Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices 29867

D. Financial Plan

The Financial Plan must demonstrate

that sufficient funding is available to

successfully complete all aspects of the

proposed project as described in the

Technical Plan.

1. The Financial Plan must include a

clear identification of the proposed

funding for the proposed deployment,

and a commitment to provide a

minimum twenty percent (20%)

matching share that must be from nonFederally derived funding sources. All

financial commitments from both the

public and private partners, including

any details of revenue sharing, must be

documented.

2. The Financial Plan must include a

sound financial approach to ensure the

timely deployment and the continued

long-term operation and management of

the system without continued reliance

on Federal funding. The Financial Plan

must include documented evidence of

continuing fiscal capacity and

commitment.

3. The proposed project must include

corresponding public and/or private

investments that minimize the relative

percentage and amount of Federal

funds.

Authority: 23 U.S.C. 315; Sec. 5117(b)(3) of

Public Law 105–178, as amended; 49 CFR

1.48.

Issued on: May 25, 2001.

Vincent F. Schimmoller,

Deputy Executive Director.

[FR Doc. 01–13791 Filed 5–29–01; 2:44 pm]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

Federal Motor Carrier Safety

Administration

[Docket No. RSPA–98–3579 (PD–20(RF))]

Cleveland, Ohio Requirements for

Transportation of Hazardous Materials

AGENCY: Research and Special Programs

Administration (RSPA) and Federal

Motor Carrier Safety Administration

(FMCSA), DOT.

ACTION: Notice of administrative

determination of preemption.

APPLICANT: Association of Waste

Hazardous Materials Transporters

(AWHMT) and American Trucking

Associations, Inc. (ATA).

LOCAL LAWS AFFECTED: Cleveland

Consolidated Ordinances (City Code),

Chapters 387 and 394, and uncodified

requirements for advance notification

and police escort of explosives

shipments.

APPLICABLE FEDERAL REQUIREMENTS:

Federal hazardous material

transportation law, 49 U.S.C. 5101 et

seq., and the Hazardous Materials

Regulations (HMR), 49 CFR parts 171–

180.

MODES AFFECTED: Highway.

SUMMARY: The following requirements

are preempted by 49 U.S.C. 5125(a)(2)

because they create obstacles to the

accomplishment and carrying out of

Federal hazardous material

transportation law and the HMR:

1. Cleveland City Code section

394.06(b) prohibiting the transportation

of hazardous materials in the Downtown

Area between 7 a.m. and 6 p.m., except

Saturday and Sunday, preempted with

respect to radiopharmaceuticals only.

2. Cleveland’s uncodified

requirements for a transporter of

explosives to notify the Fire Prevention

Bureau 24 hours in advance of any pickup or delivery, to specify the route to be

taken within the City, and to have a

police escort if more than 250 pounds

are transported.

3. Cleveland City Code sections

387.08(b) and 394.07(b) specifying

separation distance requirements

between vehicles transporting

explosives or other hazardous materials.

There is insufficient information in

the record to find that the weekday time

restriction in City Code section

394.06(b) is preempted with respect to

hazardous materials other than

radiopharmaceuticals.

FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs

Administration (Tel. No. 202–366–

4400), or Joseph Solomey, Office of the

Chief Counsel, Federal Motor Carrier

Safety Administration (Tel. No. 202–

366–1374), U.S. Department of

Transportation, 400 Seventh Street, SW,

Washington, DC 20590–0001.

SUPPLEMENTARY INFORMATION:

I. Background

In this determination, FMCSA and

RSPA consider whether Federal

hazardous material transportation law,

49 U.S.C. 5101 et seq., preempts

requirements of the City of Cleveland,

Ohio (City) that:

—Hazardous materials may not be

transported within the ‘‘Downtown

Area’’ of the City between 7 a.m. and

6 p.m. except Saturdays and Sundays,

unless the Fire Chief grants an

exception on a showing that delivery

or pick-up of the hazardous material

‘‘can be practicably made’’ only

during the prohibited time period and

transportation of this material is in

‘‘the public interest’’;

—A carrier of explosives must (1) notify

the Fire Department ‘‘24 hours in

advance of all deliveries’’ of

explosives within the City, (2) specify

the route to be taken within the City

in accordance with the authority of

the City’s Director of Public Safety (or

his representative) to designate the

route to be taken within the City, and

(3) have a police escort if more than

250 lbs. of explosives are transported

within the City; and

—A vehicle transporting explosives or

other hazardous materials must

maintain a certain distance from any

other vehicle transporting explosives

or other hazardous materials, i.e., 500

feet between vehicles transporting

explosives and 300 feet between

vehicles transporting hazardous

materials.

This proceeding is based on two

notices published in the Federal

Register on September 17, 1998 (63 FR

49804), and June 30, 1999 (64 FR

35239). The first notice invited

interested parties to comment on an

application by AWHMT in March 1998

challenging a broad set of the City’s

requirements for:

—A permit to transport hazardous

materials when a placard is required,

permit fees, proof of insurance,

permissible routes and advance notice

of the route to be used, and the

weekday time restrictions in the

Downtown Area; and

—A permit to transport any amount of

explosives, permit fees, proof of

insurance, routing and prenotification

of shipments, vehicle inspections, the

number of fire extinguishers on the

vehicle, and a police escort (for any

shipment of more than 250 lbs. of

explosives).

In response to the September 17, 1998

notice, comments were submitted by the

City, AWHMT, and the following

additional parties: the Public Utilities

Commission of Ohio (PUCO),

Association of American Railroads,

Hazardous Materials Advisory Council

(HMAC), Institute of Makers of

Explosives, National Paint & Coatings

Association (NPCA), Ohio

Environmental Service Industries, and

Roadway Express.

The City and PUCO initially asked for

a 60-day extension of the opening

comment period in order to allow them

to further examine with AWHMT the

City’s requirements and consider

changes that might avoid the need for

RSPA and FMCSA to make

determinations in this proceeding.

These requests were denied, but the City

29868 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices

1AWHMT’s April 15, 1999 letter and the City’s

response on April 30, 1999 were set forth in the

June 30, 1999 notice. Because the comment period

was reopened, the City’s prior objection to the

failure to extend the opening comment period and

its objection to considering its distance separation

requirement (which was not challenged in

AWHMT’s original application) are considered

moot.

2 DOT’s regulations on State and Indian tribe

requirements for highway routing of hazardous

materials are set forth in two subparts of 49 CFR

part 397. Subpart D, adopted September 24, 1992,

applies to radioactive materials and sets forth the

same requirements originally issued by RSPA in

1981. 57 FR 44129. Subpart C applies to nonradioactive hazardous materials and became

effective on November 14, 1994. 59 FR 51824 (Oct.

12, 1994). The latter provides that only designations

established or modified on or after November 14,

1994 must comply with the standards issued under

49 U.S.C. 5112(b). 49 CFR 397.69(a).

and AWHMT were encouraged to

continue their discussions, which

resulted in the development of proposed

amendments to many of the City Code

provisions initially challenged by

AWHMT. In an April 15, 1999 letter,

AWHMT asked RSPA and FMCSA to

defer consideration of the City’s

requirements on permits, permit fees,

vehicle inspections, and fire

extinguishers. With some qualifications,

the City concurred. As a result, in the

June 30, 1999 Federal Register notice,

RSPA and FMCSA invited interested

parties to submit further comments on

the following requirements: the

weekday time restrictions for hazardous

materials; the prenotification, routing,

and escort requirements for explosives;

and the vehicle distance separation

requirements.1

In response to the June 30, 1999

notice, further comments were

submitted by the City, AWHMT,

Mallinckrodt, Inc., Radiopharmaceutical

Shippers and Carriers Conference

(RSCC), and Roadway Express.

In March 2000, a representative of

ATA advised that ATA had assumed

AWHMT’s role in this proceeding

because AWHMT (formerly affiliated

with ATA) had been dissolved. In

November 2000, the City’s Law

Department submitted its latest draft of

proposed revisions to Chapters 387 and

394 of the City Code, which appears to

resolve many of the issues raised in

AWHMT’s application. RSPA and

FMCSA understand that, if this draft is

ultimately adopted, the City would:

—Retain its current weekday time

restrictions for hazardous materials;

—Require persons within the City who

ship or receive explosives (rather than

the transporter of explosives) to

obtain a permit and also (1) provide

24-hour advance notice to City Police

of the proposed route and time and

place that the shipment will originate

or be received (plus updates of any

changes), and (2) require the

transporter to both comply with the

route designated by the Fire Chief and

cooperate with any police escort

within the City; and

—Modify its current 300-foot separation

distance requirement to apply to all

vehicles transporting hazardous

materials, except when at a

destination or point of origin, and

eliminate the separate requirement

specifying a 500-foot separation

distance for vehicles transporting

explosives.

II. Federal Preemption

Section 5125 of Title 49 U.S.C.

contains several preemption provisions

that are relevant to AWHMT’s

application. Subsection (a) provides

that—in the absence of a waiver of

preemption by DOT under § 5125(e) or

specific authority in another Federal

law—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 or a regulation

issued under this chapter 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 or a regulation prescribed

under this chapter.

These two paragraphs set forth the

‘‘dual compliance’’ and ‘‘obstacle’’

criteria that RSPA had applied in

issuing inconsistency rulings prior to

1990, under the original preemption

provision in the Hazardous Materials

Transportation Act (HMTA). Pub. L. 93–

633 Section 112(a), 88 Stat. 2161 (1975).

The dual compliance and obstacle

criteria are based on U.S. Supreme

Court decisions on preemption. 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).

Subsection (b)(1) of 49 U.S.C. 5125

provides that a non-Federal requirement

concerning any of the following

subjects, that is not ‘‘substantively the

same as’’ a provision of Federal

hazardous material transportation law

or a regulation prescribed under that

law, is preempted unless it is authorized

by another Federal law or DOT grants a

waiver of preemption:

(A) The designation, description, and

classification of hazardous material.

(B) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous material.

(C) The preparation, execution, and use of

shipping documents related to hazardous

material and requirements related to the

number, contents, and placement of those

documents.

(D) The written notification, recording, and

reporting of the unintentional release in

transportation of hazardous material.

(E) The design, manufacturing, fabricating,

marking, maintenance, reconditioning,

repairing, or testing of a packaging or a

container represented, marked, certified, or

sold as qualified for use in transporting

hazardous material.

To be ‘‘substantively the same,’’ the

non-Federal requirement must conform

‘‘in every significant respect to the

Federal requirement. Editorial and other

similar de minimis changes are

permitted.’’ 49 CFR 107.202(d).

Subsection (c)(1) of 49 U.S.C. 5125

provides that, beginning two years after

DOT prescribes regulations on standards

to be applied by States and Indian tribes

in establishing requirements on

highway routing of hazardous materials,

A State or Indian tribe may 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 section 5112(b).2

In addition, 49 U.S.C. 5125(g)(1)

provides that a State, political

subdivision, or Indian tribe may

impose a fee related to transporting

hazardous material only if the fee is fair and

used for a purpose relating to transporting

hazardous material, including enforcement

and planning, developing, and maintaining a

capability for emergency response.

These 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

considering the HMTA, the Senate

Commerce Committee ‘‘endorse[d] the

principle of preemption in order to

preclude a multiplicity of State and

local regulations and the potential for

varying as well as conflicting

regulations in the area of hazardous

materials transportation.’’ S. Rep. No.

1102, 93rd Cong. 2nd Sess. 37 (1974).

When it amended the HMTA in 1990,

Congress specifically found that:

(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

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices 29869

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.

Pub. L. 101–615 section 2, 104 Stat.

3244.

A Federal Court of Appeals has found

that uniformity was the ‘‘linchpin’’ in

the design of the HMTA, including the

1990 amendments that expanded the

original preemption provisions.

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.) To also

achieve safety through consistent

Federal and State requirements,

Congress has authorized DOT to make

grants to States ‘‘for the development or

implementation of programs for the

enforcement of regulations, standards,

and orders’’ that are ‘‘compatible’’ with

the highway-related portions of the

HMR. 49 U.S.C. 31102(a). In this fiscal

year, $155 million is available for grants

to States under the Federal Motor

Carrier Safety Assistance Program. See

49 CFR Parts 350 & 355 and the

preamble to FMCSA’s March 21, 2000

final rule, 65 FR 15092, 15095–96.

Under 49 U.S.C. 5125(d)(1), any

directly affected person may apply to

the Secretary of Transportation for a

determination whether a State, political

subdivision or Indian tribe requirement

is preempted. This administrative

determination replaced RSPA’s process

for issuing advisory inconsistency

rulings (IRs) under the ‘‘dual

compliance’’ and ‘‘obstacle’’ criteria

now explicitly set forth in § 5125(a).

The Secretary of Transportation has

delegated to FMCSA the authority to

make determinations of preemption that

concern highway routing and to RSPA

the authority to make such

determinations concerning all other

hazardous materials transportation

issues. 49 CFR 1.53(b), 1.73(d)(2). In this

determination, FMCSA’s Administrator

has addressed the highway routing

issues, and RSPA’s Associate

Administrator for Hazardous Materials

Safety has addressed the non-highway

routing issues. 49 CFR 107.209(a),

397.211(a).

Section 5125(d)(1) requires that notice

of an application for a preemption

determination be published in the

Federal Register. Following receipt and

consideration of written comments,

RSPA and FMCSA publish their

determination in the Federal Register.

See 49 CFR 107.209, 397.211. A short

period of time is allowed for filing

petitions for reconsideration. 49 CFR

107.211, 397.223. Any party to the

proceeding may seek judicial review in

a Federal district court. 49 U.S.C.

5125(f).

Preemption determinations do not

address issues of preemption arising

under the Commerce Clause, the Fifth

Amendment or other provisions of the

Constitution or under statutes other

than the Federal hazardous material

transportation law unless it is necessary

to do so in order to determine whether

a requirement is authorized by another

Federal law, or whether a fee is ‘‘fair’’

within the meaning of 49 U.S.C.

5125(g)(1). A State, local or Indian tribe

requirement is not authorized by

another Federal law merely because it is

not preempted by another Federal

statute. Colorado Pub. Util. Comm’n v.

Harmon, 951 F.2d at 1581 n.10.

In making preemption determinations

under 49 U.S.C. 5125(d), RSPA and

FMCSA are guided by the principles

and policies set forth in Executive Order

No. 13132, entitled ‘‘Federalism’’ (64 FR

43255 (August 10, 1999). Section 4(a) of

that Executive Order authorizes

preemption of State laws only when a

statute contains an express preemption

provision, there is other clear evidence

that Congress intended to preempt State

law, or the exercise of State authority

directly conflicts with the exercise of

Federal authority. Section 5125 contains

express preemption provisions, which

RSPA and FMCSA have implemented

through their regulations.

III. Discussion

A. General Arguments on ‘‘Traditional

State Control’’

In its opening comments, the City

stated that its requirements on

transporting hazardous materials are not

preempted because they ‘‘concern areas

of traditional state control.’’ In later

comments, the City argued that

‘‘environmental regulation, including

hazardous material regulation and

traffic safety, has long been recognized

as an historic police power and an area

of traditional state control,’’ citing

Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440 (1960), and

National Solid Wastes Management

Ass’n v. Killian, 918 F.2d 671 (7th Cir.

1990), aff’d sub nom., Gade v. National

Solid Wastes Management Ass’n, 505

U.S. 88 (1992). The City urged DOT to

follow Commonwealth of Massachusetts

v. U.S. Dep’t of Transp., 93 F.3d 890,

895 (D.C. Cir. 1996), in which the Court

of Appeals stated that there is an

‘‘established presumption against

preemption in matters of traditional

state control.’’ The City also has taken

the position that, under the standard in

49 CFR 397.3, ‘‘traffic control

regulations’’ are preempted only when

they are ‘‘at variance with specific

regulations of the Department of

Transportation which are applicable to

the operation of that vehicle and which

impose a more stringent obligation or

restraint.’’

AWHMT responded that the

transportation of hazardous materials is

not an area traditionally within State or

local control but, rather, was reserved to

the Federal Government under the

Commerce Clause of the Constitution. It

stated that Congress assigned to DOT,

rather than the Environmental

Protection Agency (EPA) or the States,

‘‘the regulation of hazardous materials

in transportation,’’ including intrastate

commerce. AWHMT also stated that 49

CFR 397.3 is ‘‘dated’’ and of

questionable relevance because it ‘‘does

not even demand that the non-federal

operating rules have a safety nexus.’’

References to areas of ‘‘traditional

state control’’ and a ‘‘presumption’’

against finding preemption provide

little help in resolving issues of

preemption under Federal hazardous

material transportation law. It is

undisputed that Congress has the power

to ‘‘regulate commerce * * * among the

several States,’’ under the Commerce

Clause of the Constitution. The Federal

hazardous material transportation law

was enacted under that authority to

promote safety through greater

uniformity in the regulation of

hazardous materials in transportation.

At the same time, RSPA has noted that

The history of the Hazardous Materials

Regulations for highway carriage has been

one of an accommodation of Federal and

State interests that is pragmatic and that

recognizes, as have the courts, that local

interest in highway safety is well established

and proper, and that a local exercise of police

powers in support of that interest is not to

be lightly displaced.

IR–1, New York City Health Code, 43 FR

16954–55 (Apr. 20, 1978).

In sum, the legitimate State and local

interests in traffic safety do not displace

DOT’s authority to regulate the

transportation of hazardous materials in

commerce and to find, by regulation or

other process, that a non-Federal

requirement on transportation conflicts

with the Federal hazardous material

transportation law and is preempted.

The traditional State and local role in

‘‘environmental regulation’’ focuses

primarily on limits or liabilities on the

29870 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices

3City Code section 394.06(a) separately prohibits

the use of City streets (other than interstate

highways) when there is ‘‘neither a point of origin

nor destination (delivery point)’’ within the City or

within one mile of the City limits, unless the Fire

Chief determines that ‘‘the use of City streets

provides the safest and most direct route and the

shortest distance of travel from an interstate

highway to the point of origin or destination.’’

Interstate highways within the City’s Downtown

Area are not allowed to be used for through

transportation of placarded amounts of hazardous

materials through Cuyahoga and its adjacent

counties. See FMCSA’s notice, Transportation of

Hazardous Materials; Designated Preferred, and

discharge of pollutants, including their

disposal, rather than requirements

affecting the movement of

transportation vehicles. The Supreme

Court recently noted that it has ‘‘upheld

state laws imposing liability for

pollution caused by oil spills.’’ United

States v. Locke, 529 U.S. 89, 106 (2000).

However, ‘‘there is no beginning

assumption’’ that a State’s laws directly

affecting commerce constitute ‘‘a valid

exercise of its police powers,’’ even

when those State laws are designed to

prevent or minimize damage to the

environment. Id. at 108.

Congress provided that hazardous

substances designated by EPA under 42

U.S.C. 9601(14) must be listed and

regulated as hazardous materials under

Federal hazardous material

transportation law. 42 U.S.C. 9656(a).

Moreover, EPA was directed to issue

regulations on transporters of hazardous

waste, ‘‘after consultation with the

Secretary of Transportation and the

States,’’ that are ‘‘consistent with’’

DOT’s regulations under Federal

hazardous material transportation law.

42 U.S.C. 6923(a), (b). State regulations

on transportation of hazardous waste

must be consistent with the HMR,

because a State program may not be

approved unless it is ‘‘equivalent to’’

and ‘‘consistent with’’ EPA’s hazardous

waste program. 42 U.S.C. 6926(b). See

also PD–12(R), 60 FR 62527, 62532–34

(Dec. 6, 1995), decision on petition for

reconsideration, 62 FR 15970, 15973

(Apr. 3, 1997), complaint for judicial

review dismissed, State of New York v.

U.S. Dep’t of Transp., 37 F. Supp. 2d

152, 158 (N.D.N.Y. 1999) (‘‘EPA’s

authorization of a state RCRA program

is not the equivalent of ‘authoriz[ation]

by another law of the United States’ ’’).

The decisions in the Huron Portland

Cement and National Solid Wastes

Management Ass’n cases cited by the

City provide no specific guidance here.

In the former, the Supreme Court simply

held a city smoke abatement ordinance

could be applied to a ship docked at the

Port of Detroit. In the latter case, the

Seventh Circuit recognized that

‘‘Congress has in some specific

instances expressed its intent to

preempt particular kinds of state and

local [environmental] legislation,’’ 918

F.2d at 673, including the particular

State laws on the training, testing and

licensing of hazardous waste site

workers that are not part of a plan

approved by the Secretary of Labor.

The requirement in 49 CFR 397.3 for

vehicles transporting hazardous

materials to comply with local laws may

not be read too broadly. In a 1976

interpretation set forth in Appendix C to

IR–1, 43 FR at 16961, DOT’s General

Counsel explained that this section has

a parallel in 49 CFR 392.2 applicable to

all commercial motor vehicles operated

in interstate commerce. The only

purpose of restating this requirement in

§ 397.3 was to make it apply to

‘‘intrastate movements of hazardous

materials by interstate carriers.’’ Id. at

16962.

Local traffic controls may be

‘‘presumed to be valid,’’ even when

applied only to vehicles transporting

hazardous materials. IR–23, City of New

York Regulations Governing Routing

and Time Restrictions on Transportation

of Hazardous Materials, 53 FR 16840,

16845 (May 11, 1988); IR–32,

Montevallo, Alabama Ordinance on

Hazardous Waste Transportation, 55 FR

36736, 36744 (Sept 6, 1990), appeal

dismissed as moot, 57 FR 41165 (Sept.

9, 1992). However, that presumption is

not conclusive. Under the obstacle test

for preemption,

The critical issue is the actual effect of the

requirement in question on overall public

safety. The argument that this issue is

foreclosed by the presumption of validity of

local laws is both circular, in that it takes the

inquiry back to its starting point, and

irrelevant, in that the issue is the effect on

safety as a matter of fact, rather than as a

matter of legal presumption.

IR–3, City of Boston Rules Governing

Transportation of Certain Hazardous

Materials, decision on appeal, 47 FR

18457, 18459 (Apr. 29, 1982).

Thus, § 397.3 does not give States or

localities blanket authority to impose

requirements on vehicles transporting

hazardous materials that do not apply to

other vehicles of similar type (e.g., size

and weight) that are not transporting

hazardous material. See IR–20,

Triborough Bridge and Tunnel

Authority Regulations Governing

Transportation of Radioactive Materials

and Explosives, 52 FR 24396, 24401

(June 30, 1987), corrections, 52 FR

29468 (Aug. 7, 1987) (a weight

limitation that ‘‘applies only to

[hazardous] materials and their

container rather than to the entire

vehicle and its contents, is not a bona

fide traffic control measure’’). Nor can

§ 397.3 ‘‘be read more broadly than to

require compliance with State and local

laws, ordinances, and regulations

relating to the ‘mechanics of driving and

handling of vehicles.’ ’’ IR–1, 43 FR at

16962. A local restriction that is

‘‘tantamount to a ban on the

transportation of [hazardous] materials

through or in the local jurisdiction

cannot be considered to be related to the

mechanics of driving and handling of

vehicles.’’ Id.

The ‘‘ultimate task in any pre-emption

case is to determine whether state

regulation is consistent with the

structure and purpose of the statute as

a whole.’’ Gade v. National Solid

Wastes Management Ass’n, 505 U.S. at

98. One must look to ‘‘the provisions of

the whole law, and to its object and

policy.’’ Id. Accord, United States v.

Locke, 529 U.S. at 108 (‘‘we must ask

whether the local laws in question are

consistent with the federal statutory

structure’’).

The purpose of the Federal hazardous

material transportation law ‘‘is to

provide adequate protection against the

risks to life and property inherent in the

transportation of hazardous materials in

commerce * * *.’’ 49 U.S.C. 5101. To

accomplish that purpose, Congress has

declared that a State or local

requirement is preempted when it ‘‘is an

obstacle to accomplishing and carrying

out’’ that law or the regulations issued

thereunder. 49 U.S.C. 5125(a)(2). RSPA

and FMCSA cannot agree with the

conclusion of the Court of Appeals in

the Commonwealth of Massachusetts

case that the ‘‘obstacle’’ test for

preemption only applies to non-Federal

requirements ‘‘with which a party

cannot comply if it complies with

HMTA, or [non-Federal] rules that

otherwise pose an obstacle to fulfilling

explicit provisions, not general policies,

of HMTA.’’ 93 F.3d at 895.

With this background, RSPA and

FMCSA turn to specific requirements in

the City Code on transporting explosives

and other hazardous materials.

B. Weekday Time Restrictions in the

Downtown Area

The City’s weekday time restrictions

are contained in City Code section

394.06(b) and apply to hazardous

materials being picked up or delivered

in the ‘‘Downtown Area,’’ defined as

The area, not including the interstate

highways, bounded by Lake Erie on the

North, the Cuyahoga River on the West,

Interstate 71 and the Inner Belt on the South

and East, and Interstate 90/Route 2 on the

North-East to and including the Eastern

boundary of Burke Lakefront Airport.

City Code section 394.06(c).3 At present,

the 7 a.m.–6 p.m. weekday prohibition

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices 29871

Restricted Routes, 65 FR 75771, 75803 (Dec. 4,

2000).

4The City stated that the only transportation of

explosives in the Downtown Area is for building

demolition, and that it has never issued an

exception to its weekday time restrictions for a

delivery of explosives. This seems to make clear

that the City’s Downtown Area weekday time

restrictions in section 394.06(b) apply to explosives,

in accordance with the plain language of Chapter

394, despite other statements in the City’s initial

comments that the requirement for a permit in

Chapter 394 did not apply to a ‘‘transporter of

explosives with an explosives permit.’’

5 In accordance with 49 CFR 397.73(b), these

routing designations and restrictions have been

published in the Federal Register, 63 FR 31549,

31571 (June 9, 1998), 65 FR 75771, 75802 (Dec. 4,

2000), and they are now posted on FMCSA’s

internet web site at <http://hazmat.fmcsa.dot.gov>.

applies only when placards are required

on the vehicle or freight container under

49 CFR part 172, subpart F. City Code

sections 394.02, 394.05. The proposed

changes to Chapter 394 would make

these time restrictions (and all other

requirements in Chapter 394) applicable

to vehicles that operate solely within

the City when they contain hazardous

materials for which labels and shipping

papers are required by the HMR.

The Fire Chief may grant an exception

to the weekday time restrictions on a

showing that a delivery or pick-up ‘‘can

be practicably made’’ only during the

restricted times and ‘‘[t]ransportation of

the hazardous material is in the public

interest.’’ City Code section 394.08(e).

The City stated that it grants two or

three exceptions every year, usually for

deliveries of fuel, and that the only

occasion on which the Fire Chief denied

an exception was for lack of

information.4 The City also stated that

the carrier may choose its route within

the City, so long as it complies with the

requirement in section 394.06(d) to ‘‘use

interstate highways and designated

truck routes to a point as close as

possible to the destination * * *.’’

AWHMT argued that the City’s

weekday time restrictions cause a delay

in the transportation of hazardous

materials, because these restrictions

may cause a carrier to make deliveries

of non-hazardous materials outside the

City before deliveries of hazardous

materials within the City, or wait

outside the City until it can enter the

Downtown Area. AWHMT stated that,

after the 1990 amendments to the

HMTA, ‘‘the designation and restriction

of routes for the transportation of

hazardous material [is] a state

responsibility, and that surrounding

communities need to be consulted.’’ It

argued that there is no evidence that the

City consulted with surrounding

communities and, therefore, the City

cannot know of the impact of its

restrictions on surrounding

communities.

Roadway Express stated that its

customers in the Downtown Area must

delay making shipments in order to

comply with the City’s weekday time

restrictions. Mallinckrodt and RSCC

stated that timely delivery is very

important for radiopharmaceuticals,

which have a short half-life, and that

these restrictions are not needed

because requirements in the HMR

provide sufficient safety. RSCC noted

that routing requirements for radioactive

materials were first established in 1981

by RSPA’s rulemaking in docket No.

HM–164. See 46 FR 5298 (Jan. 19, 1981).

The City emphasized that its weekday

time restrictions apply only to the

Downtown Area, not to the whole City.

It argued that local safety concerns

justify restricting the presence of

hazardous materials during the most

congested and crowded times of day. It

stated that ‘‘during business hours there

are an extraordinary number of

pedestrians and a higher population

density using street crossings and heavy

traffic in the center of the business

district.’’ The City submitted an

affidavit from a representative of the

Northeast Ohio Areawide Coordinating

Agency to show that ‘‘traffic density in

downtown Cleveland every week day

and especially during the morning rush

hour is high, and * * * Cleveland has

the highest accident rate of any

municipality in Cuyahoga County.’’

The City cited the decision in City of

New York v. Ritter, 515 F. Supp 663

(S.D.N.Y 1981), aff’d, National Tank

Truck Carriers, Inc. v. City of New York,

677 F.2d (2d. Cir. 1982), as finding ‘‘a

legitimate safety interest’’ to uphold

rush-hour time restrictions and

requirements for trucks transporting

hazardous materials to use a circuitous

route through less heavily populated

areas of New York City in going from

New Jersey to Long Island. The City also

argued that its weekday time restrictions

are similar to the requirement

considered in IR–3, City of Boston Rules

Governing Transportation of Certain

Hazardous Materials, 46 FR 18918 (Mar.

26, 1981), decision on appeal, 47 FR

18457 (Apr. 29, 1982).

PUCO stated that it is the State

routing agency for Ohio and that it

submitted to DOT in 1995 the City’s

routing requirements in Chapter 394,

including the weekday time restrictions

in City Code § 394.06(b).5 PUCO argued

that State and local routing restrictions

established before November 14, 1994

‘‘are not subject to preemption’’ under

49 U.S.C. 5125(c) and 49 CFR 397.69.

PUCO also asserted that surrounding

communities had made no objection to

the City’s requirements, and there is no

evidence of any obstacle to carrying out

the Federal hazardous materials

transportation law and the HMR. It

asserted that DOT must find some prima

facie evidence of an obstacle in order to

issue a binding determination of

preemption.

Time restrictions on the

transportation of hazardous material are

a ‘‘subset of routing restrictions

generally.’’ IR–3, 46 FR at 18922. When

applied to through traffic, prohibitions

against travel during certain hours ‘‘may

effectively route motor vehicles into

other jurisdictions.’’ Id. Alternatively, a

vehicle transporting hazardous material

that arrives during (or shortly prior to)

the curfew period may have to wait in

a neighboring jurisdiction for the curfew

period to end. In either case, the time

restriction may increase the overall risks

inherent in hazardous materials

transportation by increasing the overall

time that those materials are in

transportation and by shifting traffic to

other jurisdictions ‘‘that may not be

aware of or prepared for a sudden,

possibly permanent, change in traffic

patterns’’ or onto roads that ‘‘may be

inadequate, particularly where the

rerouted hazardous materials traffic is

diverted to routes that other similar

commercial traffic normally does not

use.’’ Id. at 18921. Routing restrictions,

including time limitations, also create

the potential for conflicts between

adjoining jurisdictions, such as when

required routes do not meet or time

restrictions do not allow a vehicle to be

in either jurisdiction.

In a number of rulings through 1990,

RSPA found that routing restrictions

that prohibit transportation through the

jurisdiction (even temporarily by means

of time limitations) are preempted in the

absence of adequate safety justification

and appropriate coordination with, and

concern for the safety of people in,

adjoining jurisdictions. E.g., IR–2,

Rhode Island Rules and Regulations

Governing the Transportation of

Liquefied Natural Gas, etc., 44 FR

75566, 75571 (Dec. 20, 1979), decision

on appeal, 45 FR 71881 (Oct. 30, 1980);

IR–21, Connecticut Statute and

Regulations Governing Transportation

of Radioactive Materials, 52 FR 37072,

37075 (Oct. 2, 1987), decision on

appeal, 53 FR 46735, 46738 (Nov. 18,

1968); IR–23, 53 FR at 16845–46; IR–32,

55 FR at 36744. In 1990, Congress

accepted this finding and directed DOT

to prescribe standards for State and

Indian tribe routing requirements

which, among other matters, must

‘‘enhance public safety’’ in other

jurisdictions affected by that

requirement, must follow consultation

29872 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices

6Although the Ritter case upheld New York City’s

routing requirements for tank trucks carrying

propane (including time limitations), that case is no

longer relevant because it was decided before the

1990 amendment to the HMTA requiring DOT to

adopt the highway routing standards in 49 CFR

397.71 for States and Indian tribes to follow.

Moreover, RSPA has noted that neither the trial or

appellate courts in Ritter considered the need for

‘‘coordination with, and concern for the safety of

people in adjoining, affected jurisdictions.’’ IR–23,

53 FR at 16845.

with officials of those other

jurisdictions, and must be agreed to by

the other affected State or Indian tribe.

Pub. L. 101–615 section 4, 104 Stat.

3251 (Nov. 16, 1990), now codified at 49

U.S.C. 5112(b)(1)(A), (C), (E). See also

FMCSA’s standards at 49 CFR

397.71(b)(1), (3), (5).6

When time restrictions (or other

routing requirements) apply only to

vehicles picking up or delivering

hazardous materials within the

jurisdiction, different considerations

exist. RSPA has found that ‘‘pickup and

delivery time restrictions are less likely

to affect other local jurisdictions and are

a more justifiable exercise of local

authority over local activities than time

restrictions on through traffic.’’ IR–23,

53 FR at 16845, discussing IR–3. In IR–

3, 46 FR at 18922, RSPA stated that a

time restriction applicable only to pickup and delivery operations in the

Boston downtown area is less likely to

divert traffic to neighboring

jurisdictions

and also appears to us to be justifiable as

ancillary to regulatory authority that the City

Council may exercise over land use and local

activities in Boston. For example, delivery of

explosives to a construction site in the city

might be prohibited during certain times of

the day.

FMCSA’s highway routing standards

in subparts C and D of 49 CFR part 397

require States and their political

subdivisions to follow the principles set

forth in these inconsistency rulings.

Among other matters, there must be

public participation (including

consultation with other affected

jurisdictions) in establishing highway

routing designations or limitations for

non-radioactive hazardous materials;

routing designations must ensure

continuity of movement; there may not

be any unreasonable burden on

commerce; and vehicles must have

reasonable access to terminals, pick-up

and delivery locations, and facilities for

food, fuel, repairs, rest, and safe havens.

49 CFR 397.71(b). These routing

designations must take account of

several specific factors and may not

‘‘create unreasonable delays in the

transportation’’ of hazardous materials.

49 CFR 397.71(b)(9)(xi). Routing

designations for radioactive materials

must ensure that vehicles are operated

‘‘on routes minimizing radiological

risk,’’ considering a number of specific

factors including overall transit time

and ‘‘the time of day and the day of

week during which transportation will

occur.’’ 49 CFR 397.101(a).

As noted above, the specific standards

in subpart C of 49 CFR part 397 must

be followed only when establishing or

modifying non-radioactive hazardous

materials routing designations on or

after November 14, 1994. 49 CFR

397.69(a). Because Chapter 394 and the

weekday time restrictions in Section

394.06(b) were adopted in April 1992,

the more general considerations

discussed in RSPA’s inconsistency

rulings remain applicable to City’s

weekday time restrictions. Those

considerations apply to both radioactive

and non-radioactive hazardous

materials, and are consistent with the

standards in 49 CFR subpart D for

radioactive materials in less than

highway-route-controlled quantities, so

that it is unnecessary to resolve whether

the standards in subpart D were issued

in September 1992, or 11 years earlier,

for the purposes of 49 U.S.C. 5125(c)(2).

See also PD–3(F), State of Washington

Port of Entry Restrictions, etc., 58 FR

31580 (June 3, 1993), where the Federal

Highway Administration evaluated a

State’s routing restrictions on spent

nuclear fuel under the dual compliance

and obstacle criteria.

With respect to hazardous materials

generally, there is insufficient evidence

to find that the City’s weekday time

restrictions actually cause delays or

possible adverse effects on neighboring

jurisdictions. As noted above, traffic

passing through the City may use

designated interstate highways at any

time of the day, and no person has

challenged these designations or

indicated that these vehicles would be

unnecessarily delayed by having to

interrupt their journey or being diverted

to neighboring jurisdictions. For most

hazardous materials being picked up or

delivered in the Downtown Area, it is

assumed that schedules can be adjusted

to make certain that travel does not take

place during the restricted time periods.

With one exception, discussed below,

the comments do not dispute the City’s

statement that its waiver process is

adequate for handling those situations

when the pick-up or delivery of

hazardous materials can only be

practicably made during the prohibited

time period. The comments do not show

that vehicles transporting hazardous

materials are forced to wait to enter the

Downtown Area or, if so, that the City

has not adequately considered that

waiting at a location outside the

Downtown Area (but still within the

City) presents a lower overall risk than

travel within the Downtown Area

during the restricted time periods.

Mallinckrodt and RSCC both stressed

the importance of timely deliveries of

radiopharmaceuticals. Mallinckrodt

stated that it has a nuclear pharmacy in

Garfield Heights, Ohio, which serves the

Cleveland metropolitan area. RSCC

indicated that it is impractical to apply

for waivers in order to deliver these

‘‘extremely time-sensitive’’ materials to

‘‘downtown Cleveland hospitals like the

Cleveland Clinic.’’ In IR–16, Tucson

City Code Governing Transportation of

Radioactive Materials, 50 FR 20872

(May 20, 1985), RSPA found that the

short time for delivery of

pharmaceuticals made it impossible to

comply with a city’s requirement for a

48-hour advance notification of the

pick-up or delivery of radioactive

materials without unreasonable delays.

In that proceeding, Mallinckrodt and

Federal Express stated that ‘‘orders for

placarded shipments of

radiopharmaceuticals are usually

received less than 24 hours before

delivery is to be made.’’ 50 FR at 20879.

RSPA also quoted the statement of the

Committee on Radiopharmaceuticals

and Radionuclides of the Atomic

Industrial Forum that the

short time allowed between the placement of

an order for material and its delivery to the

hospital or university medical school [is]

typically on the order of 8 to 24 hours * * *

For efficient use of short-lived radioactive

materials orders are placed in many cases as

patients needs are identified. Little notice

can be given to either the supplier or the

carrier as to what materials will be carried or

the timing of the delivery.

Id.

Because hospitals most often need

radiopharmaceuticals delivered in the

morning for patient treatment during the

day, it is not possible to ‘‘stockpile’’

these materials by having them

delivered on weekends or during the

overnight 6 p.m.—7 a.m. period when

the City’s time restrictions are not in

effect. In this regard, the City’s

prohibition extends throughout the

business day, from 7 a.m. until 6 p.m.,

and does not provide a period when

deliveries may be made in the middle of

the day, as New York City did in its

rush-hour curfews considered in the

Ritter case. See 677 F.2d at 272.

One other situation could present a

potential problem. If time restrictions

also existed in the jurisdiction at the

other end of the movement (i.e., the

pick-up location for a delivery in the

City, or the delivery location for a pickup in the City), it might not be

practicable for the shipper and carrier to

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices 29873

7City Code section 387.07(d) provides that ‘‘In

the event of any transportation of explosives within

the City, the route to be taken shall be designated

by the Director of Public Safety or his duly

authorized representative.’’ The City indicated that

it requires the carrier to specify a proposed route,

subject to approval or modification by the Fire

Department. The provisions of Section 387.07(d)

have not been reported to DOT or published in the

Federal Register in accordance with 49 CFR

397.73(b).

8AWHMT argued that the exception in section

387.03 is properly read as applying to all

transportation under DOT’s authority, so that ‘‘the

City’s requirements are null and void,’’ now that the

HMR apply to intrastate, interstate and foreign

commerce. See 49 CFR 171.1. In contrast, the City

stated that it applies the requirements in Chapter

387 ‘‘to all transportation except that which is

exclusively under the jurisdiction of the Federal

government,’’ and that this exception applies ‘‘only

to transportation on railroads and interstate

highways.’’

9See also the NRC’s escort requirements in 10

CFR 73.26 and 73.37 for highway shipments of

certain radioactive materials.

adjust their schedules to comply with

both time restrictions of the City and the

other jurisdiction. This possibility has

not been raised in any comment and, in

the absence of more specific information

that this situation could exist, it does

not show that the City’s weekday time

restrictions are an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

and the HMR.

The City’s weekday time restrictions

in City Code section 394.06(b) cause

unnecessary delays in the transportation

of radiopharmaceuticals and, with

respect to these materials, these

restrictions are preempted by 49 U.S.C.

5125(a)(2) because they create an

obstacle to accomplishing and carrying

out Federal hazardous material

transportation law and the HMR. There

is insufficient information to find that

Federal hazardous material

transportation law preempts City Code

section 394.06(b) with respect to other

hazardous materials.

C. Explosives Notification, Routing and

Escort Requirements

The City’s Application for the

Transportation of Explosives requires

the applicant to (1) notify the Fire

Prevention Bureau ‘‘24 hours in advance

of all deliveries,’’ (2) specify the route

to be taken within the City,7 and (3)

have a police escort ‘‘if more than 250

pounds are transported.’’ The City has

stated that it is not currently requiring

carriers to obtain a permit, but it argued

strongly that it should be able to impose

its prenotification, routing, and escort

requirements on carriers of explosives.

If the proposed changes to Chapter

387 are adopted, the City would

eliminate its requirement for

transporters of explosives to obtain a

permit and make the shipper or

recipient of explosives within the City

responsible for (1) notifying the Police

Department of the time and route of any

explosives shipment (24 hours in

advance and immediately upon any

changes thereafter), (2) requiring the

transporter to comply with the route

specified by the Fire Chief or his

designee, and (3) cooperating with any

escort provided by the Police

Department for either inbound or

outbound shipments. The City’s

proposed changes would also eliminate

the current exception in City Code

section 387.03 that requirements in

Chapter 387 do not apply when

explosives are being transported ‘‘under

the jurisdiction of and in conformity

with regulations adopted by the

Interstate Commerce Commission or the

United States Coast Guard.’’ 8

RSPA presumes that the City’s

purpose for requiring advance

notification is to either (1) allow it to

modify the route specified by the carrier

for a shipment that does not require an

escort, or (2) arrange an escort for a

shipment. Although the City stated that

it issued 16 explosives transportation

permits in 1997, these appear to be

annual permits allowing deliveries

throughout the year. No information

was provided as to how many

shipments of explosives are delivered

within the City.

Although the City’s application form

appears to require advance notification

only for ‘‘deliveries,’’ AWHMT

indicated that the City requires advance

notice of both pick-ups and deliveries of

explosives shipments. AWHMT stated

that the requirement to specify routes

within the City is a ‘‘prenotification’’

requirement for each shipment, because

carriers do not always know their routes

and cargoes in advance. According to

AWHMT,

shipment prenotification is a field totally

occupied by the federal government. To the

extent that the federal government has

allowed prenotification to non-federal

government entities, it has provided that the

notification be given to a state, not localities.

AWHMT noted that regulations of the

Nuclear Regulatory Commission (NRC)

require the shipper, not the carrier, to

notify the Governor or its designee

before shipments of nuclear waste and

spent fuel. See 10 CFR 71.97. AWHMT

also argued that the requirement in the

HMR for escorts to accompany

shipments of fissile material, 49 CFR

173.457(b)(2),9 ‘‘shows RSPA’s intent

not to require them for transport of other

hazardous materials.’’ It stated that nonFederal requirements for escorts

interfere with Federal uniformity ‘‘in an

unsafe and burdensome manner,’’ citing

Chlorine Institute v. California Hwy.

Patrol, 29 F.3d 495 (9th Cir. 1994). It

stated that the City has no basis to argue

that explosives carriers appreciate

escorts and do not consider the City’s

requirement to be a burden.

HMAC stated that having to list routes

and quantities of hazardous materials in

advance is impractical and delays

shipments. NPCA similarly argued that

providing advance notice of the route of

each delivery and pick-up is almost

impossible, and unsafe situations will

occur if the carrier has to wait until an

approval is received from the City.

The City responded that it only

requires advance notice for explosives,

and that a carrier is free to specify its

route so long as it attempts to use

interstate highways and direct routes. It

stated that its advance notice

requirement causes very little delay.

While it appears that the Fire Division

sometimes allows notification less than

24 hours in advance, according to the

City, the transporter typically sends a

fax

two days prior to a delivery to the Fire

Division, of the date, time and place of entry

to the City. The Fire Division and Police

Department meet the vehicle at the appointed

site, and Fire officials check the bill of

lading, and the condition of the vehicle, tires,

the load, and fire extinguishers. Within a half

an hour to forty-five minutes, the vehicle is

on its way to its destination, accompanied by

a police escort.

The City stated that, because DOT has

no regulation for an escort to

accompany vehicles carrying

explosives, its escort requirement is not

in conflict with the ‘‘dual compliance’’

test. It argued that the Commonwealth of

Massachusetts case on State bonding

requirements provided a better

framework for applying the ‘‘obstacle’’

test to its escort requirement than the

Chlorine Institute case. The City

asserted that neither the ‘‘text and

structure’’ of Federal hazardous material

transportation law, nor the HMR, show

‘‘an intent on the part of Congress to

preempt escort requirements or

advanced routing notification

requirements.’’ The City also presented

affidavits by a fireman and policeman

which it stated show that the escort and

prenotification requirements ‘‘pose

virtually no burden.’’ The City also

asserted that its escort requirement ‘‘is

actually appreciated by many motor

vehicle carriers, probably because it

assists a transporter in arriving at his

destination quickly and without the

hassles of traffic congestion.’’

Advance notification requirements

have an inherent potential to delay the

transportation of hazardous materials.

29874 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices

Coupled with the requirement to meet,

and perhaps wait for, an escort, delay is

almost inevitable for many shipments

within the broad definition of

‘‘explosives.’’ There is also the potential

for delay if the carrier must wait for the

Fire Marshal to approve its suggested

route or direct that another route be

taken. A local ‘‘provision for virtually

unfettered discretion whereby the

County may change dates, routes, and

times for radioactive materials

transport’’ was found to be preempted

in IR–18, Prince George’s County, MD;

Code Section Governing Transportation

of Radioactive Materials, 52 FR 200, 203

(Jan. 2, 1987), decision on appeal, 53 FR

28850, 28854 (July 29, 1988).

RSPA has noted that ‘‘[a]n individual

motor carrier seldom knows much in

advance of any shipment precisely what

is being shipped or what route it will

follow. Furthermore, carriers frequently

make pick-ups and deliveries enroute.’’

IR–6, Covington (Kentucky) Ordinance

Governing Transportation of Hazardous

Materials, 48 FR 760, 765 (Jan. 6, 1983).

Therefore, in many instances, a carrier

will not know 24 hours in advance that

it will need to pick up or deliver

explosives within the City. And even if

the City accepts notice from a carrier

less than 24 hours in advance, traffic

conditions and other stops may make it

impossible for the carrier to know

exactly when it will arrive at a point

designated by the City Fire Marshal to

meet an escort.

For these reasons, Federal regulations

require advance notification to the State

governor (or his designee), written route

plans, and escorts only for shipments of

irradiated reactor fuel and nuclear

waste. 10 CFR 71.97, 73.37. The ‘‘long

lead time in planning spent fuel

shipments,’’ coupled with the

infrequency of such shipments, allows

sufficient time for the shipper to notify

the designated State official and the

transporter to pay any required fees. IR–

17, Illinois Fee on Transportation of

Spent Nuclear Fuel, 51 FR 20926, 20929

(June 9, 1986), decision on appeal, 52

FR 36200 (Sept. 25, 1987). In addition,

inspections and escorts that are part of

the Federally required physical

protection program do not cause

unnecessary delays in transportation. 51

FR at 20930; 52 FR at 36203–04.

Therefore, when ‘‘Federal and local

[escort] requirements are identical, and

the same action satisfies both,’’ the local

requirement for escorts ‘‘amounts to an

adoption of the NRC physical protection

standards on which the HMR rely’’ and

there is no inconsistency. IR–14,

Jefferson County, New York: Local

Legislative Stipulation Regulating

Radioactive Materials Transportation,

49 FR 46632, 46656, 46658 (Nov. 27,

1984). However, State or local

requirements for additional or special

escorts are preempted. IR–18, 52 FR at

203 (‘‘the County provision is neither

identical to, nor does it facilitate

compliance with, the Federal

requirement’’); IR–21, 53 FR at 28854.

In the Chlorine Institute case, the

Court of Appeals for the Ninth Circuit

held that State escort requirements for

vehicles transporting chlorine and

oleum are preempted. That court found

that the HMR is not silent on the subject

of escorts. Rather, in ‘‘an area already

regulated under the HMR’’ where DOT

has issued specific regulations that it

believes are appropriate, other

jurisdictions may not add requirements

left out of the HMR. 29 F.3d at 497. In

that situation, State requirements that

exceed the HMR create ‘‘a separate

regulatory system * * * fostering

confusion and frustrating Congress’ goal

of developing a uniform, national

scheme of regulation.’’ Id. at 498,

quoting from Southern Pac. Transp. Co.

v. Public Serv. Comm’n of Nevada, 909

F.2d 352, 358 (9th Cir. 1990). Thus, a

local requirement on transportation is

preempted when the Secretary of

Transportation ‘‘has decided that no

such regulations should be imposed at

all.’’ Ray v. Atlantic Richfield Co., 435

U.S. at 171–72.

When linked to escort requirements

that go beyond the HMR, advance

notification requirements are also

preempted. Indeed, on their own,

advance notification requirements for

both radioactive and non-radioactive

materials shipments have generally been

found to be preempted as an obstacle to

accomplishing and carrying out the

HMR’s requirement that there not be

any unnecessary delays in

transportation. E.g., IR–6, 48 FR at 764–

65; IR–30, City of Oakland, California;

Nuclear Free Zone Act, 55 FR 9676,

9682 (Mar. 14, 1990) (‘‘local

requirements for advance notification of

hazardous materials have potential to

delay and redirect traffic and thus are

inconsistent’’); IR–32, 55 FR at 36746

(‘‘State and local provisions either

authorizing less prenotification or

requiring greater prenotification than

the HMR, therefore, constitute obstacles

to the accomplishment and execution of

the objectives of the HMTA and the

HMR’’).

In IR–16, 50 FR at 20878, RSPA stated

that a local requirement for advance

notification that applies ‘‘only to

shipments whose origin or destination

is Tucson’’ is not ‘‘an inconsistent

routing rule’’ because, as here, it would

not cause shipments to be routed

around the City. However, there remains

the potential for delays whenever the

carrier has not been advised of the

shipment, or does not have all the

information required, in advance of the

time specified for advance notification.

Moreover, in this case, the advance

notification requirement creates

unnecessary delays because it is linked

to (and part of) the requirement for

escorts.

As the City seems to recognize in its

proposed changes to Chapter 387, it is

more appropriate to require the shipper

or the recipient of a shipment of

explosives, rather than the transporter,

to provide notice of the time and place

that the shipment will originate or be

received within the City. The shipper

and recipient are the parties who

arrange for transportation and are

usually in a much better position than

the carrier to provide this information to

the City.

The City’s requirement that a

transporter provide 24-hour advance

notification of any shipment of

explosives, including its specification of

its intended route within the City, and

the requirement for a police escort for

any shipment of more than 250 pounds

of explosives cause unnecessary delays

in the transportation of hazardous

materials and are preempted by 49

U.S.C. 5125(a)(2) because these

requirements create an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

and the HMR.

D. Separation Distance Requirements

The City has different separation

distance requirements depending on

whether vehicles are transporting

explosives (in any amount) or other

hazardous materials (in an amount that

requires placarding). According to the

City, it has never enforced either of

these requirements but, if it did, ‘‘the

most sensible and safest interpretation

* * * is to view them as following

distance requirements, so that a driver

will not be liable for failure to maintain

a minimum distance from vehicles that

he cannot see.’’

City Code section 394.07(b) requires a

vehicle transporting hazardous

materials to ‘‘maintain a minimum

distance of at least 300 feet from other

vehicles carrying hazardous materials

* * * whether such [other] vehicles are

moving or parked.’’ This requirement

applies ‘‘regardless of direction of

travel’’ but not ‘‘when overtaking or

passing’’ or ‘‘where the conditions of

travel make it impractical’’ to maintain

this separation. Id. Under the proposed

changes to Chapter 394, the words

‘‘regardless of direction of travel’’ would

be eliminated and vehicles at a

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices 29875

10Roadway Express also alluded to a driver’s

difficulty in seeing placards on other vehicles

because placards are placed low on many vehicles

(near the mud flap and below floor level). AWHMT

also assumed that there are no standards on the

placement of placards or their visibility. However,

49 CFR 172.516 sets forth requirements for the

visibility and display of placards, including specific

provisions that each placard must be securely

attached or affixed to the transport vehicle, ‘‘clearly

visible from the direction it faces,’’ and ‘‘located

away from any marking (such as advertising) that

could substantially reduce its effectiveness,’’ where,

‘‘[s]o far as practicable * * * dirt or water is not

directed to it from the wheels of the transport

vehicle,’’ and ‘‘free of appurtenances and devices

such as ladders, pipes, doors, and tarpaulins.’’

destination or point of origin would not

be required to be separated by 300 feet.

However, the City would make local

vehicles subject to Chapter 394 when

they transport hazardous materials for

which labels and shipping papers are

required, so that certain unplacarded

vehicles would also be subject to the

300-foot separation distance

requirement.

Separately, City Code section

387.08(b) provides that ‘‘Where two or

more vehicles are transporting

explosives by permit issued hereunder,

an interval of at least 500 feet shall be

maintained between such vehicles.’’

The City’s proposed revisions to

Chapter 387 would eliminate this

separate 500-foot separation distance

requirement for explosives.

The City argued that these distance

separation requirements are traffic

control regulations that are consistent

with the provisions of 49 CFR 397.3

that:

Every motor vehicle containing hazardous

materials must be driven and parked in

compliance with the laws, ordinances, and

regulations of the jurisdiction in which it is

being operated, unless they are at variance

with specific regulations of the Department

of Transportation which are applicable to the

operation of that vehicle and which impose

a more stringent obligation or restraint.

The City also stated that its separation

distance requirements are consistent

with the prohibition in 49 CFR

397.7(a)(3) against parking a motor

vehicle containing Division 1.1, 1.2, or

1.3 explosives ‘‘[w]ithin 300 feet of a

bridge, tunnel, dwelling, or place where

people work, congregate, or assemble

except for brief periods when the

necessities of operation require the

vehicle to be parked and make it

impracticable to park the vehicle in any

other place.’’

The City referred to three

inconsistency rulings as upholding

separation distance requirements. It

noted that RSPA found both local speed

limits and separation requirements

consistent with the HMR in IR–32 and

stated that the same analysis should

apply. It urged RSPA to make the same

findings that separation distance

requirements ‘‘have very limited

enforceability’’ when there are

exceptions for vehicles ‘‘overtaking or

passing’’ and ‘‘where the conditions of

travel make it impractical to do so,’’ as

in IR–3, 46 FR at 18923, and that these

requirements would not create obvious

hazards or create delays when they

apply only to traffic traveling in the

same direction and in the same lane, as

in IR–20, 52 FR at 24399.

The City stated that, because it has

never enforced these requirements,

there is no evidence that they reduce

safety. It also argued that it would not

be burdensome to truck drivers to

remember the City’s traffic separation

requirements and to ‘‘recognize that a

placard exists on another vehicle from

a distance of 300 to 500 feet.’’ It stated

that other jurisdictions also have these

types of requirements, and it referred to

the provision in the Ohio Fire Code that

‘‘Vehicles transporting explosive

materials and traveling in the same

direction shall not be driven within 300

feet (91440 mm) of each other.’’ Ohio

Administrative Code 1301:7–7–30. The

City also stated that it had ‘‘the highest

motor vehicle accident rate of all

municipalities within Cuyahoga

County,’’ which justified its use of

separation distance requirements ‘‘to

lower the number of accidents in the

City.’’

AWHMT stated that the City’s

distance separation requirements will

result in less safety, rather than more,

because a driver’s attention will be

diverted if he must look for placards on

other vehicles. It stated that the purpose

of a placard is to communicate the

presence of hazardous materials in the

event of an incident, rather than for

traffic control. According to AWHMT,

training drivers to know about local

requirements, including variations in

other jurisdictions, would impose an

unreasonable burden on carriers, and

the accident rate data provided by the

City does not support separation

distance requirements.

Roadway Express stated that it is

unreasonable to expect drivers to scan

traffic for placards and to estimate their

distance.10 It said that, because the

City’s separation distance requirement

applies in all directions, it cannot be

met when vehicles meet.

Mallinckrodt and RSCC also objected

to the distance separation requirements.

RSCC interpreted this requirement to

apply when the other vehicle carrying

hazardous materials is not required to

be placarded, such as those materials for

which placarding is not required below

1,000 pounds, ORM–D and limited

quantity materials, and Class 9

materials. It stated that ‘‘a

radiopharmaceutical delivery truck

invariably will encounter [trucks

carrying medical waste] every day at

Cleveland’s hospitals.’’ RSCC stated that

the 300-foot separation distance

requirement would cause unnecessary

and unplanned stops, circuitous

driving, and unnecessary delays. It

assumed that the City would enforce

this requirement after an accident and

stated that the City should rewrite a bad

requirement rather than distort it by

unsupported interpretations.

The breadth of the wording of the

City’s separation distance requirements

and the lack of enforcement present

problems in this case. Although the City

stated how it would enforce these

requirements, we have no evidence of

how it actually enforces them, because

it has not. Moreover, vehicles

transporting explosives that are not

required to be placarded appear to be

subject to the separation distance

requirement in City Code section

387.08(b), and they must maintain an

interval of at least 500 feet from other

vehicles transporting explosives,

whether the ‘‘other’’ vehicles are

required to be placarded or not.

Similarly, the proposed changes to

Chapter 394 would appear to include

certain unplacarded vehicles carrying

hazardous materials within the category

of those vehicles that must stay 300 feet

apart.

In this respect, the City’s separation

distance requirements differ from the

requirements in the three prior

inconsistency rulings. IR–3 involved a

requirement to maintain 300 feet

between vehicles carrying hazardous

materials required to be placarded,

‘‘when traffic conditions allow.’’ 46 FR

at 18923. RSPA acknowledged possible

difficulty recognizing placards at a

distance of 300 feet, especially at night,

but Boston’s requirement did not

require separation from unplacarded

vehicles carrying hazardous materials.

IR–20 and IR–32 involved requirements

that vehicles transporting certain types

of hazardous materials must stay a

specified distance behind other vehicles

traveling in the same direction (whether

or not carrying hazardous materials).

Because the appeal from IR–32 was

dismissed as moot, following the 1990

amendments to the HMTA, 57 FR at

41167–68, RSPA did not specifically

consider the argument raised on appeal

that a distance separation requirement

fails to promote traffic safety when it

applies at all times of the day and in all

weather and traffic conditions. In its

appeal of IR–32, the Chemical Waste

Transportation Institute stated that

29876 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Notices

‘‘what constitutes a safe stopping

distance depends on factors such as

speed, weight of the load carried by the

vehicle, traffic, road and weather

conditions, * * *’’ This is consistent

with the guidelines for maintaining an

adequate distance from other traffic,

based on speed and the relative size and

weight of the vehicles, in the Ohio

Commercial Driver Handbook, p. 2–27

(Version 2.0).

A driver is trained to vary his distance

from other vehicles based on speed and

traffic conditions. Any driver will have

difficulty maintaining a specified

distance from other vehicles, or other

vehicles carrying hazardous materials,

especially in the absence of a uniform

requirement. Without specific notice, as

speed limit signs might provide, a driver

may have difficulty recalling the

requirement that applies to the specific

situation, from among the variations

that exist for explosives (500 feet from

other explosives in the City but 300 feet

under the Ohio Fire Code in other parts

of Ohio), or other hazardous materials

(300 feet), or when he might be in

Montevallo, Alabama (150 feet). See IR–

32, 55 FR at 36744. It is impractical to

try to train drivers to cover many

different situations, even if the City’s

separation distance requirements apply

only when the ‘‘other’’ vehicle is

placarded (although, by their terms,

these requirements appear to apply in

certain situations when the other

vehicle carrying hazardous materials is

not required to have placards).

If the City never actively enforces its

separation distance requirements,

drivers lack the ‘‘reasonable notice’’ that

the City must provide of any local traffic

control. Id., 55 FR at 36745. Even with

some information that these

requirements exist, a total lack of

enforcement fosters uncertainty as to

their scope and subjects drivers to

possible arbitrary enforcement actions,

as stated by RSCC. Actual enforcement,

even of a separation distance

requirement that had ‘‘limited

enforceability’’ as in IR–3, would

provide drivers with some more specific

understanding of how to comply with

the requirement. A requirement that is

never actively enforced can be, by its

very nature, an obstacle to

accomplishing and carrying out the

Federal hazardous materials

transportation law and the HMR. This

sort of requirement frustrates the

framework of the HMR that is designed

to achieve the safe transportation of

hazardous materials through specific

rules for how hazardous materials are to

be transported and specific prohibitions

against certain practices.

Because the City’s separation distance

requirements in City Code 394.07(b) and

387.08(b) are not enforced and are

incapable of being followed by drivers

who lack full understanding of their

intended scope and application, these

requirements create an obstacle to

accomplishing and carrying out the

Federal hazardous material

transportation law and the HMR. For

these reasons, these requirements are

preempted by 49 U.S.C. 5125(a)(2).

IV. Ruling

Federal hazardous material

transportation law preempts:

1. Cleveland City Code section

394.06(b) prohibiting the transportation

of hazardous materials in the Downtown

Area between 7 a.m. and 6 p.m., except

Saturday and Sunday, preempted with

respect to radiopharmaceuticals only.

There is insufficient information to find

that this prohibition is preempted with

respect to other hazardous materials.

2. Cleveland’s uncodified

requirements for a transporter of

explosives to notify the Fire Prevention

Bureau 24 hours in advance of any pickup or delivery, to specify the route to be

taken within the City, and to have a

police escort if more than 250 pounds

are transported.

3. Cleveland City Code sections

387.08(b) and 394.07(b) specifying

separation distance requirements for

vehicles transporting explosives or other

hazardous materials.

V. Petition for Reconsideration/Judicial

Review

In accordance with 49 CFR 107.211(a)

and 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 review of this

decision ‘‘in an appropriate district

court of the United States * * * not

later than 60 days after the decision

becomes final.’’ 49 U.S.C. 5125(f).

This decision will become the final

decision of RSPA and 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

decision is filed within 20 days of

publication in the Federal Register, the

action by RSPA and FMCSA on the

petition for reconsideration will be the

final agency decision. 49 CFR

107.211(d), 397.223(d).

Issued in Washington, D.C. on May 29,

2001.

Robert A. McGuire,

Associate Administrator for Hazardous

Materials Safety, Research and Special

Administration.

Julie Anna Cirillo,

Acting Deputy Administrator, Federal Motor

Carrier Safety Administration.

[FR Doc. 01–13799 Filed 5–31–01; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

Innovative Grants To Support

Increased Seat Belt Use Rates

AGENCY: National Highway Traffic

Safety Administration (NHTSA), DOT.

ACTION: Re-issuance of announcement of

grants to support innovative and

effective projects designed to increase

seat belt use rates.

SUMMARY: On April 30, 2001, the

National Highway Traffic Safety

Administration (NHTSA) published an

announcement of grants to support

innovative and effective projects

designed to increase seat belt use rates.

After the announcement was published,

the agency decided that it contained a

number of requirements that might be

burdensome to the grant applicants.

Accordingly, the announcement

published on April 30, 2001 is

cancelled. That announcement has been

revised and is being re-issued in its

entirety in this notice.

In this notice, NHTSA announces the

third year of a grant program under

Section 1403 of the Transportation

Equity Act for the 21st Century (TEA–

21) to provide funding to States for

innovative projects to increase seat belt

use rates. Consistent with last year, the

goal of this program is to increase seat

belt use rates across the nation in order

to reduce the deaths, injuries, and

societal costs that result from motor

vehicle crashes. However, unlike the

first two years, when funds were

determined and administered in a

process similar to that of a contract, for

this third year, selection for these

Innovative Grants will be determined

based on established criteria, and the

distribution of funds will be

administered in a fashion similar to

other highway safety grants, including

use of the Grant Tracking System (GTS).

This notice solicits applications from

the States, the District of Columbia and

Puerto Rico, through their Governors’

Representatives for Highway Safety, for

funds to be made available in fiscal year