[Federal Register: April 20, 2005 (Volume 70, Number 75)]
[Notices]
[Page 20630-20632]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap05-147]
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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]