|
[Federal Register: April 10, 2006 (Volume 71, Number 68)]
[Notices]
[Page 18137-18141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap06-104] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2005-20930 (PDA-31(F))] 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: Notice of administrative determination of preemption. ----------------------------------------------------------------------- Applicant: American Trucking Associations, Inc. Local Laws Affected: Terrorism Prevention in Hazardous Materials
Transportation Act of 2005; Terrorism Prevention in Hazardous Materials
Transportation Congressional Review Emergency Act of 2006. Applicable Federal Requirements: Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq., and FMCSA regulations at 49
CFR part 397. SUMMARY: Federal hazardous material transportation law preempts the
highway routing requirements in the Terrorism Prevention in Hazardous
Materials Transportation Act of 2005 [D.C. Act 16-266, Jan. 26, 2006]
and the Terrorism Prevention in Hazardous Materials Transportation
Congressional Review Emergency Act of 2006 [D.C. Act 16-325, Mar. 23,
2006]. FOR FURTHER INFORMATION CONTACT: Mr. Brian Yonish, Office of Chief
Counsel (Tel. No. 202-366-0834); Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Application for a Preemption Determination This proceeding is based on the March 14, 2005, application
("Application") of the American Trucking Associations, Inc. ("ATA")
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, Feb. 15, 2005] ("Emergency DC Act"). Since the time
that ATA filed its Application, the Emergency DC Act has expired.
However, the Council of the District of Columbia ("D.C. Council") has
since introduced and enacted a series of acts with substantively
identical language. The Terrorism Prevention in Hazardous Materials
Transportation Congressional Review Emergency Act of 2006 [D.C. Act 16-
325, Mar. 23, 2006] will expire June 21, 2006. The Terrorism Prevention
in Hazardous Materials Transportation Act of 2005 [D.C. Act 16-266,
Jan. 26, 2006] was transmitted to the United States Congress on
February 6, 2006, for review.\1\ Because the relevant portions of the
successive acts are substantively identical, these acts will
hereinafter collectively be referred to as the "DC Act."
--------------------------------------------------------------------------- \1\ Except for emergency acts and certain enumerated types of
legislation, all acts passed by the D.C. Council must be transmitted
to the U.S. Congress for a specified review period. The review
period for acts that do not relate to the criminal code is 30 days
in which Congress is in session. After this review period, the act
takes effect unless Congress enacts a joint resolution disapproving
the act. D.C. Code Sec. 1-206.02.
--------------------------------------------------------------------------- The DC Act applies to the transportation of certain hazardous
materials within 2.2 miles of the United States Capitol Building. The
DC Act refers to this zone as the "Capitol Exclusion Zone." 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 the listed 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 transportation 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 DC Act provides that 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 for the permits, but any
permit fees are not to exceed the cost of implementing and enforcing
the DC Act. In its Application, ATA states the DC Act was enacted without
regard to the procedures set forth in the Federal hazardous materials
routing regulations found in 49 CFR part 397, subpart C. 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 D.C. 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 [[Page 18138]] 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. See 49 CFR 397.71(b)(9). Notice of ATA's filing of its Application was published in the
Federal Register on April 20, 2005, and interested parties were invited
to submit comments. 70 FR 20630. Comments were submitted by Yellow
Roadway Corporation ("Yellow Roadway"), the National Propane Gas
Association ("NPGA"), and the National Tank Truck Carriers, Inc.
("NTTC"). The District of Columbia submitted a reply. ATA then filed
rebuttal comments. On December 21, 2005, FMCSA published a Federal Register notice
announcing a delay in issuing a determination on ATA's Application in
order to allow time for fact-finding and an appropriate consideration
of the issues. 70 FR 75858. II. Federal Preemption Title 49 U.S.C. 5125 includes several preemption provisions.
Relevant to this proceeding is section 5125(c)(1), which 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). The District of Columbia is considered a
"State" for purposes of hazardous materials transportation law. 49
U.S.C. 5102(11). 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. See 49 CFR 1.73(d)(2). 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. 49
CFR 397.69(a). A State or Indian tribe must follow FMCSA standards when
establishing highway routing requirements for hazardous materials. 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 section 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; (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." S. Rep. No. 101-449 (1990), reprinted in 1990
U.S.C.C.A.N. 4595, 4596. 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.\2\
--------------------------------------------------------------------------- \2\ 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].
--------------------------------------------------------------------------- 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. See 49 CFR 1.73(d)(2). Any directly
affected person may apply for a determination whether a requirement of
a State, political subdivision or Indian tribe is preempted. 49 CFR
397.205(a). FMCSA's preemption determinations are governed by procedures under
49 CFR part 397, subpart E, and 49 U.S.C. 5125. After the preemption
determination is issued, aggrieved persons have 20 days to file a
petition for reconsideration. See 49 CFR 397.211(c) and 397.223. Any
party to the proceeding may seek judicial review in the United States
Court of Appeals for the District of Columbia or in the Court of
Appeals for the circuit in which the person resides or has its
principal place of business. 49 U.S.C. 5127(a). 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." 64 FR 43255 (Aug. 4, 1999). 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
conflicts with the exercise of Federal authority under the Federal
statute. Section 5125 includes express preemption provisions, which
FMCSA has implemented through its regulations. IV. Discussion A. Summary of DC Act The DC Act makes it illegal, except in cases of emergency, to
transport in the Capitol Exclusion Zone without a permit certain
quantities of hazardous materials specified in Section 4 of the DC Act.
The specific quantities of the banned materials are listed in Section I
of this preemption determination. Section 4 of the DC Act 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, the specified quantities of the
listed materials. 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. Section 5 of the DC Act enables the District of Columbia Department
of Transportation to issue a permit [[Page 18139]] authorizing transport of the otherwise prohibited 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. Section 5 provides that 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 for the permits. Any
permit fees are not to exceed the cost of implementing and enforcing
the DC Act. B. Summary of Regulatory Requirements Because the District of Columbia established routing restrictions
in the DC Act, the District of Columbia must comply with FMCSA's
standards in 49 CFR part 397, subpart C. 49 CFR 397.69(a). These
standards, issued pursuant to 49 U.S.C. 5112(b), specify that there
must be: --A finding by the State that the highway routing designation
"enhances public safety in the areas subject to its jurisdiction and
in other areas which are directly affected by such highway routing
designation." 49 CFR 397.71(b)(1). --Notice to the public of the proposed routing designation, a 30-day
period for the public to submit comments, and consideration of whether
to hold a public hearing (with advance notice to the public). 49 CFR
397.71(b)(2). --Notice to and consultation with "officials of affected political
subdivisions, States and Indian tribes, and any other affected
parties," and completion of the routing designation process within 18
months of the notice to the public or notice to other affected
jurisdictions. 49 CFR 397.71(b)(3), (6). --Assurance of "through highway routing * * * between adjacent
areas." 49 CFR 397.71(b)(4). --No unreasonable burden on commerce. 49 CFR 397.71(b)(5). -- Agreement with the proposed routing by all affected States within 60
days of notice, or alternatively, approval by the Administrator
pursuant to dispute resolution procedures under 49 CFR 397.75. 49 CFR
397.71(b)(5). --Reasonable access for vehicles to reach terminals, pickup and
delivery points, loading and unloading locations, and facilities for
food, fuel, repairs, rest, and safe havens. 49 CFR 397.71(b)(7). --Consideration of specific factors, including population density,
emergency response capabilities, continuity of routes, alternative
routes, effects on commerce, potential delays in transportation, and
congestion and accident history. 49 CFR 397.71(b)(9). In addition, the State must (1) ensure that its political
subdivisions comply with FMCSA's standards and procedures (49 CFR
397.71(b)(8)); (2) make information on highway routing designations
available to the public ``in the form of maps, lists, road signs or
some combination thereof'' (49 CFR 397.73(a)); and (3) report highway
routing designations to FMCSA within 60 days after establishment (49
CFR 397.73(b)). C. Application of Regulatory Requirements to the DC Act ATA states in its Application that the District of Columbia did not
comply with the public notice and comment period required by 49 CFR
397.71(b)(2). ATA further alleges the District of Columbia did not
consult with affected neighboring jurisdictions as required by 49 CFR
397.71(b)(3) and did not receive the agreement of the State of Maryland
or the Commonwealth of Virginia as required by 49 CFR 397.71(b)(5).
Additionally, ATA states the District of Columbia did not engage in the
risk analysis required by 49 CFR 397.71(b)(4). ATA further maintains that the D.C. Council's findings and the
testimony of the D.C. Council members during the session in which the
DC Act was enacted contain no discussion or analysis of the factors
required by 49 CFR 397.71(b)(9), such as population density,
characteristics of alternative highways to be used, analysis of the
number of shipments impacted by the DC Act, consideration of comments
and concerns of affected persons, impact upon commerce, delays in
transportation, and traffic conditions, including motor vehicle
accident experience. In its comments, Yellow Roadway expresses concern that if the DC
Act goes unchallenged, other cities and local governments might
implement similar measures that would adversely impact the safe and
efficient transportation of hazardous material. Yellow Roadway points
out the additional miles associated with rerouting increases exposure,
driving time and would not ensure an increase in safety or security in
the routes chosen. Moreover, Yellow Roadway states a requirement to
adhere to different rules and routing requirements in different
communities would be confusing, extremely costly, and administratively
burdensome and would adversely impact the safe and secure
transportation of hazardous materials. NTTC asserts the DC Act attempts to shift risk from the District of
Columbia to other jurisdictions. NTTC further states that Federal law
allows the District of Columbia to seek a legal means of addressing a
routing scheme. NPGA notes that the Federal regulations were developed to address
situations where localities shift hazardous materials traffic from one
jurisdiction to another. NPGA further states there must be an
opportunity for full participation by the motor carriers and the
neighboring affected communities when a locality seeks to establish a
routing restriction. NPGA also filed a separate application for
preemption with the Pipeline and Hazardous Materials Safety
Administration (PHMSA) in which it asked PHMSA to find that Federal
hazardous materials law preempts the DC Act in its entirety. Because
the issues raised by NPGA in its application concern the DC Act and
because the issues overlap with the issues raised by ATA in its
Application, NPGA's application is being considered in the context of
the ATA Application and is in essence treated as a comment filed in the
instant proceeding. NPGA states in its application that the DC Act
contravenes the concept of national hazardous materials regulatory
uniformity. NPGA expresses concerns that the actions of individual
jurisdictions, with thoughts of only their own constituents and not a
broader regional or national view, will fragment the unified system
into balkanized pockets of differing rules and restrictions. In its comments replying to ATA's Application, the District of
Columbia states that it promulgated emergency rules implementing the DC
Act, and those rules expressly exempt application of the DC Act to non-
railroad carriers until certain conditions are met. In light of the
exemption contained in the regulations, the District of Columbia argues
the issues raised by ATA's Application are not yet ripe. Specifically,
the District of Columbia states that the emergency rules implementing
the DC Act exclude carriers who own motor vehicles from the routing
requirements until thirty days after (a) a court or agency rules the DC
Act is not preempted by Federal hazardous materials law; (b) the
Director of the District of Columbia Department of Transportation
certifies that the list of criteria set forth in 49 CFR 397.71 have
been met; or (c) FMCSA issues a waiver of preemption pursuant to 49 CFR
397.213 and 49 CFR 397.219. [[Page 18140]] Consequently, the District of Columbia requests FMCSA to deny ATA's
Application. In the alternative, the District of Columbia asks FMCSA to
stay a decision on ATA's Application until the U.S. District Court for
the District of Columbia issues an opinion in CSX Transportation, Inc.
v. Williams ("CSX") \3\ relating to preemption, or until one of the
three conditions listed in the District of Columbia's rules is
satisfied. --------------------------------------------------------------------------- \3\ CSX Transportation, Inc. v. Williams, No. 05cv00338 (D.D.C.
filed Feb. 16, 2005) (involving a complaint filed by a railroad
company seeking a declaration that the DC Act is invalid).
--------------------------------------------------------------------------- The District of Columbia's response to NPGA's application is
similar to its response to ATA's Application. Specifically, the
District of Columbia states that because the emergency rules
implementing the DC Act expressly exempt application of the DC Act to
non-railroad carriers until certain conditions are met, the issues
raised in NPGA's application are not yet ripe. The District of Columbia
states that its rules provide that the routing requirements will not
apply to motor carriers until thirty days after one of three conditions
have been met, as summarized above in the District of Columbia's
response to ATA's Application. The District of Columbia requests FMCSA
to deny NPGA's application, or in the alternative, to stay a decision
on the application until the United States District Court for the
District of Columbia resolves the claims regarding preemption in the
CSX proceeding, or until one of the three conditions is satisfied. ATA filed rebuttal comments responding to the District of
Columbia's comments. ATA states that the District of Columbia did not
demonstrate in its rebuttal comments that it complied with Federal
hazardous materials routing requirements, but instead the District of
Columbia opposed ATA's Application on the grounds that the District of
Columbia has temporarily delayed the implementation of its routing
restrictions with respect to motor carriers. ATA notes that its
Application for a preemption determination challenges the DC Act, and
not the implementing regulations. ATA states that the routing
restriction set forth in the DC Act is self-implementing and that the
subsequently issued regulations do not cure the procedural defects in
enacting the DC Act. In its reply, the District of Columbia does not dispute the
assertions made by ATA. Significantly, the District of Columbia does
not assert that it followed the Federal hazardous materials
requirements as set forth in 49 U.S.C. 5112 and 49 CFR part 397. See
Morrisville, PA Requirements for Transportation of "Dangerous Waste,"
66 FR 37260, 37264 (July 17, 2001) (finding that Borough of Morrisville
did not comply with FMCSA's standards in 49 CFR part 397 after Borough
failed to dispute commenters' assertions that the Borough adopted a
routing limitation without notice and opportunity to comment). Instead,
the District of Columbia argues the issue of preemption is not yet ripe
because the regulations implementing the DC Act exempt application of
the DC Act to non-railroad carriers until certain conditions are met.
The District of Columbia failed to submit any evidence demonstrating
compliance with the Federal regulatory requirements in establishing the
routing designation in the DC Act. To additionally develop the factual record in this proceeding, on
November 22, 2005, FMCSA sent letters to the Maryland State Highway
Administration and the Virginia Department of Transportation asking
whether the District of Columbia provided them written notice of the
District of Columbia's proposal to prohibit the transportation of
certain hazardous materials in the Capitol Exclusion Zone, as is
required by 49 CFR 397.71(b)(3). Specifically, at least 60 days prior
to establishing a routing designation, the District of Columbia was
required by regulation to "provide notice, in writing, of the proposed
routing designation to officials responsible for highway routing in all
other affected States or Indian tribes." 49 CFR 397.71(b)(3)(i).
Moreover, any such routing designation shall be established,
maintained, or enforced only if the routing designation is "agreed to
by the affected State or Indian tribe within 60 days of receipt of the
notice" or the routing designation is approved by the FMCSA
Administrator pursuant to dispute resolution procedures. 49 CFR
397.71(b)(5)(ii). On December 7, 2005, the Maryland State Highway Administration
responded to FMCSA's letter, explaining that it was unable to locate
any documentation indicating that the District of Columbia sent any
such notice to the State of Maryland and likewise was unable to locate
documentation indicating that the State of Maryland sent any reply to
the District of Columbia regarding the routing designations contained
in the DC Act. On January 12, 2006, the Virginia Department of
Transportation responded that it similarly was unaware of any
notification from the District of Columbia regarding the routing
restrictions at issue in this proceeding. Consequently, FMCSA finds
that the District of Columbia did not comply with the requirement in 49
CFR 397.71(b)(3) to provide notice to and consult with officials of
affected States. Further, there is no evidence in the record indicating
the District of Columbia complied with any of the requirements
contained in 49 CFR part 397, subpart C, and the District of Columbia
has offered none. The District of Columbia failed to comply with the statutory
requirements in 49 U.S.C. 5112 and FMCSA's standards in 49 CFR part 397
when it enacted the DC Act. The District of Columbia argues the issue
of preemption is not yet ripe because the regulations implementing the
DC Act do not apply to motor carriers until certain conditions are met. As discussed below, the issues presented by ATA in its Application
are ripe. As an initial matter, however, it should be noted that the
ripeness doctrine derives from Article III of the U.S. Constitution,
which places limitations on federal judicial powers that are
inapplicable to administrative agencies.\4\ Courts have held that an
administrative agency is not subject to Article III and related
prudential limitations, and accordingly may issue declaratory orders
"in mere anticipation of a controversy or simply to resolve an
uncertainty." \5\ Thus, while an administrative agency may, where
appropriate, exercise its discretion and decline to address a matter
before it on ripeness grounds, it is not compelled to do so under the
Constitution. --------------------------------------------------------------------------- \4\ Metropolitan Council of N.A.A.C.P. Branches v. F.C.C., 46
F.3d 1154, 1161 (D.C. Cir. 1995) (citing Chavez v. Director, Office
of Workers Compensation Programs, 961 F.2d 1409, 1414 (9th
Cir.1992)). \5\ Pfizer Inc. v. Shalala, 182 F.3d 975, 980 (D.C. Cir. 1999)
(citing Metropolitan Council of NAACP Branches, 46 F.3d at 1161).
--------------------------------------------------------------------------- The District of Columbia argues the issues raised by ATA's
Application are not yet ripe because the regulations implementing the
DC Act do not apply to motor carriers until certain conditions are met.
However, the District of Columbia's promulgation of regulations
excluding motor vehicle traffic from the routing restrictions until
specified criteria are met does not salvage the District of Columbia's
failure to comply with Federal standards when it established in the DC
Act a highway routing designation over which certain hazardous
materials may not be transported. 49 CFR 397.71. As noted by ATA in its
rebuttal comments, its Application challenges the DC Act itself and not
the implementing regulations. [[Page 18141]] ATA correctly points out in its rebuttal comments that the District of
Columbia's subsequently issued regulations do not cure the procedural
defects in enacting the DC Act. Federal hazardous material law on preemption is triggered when a
highway routing designation over which hazardous material may or may
not be transported is established, maintained, or enforced. 49 U.S.C.
5125(c). Similarly, FMCSA's regulations require compliance with the
highway routing standards in 49 CFR 397.71 when a state establishes or
modifies a highway routing designation and maintains or enforces such
designation. 49 CFR 397.69. The District of Columbia has established
\6\ a highway routing designation through the enactment of the DC Act
and has maintained \7\ that highway routing designation by keeping the
DC Act current. As such, the District of Columbia was required to
comply with the statutory requirements in 49 U.S.C. 5112 and FMCSA's
standards in 49 CFR part 397 with regard to each enactment. A highway
routing designation made by the District of Columbia that does not
comply with the requirements of part 397 is preempted. 49 CFR
397.69(b). The District of Columbia has attempted to unilaterally
exempt itself from this obligation by adopting rules that would avoid
FMCSA's regulatory requirements until the rule is literally applied to
carriers. That is too late and not the intent of FMCSA's regulations.
Consequently, FMCSA rejects the District of Columbia's ripeness
argument.
--------------------------------------------------------------------------- \6\ Merriam Webster's dictionary defines "establish" as "to
institute (as a law) permanently by enactment or agreement."
Merriam Webster's Collegiate Dictionary 397 (10th ed. 1997). \7\ "Maintain" is defined as "to keep in an existing state."
Merriam Webster's Collegiate Dictionary 702 (10th ed. 1997).
--------------------------------------------------------------------------- Accordingly, the entire DC Act as it applies to motor carriers is
preempted by 49 U.S.C. 5125(c)(1) because the District of Columbia
failed to comply with FMCSA's standards for establishing highway
routing designations issued pursuant to 49 U.S.C. 5112(b) and 49 CFR
part 397, subpart C. V. Ruling Federal hazardous material transportation law preempts all
provisions of the DC Act as it applies to motor carriers. VI. Petition for Reconsideration/Judicial Review In accordance with 49 CFR 397.223(a), any person aggrieved by this
decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. Any party to this
proceeding may seek judicial review in the United States Court of
Appeals for the District of Columbia or in the Court of Appeals for the
circuit in which the person resides or has its principal place of
business. 49 U.S.C. 5127(a). This decision will become the final decision of FMCSA 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5125(f). If a petition for reconsideration of this determination is filed
within 20 days of publication in the Federal Register, the action by
FMCSA on the petition for reconsideration will be the final decision.
49 CFR 397.223(d). Issued in Washington, DC, on April 3, 2006.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. E6-5137 Filed 4-7-06; 8:45 am] BILLING CODE 4910-EX-P
|
