{"operation":"document","citation":"CHI-03-001","title":"Department of California Highway Patrol — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-06-27","effective_on":null,"summary":"CHI-03-001 response to Department of California Highway Patrol concerning 172.802.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-03-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-03-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-03-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-03-001.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\nRoom 8407\n400 Seventh Street, S.W.\nSpecial Programs\nResearch and\nWashington, D.C. 20590\nAdministration\nOffice of the\nChief Counsel\nPhone: (202) 366-4400\nFax: (202) 366-7041\nJUN\n27 2003\nCommissioner D.O. Helmick\nDepartment of California Highway Patrol\nP.O. Box 942898\nSacramento, CA 94298-0001\nCHP File No. 1.A08926.062.3-1-0404\nDear Commissioner Helmick:\nThank you for your June 23, 2003 letter to Delmer Billings of the Research and Special Programs\nAdministration's Office of Hazardous Materials Standards. This responds to your question\nwhether provisions in 49 U.S.C. § 5125 (a part of the Federal hazardous material transportation\nlaw), would preempt a State requirement that a motor vehicle transporting a hazardous material\nmust be equipped with global positioning system (GPS) technology.\nAs I believe you already understand, RSPA does not have sufficient resources to conduct\nthorough reviews of State and local requirements outside of the preemption determination\nprocess set forth in subpart C of 49 C.F.R. Part 107 (beginning at § 107.201). Moreover, our\nreview of proposed or draft requirements cannot consider the manner in which the requirements\nwould actually be \"applied or enforced,\" a factor on which a determination of preemption often\ndepends. 49 U.S.C. § 5125(a)(2). Informal reviews are also hindered by the absence of the\npublic input that occurs in the formal determination process established in 49 U.S.C.\n§ 5125(d) (1).\nNonetheless, at your request, I am providing you with my personal, informal, and unofficial\ncomments on a possible State requirement for GPS vehicle tracking technology. I also refer you\nto the most recent index and summary of administrative determinations and court decisions on\nhazardous materials preemption at our website: http://rspa-atty.dot.gov (click on \"Preemption\"\nand then \"Preemption of State & Local Laws on Hazardous Materials Transportation\").\nBoth the Department of Transportation (DOT) and the Department of Homeland Security (DHS)\nare taking actions to improve the safety and security of hazardous materials in transportation\n\n<<<PAGE 2>>>\n\n2\nincluding, specifically, en route security. Under RSPA's final rule published in the Federal\nRegister on March 25, 2003, shippers and carriers of certain types and quantities of hazardous\nmaterials must develop and implement a security plan that addresses, among other matters, \"the\nassessed security risks of shipments of hazardous materials... en route from origin to\ndestination, including shipments stored incidental to movement.\" 49 C.F.R. § 172.802(a)(3),\nadded at 68 Fed. Reg. 14521. We are also considering additional specific requirements to\nenhance en route security, such as vehicle tracking, escorts, pre-notification, and anti-theft\ndevices, in a rulemaking proceeding initiated last July. See our advance notice of proposed\nrulemaking published on July 16, 2002, at 67 Fed. Reg. 46622.\nRSPA coordinates its rulemakings with other Federal agencies that also have responsibility for\nimproving the security of hazardous materials in transportation. In this regard, on May 5, 2003,\nthe Transportation Security Administration (TSA) established security threat assessment\nstandards for determining whether an individual poses a security threat warranting denial of a\nhazardous materials endorsement for a commercial driver's license (CDL). 68 Fed. Reg. 23852.\nOn the same day, DOT's Federal Motor Carrier Safety Administration (FMCSA) issued its\ninterim final rule prohibiting a State from issuing a CDL with a hazardous materials endorsement\nunless TSA has first determined that the applicant does not pose a security risk based on a\nbackground records check, and RSPA issued a companion rule requiring shippers and carriers to\ncomply with the TSA and FMCSA requirements. 68 Fed. Reg. 23844, 23832.\nA State requirement for GPS technology on any motor vehicle transporting a hazardous material\nwould appear to present at least two possible \"obstacles\" to accomplishing and carrying out\nFederal hazardous material transportation law, a regulation issued under that law, or a DHS\nhazardous materials transportation security regulation and, thus, would be preempted under 49\nU.S.C. § 5125(a)(2), as amended by § 1711(b) of the Homeland Security Act (HSA), Pub. L.\n107-296, 116 Stat. 2320 (Nov. 25, 2002).\nFirst, a State requirement for GPS technology may conflict with future requirements issued by\nDOT or DHS that specifically allow or require other methods for \"real-time\" tracking of a motor\nvehicle transporting hazardous materials - or a determination by DOT and DHS that such \"real-\ntime\" tracking is not necessary. The principles of \"conflict\" preemption in 49 U.S.C. § 5125\napply when a State or local requirement differs from a Federal requirement and also when a\nFederal agency \"has decided that no such requirement should be imposed at all.\" Ray v. Atlantic\nRichfield Co., 435 U.S. 151, 171-72 (1978). Under these principles, a State vehicle tracking\nrequirement would also be preempted under § 5125(a)(1), as amended by HSA § 1711(b), if it\nbecame impossible to comply with the State requirement and a future Federal regulation on the\nsame subject.\nSecond, President Bush has directed all Federal agencies to follow the policy set forth in Section\n1(b)(8) of E.O. 12866 that Federal requirements should \"to the extent feasible, specify\nperformance objectives, rather than specifying the behavior or manner of compliance that\nregulated entities must adopt.\" A State requirement that prescribes use of a specific vehicle\n\n<<<PAGE 3>>>\n\n3\ntracking technology creates a greater potential for conflict with different technologies prescribed\nby other States or local jurisdictions as well as the goals and purposes of Federal hazardous\nmaterials safety and security regulations that are expressed in terms of performance objectives\nwhenever possible.\nI hope that these comments are helpful. If you need further information, you may contact me or\nFrazer Hilder of my staff at the above address, by telephone at 202-366-4400, or by fax at 202-\n366-7041.\nSincerely,\nNancy E. Machado\nAssistant Chief Counsel for\nHazardous Materials Safety and\nResearch and Technology Law","truncated":false,"body_characters":6233}