Transportation of Hazardous Materials; Highway Routing; Final Rule DEPARTMENT OF TRANSPORTATION

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]

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