[Federal Register: September 2, 2008 (Volume 73, Number 170)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2008-0204]
Application by the Massachusetts Department of Highways for a
Preemption Determination on the City of Boston's Hazardous Materials
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), (DOT).
ACTION: Notice of application for preemption determination,
consolidation with the American Trucking Associations, Inc. (ATA)
application for preemption determination, and extension of time to
SUMMARY: FMCSA provides notice and invites interested parties to submit
comments on an application by the Massachusetts Department of Highways
(MassHighway) for an administrative determination on whether Federal
law preempts highway routing designations issued by the City of Boston
(Boston) regarding the transportation of hazardous materials.
MassHighway seeks a preemption determination to resolve whether
Boston's regulatory scheme on hazardous materials transportation in
Boston remains consistent with Federal law in light of the history of
the Boston regulation, changes that have occurred since the
regulation's inception in 1980, and policy changes in issuing permits
under the regulation. The MassHighway application, filed on July 25,
2008, encompasses the issues raised by ATA in its application for
preemption determination filed on May 30, 2008. Accordingly, the
MassHighway application will be consolidated with the ATA application
in Docket No. FMCSA-1008-0204 and the time period for submitting
comments is extended by this notice.
DATES: Comments received by October 17, 2008 and rebuttal comments
received by December 1, 2008 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 Federal Docket
Management System Number FMCSA-2008-0204 by any of the following
- Web Site: http://www.regulations.gov. Follow the instructions for
submitting comments on the Federal electronic docket site.
- Fax: 1-202-493-2251.
- Mail to: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
- Courier or Hand Delivery: Ground Floor, Room W12-140, DOT Building,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal holidays.
Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information, see the Public Participation and Supplementary
Information headings below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the ground floor, Room W12-140, DOT Building, 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through
Friday, except Federal holidays.
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 (65 FR 19476) or you may visit http://www.regulations.gov.
Public participation: The http://www.regulations.gov Web site is
generally 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 http://www.regulations.gov Web site and also at
the DOT's http://docketsinfo.dot.gov Web site. If you want confirmation of receipt of your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears
after submitting comments online.
FOR FURTHER INFORMATION CONTACT: James O. Simmons, Chief, Hazardous
Materials Division, Federal Motor Carrier Safety Administration, 1200
New Jersey Avenue, SE., Washington, DC 20590, or at
SUPPLEMENTARY INFORMATION: A copy of each comment must be sent to
Monica E. Conyngham, Chief Counsel, MassHighway, 10 Park Plaza, Boston,
MA 02116-3969 and Richard Moskowitz, Vice President and Regulatory
Affairs Counsel, American Trucking Associations, 950 North Glebe Road,
Arlington, VA 22203. You are required to include with your comments a
certification that you provided a copy of your comments to MassHighway
and ATA. (The following format is suggested: "I certify copies of this
comment were sent to Ms. Conyngham, MassHighway, and Mr. Moskowitz,
ATA, at the address specified in the Federal Register.")
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.
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 the Administrator of the FMCSA authority and
responsibility for highway routing of hazardous materials. See 49 CFR
1.73(d)(2). The standards required by 49 U.S.C. 5112(b) for
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. See 49 CFR
397.69(a). A State or Indian tribe must follow FMCSA standards when
establishing highway routing requirements for hazardous materials. See
49 CFR 397.71 (Federal standards for routing of nonradioactive
hazardous materials (NRHM)). Except as provided in Sec. Sec. 397.75
(dispute resolution) and 397.219 (waiver), a NHRM route designation
made in violation of Sec. 397.69(a) is preempted pursuant to section
105(b)(4) of the Hazardous Materials Transportation Act, as amended, 49
U.S.C. 5125(c), 49 CFR 397.69(b).
MassHighway submits that the Boston regulation on routing of
hazardous materials has been in place since 1980. Subsequent
construction on the Central Artery and Third Harbor Tunnel Project
(often referred to as the "Big Dig") impacted the routes used by
transporters of hazardous materials in Boston. After September 11,
2001, Boston changed its policy on issuing permits necessary for
transportation of hazardous materials through Boston. Boston officials
take the position that Boston's regulation is grandfathered under 49
U.S.C. 5125(c)(2)(A) and (B) and that minor routing changes have not
impacted the fact that the regulation is not subject to preemption
under 49 CFR 397.69. Boston also argues that its increased enforcement
and policy on issuing permits falls squarely within its permitting
authority. MassHighway acknowledges that the regulated community argues
that the policy changes are a de facto change in routing restrictions
and hazmat carriers denied permits must now pass through multiple
communities surrounding Boston, increasing and transferring risk to
other communities and depriving the public of involvement in the
routing process. MassHighway requests that FMCSA review the facts,
analysis, and exhibits presented in its application, including the
above-described circumstances, prior DOT Inconsistency and Consistency
Determinations, and a 1981 Federal District Court decision, to
determine whether the Boston regulation and current enforcement scheme
remain grandfathered under Federal law. American Trucking Associations,
Inc. et al. v. city of Boston et al. (D. Mass. filed April 6, 1981)
(Copy of unpublished opinion provided in MassHighway application.)
On May 30, 2008, ATA filed an Application for Preemption
Determination on the City of Boston's routing and transportation
restrictions applicable to certain hazardous materials. Notice of this
application and request for comments was published in the Federal
Register on August 8, 2008. See 73 FR 46349 (August 8, 2008). The ATA
application and Federal Register notice may be found at http://www.regulations.gov under non-rulemaking docket no. FMCSA-2008-0204. ATA alleges that Boston, in the course of the construction of the Central Artery Tunnel, changed designated hazardous materials routes
through Boston and, in doing so, failed to comply with the requirements
of Sec. 397.71. ATA requested that the FMCSA Administrator make a
determination on whether the highway routing designations established
by Boston are preempted pursuant to Sec. 397.69(b).
FMCSA received the MassHighway application on or about July 25,
2008. MassHighway addresses the same central issue as that raised in
the ATA application, e.g., whether the Boston hazardous materials
routing designations are subject to the preemption provisions of Sec.
397.69. In order to avoid duplication and address the issues raised in
these applications in a thorough and complete manner, FMCSA is
consolidating the MassHighway application for a preemption
determination with that of the ATA. Copies of the MassHighway
application for preemption and the ATA application for preemption
determination are available for review in the consolidated docket for
this notice. You may view or obtain a copy of the applications online
by visiting http://www.regulations.gov and going to the docket number for this matter (FMCSA-2008-0204).
FMCSA seeks comments on (1) whether Boston's highway routing
designations were established or modified prior to November 14, 1994,
exempting them from the preemption provisions of 49 CFR 397.69 and/or
(2) whether Boston's highway routing designations are subject to the
preemption provisions of 397.69. Comments should specifically address
the preemption standard established under 49 CFR 397.69 and 49 U.S.C.
Issued on: August 26, 2008.
[FR Doc. E8-20222 Filed 8-29-08; 8:45 am]
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