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Federal Register / Vol. 71, No.

68 / Monday, April 10, 2006 / Notices 18137

enhance the quality, usefulness, and (‘‘Application’’) of the American 173.2, in a quantity greater than 10,000
clarity of the collected information; and Trucking Associations, Inc. (‘‘ATA’’) for liters;
(4) ways that the burden could be an administrative determination that (c) Poisonous gasses of Class 2,
minimized without reducing the quality Federal hazardous material Division 2.3, as designated in 49 CFR
of the collected information. The agency transportation law, 49 U.S.C. 5101 et 173.2, in a quantity greater than 500
will summarize and/or include your seq., and FMCSA regulations at 49 CFR liters, and belonging to Hazard Zones A
comments in the request for OMB’s part 397 preempt highway routing or B, as defined in 49 CFR 173.116; and
clearance of this information collection. requirements under the Terrorism (d) Poisonous materials, other than
Prevention in Hazardous Materials gasses, of Class 6, Division 6.1, in a
Issued on: April 4, 2006.
Transportation Emergency Act of 2005 quantity greater than 1,000 kilograms,
Warren E. Hoemann, and belonging to Hazard Zones A or B,
[D.C. Act 16–43, Feb. 15, 2005]
Deputy Administrator. as defined in 49 CFR 173.133.
(‘‘Emergency DC Act’’). Since the time
[FR Doc. E6–5209 Filed 4–7–06; 8:45 am] that ATA filed its Application, the Section 3 of the DC Act defines an
BILLING CODE 4910–EX–P Emergency DC Act has expired. ‘‘emergency’’ as an unanticipated,
However, the Council of the District of temporary situation that threatens the
Columbia (‘‘D.C. Council’’) has since immediate safety of individuals or
DEPARTMENT OF TRANSPORTATION property, as determined by the District
introduced and enacted a series of acts
with substantively identical language. of Columbia Department of
Federal Motor Carrier Safety Transportation.
Administration The Terrorism Prevention in Hazardous
(2) Section 5 of the DC Act, titled
Materials Transportation Congressional
[Docket No. FMCSA–2005–20930 (PDA– ‘‘Permits.’’ Section 5 of the DC Act
Review Emergency Act of 2006 [D.C.
31(F))] enables the District of Columbia
Act 16–325, Mar. 23, 2006] will expire
Department of Transportation to issue a
June 21, 2006. The Terrorism Prevention
District of Columbia Requirements for permit authorizing transportation of the
in Hazardous Materials Transportation
Highway Routing of Certain Hazardous materials listed in Section 4 if there is
Act of 2005 [D.C. Act 16–266, Jan. 26,
Materials no ‘‘practical alternative route’’—
2006] was transmitted to the United
defined in Section 3 of the DC Act as a
AGENCY: Federal Motor Carrier Safety States Congress on February 6, 2006, for route which lies entirely outside the
Administration (FMCSA), United States review.1 Because the relevant portions Capitol Exclusion Zone and whose use
Department of Transportation (DOT). of the successive acts are substantively would not make shipment of the
ACTION: Notice of administrative identical, these acts will hereinafter hazardous materials cost-prohibitive.
determination of preemption. collectively be referred to as the ‘‘DC The DC Act provides that the permit
Act.’’ may require the adoption of safety
Applicant: American Trucking The DC Act applies to the measures, including time-of-day
Associations, Inc. transportation of certain hazardous restrictions. Section 5 authorizes the
Local Laws Affected: Terrorism materials within 2.2 miles of the United District of Columbia Department of
Prevention in Hazardous Materials States Capitol Building. The DC Act Transportation to collect fees for the
Transportation Act of 2005; Terrorism refers to this zone as the ‘‘Capitol permits, but any permit fees are not to
Prevention in Hazardous Materials Exclusion Zone.’’ exceed the cost of implementing and
Transportation Congressional Review In the Application, ATA challenges enforcing the DC Act.
Emergency Act of 2006. the following two sections of the DC In its Application, ATA states the DC
Applicable Federal Requirements: Act: Act was enacted without regard to the
Federal hazardous material (1) Section 4 of the DC Act, titled procedures set forth in the Federal
transportation law, 49 U.S.C. 5101 et ‘‘Prohibition on shipments of hazardous hazardous materials routing regulations
seq., and FMCSA regulations at 49 CFR materials.’’ Section 4 makes it illegal, found in 49 CFR part 397, subpart C.
part 397. except in cases of emergency, to Specifically, ATA asserts the District of
SUMMARY: Federal hazardous material transport in the Capitol Exclusion Zone Columbia failed to provide the requisite
transportation law preempts the without a permit any of the materials in notice and comment period as required
highway routing requirements in the the list below. Section 4 also makes it by 49 CFR 397.71(b)(2) and failed to
Terrorism Prevention in Hazardous illegal in the Capitol Exclusion Zone, hold a public hearing. ATA further
Materials Transportation Act of 2005 without a permit, to operate a vehicle states the District of Columbia failed to
[D.C. Act 16–266, Jan. 26, 2006] and the which is capable of containing, and has consult with officials of neighboring
Terrorism Prevention in Hazardous exterior placarding or other markings jurisdictions as required by 49 CFR
Materials Transportation Congressional indicating it contains, any of the listed 397.71(b)(3). Additionally, ATA asserts
Review Emergency Act of 2006 [D.C. materials: the District of Columbia did not engage
Act 16–325, Mar. 23, 2006]. (a) Explosives of Class 1, Division 1.1, in the risk analysis required by 49 CFR
FOR FURTHER INFORMATION CONTACT: Mr. or Class 1, Division 1.2, as designated in 397.71(b)(4). Lastly, ATA states the D.C.
Brian Yonish, Office of Chief Counsel 49 CFR 173.2, in a quantity greater than Council’s testimony and findings
(Tel. No. 202–366–0834); Federal Motor 500 kilograms; include no discussion or analysis of
Carrier Safety Administration, U.S. (b) Flammable gasses of Class 2, population density or special
Department of Transportation, 400 Division 2.1, as designated in 49 CFR populations in the area outside the
Seventh Street, SW., Washington, DC Capitol Exclusion Zone, characteristics
1 Except for emergency acts and certain
20590–0001. of the alternative highways to be used,
enumerated types of legislation, all acts passed by
SUPPLEMENTARY INFORMATION: the D.C. Council must be transmitted to the U.S. an analysis of the number of shipments
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Congress for a specified review period. The review that would be impacted by the DC Act,
I. Application for a Preemption period for acts that do not relate to the criminal an analysis of the impact upon
Determination code is 30 days in which Congress is in session.
emergency response capabilities,
After this review period, the act takes effect unless
This proceeding is based on the Congress enacts a joint resolution disapproving the consideration of comments and
March 14, 2005, application act. D.C. Code § 1–206.02. concerns of affected persons, impact

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18138 Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices

upon commerce, delays in The preemption provisions in 49 preemption concerning highway routing
transportation, or traffic conditions, U.S.C. 5125 carry out Congress’s view of hazardous materials. See 49 CFR
including motor vehicle accident that a single body of uniform Federal 1.73(d)(2). Any directly affected person
experience. ATA points out FMCSA’s regulations promotes safety in the may apply for a determination whether
routing regulations relating to non- transportation of hazardous materials. In a requirement of a State, political
radioactive hazardous materials require section 2 of the Hazardous Materials subdivision or Indian tribe is
analysis of these factors prior to Transportation Uniform Safety Act of preempted. 49 CFR 397.205(a).
enacting a routing restriction. See 49 1990 (HMTUSA) [Pub. L. 101–615, FMCSA’s preemption determinations
CFR 397.71(b)(9). November 16, 1990, 104 Stat. 3244], are governed by procedures under 49
Notice of ATA’s filing of its Congress underscored the need for CFR part 397, subpart E, and 49 U.S.C.
Application was published in the uniform regulations relating to 5125. After the preemption
Federal Register on April 20, 2005, and transportation of hazardous materials: determination is issued, aggrieved
interested parties were invited to submit (3) many States and localities have enacted persons have 20 days to file a petition
comments. 70 FR 20630. Comments laws and regulations which vary from for reconsideration. See 49 CFR
were submitted by Yellow Roadway Federal laws and regulations pertaining to 397.211(c) and 397.223. Any party to
Corporation (‘‘Yellow Roadway’’), the the transportation of hazardous materials, the proceeding may seek judicial review
National Propane Gas Association thereby creating the potential for in the United States Court of Appeals
(‘‘NPGA’’), and the National Tank Truck unreasonable hazards in other jurisdictions for the District of Columbia or in the
and confounding shippers and carriers which Court of Appeals for the circuit in
Carriers, Inc. (‘‘NTTC’’). The District of
attempt to comply with multiple and
Columbia submitted a reply. ATA then which the person resides or has its
conflicting registration, permitting, routing,
filed rebuttal comments. notification, and other regulatory principal place of business. 49 U.S.C.
On December 21, 2005, FMCSA requirements; 5127(a).
published a Federal Register notice (4) because of the potential risks to life, In making preemption determinations
announcing a delay in issuing a property, and the environment posed by under 49 U.S.C. 5125(d), FMCSA is
determination on ATA’s Application in unintentional releases of hazardous guided by the principles and policies set
order to allow time for fact-finding and materials, consistency in laws and forth in Executive Order 13132, titled
regulations governing the transportation of ‘‘Federalism.’’ 64 FR 43255 (Aug. 4,
an appropriate consideration of the
hazardous materials is necessary and 1999). Section 4(a) of Executive Order
issues. 70 FR 75858. desirable;
13132 directs agencies to construe a
II. Federal Preemption (5) in order to achieve greater uniformity
and to promote the public health, welfare, Federal statute to preempt State law
Title 49 U.S.C. 5125 includes several and safety at all levels, Federal standards for only when the statute contains an
preemption provisions. Relevant to this regulating the transportation of hazardous express preemption provision, there is
proceeding is section 5125(c)(1), which materials in intrastate, interstate, and foreign other clear evidence that Congress
allows a State or Indian tribe to commerce are necessary and desirable.’’ intended preemption of State law, or the
establish, maintain, or enforce a The Committee on Commerce, exercise of State authority conflicts with
highway routing designation over which Science, and Transportation, when the exercise of Federal authority under
hazardous material may or may not be reporting in 1990 on the bill to amend the Federal statute. Section 5125
transported by motor vehicles, or a the Hazardous Materials Transportation includes express preemption provisions,
limitation or requirement related to Act (HMTA) [Pub. L. 93–633 section which FMCSA has implemented
highway routing, only if the 112(a), 88 Stat. 2161 (1975)], stated through its regulations.
designation, limitation, or requirement ‘‘The original intent of HMTA was to IV. Discussion
complies with 49 U.S.C. 5112(b). The authorize [DOT] with the regulatory and
District of Columbia is considered a enforcement authority to protect the A. Summary of DC Act
‘‘State’’ for purposes of hazardous public against the risks imposed by all The DC Act makes it illegal, except in
materials transportation law. 49 U.S.C. forms of hazardous materials cases of emergency, to transport in the
5102(11). transportation, and to preclude a Capitol Exclusion Zone without a
Section 5112(b) requires the Secretary multiplicity of State and local permit certain quantities of hazardous
of Transportation (the Secretary), in regulations and the potential for varying materials specified in Section 4 of the
consultation with the States, to as well as conflicting regulations.’’ S. DC Act. The specific quantities of the
prescribe by regulation standards for the Rep. No. 101–449 (1990), reprinted in banned materials are listed in Section I
States and Indian tribes to follow when 1990 U.S.C.C.A.N. 4595, 4596. A of this preemption determination.
designating specific highway routes for Federal Court of Appeals has indicated Section 4 of the DC Act also makes it
transportation of hazardous materials. uniformity was the ‘‘linchpin’’ in the illegal in the Capitol Exclusion Zone,
The Secretary has delegated to FMCSA design of the HMTA, including the 1990 without a permit, to operate a vehicle
authority and responsibility for highway amendments expanding the original which is capable of containing, and has
routing of hazardous materials. See 49 preemption provisions.2 exterior placarding or other markings
CFR 1.73(d)(2). indicating it contains, the specified
III. Preemption Determinations
The standards required by 49 U.S.C. quantities of the listed materials.
5112(b) for establishing highway routing Title 49 U.S.C. 5125(d) provides for Section 3 of the DC Act defines an
requirements for non-radioactive issuance of binding preemption ‘‘emergency’’ as an unanticipated,
hazardous materials are set forth in 49 determinations by the Secretary. The temporary situation that threatens the
CFR part 397, subpart C, and apply to Secretary has delegated to FMCSA immediate safety of individuals or
any designations established or authority to make determinations of property, as determined by the District
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modified on or after November 14, 1994. of Columbia Department of


2 Colorado Pub. Util. Comm’n v. Harmon, 951
49 CFR 397.69(a). A State or Indian tribe Transportation.
F.2d 1571, 1575 (10th Cir. 1991). In 1994, Congress
must follow FMCSA standards when revised, codified and enacted the HMTA ‘‘without
Section 5 of the DC Act enables the
establishing highway routing substantive change,’’ at 49 U.S.C. Chapter 51. [Pub. District of Columbia Department of
requirements for hazardous materials. L. 103–272, 108 Stat. 745]. Transportation to issue a permit

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Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices 18139

authorizing transport of the otherwise continuity of routes, alternative secure transportation of hazardous
prohibited materials listed in Section 4 routes, effects on commerce, potential materials.
if there is no ‘‘practical alternative delays in transportation, and NTTC asserts the DC Act attempts to
route’’—defined in Section 3 of the DC congestion and accident history. 49 shift risk from the District of Columbia
Act as a route which lies entirely CFR 397.71(b)(9). to other jurisdictions. NTTC further
outside the Capitol Exclusion Zone and In addition, the State must (1) ensure states that Federal law allows the
whose use would not make shipment of that its political subdivisions comply District of Columbia to seek a legal
the hazardous materials cost- with FMCSA’s standards and means of addressing a routing scheme.
prohibitive. Section 5 provides that the procedures (49 CFR 397.71(b)(8)); (2) NPGA notes that the Federal
permit may require the adoption of make information on highway routing regulations were developed to address
safety measures, including time-of-day designations available to the public ‘‘in situations where localities shift
restrictions. Section 5 authorizes the the form of maps, lists, road signs or hazardous materials traffic from one
District of Columbia Department of some combination thereof’’ (49 CFR jurisdiction to another. NPGA further
Transportation to collect fees for the 397.73(a)); and (3) report highway states there must be an opportunity for
permits. Any permit fees are not to routing designations to FMCSA within full participation by the motor carriers
exceed the cost of implementing and 60 days after establishment (49 CFR and the neighboring affected
enforcing the DC Act. 397.73(b)). communities when a locality seeks to
establish a routing restriction. NPGA
B. Summary of Regulatory Requirements C. Application of Regulatory also filed a separate application for
Because the District of Columbia Requirements to the DC Act preemption with the Pipeline and
established routing restrictions in the ATA states in its Application that the Hazardous Materials Safety
DC Act, the District of Columbia must District of Columbia did not comply Administration (PHMSA) in which it
comply with FMCSA’s standards in 49 with the public notice and comment asked PHMSA to find that Federal
CFR part 397, subpart C. 49 CFR period required by 49 CFR 397.71(b)(2). hazardous materials law preempts the
397.69(a). These standards, issued ATA further alleges the District of DC Act in its entirety. Because the
pursuant to 49 U.S.C. 5112(b), specify Columbia did not consult with affected issues raised by NPGA in its application
that there must be: neighboring jurisdictions as required by concern the DC Act and because the
—A finding by the State that the 49 CFR 397.71(b)(3) and did not receive issues overlap with the issues raised by
highway routing designation the agreement of the State of Maryland ATA in its Application, NPGA’s
‘‘enhances public safety in the areas or the Commonwealth of Virginia as application is being considered in the
subject to its jurisdiction and in other required by 49 CFR 397.71(b)(5). context of the ATA Application and is
areas which are directly affected by Additionally, ATA states the District of in essence treated as a comment filed in
such highway routing designation.’’ Columbia did not engage in the risk the instant proceeding. NPGA states in
49 CFR 397.71(b)(1). analysis required by 49 CFR its application that the DC Act
—Notice to the public of the proposed 397.71(b)(4). contravenes the concept of national
routing designation, a 30-day period ATA further maintains that the D.C. hazardous materials regulatory
for the public to submit comments, Council’s findings and the testimony of uniformity. NPGA expresses concerns
and consideration of whether to hold the D.C. Council members during the that the actions of individual
a public hearing (with advance notice session in which the DC Act was jurisdictions, with thoughts of only their
to the public). 49 CFR 397.71(b)(2). enacted contain no discussion or own constituents and not a broader
—Notice to and consultation with analysis of the factors required by 49 regional or national view, will fragment
‘‘officials of affected political CFR 397.71(b)(9), such as population the unified system into balkanized
subdivisions, States and Indian tribes, density, characteristics of alternative pockets of differing rules and
and any other affected parties,’’ and highways to be used, analysis of the restrictions.
completion of the routing designation number of shipments impacted by the In its comments replying to ATA’s
process within 18 months of the DC Act, consideration of comments and Application, the District of Columbia
notice to the public or notice to other concerns of affected persons, impact states that it promulgated emergency
affected jurisdictions. 49 CFR upon commerce, delays in rules implementing the DC Act, and
397.71(b)(3), (6). transportation, and traffic conditions, those rules expressly exempt
—Assurance of ‘‘through highway including motor vehicle accident application of the DC Act to non-
routing * * * between adjacent experience. railroad carriers until certain conditions
areas.’’ 49 CFR 397.71(b)(4). In its comments, Yellow Roadway are met. In light of the exemption
—No unreasonable burden on expresses concern that if the DC Act contained in the regulations, the District
commerce. 49 CFR 397.71(b)(5). goes unchallenged, other cities and local of Columbia argues the issues raised by
— Agreement with the proposed routing governments might implement similar ATA’s Application are not yet ripe.
by all affected States within 60 days measures that would adversely impact Specifically, the District of Columbia
of notice, or alternatively, approval by the safe and efficient transportation of states that the emergency rules
the Administrator pursuant to dispute hazardous material. Yellow Roadway implementing the DC Act exclude
resolution procedures under 49 CFR points out the additional miles carriers who own motor vehicles from
397.75. 49 CFR 397.71(b)(5). associated with rerouting increases the routing requirements until thirty
—Reasonable access for vehicles to exposure, driving time and would not days after (a) a court or agency rules the
reach terminals, pickup and delivery ensure an increase in safety or security DC Act is not preempted by Federal
points, loading and unloading in the routes chosen. Moreover, Yellow hazardous materials law; (b) the Director
locations, and facilities for food, fuel, Roadway states a requirement to adhere of the District of Columbia Department
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repairs, rest, and safe havens. 49 CFR to different rules and routing of Transportation certifies that the list of
397.71(b)(7). requirements in different communities criteria set forth in 49 CFR 397.71 have
—Consideration of specific factors, would be confusing, extremely costly, been met; or (c) FMCSA issues a waiver
including population density, and administratively burdensome and of preemption pursuant to 49 CFR
emergency response capabilities, would adversely impact the safe and 397.213 and 49 CFR 397.219.

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18140 Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices

Consequently, the District of Columbia materials requirements as set forth in 49 Columbia regarding the routing
requests FMCSA to deny ATA’s U.S.C. 5112 and 49 CFR part 397. See restrictions at issue in this proceeding.
Application. In the alternative, the Morrisville, PA Requirements for Consequently, FMCSA finds that the
District of Columbia asks FMCSA to stay Transportation of ‘‘Dangerous Waste,’’ District of Columbia did not comply
a decision on ATA’s Application until 66 FR 37260, 37264 (July 17, 2001) with the requirement in 49 CFR
the U.S. District Court for the District of (finding that Borough of Morrisville did 397.71(b)(3) to provide notice to and
Columbia issues an opinion in CSX not comply with FMCSA’s standards in consult with officials of affected States.
Transportation, Inc. v. Williams 49 CFR part 397 after Borough failed to Further, there is no evidence in the
(‘‘CSX’’) 3 relating to preemption, or dispute commenters’ assertions that the record indicating the District of
until one of the three conditions listed Borough adopted a routing limitation Columbia complied with any of the
in the District of Columbia’s rules is without notice and opportunity to requirements contained in 49 CFR part
satisfied. comment). Instead, the District of 397, subpart C, and the District of
The District of Columbia’s response to Columbia argues the issue of Columbia has offered none.
NPGA’s application is similar to its preemption is not yet ripe because the The District of Columbia failed to
response to ATA’s Application. regulations implementing the DC Act comply with the statutory requirements
Specifically, the District of Columbia exempt application of the DC Act to in 49 U.S.C. 5112 and FMCSA’s
states that because the emergency rules non-railroad carriers until certain standards in 49 CFR part 397 when it
implementing the DC Act expressly conditions are met. The District of enacted the DC Act. The District of
exempt application of the DC Act to Columbia failed to submit any evidence Columbia argues the issue of
non-railroad carriers until certain demonstrating compliance with the preemption is not yet ripe because the
conditions are met, the issues raised in Federal regulatory requirements in regulations implementing the DC Act do
NPGA’s application are not yet ripe. The establishing the routing designation in not apply to motor carriers until certain
District of Columbia states that its rules the DC Act. conditions are met.
provide that the routing requirements To additionally develop the factual As discussed below, the issues
will not apply to motor carriers until record in this proceeding, on November presented by ATA in its Application are
thirty days after one of three conditions 22, 2005, FMCSA sent letters to the ripe. As an initial matter, however, it
have been met, as summarized above in Maryland State Highway should be noted that the ripeness
the District of Columbia’s response to Administration and the Virginia doctrine derives from Article III of the
ATA’s Application. The District of Department of Transportation asking U.S. Constitution, which places
Columbia requests FMCSA to deny whether the District of Columbia limitations on federal judicial powers
NPGA’s application, or in the provided them written notice of the that are inapplicable to administrative
alternative, to stay a decision on the District of Columbia’s proposal to agencies.4 Courts have held that an
application until the United States prohibit the transportation of certain administrative agency is not subject to
District Court for the District of hazardous materials in the Capitol Article III and related prudential
Columbia resolves the claims regarding Exclusion Zone, as is required by 49 limitations, and accordingly may issue
preemption in the CSX proceeding, or CFR 397.71(b)(3). Specifically, at least declaratory orders ‘‘in mere anticipation
until one of the three conditions is 60 days prior to establishing a routing of a controversy or simply to resolve an
designation, the District of Columbia uncertainty.’’ 5 Thus, while an
satisfied.
ATA filed rebuttal comments was required by regulation to ‘‘provide administrative agency may, where
responding to the District of Columbia’s notice, in writing, of the proposed appropriate, exercise its discretion and
comments. ATA states that the District routing designation to officials decline to address a matter before it on
of Columbia did not demonstrate in its responsible for highway routing in all ripeness grounds, it is not compelled to
other affected States or Indian tribes.’’ do so under the Constitution.
rebuttal comments that it complied with
49 CFR 397.71(b)(3)(i). Moreover, any The District of Columbia argues the
Federal hazardous materials routing
such routing designation shall be issues raised by ATA’s Application are
requirements, but instead the District of
established, maintained, or enforced not yet ripe because the regulations
Columbia opposed ATA’s Application
only if the routing designation is implementing the DC Act do not apply
on the grounds that the District of
‘‘agreed to by the affected State or to motor carriers until certain
Columbia has temporarily delayed the
Indian tribe within 60 days of receipt of conditions are met. However, the
implementation of its routing
the notice’’ or the routing designation is District of Columbia’s promulgation of
restrictions with respect to motor
approved by the FMCSA Administrator regulations excluding motor vehicle
carriers. ATA notes that its Application
pursuant to dispute resolution traffic from the routing restrictions until
for a preemption determination
procedures. 49 CFR 397.71(b)(5)(ii). specified criteria are met does not
challenges the DC Act, and not the On December 7, 2005, the Maryland salvage the District of Columbia’s failure
implementing regulations. ATA states State Highway Administration to comply with Federal standards when
that the routing restriction set forth in responded to FMCSA’s letter, it established in the DC Act a highway
the DC Act is self-implementing and explaining that it was unable to locate routing designation over which certain
that the subsequently issued regulations any documentation indicating that the hazardous materials may not be
do not cure the procedural defects in District of Columbia sent any such transported. 49 CFR 397.71. As noted by
enacting the DC Act. notice to the State of Maryland and ATA in its rebuttal comments, its
In its reply, the District of Columbia likewise was unable to locate Application challenges the DC Act itself
does not dispute the assertions made by documentation indicating that the State and not the implementing regulations.
ATA. Significantly, the District of of Maryland sent any reply to the
Columbia does not assert that it District of Columbia regarding the 4 Metropolitan Council of N.A.A.C.P. Branches v.
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followed the Federal hazardous routing designations contained in the F.C.C., 46 F.3d 1154, 1161 (D.C. Cir. 1995) (citing
DC Act. On January 12, 2006, the Chavez v. Director, Office of Workers Compensation
3 CSX Transportation, Inc. v. Williams, No. Programs, 961 F.2d 1409, 1414 (9th Cir.1992)).
05cv00338 (D.D.C. filed Feb. 16, 2005) (involving a
Virginia Department of Transportation 5 Pfizer Inc. v. Shalala, 182 F.3d 975, 980 (D.C.

complaint filed by a railroad company seeking a responded that it similarly was unaware Cir. 1999) (citing Metropolitan Council of NAACP
declaration that the DC Act is invalid). of any notification from the District of Branches, 46 F.3d at 1161).

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ATA correctly points out in its rebuttal reconsideration within 20 days of submitting comments on the DOT
comments that the District of publication of this decision in the electronic docket site.
Columbia’s subsequently issued Federal Register. Any party to this • Fax: 1–202–493–2251.
regulations do not cure the procedural proceeding may seek judicial review in • Mail: Docket Management Facility;
defects in enacting the DC Act. the United States Court of Appeals for U.S. Department of Transportation, 400
Federal hazardous material law on the District of Columbia or in the Court Seventh Street, SW., Nassif Building,
preemption is triggered when a highway of Appeals for the circuit in which the Room PL–401, Washington, DC 20590–
routing designation over which person resides or has its principal place 0001.
hazardous material may or may not be of business. 49 U.S.C. 5127(a). • Hand Delivery: Room PL–401 on
transported is established, maintained, This decision will become the final the plaza level of the Nassif Building,
or enforced. 49 U.S.C. 5125(c). decision of FMCSA 20 days after 400 Seventh Street, SW., Washington,
Similarly, FMCSA’s regulations require publication in the Federal Register if no DC, between 9 a.m. and 5 p.m., Monday
compliance with the highway routing petition for reconsideration is filed through Friday, except Federal holidays.
standards in 49 CFR 397.71 when a state within that time. The filing of a petition • Federal eRulemaking Portal: Go to
establishes or modifies a highway for reconsideration is not a prerequisite http://www.regulations.gov. Follow the
routing designation and maintains or to seeking judicial review of this online instructions for submitting
enforces such designation. 49 CFR decision under 49 U.S.C. 5125(f). comments.
397.69. The District of Columbia has If a petition for reconsideration of this Instructions: All submissions must
established 6 a highway routing determination is filed within 20 days of include the Agency name and docket
designation through the enactment of publication in the Federal Register, the number for this notice. Note that all
the DC Act and has maintained 7 that action by FMCSA on the petition for comments received will be posted
highway routing designation by keeping reconsideration will be the final without change to http://dms.dot.gov
the DC Act current. As such, the District decision. 49 CFR 397.223(d). including any personal information
of Columbia was required to comply Issued in Washington, DC, on April 3, provided. Please see the Privacy Act
with the statutory requirements in 49 2006. heading for further information.
U.S.C. 5112 and FMCSA’s standards in Warren E. Hoemann, Docket: For access to the docket to
49 CFR part 397 with regard to each Deputy Administrator. read background documents or
enactment. A highway routing [FR Doc. E6–5137 Filed 4–7–06; 8:45 am] comments received, go to http://
designation made by the District of BILLING CODE 4910–EX–P dms.dot.gov at any time or to Room PL–
Columbia that does not comply with the 401 on the plaza level of the Nassif
requirements of part 397 is preempted. Building, 400 Seventh Street, SW.,
49 CFR 397.69(b). The District of DEPARTMENT OF TRANSPORTATION Washington, DC, between 9 a.m. and 5
Columbia has attempted to unilaterally p.m., Monday through Friday, except
exempt itself from this obligation by Federal Motor Carrier Safety Federal holidays. The DMS is available
adopting rules that would avoid Administration 24 hours each day, 365 days each year.
FMCSA’s regulatory requirements until [Docket No. FMCSA–2006–24005] If you want to be notified that we
the rule is literally applied to carriers. received your comments, please include
That is too late and not the intent of Hours of Service of Drivers: Institute of a self-addressed, stamped envelope or
FMCSA’s regulations. Consequently, Makers of Explosives (IME); postcard or print the acknowledgement
FMCSA rejects the District of Application for Exemption page that appears after submitting
Columbia’s ripeness argument. comments online.
Accordingly, the entire DC Act as it AGENCY: Federal Motor Carrier Safety
Privacy Act: Anyone may search the
applies to motor carriers is preempted Administration (FMCSA), DOT.
electronic form of all comments
by 49 U.S.C. 5125(c)(1) because the ACTION: Notice of application for
received into any of DOT’s dockets by
District of Columbia failed to comply exemption; request for comments. the name of the individual submitting
with FMCSA’s standards for SUMMARY: FMCSA announces that it has the comment (or of the person signing
establishing highway routing received an application for exemption the comment, if submitted on behalf of
designations issued pursuant to 49 from a requirement in its hours-of- an association, business, labor union, or
U.S.C. 5112(b) and 49 CFR part 397, service (HOS) rules from the Institute of other entity). You may review DOT’s
subpart C. Makers of Explosives (IME). IME complete Privacy Act Statement in the
V. Ruling requests that a member of a driving team Federal Register published on April 11,
who is transporting hazardous materials 2000 (65 FR 19477). This statement is
Federal hazardous material also available at http://dms.dot.gov.
transportation law preempts all requiring constant attendance in
accordance with the Federal Motor FOR FURTHER INFORMATION CONTACT: Mr.
provisions of the DC Act as it applies to
Carrier Safety Regulations and who is Thomas Yager, Division Chief, Driver
motor carriers.
using the sleeper berth be allowed to and Carrier Operations Division (MC–
VI. Petition for Reconsideration/ exit the sleeper berth for brief specified PSD), Office of Bus and Truck Standards
Judicial Review periods without being considered ‘‘on and Operations, phone (202) 366–4009,
In accordance with 49 CFR duty.’’ FMCSA requests public comment e-mail MCPSD@fmcsa.dot.gov.
397.223(a), any person aggrieved by this on IME’s application for exemption. SUPPLEMENTARY INFORMATION:
decision may file a petition for DATES: Comments must be received on
or before May 10, 2006. Background
6 Merriam Webster’s dictionary defines ADDRESSES: You may submit comments Section 4007 of the Transportation
wwhite on PROD1PC65 with NOTICES

‘‘establish’’ as ‘‘to institute (as a law) permanently [identified by DOT DMS Docket No. Equity Act for the 21st Century (Pub. L.
by enactment or agreement.’’ Merriam Webster’s 105–178, June 9, 1998, 112 Stat. 107)
Collegiate Dictionary 397 (10th ed. 1997).
FMCSA–2006–24005] using any of the
7 ‘‘Maintain’’ is defined as ‘‘to keep in an existing following methods: amended 49 U.S.C. 31315 and 31136(e)
state.’’ Merriam Webster’s Collegiate Dictionary 702 • Web Site: http://dmses.dot.gov/ to provide authority to grant exemptions
(10th ed. 1997). submit. Follow the instructions for from the motor carrier safety

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