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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Notices
Earlier in 2009, and subsequent to the publication of final rules in each of the PHMSA and EPA rulemakings, but before EPAs clarification of its rules, PHMSA issued its decision on NTTCs application. On January 23, 2009, PHMSA published in the Federal Register its determination of NTTCs application in Preemption Determination No. 19R PD19R, 74
FR 4291.4 PHMSA found that the HMTA preempted the following NYSDEC requirements because the requirements were not substantively the same as requirements in the HMR on the marking, maintaining, repairing, or testing of a package or container that is represented, marked, certified, or sold as qualified for transporting hazardous material:
6 NYCRR 230.4a3requirement that the marking must be a minimum two inches and contain NYS DEC;
6 NYCRR 230.6brequirement for maintaining a copy of the most recent pressure-vacuum test results with the gasoline transport vehicle; and 6 NYCRR 230.6crequirement to retain pressure-vacuum test and repair results for two years.
Within the 20-day time period provided in 49 CFR 107.211a, NYSDEC submitted a petition for reconsideration of PHMSAs decision in PD19R. NYSDEC asked PHMSA to rescind its preemption determination and dismiss the application by NTTC. In April 2009, PHMSA extended the period for comments on NYSDECs petition due to the unusually long period it took for the agency to issue PD19R. This action was followed by another extended period of inactivity until August 26, 2010, when PHMSA
reopened the period for comments on NYSDECs petition for reconsideration to receive comments on EPAs rule changes. The matter has remained dormant since that time based on PHMSAs understanding that NYSDEC
was planning to revise its regulations.
On February 12, 2020, NYSDEC
proposed a rulemaking to repeal and replace 6 NYCRR Part 230 Gasoline Dispensing Sites and Transport Vehicles. Volume XLII, Issue 6, N.Y.
Reg, 8 February 12, 2020. The adopted requirements in 6 NYCRR Part 230, sections 230.6 and 230.7, became effective on February 11, 2021. These provisions contain revised versions of the requirements that were at issue in this proceeding for marking gasoline Rule with amendments and clarifications, 76 FR
4156 January 24, 2011.
4 As published in the Federal Register, the agencys January 23, 2009 determination in PD
19R indicated an incorrect docket number 99
3559, instead of 983559.

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transport vehicles and recordkeeping and reporting requirements.
II. Dismissal on Grounds of Mootness NYSDECs legislative changes to its rules have rendered moot NYSDECs petition for reconsideration of PHMSAs 2009 preemption determination.
NYSDEC, in its February 12, 2020, rulemaking proposal, required pressurevacuum cargo tank testing and markings that align with DOTs testing and marking requirements. NYSDEC
indicated that the proposed amendments would make the requirements consistent on the state and federal level. Furthermore, NYSDEC
proposed to revise the gasoline transport vehicle recordkeeping retention requirements from 2 years to 5 years in order to align with the current version of the EPAs recordkeeping requirement located at 40 CFR part 63 subpart CCCCCC.
The recently adopted requirements in 6 NYCRR Part 230, sections 230.6 and 230.7, became effective on February 11, 2021. These provisions contain the requirements that were at issue in this proceeding for marking gasoline transport vehicles and recordkeeping and reporting requirements. The provision for the marking of gasoline transport vehicles states:
a No owner or operator of a gasoline transport vehicle may transport gasoline or allow the vehicle to be filled or emptied in New York State unless the gasoline transport vehicle meets:
1 the federal Department of Transportation DOT requirements for leak testing as required by 49 CFR 180.407h see Table 1, Section 200.9 of this Title; and 2 the federal DOT requirements for test markings as required by 49 CFR 180.415 see Table 1, Section 200.9 of this Title.

6 NYCRR 230.6.
The recordkeeping and reporting provision states:
a The owner of any gasoline transport vehicle subject to the leak testing requirements outlined in section 230.6a of this Part shall keep:
1 leak testing records with information as prescribed by 49 CFR 180.417b1 and 2
see Table 1, Section 200.9 of this Title for 5 years; and 2 a copy of the most recent leak testing results with the gasoline transport vehicle.

6 NYCRR 230.7.
In light of the facts and circumstances described above, it is apparent the NYSDEC rules that PHMSA found were preempted under the HMTAand subject of NYSDECs petition for reconsiderationhave been significantly revised. On their face, the revised rules do not appear to impose the same requirements on regulated
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entities as the previous version of the rules that were challenged in this proceeding. Consequently, it would be inappropriate for PHMSA to render a decision on a petition for reconsideration that was filed more than a decade ago, for relief from the agencys preemption determination that was based on a previous version of NYSDECs pressure-vacuum cargo tank testing and markings requirements when those requirements have recently undergone significant revisions. It appears that issuing a decision on the petition for reconsideration would have no practical effect on any party.
III. Ruling For the reasons set forth above, NYSDECs petition for reconsideration is dismissed because the issues raised in the petition are moot.
Going forward, any person directly affected by the revised NYSDEC rules including a State, political subdivision of a State, or Indian tribe may apply to PHMSA for a decision on whether the revised rules are preempted by the HMTA. 49 U.S.C. 5125d; 49 CFR
107.203. Similarly, any person who thinks there is a practical reason for PHMSA to revisit its preemption decision regarding the now-superseded rules may apply to PHMSA for a new decision on that question.
Issued in Washington, DC, on May 26, 2021.
Vasiliki Tsaganos, Acting Chief Counsel.
FR Doc. 202111494 Filed 6421; 8:45 am BILLING CODE 491060P

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration Hazardous Materials: Notice of Applications for New Special Permits Pipeline and Hazardous Materials Safety Administration PHMSA, DOT.
ACTION: List of applications for special permits.
AGENCY:

In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportations Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the Nature of Application portion of
SUMMARY:

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