Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 46349 

Issued in Washington, DC, on July 31, 2008 

Joe Hebert 

Manager, Financial Analysis and Passenger 

Facility Charge Branch 

[FR Doc. E8–18134 Filed 8–7–08; 8:45 am] 

BILLING CODE 4910–13–M 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2008–0204] 

Application by American Trucking 

Associations, Inc. for a Preemption 

Determination on the City of Boston’s 

Routing and Transportation 

Restrictions Applicable to Certain 

Hazardous Materials 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of application for 

preemption determination; request for 

comments. 

SUMMARY: FMCSA provides notice and 

invites interested parties to submit 

comments on an application by the 

American Trucking Associations, Inc. 

(ATA) for an administrative 

determination on whether Federal law 

preempts highway routing designations 

issued by the City of Boston (Boston) 

restricting transportation of certain 

hazardous materials. ATA submits that 

Boston failed to comply with the 

Federal routing requirements set in 49 

CFR 397.71 and that such routing 

designations are therefore preempted 

under 49 U.S.C. 5125 and 49 CFR 

397.69. 

DATES: Comments received on or before 

September 22, 2008 and rebuttal 

comments received on or before 

November 6, 2008 will be considered 

before an administrative ruling is 

issued. Rebuttal comments may discuss 

only those issues raised by comments 

received during the initial comment 

period and may not discuss new issues. 

ADDRESSES: You may submit comments 

identified by Federal Docket 

Management System Number FMCSA–

2008–0204 by any of the following 

methods: 

• Web Site: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on the Federal electronic docket site. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Fax: 1–202–493–2251. 

Each submission must include the 

Agency name and the docket ID for this 

Notice. Note that DOT posts all 

comments received without change to 

http://www.regulations.gov, including 

any personal information included in a 

comment. Please see the Privacy Act 

heading below. 

Docket: For access to the docket to 

read background documents or 

comments, go to http:// 

www.regulations.gov at any time or 

Room W12–140 on the ground level of 

the West Building, 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The 

FDMS is available 24 hours each day, 

365 days each year. If you want 

acknowledgment that we received your 

comments, please include a selfaddressed, stamped envelope or 

postcard or print the acknowledgement 

page that appears after submitting 

comments on-line. 

Privacy Act: Anyone may search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or of the person signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review the DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19476; Apr. 11, 2000). This 

information is also available at http:// 

Docketinfo.dot.gov. 

Public Participation: The http:// 

www.regulations.gov Web site is 

generally available 24 hours each day, 

365 days each year. You can get 

electronic submission and retrieval help 

and guidelines under the ‘‘help’’ section 

of the http://www.regulations.gov Web 

site and also at the DOT’s http:// 

docketsinfo.dot.gov Web site. If you 

want confirmation of receipt of your 

comments, please include a selfaddressed, stamped envelope or 

postcard or print the acknowledgement 

page that appears after submitting 

comments online. 

FOR FURTHER INFORMATION CONTACT: 

James O. Simmons, Chief, Hazardous 

Materials Division, Federal Motor 

Carrier Safety Administration, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, or at james.simmons@dot.gov 

(e-mail). 

SUPPLEMENTARY INFORMATION: A copy of 

each comment must also be sent to 

Richard Moskowitz, Vice President and 

Regulatory Affairs Counsel, American 

Trucking Associations, 950 North Glebe 

Road, Arlington, VA 22203. You are 

required to include with your comments 

a certification that you provided a copy 

of your comments to Mr. Moskowitz. 

(The following format is suggested: ‘‘I 

certify copies of this comment were sent 

to Mr. Moskowitz at the address 

specified in the Federal Register.’’) 

Background 

Title 49 U.S.C. 5125 includes several 

preemption provisions. Section 

5125(c)(1) allows a State or Indian tribe 

to establish, maintain, or enforce a 

highway routing designation over which 

hazardous material may or may not be 

transported by motor vehicles, or a 

limitation or requirement related to 

highway routing, only if the 

designation, limitation, or requirement 

complies with 49 U.S.C. 5112(b). 

Section 5112(b) requires the Secretary 

of Transportation (the Secretary), in 

consultation with the States, to 

prescribe by regulation standards for the 

States and Indian tribes to follow when 

designating specific highway routes for 

transportation of hazardous materials. 

The Secretary has delegated to the 

Administrator of the FMCSA authority 

and responsibility for highway routing 

of hazardous materials. See 49 CFR 

1.73(d)(2). 

The standards required by 49 U.S.C. 

5112(b) for establishing highway routing 

requirements for non-radioactive 

hazardous materials are set forth in 49 

CFR part 397, subpart C, and apply to 

any designations established or 

modified on or after November 14, 1994. 

See 49 CFR 397.69(a). A State or Indian 

tribe must follow FMCSA standards 

when establishing highway routing 

requirements for hazardous materials. 

See 49 CFR 397.71 (Federal standards 

for routing of nonradioactive hazardous 

materials (NRHM)). Except as provided 

in §§ 397.75 (dispute resolution) and 

397.219 (waiver), a NHRM route 

designation made in violation of 

§ 397.69(a) is preempted pursuant to 

section 105(b)(4) of the Hazardous 

Materials Transportation Act, as 

amended, 49 U.S.C. 5125(c), 49 CFR 

397.69(b). 

ATA alleges that Boston, in the course 

of the construction of the Central Artery 

Tunnel (often referred to as the ‘‘Big 

Dig’’), changed designated hazardous 

materials routes through Boston and, in 

doing so, failed to comply with the 

requirements of § 397.71. ATA has 

submitted an application for a 

preemption determination pursuant to 


pwalker on PROD1PC71 with NOTICES
46350 Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 

the procedures set forth in 49 CFR part 

397, subpart E—Preemption Procedures. 

ATA requests that the FMCSA 

Administrator make a determination on 

whether the highway routing 

designations established by Boston are 

preempted pursuant to § 397.69(b). A 

copy of the ATA application for 

preemption determination is available 

for review in the docket for this notice. 

You may view or obtain a copy of the 

application online by visiting http:// 

www.regulations.gov and going to the 

docket number for this matter (FMCSA–

2008–0204). 

Public Comments 

FMCSA seeks comments on whether 

49 CFR 397.69(b) preempts Boston’s 

highway routing designations that are 

being challenged by ATA. Comments 

should specifically address the 

preemption standard established under 

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

Issued on: August 1, 2008. 

John H. Hill, 

Administrator. 

[FR Doc. E8–18344 Filed 8–7–08; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

[Docket No. FTA–2008–0024] 

Notice of Buy America Waiver for the 

National Fuel Cell Bus Technology 

Development Program 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice of Buy America waiver. 

SUMMARY: On May 22, 2008, the Federal 

Transit Administration (FTA) published 

a Notice of Proposed Buy America 

Waiver for the National Fuel Cell Bus 

Technology Development Program (Fuel 

Cell Bus Program). After careful review 

of comments, FTA has decided to waive 

its Buy America requirements for 

projects funded under the Fuel Cell Bus 

Program. This Notice sets forth FTA’s 

justification and response to comments. 

FOR FURTHER INFORMATION CONTACT: For 

program questions please contact 

Christina Gikakis at (202) 366–2637 or 

christina.gikakis@dot.gov. For legal 

questions please contact Jayme L. 

Blakesley at (202) 366–0304 or 

jayme.blakesley@dot.gov. 

SUPPLEMENTARY INFORMATION: This 

Notice sets forth the Federal Transit 

Administration’s (FTA) justification for 

waiving its Buy America requirements 

for projects funded under the National 

Fuel Cell Bus Technology Development 

Program (Fuel Cell Bus Program). 

The National Fuel Cell Bus Technology 

Development Program 

Section 3046 of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU), 

Public Law 109–59, instructed FTA ‘‘to 

establish a national fuel cell bus 

technology program [Fuel Cell Bus 

Program] to facilitate the development 

of commercially viable fuel cell bus 

technology and related infrastructure.’’

By notice dated April 14, 2006, FTA 

solicited applications to the Fuel Cell 

Bus Program and restated the statutory 

criteria for evaluating applications. 

These criteria included the ability of the 

project ‘‘to contribute significantly to 

furthering fuel cell technology as it 

relates to transit bus operations, 

including hydrogen production, energy 

storage, fuel cell technologies, vehicle 

systems integration, and power 

electronics technology,’’ and to advance 

‘‘different fuel cell technologies, 

including hydrogen-fueled and 

methanol-powered liquid-fueled fuel 

cell technologies, that may be viable for 

public transportation systems.’’ 71 FR 

19612 (April 14, 2006). 

FTA selected three consortia to 

participate in the Fuel Cell Bus 

Program: the Center for Transportation 

and the Environment in Atlanta, the 

Northeast Advanced Vehicle 

Consortium in Boston, and Westart/ 

CALSTART in Pasadena. These 

consortia will manage fourteen projects. 

Of these, eight are development and 

demonstration projects, two are 

component technology development, 

and four support analysis, outreach and 

coordination. 

The Fuel Cell Bus Program seeks to 

develop commercially viable fuel cell 

buses by demonstrating that buses 

powered by fuel cell technology can 

achieve several technical targets, 

including a four to six year (20,000 to 

30,000 hour) fuel cell durability, a cost 

of less than five times that of an 

equivalent diesel, greater than 90% 

reliability, twice the fuel efficiency of a 

comparable bus, emissions below the 

2010 Environmental Protection Agency 

standards and vehicle performance 

comparable to a diesel bus. 

Public Interest Waiver 

The purpose of this notice is to 

articulate FTA’s justification for waiving 

its Buy America requirements for all 

projects funded under the Fuel Cell Bus 

Program. 

With certain exceptions, FTA’s ‘‘Buy 

America’’ requirements prevent FTA 

from obligating an amount that may be 

appropriated to carry out its program for 

a project unless ‘‘the steel, iron, and 

manufactured goods used in the project 

are produced in the United States.’’ 49 

U.S.C. 5323(j)(1). One such exception is 

if applying the Buy America 

requirements ‘‘would be inconsistent 

with the public interest.’’ 49 U.S.C. 

5323(j)(2)(A). After considering all 

appropriate factors on a case-by-case 

basis, 49 CFR 661.7(b), if FTA 

determines that the conditions exist to 

grant a public interest waiver, FTA will 

issue a detailed written statement 

justifying why the waiver is in the 

public interest, and will publish this 

justification in the Federal Register, 

providing the public with a reasonable 

time for notice and comment of not 

more than seven calendar days. 49 CFR 

661.7(b). 

Justification 

Because the U.S. market for fuel cell 

bus technology and related 

infrastructure is not fully developed, 

participants in the Fuel Cell Bus 

Program asked FTA to waive its Buy 

America requirements for projects 

funded under the Fuel Cell Bus 

Program. According to one participant, 

‘‘[a] successful Fuel Cell transit bus 

must meet and be consistent with the 

public transit market’s ability to 

incorporate and afford such technology 

on a mass scale. * * * At this stage of 

technology development more 

engineering data is necessary to 

accurately specify a fuel cell for a 

competitive bid. [Requiring participants 

to comply with FTA’s Buy America 

requirements] would significantly delay 

the development effort, would be 

extremely expensive, and would result 

in a huge set back to the overall 

development of Fuel Cell technology. 

[Allowing participants to use all 

available technology, regardless of 

origin,] is the fastest, soundest method 

to perfect the technology, assure future 

competition, and hasten the advent of 

fuel cell buses in transit.’’

In order to develop commercially 

viable fuel cell buses, FTA’s Fuel Cell 

Bus Program must examine all current 

technologies. But at this time, because 

fuel cell technologies for transit are still 

in the developmental and technical 

validation phase, it is impossible to 

determine which configurations are 

most likely to reach commercialization. 

As development continues, the industry 

will require objective demonstrations 

and evaluations of different bus 

propulsion systems. Permitting 

participants to use foreign and domestic 

suppliers will allow FTA to evaluate 

which technologies are closest to 

successful deployment. If certain 


pwalker on PROD1PC71 with NOTICES