
[Federal Register: November 16, 2009 (Volume 74, Number 219)]
[Notices]               
[Page 59021-59027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16no09-97]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2008-0204 (PD-33 (F))]

 
City of Boston 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.

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    Applicants: American Trucking Associations, Inc. and Massachusetts 
Department of Highways.
    Local Laws Affected: Massachusetts Ordinances of 1979, Chapter 39, 
Document 78; the City of Boston Regulations Controlling the 
Transportation of Hazardous Materials, and the Traffic Rules and 
Regulations of the City of Boston.
    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 
following highway routing designations of the City of Boston 
Regulations Controlling the Transportation of Hazardous Materials:
    1. The Traffic Rules and Regulations of the City of Boston, Article 
VII, section 8B, Hazardous Materials Route; and
    2. The de facto ban on hazardous materials transportation through 
the City of Boston due to the change in administration of the City's 
hazardous materials permitting system.

DATES: Effective Date: This preemption decision is effective on May 17, 
2010.
    Petitions for Reconsideration of this preemption decision must be 
submitted to the FMCSA Administrator no later than December 7, 2009.

FOR FURTHER INFORMATION CONTACT: James Simmons, Chief, Hazardous 
Materials Division (MC-ECH), (202) 493-0496, FMCSA, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, or at james.simmons@dot.gov, or 
Charles Fromm, Assistant Chief Counsel, Office of Chief Counsel, 
Enforcement and Litigation Division (MC-CCE), (202) 366-3551, FMCSA, 
1200 New Jersey Avenue, SE., Washington, DC 20590, or at 
charles.fromm@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Application for a Preemption Determination

    American Trucking Associations, Inc. (ATA) and the Massachusetts 
Department of Highways (Mass Highway) applied for an administrative 
determination concerning whether Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and FMCSA regulations at 49 
CFR part 397 preempt certain hazardous material routing requirements 
that have been established or modified by the City of Boston (the City 
or Boston). The FMCSA published notice of ATA's application in the 
Federal Register on August 8, 2008. 73 FR 46349. The FMCSA published 
notice of Mass Highways' application in the Federal Register on 
September 2, 2008. 73 FR 51335. Both applications were consolidated 
into one docket because of their overlapping issues. Comments and 
rebuttal comments were received on the consolidated docket on or before 
December 1, 2008.\1\ FMCSA received 17 comments and one rebuttal 
comment generally or specifically in support of the position that the 
City of Boston should have complied with the current Federal 
regulations regarding hazardous material highway routing designations 
but failed to do so. One comment and one rebuttal comment were 
received, both from the City of Boston, arguing that the City of 
Boston's hazardous material routing designations were in compliance 
with applicable statutes and should not be preempted. On March 3, 2009, 
the FMCSA published a notice of delay in making the preemption decision 
to allow additional time for fact-finding and legal analysis of the 
issues raised in the preemption applications. 74 FR 9328.
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    \1\ Comments and/or rebuttal comments were received from the 
following: American Trucking Associations, Associated Industries of 
Massachusetts, Brewer Petroleum Service, Inc., C. White and Son 
Inc., City of Boston, Dangerous Goods Advisory Council, Dennis K. 
Burke, Inc., DJ Cronin, Institute of Makers of Explosives, J&S 
Transport Co., Inc., J.P. Noonan Transportation, Inc., Lighter 
Association, Inc., Massachusetts Motor Transportation Association, 
Massachusetts Oilheat Council, National Tank Truck Carriers, Inc., 
P.J. Murphy Transportation, Inc., Salvoni Transportation and 
Triumvirate Environmental Incorporated.
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    ATA's preemption application submits that the City of Boston made 
two impermissible hazardous material routing designations regarding the 
transportation of non-radioactive hazardous material (NRHM).\2\ The 
first is a change in the designated hazardous material route that 
resulted from construction of the Central Artery Tunnel (CA/T), also 
known as ``the Big Dig,'' in downtown Boston. The second is a change in 
Boston's administration and use of its hazardous material permitting 
program.
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    \2\ NRHM is defined at 49 CFR 397.65 as ``[a] non-radioactive 
hazardous material transported by motor vehicle in types and 
quantities which require placarding, pursuant to Table 1 or 2 of 49 
CFR 172.504.''
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    With respect to the City's hazardous material route change, ATA 
alleges that Boston did not properly comply with Federal requirements, 
discussed herein, for the establishment or modification of a hazardous 
material route when the City began enforcing a new hazardous material 
route on July 3, 2006. Due to various road changes stemming from the 
Big Dig construction project, the City altered its hazardous material 
route by amending a section of the City of Boston Traffic Rules and 
Regulations. This route change relates to transportation of certain 
hazardous materials for vehicles having a point of origin or 
destination within the City of Boston.\3\ The practical effect of the 
route change is to move hazardous material vehicle traffic from 
Commercial Street to Cross Street in downtown Boston. According to 
comments from the City of Boston (Boston Comments), this shift in route 
is one roadway over and was done to

[[Page 59022]]

utilize an improved and more direct route on Cross Street.\4\
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    \3\ Presumably, this same route would also be used for any 
hazardous materials vehicles authorized by permit to travel through 
the City of Boston, in addition to those vehicles with a point of 
origin or destination within the City. As discussed below, however, 
the City has not issued any permits for through transportation of 
hazardous material since the route change took effect, so it is 
unclear which routes would be approved for through transportation.
    \4\ The record is unclear whether the change from Commercial 
Street to Cross Street is the only change to the City's designated 
hazardous material route. ATA and several commenters reference other 
changes to the allowable use of various streets, for example, 
Massachusetts Avenue, that may also have been affected by the City's 
route change. Additionally, the description of the shift in route as 
``one roadway over'' does not fully describe the relationship 
between Commercial and Cross Street, which run along opposite ends 
of the City's central downtown corridor, ranging from 5 to 10 blocks 
apart.
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    ATA alleges that because the new route was not part of the City's 
previously designated hazardous material route, the change in route 
designation requires the City to comply with current Federal standards 
regarding the designation of hazardous material routes, pursuant to the 
terms of 49 CFR part 397, subpart C.
    Mass Highway's preemption application notes that the City of Boston 
has made a change in its hazardous material route from Commercial 
Street to Cross Street, but Mass Highway has not taken a position as to 
whether this route modification requires Boston to comply with the 
standards set forth in 49 CFR part 397. Rather, Mass Highway's 
application seeks guidance from FMCSA as to the effect that this route 
change, as well as other issues, have on City and State obligations 
under Federal statutory and regulatory requirements relating to 
hazardous material routing designations.
    As a second basis for challenging the City's route designation, ATA 
alleges that Boston improperly created a new de facto hazardous 
material routing designation by the change in administration and 
enforcement of the City's permit system for ``through'' transportation 
by motor carriers transporting NRHM, i.e., vehicles that do not have a 
point of origin or destination within the City. ATA submits that the 
permit system is being administered in a manner that effectively bans 
the through transportation of hazardous material. ATA argues that 
Boston previously issued permits to motor carriers that wished to 
transport hazardous material through the City. In 2006, the City 
revised the manner in which through permits would be evaluated and 
issued. Although the original permit system still exists, ATA submits 
that authorization for permits to allow hazardous material 
transportation through the City is no longer being granted. The Mass 
Highway application for a preemption determination, as well as comments 
from the City of Boston, state that the City began to enforce its 
hazardous material regulations more strictly in light of security 
concerns following the September 11, 2001 terrorist attacks. Part of 
this increased enforcement included changes to the renewal and issuance 
of permits for motor carriers seeking permission to transport hazardous 
material through the City. Mass Highway states that it has conferred 
with City of Boston officials and verified that no new through-permits 
have been issued in the past several years.\5\
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    \5\ In addition, the record does not indicate that any through-
permits issued prior to 2006 are still in effect, as it appears that 
they were either revoked or not renewed.
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II. Federal Preemption

    Title 49 U.S.C. 5125 contains several preemption provisions. 
Subsection (a) provides that a requirement of a State, political 
subdivision of a State, or Indian tribe is preempted if--(1) complying 
with a requirement of the State, political subdivision, or tribe and a 
requirement of this chapter, a regulation prescribed under this 
chapter, or a hazardous materials transportation security regulation or 
directive issued by the Secretary of Homeland Security is not possible; 
or (2) the requirement of the State, political subdivision, or tribe, 
as applied or enforced, is an obstacle to accomplishing and carrying 
out this chapter, a regulation prescribed under this chapter, or a 
hazardous materials transportation security regulation or directive 
issued by the Secretary of Homeland Security. These two paragraphs set 
forth the ``Dual Compliance'' and ``Obstacle'' criteria, which are 
based on U.S. Supreme Court decisions on preemption.\6\ As discussed 
more fully below, any hazardous material highway routing designation 
that was established prior to, and not modified after, November 14, 
1994, is ``grandfathered'' under prior Federal hazardous material 
transportation law. As such, pre-1994 routing designations are examined 
under the Dual Compliance/Obstacle test for preemption determinations.
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    \6\ Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & 
Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic 
Richfield, Inc., 435 U.S. 151 (1978).
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    The statutory preemption section most 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).
    Section 5112(b) requires the Secretary of Transportation 
(``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 material. 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 material 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, political subdivision or Indian tribe must follow 
FMCSA standards when establishing or modifying highway routing 
requirements for hazardous material.
    The preemption provisions in 49 U.S.C. 5125 carry out Congress's 
intention that a single body of uniform Federal regulations promote 
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, U.S. 
Senate, 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, ``[t]he original intent of HMTA was to 
authorize [DOT] with the regulatory and enforcement authority to

[[Page 59023]]

protect the public against the risks imposed by all forms of hazardous 
materials transportation, and 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.\7\
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    \7\ 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].
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III. Preemption Determinations

    Title 49 U.S.C. 5125(d) provides for issuance of administrative 
preemption determinations regarding hazardous material by the 
Secretary. The Secretary has delegated to FMCSA authority to make 
determinations of preemption concerning highway routing of hazardous 
material. 49 CFR 1.73(d)(2). Any directly affected person may apply for 
a determination as to whether a requirement of a State, political 
subdivision or Indian tribe is preempted. 49 CFR 397.205(a).
    The FMCSA's preemption determinations are governed by procedures in 
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. 49 CFR 397.211(c) and 397.223. Any party 
to the proceeding may seek judicial review in the U.S. Court of Appeals 
for the District of Columbia Circuit 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. FMCSA is also mindful of 
recent Administration policy on Federal preemption contained in the 
President's May 20, 2009, Memorandum for the Heads of Executive 
Departments and Agencies, on Preemption. 74 FR 24693 (May 22, 2009).\8\
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    \8\ ``The purpose of this memorandum is to state the general 
policy of my Administration that preemption of State law by 
executive departments and agencies should be undertaken only with 
full consideration of the legitimate prerogatives of the States and 
with a sufficient legal basis for preemption.'' 74 FR at 24693.
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IV. Discussion

a. Background of Boston's Hazardous Material Route and Permit System

    The City of Boston enacted Regulations Controlling the 
Transportation of Hazardous Materials (``Boston Regulations'') in 
December 1980, pursuant to Massachusetts Ordinances of 1979, Chapter 
39, Document 78 (``Ordinance''). The Ordinance and Boston Regulations 
contained provisions relating to various aspects of hazardous material 
transportation, including time of day restrictions, prohibitions of 
certain transportation, designation of routes within the City for 
hazardous material vehicles and establishment of a permit system for 
motor carriers wishing to operate their vehicles outside the parameters 
of the Ordinance and Boston Regulations.
    With respect to designation of routes, the Boston Regulations 
require that hazardous material be transported on designated ``Major 
Thoroughfares.'' Boston Regulations Sec.  7.1.4. As explained by the 
City, in 2006, following substantial completion of the CA/T project, 
certain portions of the Major Thoroughfare System were no longer 
available for use by hazardous cargo vehicles because part of the 
surface roadway was reconstructed in a tunnel in which hazardous cargo 
was prohibited. In addition, upgrades were made to new surface roads, 
including portions of Cross Street in downtown Boston. Boston Comments 
at 17. In light of these and other roadway changes, the City altered 
the hazardous material route as designated on its Major Thoroughfare 
System by amending Article VII, Section 8B of the City of Boston 
Traffic Rules and Regulations.
    ATA contends that Boston did not properly comply with federal 
requirements for the establishment or modification of a hazardous 
material route when it began enforcing this new hazardous material 
route on July 3, 2006. The practical effect of the route change is to 
move hazardous material vehicle traffic from Commercial Street to Cross 
Street. According to the City, this shift in route is one roadway over 
and was done to utilize an improved and more direct route on Cross 
Street. In 2006, the City issued the following notification regarding 
the new route:

Notice of Hazardous Materials Route Change

    The Traffic Rules and Regulations of the City of Boston are 
hereby amended by inserting into Article VII,
    ``Section 8B, Hazardous Materials Route:
    No person shall operate a vehicle and no person shall allow, 
permit, or suffer a vehicle leased by him or registered in his name 
to be operated, transporting any hazardous materials other than on 
the route listed below through Boston proper;
    Northbound:
    Route 93 (North) to Frontage Road, straight on Atlantic Avenue, 
straight on Cross Street, right on North Washington Street;
    Southbound:
    North Washington Street left on John F. Fitzgerald Expressway 
Surface Road, right onto Purchase Street, straight on John F. 
Fitzgerald Expressway Surface Road, straight on Albany Street to 
Route 93 (South).''
    *Please Be Advised That Enforcement of the New Route Will Begin 
on Monday, July 3, 2006

    Since the establishment of the new hazardous material route, motor 
vehicles transporting regulated hazardous materials must use the newly 
designated streets.
    In addition to the hazardous material routing designation, the 
Boston Regulations and Ordinance also established a permit system which 
requires, among other things, that carriers who wish to operate their 
vehicles inconsistently with the requirements of the Ordinance and/or 
Boston Regulations, obtain a permit for authorities beyond those 
restrictions. A permit would be issued only where (1) a compelling need 
is shown, and (2) where transportation of the hazardous materials is in 
the public interest. Ordinance Sec.  2(A)(8); Boston Regulations Sec.  
8.1.3. The permit would be granted for a period of one year and would 
be automatically renewed upon request unless revoked for cause after a 
hearing. Id. In order for hazardous material vehicles to use City 
streets for transportation of regulated hazardous material where there 
is no point of origin or destination within the City, the motor carrier 
must obtain a permit for ``through'' transportation via downtown 
Boston.
    ATA contends that prior to 2006, motor carriers were regularly 
issued through-permits, allowing them to transport hazardous material 
through downtown Boston. In April 2006, the City issued a form letter 
to all permit holders and applicants stating that it was undertaking a 
review of all permits issued pursuant to the Ordinance and Boston 
Regulations ``to determine if the

[[Page 59024]]

criteria for issuing the permit continue to be met.'' \9\ The letter 
went on to state:
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    \9\ Letter from Kevin P. MacCurtain, Acting Fire Commissioner, 
to various permit holders, April 7, 2006, attached to ATA's 
preemption application as Exhibit E.

    In light of various changed circumstances, both locally and 
nationally, that have arisen over the years after the Regulations 
were enacted, the Fire Commissioner and the Commission have 
determined that each permit and permit application now needs to be 
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reviewed with those changed circumstances and criteria in mind.

The City cites changes and events such as the terrorist attacks of 
September 11, 2001, changed traffic patterns and roadways occasioned by 
the Big Dig project, land use changes and population density shifts 
within the City, and an overall increase in hazardous material 
transportation by motor vehicle as reasons for the reexamination of the 
issued permits. Each permit holder and applicant was notified of a 
hearing date to present evidence of the criteria for issuance and/or 
maintenance of the permit, i.e., that there was a compelling need and 
that transportation of the hazardous material was in the public 
interest. According to the ATA and Mass Highway preemption 
applications, and undisputed by the City of Boston, following this 2006 
reexamination of permit holders, no permits for ``through'' 
transportation have been issued/renewed in the past several years.
    As a result of their inability to obtain through transportation 
permits, hazardous material motor carriers are directed to travel on 
alternate routes that bypass the restricted areas of downtown 
Boston.\10\ According to ATA, the bypass route significantly increases 
the mileage of motor carriers with regular commercial activities 
involving origin and destination points immediately north and south of 
the City.\11\ In addition, the diversion of hazardous material motor 
vehicles around the City causes those vehicles to travel through 
numerous other communities surrounding Boston.
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    \10\ See Exhibit J to Boston's Comments, Exemplar of 
Massachusetts Highway Department Hazmat ``Trucker Notice'' Sign and 
Exhibit K to Boston's Comments, Photograph of Massachusetts Highway 
Department Posted Hazmat ``Trucker Notice'' Sign. Both signs state, 
``I-93 BOSTON TUNNELS HAZARDOUS/DANGEROUS CARGOES PROHIBITED USE I-
95 NORTH [SOUTH].''
    \11\ Specifically, in one example provided by ATA, motor 
carriers transporting petroleum products from a fuel farm in 
Everett, MA to points south of the City, such as Milton, MA, are 
required to travel an additional 84 miles roundtrip, a 382% mileage 
increase. According to ATA, this effectively has reduced motor 
carrier productivity by 33%, in light of hours of service 
restrictions.
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b. Summary of Federal Statutory and Regulatory Requirements

    Any State or political subdivision of a State, such as the City of 
Boston, must comply with Federal statutes and regulations when 
establishing, maintaining, enforcing or modifying a hazardous material 
highway routing designation. 49 U.S.C. 5125(c); 49 U.S.C. 5112(b). 
FMCSA promulgated regulations pursuant to 49 U.S.C. 5112(b) that States 
must follow when establishing or modifying a hazardous material routing 
designation. 49 CFR 397.69. In summary, the standards require:
    -- 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'' so as not to impede or unnecessarily delay the transportation 
of non-radioactive hazardous material. 49 CFR 397.71(b)(4).
    -- A risk analysis be conducted, with a finding that the routing 
designation enhances public safety. 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 or 
Indian tribes within 60 days of notice, or alternatively, approval by 
the FMCSA 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).
    -- Responsibility by the States for ensuring that all of their 
political subdivisions comply with the federal regulations and for 
resolving any disputes between political subdivisions within their 
jurisdictions. 49 CFR 397.71(b)(8).
    -- Compliance by the State or Indian tribe with the public 
information reporting requirements in 49 CFR 397.73. 49 CFR 
397.71(b)(8).
    -- Consideration of specific factors, including population density, 
type of highway, types and quantities of NRHM normally transported, 
emergency response capabilities, results of consultation with affected 
persons, exposure and other risk factors, terrain, continuity of 
routes, alternative routes, effects on commerce, delays in 
transportation, climatic conditions, and congestion and accident 
history. 49 CFR 397.71(b)(9).
    The standards summarized above, set forth at 49 CFR 397.71, apply 
to all hazardous material highway routing designations established or 
modified on or after November 14, 1994. 49 CFR 397.69(a). Except in the 
case of certain dispute resolutions or waivers, any hazardous material 
routing designation made in violation of the applicable Federal 
standards is preempted. 49 CFR 397.69(b).
    Any routing designation that was established prior to, and not 
modified after, November 14, 1994, is ``grandfathered'' under the prior 
Federal hazardous material transportation law. 49 CFR 397.69(c); 49 
U.S.C. 5125(c)(2)(B).\12\ Those earlier routing designations that fall 
within the ``grandfathered'' period, are subject to preemption in 
accordance with the standards set forth in 49 U.S.C. 5125(a) and 49 CFR 
397.203(a)(1) and (a)(2). This earlier preemption standard is often 
referred to as the Dual Compliance/Obstacle Test. Under that standard, 
a routing designation is preempted if: (1) Compliance with both the 
hazardous material routing designation and any requirement under the 
HMTA or of a regulation issued therein is not possible, or (2) the 
highway routing designation as applied and enforced creates an obstacle 
to the accomplishment and execution of the HMTA or the regulations 
thereunder.
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    \12\ Title 49 U.S.C. 5125(c)(2)(B) states that ``[t]his 
subsection and section 5112 of this title do not require a State or 
Indian tribe to comply with section 5112(b)(1)(I) if the highway 
routing designation, limitation or requirement was established 
before November 16, 1990.'' Although the statutory and regulatory 
``grandfather'' clause dates vary by approximately four years--
November 16, 1990 versus November 14, 1994--the date differential is 
of no consequence in the instant preemption proceeding. The original 
Boston routing designations were established in 1980, while the 
purported modifications occurred in 2006, well beyond the timeframe 
of the two ``grandfather'' clauses.

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[[Page 59025]]

c. Application of Federal Regulatory Requirements to Boston's Hazardous 
Material Route and Permit System

    The central issue of the consolidated preemption application is 
whether the City of Boston was required to comply with current Federal 
standards regarding the establishment or modification of hazardous 
material highway routing designations, as contained in 49 CFR part 397, 
subpart C. In order to make that determination, it is necessary to 
decide which preemption standard is applicable to the hazardous 
material routing designations established or modified by the City--the 
standard contained in 49 CFR 397.69(a) or the earlier standard of the 
Dual Compliance/Obstacle Test. In this case, that analysis turns on the 
meaning of a ``modification'' of a routing designation, as that term is 
used in 49 CFR 397.69(a).\13\
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    \13\ Title 49 CFR 397.69(a) states:
    Any State or Indian tribe that establishes or modifies a highway 
routing designation over which NRHM may or may not be transported on 
or after November 14, 1994, and maintains or enforces such 
designation, shall comply with the highway routing standards set 
forth in Sec.  397.71. For purposes of this subpart, any highway 
routing designation affecting the highway transportation of NRHM, 
made by a political subdivision of a State is considered as one made 
by that State, and all requirements of this subpart apply. (Emphasis 
added.)
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    It is undisputed that Boston's original hazardous material routing 
designation was established in 1980 pursuant to the Ordinance and 
Boston Regulations. As such, the preemption standard for the original 
route(s) would ordinarily fall within the ``grandfather'' clauses of 
both 49 U.S.C. 5125(c)(2) and 49 CFR 397.69(c). The pertinent question, 
however, is whether that original routing designation was modified 
subsequent to November 14, 1994, such that the modified route would be 
subject to the current Federal standards for hazardous material routing 
designations. ATA contends that two events occurred that amount to 
modifications of Boston's routing designations, and therefore the City 
was required to comply with all of the standards set forth in 49 CFR 
397.71, infra. Those two events are (1) the change in designated 
streets of the hazardous material route as a result of roadway 
construction in conjunction with the CA/T project, and (2) the change 
in the administration and enforcement of the City's permit system such 
that through-permits are no longer issued, thereby creating a new de 
facto routing restriction which effectively bans all hazardous material 
transportation if the vehicle has neither a point of origin nor 
destination within the City of Boston.
    In its comments submitted in response to the preemption 
applications, Boston argues that its regulations have been in existence 
for 29 years and have remained unchanged during that time. The City 
contends that the changes to the hazardous material route were adjusted 
to accommodate changes to physical road locations caused by the Big 
Dig, but that such changes did not amount to a significant or material 
modification of the route. Boston submits that it was taking advantage 
of an improved surface roadway to increase public safety in connection 
with the transportation of hazardous material. The City further 
contends that the route change was accomplished by ``administratively 
updating'' the City's Major Thoroughfare System and that the route 
change involved only an ``insignificant shift'' one roadway over within 
the same central corridor through downtown Boston. As such, Boston 
argues that this shift in roadway does not constitute a modification of 
a designated hazardous material route for purposes of triggering 49 CFR 
397.69.
    The FMCSA is not persuaded by Boston's arguments and finds that the 
change in roadways, evidenced by the City's own ``Notice of Hazardous 
Materials Route Change,'' does constitute a modification of the 
designated route. In order to make this change in the route, the City 
was required to amend its Traffic Rules and Regulations so that it 
could update the designation of the Major Thoroughfare System to 
include the new road(s). Referring to the amendment as an 
``administrative update'' does not change the fact that the City was 
legally required to revise its regulations for the route change to take 
effect. And although the original route and the new route may be 
located in close proximity to one another, the FMCSA declines to find 
that a route change of only a block or two is not a modification of the 
route. Such a finding would immediately raise the question of how far a 
route could be changed before it is considered modified. The simpler 
and preferred approach, which allows for no confusion, is that a change 
from one roadway to another constitutes a modification of the route. If 
a hazardous materials motor carrier were to use the previous designated 
route on Commercial Street, that vehicle would presumably be subject to 
enforcement for a violation of the City's hazardous material routing 
designation. Given that fact, it can hardly be said that the route was 
not modified within the meaning of 49 CFR 397.69. As such, Boston was 
required to comply with current Federal regulatory standards before 
designating the new hazardous material route. A preemption analysis 
under the earlier Dual Compliance/Obstacle Test is not warranted given 
that the designated route was modified after November 14, 1994. The 
routing designation therefore must be evaluated against the 
requirements of 49 CFR 397.71.
    ATA further submits that the change in administration of the City's 
permit system, which it argues has effectively banned through 
transportation of hazardous material within the City of Boston, also 
amounts to a de facto new routing designation that would subject the 
City to compliance with 49 CFR 397.69 and 397.71. Boston disputes ATA's 
contention that its actions with respect to its permitting program 
constitute a newly designated routing restriction. The City states that 
its 2006 review of current permit holders and new applicants was simply 
an exercise of enforcement of the 1980 Boston Regulations. It submits 
that during the course of that review and subsequently, the analysis of 
whether or not to issue a through-permit to an applicant is based on 
the same criteria established in the 1980 Boston Regulations, namely, 
whether the applicant has demonstrated a compelling need and that 
transportation of the hazardous material is in the public interest. 
Boston argues that it is entitled to administrative discretion and to 
reach its own conclusions, which may change over time, as to what 
constitutes ``compelling need'' and ``in the public interest.'' While 
it concedes that in years past the City may have been ``more permissive 
in granting permits,'' Boston argues its recent adoption of a more 
restrictive approach to permitting does not mean a change in the Boston 
Regulation has occurred. Boston Comments at 22-25.
    Once again, we do not find Boston's arguments persuasive. The City 
may not circumvent its own regulations or Federal regulation by 
claiming to utilize a 29-year-old permitting system, yet failing to 
actually issue any permits. Although the City is correct that the 
permitting provision of the Boston Regulation did not change, that is 
not the relevant analysis in this instance. The real question is 
whether the City's highway routing designation has changed, and the 
answer to that question is yes. The definition of a ``routing 
designation'' includes ``[a]ny regulation, limitation, restriction, * * 
* [or] routing ban * * * applicable to the highway transportation of 
NRHM over a specific highway route or portion of a route.'' 49 CFR 
397.65 (emphasis

[[Page 59026]]

added). The City used to allow transportation of hazardous material 
vehicles through the downtown corridor even where the motor carrier did 
not have a point of origin or destination within the City. This 
transportation was authorized through issuance of permits to qualified 
hazardous material motor carriers. Beginning at a very identifiable 
point in time in 2006, Boston made the decision to revoke through-
permits previously issued and not to issue any new through-permits 
going forward. This change in the administration of the City's 
permitting system has created a new limitation/restriction/ban on 
through transportation of hazardous material vehicles and a de facto 
modification of the City's routing designation. Boston's current 
administration of the permitting system essentially removes the 
provision of the Ordinance and Boston Regulation that allows a 
hazardous materials motor carrier to demonstrate a compelling need for 
issuance of a through-permit. This de facto modification to the City's 
routing designation has a significant impact on transportation of 
hazardous materials through Boston. It also serves to shift the risk 
associated with that transportation to neighboring jurisdictions by 
forcing hazardous material motor carriers to use alternative routes 
bypassing the City of Boston. Because this modification to Boston's 
routing designation occurred post-November 14, 1994, the City is 
required to comply with Federal regulatory standards found in 49 CFR 
397.71.
    Both the City of Boston in its comments and Mass Highway in its 
preemption application raise the issue of a prior DOT Inconsistency 
Ruling (``IR-3''), as well as a prior U.S. District Court case \14\ 
that addressed certain aspects of the Ordinance and 1980 Boston 
Regulations. In view of the fact that the federal court case dealt with 
a request for a preliminary injunction which does not undertake an 
analysis of the merits of the arguments, and the fact that the ruling 
on IR-3 was found to be ``indeterminate,'' neither of these prior 
rulings is of precedential value to FMCSA's current preemption 
determination. Moreover, the challenges raised in IR-3 and the federal 
court case related to various provisions of the original 1980 Boston 
Regulations and Ordinance. The issue before FMCSA in the current 
preemption applications is whether there has been a modification of 
Boston's hazardous material highway routing designations such that 
current Federal preemption standards apply. Given the findings above 
that such a modification has occurred, the prior IR-3 and federal court 
case have no applicability to the present determination.
---------------------------------------------------------------------------

    \14\ American Trucking Assoc., Inc., et al. v. Boston, 1981 U.S. 
Dist. LEXIS 18423 (D. Mass. 1981).
---------------------------------------------------------------------------

    As noted by ATA in its preemption application, as well as by the 
majority of commenters, including the Massachusetts Motor 
Transportation Association, Associated Industries of Massachusetts, 
Brewer Petroleum Service, Inc., Dangerous Goods Advisory Council, 
Lighter Association, Inc., Triumvirate Environmental Inc., Salvoni 
Transportation, Massachusetts Oilheat Council, J&S Transport Co., Inc., 
National Tank Truck Carriers, Inc. and Dennis K. Burke, Inc., Boston 
did not undertake the necessary steps to comply with the standards set 
forth in 49 CFR 397.71 before making modifications to the City's 
hazardous material routing designations. While Boston argues on the one 
hand that it did not have to comply with these current Federal 
regulatory requirements, the City argues in the alternative that it did 
undertake certain steps and applied an analysis similar to the 
requirements in section 397.71. Mass Highway and the City submit that a 
study conducted for purposes of analyzing alternative hazardous 
material routes in conjunction with construction during the CA/T 
project, ``largely complied with the federal regulatory requirements 
later outlined in Sec.  397.71.'' \15\ Mass Highway Application at 4; 
Boston Comments at 14. Although that study may have considered some of 
the same factors found in 397.71(b)(9), such as population density, 
type of highway, emergency response capability, etc., it failed to 
address other factors required under the current standards. For 
example, Boston did not engage in any of the other requirements of part 
397.71, most notably the requirements of 397.71(b)(3), involving 
consultation with other affected parties, and 397.71(b)(5), requiring 
agreement to the routing designation by other affected States or 
approval by the FMCSA Administrator, in lieu of such agreement. 
Moreover, the study was completed in 1994 while the new routing 
designation was not proposed until 2006. The factors to be considered 
in 397.71(b)(9) are fluid conditions, such as population density, type 
of highway, exposure to risk factors, alternative routes, congestion 
and accident history, to name a few. An analysis of these factors 12 
years earlier would likely not accurately reflect the current 
conditions and considerations.
---------------------------------------------------------------------------

    \15\ The study was entitled ``June 1994 CA/T Project Concept 
Report No. 2AB26, Transportation of Hazardous Cargo,'' and can be 
found as Exhibit H to Mass Highway's preemption application.
---------------------------------------------------------------------------

    Our finding today that the change in roadway is a modification of 
the designated hazardous material route, as well as our finding that a 
de facto new routing designation was created by Boston's effective ban 
on through-permits, further the public policy and legislative intent 
behind the Federal hazardous materials transportation law, which seeks 
to provide a uniform basis of regulations to promote the safe 
transportation of hazardous materials. When Boston's original routing 
designations were established in 1980, the current Federal regulations 
were not in existence. The grandfathering provisions in the Federal 
statute and rule excuse Boston's compliance with the Federal standards 
as to its 1980 routing designations. However, almost fifteen years have 
passed since the current regulations were enacted, and the City has had 
ample notice of what would be required should it wish to modify its 
hazardous material highway routing designations. The City could have 
applied for a waiver of preemption pursuant to 49 U.S.C. 5125(e) and 49 
CFR 397.213, but it decided not to do so. The City of Boston chose to 
make the modifications discussed herein, and it must comply with the 
current Federal regulations.

V. Ruling

    FMCSA finds that 49 U.S.C. 5125(c)(1) preempts certain highway 
routing requirements of the City of Boston because Boston failed to 
comply with FMCSA's standards for establishing or modifying a hazardous 
material highway routing designation issued pursuant to 49 U.S.C. 
5112(b) and 49 CFR part 397, subpart C. The specific routing 
requirements preempted are:
    1. The Traffic Rules and Regulations of the City of Boston, Article 
VII, section 8B, Hazardous Materials Route; and
    2. The de facto ban on hazardous material transportation through 
the City of Boston due to the change in administration of the City's 
hazardous material permitting system.
    This preemption decision will become effective on May 17, 2010 to 
allow time for the City of Boston to comply with the current Federal 
statutory and regulatory requirements.

VI. Petitions for Reconsideration and 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

[[Page 59027]]

service of this decision. The decision will become the final decision 
of FMCSA 20 days after service if no petition for reconsideration is 
filed within that time. If a petition for reconsideration of this 
decision is filed within 20 days, the action by FMCSA on the petition 
for reconsideration will be the final decision. 49 CFR 397.223(d).
    Persons adversely affected or aggrieved by this determination may 
seek judicial review, in accordance with 49 U.S.C. 5127(a), in the 
United States Court of Appeals for the District of Columbia Circuit or 
in the Court of Appeals for the circuit in which the person resides or 
has its principal place of business. The filing of a petition for 
reconsideration is not a prerequisite to seeking judicial review of 
this decision under 49 U.S.C. 5127.

    Issued on: November 10, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-27483 Filed 11-13-09; 8:45 am]

BILLING CODE 4910-EX-P
