
[Federal Register: August 8, 2008 (Volume 73, Number 154)]
[Notices]               
[Page 46349-46350]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au08-111]                         

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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 
comments.

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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 
methods:
     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 
comments on-line.
    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://Docketinfo.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 
james.simmons@dot.gov (e-mail).

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 
Register.'')

Background

    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 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 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

[[Page 46350]]

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).

Public Comments

    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,
Administrator.
[FR Doc. E8-18344 Filed 8-7-08; 8:45 am]

BILLING CODE 4910-EX-P
