[Federal Register Volume 66, Number 106 (Friday, June 1, 2001)]
[Notices]
[Pages 29867-29876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13799]


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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.

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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 pick-up 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

[[Page 29868]]

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\
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    \1\ AWHMT'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.
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    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 
Sec. 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\
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    \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 
non-radioactive 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).

    In addition, 49 U.S.C. 5125(g)(1) provides that a State, political 
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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

[[Page 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 Sec. 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

[[Page 29870]]

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 
Sec. 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, Sec. 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 Sec. 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

[[Page 29871]]

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.
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    \3\ City 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 Restricted Routes, 65 FR 75771, 75803 (Dec. 4, 2000).
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    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 * * *.''
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    \4\ The 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.''
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    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 
Sec. 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.
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    \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>.
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    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

[[Page 29872]]

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\
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    \6\ Although 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.
---------------------------------------------------------------------------

    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 pick-up 
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 pick-up in the City), it might not be 
practicable for the shipper and carrier to

[[Page 29873]]

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.
---------------------------------------------------------------------------

    \7\ City 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \8\ AWHMT 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.''
---------------------------------------------------------------------------

    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 non-Federal 
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.
---------------------------------------------------------------------------

    \9\ See also the NRC's escort requirements in 10 CFR 73.26 and 
73.37 for highway shipments of certain radioactive materials.
---------------------------------------------------------------------------

    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.

[[Page 29874]]

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

[[Page 29875]]

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.
---------------------------------------------------------------------------

    \10\ Roadway 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.''
---------------------------------------------------------------------------

    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

[[Page 29876]]

``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 pick-up 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