             Renewal - Ambient Air Quality Surveillance 40 CFR 58
	OMB #2060-0084, EPA ICR #0940.28
                                  August 2018

	TABLE OF CONTENTS

Supporting Statement
   Section 1.	Identification of the Information Collection				  2
   Section 2.     Need For and Use of the Collection 	  3
   Section 3.     Nonduplication, Consultations, and Other Collection Criteria	  5
   Section 4.    The Respondents and the Information Requested	 	  8
   Section 5.    The Information Collected--Agency Activities, Collection 		 11
             Methodology, and Information Management
   Section 6.    Estimating the Burden and Cost of the Collection	 14

Appendix.	Tables of burden estimates.

1.	IDENTIFICATION OF THE INFORMATION COLLECTION

	1(a)	Title of the Information Collection

	Renewal - Ambient Air Quality Surveillance 40 CFR 58

	1(b)	Short Characterization/Abstract

This Information Collection Request (ICR) includes ambient air monitoring data reporting and recordkeeping activities associated with the 40 CFR 58 Ambient Air Quality Surveillance rule. These data and information are collected by various state and local air quality management agencies and reported to the Office of Air Quality Planning and Standards within the Office of Air and Radiation, U.S. EPA.

This ICR reflects revisions of the previous ICR update of 2013, and it covers the period of 2019-2021. Due to recent revisions to several National Ambient Air Quality Standards (NAAQS), several of the networks have made modifications and additional modifications will be expected over the next several years with new monitoring sites being established and existing monitors being moved or terminated. For the purposes of this ICR, the number of monitoring stations shown in the first year is what is currently operating while the number of monitoring stations shown in the second and third year may reflect a change based on NAAQS requirements.  The sampling parameters and frequency of data collection and submittal is expected to remain stable from 2019 through 2021.

The data collected through this information collection consist of ambient air concentration measurements for the six air pollutants with NAAQS (i.e., ozone, sulfur dioxide, nitrogen dioxide, lead, carbon monoxide, particulate matter, ozone precursors, and meteorological variables at a select number of sites). Accompanying the pollutant concentration data are quality assurance/quality control data and air monitoring network design information.

The U.S. EPA and others (e.g., state and local air quality management agencies, environmental groups, academic institutions, industrial groups) use the ambient air quality data for many purposes. Some of the more prominent uses include informing the public and other interested parties of an area's air quality, judging an area's (e.g., county, city, neighborhood) air quality in comparison with the established health or welfare standards (including both national and local standards), evaluating an air quality management agency's progress in achieving or maintaining air pollutant levels below the national and local standards, developing and revising State Implementation Plans (SIPs) in accordance with 40 CFR 51, evaluating air pollutant control strategies, developing or revising national control policies, providing data for air quality model development and validation, supporting enforcement actions, documenting episodes and initiating episode controls, air quality trends assessment, and air pollution research.

The state, local and tribal agencies with responsibility for reporting ambient air quality data and information as requested in this ICR submit these data electronically to the U.S. EPA's Air Quality Subsystem (AQS) database. Quality assurance/quality control records and monitoring network documentation are also maintained by each state and local agency, in AQS electronic format where possible.

Although the state and local air pollution control agencies and tribes are responsible for the operation of the air monitoring networks, the EPA funds a portion of the total costs through federal grants. These grants generally require an appropriate level of contribution, or "match," from the state/local agencies and tribes. The costs shown in this renewal are the total costs incurred for the monitoring program regardless of the source of the funding. This practice of using the total cost is consistent with prior ICR submittals and renewals.

This Information Collection is estimated to involve 168 respondents for a total cost of approximately $212,581,038 (total capital, and labor and non-labor operation and maintenance) plus a total labor burden of 1,756,355 hours.  The labor costs associated with the 1,756,355 hours is $134,045,828. Included in the total are other costs of non-labor operations and maintenance of $15,066,248 and equipment and contract costs of $63,468,536.  In addition to the costs at the State and local air pollution control agencies, there is a burden to EPA of 192,769 hours and $11,588,754.

2.	NEED FOR AND USE OF THE COLLECTION

	2(a)	Need/Authority for the Collection

The information requirements included within this ICR are necessary to provide the U.S. EPA with ambient air quality surveillance data to determine the United States' air quality status, to make attainment decisions with respect to the NAAQS, to assist in developing necessary control strategies to ensure attainment of the NAAQS, to assess national trends in air pollution, to inform the public of air quality, and to determine the population's exposure to various ambient air pollutants. The U.S. EPA's goal of attaining the NAAQS in all areas of the United States is directly dependent upon the availability of ambient air quality data requested in this information collection. Additionally, the U.S. EPA, state and local agencies, environmental groups, industrial groups, and academic organizations use these data to study atmospheric chemistry, e.g., the formation of ozone, to determine the most appropriate and effective control strategies necessary to reduce air pollution.

The principal legal authority for this information collection is the Clean Air Act 42 U.S.C.A. §§ 7403, 7410, and 7511a, from which the 40 CFR 58 Ambient Air Quality Surveillance regulation was promulgated.

Under § 7403 (c), the Administrator is required to conduct a program of research, testing, and development of methods for sampling, measurement, monitoring, analysis, and modeling of air pollutants, specifically including a requirement to establish a national network to monitor, collect, and compile data with quantification of certainty in the status and trends of air emissions and air quality. This program will also include the development of improved methods and technologies to increase understanding of the sources of ozone precursors, ozone formation, ozone transport, regional influences on urban ozone, regional ozone trends, and interactions of ozone with other pollutants.

Section 7410 (a) contains the SIP requirements, which include a requirement that each state submit a SIP that provides for the establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, analyze, and make available to the Administrator data on ambient air quality.

Section 7511a (c)(1) states that the Administrator will promulgate rules that require state and local air quality management agencies conduct enhanced monitoring of ozone and its precursors (oxides of nitrogen and volatile organic compounds) in serious, severe, or extreme ozone nonattainment areas.

	2(b)	Practical Utility/Users of the Data

The Office of Air Quality Planning and Standards (OAQPS) uses the ambient air quality data included within this collection to make attainment decisions with respect to the NAAQS for ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, lead, and particulate matter. For areas that do not attain the NAAQS for one or more pollutants, the OAQPS, the affected U.S. EPA Regional Office, and the affected state or local air quality management agency will work to develop an appropriate control strategy plan (SIP) to address how the area's air quality can be improved.

To identify how the nation is progressing in improving air quality, the OAQPS prepares annually the National Air Quality and Emissions Trends report (http://www.epa.gov/airtrends) using the ambient air quality data collected through this ICR. The state and local air quality management agencies use these data for multiple purposes, including tracking their progress toward achieving and maintaining air quality within the established NAAQS and any statewide standards they have established.

Using the Air Quality Index (AQI) reporting system outlined within the 40 CFR 58 regulation (on which this ICR is based), state and local air quality management agencies report air quality to the public in all metropolitan areas with a population greater than 350,000. Details on the AQI system can be found at http://www.epa.gov/airnow. The AQI reporting mediums can vary depending upon the location; however, it is generally reported in newspapers, on local television news stations, through a central telephone number, and/or by radio.

The U.S. EPA, state and local air quality management agencies, the regulated community (e.g., industrial groups), environmental groups, and air pollution researchers (such as those at the Georgia Institute of Technology and the Harvard School of Public Health) use ambient air pollutant and meteorological data to study the emission of air pollutants, the formation of secondary air pollutants (e.g., ozone, fine particles), the transport of these pollutants over large distances, and the effects of various pollutants on the public's health and welfare. The Photochemical Assessment Monitoring Station (PAMS) program, which is included within this information collection, is designed specifically to assist the U.S. EPA and these same groups with the study of ozone formation and accumulation in areas with significant ambient ozone pollution problems. This network was redesigned as part of the final Ozone NAAQS in 2015.  These areas are defined within the Clean Air Act Amendments of 1990 as serious, severe, and extreme ozone NAAQS nonattainment areas.

Given the significant impact of ambient air data upon the air pollution program, it is essential that the U.S. EPA provide the means for ensuring that the ambient air quality data are of a high quality. The means for accomplishing this take on several forms, such as the requirements that state and local agencies report precision and accuracy testing results, incorporate quality assurance/quality control procedures in their daily monitoring site operation, conduct equipment and procedure audits through the National Performance Audit Program, and work with the U.S. EPA to conduct systems audits periodically. Records detailing the operation and maintenance practices for each ambient air monitoring site are necessary in order to meet the quality assurance/quality control requirements and recommendations.

3.	NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

	3(a)	Nonduplication

This collection is not unnecessarily duplicative of information otherwise reasonably accessible to the agency. The AQS system, which contains information based solely on this collection, is the only national air quality data repository available to the U.S. EPA.  The ambient air quality surveillance data and related information collected through this information collection are not otherwise reasonably accessible to the U.S. EPA.

A few state and local air quality management agencies have their own data storage systems (e.g., the California Air Resources Board); however, most state and local air quality management agencies use the AQS as their primary repository for all air quality data.

	3(b)	Public Notice Required Prior to ICR Submission to OMB

In compliance with the 1995 PRA, any agency developing a non-rule related ICR must solicit public comments for a 60-day period prior to submitting the ICR to OMB.

	3(c)	Consultations

During the development of this ICR renewal, the EPA consulted with the National Association of Clean Air Agencies (NACAA) Monitoring Subcommittee and the Association of Air Pollution Control Agencies (AAPCA). The Agencies are comprised of various state and local air quality management agency contacts. Through the course of planning, monitoring, and improving upon this collection and its associated regulation, the U.S. EPA regularly consults with affected state and local air quality management agencies through various methods including the regulatory process, regular meetings, and training courses. The U.S. EPA routinely conducts workshops and training on the AQS reporting system. The U.S. EPA Regional Offices conduct annual ambient air monitoring meetings with their affected state and local air quality management agencies to assist these affected agencies with this collection and its associated regulation. The U.S. EPA's OAQPS also meets regularly with the NACAA Monitoring Subcommittee and AAPCA to discuss the nation's ambient air monitoring program and this collection.

	3(d)	Effects of Less Frequent Collection

In most cases, state and local air quality management agencies would collect and report ambient air quality data without the 40 CFR 58 regulation associated with this collection. Sanctions do not accrue to state or local air quality management agencies that fail to meet these requirements. The 40 CFR 58 regulation and this associated collection do provide for a consistent system for reporting and record keeping that would not exist without these requirements. The effects of less frequent collection include:

      ::	A national database that is not consistently updated and available for public consumption;

      ::	Less timely attainment designations with respect to the NAAQS;

      ::	More difficultly in identifying and repairing problems with an ambient air monitor--i.e., data are used to check a monitor's operating condition, and reporting data less frequently would delay a state or local agency's ability to recognize a problem with a monitor or a laboratory procedure; and

      ::	The U.S. EPA would not be able to consistently answer questions from the public in a timely fashion regarding air quality in various areas of the country.

	3(e)	General Guidelines

In following the OMB's general guidelines for information collections, this ICR and its associated regulation require:

      (1) data reporting on a quarterly basis;

      (2) record retention for no more than 3 years (most records are kept by the U.S. EPA data repository, not the affected state or local agencies);

      (3) maintain and provide information in the standardized electronic AQS format.

	3(f)	Confidentiality

Information that is considered personal, private, proprietary, or confidential is not required in this collection. One purpose of collecting ambient air data through the AQS is to inform the public of general air quality in ambient air (air considered generally accessible to the public) and, as such, does not present a need for maintaining a confidential nature.

Measures are taken to secure the AQS electronic database to prevent tampering with the database by limiting the access to the AQS mainframe. The U.S. EPA also provides a secure data input area for state and local agencies that collect ambient air data that they do not want to provide to the general public (e.g., special study data or industrial data). These data are not required to be collected under this ICR; nonetheless, this secured area is available to each state and local agency that wishes to use the AQS as a repository for these data.

	3(g)	Sensitive Questions

This section does not apply.

4.	THE RESPONDENTS AND THE INFORMATION REQUESTED

	4(a)	Respondents/SIC Codes

This ICR affects state and local governments (SIC code 951, Administration of Environmental Quality Program) that are currently operating and maintaining established ambient air quality networks. The 40 CFR 58 rule associated with this request requires that state and local air quality management agencies conduct the ambient air quality surveillance and report the data to the U.S. EPA's AQS. Although industrial, environmental, and research organizations may use the data available through the AQS, they are not required to report any information in this information collection.

	4(b)	Information Requested

	(i)	Data items, including record keeping requirements

Report on these data items to be submitted electronically to the U.S. EPA's AQS as required by 40 CFR 58 (www.epa.gov/ttn/amtic):

      ::	Hourly ambient air pollutant concentrations of ozone, sulfur dioxide, nitrogen dioxide, and carbon monoxide and some measurements of particulate matter collected by state, local agencies, and tribes.*

      ::	Maximum 5-minute average concentrations for each hour for sulfur dioxide.*

      ::	Daily (24-hour) concentration values of particulate matter and lead collected at state, local agencies and tribes.*

      ::	Ozone precursor and meteorological data collected at PAMS.*

      ::	Precision and accuracy data for all state, local agencies and tribes.

      ::	Ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, lead, and particulate matter concentration data as collected by SPMs, if these data are to be used for regulatory purposes.* This includes data collected by collocated samplers or concurrent monitors as appropriate.

      ::	State and local agencies and tribal monitoring network description information, including the site AQS identification number*, the site location*, the sampling and analysis method*, the operating schedule*, the monitoring objective*, the site's scale of representation*, the identity of the urban area represented*, and the quality assurance plan.

      ::	PAMS network description which includes an implementation schedule, the identification of the monitoring area represented*, the AQS site identification number*, the site location*, the site type*, the sampling and analysis method*, the operating schedule*, and an ozone event forecasting scheme if appropriate.

      ::	Results of the annual ambient air monitoring network and quality assurance plan review.

      ::	Annual SLAMS summary report which includes the location, date, pollution source, and duration of each incident of air pollution during which ambient levels of a pollutant reached or exceeded the significant harm levels as defined in 40 CFR § 51.151*, the certification of the report's accuracy by a designated state air pollution control officer, and various other summary statistics as provided by the AQS system*.

      ::	In metropolitan areas with a population greater than 350,000, the appropriate state or local air quality management agency must report to the public through prominent notice (e.g., newspaper, radio, local weather forecast, at a publicly accessible area) the AQI value indicating the status of the area's air quality (i.e., good, moderate, unhealthful, very unhealthful, hazardous). This prominent notice must be made on at least 5 days per week. The AQI* is calculated using information collected in this request.

*From the above list, those data marked with an asterisk are stored electronically within the U.S. EPA's AQS, and separate records kept by the state or local air quality management agency are not needed.

In addition to those items stored within the U.S. EPA's AQS, state and local air quality management agencies will maintain records on the following items:

      ::	Approved PAMS network description for areas designated as serious, severe, or extreme ozone nonattainment areas.

      ::	Site information that is not maintained on the AQS system (e.g., site maps, pictures), and any siting waiver documentation provided by the Regional Administrator, the Administrator, or their designee.

      ::	The network quality assurance plan for the measurement of ozone, nitrogen dioxide, sulfur dioxide, lead, carbon monoxide, and particulate matter. This includes operational procedures for the entire network, e.g., the selection of methods; training; equipment installation; selection and control of calibration standards; calibration; zero/span checks and adjustments of automated analyzers; control checks and their frequency; control limits for zero, span and other control checks, and respective corrective actions when such limits are surpassed; calibration and zero/span checks for multiple range analyzers; preventive and remedial maintenance; quality control procedures for air pollution episode monitoring; recording and validating data; data quality assessment (precision and accuracy); and quality control documentation.

	(ii)	Respondent Activities

A model respondent would engage in the following activities to comply with this information request:

      ::	Read the 40 CFR 58 regulatory provisions and other U.S. EPA guidance (for example, please reference our Internet site at www.epa.gov/amtic).

      ::	Plan ambient air monitoring activities, such as developing a quality assurance plan for the network operation and maintenance, developing and reviewing the ambient air quality surveillance network design, planning where to locate sites, plan how to maintain and operate each site, develop a data reporting and validation plan.

            ::	Write the quality assurance plan for network operation and maintenance, the ambient air quality surveillance network plan, and the data reporting and validation plan. Submit these plans to the U.S. EPA Regional or Headquarters office for review, and approval if appropriate.

      ::	Obtain on-site leases or agreements to locate ambient air quality surveillance equipment.

      ::	Investigate vendors, and procure equipment necessary to meet the ambient air quality network plan.

      ::	Receive training for site operation and maintenance, quality assurance procedures, and data processing and reporting.

      ::	Make arrangements for appropriate utility hookups for each ambient air quality surveillance site, i.e., electricity, telephones, data lines for electronic submission of concentrations from automated analyzers.

      ::	Install ambient air quality surveillance equipment and equipment shelter. Ensure security of the site.

      ::	Conduct ambient air quality monitoring, incorporating all appropriate quality assurance procedures such as calibrations, precision and accuracy checks, and, if necessary, concurrent monitoring.
      ::	For particulate matter and lead, conduct necessary filter collection and analyses to obtain concentration data.

      ::	Report ambient air pollutant concentration data electronically if from an automated analyzer (generally, this includes ozone, nitrogen dioxide, sulfur dioxide, and carbon monoxide measurements), and from a central location, such as a laboratory, if for particulate matter, ozone precursors, or lead samplers.

      ::	Validate the ambient air data for quality assurance considerations.

      ::	Electronically submit the complete and validated ambient air data to the AQS data repository.

      ::	Provide the U.S. EPA with the SLAMS summary report annually.

Each of these activities are conducted using existing reporting and recordkeeping practices, including electronic submittal to the AQS. If the 40 CFR 58 regulation did not exist, and presumably the related AQS, quality assurance procedures, and siting guidance did not exist, the state and local air quality management agencies would in a majority of cases conduct monitoring; however, methods used by each agency would vary and data would not be readily available to EPA and the public. The influence of the 40 CFR 58 regulation has been to provide a nationally consistent mechanism for collecting ambient air quality data including uniform quality assurance procedures, data collection and storage mediums (AQS), and uniform methodology. Without this regulation and associated ICR, managing and maintaining a national air quality program would be extremely difficult, if possible.

5.	THE INFORMATION COLLECTED--AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

      5(a)	Agency Activities

The U.S. EPA conducts the following activities to implement this ICR and associated regulation:

      ::	Periodically review the 40 CFR 58 regulation to update the information collection and monitoring requirements in light of new technological developments or new air pollutant standards. Develop revisions to the regulation in response to legislative action and program changes.

      ::	Establish, maintain, and support the AQS as the national repository for all state and local air quality management agency ambient air quality data and monitoring information and tribal data. Periodically evaluate and improve upon this system as new technologies, and new regulatory requirements would dictate.

      ::	Answer respondent (generally state and local air quality management agencies, but also industrial organizations, environmental groups, and others) questions about ambient air monitoring, the 40 CFR 58 regulatory requirements, and the AQS. This includes the establishment of the Ambient Monitoring Technology Information Center website, the AQS toll-free hotline, and other written or verbal communication.

      ::	Support the quality assurance program by working within the U.S. EPA and with the respondents to evaluate precision and accuracy data, oversee the National Performance Audit Program, participate in systems audits, and conduct weekly data validation checks on the AQS data submittal.

      ::	Provide within the AQS mechanisms for statistical calculations, such as the number of times a particular ambient air quality monitoring site exceeds the NAAQS. Distribute the AQS data in various ways including upon written request, by Freedom of Information Act request, by press release, and in the annual National Air Quality and Emissions Trends Report.

      ::	Provide adequate electronic storage space within the AQS for all ambient air quality surveillance data and information.

      5(b)	Collection Methodology and Management

All state and local ambient air monitoring networks have access to and use well-established quality assurance procedures as defined in the Quality Assurance Handbook for Air Pollution Measurement Systems, Volumes I and II, EPA/600/R-94/038a & b. These documents ensure that all ambient air quality data are accurate and reliable.

The EPA has provided and will continue to provide resources for the maintenance and operation of the AQS national data repository. All data required by this collection are submitted electronically to reduce the burden of the collection and to improve data quality, agency efficiency, and responsiveness to the public. Various statistical and graphical summaries are also provided by the AQS and AIRS Graphics systems which enhance the utility of the information for consumption by the public and all affected state and local air quality management agencies. In submitting ambient air data into the AQS national repository, we ensure that the data are publicly available, electronically stored, and electronically retrievable. State and local air quality management agencies and the EPA have been submitting data to the AQS since its inception in 1987.

	5(c)	Small Entity Flexibility

This collection contains a minimum amount of information in order to manage the air quality program for the United States. The smallest entities affected by this collection are local air quality management agencies, typically consisting of the governing agencies for a county or group of counties, or a smaller metropolitan area (e.g., cities with a population of 100,000). This collection reduces to the extent practicable and appropriate the burden on entities that provide ambient air quality data and information to or for the U.S. EPA, including with respect to small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:
      (1) establishing differing compliance or reporting requirements or timetables that take into account the resources available to those who are to respond (e.g., the monitoring and reporting requirements decrease as the population of an area decreases, and various timetables for deploying ambient air monitoring stations are negotiated between the affected state or local air quality management agency and the U.S. EPA with consideration of the respondent's resources);

      (2) the clarification, consolidation, or simplification of compliance and reporting requirements (e.g., by establishing, maintaining, and improving as needed the AQS national repository for ambient air quality data and information);

      (3) an exemption from coverage of the collection of information, or any part thereof (e.g., the U.S. EPA negotiates with state and local air quality management agencies to determine the most effective and most efficient ambient air quality networks with respect to the monitoring needs, technical abilities, and resources available to each affected agency).

	5(d)	Collection Schedule

Ambient air quality surveillance data and precision and accuracy data for ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, lead, and particulate matter are submitted according to the schedule defined in 40 CFR §§ 58.16. This current regulation requires that state and local air quality management agencies report their data within 90 days after the end of the quarter during which the data were collected.

The annual SLAMS report is submitted by May 1 of each year for data collected from January 1 through December 31 of the previous year in accordance with 40 CFR § 58.15. This certification also requires that all SPM monitoring data to be used for regulatory purposes by the affected state or local air quality management agency have been certified by May 1.

The annual air quality surveillance network reviews are conducted and reports are submitted to the U.S. EPA on a schedule that is determined by the affected state or local air quality management agency and the U.S. EPA Regional Office.

Ambient air quality data and information are made available to the public at any time in various ways, including:

      ::	Upon request to the appropriate U.S. EPA Regional office, or to the OAQPS;
      ::	By Freedom of Information Act Request to the appropriate U.S. EPA Regional Office or the OAQPS;

      ::	From the state or local air quality management agency responsible for collecting the ambient air quality data and information;

      ::	By obtaining access, through appropriate U.S. EPA channels, to the AQS to obtain the data electronically;

      ::	Through U.S. EPA public reports, such as the annual "National Air Quality and Emissions Trends Report"; or

      ::	Through the AQI reporting mechanisms which include newspaper, television, Internet and other publicly available notices (see www.epa.gov/airnow).

6.	ESTIMATING THE BURDEN AND COST OF THE COLLECTION

	6(a)	Estimating Respondent Burden

All activities listed with section 4 (b) (ii) of this ICR Supporting Statement are included within Tables 1 and 2 of the Appendix. As discussed in Section 1, this ICR reflects a modest update of the previous  ICR submittal.

The detailed burden hour estimates for the 2019 ICR were based on estimates provided in the Guidance for Estimating Ambient Air Monitoring Costs for Criteria Pollutants and Selected Air Toxic Pollutants. We conferred with affected state and local agencies to examine the burden estimates and to compare these values with hourly burdens experienced by their agencies. These agencies are representative of those affected state and local agencies that respond to this collection.

The ICR burden estimates contained within this renewal are based upon program estimates with the addition of inflationary increases.

Worksheet 1: Annual Respondent Burden/Cost Estimates
Collection Activities
Total # Labor Hours Per Respondent Per Year (168 respondents)
1.  Network design
          271
2.  Site installation
          97
3.  Sampling & Analysis
        1964
4.  Maintenance & repairs
        1529
5.  Data management
        3435
6.  Quality assurance
        1858
7.  Supervision
        1300
TOTALS
      10,454

	6(b)	Estimating Respondent Costs

All activities listed with section 4 (b) (ii) of this ICR Supporting Statement are included within the Table 1 of the Appendix.

The detailed burden and cost estimates are based on information provided in the Guidance for Estimating Ambient Air Monitoring Costs for Criteria Pollutants and Selected Air Toxic Pollutants. All costs from this document for 2004 were inflated to 2019, 2020, or 2021 by using the Gross Domestic Product (GDP) price indices as reported in the report available at http://www.cost.jsc.nasa.gov/inflation/nasa/inflateNASA.html. A summary of the average annual respondent burden costs follows.

Worksheet 2: Annual Respondent Burden/Cost Estimates
Collection Activities
Total Labor Cost Per Respondent Per Year (168 respondents)
1.  Network design
         $15,118
2.  Site installation
         $ 9,152
3.  Sampling & Analysis
         $240,141
4.  Maintenance & repairs
         $ 98,664
5.  Data management
         $219,392
6.  Quality assurance
         $122,806
7.  Supervision
         $ 92,619
TOTALS
         $797,892

	6(c)	Estimating Agency Burden and Cost

We estimated the Agency burden and cost by using current burden and cost of the ambient air monitoring program related to this collection. We included burden and cost for the OAQPS, the ten Regional Offices, and associated contract activities. The in-house activities for this collection are completed by a variety of individuals with a variety of salaries; therefore, we used an average salary for computing the program costs. Actual contractor expenses were used for those activities completed using extramural resources. We estimated a total of 192,769 hours and $11,588,754 total agency burden.

	6(d)	Estimating the Respondent Universe and Total Burden and Costs

Worksheet 3 shows the total respondent hourly burdens and costs which was taken from sections 6(b) and 6(c) above for the estimated 168 respondents. The total hourly burden for the respondents was estimated to be 1,756,355 hours and $134,045,828.

Worksheet 3: Annual Total Respondent Labor Burden/Cost Estimates for 168 Respondents
Collection Activities
Total # Labor Hours for U.S. Per Year
Total Labor Cost Per
Year
1.  Network design
 45,665
$ 2,539,752
2.  Site installation
 16,246
$ 1,537,566
3.  Sampling & Analysis
329,886
$40,343,685
4.  Maintenance & repairs
256,844
$16,575,498
5.  Data management
577,143
$36,857,902
6.  Quality assurance
312,134
$20,631,440
7.  Supervision
218,437
$15,559,984
TOTALS
1,756,355
$134,045,828

      6(e)	Bottom Line Burden Hours and Cost Tables

		(i)  Respondent Tally

		Respondent Total Annual Burden = 1,756,355 hours

		Respondent Total Annual Labor Cost for O & M = $134,045,828

		Respondent Total Annual Cost for Non-labor O & M = $15,066,248

		Respondent Total Equipment/Contract Dollars = $ 63,468,962

		Total Respondent Tally = $212,581,038

		(ii) The Agency Tally

		Agency Total Annual Burden = 192,769 hours

		Agency Total Annual Cost = $11,588,754

            	(iii) Variations In The Annual Bottom Line.

We do expect modifications to the monitoring networks to occur over the next several years as state and local air pollution control agencies install and remove monitoring stations to comply with recent revisions to the National Ambient Air Quality Standards.

	6(f)	Reasons for Change In Burden

The previously approved ICR estimate of burden hours is 1,790,021.  This ICR renewal burden hour estimate updates the previous submittal. There is a decrease of 33,666hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. This decrease reflects the U.S. EPA's consolidation of other NAAQS monitors into fewer sites, termination of unnecessary monitors, and more efficient procedures for measuring and reporting data.

	6(g)	Burden Statement

The annual public reporting and recordkeeping burden for this collection of information is estimated to average 10,454 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the U.S. EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, the U.S. EPA has established a public docket for this ICR under Docket ID No. OAR-2002-0091 which is available for public viewing in the EPA Docket Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The telephone number for the Docket Center is<PHONE_NUMBER>.  For additional information about EPA's public docket, visit http://www.epa.gov/dockets.  The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.  An electronic version of the public docket is available through EPA Dockets at http://www.regulations.gov. Use the site to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. You can also send comments by email to<EMAIL_ADDRESS>or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave., NW, Washington, DC 20460.


[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Notices]
[Pages 29505-29511]
[FR Doc No: 2020-10489]

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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: Decision on petition for reconsideration of an administrative
determination of preemption.

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

    Petitioner: The Fire Department of the City of New York (FDNY).
    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: On July 6, 2017, PHMSA published in the Federal Register an
administrative determination that Federal hazardous material
transportation law preempts, in part, FDNY's permit, inspection, and
fee requirements. FDNY has petitioned for reconsideration of that
determination. FDNY's petition for reconsideration is granted in part,
and denied in part, as follows:
    1. Permit and Inspection Requirement--PHMSA affirms its
determination that the HMTA preempts FDNY's permit and inspection
requirements, FC 2707.4 and 105.6, with respect to vehicles based
outside the inspecting jurisdiction, and its determination that the
HMTA does not preempt these requirements with respect to vehicles that
are based within the inspecting jurisdiction. PHMSA's determination is
based on its conclusion 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 material on vehicles based outside the inspecting
jurisdiction.
    2. Permit Fee--Based on new information supplied by FDNY, PHMSA
reverses its determination that FDNY is not using the revenue it
collects from its permit fee for authorized purposes. However, PHMSA
affirms its determination that the permit fee is not ``fair,'' as
required by 49 U.S.C. 5125(f)(1), and therefore affirms its
determination that the permit fee is preempted.

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. Preemption Determination

    The American Trucking Associations, Inc. (ATA) applied to PHMSA for
a determination of whether Federal hazardous material transportation
law, 49 U.S.C. 5101 et seq., preempts the City of New York (FDNY)'s
requirement that those wishing to transport hazardous materials by
motor vehicle must, in certain circumstances, obtain a permit. The
relevant provisions of the FC and the FDNY rules regarding FDNY'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--sets forth 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.
    The following parties submitted comments in the proceeding: ATA,
FDNY, Nouveau, Inc., and the American Coatings Association. On July 6,
2017, PHMSA published in the Federal Register its determination with
respect to ATA's application, in accordance with 49 U.S.C. 5125(d) and
49 CFR 107.203. Preemption Determination 37-R (PD-37(R)), 82 FR 31390.
PHMSA found that Federal hazardous material transportation law preempts
the FDNY requirements as follows:
    1. Permit and Inspection Requirement--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 material on vehicles based outside the inspecting
jurisdiction. Accordingly, we determined that the HMTA preempts FDNY's
permit and inspection requirements with respect to vehicles based
outside the inspecting jurisdiction, but that the HMTA does not preempt
those requirements with respect to motor vehicles that are based within
the inspecting jurisdiction. PD 37(R), 82 FR at 31393-31395.
    2. Permit Fee--The permit fee is preempted because we determined
that FDNY had not shown that the fee it imposes with respect to its
permit and inspection requirements is ``fair'' and ``used for a purpose
related to transporting hazardous material,'' as required by 49 U.S.C.
5125(f)(1). PD 37(R), 82 FR at 31395-31396
    PHMSA, in Part I of PD-37(R), discussed the standards for making
determinations of preemption under the Federal hazardous material
transportation law. Id. at 31392-3. As we explained, unless there is
specific authority in another Federal law or DOT grants a waiver, a
requirement of a State, political subdivision of a State, or Indian
tribe is preempted if:

--It is not possible to comply with both the State, local, or tribal
requirement and a requirement in the Federal hazardous material
transportation law or regulations;
--The State, local, or tribal requirement, as applied or enforced, is
an ``obstacle'' to accomplishing and carrying out the Federal hazardous
material transportation law or regulations; or
--The State, local, or tribal requirement concerns any of five specific
subjects and is not ``substantively the same as'' a provision in the
Federal hazardous material transportation law or regulations. Id.
(citing 49 U.S.C. 5125(a)-(b)).

    In addition, 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.'' Id.
at 31393 (citing 49 U.S.C. 5215(f)(1)).
    These preemption provisions stem from congressional findings that
State, local, or tribal requirements that vary from Federal hazardous
material transportation law and regulations can create ``the potential
for unreasonable hazards in other jurisdictions and confound[ ]
shippers and carriers which attempt to comply with multiple and
conflicting . . . regulatory requirements,'' and that safety is
advanced by ``consistency in laws and regulations governing the
transportation of hazardous materials[.]'' Public Law 101-615 sections
2(3) and 2(4), 104 Stat. 3244 (Nov. 16, 1990). In PD-37(R), PHMSA also
explained that its

[p]reemption 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).

PD-37(R), 82 FR at 31393.

B. Petition for Reconsideration

    FDNY contacted PHMSA, within the 20-day time period provided in 49
CFR 107.211(a), and requested a 60-day extension of time in which to
file a petition for reconsideration. We granted FDNY's request, and set
a new filing deadline. FDNY timely filed its petition for
reconsideration on September 25, 2017. FDNY sent a copy of its petition
to each person who had previously submitted comments in the proceeding.
Thereafter, we received a request from ATA for a 22-day extension of
time to file its comments to FDNY's petition. We granted ATA's request,
and instructed ATA to file its comments on or before November 6, 2017.
ATA timely submitted its comments.
    FDNY, in its petition, challenges PHMSA's findings that its
inspection and permit requirements, and the associated permit fee, are
preempted. FDNY presents four arguments for why it believes the agency
should reconsider and reverse its decision:
     The permit and inspection program is valid because it
addresses an issue of foremost local concern, i.e., the public safety
of FDNY residents;
     The inspection requirement is not an obstacle because it
does not cause unnecessary delay;
     The fee is fair and used for appropriate purposes; and
     PHMSA's decision in this proceeding is inconsistent with
the ruling by the agency's predecessor in a prior waiver of preemption
proceeding.

II. Discussion

A. Inspection and Permit Requirement

    In PD-37(R), PHMSA explained that although State or local
governments may generally conduct inspections of motor carriers to
assure compliance with Federal requirements for the transportation of
hazardous materials, such inspections must not conflict with the
Federal requirement that:

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

PD-37(R), 82 FR at 31394 (citing 49 CFR 177.800(d)). PHMSA explained
that its prior decisions have established several key principles in
this area.
    First, while ``travel and wait times associated with an inspection
are not generally considered unnecessary delays . . .[,] a delay of
hours or days . . . 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.'' Id.
    Second, ``a State's annual inspection requirement applied to
vehicles that operate solely within the State is presumptively valid,''
as 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.'' Id.
    Third, ``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.'' Id.
    Fourth, ``a State or local government may apply an annual
inspection requirement to trucks based outside its jurisdictional
boundaries only if [it] can actually conduct the equivalent of a `spot'
inspection upon the truck's arrival within the local jurisdiction,''
and ``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.''
Id. (alterations omitted).
    In setting forth these principles, PHMSA discussed three prior
determinations: (1) A determination that a town's permit requirement
was preempted with respect to vehicles based outside the town, PD-
28(R), Town of Smithtown, New York Ordinance of Transportation of
Liquefied Petroleum Gas, 67 FR 15276 (Mar. 29, 2002); (2) a
determination that a county's permit requirement was preempted with
respect to vehicles based outside the county, but not with respect to
vehicles based within the county, PD-13(R), Nassau County, New York,
Ordinance on Transportation of Liquefied Petroleum Gases, 63 FR 45283
(Aug. 25, 1998), on reconsideration, 65 FR 60238 (Oct. 10, 2000); and
(3) a determination that a State's inspection requirement was
preempted, PD-4(R), California Requirements Applicable to Cargo Tanks
Transporting Flammable and Combustible Liquids, 58 FR 48933 (Sept. 20,
1993), on reconsideration, 60 FR 8800 (Feb. 15, 1995).
    Consistent with these principles, PHMSA determined that FDNY's
permit and inspection requirements are not preempted with respect to
vehicles based within New York City, but are preempted with respect to
vehicles based outside New York City. PD-37(R), 82 FR at 31394-95. With
respect to the latter category, PHMSA noted (among other things) that
the single facility at which the FDNY performs inspections is only open
weekdays until 3:00 p.m., and that ``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 ([which] requires a permit) and discovers that
the [facility] is closed.'' Id. at 31394. PHMSA noted, moreover, that
there was no evidence that FDNY can perform ``spot'' inspections at the
roadside, and that ``fleet inspections at a motor carrier's own
facility appear to be impractical where the facility is located outside
the City's jurisdiction.'' Id. Thus, PHMSA concluded 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.'' Id. at 31395.
1. Program Validity Based on Unique Local Conditions
    FDNY argues that the decision disregards the ``presumption against
preemption'' that it says must be applied to its program based on its
unique and important purpose of protecting public safety. FDNY relies
on prior Supreme Court decisions, DOT and federal case law, and
executive branch orders and guidance on preemption, to justify its
program. According to FDNY, the ``presumption against preemption'' is a
rule developed by the courts to limit federal preemption of local
requirements, and in particular, environmental health and safety
regulations that are generally recognized as an area of traditional
local control. Moreover, FDNY argues that since its program is limited
in scope, i.e., permit not required for through traffic,\1\ it is
subject to a ``strong presumption of validity.'' In its argument, FDNY
appears to rely heavily on the City's unique local conditions.
According to FDNY, the City's unique local conditions such as ``its
high density; its narrow, congested streets; and its unique security
concerns'' justify special local safety rules, and should not be
preempted. Thus, FDNY contends that PHMSA failed to properly
acknowledge and apply the presumption against preemption of local
safety regulations; failed to accord proper weight to the fact that its
program is narrowly limited in scope to only vehicles making local
deliveries or pickups; and failed to properly consider the unique
circumstances of the City with respect to hazardous materials
transportation.
---------------------------------------------------------------------------

    \1\ Vehicles in continuous transit through the City without
pickup or delivery are not required to have a permit, but are still
subject to routing, time, escort, and other requirements. See FDNY
Rule 2707-02.
---------------------------------------------------------------------------

    We find FDNY's arguments unpersuasive for the following reasons.
First, FDNY ignores the fact that Congress has expressly provided that
state and local laws are preempted if they create an obstacle to
carrying out a provision of the HMRs. When a ``statute contains an
express pre-emption clause, [courts] do not invoke any presumption
against pre-emption but instead focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress' pre-
emptive intent.'' Puerto Rico v. Franklin California Tax-Free Trust,
136 S. Ct. 1938, 1946 (2016) (quotations omitted). And even if a
presumption against preemption did apply here, it would easily be
rebutted by the express command of Congress.
    Second, although FDNY relies heavily on Massachusetts v. DOT, 93
F.3d 890 (D.C. Cir. 1996), that case demonstrates the appropriateness
of PHMSA's analysis here. There, the D.C. Circuit rejected a
determination by PHMSA's predecessor that 49 U.S.C. 5125(a)(2)--the
same provision at issue here--preempted a state law that created an
obstacle to accomplishing the HMTA's ``general goal of uniform waste
regulation.'' Id. at 894. The Court did so based on its conclusion that
the ``clear intent'' of Section 5125(a)(2) is to preempt ``state rules
that . . . pose an obstacle to fulfilling explicit provisions, not
general policies, of HMTA.'' Id. at 895. Although the Court noted a
``presumption against extending a preemption statute to matters not
clearly addressed in the statute in areas of traditional state
control,'' Id. at 896, such a presumption is irrelevant when a matter
is ``clearly addressed in the statute''--i.e., if a state rule
``pose[s] an obstacle to fulfilling explicit provisions'' of the HMTA
or its implementing regulations. And that is exactly what PHMSA has
determined here: The FDNY requirements pose an obstacle to fulfilling
an ``explicit provision'' of the HMTA regulations, the prohibition on
``unnecessary delay'' contained in 49 CFR 177.800(d).
    Third, contrary to FDNY's contentions, PHMSA's determination was in
no way inconsistent with Executive Order (E.O.) No. 13132, entitled
``Federalism'' (64 FR 43255 (Aug. 10, 1999)), or the President's May
20, 2009 memorandum on ``Preemption'' (74 FR 24693 (May 22, 2009)). As
an initial matter, each of those documents states that it does not
``create any right or benefit, substantive or procedural, enforceable''
against the government. In any event, we specifically stated in our
decision that our analysis was guided by the principles and policies
set forth in these documents. PD-37(R) at 31393. We explained that the
President's 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 sufficient legal basis for preemption.'' Id. Furthermore, we
acknowledged that E.O. 13132 authorizes preemption of State law only
when a statute contains an express preemption provision. More
importantly, we noted that the HMTA contains express preemption
provisions, which we have implemented through regulations. As such,
PHMSA's legal authority to make preemption determinations is expressly
authorized through statute by Congress, and PHMSA's preemption
determination is therefore consistent with both E.O. 13132 and the 2009
memorandum.
    Next, like its position in IR-22, it appears FDNY misunderstands
the scope of the analysis required in making preemption determinations.
As we pointed out in the IR-22 decision on appeal, consideration of
local safety concerns is properly conducted during a waiver of
preemption proceeding, not a preemption determination proceeding. 54 FR
at 26704. The correct analysis in a preemption determination proceeding
is whether a state or local requirement stands as an obstacle to
compliance with the federal regulations, not whether local safety
concerns justify a waiver of preemption. Id. Virtually all state and
local hazardous materials requirements are prompted by safety concerns,
but the focus of preemption analysis is whether state or local
requirements are inconsistent with nationally-applicable requirements,
not whether local safety concerns should be weighed against national
concerns. 54 FR at 26704. Therefore, FDNY's safety concerns would be
appropriate in a waiver of preemption proceeding but not relevant in
this proceeding.\2\
---------------------------------------------------------------------------

    \2\ The authorities relied on by FDNY are not to the contrary.
In City of New York v. Ritter Transp., Inc., 515 F. Supp. 663
(S.D.N.Y. 1981) and Nat'l Tank Truck Carriers, Inc. v. City of New
York, 677 F.2d 270 (2d Cir. 1982), the courts addressed New York's
routing requirements for hazardous materials, which necessarily are
based on local conditions and which are expressly permitted by the
HMTA, see 49 U.S.C. 5112. Those cases do not suggest that New York
can rely on local concerns to impose a permit and inspection
requirement that poses an obstacle to federal law. And while the
agency did note that a Boston regulation allowing the Fire
Commissioner to impose certain permit requirements ``may
legitimately assist the Fire Commissioner in dealing with unusual
local conditions and emergencies,'' it found that it could not
determine that regulation's consistency with the HMTA without
information about the specific permit requirements imposed. IR-3,
City of Boston Rules Governing Transportation of Certain Hazardous
Materials By Highway Within the City, 46 FR 18918 (Mar. 26, 1981).
Similarly here, while New York may certainly rely on local
conditions in issuing regulations, those regulations are preempted
if they create an obstacle to compliance with federal law.

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

    Last, regarding the jurisdiction's local conditions, as we
discussed in PD-37(R), we previously addressed a preemption challenge
to FDNY's permit program 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), where we determined that FDNY's permitting system was preempted,
which was affirmed on appeal. In IR-22, FDNY essentially asserted the
same public safety argument, i.e., that its regulations are
``reasonable safety measures justified by its unique combination of
conditions that create exceptional hazards to the transportation of
hazmat and high risks of catastrophic consequences in the event of an
accident.'' 52 FR at 46577. In that proceeding, we rejected this
argument, because we determined that it does not provide an adequate
basis on which to find FDNY's requirements were consistent with the
HMTA and HMR. The reasons we gave for rejecting this ``unique local
concerns'' argument in IR-22 are just as relevant to FDNY's argument
today. For instance, in IR-22 we said, ``virtually every urban and
suburban jurisdiction in the United States has a population density
which is a matter of concern in planning for, and regulating hazmat
transportation.'' Moreover, ``consideration of any unique population
density of New York City must be accompanied by consideration of the
City's unique location as a crossroad for a large percentage of
hazardous materials transportation between both New England and Long
Island and the rest of the Nation; delays and diversions of such
transportation are of great concern.'' 52 FR at 46583.
    Finally, it is important to recognize there are other
administrative options available to FDNY to address its concerns. For
example, if it believes the HMR are inadequate, it may file a petition
for rulemaking with the agency, or otherwise participate in other PHMSA
rulemakings related to these issues. Or if the FDNY believes its
alleged unique circumstances require a different regulatory approach,
it may request a waiver of preemption. 52 FR at 46583; 49 CFR 107.215.

B. Unnecessary Delay

    FDNY asserts that PHMSA ignored federal case law and misapplied its
own precedent in making its determination that FDNY's inspection and
permit requirements create an obstacle to accomplishing and carrying
out the HMR's prohibition against unnecessary delays in the
transportation of hazardous materials with respect to trucks based
outside the inspecting jurisdiction. FDNY contends that federal
judicial precedent recognizes that some delay is both necessary and
acceptable.
1. FDNY's Allegations That PHMSA's Decision Contradicts Federal Case
Law
    FDNY argues that our decision contradicts federal case law. FDNY
relies on cases from the First Circuit to emphasize the apparent
inconsistency of our decision with federal judicial precedent, which
recognizes that some delay is both necessary and acceptable. See N.H.
Motor Transport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984) (state
license fees required for hazardous materials and waste transporters
not preempted by the HMTA and did not violate the commerce clause); see
also N.H. Motor Transport Ass'n v. Town of Plaistow, 67 F.3d 326 (1st
Cir. 1995) (town's zoning ordinance was not preempted by the HMTA or
other statutes, and did not violate the commerce clause). We do not
find these cases persuasive for the following reasons.
    The Flynn court conceded that PHMSA's preemption determinations
have better developed administrative records and are thus more informed
by the agency's expertise, and it left open the possibility that ``a
different record, created before DOT'' may have led to ``different
conclusions.'' Id. at 50, 52 (Notwithstanding the Court's recognition
of the agency's expertise in this area, it ultimately chose to proceed
because it favored judicial efficiency over prolonged delay in the
proceeding that would likely result from consultation with DOT. Id. at
51.). Thus, even if FDNY's regulations were identical to the
regulations at issue in Flynn (which they are not), PHMSA might very
well reach a different result than the First Circuit. Indeed, the
principal basis for the Court's decision--that a license requirement
for hazardous materials transporters creates no more delay than a
requirement that drivers be licensed--is not persuasive: Drivers are
not licensed in each state into which they travel, and a driver
entering a state will therefore experience no delay related to
obtaining a driver's license. See, e.g., 49 U.S.C. 31302 (``An
individual operating a commercial motor vehicle may have only one
driver's license at any time.'').
    Additionally, the Flynn court framed the legal question from the
perspective of the shipper, i.e., looking at the possibility of delay
that arises when a shipper must choose a licensed truck when
transporting hazardous materials at night or on weekends. 751 F.2d at
51. However, as we stated in PD-37(R), as well as prior agency
precedent developed since the Flynn decision, an inquiry into whether
non-federal permit and inspection requirements interfere with the HMR
prohibition against unnecessary delay must necessarily focus on the
delay that may result when a loaded vehicle arrives unannounced in the
inspecting jurisdiction.
    The Flynn court also misinterpreted two Inconsistency Rulings
issued by the Research and Special Programs Administration (RSPA),\3\
which the Court cited for the proposition that ``a `bare' permit
requirement or license requirement is consistent with HMTA.'' 751 F.2d
at 51-52. In the first ruling, RSPA explained that while a ``bare''
permit requirement ``is not inconsistent with Federal requirements,''
``a permit itself is inextricably tied to what is required in order to
get it,'' and therefore determined that the state permit requirement at
issue did create unnecessary delay. IR-2, State of Rhode Island Rules
and Regulations Governing the Transportation of Liquefied Natural Gas
and Liquefied Propane Gas Intended To Be Used by a Public Utility, 44
FR 75566, 75570-71 (December 20, 1979). In the second ruling, RSPA
merely determined that it could not determine whether a permit
requirement created delay. IR-3, City of Boston Rules Governing
Transportation of Certain Hazardous Materials by Highway Within the
City, 46 FR 18918, 18923 (March 26, 1981).
---------------------------------------------------------------------------

    \3\ 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, 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 this decision, regardless of
whether an action was taken by RSPA before February 20, 2005, or by
PHMSA after that date.
---------------------------------------------------------------------------

    In any event, PHMSA disagrees with FDNY's claim that its program is
even less likely to cause delays than the program upheld by the Flynn
court. The state permits at issue in Flynn were apparently available at
multiple ``border stations,'' see 751 F.2d at 51, meaning that many
drivers could likely obtain permits without diverting from their
intended routes. This type of arrangement may be considered a

functionally equivalent option to a spot or roadside inspection. FDNY's
program, in contrast, requires drivers without permits to travel to a
single inspection facility, diverting from their intended routes by
potentially significant amounts.
    FDNY also relies on Nat'l Tank Truck Carriers, Inc. v. City of New
York, 677 F.2d 270 (2d Cir. 1982) and City of New York v. Ritter
Transp., Inc., 515 F. Supp. 663 (S.D.N.Y. 1981) to support its argument
that due to the City's unique safety considerations, enforcement of
certain city regulations promote safety and as such, any associated
transportation delays are not unnecessary. However, as we noted
earlier, these cases involve routing requirements, which are
specifically allowed by the HMTA, and do not suggest that the City can
rely on local concerns to impose a permit and inspection requirement
that poses an obstacle to federal law. Supra at 12 n.2.
2. FDNY's Allegations That PHMSA's Decision Is Inconsistent With Agency
Precedent
    FDNY claims that our decision is inconsistent with agency precedent
as it relates to what is considered an unnecessary delay. According to
FDNY, it estimates that on average, its program only adds about 2 hours
of additional travel and inspection time for unscheduled inspections at
its Hazardous Cargo Unit (HCU). As such, FDNY asserts that a 2-hour
delay falls within the range that DOT previously determined to be
reasonable and presumptively valid.
    Also, FDNY alleges that PHMSA downplayed the program's flexibility
regarding on-site fleet inspections and drop-in inspections during the
HCU's business hours, which FDNY says it is extending to 7 days a week,
starting November 1, 2017.\4\ Finally, FDNY contends that spot or
roadside inspections are not feasible, would raise significant safety
concerns, and are not required because its program is the functional
equivalent of a roadside inspection. Here, the main premise of FDNY's
argument is the proposition that any additional travel and inspection
time associated with its program is a reasonable and necessary delay.
---------------------------------------------------------------------------

    \4\ In its petition, the FDNY stated that in the future, under a
``pilot program,'' the HCU will be open for drop-in inspections on
weekends.
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    Although FDNY is correct that in prior proceedings we have
considered the length of time involved with a delay, we disagree with
its interpretation of the agency's findings in these proceedings
regarding unnecessary delay. In PD-37(R), we discussed our prior
precedent, and 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. Furthermore, we
outlined the agency's position regarding these types of inspections by
highlighting relevant agency precedent developed through prior
Inconsistency Rulings and Preemption Determinations. But we also said
that a local inspection of a vehicle or container used to transport
hazardous material must not conflict with the HMR's prohibition against
unnecessary delays. In the analysis of the issue in PD-37(R), we then
identified several principles related to unnecessary delay based on
agency precedent, including travel and wait times; intrastate and
interstate considerations; and program flexibility. PD-37(R) at 31393-
4. We applied these principles to our analysis of FDNY's program.
    A state or local periodic inspection requirement has an inherent
potential to cause unnecessary delays in the transportation of
hazardous materials when that requirement is applied to vehicles based
outside of the inspecting jurisdiction. PD-28(R) at 15279; see also PD-
4(R); PD-13(R). The inherent potential for unnecessary delay is not
eliminated by a flexible scheduling policy. Id. It is the
impracticability of scheduling an inspection that creates unnecessary
delay. It is the delay in deviating from an intended route to travel to
an inspection facility, and/or waiting with a loaded vehicle for the
arrival of an inspector from another location, that creates unnecessary
delay, rather than the time waiting in line or the inspection time. Id.
Contrary to FDNY's characterization, our precedent does not say that
any delay of 1.5 to 2 hours is ``reasonable and presumptively valid,''
it says that a delay of that length ``during which a State inspection
is actually conducted'' is ``reasonable and presumptively valid.'' PD-
13(R) at 60243. As such, we said in our decision here, and as we have
consistently stated in prior proceedings, that unnecessary delay would
be eliminated if FDNY performed the equivalent of a spot or roadside
inspection upon the unannounced arrival of a truck carrying hazardous
materials. PD-37(R) at 31395; supra. If such an inspection took one or
two hours, such delay could perhaps be characterized as ``necessary.''
But the same is not true for the delay caused by FDNY's requirement
that vehicles drive to the HCU in Brooklyn to be inspected, even if
doing so would amount to a significant re-routing (for example, if a
truck wished to cross the George Washington Bridge and make a delivery
in Upper Manhattan).
    Here, FDNY contends that spot or roadside inspections are not
feasible and would raise significant safety concerns. But we have
repeatedly held that States or localities may sometimes impose
requirements, without creating unnecessary delay, if they offer the
equivalent of spot or roadside inspections, and have never said that
actual spot or roadside inspections are required. FDNY argues that its
program offers the equivalent of a spot or roadside inspection because
it offers flexible scheduling and because its HCU is now open 7 days a
week and offers ``on demand'' inspections. Since we issued our decision
in this proceeding, we have confirmed that the HCU is now open on the
weekends. However, we note that it remains the sole inspection facility
within the jurisdiction and it still closes at 3 p.m. each day.
    According to FDNY, these operational changes amount to the
functional equivalent of a spot or roadside inspection. We disagree.
The underlying principle of a spot inspection is the elimination of
delay caused by travelling to an inspection facility or waiting for an
inspector to arrive. Previously we have indicated that options that may
be considered ``functional equivalents'' may include conducting
inspections at points of entry into the inspecting jurisdiction; other
roadside inspection locations; and terminals. PD-4(R) at 48941. These
options all have the common effect of eliminating unnecessary delays by
bringing the inspection site closer to a vehicle loaded with hazardous
materials as it enters the inspecting jurisdiction. FDNY's primary
solution to delays caused by its program amounts to nothing more than
keeping its single inspection facility open for a few hours on the
weekends. On balance, we do not believe these changes rise to the level
of a functional equivalent of a spot or roadside inspection.
    For the reasons stated above, we believe FDNY misunderstands the
prohibition against unnecessary delays because its arguments here focus
on trying to justify the length of time of a delay that may be caused
by its inspection program, rather than implementing changes to its
program that would eliminate unnecessary delays. Here, FDNY estimates
that such a delay would only be about 2 hours, which it asserts is
considered reasonable and necessary. However, as we explained above,
under the unnecessary delay requirement, 49 CFR 177.800(d), the
determinative factor is

not the amount of time of delay caused by an inspection program, or
whether the delay is of a reasonable length. But rather, whether the
delay is unnecessary. Here, FDNY's single inspection facility with
limited operating hours revealed an inflexible program that creates
delays in the transportation of hazardous materials. Therefore, we are
unpersuaded by FDNY's arguments and affirm our finding that, with
respect to vehicles based outside the inspection jurisdiction, its
program is an obstacle to accomplishing and carrying out the HMR's
prohibition against unnecessary delays in the transportation of
hazardous materials.

C. Permit Fee

    In PD-37(R), PHMSA addressed ATA's contention that FDNY's permit
fee violates 49 U.S.C. 5125(f)(1), which provides in relevant part that
a ``political subdivision of a State . . . may impose a fee related to
transporting hazardous material only if the fee is fair and used for a
purpose related to hazardous material.'' PHMSA concluded that FDNY's
fee was neither ``fair'' nor ``used for a purpose related to hazardous
material.'' PD 37(R), 82 FR at 31395-96. FDNY challenges both findings.
1. Fairness of the Fee
    In PD-37(R), PHMSA noted that it had previously determined that it
should determine whether a fee is ``fair'' by using the test
articulated by the Supreme Court in Evansville-Vanderburgh Airport
Auth. v. Delta Airlines, Inc., 405 U.S. 707 (1972). PD37(R), 82 FR at
31395. PHMSA stated that this test, as further clarified by the Court,
provides that a fee is reasonable 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.'' Id. (citing Northwest Airlines, Inc. v.
Kent, 510 U.S. 355, 367-68 (1994)). PHMSA discussed two prior instances
in which it had found that flat fees were not ``fair'' when there was
no evidence that they were based on a fair approximation of the use of
the roads or other facilities within a state. Id. PHMSA concluded that
FDNY's fee was not fair and discriminated against interstate commerce,
because ``there is no evidence showing that FDNY's flat fee is
apportioned to a motor carrier based on some approximation of benefit
conferred to the permit holders,'' and ``there is no evidence that a
more finely graduated fee would pose genuine administrative burdens to
the City.''
    FDNY asserts that the program's inspection fee, $105 per
inspection, is not excessive. Furthermore, FDNY states that the costs
of conducting the inspections ``exceeds or approximates'' revenue from
fee collection and that the FDNY spends more money than it collects
from the program on hazardous materials transport emergencies,
including training and equipment for emergency response. Therefore,
FDNY contends that its inspection fee is a reasonable flat fee since
each regulated vehicle costs the same amount to inspect, regardless of
how many times it uses local roads, and for that reason, ``a graduated
fee that reflects road usage is not appropriate.''
    In support of its arguments here, FDNY submitted expense sheets for
FY 2015-2017. In addition, FDNY contends that PHMSA ``ignores
Evansville's recognition that a jurisdiction `may impose a flat fee for
the privilege of using its roads, without regard to the actual use by
particular vehicles, so long as the fee is not excessive.' '' FDNY
relies on the First Circuit Court of Appeals' interpretation of this
statement in Evansville, in N.H. Motor Transport Ass'n v. Flynn, 751
F.2d 43 (1st Cir. 1984) (state license fees required for hazardous
materials and waste transporters did not violate the commerce clause).
The Flynn Court, in validating the annual license fee, said that the
``burden of proving `excessiveness' falls upon the truckers, not the
state[,]'' and found persuasive ``the unrefuted plausibility of
significant state expense[.]'' Flynn at 48.
    The materials FDNY submitted with its petition, which provided
additional detail about the emergency and other services provided and
their associated costs would, under the logic of Flynn, appear to
support FDNY's assertion that its annual inspection and permitting
program typically costs more than the revenue from the fees collected.
However, as ATA noted in its comments on the petition, and as we
acknowledged in PD-22(R), FDNY fails to recognize that the Court
subsequently limited its holding in Evansville to situations where a
flat tax is the `` `only practicable means of collecting revenues from
users and the use of a more finely gradated user-fee schedule would
pose genuine administrative burdens.' '' PD-22(R) at 59403 (quoting Am.
Trucking Assoc., Inc. v. Scheiner, 483 U.S. 296, 266, 107 S. Ct. 2829
(1987)). More importantly, in Scheiner, the Court recognized the
discriminatory consequences for out-of-state vehicles that are
associated with an unapportioned flat tax, such as FDNY's fee, and
rejected the proposition that every flat tax for the privilege of using
a State's highways must be upheld even if it has a clearly
discriminatory effect on commerce. Accordingly, ``imposition of the
flat taxes for a privilege that is several times more valuable to a
local business than to its out-of-state competitors is unquestionably
discriminatory and thus offends the Commerce Clause.'' Id. at 296; see
also, Am. Trucking Assoc., Inc. v. Secretary of State, 595 A.2d 1014,
1017 (Me. 1991).
    Furthermore, even if the fee collected does not cover the cost of
the program and an apportioned program is not appropriate, as alleged
here by FDNY, ``in-state trucking concerns will be favored more than
their interstate competitors.'' Id. Consequently, the burden is on the
states to establish that collection of more finely calibrated user
charges is impracticable. Id. FDNY did not meet this burden. As noted
above, apart from its showing that its annual inspection and permitting
program typically costs more than the revenue from the fees collected,
it failed to adequately address whether apportionment of its fee was
impracticable.
2. Fee Used for Appropriate Purposes
    We now turn to FDNY's challenge to our finding that it is not using
the fees it collects under its program in accordance with the statutory
mandate. FDNY's argument here is that because the cost to administer
the FDNY program generally exceeds the revenues collected from the fee,
FDNY believes it has demonstrated that the fee satisfies the ``used
for'' test. However, before we address the merits of FDNY's argument,
it is important to note that under the HMTA, FDNY has an affirmative
obligation to submit a biennial report to DOT on fees that it levies in
connection with the transportation of hazardous materials. The report
must include information about the basis on which the fee is levied;
the purposes for which the revenues from the fees are used; the annual
total amount of the revenues collected from the fee; and such other
matters requested by DOT. See 49 U.S.C. 5125(f)(2). According to our
records, FDNY has consistently failed to comply with this statutory
mandate. Consequently, since FDNY is the only party with the
information and data related to its use of the fees, it has the burden
to sufficiently demonstrate it is using the fees appropriately.
    Notwithstanding FDNY's failure to file the required report, upon
review of the information available to us, we find that the
supplemental information provided by FDNY in its petition

regarding its use of the fee revenue appears to show that FDNY is
spending the revenue on purposes permitted by the law. Therefore, we
are reversing decision with respect to the ``used for'' test.
Nevertheless, as discussed above, we are affirming our finding that the
fee is not fair.

D. Prior Administrative Proceedings

    FDNY argues that in a prior ruling, the agency already indicated
that FDNY's inspection and permit requirements were not preempted. That
is patently erroneous. In PD-37 we extensively discussed these
proceedings. Furthermore, we explained that these prior proceedings did
not involve a direct challenge to FDNY's program, or attempt to answer
any of the arguments that ATA presented in this proceeding. For
example, whether the City's inspection and permitting program
requirements, and related fees, should be preempted because the program
causes unnecessary delay and unreasonable cost; whether its fees are
fair; and whether FDNY is using the revenue generated from the fees for
authorized purposes. For these reasons, we do not believe further
discussion on our related prior administrative proceedings is
necessary.

III. Ruling

    For the reasons set forth above, FDNY's petition for
reconsideration is granted in part, and denied in part, as follows:
    PHMSA affirms its determination that the HMTA preempts FDNY's
permit and inspection requirements, FC 2707.4 and 105.6, with respect
to vehicles based outside the inspecting jurisdiction, and its
determination that the HMTA does not preempt these requirements with
respect to vehicles that are based within the inspecting jurisdiction.
PHMSA's determination is based on its conclusion 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 material on vehicles based outside the
inspecting jurisdiction.
    Permit Fee--Based on new information supplied by FDNY, PHMSA
reverses its determination that FDNY is not using the revenue it
collects from its permit fee for authorized purposes. However, PHMSA
affirms its determination that the permit fee is not ``fair,'' as
required by 49 U.S.C. 5125(f)(1), and therefore affirms its
determination that the permit fee is preempted.

IV. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes the
final agency action by PHMSA on ATA's application for a determination
of preemption as to the FDNY's requirement that those wishing to
transport hazardous materials by motor vehicle must, in certain
circumstances, obtain a permit. This decision becomes final on the date
of publication 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).

    Issued in Washington, DC, on May 12, 2020.
Paul J. Roberti,
Chief Counsel.
[FR Doc. 2020-10489 Filed 5-14-20; 8:45 am]
BILLING CODE 4910-60-P