Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Notices 51335 

Attendance is open to the interested 

public but limited to space available. 

With the approval of the Chairperson, 

members of the public may present oral 

statements at the meeting. Persons 

desiring to attend and persons desiring 

to present oral statement should notify 

the person listed above not later than 

October 24, 2008. The next quarterly 

meeting of the FAA ATPAC is planned 

to be held from January 13–14, 2009, in 

Miami, FL. 

Any member of the public may 

present a written statement to the 

Committee at any time at the address 

given above. 

Issued in Washington, DC, on August 26, 

2008. 

Richard Jehlen, 

Executive Director, Air Traffic Procedures, 

Advisory Committee. 

[FR Doc. E8–20310 Filed 8–29–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2008–0204] 

Application by the Massachusetts 

Department of Highways for a 

Preemption Determination on the City 

of Boston’s Hazardous Materials 

Routing Designation 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), (DOT). 

ACTION: Notice of application for 

preemption determination, 

consolidation with the American 

Trucking Associations, Inc. (ATA) 

application for preemption 

determination, and extension of time to 

submit comments. 

SUMMARY: FMCSA provides notice and 

invites interested parties to submit 

comments on an application by the 

Massachusetts Department of Highways 

(MassHighway) for an administrative 

determination on whether Federal law 

preempts highway routing designations 

issued by the City of Boston (Boston) 

regarding the transportation of 

hazardous materials. MassHighway 

seeks a preemption determination to 

resolve whether Boston’s regulatory 

scheme on hazardous materials 

transportation in Boston remains 

consistent with Federal law in light of 

the history of the Boston regulation, 

changes that have occurred since the 

regulation’s inception in 1980, and 

policy changes in issuing permits under 

the regulation. The MassHighway 

application, filed on July 25, 2008, 

encompasses the issues raised by ATA 

in its application for preemption 

determination filed on May 30, 2008. 

Accordingly, the MassHighway 

application will be consolidated with 

the ATA application in Docket No. 

FMCSA–1008–0204 and the time period 

for submitting comments is extended by 

this notice. 

DATES: Comments received by October 

17, 2008 and rebuttal comments 

received by December 1, 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. 

Fax: 1–202–493–2251. 

Mail to: Docket Management Facility, 

U.S. Department of Transportation, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

Courier or Hand Delivery: Ground 

Floor, Room W12–140, DOT Building, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m. e.t., Monday through Friday, 

except Federal holidays. 

Instructions: All submissions must 

include the Agency name and docket 

number. For detailed instructions on 

submitting comments and additional 

information, see the Public Participation 

and Supplementary Information 

headings below. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Please see the Privacy Act heading 

below. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

the ground floor, Room W12–140, DOT 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m. e.t., Monday through Friday, 

except Federal holidays. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19476) or you may visit http:// 

www.regulations.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 be sent to Monica 

E. Conyngham, Chief Counsel, 

MassHighway, 10 Park Plaza, Boston, 

MA 02116–3969 and 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 MassHighway and 

ATA. (The following format is 

suggested: ‘‘I certify copies of this 

comment were sent to Ms. Conyngham, 

MassHighway, and Mr. Moskowitz, 

ATA, 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 


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51336 Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Notices 

routing requirements for nonradioactive 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). 

MassHighway submits that the Boston 

regulation on routing of hazardous 

materials has been in place since 1980. 

Subsequent construction on the Central 

Artery and Third Harbor Tunnel Project 

(often referred to as the ‘‘Big Dig’’) 

impacted the routes used by 

transporters of hazardous materials in 

Boston. After September 11, 2001, 

Boston changed its policy on issuing 

permits necessary for transportation of 

hazardous materials through Boston. 

Boston officials take the position that 

Boston’s regulation is grandfathered 

under 49 U.S.C. 5125(c)(2)(A) and (B) 

and that minor routing changes have not 

impacted the fact that the regulation is 

not subject to preemption under 49 CFR 

397.69. Boston also argues that its 

increased enforcement and policy on 

issuing permits falls squarely within its 

permitting authority. MassHighway 

acknowledges that the regulated 

community argues that the policy 

changes are a de facto change in routing 

restrictions and hazmat carriers denied 

permits must now pass through 

multiple communities surrounding 

Boston, increasing and transferring risk 

to other communities and depriving the 

public of involvement in the routing 

process. MassHighway requests that 

FMCSA review the facts, analysis, and 

exhibits presented in its application, 

including the above-described 

circumstances, prior DOT Inconsistency 

and Consistency Determinations, and a 

1981 Federal District Court decision, to 

determine whether the Boston 

regulation and current enforcement 

scheme remain grandfathered under 

Federal law. American Trucking 

Associations, Inc. et al. v. city of Boston 

et al. (D. Mass. filed April 6, 1981) 

(Copy of unpublished opinion provided 

in MassHighway application.) 

On May 30, 2008, ATA filed an 

Application for Preemption 

Determination on the City of Boston’s 

routing and transportation restrictions 

applicable to certain hazardous 

materials. Notice of this application and 

request for comments was published in 

the Federal Register on August 8, 2008. 

See 73 FR 46349 (August 8, 2008). The 

ATA application and Federal Register 

notice may be found at http:// 

www.regulations.gov under nonrulemaking docket no. FMCSA–2008–

0204. ATA alleges that Boston, in the 

course of the construction of the Central 

Artery Tunnel, changed designated 

hazardous materials routes through 

Boston and, in doing so, failed to 

comply with the requirements of 

§ 397.71. ATA requested that the 

FMCSA Administrator make a 

determination on whether the highway 

routing designations established by 

Boston are preempted pursuant to 

§ 397.69(b). 

FMCSA received the MassHighway 

application on or about July 25, 2008. 

MassHighway addresses the same 

central issue as that raised in the ATA 

application, e.g., whether the Boston 

hazardous materials routing 

designations are subject to the 

preemption provisions of § 397.69. In 

order to avoid duplication and address 

the issues raised in these applications in 

a thorough and complete manner, 

FMCSA is consolidating the 

MassHighway application for a 

preemption determination with that of 

the ATA. Copies of the MassHighway 

application for preemption and the ATA 

application for preemption 

determination are available for review 

in the consolidated docket for this 

notice. You may view or obtain a copy 

of the applications 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 (1) 

whether Boston’s highway routing 

designations were established or 

modified prior to November 14, 1994, 

exempting them from the preemption 

provisions of 49 CFR 397.69 and/or (2) 

whether Boston’s highway routing 

designations are subject to the 

preemption provisions of 397.69. 

Comments should specifically address 

the preemption standard established 

under 49 CFR 397.69 and 49 U.S.C. 

5125(c). 

Issued on: August 26, 2008. 

David Hugel, 

Deputy Administrator. 

[FR Doc. E8–20222 Filed 8–29–08; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–99–6156, FMCSA–00–

7006, FMCSA–00–7165, FMCSA–02–12294] 

Qualification of Drivers; Exemption 

Applications; Vision 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of renewal of 

exemptions; request for comments. 

SUMMARY: FMCSA announces its 

decision to renew the exemptions from 

the vision requirement in the Federal 

Motor Carrier Safety Regulations for 34 

individuals. FMCSA has statutory 

authority to exempt individuals from 

the vision requirement if the 

exemptions granted will not 

compromise safety. The Agency has 

concluded that granting these 

exemption renewals will provide a level 

of safety that is equivalent to, or greater 

than, the level of safety maintained 

without the exemptions for these 

commercial motor vehicle (CMV) 

drivers. 

DATES: This decision is effective 

September 21, 2008. Comments must be 

received on or before October 2, 2008. 

ADDRESSES: You may submit comments 

bearing the Federal Docket Management 

System (FDMS) Docket ID FMCSA–99–

6156, FMCSA–00–7006, FMCSA–00–

7165, FMCSA–02–12294, using any of 

the following methods. 

• 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 or Courier: 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 number 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 


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