[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25159]
[[Page Unknown]]
[Federal Register: October 12, 1994]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
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49 CFR Part 397
Transportation of Hazardous Materials; Highway Routing; Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 397
[FHWA Docket No. MC-92-6]
RIN 2125-AC80
Transportation of Hazardous Materials; Highway Routing
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA is adopting regulations to implement subsections 105
(b) and (c) of the Hazardous Materials Transportation Act of 1975
(HMTA) as amended by the Hazardous Materials Transportation Uniform
Safety Act of 1990 (HMTUSA). The regulations include Federal standards
and procedures which the States and Indian tribes must follow if they
establish, maintain, or enforce routing designations that (1) specify
highway routes over which placarded non-radioactive hazardous materials
(NRHM) may and may not be transported within their jurisdictions, and/
or (2) impose limitations or requirements with respect to highway
routing of such hazardous materials. Included are amendments to the
procedures in 49 CFR part 397, subpart E, relating to Federal
preemption and waivers of preemption, and new procedures for the
resolution of disputes involving State or Indian tribe NRHM routing
designations. States and Indian tribes are also required to furnish
updated NRHM route information for publication by the FHWA. The
existing motor carrier regulations with NRHM routing requirements have
been incorporated into this regulation, along with the new requirements
which require motor carriers to comply with the NRHM routing
designations of States and Indian tribes. The intent of these
requirements is to ensure that NRHM are moved safely and that commerce
is not burdened by restrictive, uncoordinated, or conflicting
requirements of various jurisdictions.
EFFECTIVE DATE: November 14, 1994.
FOR FURTHER INFORMATION CONTACT: Ms. Pamela K. Deadrick, Hazardous
Materials Routing and Special Studies Branch (HHS-13), Office of
Highway Safety, (202) 366-8788; or Mr. Raymond W. Cuprill, Office of
Chief Counsel (HCC-20), (202) 366-0834, Federal Highway Administration,
400 Seventh Street SW., Washington, D.C. 20590-0001. Office hours are
from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except for
legal Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, the Hazardous Materials Transportation
Uniform Safety Act of 1990 (HMTUSA) (Pub. L. 101-615, 104 Stat. 3244)
was enacted and amended the Hazardous Materials Transportation Act of
1975 (HMTA) (Pub. L. 93-633, 88 Stat. 2156). The FHWA was delegated the
responsibility by the Secretary, as published in the Federal Register
(56 FR 31343, July 10, 1991; 49 CFR 1.48), to implement subsections 105
(b) and (c) of the HMTA (now codified at 49 U.S.C. Secs. 5112 and 5125
(1994), Pub. L. 103-272, 108 Stat. 745). This included the rulemaking
and program responsibility for hazardous materials highway routing,
with the exception of currently pending applications for inconsistency
rulings and non-preemption determinations which remain a responsibility
of the Research and Special Programs Administration (RSPA).
Section 5112(b) of title 49, United States Code, requires the
Secretary to establish by regulation standards for States and Indian
tribes to use in establishing, maintaining, and enforcing these routing
designations. These Federal standards shall provide for enhancement of
safety; public participation; transportation of hazardous materials
between adjacent areas; consultation with other States, Indian tribal
and local governments; through highway routing; reasonable time to
reach agreement between affected States or Indian tribes; avoidance of
unreasonable burden on commerce; timely establishment of State and
Indian tribe routing; reasonable routes to terminals and other
facilities; State responsibility for local compliance; and a number of
``factors'' for States and Indian tribes to consider. Section
5112(b)(2) prohibits the Secretary from assigning specific weights to
the ``factors to consider'' in the Federal standards, but Sections
5125(c) and 5112(d) do provide for Federal preemption and dispute
resolution of State and Indian tribe routing designations to allow for
consistent application of the Federal standards among adjacent
jurisdictions.
Section 5112(c) also requires the Secretary, in coordination with
the States, to periodically update and publish a list of currently
effective hazardous materials highway route designations.
The FHWA recognizes that 49 CFR 177.810 exempts State and local
regulations and ordinances regarding the kind, character, or quantity
of any hazardous material, except radioactive materials, transported
through urban tunnels used for mass transportation from parts 170 to
189 of the hazardous materials regulations. However, this section does
not exempt State, Indian tribes and local governments from having to
comply with the routing regulations applicable to the transportation of
Class 7 (radioactive) materials (49 CFR 397, subpart D) or the routing
regulations established herein. Therefore, tunnel routing designations
are now subject to the same Federal standards and procedures as are
other highway routing designations.
To assist the States and local governments in the development of
routes, the DOT published ``Guidelines for Selecting Preferred Highway
Routes for Highway Route Controlled Quantity Shipments of Radioactive
Materials'' (latest edition DOT/RSPA/OHMT-89/01 dated August 1992) and
``Guidelines for Applying Criteria to Designate Routes for Transporting
Hazardous Materials'' (latest edition DOT/RSPA/OHMT-89-02 dated July
1989). The latter publication is being updated to provide guidance on
the Federal standards in this regulation. Both guides are useful in
developing highway routing requirements for hazardous materials. These
documents are available to the public through the National Technical
Information Service, Springfield, Virginia 21661.
The FHWA published a notice of proposed rulemaking and a notice of
public hearings entitled ``Transportation of Hazardous Materials;
Highway Routing'' in the Federal Register on August 31, 1992 (57 FR
39522). The FHWA requested comments from any interested parties to be
submitted to Docket MC-92-6 by October 30, 1992. In addition, the FHWA
held four public hearings to solicit comments from interested parties
in October at Washington, D.C.; Dallas, Texas; San Francisco,
California; and Rosemont, Illinois.
Discussion of Comments
A total of fifty-six commenters responded to this proposed
regulation by written submission to the docket and/or presentation at
the public hearings. The commenters represented a total of fifty-two
organizations, including twenty-seven commercial/trade affiliated
organizations representing shippers and carriers, fourteen State
government organizations, five local governments, three Federal
agencies, one Indian tribe, one citizens' group, and one consulting
firm.
Nineteen commenters supported and eight opposed the overall format
and/or intent of the proposed regulations. The remaining commenters did
not express overall opposition or support for the regulation but did
comment on specific parts of the regulation. Fifty-four commenters
discussed details of the proposed rule, and many recommended changes to
various aspects of the rule. The following topics were of main concern.
Definitions
Definitions were discussed by fifteen commenters who recommended
clarification of some definitions and additional definitions for some
terms used in the regulation. These comments were submitted from eight
members of the shipper-carrier industry, four States, one local
government, one Federal agency and a citizens' group.
Nine commenters recommended clarification of the definition of
``routing designations.'' The main concern was that routing
designations broadly defined could include licenses, permits, bonds,
and other restrictions or requirements which might not be route-
specific. In response to these concerns, the FHWA has clarified routing
designations to include route-specific features, such as: designations
of routes, restrictions on routes, curfews/time-of-travel restrictions
on routes, lane restrictions, routing bans, port-of-entry requirements,
and weight restrictions on routes which are specifically related to
NRHM. Common State, Indian tribal, or local regulatory requirements are
not ``routing designations'' when they are not route specific. These
can include fee, bonding/insurance, notice, escort, permit,
registration, inspection, and communication requirements which are
generally applied to entire jurisdictions rather than specific highway
routes. Such jurisdictional restrictions are not covered under this
regulation. Their possible preemption is determined by the RSPA, not
the FHWA. Other restrictions on motor vehicles that are not specific to
the transportation of hazardous materials, such as height, weight, or
width restrictions for roads and bridges, or prohibitions on the use of
downtown streets by trucks over certain sizes, are not affected by this
regulation.
Motor Carrier Responsibilities for Routing
Five commenters recommended clarifying the applicability of the
rule to placarded and marked vehicles. These commenters were concerned
that the regulation would be applicable to placarded NRHM transport
while other motor carrier regulations are applicable to both placarded
and marked NRHM transport. The FHWA has amended Sec. 397.67(b), which
deals with the motor carriers responsibilities, to include motor
vehicles that are marked or placarded.
One State recommended that reasonable deviation cover highway and
law enforcement situations that require a driver to take an alternative
route. The FHWA agreed with this recommendation and amended
Sec. 397.67(b)(3) to provide for highway agency detours, such as in
work zones, and law enforcement situations.
The FHWA also amended the terms ``Class A or Class B explosives''
to ``Explosives, in Class 1, Division 1.1, 1.2, 1.3'' so as to be
consistent with the current terminology in the Hazardous Materials
Regulations (49 CFR 171-180).
Quantities of NRHM
Four commenters recommended limiting the placarded quantity and
type of NRHM for which the regulation applied, such as to bulk rather
than to vehicles transporting small individual cylinders of hazardous
materials. The FHWA did not adopt this recommendation because 49 U.S.C.
Sec. 5112(a)(1) requires that the highway routing regulations apply to
a vehicle if such vehicle is transporting in commerce a hazardous
material for which placarding of the vehicle is required. This section
authorized the Secretary of Transportation to extend application of the
regulations to other hazardous materials, but did not authorize
limiting their application to only ``in bulk'' hazardous materials.
Factors
Twenty-four commenters discussed the factors which States and
Indian tribes must consider in developing NRHM routing designations.
These commenters included twelve shippers and carriers, four States,
three local governments, three Federal agencies, one citizens' group
and one consulting firm. Eleven commenters recommended clarification of
the factors and development of specific measures or benchmarks by which
the factors could be evaluated. These commenters were concerned that
the factors can be applied differently by various jurisdictions,
resulting in different routing designations. Sixteen commenters
indicated that specific risk criteria should be considered more
important than the other factors, while seven commenters recommended
the Federal government establish minimum criteria for each of the
factors. The FHWA declined to adopt these recommendations because the
HMTUSA specifically provided the States and Indian tribes with the
flexibility to determine how each standard should be applied.
Five commenters mentioned the importance of providing updated
Federal guidelines for analyzing the factors; five commenters
recommended additional factors, including accident histories, the use
of tunnels, and hours of service for drivers; and several commenters
recommended clarification of the terms ``unreasonably burden
commerce,'' ``climatic conditions,'' and ``congestion factors.'' In
response to these comments, the FHWA revised several of the factors.
The factor on ``terrain considerations'' was amended to include both
accident severity and clean up of spills; ``alternative routes'' was
amended to specifically consider safety; ``climatic conditions'' was
amended to provide examples, such as snow, high winds, ice, and fog;
and ``consideration of accident history'' was added to the congestion
factor. Additionally, the FHWA is in the process of updating the
guidelines for analyzing routing designations and intends to address
each of the factors in the updated publication.
Grandfather Provision
The notice of proposed rulemaking contained a section incorporating
the grandfather clauses included in the HMTA as amended by the HMTUSA.
One clause provides that routing designations established before
November 16, 1990, are not required to comply with the factors
discussed in Sec. 397.71 of the regulation. Another clause provides
that the routing designations established before the date of issuance
of these regulations do not have to be in accordance with the routing
standards dealing with public participation, consultation with other
jurisdictions, and timeliness.
The FHWA received numerous comments from the public expressing
their concern that incorporation of these grandfather clauses in the
regulation resulted in unnecessary confusion. The FHWA agrees. A strict
reading of the grandfather clauses would make the factors established
in this regulation retroactively applicable to routing designations
established after enactment of the HMTUSA on November 16, 1990. It
would be impracticable and unduly burdensome on the States and Indian
tribes to interpret the statute in such a manner. The FHWA would be
applying to these routing designations factors that did not exist in
Federal regulations at that time. As a result, the FHWA has decided to
apply the factors established in this final rule prospectively from 30
days after the date of publication in the Federal Register.
This action should not be interpreted to mean that the routing
designations established prior to the publication of the final rule are
not subject to Federal preemption. These routing designations are still
subject to Federal preemption under 49 U.S.C. Sec. 5125(a), if--
(1) Complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter or a
regulation prescribed 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.
Jurisdictional Coordination
Twenty-two commenters addressed the issue of jurisdictional
coordination between Federal, State, Indian tribal, and local
governments in the routing designation process. These commenters
included ten members of the shipper-carrier industry, eight States, two
local governments, one Federal agency, and one consulting firm.
Fourteen commenters expressed concern about the role of the Federal
government versus State and local governments. Many of the commenters
did not recommend changes to the regulation but expressed their
concerns about the administration of this regulation.
Eleven commenters discussed the potential for conflicts between
States, between local jurisdictions, and between States and local
jurisdictions. Eight commenters were concerned that the required
communications between States, Indian tribes, and local jurisdictions
would not be adequately coordinated. The FHWA revised
Sec. 397.71(b)(3)(i), dealing with consultation with others, to provide
for better interagency coordination.
Comments from shippers and carriers recommended increasing the
State, Indian tribal, or local governments' burden in establishing and
administering a routing designation. For example, their recommendations
included requiring States to produce a risk analysis for each class of
NRHM for a specific route designation and for each route designation
that transfers risk from one jurisdiction to another. They also
recommended that States develop consistent standards to be used by all
local jurisdictions. State and local governments, on the other hand,
expressed concerns about the proposed requirements that would be
imposed on them in establishing and maintaining routing designations.
These comments focused on the administrative burdens associated with
the proposed requirements, such as those involving records maintenance,
public hearings, and those that would require a finding that any
routing designation would enhance public safety.
The FHWA believes that the increased requirements proposed by the
shipper and carrier industries would unduly burden State and local
governments without producing a corresponding safety benefit.
Similarly, the FHWA believes that the requirements proposed in the NPRM
are the minimum necessary to ensure that States or Indian tribes
adopting routing designations fully and fairly consider all of the
factors required under the law. Accordingly, the FHWA is promulgating
this final rule without a change in the proposed coordination
requirements for establishing and administering route designations.
Two commenters recommended that States or local governments be
allowed to have varying standards which could differ based on the type
and quantity of material involved. The FHWA believes that no changes
are necessary since States are already provided the latitude to
determine how the standards in this regulation or any additional
standards a State or Indian tribe select are to be applied.
Dispute Resolution, Preemption, and Waivers of Preemption
Preemption, waivers of preemption, and dispute resolution
procedures were discussed by fourteen commenters. These commenters
included nine members of the shipper-carrier industry, three States,
one Federal agency, and one citizens' group. Four commenters addressed
eligibility or standing to petition under the dispute resolution
process, with three commenters recommending the local jurisdiction be
eligible to participate in the dispute resolution process. The FHWA
decided not to adopt these recommendations because the HMTUSA
authorizes the FHWA only to resolve disputes between States and between
States and Indian tribes. The FHWA believes that States will consider
the views and concerns of local jurisdictions in formulating their
positions on preemption and preemption waiver determinations.
Additionally, the dispute resolution procedures provide affected local
jurisdictions with notice and the opportunity to participate, through
their State, in the process.
Eight commenters addressed waiver of preemptions. Two suggested
that local governments could use this process to circumvent State
administration of routing designations, another recommended the FHWA
prevent local governments from seeking a waiver of preemption when the
State has disapproved the designation, and one remarked that the waiver
of preemption process provides protection for jurisdictions where
unique circumstances justify extraordinary routing measures. The FHWA
has decided not to adopt these recommendations because it believes that
the finding required by 49 CFR 397.219 (that the waived routing
designation provide an equal or higher level of highway safety to the
public without unreasonably burdening commerce) is sufficient to ensure
that the waiver process is not used arbitrarily. Additionally, States
are able to express their views as part of the process.
Four commenters discussed the status of a routing designation
pending a preemption determination, with three recommending the use of
an administrative stay until the determination is issued. Another
recommended the interim status of a routing designation be decided by
the FHWA. Two commenters recommended an administrative appeals process.
The FHWA believes no changes are necessary because the procedures in 49
CFR part 397, subpart E, maintain the status of a highway routing
pending a preemption determination and provide for administrative
reconsideration and judicial review.
The FHWA, in considering all the comments and the current
provisions in subpart E of 49 CFR part 397, determined that the
proposed provisions should be incorporated into the existing procedures
in subpart E rather than being included as redundant procedures unique
to this final rule. Consequently, Sec. 397.79 Preemption determination
procedure; Sec. 397.81 Waivers of preemption; Sec. 397.85 Timeliness;
and Sec. 397.87 Judicial review of preemption or waiver of preemption
decision have been removed and this final rule has been amended to
refer to the applicable sections of subpart E, and subpart E is amended
to refer to the provisions of this final rule.
Public Notification
Public notification procedures were discussed by twenty-nine
commenters. This included seventeen members of the shipper-carrier
industry, five States, three Federal agencies, two local governments,
one citizens' group and one consulting firm. Thirteen commenters
discussed public participation. Highway users tended to recommend more
public notification through publications, such as newspapers or the
Federal Register, while two government agencies recommended reducing
the publication requirements because of costs. Additionally, five
commenters discussed public hearing requirements and recommended
providing an opportunity for a public hearing rather than requiring a
public hearing. The FHWA has revised the regulation to grant States and
Indian tribes discretion to hold public hearings on proposed NRHM
routing designations after providing the public with notice and an
opportunity to comment. The FHWA also believes publication of the
notice for both the comment period and the public hearing, if one is
held, to be most appropriately administered at the State and Indian
tribe level, through publications, such as the official register of the
State regulations, rather than through publication in the Federal
Register.
Reporting of Routing Designations
Ten commenters discussed the requirement for State and Indian
tribes to report routing designations to the FHWA. The majority
recommended the FHWA frequently publish new and existing route
designations in the Federal Register. Several also recommended that
States and Indian tribes, as a prerequisite, be required to report
their intention to establish a route designation to the FHWA for
publication in the Federal Register. Upon further review, the FHWA
determined it would be more practical and appropriate to provide some
form of current information on established routing designations;
consequently, the FHWA is considering alternative methods, such as
establishing an electronic bulletin board, to update and provide this
information to the public in a timely manner along with publishing
annual lists of routing designations in the Federal Register.
Signs, Maps and Lists of Routing Designations
Ten commenters were concerned about the use and availability of
road signs and maps. Highway users were generally in favor of requiring
the use of road signs. They recommended that routing designations be
enforceable only to the extent they are signed. Several States, notably
California and Colorado, have successfully operated rather extensive
and efficient routing systems through the use of lists and maps rather
than signs. The requirement to sign all routing designations could also
be a considerable administrative and economic burden for States which
have or develop extensive routing designations. Therefore, the FHWA
declines to adopt this suggestion.
Reasonable Routes to Terminals and Other Facilities
Reasonable access to terminals and other facilities was discussed
by fifteen commenters, including twelve shippers and carriers, one
State, one Federal entity, and one local agency.
Nine commenters representing shippers and carriers of fuels and
farm supplies recommended more flexibility be provided for their
products in designating route restrictions because many of their
deliveries are local and unplanned. Seven of these commenters, mostly
representing short-haul, irregular route carriers, recommended they be
exempted from the proposed limits on reasonable access deviations,
because they could impose a financial burden on them. The FHWA declined
to adopt these recommendations because the HMTUSA was specific on
providing the States and Indian tribes with the flexibility to
accommodate local and special interests which may be unique to an
area's geographic or commercial situation.
Three government agencies recommended a larger maximum deviation
distance, whereas three carriers recommended a shorter maximum
deviation. In response to these comments, the FHWA amended
Sec. 397.71(b)(7) by replacing the proposed requirement that such
routes or deviations not exceed twice the distance of the most direct
route with a requirement that States or Indian tribes which establish
or provide for reasonable access to and from designated routes use the
shortest practicable route based upon consideration of 13 factors
listed in paragraph (b)(9) of that section.
Several commenters recommended clarification of the applicability
of reasonable access and through routing provisions to local
deliveries. The FHWA revised the reasonable access provisions to also
apply to pickup and deliveries.
Through Routing
Through routing issues were discussed by twenty-seven commenters,
including nineteen shippers and carriers, three Federal agencies, three
States, one Indian tribe, and one citizens' action group. Fifteen
commenters recommended a decrease in the maximum deviation distance and
two commenters favored an increase to as much as twice the distance of
the most direct route. Four commenters recommended elimination of
percentage-based permissible routing deviations and suggested that
consideration of the factors would be adequate. Three commenters also
indicated that it was inappropriate to use an arbitrary percentage to
determine the length of permissible deviations when such a percentage
has no correlation to safety. Four commenters recommended clarifying
how the maximum deviation limitation would be applied to each
designated routing encountered during a trip or to the sum of all
deviations contained in an entire trip. Seven commenters recommended
clarifying the difference between through routing and reasonable routes
to terminals and other facilities, and when the separate regulations
are applicable. Several of the commenters recommended that deviations
from through routing should only be implemented when the deviation is
safer than the through route or at least as safe and not an
unreasonable burden on commerce. The FHWA has revised the section on
through routing to consider public safety and economic burden (rather
than use only percentages and mileage measurements). The revised
section provides a relationship between route deviations and public
safety and requires that new routing designations have substantially
lower relative risk than the current routing. When the relative risk of
the routing deviation is not substantially lower, the potential
economic effect becomes a significant factor.
Discussion of Final Rule
Purpose and Scope
The FHWA is implementing the requirements of the HMTUSA in a new
subpart C, Routing, in Part 397 of Title 49, Code of Federal
Regulations. This regulation implements the requirements of the HMTUSA
by establishing Federal standards and procedures which States and
Indian tribes are required to follow if they establish, maintain, or
enforce routing designations for the highway transportation of non-
radioactive hazardous materials. The intent of these requirements is to
ensure that NRHM are moved safely and that commerce is not burdened by
restrictive, uncoordinated, or conflicting requirements of various
jurisdictions. The standards and requirements of this regulation,
however, allow for the flexibility intended in the HMTUSA. The FHWA
will not designate routes used for transporting NRHM. Any State or
Indian tribe that chooses to establish, maintain, or enforce NRHM
routing designations is required to comply with the Federal standards
established in this regulation. The States and Indian tribes are also
required to ensure that any NRHM routing designations by political
subdivisions under their jurisdiction are established, maintained, and
enforced in accordance with this regulation. Any NRHM routing
designations that fail to comply with the standards can be preempted.
Any State, political subdivision thereof, Indian tribe, business,
organization, or individual affected by a NRHM routing designation can
apply to the Federal Highway Administrator (Administrator) for a
preemption determination pursuant to 49 CFR 397, subpart E, which
contains procedures for Federal preemption determinations, waivers of
preemptions, and petition for reconsideration. Procedures for dispute
resolution are included in this final rule (49 CFR 397, subpart C).
The regulations require States and Indian tribes to report existing
NRHM routing designations within their boundaries to the FHWA and,
thereafter, to report any additions or changes to these routing
designations 60 days after the effective date of designation.
Applicability
The provisions of this regulation are applicable to States,
including any political subdivisions, and Indian tribes that establish,
maintain, or enforce any highway routing designations over which
placarded NRHM may or may not be transported. The regulation also
contains several provisions which are applicable to motor carriers
transporting NRHM.
This regulation requires States, including political subdivisions,
and Indian tribes to comply with Federal standards in establishing NRHM
highway routing designations and to follow certain procedures. This
regulation also requires States and Indian tribes that establish,
maintain, or enforce routing designations to report these routing
designations to the FHWA.
Motor Carrier Responsibility for Routing
Motor carriers transporting NRHM as of the effective date of this
regulation are required to comply with the NRHM routing designations of
States or Indian tribes. Where States and Indian tribes have not
established NRHM routing designations, motor carriers are required to
operate in accordance with 49 CFR 397.67, previously set forth in 49
CFR 397.9(a), over routes that avoid heavily populated areas, places
where crowds are assembled, tunnels, narrow streets, or alleys. The
routing plan requirements previously set forth in 49 CFR 397.9(b) for
transporting Class 1 explosives, divisions 1.1, 1.2, 1.3, as defined in
49 CFR 173.50 and 173.53, have also been incorporated into the same
section.
The Federal regulations for highway routing of Class 7
(radioactive) materials, 49 CFR 397, subpart D, remain unchanged by
this regulation.
State and Indian Tribe Jurisdiction Over Routing
States and Indian tribes are required to comply with this
regulation if they impose routing designations for NRHM. If a political
subdivision of a State wishes to impose NRHM routing designations, the
State is required to ensure that the political subdivision follows
these regulations, including coordination with and approval by the
routing agency designated by the Governor. The State is responsible for
all NRHM routing designations that local jurisdictions establish,
including resolving any disputes between local jurisdictions. The
regulation requires the States and Indian tribes to designate routing
agencies who will be responsible for ensuring that all NRHM routing
designations are made in accordance, and substantively comply, with the
procedural requirements of the Federal standards.
Procedures for States and Indian Tribes
1. Federal Standards
This regulation establishes standards which closely follow the
specific requirements of 49 U.S.C. Sec. 5112(b) and include procedures
for States and Indian tribes to follow if they impose routing
designations for NRHM transportation by motor carriers. The Federal
standards provide for enhancement of safety; public participation;
consultation with other State, local, and tribal governments; through
routing; reasonable time to reach agreement between affected States or
Indian tribes; not unduly burdening commerce; timely establishment of
State and Indian tribe routing; reasonable routes to terminals; State
responsibility for local compliance; and a number of ``factors to
consider.'' The list of ``factors to consider'' which States (political
subdivisions) and Indian tribes are required to use in regulating
routing is contained in Sec. 397.71 of this final rule and includes the
factors required by 49 U.S.C. Sec. 5112(b)(1)(I) and additional factors
addressing climatic conditions, congestion, and accident analysis. In
accordance with 49 U.S.C. Sec. 5112(b)(2), the FHWA will not assign any
specific weight to be given by the States or Indian tribes in
considering the factors. Additionally, in analyzing these factors, the
States or Indian tribes shall use the most current version of
``Guidelines for Applying Criteria to Designate Routes for Transporting
Hazardous Materials'' or an equivalent routing analysis.
2. Public Information and Reporting Requirements
Section 5112(c) of title 49, United States Code, requires the
Secretary, in coordination with the States, to periodically update and
publish a list of current hazardous materials highway routing
designations. Accordingly, the FHWA will compile and publish annually
in the Federal Register a listing of all hazardous materials routing
designations. The FHWA will also maintain a list of all current
designations, including additions and changes, and provide this
information, upon request, to interested parties. To comply with this
requirement, the FHWA is, through this regulation, requiring States and
Indian tribes to initially submit, to the FHWA, information on all the
existing NRHM routing designations within their boundaries. After the
initial submission, any new or changed NRHM routing designation shall
be submitted to the FHWA 60 days after the routing designation takes
effect.
The States (political subdivisions) and Indian tribes are required
to use methods such as maps, listings, road signs, or some combination
of these measures as may be needed to adequately inform the public of
their NRHM routing designations.
3. Dispute Resolution
Disputes involving highway routing agreements between political
jurisdictions within a State are to be resolved by the State's routing
agency. Unresolved disputes involving through highway routing or
routing designation agreements between States or Indian tribes may be
submitted to the Administrator for resolution. Details of the dispute
shall be furnished to the Administrator by the petitioner, together
with a description of what was done to try to settle it, plus a
recommendation of the actions that should be taken by the Administrator
to resolve the dispute. The FHWA has revised Sec. 397.75 of this
regulation to clearly set forth the importance of public safety in any
routing designation. The State or Indian tribe filing the petition for
dispute resolution shall be responsible for providing a comparative
risk analysis for the proposed routing designation and the current
routing condition. Once a dispute is submitted to the Administrator, no
court action may be taken for one year or until after a decision by the
Administrator, whichever occurs first.
4. Judicial Review of Dispute Decision
A party to a dispute who is adversely affected by a dispute
resolution decision of the Administrator can obtain judicial review of
the decision if such court action is filed within 90 days after the
Administrator's decision becomes final.
5. Preemption Determinations and Waivers of Preemption
On September 24, 1992, the FHWA published an interim final rule (57
FR 44132) amending 49 CFR 397 by adding a subpart E which established
procedures applicable to preemption determinations and waivers of
preemption. This final rule amends subpart E to make these procedures
applicable to NRHM routing designations which are now included in
subpart C.
Any highway routing designation established, maintained or enforced
by a State, a political subdivision thereof, or an Indian tribe is
preempted if:
(1) Compliance with both the highway routing designation and any
requirement of chapter 51 of title 49, United States Code, or of a
regulation prescribed thereunder is not possible;
(2) The highway routing designation, as applied or enforced is an
obstacle to accomplishing and carrying out chapter 51 of title 49,
United States Code, or the regulations prescribed thereunder; or
(3) A State or Indian tribe establishes, maintains or enforces any
routing designation that does not comply with the procedural and
substantive requirements of the Federal standards set forth in this
regulation.
Any person, including a State, political subdivision thereof, or
Indian tribe, affected by a NRHM routing designation can apply to the
Administrator for a determination of whether such routing designation
is preempted.
A State, political subdivision, or Indian tribe may apply to the
Administrator for a waiver of preemption. The Administrator is
authorized to waive preemption of a NRHM routing designation, based on
a determination that it provides equal or better protection to the
public than these regulations would provide, and it does not
unreasonably burden commerce.
Technical Amendments
Public Law 103-272 (108 Stat. 745), enacted on July 5, 1994,
codified certain U.S. transportation laws as title 49, United States
Code. Like other transportation statutes, the Hazardous Materials
Transportation Act was repealed and its contents restated in title 49.
This final rule changes the citations contained in the NPRM to conform
to the provisions of the new law.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This rulemaking document was reviewed under E.O. 12866,
``Regulatory Planning and Review.'' The FHWA has determined that this
regulation is a significant regulatory action within the meaning of
that Order. This rulemaking is considered a significant regulation
under Department of Transportation regulatory policies and procedures
because of substantial congressional and public interest. This interest
involves minimizing risks while allowing reasonable highway routing for
the transportation of NRHM. The regulation does not require the
establishment of NRHM routing designations or the use of Federal
preemption determinations, waivers of preemption, and dispute
resolution, but does provide standards and procedures which are
required to be followed if these actions are taken. The FHWA believes
that for those States or Indian tribal governments which choose to
adopt routing designations, the benefits from implementing these
regulations, such as NRHM routing designation continuity, public
participation, uniform standards, and preemption and dispute resolution
procedures, will be greater than the costs, such as providing the
required documentation, coordination, and analysis which allow
discretion in level of detail. The FHWA anticipates that the economic
impact of this regulation will be minimal based upon a regulatory
evaluation.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354;
5 U.S.C. 601-612), the FHWA has evaluated the effects of this
regulation on small entities such as Indian tribes, local governments,
and small businesses. The HMTUSA requires the Secretary to adopt
standards which States and Indian tribes must follow if they establish,
maintain, or enforce NRHM routing designations (specific highway routes
over which NRHM may or may not be transported within their
jurisdictions, limitations or requirements for highway routing). The
regulation does not require the use of NRHM routing designations or
Federal preemption determinations, waivers of preemption, and dispute
resolution, but provides standards and procedures which are required to
be followed if these actions are chosen to be used. The discretionary
nature of the actions allows for cost saving options to be used in
balancing the needs in commerce and the risks in the transportation of
NRHM. To date, relatively few States and local jurisdictions have
chosen to establish NRHM routing designations. The FHWA has concluded
that the regulation does not substantially affect the ability of, or
cost to, local jurisdictions establishing needed NRHM routing
designations. The preemption and dispute resolution procedures provide
all entities more effective and efficient means of resolving routing
issues. Based on this evaluation, the FHWA certifies that this
regulation does not have a significant economic impact on a substantial
number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. The HMTUSA requires the
Secretary to adopt standards which States and Indian tribes must follow
if they establish, maintain, or enforce NRHM routing designations
(specific highway routes over which NRHM may or may not be transported
within their jurisdictions, limitations or requirements for highway
routing). The regulation recognizes the State and Indian tribal role in
the designation of highway routes for NRHM while de-emphasizing the
role of local governments. The regulation provides for discretion by
the States and Indian tribes as to whether they impose NRHM routing
designations. Each State and Indian tribe is free to establish NRHM
routing designations tailored to its own needs in accordance with the
Federal standards, using the DOT ``Guidelines for Applying Criteria to
Designate Routes for Transporting Hazardous Materials,'' or an
equivalent routing analysis which adequately considers overall risk to
the public. States and localities have a better understanding of the
relative safety of the highways within their jurisdictions than does
the Federal government.
The regulation limits the policymaking discretion of the States,
their political subdivisions and Indian tribes. The regulation is
necessary, however, to achieve the purposes and implement the
requirements of the HMTUSA. Accordingly, it is certified that this
action has been analyzed in accordance with the principles, criteria,
and requirements contained in Executive Order 12612 and, it has been
determined that this action does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
The information collection, reporting, and recordkeeping provisions
in Sec. 397.73 of this regulation were submitted to the Office of
Management and Budget for approval under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq. and approved by the Office of Management
and Budget under control number 2125-0554.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action does not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The RIN contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
List of Subjects in 49 CFR Part 397
Hazardous materials transportation, Highways and roads, Motor
carrier safety permits.
In consideration of the foregoing, the Federal Highway
Administration is amending title 49, Code of Federal Regulations,
subtitle B, chapter III, part 397, by adding a subpart C, and amending
subpart E, as set forth below.
Issued on October 4, 1994.
Rodney E. Slater,
Federal Highway Administrator.
PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS
1. The authority citation for part 397 is revised to read as
follows:
Authority: 49 U.S.C. 5101 et seq.; 49 CFR 1.48.
Sec. 397.9 [Removed and Reserved]
2. Section 397.9 is removed and reserved.
3. Part 397 is amended by adding subpart C to read as follows:
SUBPART C--ROUTING OF NON-RADIOACTIVE HAZARDOUS MATERIALS
Sec.
397.61 Purpose and scope.
397.63 Applicability.
397.65 Definitions.
397.67 Motor carrier responsibility for routing.
397.69 Highway routing designations; preemption.
397.71 Federal standards.
397.73 Public information and reporting requirements.
397.75 Dispute resolution.
397.77 Judicial review of dispute decision.
Sec. 397.61 Purpose and scope.
This subpart contains routing requirements and procedures that
States and Indian tribes are required to follow if they establish,
maintain, or enforce routing designations over which a non-radioactive
hazardous material (NRHM) in a quantity which requires placarding may
or may not be transported by a motor vehicle. It also provides
regulations for motor carriers transporting placarded or marked NRHM
and procedures for dispute resolutions regarding NRHM routing
designations.
Sec. 397.63 Applicability.
The provisions of this subpart apply to any State or Indian tribe
that establishes, maintains, or enforces any routing designations over
which NRHM may or may not be transported by motor vehicle. They also
apply to any motor carrier that transports or causes to be transported
placarded or marked NRHM in commerce.
Sec. 397.65 Definitions.
For purposes of this subpart, the following definitions apply:
Administrator. The Federal Highway Administrator, who is the chief
executive of the Federal Highway Administration, an agency within the
United States Department of Transportation, or his/her designate.
Commerce. Any trade, traffic, or transportation in the United
States which:
(1) is between a place under the jurisdiction of a State or Indian
tribe and any place outside of such jurisdiction; or
(2) is solely within a place under the jurisdiction of a State or
Indian tribe but which affects trade, traffic, or transportation
described in subparagraph (a).
FHWA. The Federal Highway Administration, an agency within the
Department of Transportation.
Hazardous material. A substance or material, including a hazardous
substance, which has been determined by the Secretary of Transportation
to be capable of posing an unreasonable risk to health, safety, or
property when transported in commerce, and which has been so
designated.
Indian tribe. Has the same meaning as contained in Sec. 4 of the
Indian Self-Determination and Education Act, 25 U.S.C. 450b.
Motor carrier. A for-hire motor carrier or a private motor carrier
of property. The term includes a motor carrier's agents, officers and
representatives as well as employees responsible for hiring,
supervising, training, assigning, or dispatching of drivers.
Motor vehicle. Any vehicle, machine, tractor, trailer, or
semitrailer propelled or drawn by mechanical power and used upon the
highways in the transportation of passengers or property, or any
combination thereof.
NRHM. A non-radioactive hazardous material transported by motor
vehicle in types and quantities which require placarding, pursuant to
Table 1 or 2 of 49 CFR 172.504.
Political subdivision. A municipality, public agency or other
instrumentality of one or more States, or a public corporation, board,
or commission established under the laws of one or more States.
Radioactive material. Any material having a specific activity
greater than 0.002 microcuries per gram (uCi/g), as defined in 49 CFR
173.403.
Routing agency. The State highway agency or other State agency
designated by the Governor of that State, or an agency designated by an
Indian tribe, to supervise, coordinate, and approve the NRHM routing
designations for that State or Indian tribe.
Routing designations. Any regulation, limitation, restriction,
curfew, time of travel restriction, lane restriction, routing ban,
port-of-entry designation, or route weight restriction, applicable to
the highway transportation of NRHM over a specific highway route or
portion of a route.
Secretary. The Secretary of Transportation.
State. A State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, the Virgin Islands, American Samoa or Guam.
Sec. 397.67 Motor carrier responsibility for routing.
(a) A motor carrier transporting NRHM shall comply with NRHM
routing designations of a State or Indian tribe pursuant to this
subpart.
(b) A motor carrier carrying hazardous materials required to be
placarded or marked in accordance with 49 CFR 177.823 and not subject
to a NRHM routing designations pursuant to this subpart, shall operate
the vehicle over routes which do not go through or near heavily
populated areas, places where crowds are assembled, tunnels, narrow
streets, or alleys, except where the motor carrier determines that:
(1) There is no practicable alternative;
(2) A reasonable deviation is necessary to reach terminals, points
of loading and unloading, facilities for food, fuel, repairs, rest, or
a safe haven; or
(3) A reasonable deviation is required by emergency conditions,
such as a detour that has been established by a highway authority, or a
situation exists where a law enforcement official requires the driver
to take an alternative route.
(c) Operating convenience is not a basis for determining whether it
is practicable to operate a motor vehicle in accordance with paragraph
(b) of this section.
(d) Before a motor carrier requires or permits a motor vehicle
containing explosives in Class 1, Divisions 1.1, 1.2, 1.3, as defined
in 49 CFR 173.50 and 173.53 respectively, to be operated, the carrier
or its agent shall prepare a written route plan that complies with this
section and shall furnish a copy to the driver. However, the driver may
prepare the written plan as agent for the motor carrier when the trip
begins at a location other than the carrier's terminal.
Sec. 397.69 Highway routing designations; preemption.
(a) Any State or Indian tribe that establishes or modifies a
highway routing designation over which NRHM may or may not be
transported on or after November 14, 1994, and maintains or enforces
such designation, shall comply with the highway routing standards set
forth in Sec. 397.71 of this subpart. For purposes of this subpart, any
highway routing designation affecting the highway transportation of
NRHM, made by a political subdivision of a State is considered as one
made by that State, and all requirements of this subpart apply.
(b) Except as provided in Secs. 397.75 and 397.219, a NRHM route
designation made in violation of paragraph (a) of this section is
preempted pursuant to section 105(b)(4) of the Hazardous Materials
Transportation Act (49 U.S.C. app. 1804(b)(4)). This provision shall
become effective after November 14, 1996.
(c) A highway routing designation established by a State, political
subdivision, or Indian tribe before November 14, 1994 is subject to
preemption in accordance with the preemption standards in paragraphs
(a)(1) and (a)(2) of Sec. 397.203 of this subpart.
(d) A State, political subdivision, or Indian tribe may petition
for a waiver of preemption in accordance with Sec. 397.213 of this
part.
Sec. 397.71 Federal standards.
(a) A State or Indian tribe shall comply with the Federal standards
under paragraph (b) of this section when establishing, maintaining or
enforcing specific NRHM routing designations over which NRHM may or may
not be transported.
(b) The Federal standards are as follows:
(1) Enhancement of public safety. The State or Indian tribe shall
make a finding, supported by the record to be developed in accordance
with paragraphs (b)(2)(ii) and (b)(3)(iv) of this section, that any
NRHM routing designation enhances public safety in the areas subject to
its jurisdiction and in other areas which are directly affected by such
highway routing designation. In making such a finding, the State or
Indian tribe shall consider:
(i) The factors listed in paragraph (b)(9) of this section; and
(ii) The DOT ``Guidelines for Applying Criteria to Designate Routes
for Transporting Hazardous Materials,'' DOT/RSPA/OHMT-89-02, July
19891 or its most current version; or an equivalent routing
analysis which adequately considers overall risk to the public.
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\1\ This document may be obtained from Safety Technology and
Information Management Division, HHS-10, Federal Highway
Administration, U.S. Department of Transportation, 400 7th Street,
SW., Washington, D.C. 20590-0001.
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(2) Public participation. Prior to the establishment of any NRHM
routing designation, the State or Indian tribe shall undertake the
following actions to ensure participation by the public in the routing
process:
(i) The State or Indian tribe shall provide the public with notice
of any proposed NRHM routing designation and a 30-day period in which
to comment. At any time during this period or following review of the
comments received, the State or Indian tribe shall decide whether to
hold a public hearing on the proposed NRHM route designation. The
public shall be given 30 days prior notice of the public hearing which
shall be conducted as described in paragraph (b)(2)(ii) of this
section. Notice for both the comment period and the public hearing, if
one is held, shall be given by publication in at least two newspapers
of general circulation in the affected area or areas and shall contain
a complete description of the proposed routing designation, together
with the date, time, and location of any public hearings. Notice for
both the comment period and any public hearing may also be published in
the official register of the State.
(ii) If it is determined that a public hearing is necessary, the
State or Indian tribe shall hold at least one public hearing on the
record during which the public will be afforded the opportunity to
present their views and any information or data related to the proposed
NRHM routing designation. The State shall make available to the public,
upon payment of prescribed costs, copies of the transcript of the
hearing, which shall include all exhibits and documents presented
during the hearing or submitted for the record.
(3) Consultation with others. Prior to the establishment of any
NRHM routing designation, the State or Indian tribe shall provide
notice to, and consult with, officials of affected political
subdivisions, States and Indian tribes, and any other affected parties.
Such actions shall include the following:
(i) At least 60 days prior to establishing a routing designation,
the State or Indian tribe shall provide notice, in writing, of the
proposed routing designation to officials responsible for highway
routing in all other affected States or Indian tribes. A copy of this
notice may also be sent to all affected political subdivisions. This
notice shall request approval, in writing, by those States or Indian
tribes, of the proposed routing designations. If no response is
received within 60 days from the day of receipt of the notification of
the proposed routing designation, the routing designation shall be
considered approved by the affected State or Indian tribe.
(ii) The manner in which consultation under this paragraph is
conducted is left to the discretion of the State or Indian tribe.
(iii) The State or Indian tribe shall attempt to resolve any
concern or disagreement expressed by any consulted official related to
the proposed routing designation.
(iv) The State or Indian tribe shall keep a record of the names and
addresses of the officials notified pursuant to this section and of any
consultation or meeting conducted with these officials or their
representatives. Such record shall describe any concern or disagreement
expressed by the officials and any action undertaken to resolve such
disagreement or address any concern.
(4) Through routing. In establishing any NRHM routing designation,
the State or Indian tribe shall ensure through highway routing for the
transportation of NRHM between adjacent areas. The term ``through
highway routing'' as used in this paragraph means that the routing
designation must ensure continuity of movement so as to not impede or
unnecessarily delay the transportation of NRHM. The State or Indian
tribe shall utilize the procedures established in paragraphs (b)(2) and
(b)(3) of this section in meeting these requirements. In addition, the
State or Indian tribe shall make a finding, supported by a risk
analysis conducted in accordance with paragraph (b)(1) of this section,
that the routing designation enhances public safety. If the risk
analysis shows--
(i) That the current routing presents at least 50 percent more risk
to the public than the deviation under the proposed routing
designation, then the proposed routing designation may go into effect.
(ii) That the current routing presents a greater risk but less than
50 percent more risk to the public than the deviation under the
proposed routing restriction, then the proposed routing restriction
made by a State or Indian tribe shall only go into effect if it does
not force a deviation of more than 25 miles or result in an increase of
more than 25 percent of that part of a trip affected by the deviation,
whichever is shorter, from the most direct route through a jurisdiction
as compared to the intended deviation.
(iii) That the current route has the same or less risk to the
public than the deviation resulting from the proposed routing
designation, then the routing designation shall not be allowed.
(5) Agreement of other States; burden on commerce. Any NRHM routing
designation which affects another State or Indian tribe shall be
established, maintained, or enforced only if:
(i) It does not unreasonably burden commerce, and
(ii) It is agreed to by the affected State or Indian tribe within
60 days of receipt of the notice sent pursuant to paragraph (b)(3)(i)
of this section, or it is approved by the Administrator pursuant to
Sec. 397.75.
(6) Timeliness. The establishment of a NRHM routing designation by
any State or Indian tribe shall be completed within 18 months of the
notice given in either paragraph (b)(2) or (b)(3) of this section,
whichever occurs first.
(7) Reasonable routes to terminals and other facilities. In
establishing or providing for reasonable access to and from designated
routes, the State or Indian tribe shall use the shortest practicable
route considering the factors listed in paragraph (b)(9) of this
section. In establishing any NRHM routing designation, the State or
Indian tribe shall provide reasonable access for motor vehicles
transporting NRHM to reach:
(i) Terminals,
(ii) Points of loading, unloading, pickup and delivery, and
(iii) Facilities for food, fuel, repairs, rest, and safe havens.
(8) Responsibility for local compliance. The States shall be
responsible for ensuring that all of their political subdivisions
comply with the provisions of this subpart. The States shall be
responsible for resolving all disputes between such political
subdivisions within their jurisdictions. If a State or any political
subdivision thereof, or an Indian tribe chooses to establish, maintain,
or enforce any NRHM routing designation, the Governor, or Indian tribe,
shall designate a routing agency for the State or Indian tribe,
respectively. The routing agency shall ensure that all NRHM routing
designations within its jurisdiction comply with the Federal standards
in this section. The State or Indian tribe shall comply with the public
information and reporting requirements contained in Sec. 397.73.
(9) Factors to consider. In establishing any NRHM routing
designation, the State or Indian tribe shall consider the following
factors:
(i) Population density. The population potentially exposed to a
NRHM release shall be estimated from the density of the residents,
employees, motorists, and other persons in the area, using United
States census tract maps or other reasonable means for determining the
population within a potential impact zone along a designated highway
route. The impact zone is the potential range of effects in the event
of a release. Special populations such as schools, hospitals, prisons,
and senior citizen homes shall, among other things, be considered when
determining the potential risk to the populations along a highway
routing. Consideration shall be given to the amount of time during
which an area will experience a heavy population density.
(ii) Type of highway. The characteristics of each alternative NRHM
highway routing designation shall be compared. Vehicle weight and size
limits, underpass and bridge clearances, roadway geometrics, number of
lanes, degree of access control, and median and shoulder structures are
examples of characteristics which a State or Indian tribe shall
consider.
(iii) Types and quantities of NRHM. An examination shall be made of
the type and quantity of NRHM normally transported along highway routes
which are included in a proposed NRHM routing designation, and
consideration shall be given to the relative impact zone and risks of
each type and quantity.
(iv) Emergency response capabilities. In consultation with the
proper fire, law enforcement, and highway safety agencies,
consideration shall be given to the emergency response capabilities
which may be needed as a result of a NRHM routing designation. The
analysis of the emergency response capabilities shall be based upon the
proximity of the emergency response facilities and their capabilities
to contain and suppress NRHM releases within the impact zones.
(v) Results of consultation with affected persons. Consideration
shall be given to the comments and concerns of all affected persons and
entities provided during public hearings and consultations conducted in
accordance with this section.
(vi) Exposure and other risk factors. States and Indian tribes
shall define the exposure and risk factors associated with any NRHM
routing designations. The distance to sensitive areas shall be
considered. Sensitive areas include, but are not limited to, homes and
commercial buildings; special populations in hospitals, schools,
handicapped facilities, prisons and stadiums; water sources such as
streams and lakes; and natural areas such as parks, wetlands, and
wildlife reserves.
(vii) Terrain considerations. Topography along and adjacent to the
proposed NRHM routing designation that may affect the potential
severity of an accident, the dispersion of the NRHM upon release and
the control and clean up of NRHM if released shall be considered.
(viii) Continuity of routes. Adjacent jurisdictions shall be
consulted to ensure routing continuity for NRHM across common borders.
Deviations from the most direct route shall be minimized.
(ix) Alternative routes. Consideration shall be given to the
alternative routes to, or resulting from, any NRHM route designation.
Alternative routes shall be examined, reviewed, or evaluated to the
extent necessary to demonstrate that the most probable alternative
routing resulting from a routing designation is safer than the current
routing.
(x) Effects on commerce. Any NRHM routing designation made in
accordance with this subpart shall not create an unreasonable burden
upon interstate or intrastate commerce.
(xi) Delays in transportation. No NRHM routing designations may
create unnecessary delays in the transportation of NRHM.
(xii) Climatic conditions. Weather conditions unique to a highway
route such as snow, wind, ice, fog, or other climatic conditions that
could affect the safety of a route, the dispersion of the NRHM upon
release, or increase the difficulty of controlling it and cleaning it
up shall be given appropriate consideration.
(xiii) Congestion and accident history. Traffic conditions unique
to a highway routing such as: traffic congestion; accident experience
with motor vehicles, traffic considerations that could affect the
potential for an accident, exposure of the public to any release,
ability to perform emergency response operations, or the temporary
closing of a highway for cleaning up any release shall be given
appropriate consideration.
Sec. 397.73 Public information and reporting requirements.
(a) Public information. Information on NRHM routing designations
must be made available by the States and Indian tribes to the public in
the form of maps, lists, road signs or some combination thereof. If
road signs are used, those signs and their placements must comply with
the provisions of the Manual on Uniform Traffic Control Devices,2
published by the FHWA, particularly the Hazardous Cargo signs
identified as R14-2 and R14-3 shown in Section 2B-43 of that Manual.
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\2\This publication may be purchased from the Superintendent of
Documents, U.S. Government Printing Office (GPO), Washington, D.C.
20402 and has Stock No. 050-001-81001-8. It is available for
inspection and copying as prescribed in 49 CFR part 7, appendix D.
See 23 CFR 655, subpart F.
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(b) Reporting and publishing requirements. Each State or Indian
tribe, through its routing agency, shall provide information
identifying all NRHM routing designations which exist within their
jurisdictions on November 14, 1994 to the FHWA, HHS-30, 400 7th St.,
SW., Washington, D.C. 20590-0001 by March 13,1995. The State or Indian
tribe shall include descriptions of these routing designations, along
with the dates they were established. This information may also be
published in each State's official register of State regulations.
Information on any subsequent changes or new NRHM routing designations
shall be furnished within 60 days after establishment to the FHWA. This
information will be available from the FHWA, consolidated by the FHWA,
and published annually in whole or as updates in the Federal Register.
Each State may also publish this information in its official register
of State regulations.
(Approved by the Office of Management and Budget under control
number 2125-0554)
Sec. 397.75 Dispute resolution.
(a) Petition. One or more States or Indian tribes may petition the
Administrator to resolve a dispute relating to an agreement on a
proposed NRHM routing designation. In resolving a dispute under these
provisions, the Administrator will provide the greatest level of safety
possible without unreasonably burdening commerce, and ensure compliance
with the Federal standards established at Sec. 397.71 of this subpart.
(b) Filing. Each petition for dispute resolution filed under this
section must:
(1) Be submitted to the Administrator, Federal Highway
Administration, U.S. Department of Transportation, 400 7th Street, SW.,
Washington, DC 20590-0001. Attention: HCC-10 Docket Room, Hazardous
Materials Routing Dispute Resolution Docket.
(2) Identify the State or Indian tribe filing the petition and any
other State, political subdivision, or Indian tribe whose NRHM routing
designation is the subject of the dispute.
(3) Contain a certification that the petitioner has complied with
the notification requirements of paragraph (c) of this section, and
include a list of the names and addresses of each State, political
subdivision, or Indian tribe official who was notified of the filing of
the petition.
(4) Clearly set forth the dispute for which resolution is sought,
including a complete description of any disputed NRHM routing
designation and an explanation of how the disputed routing designation
affects the petitioner or how it impedes through highway routing. If
the routing designation being disputed results in alternative routing,
then a comparative risk analysis for the designated route and the
resulting alternative routing shall be provided.
(5) Describe any actions taken by the State or Indian tribe to
resolve the dispute.
(6) Explain the reasons why the petitioner believes that the
Administrator should intervene in resolving the dispute.
(7) Describe any proposed actions that the Administrator should
take to resolve the dispute and how these actions would provide the
greatest level of highway safety without unreasonably burdening
commerce and would ensure compliance with the Federal standards
established in this subpart.
(c) Notice.
(1) Any State or Indian tribe that files a petition for dispute
resolution under this subpart shall mail a copy of the petition to any
affected State, political subdivision, or Indian tribe, accompanied by
a statement that the State, political subdivision, or Indian tribe may
submit comments regarding the petition to the Administrator within 45
days.
(2) By serving notice on any other State, political subdivision, or
Indian tribe determined by the Administrator to be possibly affected by
the issues in dispute or the resolution sought, or by publication in
the Federal Register, the Administrator may afford those persons an
opportunity to file written comments on the petition.
(3) Any affected State, political subdivision, or Indian tribe
submitting written comments to the Administrator with respect to a
petition filed under this section shall send a copy of the comments to
the petitioner and certify to the Administrator as to having complied
with this requirement. The Administrator may notify other persons
participating in the proceeding of the comments and provide an
opportunity for those other persons to respond.
(d) Court actions. After a petition for dispute resolution is filed
in accordance with this section, no court action may be brought with
respect to the subject matter of such dispute until a final decision
has been issued by the Administrator or until the last day of the one-
year period beginning on the day the Administrator receives the
petition, whichever occurs first.
(e) Hearings; alternative dispute resolution. Upon receipt of a
petition filed pursuant to paragraph (a) of this section, the
Administrator may schedule a hearing to attempt to resolve the dispute
and, if a hearing is scheduled, will notify all parties to the dispute
of the date, time, and place of the hearing. During the hearing the
parties may offer any information pertinent to the resolution of the
dispute. If an agreement is reached, it may be stipulated by the
parties, in writing, and, if the Administrator agrees, made part of the
decision in paragraph (f) of this section. If no agreement is reached,
the Administrator may take the matter under consideration and announce
his or her decision in accordance with paragraph (f) of this section.
Nothing in this section shall be construed as prohibiting the parties
from settling the dispute or seeking other methods of alternative
dispute resolution prior to the final decision by the Administrator.
(f) Decision. The Administrator will issue a decision based on the
petition, the written comments submitted by the parties, the record of
the hearing, and any other information in the record. The decision will
include a written statement setting forth the relevant facts and the
legal basis for the decision.
(g) Record. The Administrator will serve a copy of the decision
upon the petitioner and any other party who participated in the
proceedings. A copy of each decision will be placed on file in the
public docket. The Administrator may publish the decision or notice of
the decision in the Federal Register.
Sec. 397.77 Judicial review of dispute decision.
Any State or Indian tribe adversely affected by the Administrator's
decision under Sec. 397.75 of this subpart may seek review by the
appropriate district court of the United States under such proceeding
only by filing a petition with such court within 90 days after such
decision becomes final.
4. In Sec. 397.201, paragraph (a) is revised and paragraph (c) is
amended by revising the definitions for ``Act'', ``Administrator'',
``routing agency'' and ``routing designation'' and by adding new
definitions for ``hazardous material'' and ``Indian tribe'' to read as
follows:
Sec. 397.201 Purpose and scope of the procedures.
(a) This subpart prescribes procedures by which:
(1) Any person, including a State, political subdivision thereof,
or Indian tribe, directly affected by any highway routing designation
for hazardous materials may apply to the Administrator for a
determination as to whether that highway routing designation is
preempted under 49 U.S.C. Sec. 5125, or Sec. 397.69 or Sec. 397.203 of
this part; and
(2) A State, political subdivision thereof, or Indian tribe may
apply to the Administrator for a waiver of preemption with respect to
any highway routing designation that the State, political subdivision
thereof, or Indian tribe acknowledges to be preempted by 49 U.S.C.
Sec. 5125, or Sec. 397.69 or Sec. 397.203 of this part, or that has
been determined by a court of competent jurisdiction to be so
preempted.
* * * * *
(c) For purposes of this subpart:
Act means 49 U.S.C. Sec. 5101 et seq., formerly known as the
Hazardous Materials Transportation Act.
Administrator means the Federal Highway Administrator, who is the
chief executive of the Federal Highway Administration, an agency of the
United States Department of Transportation, or his/her designate.
Hazardous material means a substance or material, including a
hazardous substance, which has been determined by the Secretary of
Transportation to be capable of posing an unreasonable risk to health,
safety, or property, when transported in commerce, and which has been
so designated.
Indian tribe has the same meaning as contained in Sec. 4 of the
Indian Self-Determination and Education Act, 25 U.S.C. 450b.
* * * * *
Routing agency means the State highway agency or other State
agency designated by the Governor of a State, or an agency designated
by an Indian tribe, to supervise, coordinate, and approve the highway
routing designations for that State or Indian tribe. Any highway
routing designation made by a political subdivision of a State shall be
considered a designation made by that State.
Routing designation includes any regulation, limitation,
restriction, curfew, time of travel restriction, lane restriction,
routing ban, port-of-entry designation, or route weight restriction
applicable to the highway transportation of hazardous materials over a
specific highway route or portion of a route.
* * * * *
5. In Sec. 397.203, paragraph (a)(3) is revised to read as follows:
Sec. 397.203 Standards for determining preemption.
(a) * * *
(3) The highway routing designation is preempted pursuant to
Sec. 397.69(b) of this part.
[FR Doc. 94-25159 Filed 10-11-94; 8:45 am]
BILLING CODE 4910-22-P
