and the renewal fee is $25.

The text of NYPGA's application was published in the Federal
Register on June 10, 1997, and interested parties were invited to
submit comments. 62 FR 31661. Comments were submitted by the National
Propane Gas Association (NPGA), National Tank Truck Carriers, Inc.
(NTTC), New York State Motor Truck Association (NYSMTA), Star-Lite
Propane Gas Corp. (Star-Lite), the Association of Waste Hazardous
Materials Transporters (AWHMT), and Nassau County. NYPGA submitted
rebuttal comments.

On February 26, 1998, Congressman Gerald B. Solomon (R-NY) wrote

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RSPA's Acting Administrator in support of NYPGA's application and asked
RSPA to expedite its determination. On June 24, 1998, Senator Alfonse
M. D'Amato (R-NY) forwarded to DOT a letter from the President of Star-
Lite expressing concern with the time for issuance of this
determination. On July 30, 1998, Star-Lite's President also wrote
attorneys in RSPA's Office of the Chief Counsel asking RSPA to ``make
[its] ruling as soon as possible.'' All of these additional letters
were placed in the public docket.

B. Transportation of propane

Propane (a form of LPG) is a flammable gas which, according to
NPGA, is used by more than 18 million installations throughout the
United States for home and commercial heating and cooking, in
agriculture, in industrial processing, and as a clean-air alternative
engine fuel for both over-the-road vehicles and industrial lift trucks.
Larger cargo tank motor vehicles (with a capacity of more than 3,500
gallons) are generally used to deliver propane to bulk storage plants
or large industrial users. Smaller cargo tank motor vehicles are
typically used for local deliveries.

RSPA believes that a large number of propane gas dealers are small
businesses that serve nearby customers (no more than 50 miles from the
dealer's business location). Carriers of LPG that operate cargo tanks
solely within one state are not directly subject to the HMR until
October 1, 1998. 49 CFR 171.1(a)(1), as adopted September 22, 1997 (62
FR 49560, 49566). However, both intrastate and interstate motor
carriers that deliver propane within Nassau County are subject to the
substantive requirements in the HMR because New York has adopted the
HMR as State law with respect to the ``classification, description,
packaging, marking, labeling, preparing, handling and transporting all
hazardous materials.'' 17 New York Codes, Rules and Regulations
507.4(a)(1)(i).

C. Preemption under Federal hazardous material transportation law

Section 5125 of Title 49 U.S.C. contains several preemption
provisions that are relevant to NYPGA's application. Subsection (a)
provides that--in the absence of a waiver of preemption by DOT under
Sec. 5125(e) or specific authority in another Federal law--a
requirement of a State, political subdivision of a State, or Indian
tribe is preempted if

(1) complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or

(2) the requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to the
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria which RSPA had applied in issuing inconsistency
rulings prior to 1990, under the original preemption provision in the
Hazardous Materials Transportation Act (HMTA). Pub. L. 93-633
Sec. 112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle
criteria 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).

Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal
requirement about any of the following subjects, that is not
``substantively the same as'' a provision of Federal hazardous material
transportation law or a regulation prescribed under that law, is
preempted unless it is authorized by another Federal law or DOT grants
a waiver of preemption:

(A) the designation, description, and classification of
hazardous material.

(B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.

(C) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.

(D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.

(E) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.

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).

Subsection (g)(1) of 49 U.S.C. 5125 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 relating to transporting
hazardous material, including enforcement and planning, developing,
and maintaining a capability for emergency response.

These preemption provisions in 49 U.S.C. 5125 carry out Congress's
view that a single body of uniform Federal regulations promotes safety
in the transportation of hazardous materials. In considering the HMTA,
the Senate Commerce Committee ``endorse[d] the principle of preemption
in order to preclude a multiplicity of State and local regulations and
the potential for varying as well as conflicting regulations in the
area of hazardous materials transportation.'' S. Rep. No. 1102, 93rd
Cong. 2nd Sess. 37 (1974). When it amended the HMTA in 1990, Congress
specifically found that:

(3) many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,

(4) because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,

(5) in order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.

Pub. L. 101-615 Sec. 2, 104 Stat. 3244. A Federal Court of Appeals
has affirmed that uniformity was the ``linchpin'' in the design of the
HMTA, including the 1990 amendments which expanded the preemption
provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575
(10th Cir. 1991). (In 1994, the HMTA was revised, codified and enacted
``without substantive change,'' at 49 U.S.C. Chapter 51. Pub. L. 103-
272, 108 Stat. 745.)

Under 49 U.S.C. 5125(d)(1), any directly affected person may apply
to the Secretary of Transportation for a determination whether a State,
political subdivision or Indian tribe requirement is preempted. The
Secretary of Transportation has delegated to RSPA the authority to make
determinations of preemption, except for those concerning highway
routing which have been delegated to FHWA. 49 CFR 1.53(b). Under RSPA's
regulations, preemption determinations are issued by RSPA's Associate
Administrator for Hazardous Materials Safety. 49 CFR 107.209(a). This
administrative determination has replaced RSPA's process for issuing
inconsistency rulings.

Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register.
Following the receipt and consideration of written comments, RSPA
publishes its determination in the

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Federal Register. See 49 C.F.R. 107.209(d). A short period of time is
allowed for filing petitions for reconsideration. 49 C.F.R. 107.211.
Any party to the proceeding may seek judicial review in a Federal
district court. 49 U.S.C. 5125(f).

Preemption determinations do not address issues of preemption
arising under the Commerce Clause of the Constitution or under statutes
other than the Federal hazardous material transportation law unless it
is necessary to do so in order to determine whether a requirement is
authorized by another Federal law. 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 making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policy set forth in Executive Order No.
12612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section
4(a) of that Executive Order authorizes preemption of State laws only
when a statute contains an express preemption provision, there is other
firm and palpable evidence of Congressional intent to preempt, or the
exercise of State authority directly conflicts with the exercise of
Federal authority. Section 5125 contains express preemption provisions,
which RSPA has implemented through its regulations.

II. Discussion

A. Permits

NYPGA and other commenters argue that Nassau County's permit
requirement constitutes an ``obstacle'' to transportation because there
is a delay in the time necessary to undergo an inspection and pay the
permit fee. NYPGA and others also contend that the fee for issuance of
a permit (as well as a certificate of fitness) is ``inherently unfair''
as a ``flat tax'' which violates the Commerce Clause of the
Constitution, because ``a one-time entrant to [Nassau County] from any
jurisdiction, would pay the same as a frequent entrant.'' NYPGA further
states that the permit sticker is ``a separate labeling requirement of
a hazardous material and should be preempted, per se, as a covered
subject.'' In rebuttal comments, it states that the sticker ``is an
additional label and causes delay.''

NYPGA argues in its application that, because inspections are
scheduled for only two days each month, a new vehicle that meets all
Federal and State requirements is ``unusable until a [Nassau County]
inspection can be performed.'' NYPGA states that an ``out-of-state
carrier who attempted to deliver propane to a customer'' in Nassau
County could not obtain the required permit ``without violating the
`unnecessary delay' standard.'' According to NYPGA, ``[b]ecause both
the driver and vehicle are unavailable for long periods of time, the
effect of the inspection is to cause unnecessary delay * * *''

The focus of NYPGA's application and many of the comments, however,
appears to be the delay experienced by a propane delivery company in
being able to compete or do business within Nassau County--rather than
any delay in the transportation of trucks loaded with propane. Star-
Lite (a member of NYPGA) states that it placed a new vehicle in service
``prior to the two monthly available inspection days'' and that,
``[f]rom the date of purchase this vehicle would have been unavailable
for delivery to customers pending such local inspection for a period of
at least 10 days.'' Star-Lite complains that the ``inconvenience, costs
and delays'' amount to an ``obstacle to transportation.''

In a similar fashion, NYSMTA states that its members ``transport
propane in bulk and on rack trucks to the area of New York State in and
around Nassau County, but are effectively prevented from entering this
market due to the subject ordinance.'' According to NYSMTA, Nassau
County's inspection requirements are ``redundant to state-enforced
Federal requirements of title 49,'' and ``effectively bar any company
not Registered and not regularly engaged in delivering to Nassau County
from bidding on any transportation of propane to Nassau regardless of
the origin of that product and despite meeting all federal and state
requirements of Title 49.'' Congressman Solomon (who represents a
district in upstate New York including Saratoga Springs and Lake
Placid) states that one of his constituents ``cannot deliver propane *
* * to points in Nassau County.''

NPGA complains that
A company who might be shipping a hazardous material to or from
Nassau County by motor vehicle (common or private) would have to
anticipate its transportation needs by as much as a full year in
advance in order for that particular vehicle to be inspected and
``licensed'' for operation in the county. Such inspections are an
undue and unwarranted interference in interstate commerce, at the
very least, and would actually have a very similar effect upon
intrastate transportation of hazardous materials.

Unlike other commenters, NTTC recognizes a difference in the
application of Nassau County's permit requirements to ``motor carriers
who operate entirely within its jurisdiction'' as opposed to a
a motor carrier, domiciled in New England, the Middle Atlantic
States, etc. [that] may be compelled to make one or more deliveries
to NC [Nassau County] on an emergency or non-scheduled basis. Absent
extraordinary measures, it is likely that such a carrier will be in
violation of the ordinance upon entry into that jurisdiction or the
carrier will have to delay transportation services until the NC
``process'' has been completed.

Nassau County denies that there is any inherent delay in applying
its permit requirements to trucks that deliver propane within the
County, even by a truck dispatched from outside of the County. The
County reiterates that its requirements do not apply to vehicles that
travel through the County without making deliveries. It asserts that it
does not require that the vehicle be loaded with propane during an
inspection, so that there is no ``unnecessary delay'' in the
transportation of hazardous materials.

The County also states that the ``two day a month schedule is
flexible and does not apply to new vehicles.'' According to an attached
affidavit of its Supervising Fire Inspector: vehicles with less than
1,000 miles receive only a ``modified'' inspection, that ``does not
have to be during the regular inspection times and is at the owner's
convenience''; additional inspection days are scheduled ``when the
number of vehicles warrant or the vehicle's owner presents exigent
circumstances requiring an alternate date''; the Fire Department has
``on occasion made inspections when requested at the owner's
location''; and out-of-state carriers
would normally be given a warning before enforcement actions are
initiated. Special arrangements are also set up to accommodate these
carriers by allowing inspections at other than normal hours.

In rebuttal comments, NYPGA takes issue with the County's asserted
flexibility in arranging inspections, but it does not establish that
there have been actual delays in the delivery of propane to or within
Nassau County.

In PD-4(R), RSPA considered California's registration and
inspection program applicable to cargo tanks and portable tanks
transporting flammable and combustible liquids. California Requirements
Applicable to Cargo Tanks Transporting Flammable and Combustible
Liquids, 58 FR 48933 (Sept. 20, 1993), decision on petition for
reconsideration, 60 FR 8800 (Feb. 15. 1995). Among other matters,
California required (1) annual registration of these

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tanks, (2) an inspection once a year within 30 days of notification,
and (3) placement on the tank itself of a metal identification plate, a
State ``CT number,'' and a label certifying that the tank had passed
inspection and is registered. The applicant and others provided
evidence that, while the California Highway Patrol (CHP) was able to
promptly inspect some tanks arriving at a port-of-entry location on a
main highway near the State border, the transportation of other tanks
entering California loaded with hazardous materials had been
interrupted for hours or days before an inspector could arrive to
perform the required inspection. 58 FR at 48940-41.

In its decision, RSPA noted that ``it has encouraged States and
local governments to adopt and enforce the requirements in the HMR,
`through both periodic and roadside spot inspections.''' 58 FR at 48940
(quoting from WPD-1, 57 FR 23278, 23295 (June 2, 1992)). However, RSPA
found that State and local inspections must be carried out in a manner
that does not conflict with the requirement currently set forth at 49
CFR 177.800(d) that

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.
(Until October 1, 1996, this requirement was contained in
Sec. 177.853(a).)

In PD-4(R), RSPA discussed the purpose and its prior analyses of
the HMR's prohibition against ``unnecessary delay.'' It referred to
three early inconsistency rulings including IR-2, 44 FR 75566, 75571
(Dec. 20, 1979), decision on appeal, 45 FR 71881 (Oct. 30, 1980), where
it had stated:

The manifest purpose of the HMTA and the Hazardous Materials
Regulations is safety in the transportation of hazardous materials.
Delay in such transportation is incongruous with safe
transportation. Given that the materials are hazardous and that
their transportation is not risk-free, it is an important safety
aspect of the transportation that the time between loading and
unloading be minimized.

Quoted in PD-4(R), 58 FR at 48939-40. RSPA noted that ``non-Federal
registration and inspection requirements, by themselves, do not
inevitably have the potential for unnecessary delay proscribed in'' the
HMR. 58 FR at 48940. RSPA also pointed out that an unnecessary delay
was not presented by ``the minimal increase in travel time when an
inspection is actually being conducted, or the vehicle is waiting its
`turn' for an inspector to finish inspecting another vehicle that
arrived earlier at the same facility.'' 58 FR at 48941. However, there
was an unnecessary delay when tanks loaded with hazardous materials
``must be held for inspection for two to three days * * * or as long as
five days'' until an inspector could arrive. Id. Accordingly, RSPA held
that Federal hazardous material transportation law preempted
California's inspection requirement
because, as applied and enforced, that requirement causes
unnecessary delays and is an obstacle to the accomplishment and
execution of the HMR. California is free, and is encouraged, to
conduct inspections of cargo tanks and portable tanks at [ports of
entry], other roadside inspection locations, and terminals. However,
it may not require an inspection as a condition of traveling on
California's roads when the inspection cannot be conducted without
delay because an inspector must come to the place of inspection from
another location.

Id.

In its decision on CHP's petition for reconsideration, RSPA
emphasized that its holding was ``a narrow one,'' and stated that,
``[i]f and when California eliminates the unreasonable delays in its
inspection program, that requirement will no longer be preempted.'' 60
FR at 8803. RSPA also noted that tanks that are ``based'' within the
State and ``never leave California would not experience delays
associated with entering the State or being rerouted around
California.'' Id.

In PD-4(R), RSPA also found that the annual registration
requirement, including payment of a registration fee, was not preempted
because there was no evidence that the registration process produced
any delays, separate from the wait for an inspection to be conducted.
58 FR at 48940. RSPA further found that Federal law preempted
California's requirements for a metal specification plate, the CT
number, and the certification label on the tank itself, because they
were not ``substantively the same as'' requirements in the HMR
concerning the ``marking . . . of hazardous material,'' and the
``marking . . . of a package or container, which is represented,
marked, certified, or sold as qualified for use in the transportation
of hazardous material.'' See 58 FR at 48937. In its decision on CHP's
petition for reconsideration, RSPA noted that a different standard
might apply in determining whether Federal hazardous material
transportation law preempts a registration document required to be
carried in a vehicle (rather than marked directly on the hazardous
materials container):

A requirement to carry additional documentation on a vehicle
transporting hazardous materials, beyond that required in the HMR,
may create an obstacle to the accomplishment and execution of the
Federal hazardous material transportation law and the HMR. See
Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1581 (10th Cir.
1991).

As stated in Section I.B., above, RSPA understands that most
propane gas dealers serve customers within 50 miles of their principal
places of business. Those companies located within Nassau County, and
many others located nearby, should have adequate time to plan for and
undergo inspections without disrupting actual deliveries within Nassau
County. With respect to loaded trucks that may arrive from outside of
Nassau County (in an emergency or otherwise), it is uncertain whether
the County is able to conduct inspections, collect fees, and issue
permits--or waive these requirements--without causing those trucks to
wait unnecessarily. So long as the County does not cause the loaded
truck to wait for a permit to be issued, there will be no unnecessary
delay in the transportation of hazardous materials. The present record
lacks information to show that Nassau County's permit requirement, as
applied and enforced, actually results in ``unnecessary delays'' in
deliveries of propane within the County.

With respect to the permit fee, the County's Supervising Fire
Inspector states that the fee covers the cost of conducting the
inspection and actually issuing the permit. He states that, because
``it takes less time to reinspect a truck for a renewal permit,'' the
fee is $75 for a renewal permit, rather than $150 for an initial
permit. He also states that the fees collected ``do not fully cover the
cost of administering the tests or performing the inspection,'' because
the County ``collects less than $70,000 in LP Gas fees annually and
spends over $70,000 in LP related administration,'' without considering
the costs of either the County's hazardous materials emergency response
team or the personnel and equipment ``necessary to administer and
enforce the Hazardous Material laws and regulations.''

Because the permit fee is not applied to all trucks that transport
propane within Nassau County, but only to those that deliver propane
within the County, and the amount of the fee is related in some measure
to the work involved in conducting the required inspection, this fee
appears more like a user fee than a tax. According to the U.S. Court of
Appeals for the Fourth Circuit, user fees are to be distinguished from
taxes, so long as they ``reflect a fair, if imperfect, approximation of
the cost of using state

[[Page 45287]]

facilities for the taxpayer's benefit, * * * [and are] not * * *
excessive in relation to the costs incurred by the taxing
authorities.'' Center for Auto Safety v. Athry, 37 F.3d 139, 142
(1994), cert. denied, 514 U.S. 1036 (1995), citing Evansville-
Vanderburgh Airport Auth. District v. Delta Airlines, 405 U.S. 707,
717-20 (1972). In this case, no party has shown that the permit fees
fail this standard. There is no other information to show that the
permit fee is ``unfair'' or that the fees collected are not used for
purposes that do not relate to the transportation of hazardous
material.

According to the County, the permit sticker must be placed on the
fender or door of the vehicle, and not on the cargo tank itself;
otherwise, there is no requirement to carry any paperwork on the
vehicle. Because the sticker is not placed on the hazardous material
itself (or its container), it is not a ``marking * * * of hazardous
material.'' 49 U.S.C. 5125(b)(1)(B). There is no evidence showing that
placing this sticker on the vehicle results in any unnecessary delay,
or that the requirement for affixing the permit sticker, as applied or
enforced, is otherwise an obstacle to accomplishing and carrying out
Federal hazardous material transportation law or the HMR.

For these reasons, RSPA cannot find that Federal hazardous
materials transportation law preempts Sections 6.7(A) and (B) of Nassau
County Ordinance No. 344-1979.

B. Certificate of fitness

NYPGA asserts that the certificate of fitness is a second driver's
license required by Nassau County that is prohibited under FHWA's
regulations concerning commercial driver's licenses (see 49 CFR
383.21(a)) and, accordingly, preempted under both the ``dual
compliance'' and ``obstacle'' standards in 49 U.S.C. 5125(a). It also
contends that Nassau County's requirement for a certificate of fitness
conflicts with 49 CFR 172.701, which allows a State, rather than a
political subdivision, to impose more stringent training requirements
on drivers who are domiciled within the State.

NTTC appears to object to the requirement for a certificate of
fitness only as applied to non-residents of Nassau County. It contends
that ``the process to obtain a `certificate' produces unnecessary
delay'' because of the time necessary to obtain a medical certificate,
prepare the notarized statement, obtain a color photograph, pass a
written examination, and then wait for the County to process the
application and issue the certificate. NTTC also states that the
requirement for a certificate of fitness is redundant with the training
requirements in the HMR and the Federal Motor Carrier Safety
Regulations (FMCSR), 49 CFR Parts 350-399, and that, if County
officials believe that the Federal requirements are deficient, they
should petition DOT for new Federal standards.

Nassau County states that its certificate of fitness is not a
driver's license because the driver need not be certified; ``[d]riving
skills are not tested,'' and only the person who fills the customer's
tank or otherwise transfers propane needs to hold a certificate;
``[t]he recipient, usually the yard or retail/commercial center can
have their employee certified and no driver need be involved if he
neither transfers or fills where LP Gas is sold.'' The County also
argues that its certificate of fitness program is not ``training,'' and
that 49 CFR 172.701 does not prohibit this requirement because the
limitation in that section of the HMR ``deals with minimum training
requirement for drivers.''

However, Nassau County does not dispute the statement of NYPGA
that, in actual practice, the vehicle driver performs the transfer of
propane into a customer's tank, so that the requirement for a
certificate of fitness is applied to, and enforced against, persons who
drive motor vehicles. NYPGA stated in rebuttal that the certificate of
fitness is a second driver's license because, in practice, ``the driver
and the person doing the transfer'' are the same individual, and the
driver needs the certificate ``to complete the delivery or `sale'.''
NYPGA also noted that the persons required to hold a certificate of
fitness are clearly covered by the HMR's training requirements, because
a ``hazmat employee'' includes an individual who ``loads, unloads, or
handles hazardous material.'' 49 U.S.C. 5102(3)(C)(i).

By prescribing only ``minimum training requirements for the
transportation of hazardous materials,'' 49 CFR 172.701, that section
in the HMR does not, in itself, preclude States or other governmental
bodies from requiring additional training of hazmat employees
generally. The one condition that Sec. 172.701 places on non-Federal
training requirements is that

For motor vehicle drivers, however, a State may impose more
stringent training requirements only if those requirements--
(a) Do not conflict with the training requirements in [49 CFR
Part 172] and in Part 177 * * *; and
(b) Apply only to drivers domiciled in that State.

In proposing the training requirements in rulemaking docket No. HM-
126F, RSPA explained that it intended
to restrict its preemption of state law to the minimum level
necessary to achieve the objectives of the Hazardous Materials
Transportation Act (HMTA) and the HMR.

However, RSPA views these proposed training requirements,
insofar as they apply to drivers engaged in the highway
transportation of hazardous materials, as minimum requirements which
a state may exceed only if its greater requirements do not directly
conflict with the HMR requirements and apply only to individuals
domiciled within that state.
54 FR 31144, 31147 (July 26, 1989). In the preamble to the final rule,
RSPA further explained that

Although the preemption language does allow States to impose
more stringent requirements on drivers of vehicles transporting
hazardous materials by highway, it is not an unlimited authority.
The language recognizes the traditional regulation by States of
their own registered drivers, particularly through drivers'
licensing requirements and procedures. However, the language does
not authorize States to impose requirements on non-residents and
also does not authorize other governmental agencies to impose
requirements.

57 FR 20944, 20947 (May 5, 1992).

Section 6.8 of Ordinance 344-1979 specifies that, to obtain a
certificate of fitness, the applicant must demonstrate proof of
qualifications and physical competence, and pass written and practical
tests regarding the ``use, makeup and handling'' of LPG. This falls
within the definition of ``training'' in 49 CFR 172.700(b), as
including the recognition and identification of hazardous materials,
``knowledge of specific requirements * * * applicable to functions
performed by the employee, * * * and knowledge of emergency response
information, self-protection measures and accident prevention methods
and procedures.''

To the extent that the knowledge required for a certificate of
fitness duplicates hazmat training required by the HMR, as NTTC
contends, Nassau County may adopt as local law and enforce the training
requirements in the HMR against all persons who deliver propane within
the County. If Nassau County believes that more should be required than
under the HMR, it may encourage State officials to apply additional
training requirements to drivers who are residents of New York State,
or it may petition RSPA to adopt more specific standards for drivers.
However, Nassau County's requirement for a certificate of fitness in
order to deliver propane within the County is an

[[Page 45288]]

obstacle to accomplishing and carrying out the HMR because that
requirement applies more stringent training requirements to drivers of
motor vehicles.

For this reason, 49 U.S.C. 5125(a)(2) preempts Nassau County's
requirement for a certificate of fitness insofar as that requirement is
applied to a motor vehicle driver who sells or delivers LPG. However,
this requirement is not preempted with respect to persons who sell or
transfer LPG but do not drive the motor vehicle from which (or to
which) the LPG is transferred.

III. Ruling

Federal hazardous material transportation law preempts the
requirement in Section 6.8 of Nassau County, New York Ordinance No.
344-1979 for a certificate of fitness, insofar as that requirement is
applied to a motor vehicle driver who sells or delivers LPG, because
Section 6.8 imposes on drivers of motor vehicles used to deliver LPG
more stringent training requirements than provided in the HMR.

The application and comments submitted in this proceeding do not
contain sufficient information to find that the requirement for a
permit in Sections 6.7(A) and (B), as applied and enforced, creates an
obstacle to accomplishing and carrying out Federal hazardous material
transportation law or the HMR. The record does not support findings
that the requirement for a permit causes an unnecessary delay in the
transportation of hazardous materials; that the permit fee is unfair or
used for purposes other than relating to transporting hazardous
materials; or that the permit sticker is a labeling or marking of
hazardous material.

IV. Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by
this decision may file a petition for reconsideration within 20 days of
service of this decision. Any party to this proceeding may seek review
of RSPA's decision ``in an appropriate district court of the United
States . . . not later than 60 days after the decision becomes final.''
49 U.S.C. 5125(f).

This decision will become RSPA's final decision 20 days after
service if no petition for reconsideration is filed within that time.
The filing of a petition for reconsideration is not a prerequisite to
seeking judicial review of this decision under 49 U.S.C. 5125(f).

If a petition for reconsideration of this decision is filed within
20 days of service, the action by RSPA's Associate Administrator for
Hazardous Materials Safety on the petition for reconsideration will be
RSPA's final decision. 49 CFR 107.211(d).

Issued in Washington, D.C. on August 17, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 98-22745 Filed 8-24-98; 8:45 am]
BILLING CODE 4910-60-P