[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39567-39571]
[FR Doc No: 2012-16240]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2009-0017 (PD-34(R))]

Common Law Tort Claims Concerning Design and Marking of DOT
Specification 39 Compressed Gas Cylinders

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Notice of administrative determination of preemption.

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    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.
    Modes Affected: All transportation modes.
SUMMARY: Federal hazardous material transportation law preempts a
private cause of action which seeks to create or establish a State
common law requirement applicable to the design, manufacture, or
marking of a packaging, container, or packaging component that is
represented, marked, certified, or sold as qualified for use in
transporting hazardous material in commerce when that State common law
requirement would not be substantively the same as the requirements in
the HMR. Federal hazardous material transportation law does not preempt
a tort claim that a packaging, container, or packaging component that
is represented, marked, certified, or sold as qualified for use in
transporting hazardous material failed to meet the design,
manufacturing, or marking requirements in the HMR or that a person who
offered a hazardous material for transportation in commerce or
transported a hazardous material in commerce failed to comply with
applicable requirements in the HMR.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE., Washington,
DC 20590-0001 (Tel. No.<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I. Application

    AMTROL, Inc. has applied to PHMSA for an administrative
determination whether the Federal hazardous

materials transportation law \1\ preempts State common law tort claims
that the manufacturer of a DOT specification 39 compressed gas cylinder
should have designed the cylinder to resist rusting and/or marked or
labeled the cylinder with warnings of the potential hazard of rusting
over time.
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    \1\ The Federal hazardous material transportation law currently
codified at 49 U.S.C. 5101 et seq. is often referred to by the
acronym ``HMTA'' for the Hazardous Materials Transportation Act,
Public Law 93-633, 88 Stat. 2156, enacted January 3, 1975. Prior to
codification in 1994 (Pub. L. 103-272, 108 Stat. 745 (July 5,
1994)), the HMTA was set forth at 49 App. U.S.C.A. 1801 et seq.
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    A DOT specification 39 cylinder is a non-reusable (non-refillable)
seamless, welded, or brazed cylinder made of steel or aluminum (having
certain specified characteristics), with size limitations (depending on
the service pressure of the cylinder) and requirements for
manufacturing, minimum thickness of the cylinder wall, openings and
attachments on the head of the cylinder, and pressure and flattening
testing. 49 CFR 178.65. Subsection 178.65(i) provides that the cylinder
must be marked with certain information \2\ including the specification
number, service and test pressure, date of manufacture and a
registration number identifying the manufacturer, and:
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    \2\ In this determination, the word ``marking'' is used to refer
to the information required to be marked on a DOT specification 39
cylinder under 49 CFR 178.65(i)--to distinguish this marking from a
hazard class warning label (e.g., NONFLAMMABLE GAS) and a product
sticker or label that may contain the proper shipping name and UN
identification number required to be marked on the filled cylinder
by a person who offers the filled cylinder for transportation in
commerce. See 49 CFR 172.301 et seq. and 172.400 et seq.

--``NRC'' for ``non-reusable container,'' and
--the statement that ``Federal law forbids transportation if
refilled'' plus a statement of the maximum civil and criminal
penalties applicable at the date of manufacture.

    On January 30, 2009, PHMSA published a notice in the Federal
Register inviting interested persons to comment on AMTROL's
application. 74 FR 5723. As discussed in this notice, a products
liability lawsuit had been brought against AMTROL and other defendants
by the survivors and next of kin of Kenneth Elder (the ``Elders'') who
died on January 24, 2003, when a rusted DOT specification 39 cylinder
ruptured after Mr. Elder placed the cylinder in 179 degree water.\3\
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    \3\ The Elders' claims against AMTROL are presently pending as a
claim in bankruptcy in the U.S. Court of Appeals for the Third
Circuit which has issued a stay pending PHMSA's determination. In re
Amtrol Holdings, Inc. v. Kenneth Elder, No. 10-3273.
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    In response to AMTROL's application and the January 30, 2009
Federal Register notice, comments were submitted by AMTROL, the Elders,
Thomas Wilson (a retired hazmat shipper who occasionally acts as a
consultant), and the Gases and Welding Distributors Association, Inc.
(GAWDA).\4\
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    \4\ GAWDA describes itself as ``a national trade association
representing the interests of some 600 distributors of compressed
and cryogenic gases and related supplies and equipment in the United
States and Canada,'' some of which ``fill, store, handle and
transport gases in DOT-39 compressed gas cylinders.''
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II. Federal Preemption

    A United States Court of Appeals has found that uniformity was the
``linchpin'' in the design of the Federal laws governing the
transportation of hazardous materials. Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991). Section 5125 of Title 49
U.S.C. contains express preemption provisions. As amended by Section
1711(b) of the Homeland Security Act of 2002 (Pub. L. 107-296, 116
Stat. 2320),\5\ Sec.  5125(a) provides that a requirement of a State,
political subdivision of a State, or Indian tribe is preempted--unless
the non-Federal requirement is authorized by another Federal law or DOT
grants a waiver of preemption under Sec.  5125(e)--if
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    \5\ Section 1711 of the Homeland Security Act of 2002 added the
words ``including security'' to the applicability provisions in 49
U.S.C. 5103(b)(1) and the preemption provisions in Sec.  5125(a) and
(b)(1). Otherwise, the 1994 codification of Title 49 and subsequent
editorial revisions and technical corrections have not made any
substantive changes to these provisions since amendment of the
original HMTA in 1990. See Sec. 7122(a) of the Hazardous Materials
Transportation Safety and Security Reauthorization Act of 2005,
which is Title VII of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L.
109-59, 119 Stat. 1891 (Aug. 10, 2005), and Public Law 110-244 Sec.
302(b), 122 Stat. 1618 (June 6, 2008).

    (1) Complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a
regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security is not possible; or
    (2) The requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland Security.\6\
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    \6\ These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria which 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 further provides that a non-
Federal requirement concerning any of the following subjects is
preempted--unless authorized by another Federal law or DOT grants a
waiver of preemption--when the non-Federal requirement is not
``substantively the same as'' a provision of Federal hazardous material
transportation law, a regulation prescribed under that law, or a
hazardous materials security regulation or directive issued by the
Department of Homeland Security: \7\
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    \7\ 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). Additional standards apply to
preemption of non-Federal requirements on highway routes over which
hazardous materials may or may not be transported and fees related
to transporting hazardous material. See 49 U.S.C. 5125(c) and (f).

    (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 designing, manufacturing, fabricating, inspecting,
marking, maintaining, reconditioning, repairing, or testing a
package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material.

    The Supreme Court has found ``that common-law causes of action for
negligence and strict liability do impose `requirement[s]' '' that may
be subject to preemption by Federal laws. Riegel v. Medtronic, 552 U.S.
312, 323, 128 S.Ct. 999, 1007 (2008). The Supreme Court has also
specifically recognized the authority in 49 U.S.C. 5125 for DOT ``to
decide whether a state or local statute that conflicts with the
regulation of hazardous [materials] transportation is pre-empted.''
Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1201 n.9 (2009).
    Under 49 U.S.C. 5125(d)(1), any person (including a State,
political subdivision of a State, or Indian tribe) directly affected by
a requirement of a State, political subdivision or tribe may apply to
the Secretary of Transportation for a determination whether the
requirement is preempted. The Secretary of Transportation has delegated
authority to PHMSA to make determinations of preemption, except for
those concerning highway routing (which have been delegated to the
Federal Motor Carrier Safety Administration). 49 CFR 1.53(b).

    Section 5125(d)(1) requires notice of an application for a
preemption determination to be published in the Federal Register.
Following the receipt and consideration of written comments, PHMSA
publishes its determination in the Federal Register. See 49 CFR
107.209(c).
    Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution, or statutes other than the Federal
hazardous material transportation law unless it is necessary to do so
in order to determine whether a requirement is authorized by another
Federal law, or whether a fee is ``fair'' within the meaning of 49
U.S.C. 5125(f)(1). A State, local or Indian tribe requirement is not
authorized by another Federal law merely because it is not preempted by
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above,
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), PHMSA
is guided by the principles and policies set forth in Executive Order
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693
(May 22, 2009)). Section 4(a) of that Executive Order authorizes
preemption of State laws only when a statute contains an express
preemption provision, there is other clear evidence Congress intended
to preempt State law, or the exercise of State authority directly
conflicts with the exercise of Federal authority. The President's May
20, 2009 memorandum sets forth the policy ``that preemption of State
law by executive departments and agencies should be undertaken only
with full consideration of the legitimate prerogatives of the States
and with a sufficient legal basis for preemption.'' Section 5125
contains express preemption provisions, which PHMSA has implemented
through its regulations and which PHMSA applies in making
administrative preemption determinations.

III. Discussion

A. Summary of Comments

    AMTROL asserts that the Elders' common law tort claims are
preempted because they could create design, manufacturing, and marking
and labeling requirements for DOT specification cylinders that are not
substantively the same as the requirements in 49 CFR 178.65. In its
original application, it stated that ``[a]pplication of the state court
requirement would undercut'' the ``need for national uniformity'' in
requirements for the packaging of hazardous materials, as discussed in
PHMSA's determinations in Inconsistency Rulings Nos. 7-15, 49 FR 36632,
36633 (Nov. 22, 1984). AMTROL also stated that, ``as presented by the
[Elders'] common law claims, the only issue has to do with requirements
for labeling and design of a specification 39 cylinder'' which ``are
not `substantively the same' as the requirements'' in the HMR and,
``[c]onsequently, such `requirements' are preempted.''
    The Elders frame the issue in terms of whether the design,
manufacturing, and marking requirements for a DOT specification 39
cylinder apply to a cylinder that was being ``used.'' The Elders
acknowledge ``that the cylinder in question, as designed and
manufactured, complies with all of the specifications set forth in 49
CFR 178.65 * * * and complies with all the labels and warnings required
by the DOT specification.'' However, they assert that ``warnings should
be utilized to protect the end user,'' because ``the manufacturer knew
or should have known that the cylinders could rust.'' \8\
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    \8\ The Elders provided three samples of ``warnings utilized in
the past by manufacturers [that] state: `Overheating, pressurizing,
or rusting can cause cylinder to burst, resulting in serious
personal injury or death.' ''
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    The Elders stated that the technician was not using the cylinder in
a transportation mode; he was simply using the cylinder as an end-user
on the job after its journey had ended.'' Accordingly, they assert that
``a State common law requirement that the products being used on the
job be safe for their intended use does not interfere with the DOT
regulation. The state common law does not seek to impose its
requirement where the cylinder in question clearly, at the time of its
manufacture and transportation, complied with the DOT specifications.''
\9\
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    \9\ The Elders also cited and quoted from cases which they
contend ``are applicable'' or ``nearly on all fours with the present
case.'' However, some of these cases appear to have involved an
injury from a hazardous material that was not packaged or handled in
complete compliance with requirements in the HMR. In other cases,
the hazardous material was a consumer item purchased for personal
use and subject to regulations of the Consumer Product Safety
Commission.
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    Mr. Wilson stated that ``the common law tort claim appears to be
about design and labeling of the compressed gas cylinder as it relates
to consumer use--not as it relates to use of the cylinder in
transporting hazardous materials in commerce.'' However, he also noted
``that end-users may re-transport hazmat during their daily routine,''
acknowledging implicitly that the HMR applied to Mr. Elder's
transportation of the cylinder from his shop to his customer's
location.
    According to GAWDA, the critical inquiry is ``whether Congress
intended to preempt certain specific types of claims,'' and an
``[a]nalysis of this question must begin, as the Supreme Court has
stated, with determining Congressional intent'' (citing Altria Group,
Inc. v. Good, 129 S.Ct. 398, 543 (2008)). It rejected the Elders'
position that State requirements covering ``end use'' are not preempted
by 49 U.S.C. 5125 and stated:

    Clearly, it is immaterial whether the cylinder in question was
at its final destination or how long it had been there, if it was
marked indicating it was a DOT-39 cylinder; it was by definition
subject to DOT regulation. Therefore, any state requirements of
additional manufacturing specifications or packaging warnings must
affect the ``transportation'' of the cylinder and are, therefore,
preempted by HMTA.

B. Analysis

    Federal hazardous material transportation law explicitly provides
that the HMR apply to the design, manufacture, and marking of
packagings (such as cylinders) that are ``represented, marked,
certified, or sold as qualified for use in transporting hazardous
material in commerce.'' 49 U.S.C. 5103(b)(1)(A)(iii), (b)(1)(E). In its
October 30, 2003 final rule, on the ``Applicability of the Hazardous
Materials Regulations to Loading, Unloading, and Storage,'' PHMSA
explained that ``[p]ackaging integrity is critical to safe
transportation of hazardous materials, and

uniformity of packaging requirements assures the safe and efficient
movement of hazardous materials across state lines and international
boundaries. Thus, consistent with the preemption provisions of
Federal hazmat law, the Secretary's regulatory jurisdiction in this
area must preempt state and local law.

68 FR 61906, 61908. PHMSA continued by explaining that ``because a
packaging that is used for storage one day may be used for
transportation the next, it is critical to transportation safety that
packagings represented as meeting DOT or UN specifications in fact do
so.'' Id. Accordingly, ``[i]f a packaging shows evidence that its
effectiveness as a container may be substantially reduced or if the
packaging has been subjected to conditions or operating practices that
could reduce its effectiveness, it must be inspected and repaired, in
accordance with applicable requirements, before it

can be filled and offered for transportation. Id.\10\
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    \10\ See, e.g., 49 CFR 173.301(a)(2): ``A cylinder that has a
crack or leak, is bulged, has a defective valve or a leaking or
defective pressure relief device, or bears evidence of physical
abuse, fire or heat damage, or detrimental rusting or corrosion, may
not be filled and offered for transportation.''
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    In this final rule, PHMSA relocated to 49 CFR 171.2(g) and revised
without making any substantive change to the wording of former Sec.
171.2(c) (Oct. 1, 2003 ed.) to read:

    No person may represent, mark, certify, sell, or offer a
packaging or container as meeting the requirements of this
subchapter governing its use in the transportation of a hazardous
material in commerce unless the packaging or container is
manufactured, fabricated, marked, maintained, reconditioned,
repaired, and retested in accordance with the applicable
requirements of this subchapter * * * The requirements of this
paragraph apply whether or not the packaging or container is used or
to be used for the transportation of a hazardous material.

    These provisions in the HMR and the ``substantively the same as''
preemption standard added to the law in 1990 carry out the finding of
the House of Representatives Committee on Energy and Commerce that
there is ``a compelling need for standardized requirements relating to
certain areas of the transportation of hazardous materials. Conflicting
Federal, State and local requirements pose potentially serious threats
to the safe transportation of hazardous materials.'' H. Rept. 101-444,
part 1, pp 33-34 (Apr. 3, 1990). In particular, ``[u]niform
requirements for designing, manufacturing, and testing such containers
and packages will enhance the safe transportation of hazardous
materials by allowing for ease of identification, familiarity with
characteristics of packages and containers and consistency in systems
designed to handle such hazardous materials.'' Id. at 35.
    It is not necessary to determine whether the DOT specification 39
cylinder was in ``transportation'' when it failed, because the HMR
applied to AMTROL when it designed, manufactured, and marked the
cylinder ``as qualified for use in transporting hazardous material in
commerce.'' 49 U.S.C. 5103(b)(1)(A)(iii). The Elders' contention that
the design, manufacture, and marking requirements in 49 CFR 178.65 do
not ``cover [Mr. Elder's] use of the cylinder'' is beside the point, as
is its position that the ``use'' to which the cylinder might be put is
``outside the purview'' of that section of the HMR. Rather, the
``substantively the same as'' preemption provision in 49 U.S.C.
5125(b)(1)(E) must govern the ``adequacy of the cylinder'' at all times
that it is ``represented, marked, certified, or sold as qualified for
use in transporting hazardous material in commerce,'' and not just the
period in time ``when it was used to transport hazardous material,'' as
the Elders contend.
    The U.S. Court of Appeals for the Third Circuit reached the same
conclusion in Roth v. Norfalco LLC, 651 F.3d 367, 379-80 (2011). In
this case, the Court affirmed a summary judgment in favor of the
manufacturer of a rail tank car from which sulfuric acid had sprayed
when the tank car was being unloaded by an employee of the consignee of
the shipment and stated:

    Here, the statute and its applicability could not be more clear.
Roth seeks to impose a tank car design requirement. Section
5125(b)(1) expressly preempts any common law requirement ``about''
the design of a ``package, container, or packaging component * * *
qualified for use in transporting hazardous materials in commerce.''
* * * It is irrelevant what Roth was doing at the precise moment of
his injury * * * The tank car is, at all times, a container
qualified for use in transporting hazardous materials. The proposed
design requirement is expressly preempted.

    It should be noted that the preemption provision in 49 U.S.C.
5125(b)(1)(E) would not insulate a person who improperly, and in
violation of the HMR, offers or transports a hazardous material in a
packaging ``that is represented, marked, certified, or sold as
qualified for use in transporting hazardous material in commerce.'' Nor
would there be preemption of a common law tort action for damages when
the packaging does not, in fact, meet the applicable design and
manufacturing specification in the HMR.\11\
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    \11\ Moreover, the Consumer Product Safety Commission (CPSC) has
the authority to require ``that a consumer product be marked with or
accompanied by clear and adequate warnings or instructions, or
requirements respecting the form of warnings or instructions.'' 15
U.S.C. 2056(a).
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    Under the plain language of the Federal hazardous material
transportation law, requirements in the HMR govern the design,
manufacture, and marking of ``a package, container, or packaging
component that is represented, marked, certified, or sold as qualified
for use in transporting hazardous material in commerce.'' 49 U.S.C.
5103(b)(1)(A)(iii), 49 CFR 171.1(a). Any State requirement, including a
State's common law, on the ``designing, manufacturing, [or] marking * *
* a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material in commerce'' is preempted unless it is
``substantively the same as'' the requirements in the HMR. 49 U.S.C.
5125(b)(1)(E). The Elders have not pointed to, and PHMSA is not aware
of, any other Federal law that would authorize the common law tort
claims asserted by the Elders that the manufacturer of a DOT
specification 39 compressed gas cylinder should have designed the
cylinder (or any component thereof) in a different manner than--or
marked or labeled the cylinder with any information beyond that
required by--49 CFR 178.65.

IV. Ruling

    Federal hazardous material transportation law preempts a private
cause of action which seeks to create or establish a State common law
requirement applicable to the design, manufacture, or marking of a
packaging, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material in commerce when that State common law requirement
would not be substantively the same as the requirements in the HMR.
Federal hazardous material transportation law does not preempt tort
claims that the packaging or packaging component failed to meet the
design, manufacturing, or marking requirements in the HMR or that a
person who offered a hazardous material for transportation in commerce
or transported a hazardous material in commerce failed to comply with
applicable requirements in the HMR.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this
decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. A petition for
judicial review of a final preemption determination must be filed in
the United States Court of Appeals for the District of Columbia or in
the Court of Appeals for the United States for the circuit in which the
petitioner resides or has its principal place of business, within 60
days after the determination becomes final. 49 U.S.C. 5127(a).
    This decision will become PHMSA's final decision 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5127(a).

    If a petition for reconsideration is filed within 20 days of
publication in the Federal Register, the action by PHMSA's Chief
Counsel on the petition for reconsideration will be PHMSA's final
action. 49 CFR 107.211(d).

    Issued in Washington, DC, on June 26, 2012.
Vanessa L. Allen Sutherland,
Chief Counsel.
[FR Doc. 2012-16240 Filed 7-2-12; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register: February 10, 2009 (Volume 74, Number 26)]
[Notices]
[Page 6621-6622]
[DOCID:fr10fe09-59]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL09-31-000]

Notice of Filing

February 3, 2009.
    Sun Edison LLC. Take notice that on February 2, 2009, Sun Edison
LLC, pursuant to 18 CFR 385.207(a), filed a Petition for Declaratory
Order seeking confirmation from the Commission that certain of its
subsidiaries' electricity sales to end use customers do not constitute
the sale or transmission of electric energy at wholesale in interstate
commerce for purposes of the Federal Power Act and regulations
promulgated thereunder, nor jurisdictional rates for purposes of the
Public Utility Holding Company Act of 2005 and regulations promulgated
thereunder.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://
www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.

    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on March 4, 2009.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-2688 Filed 2-9-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: February 27, 2008 (Volume 73, Number 39)]
[Notices]
[Page 10458-10459]
[DOCID:fr27fe08-66]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[USCG-2008-0081]

Information Collection Request to Office of Management and
Budget; OMB; Control Number: 1625-0077

AGENCY: Coast Guard, DHS.

ACTION: Sixty-day notice requesting comments.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995, the
U.S. Coast Guard intends to submit an Information Collection Request
(ICR) and Analysis to the Office of Management and Budget (OMB)
requesting an approval for the following collection of information:
1625-0077, Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
Before submitting this ICR to OMB, the Coast Guard is inviting comments
as described below.

DATES: Comments must reach the Coast Guard on or before April 28, 2008.

ADDRESSES: To prevent duplicate submissions to the docket [USCG-2008-
0081], please submit them by only one of the following means:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (DMF) (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand deliver between the hours of 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. The telephone number is 202-
366-9329.
    (4) Fax:<PHONE_NUMBER>.
    The DMF maintains the public docket for this notice. Comments and
material received from the public, as well as documents mentioned in
this notice as being available in the docket, will become part of this
docket and will be available for inspection or copying at room W12-140
on the West Building Ground Floor, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also find this docket on the Internet
at http://www.regulations.gov.
    A copy of the complete ICR is available through this docket on the
Internet at http://www.regulations.gov. Additionally, copies are
available from Commandant (CG-611), U.S. Coast Guard Headquarters,
(Attn: Mr. Arthur Requina), 2100 2nd Street, SW., Washington, DC 20593-
0001. The telephone number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Arthur Requina, Office of
Information Management, telephone<PHONE_NUMBER>, or fax<PHONE_NUMBER>,
for questions on these documents. Contact Ms. Renee V. Wright, Program
Manager, Docket Operations,<PHONE_NUMBER>, for questions on the docket.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to respond to this request by submitting comments
and related materials. We will post all comments received, without
change, to http://www.regulations.gov. They will include any personal
information you provide. We have an agreement with DOT to use their
DMF. Please see the paragraph on DOT's ``Privacy Act Policy'' below.
    Submitting comments: If you submit a comment, please include the
docket number [USCG-2008-0081], indicate the specific section of the
document to which each comment applies, providing a reason for each
comment. We recommend you include your name, mailing address, an e-mail
address, or other contact information in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the DMF at the address under ADDRESSES; but please
submit them by only one means. If you submit them by mail or delivery,
submit them in an unbound format, no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic filing. If you submit them by mail
and would like to know that they reached the Facility, please enclose a
stamped, self-addressed postcard or envelope. We will consider all
comments and material received during the comment period. We may change
the documents supporting this collection of information or even the
underlying requirements in view of them.
    Viewing comments and documents: Go to http://www.regulations.gov to
view documents mentioned in this notice as being available in the
docket. Enter the docket number [USCG-2008-0081] in the Search box, and
click, ``Go>>''. You may also visit the DMF in room W12-140 on the West
Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
    Privacy Act: Anyone can search the electronic form of all comments
received in dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review the Privacy
Act Statement of DOT in the Federal Register published on April 11,
2000 (65 FR 19477), or by visiting http://DocketsInfo.dot.gov.

Information Collection Request

    Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
    OMB Control Number: 1625-0077.
    Summary: This information collection is associated with the
maritime security requirements mandated by the Maritime Transportation
Security Act (MTSA) of 2002. Security assessments, security plans, and
other security-related requirements are found in Title 33 CFR chapter
I, subchapter H, and 33 CFR parts 120 and 128.
    Need: This information is needed to determine if vessels and
facilities are in compliance with certain security standards.
    Forms: CG-6025 and CG-6025A.
    Respondents: Vessel, facility owners, and operators.
    Frequency: On occasion.
    Burden Estimate: The estimated burden has decreased from 1,883,457
hours to 1,278,068 hours a year.

    Dated: February 20, 2008.
D.T. Glenn,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Command,
Control, Communications, Computers and Information Technology.
[FR Doc. E8-3717 Filed 2-26-08; 8:45 am]

BILLING CODE 4910-15-P


[Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
[Notices]
[Pages 77555-77557]
[FR Doc No: 2014-30118]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73874; File No. SR-BYX-2014-039]

Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to Rules
11.9(a)(2) and 11.18(e) of BATS Y-Exchange, Inc.

December 18, 2014.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on December 10, 2014, BATS Y-Exchange, Inc. (the ``Exchange'' or
``BYX'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange filed a proposal to amend Rule 11.9(a)(2), which
describes BATS market orders, and Rule 11.18(e), which describes the
Exchange's implementation of the Limit Up-Limit Down Plan, as defined
below.
    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com/, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 11.9(a)(2), which describes
BATS market orders, and Rule 11.18(e), which describes the Exchange's
implementation of the Limit Up-Limit Down Plan, as defined below. The
proposed change to the operation of BATS market orders is based on
existing behavior of Market Orders available on EDGA Exchange, Inc.
(``EDGA'') and EDGX Exchange, Inc. (``EDGX'').\3\
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    \3\ See EDGA Rule 11.8(a)(4) and EDGX Rule 11.8(a)(4).
---------------------------------------------------------------------------

    Earlier this year, the Exchange and its affiliate, BATS Exchange,
Inc. (``BZX''), received approval to effect a merger (the ``Merger'')
of the Exchange's parent company, BATS Global Markets, Inc., with
Direct Edge Holdings LLC, the indirect parent of EDGX and EDGA
(together with BZX, BYX and EDGX, the ``BGM Affiliated Exchanges'').\4\
In the context of the Merger, the BGM Affiliated Exchanges are working
to align certain system functionality, retaining only intended
differences between the BGM Affiliated Exchanges. Thus, the proposal
set forth below is intended to add certain system functionality
currently offered by EDGA and EDGX in order to provide a consistent
technology offering for users of the BGM Affiliated Exchanges.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 71375 (January 23,
2014), 79 FR 4771 (January 29, 2014) (SR-BATS-2013-059; SR-BYX-2013-
039).
---------------------------------------------------------------------------

    Currently, BATS market orders can be executed on the Exchange or
routed to other destinations but cannot be posted to the BATS Book. The
proposed modification to the operation of a BATS Market Order would
allow such orders to post to the BATS Book under certain limited
circumstances to the extent such BATS Market Order is designated with a
time-in-force of Day. Specifically, as proposed, a BATS market order
that is not eligible for routing (i.e., BATS Only) and contains a time-
in-force of Day will be cancelled if, when reaching the Exchange, it
cannot be executed on the System in accordance with Rule 11.13(a)(1)
unless the reason that such BATS market order cannot be executed is
because it is entered into the System and the NBO (NBB) is greater
(less) than the Upper (Lower) Price Band, as such term is defined in
the Plan to Address Extraordinary Market Volatility Pursuant to Rule
608 of Regulation NMS under the Act (the ``Limit Up-Limit Down Plan''),
in which case such order will be posted by the System to the BATS Book
and priced at the Upper (Lower) Price Band, and re-priced as set forth
in Rule 11.18(e)(5)(B), which the Exchange proposes to amend as
described below. Similarly, a BATS market order to sell with a time-in-
force of Day that is marked short that cannot be executed because of
the existence of a Short Sale Circuit Breaker pursuant to Regulation
SHO will be posted by the System to the BATS Book subject to the price
sliding process as set forth in Rule 11.9(g).
    The Exchange also proposes to modify Rule 11.18(e)(5)(A), which
describes the handling of BATS market orders and other orders that are
not currently posted to the Exchange's order book when not executable
pursuant to the Limit Up-Limit Down Plan. The Exchange proposes to make
clear that a BATS market order that cannot be executed within the
applicable Price Bands will be cancelled if it contains a time-in-force
other than Day but if it maintains a time-in-force of Day that such an
order will be posted and displayed at the applicable Price Band and re-
priced to remain at such Price Band. Specifically, the Exchange
proposes to state that a BATS market order to buy (sell) with a time-
in-force of Day that is posted to the BATS Book and displayed at the
Upper (Lower) Price Band will be re-priced and displayed at the Upper
(Lower) Price Band if Price Bands move such that the price of the
resting market order to buy (sell) would be above (below) the Upper
(Lower) Price Band or if the Price Bands move such that the order is no
longer posted and displayed at the most aggressive permissible price.
The Exchange further proposes that the System shall re-price such
displayed interest to the most aggressive permissible price until the
order is executed in its entirety or cancelled.
    The Exchange proposes to post to the BATS Book all BATS market
orders with a time-in-force of Day in these circumstances (i.e., when
an execution would otherwise occur but cannot due to the application of
Price Bands pursuant to the Limit Up-Limit Down Plan or due to a
Regulation SHO Short Sale Circuit Breaker), because the sender of a
market order typically expects an execution when such order is sent. In
these circumstances although an execution could not occur, the Exchange
believes that Users would

prefer to have their orders posted to the Exchange's book in compliance
with the Limit Up-Limit Down Plan and Regulation SHO to potentially
receive a later execution.
    A BATS market order will default to a time-in-force of Day unless
otherwise specified by a User, however, Users that do not want their
orders posted to the BATS Book in these circumstances can choose a
different time-in-force, in which case their order will be cancelled
back in such circumstances. A BATS market order that is not eligible
for routing with a time-in-force other than Day will be cancelled if,
when reaching the Exchange, it cannot be executed on the System in
accordance with Rule 11.13(a)(1). Further, the Exchange proposes to
make clear that BATS market orders that are designated as BATS Post
Only are rejected.
2. Statutory Basis
    The Exchange believes that the proposed rule changes are consistent
with section 6(b) of the Act \5\ and further the objectives of section
6(b)(5) of the Act \6\ because they are designed to promote just and
equitable principles of trade, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, to
foster cooperation and coordination with persons engaged in
facilitating transactions in securities, and, in general, to protect
investors and the public interest.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The proposed rule change adds certain system functionality
currently offered by EDGA and EDGX in order to provide a consistent
technology offering across the BGM Affiliated Exchanges. A consistent
technology offering, in turn, will simplify the technology
implementation, changes and maintenance by Users of the Exchange that
are also participants on BZX, EDGA and/or EDGX. The proposed rule
changes would also provide Users with access to functionality that may
result in the execution of such orders when they would otherwise be
cancelled and will provide additional flexibility as well as increased
functionality to the Exchange's System and its Users. Therefore, the
Exchange believes that the proposed change removes impediments to and
perfects the mechanism of a free and open market and a national market
system.
    As explained elsewhere in this proposal, the proposed operation of
BATS Market Orders with a time-in-force of Day is intended to allow
such orders to post to the BATS Book, rather than cancel back to the
User unexecuted, when an execution would have occurred but did not
because of the application of Limit Up-Limit Down Price Bands or a
Regulation SHO Short Sale Circuit Breaker. The Exchange believes that
Users in such circumstances would prefer to have their orders posted to
the BATS Book in compliance with the Limit Up-Limit Down Plan and
Regulation SHO, to potentially receive a later execution. Similarly,
the Exchange believes that it is reasonable and consistent with the Act
to continue to re-price and display BATS market orders at their most
aggressive permissible price because this functionality will be more
likely to result in an execution of such order and is consistent with
the overall intent of a BATS market order, which is to receive an
execution not bounded by price but at the going price for the security.
Specifically, the Exchange believes that its proposed handling of BATS
market orders in this way is consistent with the Act because it is
designed to remove impediments to and perfect the mechanism of a free
and open market and a national market system. Lastly, the Exchange does
not believe that this will permit unfair discrimination among
customers, brokers, or dealers because it will be available to all
Users and will be applied as the default for BATS market orders. The
Exchange notes that Users that do not want to have their orders posted
to the BATS Book in such circumstances can elect a different time-in-
force.
B. Self-Regulatory Organization's Statement on Burden on Competition
    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The Exchange
does not believe that the proposed rule change raises any competitive
issues, as it will simply allow certain orders that would otherwise be
cancelled to post to the BATS Book. In addition, the Exchange believes
the proposed rule change will benefit Exchange participants in that it
is one of several changes necessary to achieve a consistent technology
offering by the BGM Affiliated Exchanges.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange has neither solicited nor received written comments on
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has filed the proposed rule change pursuant to section
19(b)(3)(A)(iii) of the Act \7\ and Rule 19b-4(f)(6) thereunder.\8\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) thereunder.\9\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \8\ 17 CFR 240.19b-4(f)(6).
    \9\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written
notice of its intent to file the proposed rule change, along with a
brief description and the text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \10\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has asked the Commission to waive the 30-day operative delay so that
the proposal may become operative immediately upon filing, noting that
a waiver of the operative delay will allow the Exchange to continue to
strive towards a complete technology integration of the BGM Affiliated
Exchanges, with gradual roll-outs of new functionality to ensure
stability of the System. The Exchange also notes that waiver of the
operative delay will allow orders that would otherwise be cancelled to
post to the BATS Book for potential later execution. The Commission
believes that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest. Therefore, the
Commission hereby waives the operative delay and designates the
proposed rule change operative upon filing.\12\
---------------------------------------------------------------------------

    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the

Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings under section
19(b)(2)(B) \13\ of the Act to determine whether the proposed rule
change should be approved or disapproved.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-BYX-2014-039 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-BYX-2014-039. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room at 100 F Street NE.,
Washington, DC 20549-1090 on official business days between the hours
of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-BYX-
2014-039, and should be submitted on or before January 14, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-30118 Filed 12-23-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 82, Number 128 (Thursday, July 6, 2017)]
[Notices]
[Pages 31390-31396]
[FR Doc No: 2017-14147]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2014-0003; PD-37(R)]

Hazardous Materials: New York City Permit Requirements for
Transportation of Certain Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Notice of administrative determination of preemption.

-----------------------------------------------------------------------

    Applicant: American Trucking Associations, Inc.
    Local Law Affected: New York City Fire Code (FC) 2707.4 and 105.6.
    Applicable Federal Requirements: Federal hazardous material
transportation law (HMTA), 49 U.S.C. 5101 et seq., and the Hazardous
Materials Regulations (HMR), 49 CFR parts 171-180.
    Mode Affected: Highway.
SUMMARY: Inspection and Permit Requirement--Federal hazardous material
transportation law preempts the Fire Department of the City of New
York's permit and inspection requirements, FC 2707.4 and 105.6
(transportation of hazardous materials), with respect to trucks based
outside the inspecting jurisdiction, because scheduling and conducting
a vehicle inspection (as required for a permit) may cause unnecessary
delays in the transportation of hazardous materials from locations
outside the City of New York.
    Permit Fee--Federal hazardous material transportation law preempts
FDNY's permit fee requirement.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE., Washington,
DC 20590; Telephone No.<PHONE_NUMBER>; Facsimile No.<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

A. Application and Public Notice

    The American Trucking Associations (ATA) applied to PHMSA for a
determination on whether Federal hazardous material transportation law,
49 U.S.C. 5101 et seq., preempts the City of New York's requirement
that those wishing to transport hazardous materials by motor vehicle
must, in certain circumstances, obtain a permit. This requirement is
set forth in the FC in Title 29 of the New York City Administrative
Code. The Fire Department of the City of New York (FDNY) implements the
FC rules in Title 3 of the Rules of the City of New York. The relevant
provisions of the FC and the FDNY rules regarding the City of New
York's hazardous materials inspection and permitting program, and
related fees, include:
     FC 2707--sets forth the requirements for the
transportation of hazardous materials;
     FC 2707.3--prohibits the transportation of hazardous
materials in quantities requiring a permit without such permit;
     FC 2707.4 and 105.6--permit requirement and exclusions;
     FDNY Rule 2707-02--sets forth routing, timing, escort, and
other requirements for the transportation of hazardous materials;
provides that permit holders need not conform to these requirements;
and
     FC Appendix A, Section A03.1(39) and (67)--specifies the
permit (inspection and re-inspection) fees.
    ATA states that motor carriers ``must file a separate application
for each tractor or trailer,'' and pay a $210 fee ``for each tractor or
trailer to be inspected, and, if approved, must be ready to present
copies of the permit to enforcement officials at their request.'' \1\
The copy of the permit form provided by ATA contains spaces for the
truck and trailer numbers and the date of inspection of the vehicle or
trailer. The permit form also indicates that the ``Permit expires (1)
one year from the above date'' and the requirement that ``This letter
shall be carried in the cab of the truck and it shall be presented upon
request to Fire Department representative.''
---------------------------------------------------------------------------

    \1\ ATA states that the ``$210 fee to inspect each tractor or
trailer'' is ``far above the prevailing norm'' and that ``[o]ther
hazardous materials transportation permits cost significantly less.
For instance, the entire state of California mandates only $100 per
motor carrier.''
---------------------------------------------------------------------------

    In summary, ATA contends that:

    the City of New York's regulatory regime is deficient in several
ways. Only motor carriers are required to obtain the City of New
York's permit, which imposes an unfair burden on a single mode of
transportation. The permit requirements apply only to some carriers
and impedes their drivers' ability to comply with 49 CFR 177.800(d),
which mandates that ``hazardous materials must be transported
without unnecessary delay.'' Finally, the City of New York (City)
cannot show that it is using funds generated from its permit fees
for hazardous materials enforcement and emergency response training.

    PHMSA published notice of ATA's application in the Federal Register
on April 17, 2014. 79 FR 21838. On June 2, 2014, the comment period
closed without any interested parties submitting comments. On April 27,
2015, we published a notice of delay in processing ATA's application in
order to conduct additional fact-finding and legal analysis in response
to the application. 80 FR 23328. In order to ensure PHMSA had all of
the relevant information before making a determination, we sent a
letter to FDNY and requested that it submit its position on whether the
HMTA preempts the New York City requirements that are the subject of
this proceeding. On August 20, 2015, FDNY submitted its comments on
ATA's application. On October 1, 2015, we published a notice announcing
that we were reopening the comment period in the proceeding to provide
interested parties the opportunity to address any of the issues raised
by the FDNY comments. 80 FR 59244.
    In response to the October notice, we received written comments
from ATA, Nouveau, Inc. (Nouveau), and the American Coatings
Association (ACA). ATA indicated that its comments were intended to
``provide clarity'' to the FDNY comments submitted by demonstrating
that the City's registration requirement for transporting certain
hazardous materials imposes an unnecessary delay and that the
associated fees are significantly higher than similar fees charged by
other jurisdictions. Moreover, ATA argues that that revenue collected
by the City is not being used for an acceptable purpose.
    Additionally, ATA in its comments sought to demonstrate for the
first time that other requirements in the City's regulations were
preempted, including requirements for loading and unloading, as well as
the display requirement for FNDY's inspection sticker. However, because
ATA did not raise these arguments in its initial petition, they cannot
be considered now.
    Generally, Nouveau and ACA support ATA's position that certain
provisions of FDNY's hazardous materials requirements are preempted by
the HMTA.

B. Prior Administrative Proceedings

    As FDNY points out in its submission, this is not the first time
that the City's regulations governing the transportation of hazardous
materials have been adjudicated by the U.S. Department of
Transportation (DOT or Department). Specifically, in support of its
position, FDNY points to the Research and Special Programs
Administration's (RSPA) \2\ determination in the proceeding, City of
New York Application for Waiver of Preemption as

to the Fire Department Regulations Concerning Pickup/Delivery
Transportation of Flammable and Combustible Liquids and Flammable and
Combustible Gases, Waiver of Preemption Determination (WPD)-1, 57 FR
23278 (June 2, 1992), and asserts that the Department had ``previously
considered FDNY's inspection and permitting program, and related fees,
and determined that they were not preempted[.]'' However, FDNY's
discussion of the past administrative action involving its hazardous
materials inspection and permitting program does not accurately reflect
the agency's prior position on this issue. Therefore, as a preliminary
matter, PHMSA believes it is important to review the significant
actions taken by the agency in prior administrative proceedings
involving the City's hazardous materials inspection and permit
requirements.
---------------------------------------------------------------------------

    \2\ Effective February 20, 2005, PHMSA was created to further
the ``highest degree of safety in pipeline transportation and
hazardous materials transportation,'' and the Secretary of
Transportation redelegated hazardous materials safety functions from
the Research and Special Programs Administration (RSPA) to PHMSA's
Administrator. 49 U.S.C. 108, as amended by the Norman Y. Mineta
Research and Special Programs Improvement Act (Pub. L. 108-426,
section 2, 118 Stat. 2423 (Nov. 30, 2004)); and 49 CFR 1.96(b), as
amended at 77 FR 49987 (Aug. 17, 2012). For consistency, the terms
``PHMSA,'' ``the agency,'' and ``we'' are used in the remainder of
this determination, regardless of whether an action was taken by
RSPA before February 20, 2005, or by PHMSA after that date.
---------------------------------------------------------------------------

    In Inconsistency Ruling (IR)-22, City of New York Regulations
Governing Transportation of Hazardous Materials, 52 FR 46574 (December
8, 1987), Decision on Appeal, 54 FR 26698 (June 23, 1989), the agency
addressed a preemption challenge to the City's directives requiring
tank truck carriers to receive permits before transporting hazardous
materials in the city. In IR-22, the agency ``found that the City
created its own independent set of cargo containment, equipment and
related requirements that overlap extensive HMR requirements, are
likely to encourage noncompliance with the HMR, and concern subjects
that [PHMSA] has determined are its exclusive province under the HMTA.
Furthermore, [the agency] found that the City's directives result in
serious delays in the transportation of hazardous materials.'' 54 FR at
26699. Because the City's containment system and equipment requirements
were found to be intimately tied to a permitting system, the agency
``determined that the City's permitting system for transportation of
certain hazardous materials is inconsistent with the HMTA and the HMR,
and, therefore, preempted.'' Id.
    The City appealed the IR-22 ruling, challenging the agency's
findings, and arguing that its permitting system does not cause delays.
In the Decision on Appeal, PHMSA's Administrator affirmed IR-22,
upholding the preemption of the City's permitting system. City of New
York Regulations Governing Transportation of Hazardous Materials,
Decision on Appeal, 54 FR 26698 (June 23, 1989). PHMSA, in affirming
the finding that the permit system caused delay, said the City's
``burdensome permit application requirements, its unfettered discretion
in granting permits, and the time needed to process applications create
delays in the transportation of hazardous materials.'' Furthermore, the
agency said ``the delays caused by the City's permit system are
unnecessary because the City's permit requirements are inconsistent
with the HMTA.'' 54 FR at 26705.
    Subsequently, the City sought a waiver of preemption for many of
the requirements found to be preempted in the IR-22 proceeding,
including the permit requirements. WPD-1, City of New York Application
for Waiver of Preemption as to the Fire Department Regulations
Concerning Pickup/Delivery Transportation of Flammable and Combustible
Liquids and Flammable and Combustible Gases, 57 FR 23278 (June 2,
1992). In WPD-1, PHMSA denied the City's application for a waiver of
preemption as to the design and construction requirements for trucks
transporting flammable and combustible liquids; granted a waiver of
preemption as to the requirements on emergency transfers and
discharging gasoline by gravity into underground tanks; and dismissed
the City's application without prejudice for lack of information as to
the requirements for transporting compressed gases. In addition, PHMSA
found that the City's ``inspection and permit requirements (as general
safety measures, separate from its equipment requirements) . . . are
not preempted'' and therefore, took no action with respect to those
requirements. 57 FR at 23278. However, the agency was careful to note
that its finding on this issue was a narrow one, limited by statutory
requirements. Specifically, the agency initially said ``[t]he permit
requirements of the City are part of, and tied to, the City's design
and construction requirements which [PHMSA] found to be preempted by
the HMTA. For that reason, the permit requirements were held [in IR-22]
to be preempted as well.'' 57 FR at 23294, referencing IR-22; 52 FR
46582. Thus, while PHMSA denied the request for a waiver of preemption
as to the City's permit requirements, the agency noted that the permit
requirements, when considered separate and apart from the City's design
and construction requirements, might not be preempted by the HMTA,
``provided that (1) the annual permit fee is `equitable' and is `used
for purposes related to the transportation of hazardous materials . .
.'.'' 57 FR at 23295.
    The WPD-1 decision does not mandate a finding in favor of the City
here, for two reasons. First, PHMSA was addressing arguments based on
the City's design and construction requirements, and merely noted in
the abstract that preemption might not apply to the City's inspection
and permit requirements, providing that other factors were met. The
WPD-1 decision did not address the argument that ATA now presents in
this proceeding specifically that the City's inspection and permitting
program requirements, and related fees, should be preempted because the
program causes unnecessary delay and unreasonable cost. Second, PHMSA
expressly noted that the City's permit requirement could avoid being
preempted only if the annual permit fee was ``equitable'' and ``used
for purposes related to the transportation of hazardous materials.''
ATA contends that the City fails to meet these requirements.

C. Preemption Under Federal Hazardous Material Transportation Law

    As discussed in the April 17, 2014 notice, 49 U.S.C. 5125 contains
express preemption provisions relevant to this proceeding. 79 FR 21838,
21839-40. Subsection (a) provides that a requirement of a State,
political subdivision of a State, or Indian tribe is preempted--unless
the non-Federal requirement is authorized by another Federal law or DOT
grants a waiver of preemption under section 5125(e)--if:
    (1) complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a regulation
prescribed under this chapter, or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland
Security is not possible; or
    (2) the requirement of the State, political subdivision, or tribe,
as applied or enforced, is an obstacle to accomplishing and carrying
out this chapter, a regulation prescribed under this chapter, or a
hazardous materials transportation security regulation or directive
issued by the Secretary of Homeland Security.\3\
---------------------------------------------------------------------------

    \3\ These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that are based on U.S. Supreme Court decisions
on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime
& Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v.
Atlantic Richfield, Inc., 435 U.S. 151 (1978). PHMSA's predecessor
agency, the Research and Special Programs Administration, applied
these criteria in issuing inconsistency rulings under the original
preemption provisions in Section 112(a) of the Hazardous Materials
Transportation Act (HMTA), Public Law 93-633, 88 Stat. 2161 (Jan. 3,
1975).
---------------------------------------------------------------------------

    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal
requirement concerning any of the following subjects is preempted--
unless authorized by

another Federal law or DOT grants a waiver of preemption--when the non-
Federal requirement is not ``substantively the same as'' a provision of
Federal hazardous material transportation law, a regulation prescribed
under that law, or a hazardous materials security regulation or
directive issued by the Department of Homeland Security:
    (A) The designation, description, and classification of hazardous
material.
    (B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material and other
written hazardous materials transportation incident reporting involving
State or local emergency responders in the initial response to the
incident.
    (E) the designing, manufacturing, fabricating, inspecting, marking,
maintaining, reconditioning, repairing, or testing a package,
container, or packaging component that is represented, marked,
certified, or sold as qualified for use in transporting hazardous
material in commerce.\4\
---------------------------------------------------------------------------

    \4\ To be ``substantively the same,'' the non-Federal
requirement must conform ``in every significant respect to the
Federal requirement. Editorial and other similar de minimis changes
are permitted.'' 49 CFR 107.202(d).
---------------------------------------------------------------------------

    In addition, 49 U.S.C. 5125(f)(1) provides that a State, political
subdivision, or Indian tribe ``may impose a fee related to transporting
hazardous material only if the fee is fair and used for a purpose
related to transporting hazardous material, including enforcement and
planning, developing, and maintaining a capability for emergency
response.'' \5\
---------------------------------------------------------------------------

    \5\ See also 49 U.S.C. 5125(c) containing standards which apply
to preemption of non-Federal requirements on highway routes over
which hazardous materials may or may not be transported.
---------------------------------------------------------------------------

    The preemption provisions in 49 U.S.C. 5125 reflect Congress's
long-standing view that a single body of uniform Federal regulations
promotes safety (including security) in the transportation of hazardous
materials. Some forty years ago, when considering the Hazardous
Materials Transportation Act, the Senate Commerce Committee
``endorse[d] the principle of preemption in order to preclude a
multiplicity of State and local regulations and the potential for
varying as well as conflicting regulations in the area of hazardous
materials transportation.'' S. Rep. No. 1192, 93rd Cong. 2nd Sess. 37
(1974). A United States Court of Appeals has found uniformity was the
``linchpin'' in the design of the Federal laws governing the
transportation of hazardous materials. Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).
    Under 49 U.S.C. 5125(d)(1), any person (including a State,
political subdivision of a State, or Indian tribe) directly affected by
a requirement of a State, political subdivision or Indian tribe may
apply to the Secretary of Transportation for a determination whether
the requirement is preempted. The Secretary of Transportation has
delegated authority to PHMSA to make determinations of preemption,
except for those concerning highway routing (which have been delegated
to the Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
    Section 5125(d)(1) requires notice of an application for a
preemption determination to be published in the Federal Register.
Following the receipt and consideration of written comments, PHMSA
publishes its determination in the Federal Register. See 49 CFR
107.209(c). A short period of time is allowed for filing of petitions
for reconsideration. 49 CFR 107.211. A petition for judicial review of
a final preemption determination must be filed in the United States
Court of Appeals for the District of Columbia or in the Court of
Appeals for the United States for the circuit in which the petitioner
resides or has its principal place of business, within 60 days after
the determination becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution, or statutes other than the Federal
hazardous material transportation law unless it is necessary to do so
in order to determine whether a requirement is authorized by another
Federal law, or whether a fee is ``fair'' within the meaning of 49
U.S.C. 5125(f)(1). A State, local or Indian tribe requirement is not
authorized by another Federal law merely because it is not preempted by
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above,
951 F.2d at 1581 n.10. In addition, PHMSA does not generally consider
issues regarding the proper application or interpretation of a non-
Federal regulation, but rather how such requirements are actually
``applied or enforced.'' Rather, ``isolated instances of improper
enforcement (e.g., misinterpretation of regulations) do not render such
provisions inconsistent'' with Federal hazardous material
transportation law, but are more appropriately addressed in the
appropriate State or local forum. Preemption Determination (PD)-14(R),
Houston, Texas, Fire Code Requirements on the Storage, Transportation,
and Handling of Hazardous Materials, 63 FR 67506, 67510 n.4 (Dec. 7,
1998), decision on petition for reconsideration, 64 FR 33949 (June 24,
1999), quoting from IR-31, Louisiana Statutes and Regulations on
Hazardous Materials Transportation, 55 FR 25572, 25584 (June 21, 1990),
appeal dismissed as moot, 57 FR 41165 (Sept. 9, 1992), and PD-4(R),
California Requirements Applicable to Cargo Tanks Transporting
Flammable and Combustible Liquids, 58 FR 48940 (Sept. 20, 1993),
decision on reconsideration, 60 FR 8800 (Feb. 15, 1995).
    In making preemption determinations under 49 U.S.C. 5125(d), PHMSA
is guided by the principles and policies set forth in Executive Order
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693
(May 22, 2009)). Section 4(a) of that Executive Order authorizes
preemption of State laws only when a statute contains an express
preemption provision, there is other clear evidence Congress intended
to preempt State law, or the exercise of State authority directly
conflicts with the exercise of Federal authority. The President's May
20, 2009 memorandum sets forth the policy ``that preemption of State
law by executive departments and agencies should be undertaken only
with full consideration of the legitimate prerogatives of the States
and with a sufficient legal basis for preemption.'' Section 5125
contains express preemption provisions, which PHMSA has implemented
through its regulations.

II. Discussion

A. Inspection and Permit Requirement.

    ATA argues that the FDNY permit and inspection requirements cause
unnecessary delays because the process ``delays drivers whose fastest
route is through the city[.]''
    FDNY believes its permit and inspection process is ``lawful and
proper, consistent with Federal law and regulations, promotes public
safety . . . and does not unreasonably burden interstate commerce or
motor carriers.''
    According to FDNY, the permit process has been streamlined in
recent years to provide for the immediate

issuance of the permit, provided of course, that the vehicle passes the
inspection. FDNY explains that a motor carrier can obtain a same day
inspection by simply showing up at FDNY's Hazardous Cargo Unit (HCU).
Or alternatively, the motor carrier can make arrangements to have its
fleet inspected at its own facility. FDNY estimates the whole process
takes approximately 30 minutes.
    PHMSA has acknowledged that vehicle and container inspections are
an ``integral part of a program to assure the safe transportation of
hazardous materials in compliance with the HMR.'' PD-28(R), Town of
Smithtown, New York Ordinance on Transportation of Liquefied Petroleum
Gas, 67 FR 15276, 15278 (Mar. 29, 2002).
    Also, the agency has specifically found that inspections conducted
by State or local governments to assure compliance with Federal or
consistent requirements are themselves consistent with Federal
hazardous material transportation law and not preempted. PD-28(R) at
15278; PD-4(R), California Requirements Applicable to Cargo Tanks
Transporting Flammable and Combustible Liquids, 58 FR 48933, 48940
(Sept. 20, 1993), Decision on Petition for Reconsideration, 60 FR 8800
(Feb. 15, 1995), quoting IR-20, Triborough Bridge and Tunnel Authority
Regulations, etc., 52 FR 24396, 24398 (June 30, 1987).
    Accordingly, the agency ``has encouraged States and local
governments to adopt and enforce the requirements in the HMR `through
both periodic and roadside spot inspections.' '' PD-28(R) at 15278,
quoting PD-4(R), 58 FR at 48940 and PD-13(R), Nassau County, New York,
Ordinance on Transportation of Liquefied Petroleum Gases, 63 FR 45283,
45286 (Aug. 25, 1998), Decision on Petition for Reconsideration, 65 FR
60238 (Oct. 10, 2000), quoting from WPD-1, New York City Fire
Department Regulations, etc., 57 FR 23278, 23295 (June 2, 1992).
    But to be consistent with the HMTA and the HMR, a non-Federal
inspection of a vehicle or container used to transport a hazardous
material must not conflict with the requirement in 49 CFR 177.800(d),
which states:

All shipments of hazardous materials must be transported without
unnecessary delay, from and including the time of commencement of
the loading of the hazardous material until its final unloading at
destination.

    In prior decisions, the agency has identified several principles
regarding unnecessary delay that are relevant to this proceeding.
    First, travel and wait times associated with an inspection are not
generally considered unnecessary delays. PD-13(R), Decision on Petition
for Reconsideration, 65 FR 60238, 60243 (Oct. 10, 2000); PD-4(R) at
48941. However, a delay of hours or days waiting for the arrival of an
inspector from another location is unnecessary, because it
substantially increases the time hazardous materials are in
transportation, increasing exposure to the risks of the hazardous
materials without corresponding benefit. PD-28(R) at 60243; PD-4(R) at
48941.
    Second, a State's annual inspection requirement applied to vehicles
that operate solely within the State is presumptively valid because it
would not create the potential for delays associated with entering the
State or being rerouted around the State. A carrier whose vehicles are
based within the inspecting jurisdiction should be able to schedule an
inspection at a time that does not disrupt or unnecessarily delay
deliveries. 65 FR at 60243; 60 FR at 8803; PD-13(R) at 45286.
    But, when applied to vehicles based outside of the inspecting
jurisdiction, a State or local periodic inspection requirement has an
inherent potential to cause unnecessary delays because the call and
demand nature of common carriage makes it impossible to predict in
advance which vehicles may be needed for a pick-up or delivery within a
particular jurisdiction and impractical to have all vehicles inspected
every year (or alternatively, inspection of select vehicles dedicated
to the inspecting jurisdiction). PD-28(R) at 15279, referring to the
discussion in PD-4(R) 58 FR at 48938-41, and PD-13(R), 65 FR 60242-44.
    Last, a State or local government may apply an annual inspection
requirement to trucks based outside its jurisdictional boundaries
``only if the [State or local government] can actually conduct the
equivalent of a `spot' inspection upon the truck's arrival within the
local jurisdiction. The [State or local government] may not require a
permit or inspection for trucks that are not based within the local
jurisdiction if the truck must interrupt its transportation of
[hazardous materials] for several hours or longer in order for an
inspection to be conducted and a permit to be issued.'' 65 FR at 60244.
    Applying these principles to FDNY's permit and inspection program,
it appears that the program would not cause unnecessary delays in the
transportation of hazardous materials with respect to motor vehicles
that are based within FDNY's jurisdiction. As noted in PD-13(R), motor
carriers based within the inspecting jurisdiction ``should be able to
present their trucks for an inspection . . . without incurring an
unnecessary delay in the delivery of [hazardous materials]. They should
be able to plan and schedule inspections without any interruption of
deliveries.'' 65 FR at 60244. And on the few occasions where an
inspection must be performed on short notice, it is reasonable to
consider this an exception and simply a part of doing business, rather
than an unreasonable delay under the HMR. Id.
    However, with respect to motor vehicles that are based outside the
inspecting jurisdiction, FDNY's process doesn't appear to be as
flexible or accommodating as it portrays. For example, although FDNY
says a same-day inspection at the HCU is possible, the unit is only
open for operation, Monday through Friday, from 7:30 a.m. to 3:00 p.m.
Since the permit and inspection program is not limited to one specific
class of hazardous material, and considering that the HCU is only open
weekdays until 3:00 p.m., an unpermitted motor carrier based outside
FDNY's jurisdiction would have no recourse when it arrives to pick up
or deliver hazardous materials in the City (requires a permit) and
discovers that the HCU is closed. FDNY indicates that there is some
flexibility in performing inspections, i.e., a motor carrier can
arrange for fleet inspections at its own facility, and that it has co-
located FDNY inspection operations with other regulatory departments.
But fleet inspections at a motor carrier's own facility appear to be
impractical where the facility is located outside the City's
jurisdiction. And, although co-locating the HCU with the City's other
regulatory departments may be an operational convenience, it is not
relevant to the issue here. More importantly, FDNY is silent on whether
it is capable of performing a `spot' inspection upon a motor carrier's
arrival within its jurisdiction. Therefore, it does not appear that
FDNY is able to conduct inspections and issue permits ``on demand.'' As
ATA pointed out, FDNY is ``unable to apply the inspection and
permitting process at the roadside[,]'' and ``FDNY's policy requires
the truck to `interrupt its transportation . . . for several hours' by
traveling to the FDNY inspection site and being inspected before
returning to productive service[.]'' Comments of ATA at 5, quoting 67
FR at 15279. Although ATA did not specify that its members have
actually experienced delays of this kind and duration, our prior
determinations on this issue support the position that

when FDNY is confronted with the unannounced arrival of a motor carrier
based outside its jurisdiction, it should be capable of conducting the
equivalent of a spot or roadside inspection to avoid unnecessary
delays. FDNY has not shown that its program has this flexibility.
    PHMSA, for the reasons set forth above, finds that the HMTA does
not preempt FDNY's permit and inspection requirements, FC 2707.4 and
105.6 (transportation of hazardous materials), with respect to motor
vehicles that are based within the inspecting jurisdiction. On the
other hand, PHMSA finds that FDNY's permit and inspection requirements
create an obstacle to accomplishing and carrying out the HMR's
prohibition against unnecessary delays in the transportation of
hazardous materials on vehicles based outside of the inspecting
jurisdiction. Accordingly, the HMTA preempts FDNY's permit and
inspection requirements, FC 2707.4 and 105.6 (transportation of
hazardous materials), with respect to trucks based outside the
inspecting jurisdiction.

B. Permit Fee.

    ATA challenges FDNY's transportation of hazardous materials permit
fee on the grounds that it is not ``fair'' and that it is not being
used for purposes that are related to the transportation of hazardous
material. ATA also alleges that FDNY has not sufficiently accounted for
the revenues generated by its ``hazardous materials registration
program.'' Nouveau echoed ATA's assertion that FDNY is not using the
revenue generated from the fees for authorized purposes and contends
that FDNY has not provided any evidence regarding the collection and
use of the fees.
    According to FDNY, permit revenues, like all revenues received by
City agencies, are paid into a general City fund, with the amounts
credited toward agency, bureau and unit operations. Over the past three
years, annual revenue generated from the permit fees ranged from
$250,000 to $450,000.\6\ FDNY claims it expends on an annual basis,
``tens of millions of dollars'' for its hazardous materials response
operations, including staffing, training and equipping the HMU and
other specialized units, but it provided no specific figures.
---------------------------------------------------------------------------

    \6\ FY2013; FY2015 (July 1 through June 30).
---------------------------------------------------------------------------

    It is FDNY's position that its inspection and permitting program,
and related fees, are not preempted because it believes the agency
already addressed this issue, and found that the requirements were not
preempted. However, as discussed above in the prior administrative
proceedings section, the WPD-1 language was conditioned on the City
separating and severing the permit fee requirements from the preempted
truck design and construction requirements. More importantly however,
PHMSA expressly noted that the City's permit requirement could only
avoid being preempted if the annual permit fee was ``equitable'' and
``used for purposes related to the transportation of hazardous
materials.'' Since that time, the City's current inspection and
permitting (including fees) regulatory scheme has not been challenged
on these issues. Therefore, FDNY's contention that its permit fees are
valid based on the language in WPD-1 is not persuasive. The challenge
to the validity of the permit fees as now raised in this proceeding,
requires that PHMSA determine that the fees satisfy the statutory
requirements.
    The HMTA provides that ``[a] State, political subdivision of a
State, or Indian tribe may impose a fee related to transporting
hazardous material only if the fee is fair and used for a purpose
related to transporting hazardous material, including enforcement and
planning, developing, and maintaining a capability for emergency
response.'' 49 U.S.C. 5125(f)(1). In prior preemption determinations,
PHMSA has utilized tests for determining whether a fee is ``fair'' and
whether it is ``used for a purpose related to transporting hazardous
material.''
1. The Fairness Test
    PHMSA has determined that the test of reasonableness in Evansville-
Vanderburgh Airport Auth. v. Delta Airlines, Inc. 405 U.S. 707, 92
S.Ct. 1349 (1972) ``appears to be the most appropriate one for
interpreting the fairness requirement in [the HMTA].'' PD-21, Tennessee
Hazardous Waste Transporter Fee and Reporting Requirements, 64 FR
54474, 54478 (October 6, 1999).\7\
---------------------------------------------------------------------------

    \7\ Complaint for judicial review, Tennessee v. U.S. Dept. of
Transportation, C.A. No. 3-99-1126 (M.D. Tenn.), filed Dec. 3, 1999;
order denying claim of state sovereignty (Feb. 27, 2001); affirmed
and remanded, 326 F.3d 729 (6th Cir.); cert. denied, 124 S.Ct. 464
(2003); judgment in favor of DOT and AWHMT (June 28, 2004).
---------------------------------------------------------------------------

    In Evansville-Vanderburgh, the Supreme Court found that a state or
local ``toll'' would pass constitutional muster ``so long as the toll
is based on some fair approximation of use or privilege for use . . .
and is neither discriminatory against interstate commerce nor excessive
in comparison with the governmental benefit conferred[.]'' 405 U.S. at
716-17, 92 S.Ct. at 1355. Following Evansville-Vanderburgh, the Court
stated that ``a levy is reasonable under Evansville if it (1) is based
on some fair approximation of the use of the facilities, (2) is not
excessive in relation to the benefits conferred, and (3) does not
discriminate against interstate commerce.'' Northwest Airlines, Inc. v.
Kent, 510 U.S. 355, 367-68, 114 S.Ct. 855, 864 (1994).
    In PD-21, PHMSA evaluated Tennessee's requirement for hazardous
waste transporters to pay an annual $650 remedial action fee. In that
matter, PHMSA observed that there was no evidence that Tennessee's
annual fixed fee had any approximation to a transporter's use of roads
or other facilities within the State or that there were genuine
administrative burdens that prevented the application of a more finely
graduated fee. Id. PHMSA thus concluded that the fee was not ``fair''
and was preempted.
    In PD-18, Broward County, Florida's Requirements on the
Transportation of Certain Hazardous Materials to or From Points in the
County, 65 FR 81950 (December 27, 2000), Decision on Petition for
Reconsideration, 67 FR 35193 (May 17, 2002), PHMSA preempted the
County's licensing fee for hazardous waste transporters. In making its
determination, the agency followed the fairness test discussed in
Tennessee and emphasized that a fee discriminates against interstate
commerce if there is a ``lack of any relationship between the fees paid
and the respective benefits received by interstate and intrastate
carriers.'' PD-18 at 81959 (quoting PD-21). The agency went on to say
that the case in Broward County was similar to the situation in
Tennessee because the County ``requires that any person transporting .
. . waste `to from, and within' the County must obtain a waste
transporter license.'' PHMSA also noted that the fee for obtaining the
waste transport license ``apparently is the same for every
transporter'' without being based on some fair approximation of use of
facilities, i.e., roads or other facilities within the State. PD-18 at
81959.
    Here, FDNY has acknowledged its permit fee is a flat fee applicable
to motor carriers whether they are engaged in interstate or intrastate
transportation of hazardous materials. Moreover, FDNY admitted that it
does not maintain statistics as to whether motor carriers are engaged
in interstate or intrastate commerce. Consequently, since there is no
evidence showing that FDNY's flat fee is apportioned to a motor carrier
based on some approximation of the benefit conferred

to the permit holders, it discriminates against interstate commerce.
Furthermore, there is no evidence that a more finely graduated fee
would pose genuine administrative burdens on the City. PHMSA therefore
finds that the FDNY's permit fee is not fair and is preempted.
2. The ``Used For'' Test
    Under the HMTA, a State, political subdivision of a State, or
Indian tribe may impose a fee related to transporting hazardous
material, but only if the fee is used for a purpose related to
transporting hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency response. 49
U.S.C. 5125(f)(1). Therefore, non-Federal fees that are collected in
relation to the transportation of hazardous materials must be used for
a related purpose; otherwise they are preempted. PD-22, New Mexico
Requirements for the Transportation of Liquefied Petroleum Gas, 67 FR
59386 (Sept. 20, 2002); PD-18 at 81959; PD-21 at 54479.
    In prior preemption determinations, PHMSA has acknowledged that a
State, political subdivision of a State, or Indian tribe does not have
to create and maintain a separate account for fees related to the
transportation of hazardous materials. However, ``[i]f the [non-Federal
entity] prefers not to create and maintain a separate fund for fees
paid . . . then it must show that it is actually spending these fees on
the purposes permitted by the law. In this area where only the [non-
Federal entity] has the information concerning where these funds are
spent, more specific accounting is required.'' PD-21 at 54479.
    FDNY acknowledged that the revenue it receives through its permit
program is put into a general City fund; which is permissible, provided
it can show the funds are used for purposes related to the
transportation of hazardous materials. FDNY believes that the revenue
is used for permitted purposes because it contributes to the cost of
staffing, training, and equipping its HCU. However, FDNY also indicated
that the inspection fee largely covers the cost of the inspection and
the administrative processing of the permit. Here, apart from general
statements about how the revenue is used, FDNY does not provide
specific figures. FDNY's failure to provide definitive information on
the allocation of permit revenues is not sufficient to refute ATA's
direct challenge of the permit fee on the grounds that FDNY has not
sufficiently accounted for revenues generated by its hazardous
materials registration program. Therefore, without any evidence from
FDNY on how it uses the permit fees that it collects, PHMSA cannot find
that the fees are used for purposes related to hazardous materials
transportation, and thus, FDNY's permit fee is preempted under the
``used for'' test.

III. Ruling

    Inspection and Permit Requirement--PHMSA finds that FDNY's permit
and inspection requirements, FC 2707.4 and 105.6 (transportation of
hazardous materials), create an obstacle to accomplishing and carrying
out the HMR's prohibition against unnecessary delays in the
transportation of hazardous materials on vehicles based outside of the
inspecting jurisdiction. Accordingly, the HMTA preempts FDNY's permit
and inspection requirements with respect to vehicles based outside the
inspecting jurisdiction. PHMSA, however, finds that the HMTA does not
preempt FDNY's permit and inspection requirements with respect to motor
vehicles that are based within the inspecting jurisdiction.
    Permit Fee--PHMSA finds that FDNY has not shown that the fee it
imposes with respect to its permit and inspection requirements is
``fair'' or ``used for a purpose related to transporting hazardous
material,'' as required by 49 U.S.C. 5125(f)(1). Accordingly, the HMTA
preempts FDNY's permit fee requirement.

IV. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this
decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. A petition for
judicial review of a final preemption determination must be filed in
the United States Court of Appeals for the District of Columbia or in
the Court of Appeals for the United States for the circuit in which the
petitioner resides or has its principal place of business, within 60
days after the determination becomes final. 49 U.S.C. 5127(a).
    This decision will become PHMSA's final decision 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5127(a).
    If a petition for reconsideration is filed within 20 days of
publication in the Federal Register, the action by PHMSA's Chief
Counsel on the petition for reconsideration will be PHMSA's final
action. 49 CFR 107.211(d).

    Issued in Washington, DC, on June 29, 2017.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2017-14147 Filed 7-5-17; 8:45 am]
 BILLING CODE 4910-60-P