[Federal Register Volume 70, Number 75 (Wednesday, April 20, 2005)]
[Notices]
[Pages 20630-20632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7910]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-20930 (PDA-31(F))]


Application by American Trucking Associations, Inc. for a 
Preemption Determination as to District of Columbia Requirements for 
Highway Routing of Certain Hazardous Materials

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), United 
States Department of Transportation (DOT).

ACTION: Public notice and invitation to comment.

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SUMMARY: FMCSA invites interested parties to submit comments on an 
application by The American Trucking Associations, Inc. for an 
administrative determination as to whether Federal hazardous materials 
transportation law preempts highway routing requirements of the 
District of Columbia in restricting transportation of certain hazardous 
materials.

DATES: Comments received on or before June 6, 2005, and rebuttal 
comments received on or before July 19, 2005, will be considered before 
an administrative ruling is issued. Rebuttal comments may discuss only 
those issues raised by comments received during the initial comment 
period and may not discuss new issues.

ADDRESSES: You may submit comments, identified by DOT DMS Docket Number 
FMCSA-2005-20930, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web site: http://dms.dot.gov. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001. Please submit three copies of written 
comments.
     Hand Delivery: Submit three copies of written comments to 
Room PL-401 on the plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: Comments must refer to Docket Number FMCSA-2005-
20930. All comments received will be posted without change to http://dms.dot.gov, including any personal information provided. For detailed 
instructions on submitting comments, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. For 
a summary of DOT's Privacy Act Statement or information on how to 
obtain a complete copy of DOT's Privacy Act Statement please see the 
``Privacy Act'' heading of the SUPPLEMENTARY INFORMATION section.
    Docket: For access to the docket to read the application or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 am and 5 pm, Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. William Quade, Chief, Hazardous 
Materials Division (MC-ECH), (202) 366-2172; Federal Motor Carrier 
Safety Administration, U.S. Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. 
to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Public Participation

    A copy of each comment must also be sent to Richard Moskowitz, 
Assistant General Counsel, American Trucking Associations, 2200 Mill 
Road, Alexandria, VA 22314. Certification of sending a copy to Mr. 
Moskowitz must accompany your comments. (The following format is 
suggested: ``I certify copies of this comment have been sent to Mr. 
Moskowitz at the address specified in the Federal Register.'')
    The DMS is available 24 hours each day, 365 days each year. You can 
get electronic submission and retrieval help and guidelines under the 
``help'' section of the DMS Web site. If you want us to notify you of 
receiving your comments, please include a self-addressed, stamped 
envelope or postcard or print the acknowledgement page displaying after 
receipt of on-line comments.

[[Page 20631]]

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

I. Application for a Preemption Determination

    The American Trucking Associations, Inc. (``ATA'') has applied for 
an administrative determination that Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and FMCSA regulations at 49 
CFR part 397, preempt highway routing requirements under the Terrorism 
Prevention in Hazardous Materials Transportation Emergency Act of 2005 
[D.C. Act 16-43, February 15, 2005, 52 CDR 3048] (``DC Act''). The DC 
Act applies to transportation of certain hazardous materials within a 
2.2-mile zone of the United States Capitol Building. The DC Act refers 
to this zone as the ``Capitol Exclusion Zone.''
    A copy of the ATA application for preemption determination is in 
the docket for this notice. You may view or obtain a copy of the 
application online by visiting http://dms.dot.gov, clicking ``Simple 
Search'' and entering the last 5 digits of the docket number (20930).
    In the application, ATA challenges the following two sections of 
the DC Act:
    (1) Section 4 of the DC Act, titled ``Prohibition on shipments of 
hazardous materials.'' Section 4 makes it illegal, except in cases of 
emergency, to transport in the Capitol Exclusion Zone without a permit 
any of the materials in the list below. Section 4 also makes it illegal 
in the Capitol Exclusion Zone, without a permit, to operate a vehicle 
which is capable of containing, and has exterior placarding or other 
markings indicating it contains, any of these materials:
    (a) Explosives of Class 1, Division 1.1, or Class 1, Division 1.2, 
as designated in 49 CFR 173.2, in a quantity greater than 500 
kilograms;
    (b) Flammable gasses of Class 2, Division 2.1, as designated in 49 
CFR 173.2, in a quantity greater than 10,000 liters;
    (c) Poisonous gasses of Class 2, Division 2.3, as designated in 49 
CFR 173.2, in a quantity greater than 500 liters, and belonging to 
Hazard Zones A or B, as defined in 49 CFR 173.116; and
    (d) Poisonous materials, other than gasses, of Class 6, Division 
6.1, in a quantity greater than 1,000 kilograms, and belonging to 
Hazard Zones A or B, as defined in 49 CFR 173.133.
    Section 3 of the DC Act defines an ``emergency'' as an 
unanticipated, temporary situation that threatens the immediate safety 
of individuals or property, as determined by the District of Columbia 
Department of Transportation.
    (2) Section 5 of the DC Act, titled ``Permits.'' Section 5 of the 
DC Act enables the District of Columbia Department of Transportation to 
issue a permit authorizing transport of the materials listed in Section 
4 if there is no ``practical alternative route''--defined in Section 3 
of the DC Act as a route which lies entirely outside the Capitol 
Exclusion Zone and whose use would not make shipment of the hazardous 
materials cost-prohibitive. The permit may require the adoption of 
safety measures, including time-of-day restrictions. Section 5 
authorizes the District of Columbia Department of Transportation to 
collect fees, not to exceed the cost of implementing and enforcing the 
DC Act, for the issuance of the permits.
    In its application for a preemption determination, ATA states the 
DC Act was enacted without regard to the procedures set forth in the 
Federal hazardous materials routing regulations. Specifically, ATA 
asserts the District of Columbia failed to provide the requisite notice 
and comment period as required by 49 CFR 397.71(b)(2) and failed to 
hold a public hearing. ATA further states the District of Columbia 
failed to consult with officials of neighboring jurisdictions as 
required by 49 CFR 397.71(b)(3). Additionally, ATA asserts the District 
of Columbia did not engage in the risk analysis required by 49 CFR 
397.71(b)(4). Lastly, ATA states the DC Council's testimony and 
findings include no discussion or analysis of population density or 
special populations in the area outside the Capitol Exclusion Zone, 
characteristics of the alternative highways to be used, an analysis of 
the number of shipments that would be impacted by the DC Act, an 
analysis of the impact upon emergency response capabilities, 
consideration of comments and concerns of affected persons, impact upon 
commerce, delays in transportation, or traffic conditions, including 
motor vehicle accident experience. ATA points out FMCSA's routing 
regulations relating to non-radioactive hazardous materials require 
analysis of these factors prior to enacting a routing restriction.\1\
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    \1\ See 49 CFR 397.71(b)(9).
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II. Federal Preemption

    Title 49 U.S.C. 5125 includes several preemption provisions. 
Section 5125(c)(1) allows a State or Indian tribe to establish, 
maintain, or enforce a highway routing designation over which hazardous 
material may or may not be transported by motor vehicles, or a 
limitation or requirement related to highway routing, only if the 
designation, limitation, or requirement complies with 49 U.S.C. 
5112(b).
    Section 5112(b) requires the Secretary of Transportation (the 
Secretary), in consultation with the States, to prescribe by regulation 
standards for the States and Indian tribes to follow when designating 
specific highway routes for transportation of hazardous materials. The 
Secretary has delegated to FMCSA authority and responsibility for 
highway routing of hazardous materials.\2\
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    \2\ See 49 CFR 1.73(d)(2).
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    The standards required by 49 U.S.C. 5112(b) for establishing 
highway routing requirements for non-radioactive hazardous materials 
are set forth in 49 CFR part 397, subpart C, and apply to any 
designations established or modified on or after November 14, 1994.\3\ 
A State or Indian tribe must follow FMCSA standards when establishing 
highway routing requirements for hazardous materials.
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    \3\ See 49 CFR 397.69(a).
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    The preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In sec. 2 of the 
Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA) 
[Pub. L. 101-615, November 16, 1990, 104 Stat. 3244], Congress 
underscored the need for uniform regulations relating to transportation 
of hazardous materials:

* * * (3) many States and localities have enacted laws and 
regulations which vary from Federal laws and regulations pertaining 
to the transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements;
    (4) because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable;

[[Page 20632]]

    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

    The Committee on Commerce, Science, and Transportation, when 
reporting in 1990 on the bill to amend the Hazardous Materials 
Transportation Act (HMTA) [Pub. L. 93-633 section 112(a), 88 Stat. 2161 
(1975)], stated ``The original intent of HMTA was to authorize [DOT] 
with the regulatory and enforcement authority to protect the public 
against the risks imposed by all forms of hazardous materials 
transportation, and to preclude a multiplicity of State and local 
regulations and the potential for varying as well as conflicting 
regulations.''\4\
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    \4\ S. Rep. No. 101-449 (1990), reprinted in 1990 U.S.C.C.A.N. 
4595, 4596.
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    A Federal Court of Appeals has indicated uniformity was the 
``linchpin'' in the design of the HMTA, including the 1990 amendments 
expanding the original preemption provisions.\5\ To achieve safety 
through consistent Federal and State requirements, Congress has also 
authorized the U.S. Department of Transportation to make grants to 
States ``for the development or implementation of programs for the 
enforcement of regulations, standards, and orders'' ``compatible'' with 
the highway-related portions of the Hazardous Materials Regulations.\6\
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    \5\ Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 
(10th Cir. 1991). In 1994, Congress revised, codified and enacted 
the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 51. 
[Pub. L. 103-272, 108 Stat. 745].
    \6\ See 49 U.S.C. 31102(a).
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III. Preemption Determinations

    Title 49 U.S.C. 5125(d) provides for issuance of binding preemption 
determinations by the Secretary. The Secretary has delegated to FMCSA 
authority to make determinations of preemption concerning highway 
routing of hazardous materials \7\. Any directly affected person may 
apply for a determination whether a requirement of a State, political 
subdivision or Indian tribe is preempted. The agency must publish 
notice of the application in the Federal Register, and the applicant 
must not seek judicial relief on that issue for 180 days after the 
application or until the preemption determination is issued, whichever 
occurs first. A party to a preemption determination proceeding may seek 
judicial review of the determination in U.S. district court within 60 
days after the determination becomes final.
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    \7\ See 49 CFR 1.73(d)(2).
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    Preemption determinations are governed by procedures under 49 CFR 
part 397, Subpart E and 49 U.S.C. 5125. The FMCSA Administrator issues 
the preemption determination. The preemption determination includes a 
written statement setting forth the relevant facts and the legal basis 
for the determination.\8\ After the preemption determination is issued, 
aggrieved persons have 20 days to file a petition for 
reconsideration.\9\ Any party to the proceeding may seek judicial 
review in a Federal district court.\10\
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    \8\ See 49 CFR 397.211.
    \9\ See 49 CFR 397.211(c) and 397.223.
    \10\ See 49 U.S.C. 5125(f) and 49 CFR 397.225.
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    In making preemption determinations under 49 U.S.C. 5125(d), FMCSA 
is guided by the principles and policies set forth in Executive Order 
13132, titled ``Federalism.'' \11\ Section 4(a) of Executive Order 
13132 directs agencies to construe a Federal statute to preempt State 
law only when the statute contains an express preemption provision, 
there is other clear evidence that Congress intended preemption of 
State law, or the exercise of State authority directly conflicts with 
the exercise of Federal authority under the Federal statute. Section 
5125 includes express preemption provisions, which FMCSA has 
implemented through its regulations.
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    \11\ 64 FR 43255 (August 10, 1999).
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    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause of the Constitution or under statutes 
other than the HMTA unless it is necessary to do so in order to 
determine whether a requirement is ``otherwise authorized by Federal 
law.'' A State, local jurisdiction or Indian tribe requirement is not 
``otherwise authorized by Federal law'' merely because it is not 
preempted by another Federal statute.\12\
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    \12\ Colorado Pub. Utilities Comm'n v. Harmon, No. 89-1288 (10th 
Cir. Dec. 18, 1991), reversing No. 88-Z-1524 (D. Colo. 1989).
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IV. Public Comments

    FMCSA seeks comments on whether 49 U.S.C. 5125 preempts the 
District of Columbia's highway routing requirements challenged by ATA. 
Comments should specifically address the preemption criteria detailed 
in Part II above.

    Issued on: April 13, 2005.
Annette M. Sandberg,
Administrator.
[FR Doc. 05-7910 Filed 4-19-05; 8:45 am]
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