[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Notices]
[Pages 35239-35245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16623]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
Federal Highway Administration
[Docket No. RSPA-98-3579 (PDA-20(RF))]


Application by Association of Waste Hazardous Materials 
Transporters for a Preemption Determination as to Cleveland, Ohio 
Requirements for Transportation of Hazardous Materials

AGENCY: Research and Special Programs Administration (RSPA) and Federal 
Highway Administration (FHWA), DOT.

ACTION: Public notice reopening comment period.

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SUMMARY: RSPA and FHWA are reopening the comment period on the 
application by the Association of Waste Hazardous Materials 
Transporters (AWHMT) for an administrative determination whether 
Federal hazardous materials transportation law preempts certain 
requirements of the City of Cleveland, Ohio, concerning the 
transportation of explosives and other hazardous materials within the 
City. AWHMT has asked RSPA and FHWA to defer consideration of several 
of the requirements challenged in AWHMT's original application because 
the City is

[[Page 35240]]

considering amending those requirements. In addition, AWHMT wishes RSPA 
and FHWA to consider requirements not challenged in its original 
application concerning the minimum distances that must be maintained 
between vehicles transporting explosives or other hazardous materials. 
Interested parties may comment on all the City's requirements for which 
AWHMT seeks a preemption determination, including the City's separation 
distance requirements.

DATES: Further comments received on or before August 16, 1999, and 
rebuttal comments received on or before September 28, 1999, will be 
considered before an administrative ruling is issued jointly by RSPA's 
Associate Administrator for Hazardous Materials Safety and FHWA's 
Administrator. Rebuttal comments may discuss only those issues raised 
by comments received during the reopened initial comment period and may 
not discuss new issues.

ADDRESSES: AWHMT's original application, its request to modify and 
amend that application, and all comments and other documents submitted 
in this proceeding may be reviewed in the Dockets Office, U.S. 
Department of Transportation, Room PL-401, 400 Seventh Street, SW, 
Washington, DC 20590-0001. All documents filed in this proceeding are 
also available on-line through the home page of DOT's Docket Management 
System at <http://dms.dot.gov>.
    Comments should be submitted to the Dockets Office at the above 
address. Three copies of each written comment should be submitted. You 
may also submit comments electronically. To do so, long on to the 
Dockets Management System at <http://dms.dot.gov>. Click on ``Help & 
Information'' to obtain instructions for filing a comment 
electronically.
    Each comment should refer to the Docket Number set forth above. A 
copy of each comment must also be sent to (1) Mr. Michael Carney, 
Chairman, Association of Waste Hazardous Materials Transporters, 2200 
Mill Road, Alexandria, VA 22314, and (2) Mr. Cornell P. Carter, 
Director of Law, City of Cleveland, City Hall--Room 106, 601 Lakeside 
Avenue, Cleveland, OH 44114-1077. A certification that a copy has been 
sent to these persons must also be included with the comment. (The 
following format is suggested: ``I certify that copies of this comment 
have been sent to Messrs. Carney and Carter at the addresses specified 
in the Federal Register.'')
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations issued by DOT, are available through the home page of 
RSPA's Office of the Chief Counsel, at <http://rspa-atty.dot.gov>. A 
paper copy of this list and index will be provided at no cost upon 
request to Mr. Hilder, at the address and telephone number in For 
Further Information Contact below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration (Tel. No. 202-
366-4400), or Judith A. Rutledge, Office of the Chief Counsel, Federal 
Highway Administration (Tel. No. 202-366-0864), U.S. Department of 
Transportation, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    AWHMT has applied for a determination that Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts certain 
requirements of the City of Cleveland (City) applicable to the 
transportation of explosives and other hazardous materials in and 
through the City. In its application, AWHMT challenged requirements of 
the City concerning the transportation of:

--Hazardous materials in an amount for which a placard is required by 
the HMR, in Chapter 394 of the City's Consolidated Ordinances (City 
Code) for a permit, permit fees, proof of insurance, and routing and 
time restrictions.
--Explosives in any amount, in Chapter 387 of the City Code for a 
permit, permit fees, proof of insurance, routing and prenotification of 
shipments, vehicle inspections, the number of fire extinguishers, and 
the City's unmodified requirement for a police escort to accompany 
shipments of more than 250 lbs. of explosives.

    The text of AWHMT's application was published in the Federal 
Register on September 17, 1998, and interested parties were invited to 
submit comments. 63 FR 49804. After RSPA and FHWA initially denied 
requests by the Public Utilities Commission of Ohio (PUCO) and the City 
for a 60-day extension of the time to submit comments, comments were 
submitted by the City, AWHMT, PUCO and the following additional 
parties: Association of American Railroads, Hazardous Materials 
Advisory Council, Institute of Makers of Explosives, National Paint & 
Coatings Association, Ohio Environmental Service Industries, and 
Roadway Express.
    Following receipt of these comments, RSPA and FHWA realized that 
the two periods for submitting comments had been inadvertently 
shortened, from 45 days to 30 days, in the notice published in the 
Federal Register. (In the text of the notice submitted to the Federal 
Register, RSPA and FHWA had specified 45 days for the initial and 
rebuttal comment periods.) Based on that error and the City's 
statements of its attempts to resolve many of the issues informally 
with AWHMT, RSPA and FHWA held a telephone conference with 
representatives of AWHMT and the City on December 14, 1998. In a 
December 28, 1998 letter, RSPA confirmed that, over the next two 
months, AWHMT and the City would explore informal resolution of the 
issues raised in AWHMT's application and advise RSPA and FHWA of the 
results of these efforts.

II. Request To Modify Application

    In further correspondence and a conference telephone call on April 
8, 1999, AWHMT and the City advised RSPA and FHWA that the City's Law 
Department was proposing changes to the City Code that would resolve 
many of the issues raised in AWHMT's application. In its April 15, 1999 
letter (set forth in Appendix A), AWHMT asked to modify and amend its 
application. It asked RSPA and FHWA to consider at this time only the 
requirements on which AWHMT had not been able to reach an understanding 
with the City, including requirements not challenged in its original 
application concerning the minimum distances that must be maintained 
between vehicles transporting explosives or other hazardous materials. 
AWHMT also asked RSPA and FHWA to defer consideration of sections in 
the City Code that the City is proposing to amend. AWHMT's request and 
the City's response in an April 30, 1999 letter to RSPA and FHWA (set 
forth in Appendix B) are summarized below.

A. Requirements To Be Addressed by RSPA and FHWA

    In its letter, AWHMT requested that RSPA and FHWA determine whether 
Federal hazardous materials transportation law preempts the following 
requirements:

--City Code Sec. 394.06(b) prohibiting the transportation of hazardous 
materials in the ``downtown area'' of the City between 7 a.m. and 6 
p.m. except Saturdays and Sundays, unless the Fire Chief grants an 
exception pursuant to Sec. 394.08(e) on a showing

[[Page 35241]]

that ``delivery or pickup of the hazardous material * * * can be 
practicably made only during [the prohibited] time period'' and 
transportation of this material is in ``the public interest'';
--City Code Sec. 387.07(d) and the provision in the Application for the 
Transportation of Explosives (Application) requiring the carrier to 
specify the route to be taken within the City and providing that the 
Director of Public Safety (or his representative) shall designate the 
route to be taken within the City;
--the Application's provision that the carrier must notify the Fire 
Department ``24 hours in advance of all deliveries'' of explosives 
within the City;
--the Application's provision that a police escort is required if more 
than 250 lbs. of explosives are transported within the City; and
--City Code Secs. 387.08(b) and 394.07(b) requiring a vehicle 
transporting explosives or other hazardous materials to maintain a 
certain distance from any other vehicle transporting explosives or 
other hazardous materials, i.e., 500 feet between vehicles transporting 
explosives and 300 feet between vehicles transporting other hazardous 
materials.

    AWHMT acknowledged that it had not challenged Secs. 387.08(b) and 
394.07(b) in its original application and asked permission to amend its 
application to include these requirements. AWHMT contends that these 
separation distance requirements ``hinder the safe operation of 
vehicles, are impossible to comply with at the distances required, and 
are a misuse of federal placarding requirements.'' AWHMT stated that it 
would submit a new, separate application for a preemption determination 
with respect to the City's separation distance requirements if the City 
objected to consideration of these requirements in this proceeding.
    In response, the City stated that it is willing to continue to 
discuss with AWHMT the first four requirements summarized above, but a 
resolution is not likely. The City objected to DOT's consideration of 
the separation distance requirements in City Code Secs. 387.08(b) and 
394.07(b) on the grounds that (1) AWHMT has not shown that it, or its 
members, are ``directly affected'' by these requirements, as specified 
in 49 U.S.C. 5125(d)(1); (2) AWHMT waived its right to challenge these 
requirements by failing to include them in its original application; 
and (3) all issues in AWHMT's amended application should be ``the 
subject of a notice in the Federal Register''and ``subject to comments 
by interested parties.''
    Inasmuch as the discussions between AWHMT and the City have better 
focused the issues to be addressed in this proceeding, RSPA and FHWA 
believe it is appropriate to allow interested parties the opportunity 
to submit additional comments on all the requirements challenged in 
AWHMT's original application that are currently at issues between AWHMT 
and the City. Because it is appropriate to reopen the comment period 
with respect to all issues relating to four requirements challenged in 
AWHMT's original application, it is logical to allow interested parties 
to also submit comments in this proceeding on the City's separation 
distance requirements in City Code Secs. 387.08(b) and 394.07(b)--
rather than consider these requirements in a separate proceeding. The 
City's separation distance requirements appear to apply to the driver 
of any vehicle transporting explosives or other hazardous materials 
within the City of Cleveland, including drivers employed by the 
companies whose affidavits were submitted with AWHMT's original 
application. Each of these companies stated that their vehicles pick 
up, deliver, or otherwise transport hazardous materials within the 
City.

B. Requirements To Be Deferred

    In their letters, AWHMT and the City agree that RSPA and FHWA 
should defer consideration of the following sections in the City Code 
which AWHMT had challenged in its original application, but which the 
City is proposing to amend:

--394.08, 387.02(g), 387.04, and 387.07 concerning annual permits;
--394.16 and 387.04(b) concerning fees for permits;
--394.08 and 387.09 concerning proof of insurance;
--387.08(a) concerning vehicle inspections; and
--387.08(a) concerning fire extinguishers.

    The City stated that, pending action on the proposals to amend the 
City Code, the City's Division of Fire will continue to refrain from 
enforcing ``the hazardous materials and explosive transportation permit 
and fee requirements under Sections 394.08, 394.16, 387.04 and 
387.07,'' but that it would not agree to

withhold enforcement of the other provisions of the City's Codified 
Ordinances that are listed on page two of [AWHMT's] April 15, 1999 
correspondence, namely, permit and insurance requirements for the 
use and storage of explosives, vehicle inspections (except for 
annual inspections which the City does not conduct), and the 
maintenance of at least one fire extinguisher in good working 
condition.

    RSPA and FHWA agree with AWHMT and the City that it is preferable 
to defer consideration of requirements that are being proposed to be 
revised, when those revisions (if adopted) may resolve the concerns 
raised in AWHMT's application. Accordingly, RSPA and FHWA are not 
inviting further comments on the requirements listed above, which will 
not be addressed further in this proceeding unless and until AWHMT or 
the City advises that they have been unable to resolve these parts of 
AWHMT's original application.

C. Effect of Revision of Routing Requirements

    Finally, AWHMT asked FHWA for an opinion with respect to the 
requirements in City Code Sec. 394.06(a) and (d) providing that 
hazardous materials may be transported on ``City streets [only by] the 
safest and most direct route and the shortest distance from an 
interstate highway to the point of origin or destination, as determined 
by the Fire Chief or his designee.'' AWHMT noted that this restriction 
was created prior to November 14, 1994 and, therefore, is not subject 
to the condition in 49 U.S.C. 5125(c)(1) that a highway routing 
designation or limitation must comply with FHWA's regulations in 49 CFR 
397.71. RSPA and FHWA understand that the City will consider deleting 
from Secs. 394.06(a) and (d) the language underlined above, but that, 
according to AWHMT, ``The City is not willing to make any change to its 
routing requirements if the change would subject the City to the 
requirements of 49 CFR 397.71.''
    The City's letter did not address AWHMT's request FHWA's opinion as 
to whether the deletion of the phrase ``as determined by the Fire Chief 
or his designee'' from Secs. 387.08(b) and 394.07(b) would constitute 
the establishment of a highway routing designation, limitation, or 
requirement after November 14, 1994. FHWA intends to respond to AWHMT's 
request separately from this preemption proceeding.

III. Reopening of Comment Period

    For the reasons stated above, the period for public comments on 
AWHMT's application, as amended by its April 15, 1999 letter, is being 
reopened. Comments may be submitted through August 16, 1999 and may

[[Page 35242]]

discuss all issues relating to the City's requirements referred to in 
Part II.A., above, currently challenged by AWHMT, including issues 
raised in comments previously submitted. Rebuttal comments may be 
submitted through September 28, 1999 and may discuss only those issues 
raised in comments submitted during the reopened initial comment 
period; rebuttal comments may not raise new issues.
    All comments should be limited to whether 49 U.S.C. 5125 preempts 
the City's requirements referred to in Part II.A., above. Comments 
should set forth in detail the manner in which these requirements are 
applied and enforced, and should specifically address the preemption 
criteria discussed in Part II of the September 17, 1998 public notice.
    Persons intending to comment should review the standards and 
procedures governing consideration of applications for preemption 
determinations, set forth at 49 CFR 107.211-107.211 and 397.201-
397.211.

    Issued in Washington, DC, on June 17, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.

Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.

Appendix A

April 15, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration, HOA-1, 400 Seventh 
St., SW., Washington, DC 20590.
Mr. Alan I. Roberts,
Associate Administrator, DHM-1, Research and Special Programs 
Administration, 400 Seventh St., SW., Washington, DC 20590.

Re: PDA-20 (RF)

    Dear Messrs. Wykle and Roberts: On behalf of the Association of 
Waste Hazardous Materials Transporters (AWHMT), I am writing to 
modify and amend the Association's request that certain requirements 
imposed by the City of Cleveland, OH (City) on motor carriers 
engaged in the transportation of hazardous materials be preempted.
    The AWHMT represents companies that transport, by truck and 
rail, waste hazardous materials, including industrial, radioactive 
and hazardous wastes, in North America. The Association is a not-
for-profit organization that promotes professionalism and 
performance standards that minimize risks to the environment, public 
health and safety; develops educational programs to expand public 
awareness about the industry; and contributes to the development of 
effective laws and regulations governing the industry.

Background

    Under the auspices of RSPA's and FHWA's Office of General 
Counsel (OGC) and with agreement of the City's Department of Law 
(Department) and the AWHMT, discussions were initiated in the fall 
of 1998 to voluntarily resolve issues in dispute in the matter of 
PDA-20(RF) short of a determination of preemption. These discussions 
have been productive in a number of areas. They have also helped to 
clarify areas where the parties have agreed that no acceptable 
compromise is likely. While we do not want at this time to cut off 
discussions in areas where progress appears to be forthcoming, we 
are no longer willing to delay RSPA's consideration of issues we 
have mutually agreed will not be resolved short of a preemption 
determination. Consequently, we are requesting that certain 
provisions challenged in our petition be held in abeyance, that the 
remaining provisions be addressed forthwith, and that our petition 
be amended to address another critical issue that regrettably was 
not identified in our original petition.

Provisions To Be Held in Abeyance

    The Department has offered to recommend to the Mayor and the 
City Council that the City voluntarily amend its Code to address 
several of the provisions challenged in our petition in a manner 
that is consistent with Federal hazardous materials transportation 
law (FHMTL). The Department has also agreed to withhold enforcement 
of these provisions pending final action to amend the Code. Despite 
the good faith efforts of the Department to reach a voluntary 
settlement of these matters, the Department cannot bind the Mayor or 
the City Council to any agreements reached. Consequently, at this 
time, we are requesting that the following provisions challenged in 
our application of preemption be held in abeyance:

 Code Sec. 394.16 and Sec. 387.04(b) concerning fees
 Code Sec. 394.08 and Sec. 387.09 concerning proof of 
insurance
 Code Sec. 387.08(a) concerning vehicle inspections
 Code Sec. 387.08(a) concerning fire extinguishers
 Code Sec. 394.08, Sec. 387.02(g), Sec. 387.04 and 
Sec. 387.07 concerning annual permits

    Following final action by the City and review by AWHMT of its 
amended Code, we will notify the Department and your offices of our 
intent to withdraw our objection or to ask that DOT reinstitute its 
preemption review of any remaining challenged provisions.

Provisions To Be Resolved Through Preemption Determination

    The AWHMT and the Department have been unable to reach a common 
understanding about the preemptive affect of FHMTL on the following 
provisions and requirements:

 Code Sec. 394.06(b) concerning the time-of-day and day-of-
week restrictions on the transportation by motor carrier of 
placarded hazardous materials within the ``downtown area'' of the 
City.
 Code Sec. 387.07(d) and Application for the Transportation 
of Explosives concerning the requirement that no explosive, as 
defined by the City, be transported within the City without the 
carrier prefiling a route and unless the route is approved by the 
City.
 Application for the Transportation of Explosives concerning 
24-hour prenotification of all explosives deliveries.
 Application for the Transportation of Explosives concerning 
police escort for every shipment of more than 250 pounds of any 
explosive(s) if transported on City streets.

    We continue to believe that these provisions and requirements 
will impermissibly delay the transportation of hazardous materials 
and are thus inconsistent and preempted by FHMTL. We ask that DOT 
refer to all prior filings for our justification as to why these 
provisions should be determined to be preempted.
    We are mindful of DOT's statutory obligation to issue 
determinations of preemption within six months. AWHMT's application 
was filed and accepted by DOT in March 1998, but not even published 
in the Federal Register for six months. While we agreed to 
temporarily halt review during the last four months, we are anxious 
that a speedy determination of preemption be reached insasmuch as 
the City has not and will not suspend enforcement of these 
challenged provisions.

Petition To Amend AWHMT's Application for a Determination of 
Preemption

    We regret that in our March 2, 1998 filing we did not ask DOT to 
review Code Sec. 394.07(b) and Sec. 387.08(b) concerning separation 
distance requirements between vehicles transporting hazardous 
materials.\1\ We request permission to amend our application for a 
determination of preemption in the matter of PDA-20(RF) to 
incorporate review of these requirements. We understand that the 
City may object to this request. If such objection is made, we 
intend to submit a new application for a determination of 
preemption.
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    \1\ City of Cleveland Code requirements are attached.
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    Code Sec. 394.07(B) provides that vehicles transporting 
placarded hazardous materials must maintain a separation distance 
for all other placarded vehicles of at least 300 feet, and Code 
387.08(b) provides that if the vehicle is transporting explosives, 
the separation distance from any other vehicle transporting 
explosives must be 500 feet. This explosives separation requirements 
is not even conditioned on a requirement that the vehicle be 
placarded. Some exceptions are provided for the Code Sec. 394.07(b) 
requirement, but none are provided under Code Sec. 387.08(b). We 
believe these requirements hinder the safe operation of vehicles, 
are impossible to comply with at the distances required, and are a 
misuse of federal placarding requirements.
    Placarded vehicles have little control over traffic conditions 
they encounter. There is no federal requirement that standardizes 
the placement of placards on vehicles. The

[[Page 35243]]

placards can be anywhere on the sides and ends of vehicles. There is 
no federal minimum distance visibility standard. However at 300 feet 
the visual signature of a placard, if it can be seen given 
intervening traffic, would be minuscule. The visibility problem is 
exacerbated at 500 feet where the distances is larger and the driver 
is supposed to be able to discern no only that a placard exists but 
that it is specific placard.\2\ It goes without saying that the duty 
to identify vehicles containing explosive materials for which a 
placard is not required is impossible. The purpose of a placard is 
to communicate risk in the event of an incident. It is not intended 
for traffic control as envisioned by the City's Code. We believe 
this requirement will divide the attending of the very drivers the 
City should want to stay focused on the road. Instead, these drivers 
are going to be tasked to scan vehicles in all directions of 
travel,/3/ including around corners, within the City--an area 
already, by the city definition, congested--at all times of day, in 
all weather, to determine if placards exist. For these reasons, we 
do not believe these requirements can or should be complied with, or 
that they can be enforced in other than an arbitrary and capricious 
way.\4\
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    \2\ See attached affidavit of Karla Moore, Tri-State Motor 
Transit, Co., Inc., page 2.
    \3\ Drivers could only hope to make this identification through 
rear view mirrors for vehicles to the rear. These mirrors are not 
intended or adjusted to identify vehicles 300 feet/500 feet to the 
rear.
    \4\ See affidavit of Karla Moore that explains for detail the 
consequences of such separation distance requirements.
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    If these requirements are allowed to stand, they present a 
training nightmare. Assuring that all motor carriers of hazardous 
materials that entertain any possibility of engaging in 
transportation in Cleveland will have knowledge of these 
requirements, which is dubious, that motor carrier will have to 
modify its training programs to include information about the City's 
separation requirements. Then the motor carrier will have to hope 
that the driver remains aware of these requirements. Then the motor 
carrier will have to hope that the driver remains aware of these 
requirements during any forthcoming trip within the City, which 
given the uniqueness of the requirements is unlikely, especially for 
the occasional driver to the City. It almost begs for the carrier to 
provide a separate refresher training notice to the driver each time 
a shipment may go in the vicinity of the City. It cannot be the 
intent of Congress that the training requirements of drivers 
operating in interstate commerce be dictated by the whims of local 
jurisdictions.
    The City has, during the course of our discussions, made clear 
it intents to enforce these requirements. However, it has not 
explained what special circumstances exist in the City to justify 
this extraordinary requirement, nor has it disclosed the scientific 
analysis that underpins the 300 feet/500 feet separation instead of 
for example some other distance requirement. The burden of asserting 
and demonstrating a supportable safety justification for these 
requirements should be placed squarely on the City.
    The issue of separation distances has been considered in other 
preemption proceedings. Irrespective of DOT's interpretations in 
these prior proceedings, the type of separation requirement at issue 
here can be distinguished from these other proceedings.
     First, the City's requirements is not a following 
distance requirement. It contemplates a duty on drivers of vehicles 
transporting placarded hazardous materials in addition to maintain 
adequate following distance from the vehicles ahead, to be aware of 
the respective distances of other such hazmat vehicles within a 
circumference of hundreds of feet. Only once, in 1981, did DOT deal 
with a separation distance requirements similar to that contemplated 
by the City Code.\5\
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    \5\ IR-3, 46 FR 18923 (March 26, 1981).
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     Second, the preemption provisions of the FHMTL have 
been amended twice by Congress since DOT last considered the issue 
of non-federal separation or following distance requirements. Both 
times, the preemption provisions of the FHMTL were strengthened. Not 
only did the Congress reaffirm its intent ``to preclude a 
multiplicity of * * * local regulations and the potential for 
varying * * * regulations in the areas of hazardous materials 
transportation'', but declared that ``greater uniformity'' was 
``necessary and desirable'' in order to ``promote * * * safety'' in 
commerce.\6\
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    \6\ S. Rept. 1192, 93rd Cong. 2d Sess., 1974, page 37; and P.L. 
101-615, Section 2(5).
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     Third, the FHMTL charges DOT, not localities, with duty 
to ``prescribe regulations for the safe transportation of hazardous 
materials in intrastate, interstate, and foreign commerce.'' \7\ DOT 
has accomplished this objective through the hazardous materials 
regulations (HMR). Recently, FHWA recognized the fundamental 
importance of the HMR when it proposed to update the term 
``compatible/compatibility'', as a condition to qualify states to 
receive motor carrier safety assistance, to reflect RSPA's new 
requirement that transporters of hazardous materials comply with the 
HMR during all intrastate operations.\8\ With this mandate, RSPA has 
``questioned `the advisability of encouraging a driver to constantly 
direct his attention away from the proximity of his vehicle' and how 
* * * distance requirements promote [  ] safety.'' \9\ Given its 
mandate, it would be absurd for DOT to sanction a non-federal 
requirement it admits compromises safety.
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    \7\ 49 U.S.C. 5103(b).
    \8\ 64 FR 11414 (March 9, 1999). In receiving grant assistance 
under this program, states are required to certify that any local 
requirements affecting the transportation of hazardous materials by 
motor carrier are also consistent with the HMR.
    \9\ 55 FR 39744, citing IR-3, FR 18918 (March 26, 1981).
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     Fourth, Sec. 397.3 cannot save the City's requirements. 
Section 397.3 existed before the above referenced amendments were 
made to the FHMTL during this decade. This section of regulation 
simply has not kept pace with congressional intent, and it cannot 
take precedence over federal law and the congressional mandate to 
achieve safety through greater uniformity.\10\
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    \10\ Speed limits, detours and other traffic management 
requirements that apply to all trucks are not in dispute.
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    Section 397.3 is so dated that it does not even demand that the 
non-federal operating rules have a safety nexus. Since the purpose 
of the HMR is to ensure the safe transportation of hazardous 
material, or in the case of the federal motor carrier safety 
regulations (FMCSR), the safe operation of commercial motor 
vehicles, it is little wonder that any number of non-safety-based 
local requirements that could interfere or unreasonably burden 
hazardous materials transportation would not be at ``variance with 
specific regulations of [DOT]''.\11\ However, in fact DOT has 
considered and has issued a hazardous materials vehicle separation 
requirement. Section 397.9 provides that vehicles transporting 
division 1.1, 1.2, or 1.3 materials must not be parked within 300 
feet of certain structures or activities, and exceptions are 
provided. The Code Sec. 387.08(b) requirement for a 500-foot 
separation distance for vehicles transporting explosives applies 
while the vehicle is moving and while the vehicle is parked. As 
noted above, no exceptions are provided for the City's rule. Using 
the logic employed by the Ninth Circuit in the matter of Chlorine 
Institute, Inc. v. Califor. Hwy. Patrol concerning state-imposed 
escort requirements, we assert that DOT's determination to regulate 
only the distance between parked vehicles transporting specified 
types of explosives shows that DOT has demonstrated its intent not 
to require such separation distances for vehicles transporting other 
hazardous materials. The court went on to preempt this state 
requirement as interfering with Federal uniformity in an unsafe and 
burdensome manner.\12\ If a court is willing to apply this principle 
to a state requirement, there can be no doubt of its applicability 
to a local requirement. Any non-federal requirement that uniquely 
applies to the transportation of hazardous materials and applies 
differently or in addition to the FHMTL or HMR or applicable FMCSR 
must be subject to scrutiny under DOT's preemption standards and not 
be protected under the guise of local vehicle operating 
requirements.
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    \11\ Ibid.
    \12\ Chlorine Institute, Inc. v. Calif. Hwy. Patrol, Civ. S-92-
396 (E.D. Cal., September 16, 1992), aff'd, 29 F.3d 495 (9th Cir. 
1994).
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     Fifth, absent some compelling local circumstance that 
we are unaware of, DOT would set an untenable precedent if it allow 
these requirements to stand after acknowledging that safety is 
compromised. Such a determination would allow for the possibility 
that the Nation's other 30,000 jurisdictions would impose unique 
separation distance requirements without restraint.
    We recommend that DOT find the City's separation requirements be 
preempted under the ``dual compliance'' standard as they conflict 
with federal requirements as outlined in the attached affidavit or 
with 49

[[Page 35244]]

CFR 397.9 as noted above.\13\ If DOT concludes that these provisions 
do not rise to the level of a conflict, we request that DOT find 
these requirements preempted under its authority to preempt non-
federal requirements that pose ``an obstacle to accomplishing and 
carrying out'' the law.\14\
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    \13\ 49 U.S.C. 5125(a)(1)
    \14\ 49 U.S.C. 5125(a)(2).
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Request for Technical Assistance

    With no prejudice to all parties, we request an opinion from 
FHWA as to whether the City's routing designations and restrictions 
will be compromised if the City either strikes the phrase ``as 
determined by the Fire Chief, or his designee'' currently appearing 
in Code Sec. 394.06(a) and (d) of if the City otherwise clarifies 
that this phrase does not require some type of route 
prenotification.\15\ We understand that the City's intra-city route 
designations and restrictions were in place prior to November 14, 
1994, and as such are grandfathered from the requirement to be 
consistent with the federal highway routing standards set forth at 
49 CFR 397.71. The City is not willing to make any change to its 
routing requirements if the change would subject the City to the 
requirements of 49 CFR 397.71.
---------------------------------------------------------------------------

    \15\ This issue is separate and apart from the prenotification 
of explosive routes currently required by Code Sec. 387.387.07(d).
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Conclusion

    We are willing to hold in abeyance certain issues raised in our 
petition for a determination of preemption pending the outcome of 
efforts by the City to reform its Code in a manner consistent with 
the FHMTL. At the same time, we are asking for expeditious review of 
matters the City and we acknowledge will not be resolved by further 
discussion. Finally, we request that our petition for preemption be 
amended to include a review of requirements for vehicle separation 
distances.

Certification

    I certify that a copy of this comment has been sent to Mr. 
Sylvester Summers at the address specified in the Federal Register.

      Respectfully Submitted,
Cynthia Hilton,
Executive Director.

Attachments

    1. Cleveland Code Sec. 387.08(b).
    2. Cleveland Code Sec. 394.07(b).
    3. Affidavit of Tri-State Motor Transit.

[Attachments not reproduced, available from RSPA]

Appendix B

April 30, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration, HOA-1, 400 Seventh 
St., SW, Washington, DC 20590.
Alan I. Roberts,
Associate Administrator, DHM-1, Research and Special Programs 
Administration, 400 Seventh St., SW, Washington, DC 20590.

Re: City of Cleveland's Response to the Association of Waste 
Hazardous Materials Transporter's (AWHMT) Request to Amend Petition 
No. PDA-20 (RF) and to Hold Certain Provisions in Petition in 
Abeyance

    Dear Messrs. Wykle and Roberts: The City of Cleveland hereby 
submits this response to AWHMT's letter dated April 15, 1999, 
requesting permission to amend petition no. PDA-20(RF) and to hold 
certain provisions in abeyance pending the outcome of negotiations 
between the parties.

A. Background/Provisions To Be Resolved Through Preemption 
Determination

    The City agrees with AWHMT's characterization of the discussions 
which have taken place between the parties, and the progress which 
has been made with regard to settling certain provisions of PDA-
20(RF). The City intends to continue discussions with AWHMT 
regarding those issues which AWHMT has requested be held in 
abeyance.
    Moreover, the City understands that AWHMT has requested that the 
Department of Transportation and the Federal Highway Administration 
move forward to decide the four (4) provisions of the City of 
Cleveland's Codified Ordinances and the current Explosives Permit 
application listed on page two of the April 15, 1999 letter, to wit, 
Section 394.06(b) time-of-day and day-of-week restrictions, Section 
387.07(d) prenotification and approval of route for explosives 
transportation, and the explosives transportation application 
requirements for 24 hour prenotification and police escort. To the 
extent practical, the City is willing to continue to discuss these 
issues with AWHMT, but is doubtful resolution is likely.

B. Provisions To Be Held in Abeyance

    For the record, the City would like to clarify a representation 
that AWHMT makes concerning the City's agreement to withhold 
enforcement of certain provisions of its Codified Ordinances which 
AWHMT has challenged but has asked RSPA hold in abeyance. In our 
discussions with AWHMT, the City has acknowledged that the Division 
of Fire, since the filing of PDA-20(RF), has refrained from 
enforcing the hazardous materials and explosives transportation 
permit and fee requirements under Sections 394.08, 394.16, 387.04 
and 387.07, and the Division of Fire has indicated it will continue 
to withhold enforcement of these provisions even though it is not 
required by law to do so.
    The City, however, did not represent to AWHMT that it would also 
withhold enforcement of the other provisions of the City's Codified 
Ordinances that are listed on page two of the April 15, 1999 
correspondence, namely, permit and insurance requirements for the 
use and storage of explosives, vehicle inspections (except for 
annual inspections which the City does not conduct), and the 
maintenance of at least one fire extinguisher in good working 
condition. I have brought this to the attention of Cynthia Hilton 
and explained that I would clarify the City's position in this 
letter, and I believe she is in agreement with the above 
explanation.

C. Petition To Amend AWHMT's Application for Determination of 
Preemption

    The City objects to AWHMT request for permission to amend its 
application for a determination of preemption to include a challenge 
to City of Cleveland Codified Ordinances 394.07(b) and 387.08(b), 
which require vehicles transporting hazardous materials to maintain 
a 300 or 500 foot separation distance from other vehicles containing 
hazardous materials. The basis for the City's objections are set 
forth below:
    (1) AWHMT Has Not Established That It Is Directly Affected by 
the City's Requirement.
    Federal law provides that a person ``directly affected'' by a 
requirement of a political subdivision, may apply for a preemption 
determination under 49 U.S.C. 5125 (49 USCA 5125(d)(1); 49 CFR 
107.201(a)(1)). The City maintains that AWHMT has not established in 
its filing of April 15, 1999, that it is directly affected by the 
City's minimum distance requirement. Therefore, it does not have 
standing to request a preemption determination on the minimum 
distance requirement.
    AWHMT has attached the affidavit of a representative of TriState 
Motor Transit Co. (hereinafter referred to as ``Affiant'') 
ostensibly to establish standing to amend PDA-20 (RF) to include the 
challenge to the City's minimum distance requirement. This affidavit 
includes numerous hypothetical situations which might occur in the 
worst case scenario if the City were to enforce the minimum distance 
provision in an unreasonable and arbitrary fashion. The affidavit, 
however, contains no factual evidence which supports a determination 
that the Affiant is directly affected. Affiant states, in fact, that 
TriState provides virtually no service to the City of Cleveland, and 
further admits that ``TSMT has never been cited for violating these 
separation requirements''. AWHMT attached no other evidence that its 
members have been directly affected by the City's minimum distance 
requirement. Therefore, AWHMT has failed to establish that it has 
standing to bring this request for a preemption determination, and 
its request should be denied.
     (2) AWHMT Has Waived Its Right To Include a Challenge to the 
City's Minimum Distance Requirement.
    AWHMT has waived its right to challenge the City's minimum 
distance requirement for the reason that it neglected to include 
this issue in its original petition. Support for this proposition 
can be found at 49 CFR 107.23 which establishes the requirements for 
an application for a preemption determination. The regulations 
implicitly contemplate that preemption applications must be 
comprehensive and complete when filed (see 107.203(b) (2) and (3). 
The regulations make no provision for amending or revising the 
preemption petition after it is filed. From a policy perspective, 
amending a petition to allow amendments while a proceeding is 
pending discourages a political subdivision from engaging in 
negotiations since the issues in controversy are constantly subject 
to change. For these reasons, AWHMT's request to amend the petition 
should be denied.
    (3) The Entire Amended Petition Should Be Subject to the 
Publication and Commentary

[[Page 35245]]

Requirements of 40 CFR 107.203(d) and 107.205.
    Without waiving its objection to AWHMT's request to amend its 
petition, the City requests that in the event RSPA grants AWHMT's 
request to amend, the entire amended petition, including the new 
challenge to the minimum distance requirement as well as the 
challenges to the other provisions of the City's ordinances 
contained in the original petition filed in March of 1998, be the 
subject of a notice in the Federal Register and the subject to 
comments by interested parties, including the City of Cleveland, 
pursuant to 49 CFR 107.205. Opening up the entire petition to 
comments would allow a newly interested party to comment to all 
issues, not just the minimum distance requirement. Moreover, it 
would allow the City of Cleveland the opportunity to supplement its 
comments already submitted with affidavits, which it was not able to 
do previously because of time constraints.
    This concludes the City of Cleveland's response to AWHMT's 
submission dated April 15, 1999. We appreciate this opportunity to 
comment. I hereby certify that a copy of this letter was sent to 
Cynthia Hilton, on behalf of the Applicant, the Association of Waste 
Hazardous Materials Transporters.

      Very truly yours,
Joyce M. Dodrill,
Assistant Director of Law.
[FR Doc. 99-16623 Filed 6-29-99; 8:45 am]
BILLING CODE 4910-60-M