California Requirements Applicable to Cargo Tanks Transporting Flammable and Combustible Liquids; Decision on Petition for Reconsideration

PETITIONER: California Highway Patrol (CHP).

STATE LAWS AFFECTED: California Vehicle Code (VC), Division 14.7

(sections 34000-34102), and California Code of Regulations (CCR), Title

13, Chapter 6, Article 3 (sections 1160-1168) and Article 6 (sections

1190-1197).

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material

transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials

Regulations (HMR), 49 CFR parts 171-180.

MODE AFFECTED: Highway.

SUMMARY: RSPA's Associate Administrator for Hazardous Materials Safety

is denying CHP's petition for reconsideration of the determination that

California's requirement for an annual inspection of cargo tanks and

portable tanks used for highway transportation of flammable and

combustible liquids was preempted by the former Hazardous Materials

Transportation Act (HMTA) (since revised, codified and enacted without

substantive change at 49 U.S.C. 5101 et seq.).

This decision constitutes RSPA's final action on the July 27, 1992

application for a preemption determination filed by Nalco Chemical Co.

(Nalco). Any party who submitted comments in Docket No. PDA-6(R)

(including the applicant) may seek judicial review within 60 days of

this decision.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001,

telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

The California Highway Patrol (CHP) administers a design,

registration, and inspection program applicable to cargo tanks and

portable tanks on vehicles that transport flammable and combustible

liquids on highways within California. See VC Div. 14.7 and Sec. 34001.

Excluded from the CHP's Cargo Tank (CT) program are, among others, a

vehicle's own fuel tanks; tanks smaller than 120 gallons (or most tanks

smaller than 500 gallons that meet DOT specifications); empty tanks

(with less than 120 gallons of residue); and intermodal IM 101 and 102

portable tanks when the highway portion of an interstate shipment is

less than 25 miles from an ``ocean port or railroad loading or

unloading terminal.'' VC 34003(a). See also the discussion in

Preemption Determination (PD) No. 4(R), 58 FR 48933, 48934 (Sept. 20,

1993).

In July 1992, Nalco applied for a determination that the HMTA

preempted major portions of California's CT program. Following notice

of Nalco's application in the Federal Register, 57 FR 38081 (Aug. 21,

1992), and the receipt of written comments from all interested parties,

RSPA issued its determination in PD-4(R) that the former HMTA:

(a) Preempted California's requirement for an annual inspection of

cargo tanks and portable tanks used for highway transportation of

flammable and combustible liquids, as that requirement is applied and

enforced, because any wait for the arrival of State inspectors from

another location constitutes an ``unnecessary'' delay;

(b) did not preempt California's requirement for an annual

registration, as applied and enforced, because there is no evidence

that this requirement creates any delays separate from the wait for an

inspection to be conducted;

(c) did not preempt California's statute authorizing design and

construction standards for cargo tanks and portable tanks used to

transport flammable and combustible liquids, because there is no

evidence that California enforces design and construction requirements,

with respect to tanks meeting DOT specifications, that are not

substantively the same as requirements in the HMR; and

(d) preempted the following State marking requirements, when

applied to DOT specification cargo tanks and portable tanks, because

they are not substantively the same as requirements in the HMR: (1)

That a metal identification plate be affixed to any tank for which such

a plate is not required by the HMR (13 CCR 1195); (2) that a ``CT

number'' be marked on the tank or on a metal identification plate on

the tank (13 CCR 1194); and (3) that a certification label be affixed

to the tank and a registration certificate be carried in a waterproof

holder permanently attached to portable tanks (VC 34044 and 13 CCR

1193).

RSPA did not decide whether the former HMTA preempted either: (a)

California's registration fees, since no party contended that the fees

are inequitable or used for purposes other than those related to the

transportation of hazardous materials, or (b) the requirement that the

remote secondary control for internal valves be clearly labeled (13 CCR

1197), in the absence of any evidence that Nalco or any other party

submitting comments is directly affected by this requirement.

RSPA's determination did not address similar California

registration, inspection and certification requirements applicable to

vehicles and tanks used to transport hazardous wastes, but noted that

these requirements are subject to the same Federal preemption

provisions and the general principles discussed in PD-4(R). RSPA also

noted that its determination did not consider or affect State motor

vehicle inspection and registration requirements that apply to all

commercial vehicles.

Within the 20-day time period provided in 49 CFR 107.211(a), CHP

filed a petition for reconsideration of RSPA's decision in PD-4(R). CHP

certified that it had mailed a copy of its petition to Nalco and all

others who had submitted comments, in accordance with 49 CFR

107.211(c). Four parties responded to CHP's petition for

reconsideration: Nalco, National Tank Truck Carriers, Inc. (NTTC),

Chemical Waste Transportation Institute (CWTI), and the 3M Corporation

(3M).

In Part II of the decision in PD-4(R), RSPA set forth the standards

for making determinations of preemption under the former HMTA and the

specific statutory provisions under which non-Federal requirements

governing the transportation of hazardous materials are preempted. 58

FR at 48934-35. On July 5, 1994, President Clinton signed Public Law

103-272 which extensively revised, codified and enacted without

substantive change numerous laws related to transportation. The former

HMTA, 49 App. U.S.C. 1801 et seq., has been repealed and replaced by 49

U.S.C. Chapter 51 (5101 et seq.), ``Transportation of Hazardous

Material,'' except as to ``proceedings that were begun before July 5,

1994.'' Accordingly, the preemption provisions in former 49 App. U.S.C.

1804 and 1811, discussed in Part II of PD-4(R), remain applicable to

RSPA's consideration of this petition for reconsideration. However,

since Congress made no substantive change in [[Page 8801]] passing 49

U.S.C Chapter 51, this decision will cite to the preemption criteria as

presently set forth in 49 U.S.C. 5125.

II. Petition for Reconsideration

CHP's petition seeks reconsideration of the decision in PD-4(R)

that 49 U.S.C. 5125(a) preempts California's requirement for an annual

inspection of cargo tanks and portable tanks used to transport

flammable and combustible liquids. It does not contest RSPA's

determination that 49 U.S.C. 5125(b) preempts certain requirements for

marking these tanks, although CHP states that it ``will petition RSPA

for a waiver of preemption'' as to the requirement for a ``metal

identification plate on a non-spec cargo tank (13 CCR 1195).'' With

respect to the annual inspection requirement, CHP asks for ``correction

of [three alleged] factual errors,'' and it asks three questions for

``written clarification of the application of the preemption

[determination].''

First, CHP contends that there was no ``current substantive

evidence that significant delays were still being experienced.''

According to CHP, the comments by Union Pacific Railroad Co. (UPRR) and

CWTI concerned the separate (but similar) requirements imposed on

transporters of hazardous waste, under California's Hazardous Waste

Vehicle and Container Inspection and Certification Program (HWIC),

rather than the delays currently being experienced under the CT

Program. CHP refers to the availability of temporary registration under

the CT program, which supposedly eliminates the delays experienced in

the HWIC Program. And it reiterates that it ``has more than doubled the

number of inspectors statewide since UPRR's comments were made * * *

and invited Nalco to update [its] experience.''

CHP charges that comments by both Nalco and 3M are ``invalid,'' on

the ground that these comments did not consider changes made to the CT

Program between 1990 and 1993. CHP alleges that the Hazardous Materials

Advisory Council (HMAC) and NTTC did not provide substantial or

substantive evidence of a burden on commerce or an obstacle to

compliance with the Federal hazardous material transportation law and

the HMR. CHP also argues that comments ``about the proliferation of

other states' programs failed to address the addition of 34120 and

34121 VC which authorized reciprocity with CT Programs by other States

and the Federal Government.''

Second, CHP asserts that RSPA has improperly interpreted 49 CFR

177.853(a) to prohibit ``safety related delays, including compliance

with mandatory inspection programs [which] are legitimate reasons for

delay.'' It argues that the intent of this regulation ``was to balance

safe transportation of hazardous materials with the need for their

expeditious delivery,'' and that RSPA's determination ``implies that

delays for any reason (other than as specifically authorized)''--

including bad weather, road hazards, driver rest periods, and

holidays--are ``unnecessary.'' CHP also argues that 177.853(a) should

not apply to any delays after delivery of the tank's contents, since

that is the ``point of `final discharge at destination.'''

Third, CHP states that RSPA also may not clearly understand--and

that HMAC and NTTC failed to investigate or address--California's

Temporary registration process that allows the carrier to simply

forward the registration fees via a telegraphic money order and

carry a copy as temporary cargo tank registration for up to 10 days

(see 13 CCR 1190.1(b)) as proof of registration.

CHP asserts that a carrier's ability to ``obtain a temporary cargo tank

registration for any out-of-state based cargo tank 24 hours a day, 365

days a year'' avoids delays, because the temporary registration allows

the tank to enter the State, be unloaded, and then be presented for

inspection. CHP continues that a 1992 amendment to the inspection

requirement ``allows the carriers to freely move a tank that contains

only residue throughout the State without current registration,'' so

the carrier is subject to citation only if it reloads the tank with a

flammable or combustible liquid after failing to be inspected within 10

days of entering California.

Besides these alleged errors, CHP asks RSPA to answer the following

questions to clarify the ruling in PD-4(R):

1. Given the fact that the HMTUSA allows the State the authority

to require a cargo tank registration program (separate from the

inspection program), can the State require some form of proof of

registration be carried with the packaging (cargo or portable tank)

either directly on the packaging or carried in the vehicle (or

vehicle combination)?

2. Based on the fact that HMTA allows the State to operate a

registration program, can the State require some means of positively

identifying the packaging in order to verify its registration

(keeping in mind that nearly all bulk packagings have some type of

unique identifier)? Please note that non-specification (DOT)

packagings which require no identification are the central issue.

3. Is our understanding of the ruling correct in that the

mandatory inspection and certification is only preempted for tanks

based out of California (i.e., the State is not preempted from

requiring a mandatory inspection of tanks based in California as the

operators of these tanks have adequate opportunity to have the tanks

inspected prior (up to 60 days prior) to the expiration of the

previous registration/certification)?

III. Comments Responding to the Petition for Reconsideration

Three parties submitted comments opposing CHP's petition for

reconsideration: Nalco, NTTC, and CWTI. In addition, 3M stated that it

now uses portable tanks that are no longer covered by the CHP

inspection requirement (although it incurred costs ``in reverting to

drum shipments and back to portable tanks once the amendment became

effective''), and thus was withdrawing its earlier comments.

As it had earlier, Nalco acknowledges ``improvements in

California's registration and inspection processing,'' but contends

that ``delays continue to be encountered, both in this program and in

the immediately parallel program on wastes.'' It asserts that CHP's

``focus is misplaced,'' because the ``primary issue is not the minutes

or hours of delay as they affect a particular tank on a particular day

but, rather, whether the delay is `unnecessary' as that term is used in

the regulations.'' Nalco contends that RSPA has not misinterpreted 49

CFR 177.853(a) because ``[e]xpeditious delivery is a safety issue, not

a commercial one.''

NTTC disagrees that any of the parties had ``confused'' the

requirements of California's HWIC and CT Programs or that there was any

error from an alleged failure to respond to the changes in the CT

Program which CHP implemented between 1990 and 1993. NTTC quotes the

language at 58 FR 48933 stating that PD-4(R) ``does not address'' the

HWIC Program, and it asserts that RSPA properly considered ``the fact

patterns as presented in the original petitions.''

NTTC contends that temporary registration will not prevent delays.

It states that, even if a carrier's headquarters ``telegraphs a money

order to CHP,'' the truck may depart before confirmation of

registration, and ``geography and time zone differences assure that the

driver will not have a copy of the documentation.'' NTTC also presents

situations in which delays would exceed the 10-day period permitted for

inspection, under a temporary registration:

Truck deliveries may be made during weekends or at hours when

inspectors are not available. Inspectors take holidays, they call in

sick or they may be redispatched to more pressing duties. Surely the

state is not asserting that a vehicle ``hang around'' until such

contingencies are resolved?

[[Page 8802]] NTTC also states that the ``reciprocity' provisions''

in the CT program are illusory, because ``CHP failed to give but one

example of another state joined by such provisions.'' According to

NTTC, ``the extension of reciprocity is discretionary. There are no

readily-available criteria upon which a carrier (or even another state)

can rely to determine whether or not an existing program is

`reciprocal' with California.''

CWTI similarly argues that ``reciprocity has not materialized.'' It

asserts that CHP's discussion of ``factual errors'' and ``changes to

the CT program'' miss the point of the decision in PD-4(R): ``To the

extent [that] CHP can demonstrate to RSPA that its CT program no longer

causes `unnecessary' delay, the CHP may begin to apply and enforce its

requirements.'' CWTI contends that CHP has not eliminated unnecessary

delay, even by hiring more inspectors:

The unavailability of inspectors, however, is only part of the

unnecessary delay problem. Delay also results from the advance

notification of hazardous materials shipments which must attend all

inspections in order to arrange for the inspection and routing of

vehicles and bulk packagings to inspection locations, as well as

delays which may result from the logistics of obtaining, completing,

and filing authorized documentation of vehicle/bulk packaging

registration and fees.

CWTI likens delays for bad weather and holidays to ``acts of God,''

and states the ``key point'' to be that ``state program deficiencies

evidenced by a lack of inspectors and/or inspection locations do not

justify delay in the transportation of hazardous materials.'' Citing

the legislative history and findings in the 1990 amendments to the

former HMTA, CWTI argues that unnecessary delay inhibits safety, not

just commerce. And it states that RSPA is the proper agency to balance

what CHP asserts are competing goals of ``safe transportation'' and

``expeditious delivery.''

CWTI initially accepted statements in the petition for

reconsideration that CHP ```routinely find(s) tanks that are not in

compliance with the HMR,''' as short as one day after certification by

a DOT-registered facility, but argued that this simply proves that

``any inspection is as good as the point in time in which it is

conducted,'' and ``roadside inspections are vital to ensuring the safe

transportation of hazardous materials.'' (In supplemental comments

dated November 17, 1993, CWTI disagreed with CHP's statements of

routinely finding tanks in violation of the HMR, based on data in the

Federal Highway Administration's 1992 Annual Report. These supplemental

comments are not necessary for reaching a decision on CHP's petition

for reconsideration.) CWTI asserted that, rather than proceeding with

``unilateral state action,'' CHP should provide more specific data to

support its concern that periodic inspections under DOT's regulations

are inadequate.

CWTI finds CHP's statements concerning the absence of temporary

registration under the HWIC Program is an admission that ``the HWIC

program causes `unnecessary delay.''' It requests that ``RSPA repeat in

as strong of terms as possible its directive that the CHP desist

applying and enforcing the HWIC program in a manner which is

inconsistent with the principles contained in PD-4(R).'' CWTI also

states that RSPA correctly decided that 49 U.S.C. 5125(b) preempts

California's marking requirements, and that CHP should have

``participate[d] in the formulation of federal requirements for the

marking/certification of cargo tanks used for the transportation of

hazardous materials,'' in RSPA's rulemaking Docket No. HM-183. CWTI

notes that RSPA reached no conclusion about the registration fees under

the CT Program, and comments that the requirement that fees be

equitable, in former 49 App. U.S.C. 1811(b) (reworded as ``fair'' in 49

U.S.C. 5125(g)), is generally violated when ``fees remain unapportioned

for carriers operating in interstate commerce.''

Nalco, NTTC and CWTI all challenge CHP's implicit positions, in the

questions, that it would be appropriate to require proof of

registration to ``be transported with the packaging (cargo or portable

tank)'' and ``some means of positively identifying the packaging in

order to verify its registration.'' NTTC states that all tanks have

some means of identification; ``[e]ven non specification cargo tanks

have VIN numbers.'' Nalco agrees, stating that as part of the

registration process, States gather information about the registrant

and its equipment and can ``provide it directly to their inspectors

without having to decorate the interior or exterior of the vehicle for

each jurisdiction for the inspectors' convenience.'' CWTI opposes what

it calls CHP's ``efforts to reassert a linkage between specific

vehicles and registration.'' It alleges the ``burden that would result

if other states insisted on unique numbers and shipping paper

requirements,'' and refers to recommendations of a working group on

uniform forms and procedures for registration and permitting, under 49

U.S.C. 5119. According to CWTI, the working group has recommended State

registration of hazardous materials carriers, not specific vehicles or

packagings.

Nalco and NTTC disagree with CHP's conclusion that an annual

inspection may still be required for cargo tanks and portable tanks

based in California. They consider that the decision in PD-4(R) applies

to all tanks regulated by the HMR, and Nalco comments that, ``in light

of the anticipated rule in Docket No. HM-200,'' the small number of

tanks presently not governed by the HMR ``does not warrant the

confusion that would be caused by a State program addressed only to

these units.''

IV. Discussion

As discussed in PD-4(R), Nalco's original challenge to California's

inspection requirement, in 1990, was accompanied by an affidavit

setting forth specific dates that ``filled incoming tanks'' were held

waiting the arrival of a CHP inspector, ``thereby delaying delivery to

customers.'' 58 FR at 48938. Two parties submitting comments in the

original proceeding (designated IRA-53) provided specific time periods

for CHP's delays in inspecting tanks: Union Pacific cited waits of up

to five days for inspections at its intermodal ramps (which CHP states

referred only to tanks containing hazardous wastes), and CWTI stated

that it had encountered ``delays of two to three days for an

inspection'' of tanks used for hazardous wastes. 58 FR at 48939.

After the application in IRA-53 was returned to Nalco, and Nalco

petitioned for an administrative determination of preemption pursuant

to what is now 49 U.S.C. 5125(d), no party submitted further

information as to the specific periods that cargo tanks and portable

tanks used for flammable and combustible liquids were being delayed.

Rather, Nalco stated that ``improvements and pre-payment options have

speeded the issuance of instructions to the field * * *, but

unnecessary delays are still encountered * * * compounded by

inspector[s'] schedules, vacations and sick leave.'' 48 FR at 48938.

CHP acknowledged that some delays still exist, despite modifications

such as reducing the number of tanks subject to inspection, increasing

the number of inspectors, establishing inspection stations at four

port-of-entry locations, and providing a 10-day temporary registration

that allows a carrier to enter California and deliver its load before

being inspected.

At no time, however, in its prior comments or in its petition for

reconsideration, has CHP contended that it has eliminated situations

where the transportation of a loaded tank must be interrupted and wait

for the arrival [[Page 8803]] of an inspector. Rather CHP acknowledged,

in its opening comments in PDA-6(R), that ``some instances have

resulted in inspections not being performed in as timely a manner as

the CHP or industry would like * * * due to lack of adequate planning

on the part of both the operator and the CHP.'' In its rebuttal

comments, CHP stated that, with the ``current [inspection] staff and

the four POE facilities we can inspect nearly all out-of-state

domiciled cargo tanks without any diversion or delays.'' It contended

that the remaining delays encountered in performing inspections are

reasonable, justified and not ``unnecessary'' based on the number of

violations found--as CHP again contends in its petition for

reconsideration.

RSPA's decision in PD-4(R) did not ignore safety, but rather

followed the prior inconsistency rulings in which RSPA consistently

found that the safe transportation of hazardous materials is advanced

by 49 C.F.R. 177.853(a) which prohibits ``unnecessary'' delays. See the

discussion at 58 FR 48939-41. The argument in CHP's petition for

reconsideration that safety justifies delays does not provide any

answer. Safety has been alleged as the basis of every non-Federal

requirement that has been challenged, and considered by RSPA, since the

former HMTA first provided for the preemption of ``inconsistent'' State

and local requirements.

The only difference cited by CHP to distinguish the CT inspection

program and the HWIC program applicable to carriers of hazardous waste

is the availability of a 10-day temporary registration under the CT

program only. Whether or not the procedures for temporary registration

can eliminate delays, there is no information that they have eliminated

delays. Moreover, NTTC asserts that temporary registration will not

always prevent delays.

The CT and HWIC inspection programs appear to be otherwise similar,

and the inspections under both are conducted by CHP. For that reason,

RSPA must assume that waits experienced by transporters of hazardous

waste (such as UPRR and CWTI) are representative of waits faced by an

interstate carrier of flammable or combustible liquids, when that

carrier is unable to obtain a temporary registration or plan its

arrival to allow for inspection at a POE location.

In addition, CHP's admissions that it has not eliminated situations

where loaded tanks must wait for an inspector to arrive to conduct an

inspection make the specific number of days' wait cited by UPRR and

CWTI unnecessary for RSPA's decision.

The decision in PD-4(R) was a narrow one. As specifically noted

there, RSPA encourages State and local governments to adopt and enforce

the requirements in the HMR through inspections. 58 FR 48940-41. During

fiscal 1994, DOT provided grants in excess of $64 million to all

States, and $3.2 million to California, to carry out inspections under

the Federal Motor Carrier Assistance Program. See generally 49 CFR Part

350 governing grants ``to encourage each State to enforce uniform motor

carrier safety and hazardous materials regulations for both interstate

and intrastate motor carriers and drivers.'' 49 CFR 350.5.

Moreover, RSPA agreed with all parties that the time involved to

conduct a tank inspection was reasonable, and not unnecessary,

including any time waiting one's ``turn'' for an inspector already

present. 58 FR at 48941. But RSPA found that forcing a tank to wait for

the arrival of an inspector from another location was an

``unnecessary'' delay, and because California's CT program was not free

from these kinds of delays it created an obstacle to the accomplishment

and execution of the Federal hazardous material transportation law and

the HMR. California ``may not require an inspection as a condition of

travelling 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. For that reason, RSPA found

that the provision now codified at 49 U.S.C. 5125(a) preempted the

inspection requirement in VC 34060 and 13 CCR 1192, as that requirement

was being applied and enforced.

If and when California eliminates the unreasonable delays in its

inspection program, that requirement will no longer be preempted.

Nothing in CHP's petition for reconsideration, however, provides any

basis for RSPA to change the decision in PD-4(R).

It is not possible to provide complete answers to CHP's three

questions for clarification of the decision in PD-4(R), since

preemption under the ``obstacle'' criterion depends upon the manner in

which a non-Federal requirement is enforced and applied. (See also the

statement in H.R. Rep. 101-444, 101st Cong., 2d Sess. 49, that Congress

did not intend for DOT to be a ``clearing house for obtaining advisory

opinions with respect to legislative or regulatory ideas and notions

prior to enactment.'') However, the following responses can be made:

1. CHP has asked about requirements for ``some proof of

registration * * * directly on the packaging or carried in the

vehicle.'' As specifically discussed in PD-4(R), unless otherwise

authorized by Federal law, any non-Federal requirement for a ``marking

* * * of a packaging or a container represented, marked, certified, or

sold as qualified for use in transporting hazardous material'' is

preempted unless it is ``substantively the same as'' the requirements

in the Federal hazardous material transportation law and the HMR. 49

U.S.C. 5125(b)(1)(E). See 58 FR at 48936-37. 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).

2. CHP has asked about ``some means of positively identifying the

packaging'' and noted that its concern is primarily with non-DOT

specification packagings, since all DOT specification tanks subject to

the CT program have a metal identification plate and, in some

instances, a separate metal certification plate. As discussed in PD-

4(R), any marking on the tank itself is a ``marking * * * of a

packaging or a container represented, marked, certified, or sold as

qualified for use in transporting hazardous material.'' 49 U.S.C.

5125(b)(1)(E); 58 FR 48937. To the extent that non-specification

packagings do not already contain some unique identifying

characteristic and California believes that they must in order to

transport hazardous materials, California may submit a petition for

rulemaking in accordance with 49 CFR part 106.

3. CHP has asked about the application of the decision in PD-4(R)

to ``tanks based in California.'' However, it does not indicate whether

it assumes that these tanks remain completely within California or

travel throughout the United States. Tanks that never leave California

would not experience delays associated with entering the State or being

rerouted around California. See PD-5(R), Massachusetts Requirement for

an Audible Back-up Alarm, etc., 58 FR 62707, 62710 (Nov. 29, 1993). On

the other hand, ``tanks based in California'' which are used in other

States may well experience the same types of delays as ``tanks based

out of California.''

V. Ruling

For the reasons stated above, the CHP petition for reconsideration

is denied. [[Page 8804]] This decision incorporates and reaffirms the

determination set forth at 58 FR 48933 that the provisions now codified

at 49 U.S.C. 5125(a) and (b) preempt:

A. California's requirement in VC 34060 and 13 CCR 1192 for an

annual inspection of cargo tanks and portable tanks used for highway

transportation of flammable and combustible liquids, as that

requirement is applied and enforced, because any wait for the arrival

of State inspectors from another location constitutes an

``unnecessary'' delay.

B. VC 34042(d) and 34061(c), which provide that the failure to make

a cargo tank or portable tank available for inspection is a ground for

denial, suspension or revocation of registration, and 13 CCR 1193,

requiring that cargo tanks and portable tanks transporting flammable

and combustible liquids pass an inspection to be certified.

C. The following requirements to mark cargo tanks and portable

tanks transporting flammable and combustible liquids, because they are

not substantively the same as requirements in the HMR: (1) 13 CCR 1195,

that a metal identification plate be affixed to any tank for which such

a plate is not required by the HMR; (2) 13 CCR 1194, that a ``CT

number'' be marked on the tank or on a metal identification plate; and

(3) VC 34044, 34101 and 13 CCR 1193, that a certification label be

affixed to the tank and that a registration certificate be carried in a

waterproof holder permanently attached to a portable tank, together

with the provisions for removal of the certification label in VC 34062-

63.

VI. Final Agency Action

In accordance with 49 CFR 107.211(d), this decision constitutes

RSPA's final agency action on Nalco's application for a determination

of preemption as to the above-specified California requirements

applicable to cargo tanks transporting flammable and combustible

liquids. Any party to this proceeding ``may bring a civil action in an

appropriate district court of the United States for judicial review of

[this] decision * * * not later than 60 days after the decision becomes

final.'' 49 U.S.C. 5125(f).

Issued in Washington, D.C. on February 7, 1995.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 95-3591 Filed 2-14-95; 8:45 am]

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