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

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

[[Page 45284]]

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

[[Page 45285]]

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

[[Page 45286]]

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]

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