Incorporated V Dot Mccarthy

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					                               No. 01-5373
                              ____________

          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                        ____________

         STATE OF TENNESSEE and TENNESSEE
   DEPARTMENT OF ENVIRONMENT AND CONSERVATION,
                              Petitioners-appellants
                        v.

  UNITED STATES DEPARTMENT OF TRANSPORTATION,
RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, and
    ASSOCIATION OF WASTE HAZARDOUS MATERIALS
                  TRANSPORTERS,
                               Respondents-appellees
                    ____________

          ON APPEAL FROM THE U.S. DISTRICT COURT
          FOR THE MIDDLE DISTRICT OF TENNESSEE
                       ____________

                BRIEF OF AMICI CURIAE IN SUPPORT
                   OF RESPONDENTS-APPELLEES

                                     Lawrence W. Bierlein
                                     McCarthy, Sweeney,
                                          and Harkaway, P.C.
                                     2175 K Street, NW
                                    Washington, DC 20037
                                    (202) 393-5710

       For the American Chemistry Council, American Petroleum Institute,
      Chlorine Institute, Compressed Gas Association, Conference on Safe
          Transportation of Hazardous Articles, The Fertilizer Institute,
          Hazardous Materials Advisory Council, Institute of Makers of
         Explosives, International Vessel Operators Hazardous Materials
      Association, Motor Freight Carriers Association, National Association
        of Chemical Distributors, National Tank Truck Carriers, Nuclear
              Energy Institute, Utility Solid Waste Activities Group



July 23, 2001
                UNITED STATES COURT OF APPEALS
                     FOR THE SIXTH CIRCUIT



STATE OF TENNESSEE and TENNESSEE DEPARTMENT OF
ENVIRONMENT AND CONSERVATION, Petitioners-appellants

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION,
RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, and
ASSOCIATION OF WASTE HAZARDOUS MATERIALS
TRANSPORTERS, Respondents-appellees




           DISCLOSURE OF CORPORATE AFFILIATIONS
                  AND FINANCIAL INTEREST


      Pursuant to 6th Cir. R. 26.1, the 14 amici curiae associations listed in
the Attachment to this statement make the following disclosure:

1.    Are any of said parties a subsidiary or affiliate of a publicly owned
corporation?       No.

2.     Is there a publicly owned corporation, not a party to the appeal, that
has a financial interest in the outcome?      No.



__________________                                   ______
(Signature of Counsel)                               (Date)




                                       i
                                                          ATTACHMENT

                   AMICI CURIAE ASSOCIATIONS


American Chemistry Council
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5000

      The Council represents the leading companies engaged in the business
      of chemistry. This business is a key element of the Nation's economy
      and is America's #1 exporter. The Council's 175 member companies
      represent more than 90% of the productive capacity of basic industrial
      chemicals in the United States, and a large portion of the regulated
      hazardous materials shipping community. Through its Responsible
      Care® initiative, the Council is committed to continuously improve
      the safety and efficiency of hazardous materials transportation.

American Petroleum Institute
1220 L Street, NW
Washington, DC 20005
(202) 682-8000

      API is a non-profit association representing 400 companies involved
      in all aspects of the oil and natural gas industry. Members own
      petroleum terminals and truck and rail fleets for the distribution of
      gasoline, diesel fuel oil, and liquid petroleum gases.

Chlorine Institute
2001 L Street, NW
Washington, DC 20036-4919
(202) 775-2790

      The Institute is a non-profit association of 225 member companies
      representing chlor-alkali producers worldwide, as well as packagers,
      distributors, users of the products, and suppliers to the industry. The
      mission is promotion of safety and protection of human health and the
      environment in the manufacture, distribution, and use of chlorine,

                                     ii
      sodium and potassium hydroxide, and sodium hypochlorite, plus the
      distribution and use of hydrogen chloride.

Compressed Gas Association
1725 Jefferson Davis Highway, Suite 1004
Arlington, VA 22202
(703) 412-0900

      CGA is a non-profit association dedicated to the development and
      promotion of safety standards and safe practices in the industrial and
      medical gas industry, representing manufacturers, distributors,
      suppliers, and transporters of gases, cryogenic liquids, and related
      products.

Conference on Safe Transportation of Hazardous Articles, Inc.
7811 Carrleigh Parkway
Springfield, VA 22152
(703) 451-4031

      COSTHA is a non-profit association devoted to promoting regulatory
      compliance and safety in the international and domestic transportation
      of hazardous materials, representing shippers, carriers, container
      manufacturers, training companies, and associations.

The Fertilizer Institute
501 2nd Street, NE
Washington, DC 20002
(202) 675-8250

      TFI is a non-profit association of approximately 200 member
      companies manufacturing over 90% of domestically-produced
      fertilizer. Members include producers, distributors, transporters, and
      retail dealers of fertilizer materials. Many TFI members transport
      fertilizer materials regulated as hazardous materials.

Hazardous Materials Advisory Council
1101 Vermont Avenue, NW, Suite 301
Washington, DC 20005
(202) 289-4550



                                     iii
      HMAC is a non-profit association promoting safe transportation of
      hazardous materials, including implementation of a nationally-
      uniform system of regulation. It is comprised of 159 large and
      medium-sized companies engaged in shipping and transporting
      hazardous materials, associated businesses, and 22 trade associations
      representing air, highway, and rail transporters, chemical producers
      and distributors, and packaging manufacturers.

Institute of Makers of Explosives
1120 19th Street, NW
Washington, DC 20036-3605
(202) 429-9280

      IME is the safety association of the commercial explosives industry,
      with a mission to promote safety and protect employees, explosives
      users, the public, and the environment; and to encourage adoption of
      uniform regulations in the manufacture, transportation, storage,
      handling, use, and disposal of explosive materials used in blasting and
      other operations. IME member companies produce over 95% of the
      commercial explosives consumed in the United States.

International Vessel Operators Hazardous Materials Association, Inc.
1118 Bay Road
Lake George, NY 12845-4618
(518) 761-0263

      VOHMA is a non-profit international association, with a membership
      of 31 ocean common carriers, with the purpose of serving the
      domestic and international trades in matters pertaining to vessel and
      intermodal transport of hazardous cargoes.

Motor Freight Carriers Association
499 S. Capitol Street, SW
Washington, DC 20003
(202) 554-3060

      MFCA is the national association representing unionized general
      freight motor carriers, having as a mission the promotion of the
      interests of these carriers. MFCA has seven large carriers employing
      approximately 80% of the Teamsters covered by the National Master

                                     iv
      Freight Agreement. These carriers serve 3 million customers in all 50
      States, and transport 263 million tons of freight over 2.2 billion miles
      each year.

National Association of Chemical Distributors
1560 Wilson Boulevard
Arlington, VA 22209
(703) 527-6223

      The NACD is an international association of chemical distributor
      companies that purchase and take title to products from chemical
      manufacturers. NACD members distribute approximately $20 billion
      of products to an industrial customer base of approximately 750,000
      companies. NACD's over 300 members are located in every region of
      the country, and operate more than 800 chemical distribution
      locations. They typically are small businesses, although some
      member companies are national in scope.

National Tank Truck Carriers, Inc.
2200 Mill Road
Alexandria, VA 22314
(703) 838-1960

      NTTC is a non-profit association comprised of approximately 200
      motor carriers specializing in nationwide distribution of liquid and dry
      bulk commodities in cargo tank motor vehicles. Approximately 80%
      of these commodities are regulated as hazardous materials.

Nuclear Energy Institute
1776 I Street, NW
Washington, DC 20006
(202) 739-8000

      NEI is a non-profit association responsible for establishing unified
      nuclear industry policy on matters affecting the nuclear energy
      industry, including the regulatory aspects of generic operational and
      technical issues. Its 270 members include all utilities licensed to
      operate commercial nuclear power plants in the U.S., as well as plant
      designers, engineering firms, fuel fabrication facilities, and other
      organizations involved in this industry.

                                      v
Utility Solid Waste Activities Group
c/o Edison Electric Institute
701 Pennsylvania Avenue, NW
Washington, DC 20002-2696
(202) 508-5645

      USWAG is a non-profit association representing the electric and gas
      utility industries on solid waste and hazardous materials transportation
      regulatory matters. It is an informal consortium of approximately 80
      energy industry operating companies, the Edison Electric Institute, the
      National Rural Electric Cooperative Association, the American Public
      Power Association, and the American Gas Association. Members
      represent more than 85% of the total electric generating capacity in
      the U.S., and service more than 93% of the nation’s consumers of
      electricity and natural gas.




                                       vi
                           TABLE OF CONTENTS

                                                                  Page

Rule 26.1 Certificate                                             i

Table of Authorities                                              viii

I.     Statement of Interest                                      1

II.    Summary of Argument                                        3

III.   Argument

       A.    Safe hazmat transportation is essential to
             contemporary society.                                4
       B.    The national system of hazmat regulation
             is comprehensive and highly detailed.                5
       C.    Preemption is essential to maintain the uniformity
             in hazmat transport regulation that is
             critical to public safety.                           8
       D.    All affected interests benefit from a thorough
             public administrative ruling process that
             warrants Chevron deference.                          12

IV.    Prayer for Relief                                          15

6 Cir. R. 32 Certificate of Compliance                            16

Addendum:

       49 CFR Part 106, Subpart B;
       49 CFR 171.11, 171.12




                                     vii
                      TABLE OF AUTHORITIES


Cases                                                         Page

Chevron U.S.A. v. Natural Resources Defense
     Council, 467 U.S. 837 (1984)                             14

Kelly v. Washington, 302 U.S. 1 (1937)                        11

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)            11

United States v. Locke, 529 U.S. 89 (2000)                    11

United States v. Mead, No. 99-1434, 121 S.Ct. 2164
      2001 U.S. Lexis 4492 (June 18, 2001)                    14



Statutes and Regulations

Administrative Procedure Act, 5 U.S.C. 551, 553               13

DOT Inconsistency Ruling IR-25, "Maryland Heights, Missouri
Ordinance Requiring Bond for Vehicles, 54 Fed. Reg. 16308
(Apr. 21, 1989)                                               10

DOT Preemption Determination Docket No. RSPA-00-7021
    (PD-23(RF)), 66 Fed. Reg. 37260 (July 17, 2001)           10

DOT Rulemaking Docket No. HM-126F,
    "Training for the Safe Transportation
    of Hazardous Materials," 57 Fed. Reg. 20944,
    May 15, 1992; Regulatory Evaluation, p. 1                 7

Explosives & Other Dangerous Articles Act,
     18 U.S.C. 831-835 (repealed)                             5




                                    viii
Hazardous Materials Transportation Act,
     49 U.S.C. 5101 et seq.                                 passim

        Public Law 101-615 (Nov. 16, 1990)                    11

Hazardous Materials Regulations, 49 CFR 171-180             passim

International Civil Aviation Organization,
      Technical Instructions on the Transport
      of Dangerous Goods, 2001-2002 Edition (ICAO,
      999 University Street, Montreal, Quebec, Canada)        5

International Maritime Organization,
      International Maritime Dangerous Goods Code,
      2000 Edition (IMO, 4 Albert Embankment, London
      United Kingdom SE1 7SR)                                 5

Ports & Waterways Safety Act, 33 U.S.C 1221 et seq.           11

United Nations Model Regulations on the
      Transport of Dangerous Goods, 12th Revised Edition,
      2001 (United Nations Publication, New York and
      Geneva, ISBN 92-1-139074-5)                             5

United States Constitution, Article I, Sec. 8, Clause 3       10


Other

2000 Emergency Response Guidebook, developed jointly
      by Transport Canada, the U.S. Department of
      Transportation, and the Secretariat of Transport
      and Communications of Mexico                            9

"Hazardous Materials Shipments," prepared by The Office
     of Hazardous Materials Safety, Research and Special
     Programs Administration, U.S. Department of
     Transportation, Washington, DC, October 1998             4




                                      ix
"Hazardous Materials Training," General Accounting Office,
     July 2000 (GAO/RCED-00-190)                              9

"Index of Preemption Determinations/Inconsistency Rulings,"
      RSPA Office of Chief Counsel                            10

"Results of a Departmentwide Program Evaluation of the
      Hazardous Materials Transportation Programs,"
      Office of the Inspector General, 65 Fed. Reg. 19431,
      April 11, 2000                                          9




                                     x
I.        STATEMENT OF INTEREST

          This amicus curiae brief is filed in accordance with the Rule 29 of the

Federal Rules of Appellate Procedure. All parties have consented to this

filing.

          The brief is filed by the following 14 affected industry associations

concerned with the safe and efficient transportation of hazardous materials

(hazmat): (1) American Chemistry Council, (2) American Petroleum

Institute, (3) Chlorine Institute, (4) Compressed Gas Association, (5)

Conference on Safe Transportation of Hazardous Articles, (6) The Fertilizer

Institute, (7) Hazardous Materials Advisory Council, (8) Institute of Makers

of Explosives, (9) International Vessel Operators Hazardous Materials

Association, (10) Motor Freight Carriers Association, (11) National

Association of Chemical Distributors, (12) Nuclear Energy Institute, (13)

National Tank Truck Carriers, and (14) Utility Solid Waste Activities

Group.1

          The associations represent a broad range of national economic

interests dependent upon hazmat transportation. Their members include




1
  These associations’ addresses, telephone numbers, and descriptions are listed in the Attachment to the
Rule 26.1, Corporate and Financial Interest Disclosure Form.



                                                    1
businesses regulated under the Hazardous Materials Transportation Act

(HMTA, 49 U.S. Code 5101, et seq.) and the Department of Transportation

(DOT) regulations issued thereunder (49 CFR Parts 171-180). Members are

engaged in both domestic and international shipment and carriage of these

materials in all four modes of transportation -- rail, highway, air, and water.

      In order for hazmat to be transported in a manner protective of life,

property, and the environment, each company represented by these

associations has an obligation to comply with DOT’s nationally uniform

regulations. Substantive nonfederal variations on a nationally uniform

regulatory system disrupt members’ operations, and render compliance

obligations significantly more difficult. Because of this impact, and the need

to resolve safety regulatory ambiguities quickly, these associations are

dependent upon DOT’s specialized administrative process to determine the

validity of nonfederal variations.

      If the issue, as presented on page 2 of the Federal Appellee's brief, is

decided by this court so as to nullify DOT determinations with respect to

State law, major public safety consequences will result. The amici curiae

associations, therefore, wish to provide the Court with a summary of this

regulatory system, as a background against which to consider this case.




                                       2
II.   SUMMARY OF ARGUMENT

      Hazardous materials are essential to the operation of a modern

society. Effective regulation of their transport is comprehensive and very

detailed. Safety depends upon consistent standards consistently applied, and

the concomitant training of employees charged with responsibilities under

these regulations. Hazardous materials cross all borders, both national and

State. Comprehensive nationally (and internationally) harmonized

requirements help to avoid confusion, errors, delays, traffic diversion and

disruption, and have resulted in an excellent safety record. Congress

recognized the value of regulatory uniformity by adding preemption to the

HMTA in 1975, and by strengthening the concept in 1990.

      Not every nonfederal restriction affecting hazmat transportation is

preempted, however. Determining preemption is a task that must weigh the

impact of a nonfederal requirement on the nationally uniform safety

program, with the concerns that prompted the nonfederal requirement. All

interests benefit from an administrative process explicitly authorized by

Congress under the Commerce Clause, through which the need for

preemption to maintain uniformity essential to safety can be evaluated.

DOT’s rulings are part of the agency’s notice-and-comment interpretive

rulemaking process, and warrant Chevron deference.



                                      3
III.    ARGUMENT

        A.      Safe hazmat transportation and delivery is essential to
                contemporary society.

        DOT’s hazmat regulations cover a very broad range of materials, from

small consumer products and radiopharmaceuticals, to truck and rail car

quantities of materials essential to energy and manufacturing. The

population of regulated materials is reflected in the broad interests of the 14

associations filing this brief.

        These associations include manufacturers, distributors, and

transportation carriers of chemical products found in all aspects of

contemporary society. Such materials are integral to our energy,

construction, manufacturing, and healthcare systems, and it is critical that

they move safely across all borders by all modes of transportation.

        It is estimated that each day nearly 10 million tons of hazmat are

moved in commerce, in more than 1.2 million movements in all modes of

transportation2. Despite this substantial volume, hazardous materials are

moved with a very high degree of safety.




2
  "Hazardous Materials Shipments," Research & Special Programs Admin., DOT, Washington, DC, Oct.
1998.



                                                4
      B.    The national system of hazmat regulation is comprehensive
            and highly detailed.

      DOT and its predecessor transportation agencies established a

nationally uniform system of extensive technical hazmat regulatory controls.

The U.S. system, which commenced under the Explosives & Other

Dangerous Articles Act of 1908, 18 U.S.C. 831-834 (repealed), also forms

the basis for the international hazmat regulatory system promulgated by the

United Nations Committee of Experts on the Transport of Dangerous Goods.

The U.S. has been among the leaders of the UN Committee, and carries out

its global harmonization work in accordance with Section 5120 of the

HMTA.

      The UN Model Regulations are implemented under treaty by

multinational bodies, including the International Civil Aviation Organization

and the International Maritime Organization. The U.S. is a signatory to

these treaties. Domestic compliance with the harmonized international

codes is authorized under 49 CFR 171.11-12 (Addendum).

      Hazmat transportation codes have five primary elements: (1) hazard

classification, (2) effective packaging, (3) hazard communication, (4)

handling requirements, and (5) hazmat employee training. These elements

are very detailed and must be incorporated into each company’s hazmat

compliance program. Hazmat shipments must be prepared to cross all

                                      5
jurisdictional boundaries, and it is essential that all facets of their preparation

be nationally (and, to the extent possible, internationally) uniform.

      DOT defines 9 classes of hazard, in most instances by detailed

scientific testing criteria. Classes are further segregated into divisions and

Packing Groups (49 CFR 173.115-145). Each hazmat must be assigned a

proper shipping name, UN identification number, class, and division or

Packing Group.

      Most hazmat must be shipped in DOT-prescribed specification or UN

performance-standard packagings (49 CFR Parts 173 and 178). This

packaging is defined in considerable detail, along with a required capability

to withstand initial and periodic tests, as certified by the manufacturer. A

hazmat shipper only may use DOT-authorized packaging (49 CFR 173.22-

27). Hazards are communicated in several ways to employees, emergency

response personnel, and the public. The proper shipping description and UN

identification number must be marked on each package (49 CFR 172.300-

338). Color-coded labels must be affixed (49 CFR 172.400-450). The

shipper must prepare certified shipping papers, describing the material in

proper sequence (49 CFR 172.200-205), with an emergency telephone

number, and emergency response information (49 CFR 172.600-606). The




                                         6
shipper must determine and offer required vehicle placards (49 CFR

172.500-560), often including the UN number of the material.

         In addition to shippers and packaging manufacturers, hazmat

transporters are regulated in detail under 49 CFR Parts 174-177. Carrier

personnel must inspect hazmat before acceptance. Some materials are

incompatible with others, and detailed segregation tables are prescribed for

each mode (e.g., 49 CFR 177.848). Applicable vehicle placards must be

maintained, and the operator of the equipment must be advised of the nature

and location of the materials. Shipping papers must be accessible to the

operator and emergency responders. Uniform national transporter

regulations prescribe when and how to deliver and unload hazardous

materials at their destination, as well as during storage incidental to

transportation (see, for example, 49 Part 177 Subpart B). Carriers must

report incidents, including immediate reporting in some instances (49 CFR

171.15-16), and these reports are used by government and industry to

improve transport safety.

         Each person having responsibility under the regulations must receive

periodic hazmat employee training (49 CFR 172.700-704). When adopting

training rules, DOT estimated that 2.2 million people required such training3.


3
    Docket No. HM-126F, 57 Fed. Reg. 20944, May 15, 1992, Regulatory Evaluation, p. 1.


                                                   7
Employees must be taught, tested, and certified on their general awareness

of the regulatory system, as well as function-specific and safety training to

avoid accidents.

      DOT’s nationally uniform hazmat regulations, harmonized with

international rules, fill approximately 950 pages of the Code of Federal

Regulations. The regulations reflect the accumulation of technical

regulatory expertise in DOT and its predecessor agencies over almost a

century. The regulations are comprehensive, technical, interwoven, and very

detailed. Each modification to these regulations must be considered

carefully in notice-and-comment rulemaking. Substantive State or local

variations on these unified requirements can adversely affect the ability of

shippers and carriers to carry out their vital safety responsibilities under the

national regulations.


      C.     Preemption is essential to maintain the uniformity in
             hazmat transport regulation that is critical to public
             safety.

      As noted above, millions of tons of regulated materials move via all

modes of transportation across all jurisdictions to sustain a modern society.

This utilizes millions of packages and thousands of freight containers,

vehicles, rail cars, vessels, and aircraft. Hazmat employees must understand




                                        8
the regulatory system in preparing the shipment, assuring the packaging is

appropriate, communicating hazards correctly, carrying it safely, and

delivering it without undue delay to its destination.

          In addition to industry employees, this regulatory system must

communicate to and be understood by approximately 2 million emergency

response personnel in all jurisdictions.4 In large response situations or those

involving unusual products, responders from numerous jurisdictions often

become involved, and their safety too depends upon a uniform regulatory

system.

          Each of the hazmat communications described above in this brief

correlates with the 2000 Emergency Response Guidebook, prepared jointly

by Canadian, U.S., and Mexican transport agencies, and distributed by DOT

for carriage in each of the Nation's emergency response and police vehicles,

explaining actions to take in the event of a hazmat incident.

          DOT has noted that "human error continues to be the single greatest

contributing factor in hazardous materials incidents"5 and effective training

on the detailed requirements of the DOT regulations is the best means to

address that concern.


4
    "Hazardous Materials Training," GAO Report July 2000 (GAO/RCED-00-190).
5
  "Results of a Departmentwide Program Evaluation of the Hazardous Materials Transportation
Programs," Office of the DOT Inspector General, 65 Fed. Reg. 19431; April 11, 2000.


                                                  9
        Actual experience since 1976 with the advent of DOT inconsistency

rulings, and since 1990 under preemption determinations, has included

review of nonfederal requirements deemed unsafe on each of the regulatory

subjects listed in 49 U.S.C. 5125(b)(1)(A)-(E), as well as time-of-day or

curfew limitations, routing restrictions, bans, escort requirements, and the

like. Many involved actions of one jurisdiction which had adverse and

unconsidered effects on neighboring jurisdictions.6 In reviewing the benefits

of a single nationally-uniform system, it is important to keep in mind --

        the existence in the U.S. of more than 30,000 local jurisdictions, each
        having the potential to impose such requirements, demonstrates the
        havoc which would be created if even a small percentage of them
        were to impose such requirements (with their inevitable differences).
        It would be extremely difficult for carriers to learn about, let alone
        comply with, such local requirements.7

        Under the Commerce Clause of the Constitution, Congress granted

DOT explicit authority to regulate all safety aspects of hazmat transportation

(49 U.S.C. 5103(b)). Through notice-and-comment rulemaking DOT

implemented this authority (49 CFR Part 106, Subpart B; Addendum).

        With the authority to regulate, in 1975 Congress established the power

to preempt. Amendments in 1990 formalized and strengthened this concept.

6
  See RSPA Office of the Chief Counsel, "Index of Preemption determinations/Inconsistency Rulings," on
the RSPA web site at http://rspa-atty.dot.gov.
7
  Docket No. RSPA-00-7021 (PD-23(RF)), "Morrisville, PA Requirements for Transportation of
'Dangerous Waste,'" 66 Fed. Reg. 37260, 37266; July 17, 2001, citing inconsistency ruling IR-25, 54 Fed.
Reg. 16308, 16311, Apr. 21, 1989.


                                                   10
A uniform federal regulatory scheme is critical in the field of hazardous

materials transportation regulation, much as the Supreme Court found in

ocean carriage under the Ports & Waterways Safety Act (33 U.S.C. 1221-

1227), addressed in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1977) and

United States v. Locke, 529 U.S. 89 (2000). In Ray at 166, citing Kelly v.

Washington, 302 U.S. 1 (1937), the Court noted that the State enactment

under consideration --

             has provisions which may be deemed to fall within the class of
             regulations which Congress alone can provide. For example,
             Congress may establish standards and designs for the structure
             and equipment of vessels, and may prescribe rules for their
             operation, which could not properly be left to the diverse action
             of the States. The State of Washington might prescribe
             standards, designs, equipment and rules of one sort, Oregon
             another, California another, and so on. Kelly at 14-15.

      Congress has recognized the imperative of national (and international)

consistency of hazmat transportation regulation in establishing a centralized

regulatory body having an administrative preemption determination process

to ensure regulatory compatibility, and to preserve the effectiveness of the

national safety system. A decay in preemption authority could lead to

nonfederal rules that vary from the DOT regulations, and "confound. . .

attempt[s] to comply with multiple and conflicting registration, permitting,

notification and other regulatory requirements." P.L. 101-615, Sec. 2, 104

Stat. 3244 (1990).

                                      11
      D.     All affected interests benefit from a thorough public
             administrative ruling process that warrants Chevron
             deference.

      Section 5125 prescribes procedures to carry out DOT’s authority to

make preemption determinations, and provides an opportunity for judicial

review for a person aggrieved by those decisions. Through notice-and-

comment rulemaking, DOT adopted more detailed procedures for making

such determinations (49 CFR Part 107, Subpart C).

      DOT preemption determinations are accompanied by references to

past decisions, explaining them and maintaining the consistency of the

agency’s position over time. Since 1994 these decisions have been put on

the agency’s Internet web site as well as in the Federal Register, thereby

providing guidance not only to the applicant for the ruling and the

nonfederal government agency involved, but to other interested parties and

regulatory agencies. Although the determination may have been prompted

by a particular nonfederal restriction, DOT’s announcement of principles in

a ruling has broad significance and future effect for all regulated parties and

nonfederal agencies.

      Section 107.201 of title 49 CFR says, "Any person, including a State,

political subdivision, or Indian tribe, directly affected by any requirement of

a State, political subdivision, or Indian tribe, may apply for a determination

                                       12
as to whether that requirement is preempted under 49 U.S.C. 5125, or

regulations issued thereunder." While specific nonfederal provisions may be

brought to DOT’s attention by another nonfederal government (such as an

affected neighboring jurisdiction) or by a private entity, the preemption

determination process has virtually no attributes of a lawsuit. Rather, the

process is substantively equivalent to notice-and-comment rulemaking under

49 U.S.C. 5103, conducted in accordance with the Administrative Procedure

Act. Indeed, 5 U.S.C. 551 says "'rule' means the whole or a part of an

agency statement of general or particular applicability and future effect

designed to implement, interpret, or prescribe law or policy. . . ." 8

        DOT's preemption determination procedures illustrate that such

determinations are rulemaking. After receiving an application for a

preemption determination, DOT always publishes a notice in the Federal

Register, advising the public about the commencement of the process and

summarizing the law, the position expressed by the applicant, the particular




8
   For convenience, DOT's hazmat rulemaking procedures in 49 CFR Part 106, Subpart B, are reproduced
in the Addendum.


                                                 13
sections of the nonfederal law in question, and the opportunity to file public

comments. This notice and period of public comment is followed by a final

ruling, like the rulemaking conclusion described in 49 CFR 106.29.

Furthermore, rulings are subject to requests for correction or reconsideration

by any aggrieved person under 49 CFR 107.211, as are final rules under 49

CFR 106.35-38. The opportunity to seek agency reconsideration is not

limited to those who participated earlier in the administrative proceeding.

      Like rulemaking under 49 CFR Part 106, and consistent with the

decisions of the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 and United States v. Mead Corporation,

No. 99-1434, 121 S.Ct. 2164, 2001 U.S. Lexis 4492 (June 18, 2001), DOT

preemption determinations are notice-and-comment public processes that

should be binding in the courts unless procedurally defective, arbitrary or

capricious in substance, or manifestly contrary to statute.

      Nonfederal variations on the nationally uniform system of detailed

requirements can have disastrous safety consequences. The public benefits

from an administrative process that utilizes the expertise of the agency

charged with maintaining hazmat safety in interpreting its own uniform

standards, and that responds promptly to the potential for an adverse safety

impact from a nonfederal restriction.



                                        14
IV.   PRAYER FOR RELIEF

      WHEREFORE, the amici curiae associations respectfully urge this

court to accept the position of the United States, to affirm the decision of the

United States District Court for the Middle District of Tennessee, and to

leave the effectiveness of the DOT administrative ruling process intact.



                                 Respectfully submitted,

                                 Amici Curiae Associations


                                 By ___________________
                                 Lawrence W. Bierlein
                                 McCarthy, Sweeney &
                                        Harkaway, P.C.
                                 Suite 600
                                 2175 K Street, NW
                                 Washington, DC 20037
                                 (202) 393-5710

       For the American Chemistry Council, American Petroleum Institute,
      Chlorine Institute, Compressed Gas Association, Conference on Safe
          Transportation of Hazardous Articles, The Fertilizer Institute,
          Hazardous Materials Advisory Council, Institute of Makers of
         Explosives, International Vessel Operators Hazardous Materials
      Association, Motor Freight Carriers Association, National Association
        of Chemical Distributors, National Tank Truck Carriers, Nuclear
              Energy Institute, Utility Solid Waste Activities Group



Dated: July 23, 2001

                                       15
         CIRCUIT RULE 32 CERTIFICATE OF COMPLIANCE

      Pursuant to Sixth Circuit Rule 32, I hereby certify that this amicus

curiae brief is proportionately spaced, is double-spaced, has a typeface of

Times New Roman, has a point size of 14 or greater, and contains 4,470

words.


                                             __________________
                                             Lawrence W. Bierlein

July 23, 2001




                                      16
CERTIFICATE OF SERVICE



      I hereby certify that on July 23, 2001, I served true and accurate

copies of the foregoing Brief of Amici Curiae, by hand or overnight

delivery, upon the following:


      Mark B. Stern
      Michael S. Raab
      U.S. Department of Justice
      Civil Division, Appellate Staff
      Patrick Henry Building
      601 D Street, NW; Room 9142
      Washington, DC 20004

      Grant C. Glassford
      Stokes, Bartholomew, Evans & Petree
      424 Church Street; Suite 2800
      Nashville, TN 37219-2386

      Barry Turner
      Deputy Attorney General
      Environmental Division
      Cordell Hull Building, Ground Floor
      425 Fifth Avenue North
      Nashville, TN 37243-2576



                                ____________________
                                Lawrence W. Bierlein
                                2175 K Street, NW, Suite 600
                                Washington, DC 20037
                                (202) 393-5710

                                      17

				
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