

September 27, 1995
                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 94-2095

      NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                      TOWN OF PLAISTOW,

                     Defendant, Appellee.

                                         

                         ERRATA SHEET

The opinion  of  this court,  issued  on  September 20,  1995,  is
amended as follows:

On page 12, line 8 of first full paragraph,  replace "making" with
"make".

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 94-2095

      NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                      TOWN OF PLAISTOW,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                                                    

                                         

                            Before

                      Cyr, Circuit Judge,                                                    

                Aldrich, Senior Circuit Judge,                                                         

                  and Boudin, Circuit Judge.                                                       

                                         

Mark I. Zarrow with  whom Lian, Zarrow, Eynon &amp; Shea was on briefs                                                                
for appellants.
Melinda  S.  Gehris  with  whom  Marjorie  E.  Lanier  and Devine,                                                                              
Millimet &amp; Branch, P.A. were on brief for appellee.                               

                                         

                      September 20, 1995
                                         

     BOUDIN, Circuit Judge.  This appeal presents a challenge                                      

to  a town zoning ordinance  and cease and  desist order that

limit  night-time  access  to   and  from  a  local  trucking

terminal.   Appellants are  the terminal owner,  the terminal

operator,  various interstate  motor carriers  that regularly

use  the  terminal,  and   an  association  representing  New

Hampshire truckers.   Appellee is the  Town of Plaistow,  New

Hampshire, ("the town"),  which adopted  the restrictions  at

issue.  The terminal is located on a  site partly in Plaistow

and partly in Newton, New Hampshire.

     The trucking terminal began operation in September 1988.

It serves  as a regional  hub for various  trucking companies

serving the New England  area.  Line haulers from  around the

country drop off freight  to be delivered in New  England and

pick up  freight whose destination lies  outside New England.

Atlas  Motor Express,  Inc.  ("Atlas"), the  operator of  the

terminal, maintains a fleet of trucks and provides short haul

service within the New  England area.  The terminal  operates

24 hours a day, loading and unloading trailers.  

     Most trucks that use  the Plaistow/Newton terminal reach

it from Interstate  495, a federal highway  that runs through

Massachusetts  and  near  the  New Hampshire  border.    From

Interstate 495, trucks travel  about 5 miles on Route  125 to

Kingston  Road (both  are New  Hampshire state  highways) and

then about half a mile to Garland Way, the terminal's private

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access  road.   Trucks  must travel  roughly 2000  feet along

Garland  Way, the first  portion of which  passes through the

Plaistow residential zone.  The terminal's facilities are all

located  in  Newton  in   an  industrial  zone  bordering  on

Plaistow.

     Shortly  after the  terminal opened,  numerous residents

from  Plaistow who live along  Kingston Road near Garland Way

complained  about late night  truck traffic  to and  from the

terminal.   The town subsequently  served a cease  and desist

order on Atlas and  the terminal owner, alleging  a violation

of  a  Town  of  Plaistow  zoning  ordinance  that  reads  in

pertinent part:

     Any  uses that  may  be obnoxious  or injurious  by
     reason  of the  production  or emission  of  odors,
     dust, smoke, refuse matter, fumes, noise, vibration
     or  other similar conditions, or that are dangerous
     to the comfort, peace, enjoyment,  health or safety
     of  the community,  whether it  contributes  to its
     disturbance  or  annoyances are  prohibited  in all
     districts.

The  cease and  desist  order stated  that "heavy  commercial

trucking  arriving  at and  leaving  [the]  site is  emitting

odors, smoke,  fumes, noise and vibration  around the clock."

Despite  the  order, late  night  traffic  to  and  from  the

terminal continued.    

     The  town  then  brought  an  action  in  New  Hampshire

Superior Court seeking an injunction against the terminal and

an order imposing  reasonable hours of operation.   The state

court entered a preliminary  injunction on February 28, 1989,

                             -3-                                         -3-

placing  a  curfew  on  night-time  access to  and  from  the

terminal.   After an evidentiary hearing, the court entered a

permanent injunction on July 7, 1989, limiting the terminal's

night-time traffic as follows:

     6:00 a.m. to 9:00 p.m.:   No restrictions.
     9:00 p.m. to 11:00 p.m.:  Two  trucks   may  arrive   or
     depart.
     11:00 p.m. to 5:00 a.m.:  No   trucks  may   arrive   or
     depart.
     5:00 a.m. to 6:00 a.m.:   Three  trucks  may  arrive  or
     depart.

The New Hampshire Supreme Court denied the terminal's request

for appellate review.

    On  March  26,  1993,  appellants filed  a  federal  suit

against  the  town,  alleging  that the  enforcement  of  the

Plaistow zoning  ordinance was  preempted by  various federal

statutes and by the Commerce Clause.   U.S. Const., Art. I,  

8.    On October  25, 1993,  the  district court  granted the

town's motion to dismiss,  for failure to state a  claim, the

appellants' claim  that the  injunction was preempted  by the

Noise Control  Act of  1972, 42  U.S.C.   4901  et seq.   New                                                                         

Hampshire Motor Transport Ass'n  v. Town of Plaistow,  836 F.                                                                

Supp. 59 (D.N.H. 1993).

     A  three-day  bench  trial   followed  in  August  1994.

Thereafter,  the  district court  ruled  that  the injunction

limiting night-time access to  and from the trucking terminal

was not  preempted by two  other federal statutes  invoked by

the  appellants--the Surface Transportation Assistance Act of

                             -4-                                         -4-

1982,  49 U.S.C.   31101 et seq., and the Hazardous Materials                                            

Transportation Uniform Safety  Act of 1990, 49 U.S.C.    5101

et  seq.--and did  not  violate the  Commerce  Clause.   This                    

appeal  followed.    We   agree  with  the  district  court's

determinations and affirm.

     1.  The town  urges that the district court  judgment be

upheld,  without reaching the merits,  on the ground that the

state court enforcement action  is res judicata as to  all of                                                           

the appellants.  The reach of a prior state court judgment is

determined  by  state  law.    Migra v.  Warren  City  School                                                                         

District Board of Education,  465 U.S. 75 (1984).   Under New                                       

Hampshire  law, we  think that  the prior  judgment does  not

foreclose the  present suit, at least by  appellants who were

not parties to the state court action.

     The  only defendants in the state  court action were the

terminal owner and  its operator.   Non-parties can be  bound

where they are in privity  with parties to prior  litigation,

and the privity concept is fairly elastic under New Hampshire

law, as elsewhere.   But normally something more  is required

for  privity between  the  prior and  present litigants  than

merely a common interest  in the outcome.  Daigle  v. City of                                                                         

Portsmouth, 534 A.2d 689, 694 (N.H. 1987).  See also Gonzalez                                                                         

v. Banco Cent.  Corp., 27  F.3d 751, 756-63  (1st Cir.  1994)                                 

(interpreting federal law).  

                             -5-                                         -5-

     Here,  there  is   no  indication  that  the   appellant

interstate carriers  even knew of, let  alone controlled, the

prior litigation.  Although the town points out that the same

law  firm represents  all of  the appellants,  the interstate

carriers are  not claimed to  have controlled or  managed the

original state court litigation from behind the scenes.   Cf.                                                                         

Montana  v. United States, 440  U.S. 147, 154 (1979); General                                                                         

Foods  v. Massachusetts Dept.  of Pub. Health,  648 F.2d 784,                                                         

789  (1st Cir. 1981).   It is also  plain that the interstate

carriers  who use the terminal on a regular basis have a real

and distinct interest in nullifying the town's restriction.

     Finally, we note that with the exception of the Commerce

Clause  issue,   the  federal  issues  were   apparently  not

litigated in  the state  court.   This would  not necessarily

defeat  a valid claim of res  judicata, see, e.g., Stuhlreyer                                                                         

v.  Armco, Inc.,  12 F.3d  75,  77 (6th  Cir.  1993), but  it                           

encourages  us to resolve any doubts in favor of allowing the

carriers  to sue.   Since the merits  must be reached  on the

appeals by the interstate carriers, we  need not consider the

stronger claim of foreclosure  against the owner and operator

of the terminal. 

     2.   Turning to the  merits, our review  of the district

court's  preemption analyses is  plenary, Ellenwood  v. Exxon                                                                         

Shipping  Co., 984  F.2d  1270, 1273  n.4  (1st Cir.),  cert.                                                                         

denied, 113 S.  Ct. 2987 (1993), and we address  in turn each                  

                             -6-                                         -6-

of  the statutes relied on by appellants as a separate ground

for preemption.    Among these,  the  most important  is  the

Surface Transportation  Assistance Act of  1982 ("the Surface

Act"),  as amended  by the  Tandem Truck  Safety Act  of 1984

("the Tandem Act"), now codified at 49 U.S.C.   31111 et seq.                                                                         

These statutes together establish uniform, national standards

for the maximum size  and weight of trucks and  trailers used

in interstate commerce.

     As  amended, the  Surface  Act forbids  the states  from

enacting or enforcing laws  that prohibit trucks and trailers

of approved length and weight from travelling on the national

network, i.e.,  the system  of interstate highways  and other                         

federally-funded primary routes  designated by the  Secretary

of  Transportation.  49 U.S.C.   31111(e); 23 C.F.R.   658.5.

The Surface  Act also prohibits states  from denying approved

trucks and trailers "reasonable access" between  the national

network and "terminals."  49 U.S.C.   31114.  This provision,

which is at the heart of this case, reads as follows:

       31114.  Access to the Interstate System

     (a) Prohibition on denying access.  A State may not
     enact  or enforce  a  law denying  to a  commercial
     motor  vehicle   subject  to  this   subchapter  or
     subchapter  I  of  this  chapter  reasonable access
     between--

          (1)   the  Dwight  D.   Eisenhower  System  of
          Interstate  and  Defense  Highways  (except  a
          segment  exempted  under  section 31111(f)  or
          31113(e)  of this title)  and other qualifying
          Federal-aid Primary System highways designated

                             -7-                                         -7-

          by  the Secretary of Transportation [i.e., the                                                               
          national network]; and 

          (2)  terminals,  facilities  for  food,  fuel,
          repairs, and  rest, and points  of loading and
          unloading for household  good carriers,  motor
          carriers  of passengers, or any truck tractor-
          semitrailer    combination   in    which   the
          semitrailer has a length of not more than 28.5
          feet and that generally  operates as part of a
          vehicle   combination  described   in  section
          31111(c) of this title.

     (b)  Exception.--This section  does  not prevent  a
     State or local government from  imposing reasonable
     restrictions,  based on safety considerations, on a
     truck tractor-semitrailer combination in  which the
     semitrailer has a length of not more than 28.5 feet
     and that  generally operates  as part of  a vehicle
     combination described  in section 31111(c)  of this
     title. 

     The district court  ruled that the local  curfew did not

deny  reasonable access  to trucks wishing  to use  the Atlas

terminal.  The terminal is located between five and six miles

from Interstate  495, the nearest juncture  with the national

network.    (Route 125  in  Plaistow  is not  a  part of  the

national  network.    See  23  C.F.R.     658,  app.  A  (New                                     

Hampshire.))   Given this distance, and Plaistow's legitimate

interest in curbing noise,  odor and dust in  its residential

areas,  the   district  court   found  that   the  night-time

restrictions were a reasonable compromise. 

     On  this  appeal,  the   truckers  first  say  that  the

"reasonable  access" provision  limits state  restrictions to

those  based on safety.   This is a  straightforward issue of

statutory construction which,  absent the "exception"  clause

                             -8-                                         -8-

quoted above, would easily  be resolved in the  town's favor.

After  all, the main  provision requires "reasonable access."

49 U.S.C.   31114(a).   "Reasonable" is a comprehensive term,

United States  v. Rodriguez-Morales,  929 F.2d 780,  785 (1st                                               

Cir. 1991), cert.  denied, 502 U.S. 1030  (1992), and nothing                                     

in language or common-sense  makes reasonableness turn solely

on safety considerations.  

     Context  reenforces  this view.   The  "[p]rohibition on

denying access,"  49 U.S.C.    31114, extends far  beyond the

operation of  interstate highways or  federally funded  state

roads  that are  designated  parts of  the national  network.

Local  roads and  other facilities  are also  covered by  the

provision to the extent needed to assure reasonable access to

the national network.  23 C.F.R.    658.19.  The guarantee of

reasonable access  thus has a formidable  reach, extending to

local regulatory  measures that  operate miles away  from any

interstate or national network highway.

     Many   of  these  measures  are  designed  to  safeguard

interests  other  than  safety.   Consider,  for  example,  a

restriction  that routed heavy traffic  on a detour  of a few

miles to assure quiet in a hospital zone.  It is difficult to

conceive that  Congress meant to exclude such  a concern from

the   calculus  used  to   determine  whether  a  restriction

infringes  on  "reasonable  access"  to  the  federal highway

                             -9-                                         -9-

system.  In this instance, language and policy are  as one in

opposing such a restrictive reading.

     The  sole  argument  for  limiting  the  restrictions to

safety  matters  stems  from  the  exception  provision,  now

codified as 49 U.S.C.   31114(b).   As a matter of  language,

this  provision  permits, but  does  not  compel, a  negative

inference that  the only restrictions allowed  under the main

provision are safety  restrictions.  Because subsections  (a)

and  (b) do not  fit neatly together,  it is  difficult to be

absolutely  certain of  Congress'  intent.   But for  several

reasons we reject the  suggestion that subsection (b) narrows

by inference the concept of reasonableness in subsection (a).

     First, the  negative inference is flawed as  a matter of

language.   By its terms  the safety exception  in subsection

(b) is  concerned not  with safety limitations  generally but

with restrictions on truck  tractor-semitrailer combinations.

If  the  exception  were  taken to  narrow  the  restrictions

permitted  under the main "reasonable access" provision, then

arguably  the  only  restrictions  allowed  would  be  safety                               

restrictions   directed   to   truck    tractor   semitrailer

combinations, an extremely odd result.

     Second,  the  original 1982  Surface  Act  contained the

reasonable  access language with  no exception  provision; so                                                

nothing in 1982 suggested that state access restrictions were

                             -10-                                         -10-

limited  to those based on safety.1   If Congress in 1984 had

intended  to alter the  reasonable access provision  so as to

limit the states to safety restrictions, one might reasonably

expect  some indication  of  this  purpose  at least  in  the

legislative history.   Cf. Sierra Club v.  Secretary of Army,                                                                        

820  F.2d 513,  522 (1st  Cir. 1987).   Congress'  failure to

indicate any such purpose argues against appellants' reading.

Compare S. Rep. No. 505, 98th Cong., 2d Sess. 1-3 (1984).                   

     The  truth  is  that  the  legislative  history  of  the

exception  provision  is meager.   See  New York  State Motor                                                                         

Truck Ass'n  v. City  of New  York, 654  F. Supp.  1521, 1533                                              

(S.D.  N.Y. 1987), aff'd 833 F.2d 430 (2d Cir. 1987) (quoting                                    

two rather uninformative sentences).   Among other changes in

1984,  Congress expanded  somewhat  the  protected radius  in

which  truck tractor-semi-trailers  could operate  to include

their  points of  loading and  unloading.   Since this  was a

concern to state  officials, S. Rep. No.  505 at 1-3; 654  F.

Supp.  at 1531,  Congress evidently  balanced this  change by

adding subsection (b) as a counter-weight.

                                                    

     1Section 412  of  the Surface  Act,  96 Stat.  at  2160,
provided:

     No  State  may enact  or  enforce  any law  denying
     reasonable  access  to  commercial  motor  vehicles
     subject to this  title between  (1) the  Interstate
     and Defense Highway System and any other qualifying
     Federal-aid Primary System  highways as  designated
     by the Secretary, and (2) terminals, facilities for
     food,  fuel,  repairs,  and  rest,  and  points  of
     loading and unloading for household goods carriers.

                             -11-                                         -11-

     We  appreciate  that,  as  appellants point  out,  three

district  courts  have  made  references  to the  "reasonable

access"  provision as one directed to safety.2  But the state

restrictions with  which  those  cases  were  concerned  were

wholly  different  from  and  far  more  intrusive  than  the

Plaistow ordinance  and order, including  blanket limitations

on the distance vehicles could freely travel off the national

network and burdensome prior  approval provisions for the use

of local roads.  See 681 F. Supp. at 339-40; 654 F.  Supp. at                                

1529-30;  647 F.  Supp. at  1484-88.   Safety is  obviously a

paramount reason for limiting access; but, in our view, it is

not the only reason permitted by Congress.

     Having  concluded  that  the  district  court  correctly

construed  the Surface Act, we have no occasion to review the

court's  further, fact-specific  decision  that the  Plaistow

restrictions in this  case did permit reasonable access.  The

appellants scarcely bother to argue the point; in a couple of

sentences,   they  simply  assert  that  the  district  court

findings show that a  truck terminal must operate 24  hours a

day.   The opinion does not make such a finding, and we think

appellants' cursory argument waives the factual issue in this

                                                    

     2A.B.F. Freight  System, Inc.  v. Suthard, 681  F. Supp.                                                          
334, 341 (E.D. Va. 1988); New  York State Motor Truck, 654 F.                                                                 
Supp. at 1539; Consolidated  Freightways Corp. of Delaware v.                                                                      
Larson,  647 F. Supp. 1479, 1483-84 (M.D. Pa. 1986), rev'd on                                                                         
other grounds, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484                                                                    
U.S. 1032 (1988).

                             -12-                                         -12-

case.   United States v. Zannino,  895 F.2d 1, 17 (1st Cir.),                                            

cert. denied, 494 U.S. 1082 (1990).                        

     3.  The  truckers next contend that  the curfew violates

the  Hazardous Materials Transportation Uniform Safety Act of

1990 ("the  Materials Act"),  49 U.S.C.    5101 et seq.   The                                                                   

Materials  Act establishes  uniform, national  rules for  the

transportation of hazardous materials  and, together with its

accompanying regulations, creates an elaborate scheme for the

designation, handling,  packaging, labeling, and  shipping of

hazardous materials.  Like the Surface Act, the Materials Act

contains   an  express  preemption  clause,  which  reads  in

relevant part as follows:

       5125.  Preemption

          (a)    General.--Except    as   provided    in
     subsections (b),  (c), and (e) of  this section and
     unless  authorized  by another  law  of  the United
     States,   a  requirement  of   a  State,  political
     subdivision   of  a  State,   or  Indian  tribe  is
     preempted 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.

     The truckers contend that the curfew is preempted by the

second provision of the general preemption clause, because it

interferes with "the  federal speedy-transport mandate," N.H.                                                                         

                             -13-                                         -13-

Motor Transport Ass'n  v. Flynn,  751 F.2d 43,  51 (1st  Cir.                                           

1984), codified at 49  C.F.R.   177.853(a): " [a]ll shipments

of   hazardous  materials   shall   be  transported   without

unnecessary   delay,   from  and   including   the  time   of

commencement  of the  loading of  the cargo  until its  final

discharge  at destination."  Much of  the Plaistow freight is

classified  as  hazardous.     Because  the  Plaistow  curfew

necessarily  entails  a delay  for  hazardous  materials, the

truckers say that it violates the Materials Act.

     By  using  the   word  "unnecessary,"  the   regulations

indicate  that some delays are necessary and acceptable.  See                                                                         

National Tank Truck Carriers,  Inc. v. City of New  York, 677                                                                    

F.2d  270, 275  (2d Cir. 1982)  (construing prior  version of

statute).  Once again, appellants  make little effort to show

that on  the present record the  specific curfew requirements

imposed by Plaistow  create any  risk to the  drivers of  the

trucks,  other   highway  traffic,  Plaistow   or  any  other

community.   The substance of the appellants' brief on appeal

is  that any regime that  creates a possibility  of a 12-hour

delay   in   delivery   ipso   facto   automatically  imposes                                                

"unnecessary" delay.  

     A  general, state-wide  restriction  is  obviously  more

vulnerable  to attack both because its impact is likely to be

much  greater  and because  it  treats  alike all  situations

regardless  of need or danger.   See   A.B.F. Freight System,                                                                        

                             -14-                                         -14-

681  F. Supp.  at 345.   Quite  possibly a  local restriction

might  also unjustifiably  interfere with  hazardous shipment

movements,  either  standing  alone  or  in  combination with

restrictions in other  communities.  But  the burden is  upon

those  who attack  the restriction  is show  the impact.   At

least on  this appeal, appellants  have not even  attempted a

serious fact-specific showing.

     This case  is quite unlike National  Tank Truck Carrier,                                                                         

Inc.  v. Burke, 698  F.2d 559  (1st Cir.  1983), in  which we                          

affirmed a  decision striking down  Rhode Island's state-wide

curfew  and  permitting  procedure  for  transporting certain

liquid  gas on  any Rhode  Island roadway.  By contrast,  the

curfew at issue  here involves one  terminal, is tailored  to

specific local conditions, and imposes no time restriction on

the delivery of hazardous materials in New Hampshire  so long

as   the  Plaistow  terminal  is  not  used  as  a  point  of

interchange.

     4.   The  truckers also  challenge the  district court's

dismissal  of their claim under the Noise Control Act of 1972

("the Noise Act"), 42 U.S.C.    4901 et seq.  863 F. Supp. at                                                        

67-68.  That  statute created a federal  regulatory scheme to

set  noise  emission levels  for  motor  carriers engaged  in

interstate commerce.  Because the  curfew was imposed in part

to eliminate  the noise caused  by trucks,  the truckers  say

that it is preempted by the Noise Act.

                             -15-                                         -15-

     The   federal  noise  regulations  pertaining  to  motor

carriers do nothing more than set minimum and maximum decibel

levels  and exhaust  system and  tire standards  for trucking

equipment  that may operate on public roadways.  40 C.F.R.   

202.20-202.23.    Accordingly,  no  state  or  town  may  set

different decibel levels for  motor carriers operating within

its jurisdiction.   But neither the Plaistow curfew order nor

the ordinance  it enforces  purports to regulate  the decibel

levels,  exhaust  systems,  or  tires  of individual  trucks.

Rather, noise levels  were one  element of  an equation  that

also included "odors, dust, smoke, refuse matter, fumes . . .

and vibration"  and that  prompted a limitation  on operating

hours for one specific site.

     The Noise Act preemption  clause underscores the limited

reach  of  that statute.   It  provides  in relevant  part as

follows:

     [A]fter the  effective date of  a regulation  under
     this   section   applicable   to  noise   emissions
     resulting from the  operation of any  motor carrier
     engaged   in  interstate  commerce,   no  State  or
     political  subdivision thereof may adopt or enforce
     any  standard applicable to  the same  operation of
     such   motor  carrier,  unless   such  standard  is
     identical  to  a   standard  applicable  to   noise
     emissions resulting from such  operation prescribed
     by any regulation under this section.

42 U.S.C.    4917(c)(1).  Admittedly,  the statutory language

is general ("any standard applicable to the same operation");

but we think  that it  would stretch the  words beyond  their

ordinary meaning to strike down a local curfew order based on

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a  range  of concerns  where federal  law regulates  only the

decibel  levels  of the  equipment.   The  Noise Act  was not

designed to remove all state and local control over noise; on

the contrary, the  statute says that  "primary responsibility

for control of noise rests  with State and local governments.

. . ."  42 U.S.C.   4901(a)(3).

     5.   Finally, appellants argue that  the Plaistow curfew

is preempted under the Commerce Clause itself even if it does

not offend  any of  the individual  statutes  relied upon  by

appellants.   Since Congress has enacted  its own legislative

test  for  this case  ("reasonable  access"),  one might  ask

whether it is proper  for the courts to resort  separately to

the  more  general Commerce  Clause  rubrics.   Cf.  White v.                                                                      

Massachusetts  Council of  Construction Employers,  Inc., 460                                                                    

U.S.  204,  213 (1993).    Be that  as  it may,  applying the

general Commerce Clause tests does not alter the result.

     Absent any statute at all, the courts ask--in a case not

involving discrimination against interstate commerce--whether

"the  burden [on  interstate  commerce imposed  by the  local

restriction] is clearly excessive in relation to the putative

local benefits."  Pike  v. Bruce Church, Inc., 397  U.S. 137,                                                         

142  (1970).  The district  court found no  violation in this

case.     Even  if  we  reviewed   this  fact-specific  legal

determination  de novo, cf. Bose Corp.  v. Consumers Union of                                                                         

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United States, Inc.,  466 U.S.  485, 501 &amp;  n.17 (1984),  our                               

conclusion would be the same.

     Starting with "burden," in this case a night-time curfew

prevents  arrivals and  departures  at one  terminal, at  one

location in the  state, during six late-night  hours (from 11

p.m.  to 5  a.m.)  with lesser  restrictions for  three hours

(from 5 a.m. to 6  a.m. and from 9 p.m. to 11 p.m.).   For 15

hours  of  the day  (from 6  a.m. to  9  p.m.), there  are no                                                                         

limitations.  The curfew does disadvantage this terminal vis-                                                                         

a-vis other terminals not so restricted, and somewhat impairs                 

its profits;  but the  magnitude of the  disadvantage is  not

easy to isolate.

     The  evidence showed  that  customers  often want  early

morning delivery, and in some cases the curfew does limit the

ability  of  the   Plaistow/Newton  terminal  to  make   such

deliveries.  On the  other hand, there is no  indication that

customers cannot be served from  other terminals or that  the

flow of commerce into  and out of New Hampshire  is seriously

affected.   No  state wide  restriction is  involved, compare                                                                         

Kassel  v.  Consolidated  Freightways  Corp.,  450  U.S.  662                                                        

(1981),  nor   is  a   major  artery  of   commerce  severely

constricted,  compare  Southern Pacific  Co. v.  Arizona, 325                                                                    

U.S. 761 (1945).

     On  the other  side of  the scale,  the impact  on local

residents is  not some  remote or  conjectural specter.   The

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curfew order  was obtained  only because of  local experience

with the terminal; and residents testified at trial about the

effect on their lives of unrestricted deliveries.  The curfew

is  akin  to zoning  and  traffic restrictions  traditionally

applied on a local level, cf. Christensen v. Yolo Cty. Bd. of                                                                         

Supervisors, 995  F.2d 161,  166 (9th Cir.  1993); Interstate                                                                         

Towing  Ass'n, Inc. v. Cincinnati,  6 F.3d 1154, 1163-65 (6th                                             

Cir. 1993), and there is no regulation by federal authorities

that provides substitute protection.

     In sum, the burden of the  curfew on interstate commerce

has  not  been  shown to  be  excessive  in  relation to  the

benefits.   Congress has great latitude  to order preemption,

and  calibrate  it with  precision,  based  on a  legislative

judgment that local regulation threatens interstate commerce.

The  dormant Commerce Clause, by contrast,  is a fairly blunt

instrument;  and absent discrimination, courts may reasonably

insist on  a  fairly clear  showing  of undue  burden  before

holding  unconstitutional  a  traditional  example  of  local

regulation.  See Raymond  Motor Transportation, Inc. v. Rice,                                                                        

434 U.S. 429, 443-44 (1978).  That showing  has not been made

on the record before us.

     Affirmed.                         

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