[Federal Register: August 8, 2008 (Volume 73, Number 154)]
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 American Trucking Associations, Inc. for a
Preemption Determination on the City of Boston's Routing and
Transportation Restrictions Applicable to Certain Hazardous Materials
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of application for preemption determination; request for
SUMMARY: FMCSA provides notice and invites interested parties to submit
comments on an application by the American Trucking Associations, Inc.
(ATA) for an administrative determination on whether Federal law
preempts highway routing designations issued by the City of Boston
(Boston) restricting transportation of certain hazardous materials. ATA
submits that Boston failed to comply with the Federal routing
requirements set in 49 CFR 397.71 and that such routing designations
are therefore preempted under 49 U.S.C. 5125 and 49 CFR 397.69.
DATES: Comments received on or before September 22, 2008 and rebuttal
comments received on or before November 6, 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.
- Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting comments.
- Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
- Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal Holidays.
- Fax: 1-202-493-2251.
Each submission must include the Agency name and the docket ID for
this Notice. Note that DOT posts all comments received without change
to http://www.regulations.gov, including any personal information
included in a comment. Please see the Privacy Act heading below.
Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want acknowledgment that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19476; Apr. 11, 2000). This
information is also available at http://Docketsinfo.dot.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 also be sent to
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 Mr. Moskowitz. (The
following format is suggested: "I certify copies of this comment were
sent to Mr. Moskowitz at the address specified in the Federal
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
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. 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).
ATA alleges that Boston, in the course of the construction of the
Central Artery Tunnel (often referred to as the "Big Dig"), changed
designated hazardous materials routes through Boston and, in doing so,
failed to comply with the requirements of Sec. 397.71. ATA has
submitted an application for a preemption determination pursuant to
the procedures set forth in 49 CFR part 397, subpart E--Preemption
Procedures. ATA requests that the FMCSA Administrator make a
determination on whether the highway routing designations established
by Boston are preempted pursuant to Sec. 397.69(b). A copy of the ATA
application for preemption determination is available for review in the
docket for this notice. You may view or obtain a copy of the
application online by visiting http://www.regulations.gov and going to
the docket number for this matter (FMCSA-2008-0204).
FMCSA seeks comments on whether 49 CFR 397.69(b) preempts Boston's
highway routing designations that are being challenged by ATA. Comments
should specifically address the preemption standard established under
49 CFR 397.69(b) and 49 U.S.C. 5125(c).
Issued on: August 1, 2008.
John H. Hill,
[FR Doc. E8-18344 Filed 8-7-08; 8:45 am]
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