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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-2008-0204] 

# 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 self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line.                     

*Privacy Act:*                         Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (65 FR 19476; Apr. 11, 2000). This information is also available at                         *http://Docketinfo.dot.gov.*

*Public Participation:*                         The                         *http://www.regulations.gov*                         Web site is generally available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “help” section of the                         *http://www.regulations.gov*                         Web site and also at the DOT's                         *http://docketsinfo.dot.gov*                         Web site. If you want confirmation of receipt of your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online.                     

# FOR FURTHER INFORMATION CONTACT:

                        James O. Simmons, Chief, Hazardous Materials Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, or at                         *james.simmons@dot.gov*                         (e-mail).                     

# SUPPLEMENTARY INFORMATION:

                    A copy of each comment must also be sent to Richard Moskowitz, Vice President and Regulatory Affairs Counsel, American Trucking Associations, 950 North Glebe Road, Arlington, VA 22203. You are required to include with your comments a certification that you provided a copy of your comments to Mr. Moskowitz. (The following format is suggested: “I certify copies of this comment were sent to Mr. Moskowitz at the address specified in the                     **Federal Register**                    .”)                 

## Background 

Title 49 U.S.C. 5125 includes several preemption provisions. Section 5125(c)(1) allows a State or Indian tribe to establish, maintain, or enforce a highway routing designation over which hazardous material may or may not be transported by motor vehicles, or a limitation or requirement related to highway routing, only if the designation, limitation, or requirement complies with 49 U.S.C. 5112(b). 

Section 5112(b) requires the Secretary of Transportation (the Secretary), in consultation with the States, to prescribe by regulation standards for the States and Indian tribes to follow when designating specific highway routes for transportation of hazardous materials. The Secretary has delegated to the Administrator of the FMCSA authority and responsibility for highway routing of hazardous materials. See 49 CFR 1.73(d)(2). 

                    The standards required by 49 U.S.C. 5112(b) for establishing highway routing requirements for non-radioactive hazardous materials are set forth in 49 CFR part 397, subpart C, and apply to any designations established or modified on or after November 14, 1994.                     *See*49 CFR 397.69(a). A State or Indian tribe must follow FMCSA standards when establishing highway routing requirements for hazardous materials.                     *See*49 CFR 397.71 (Federal standards for routing of nonradioactive hazardous materials (NRHM)). Except as provided in §§ 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                           ( print page 46350)                        the procedures set forth in 49 CFR part 397, subpart E—Preemption Procedures. ATA requests that the FMCSA Administrator make a determination on whether the highway routing designations established by Boston are preempted pursuant to § 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] 

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