[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51235-51236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24715]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket HM-207C, Amdt. No. 171-141]
RIN 2137-AC63


Exemption, Approval, Registration and Reporting Procedures; 
Miscellaneous Provisions

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Response to petition for reconsideration.

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SUMMARY: RSPA is publishing a letter in which it denied a petition for 
reconsideration of a provision in the final rule in the HM-207C 
proceeding which revised procedures for applying for exemptions and 
established procedures for applying for approvals, and registering and 
filing reports with RSPA. That provision deleted a paragraph that 
specified when State or local hazardous waste requirements would be 
preempted.

EFFECTIVE DATE: The effective date for the final rule published under 
Docket HM-207C on May 9, 1996 (61 FR 21084) remains October 1, 1996.

FOR FURTHER INFORMATION CONTACT: Kathleen Stokes Molinar, Office of the 
Chief Counsel, (202) 366-4400, or Diane LaValle, Office of Hazardous 
Materials Standards, (800) 467-4922, RSPA, US Department of 
Transportation, 400 7th Street S.W., Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION: On May 9, 1996, RSPA published a final rule 
which amended the Hazardous Materials Regulations by changing and 
clarifying RSPA's procedures and requirements for its exemptions, 
approvals, registration, reporting, preemption, and enforcement 
procedures and programs. These changes and clarifications included a 
modification of 49 CFR 171.3 pertaining to hazardous waste.
    RSPA deleted 49 CFR 171.3(c) concerning preemption of State or 
local hazardous waste transportation requirements. That section 
preempted a requirement if it applied because the material in issue was 
a waste material and if the non-Federal requirement applied differently 
from, or in addition to, the HMR requirements concerning packaging, 
marking, labeling, or placarding, format or contents of discharge 
reports, and format or contents of shipping papers (including hazardous 
waste manifests).
    RSPA received one petition for reconsideration of this issue. On 
September 20, 1996, RSPA denied the petition for reconsideration in a 
letter which has been sent to the petitioner. This document publishes 
verbatim the letter of denial as follows:

September 20, 1996.
Mr. Charles Dickhut,
Chairman, Association of Waste Hazardous Materials Transporters, 2200 
Mill Road, Alexandria, Virginia 22314

    Dear Mr. Dickhut: This letter responds to your May 22, 1996 
Petition for Reconsideration (Petition) regarding a provision of the 
Final Rule issued under Docket HM-207C, published in the Federal 
Register on May 9, 1996, at 61 FR 21084. The Petition requests that 
the Research and Special Programs Administration (RSPA) reconsider 
the decision to delete 49 C.F.R. 171.3(c), which provided that 
certain requirements of a State or political subdivision pertaining 
to hazardous waste which applied differently from, or were in 
addition to, the Federal requirements would be found to be 
inconsistent with the Federal requirements.
    The Petition is based upon four considerations. First, you state 
that ``* * * no mention, let alone justification, of RSPA's intent 
to delete the provision was included in the notice of proposed 
rulemaking on docket HM-207C,'' and you further state that ``* * * 
no support was voiced for this amendment. On the other hand, several 
comments asked that the provision be retained.'' Second, you state 
that 49 C.F.R. 171.3(c) has served as regulatory support for 
voluntary harmonization of non-Federal requirements with Federal 
requirements. Third, you contend that where voluntary harmonization 
has not been achieved, 49 C.F.R. 171.3(c) has been relied upon and 
cited by RSPA in each binding preemption determination issued since 
1990 which has dealt exclusively with hazardous waste. Fourth, you 
assert that deletion of 49 C.F.R. 171.3(c) undermines the 
Congressional mandate for implementation of a uniform program of 
regulation for the transportation of hazardous waste.

[[Page 51236]]

    As more fully explained below, RSPA does not believe that the 
decision to eliminate 49 C.F.R. 171.3(c) should be reversed.

The Federal Hazardous Materials Law

    In 1975, Congress enacted the Hazardous Materials Transportation 
Act (HMTA) to provide DOT with greater authority to protect the 
Nation against the risks to life and property which are inherent in 
the transportation of hazardous materials. In 1990, the HMTA was 
amended by Congress' enactment of the Hazardous Materials 
Transportation Uniform Safety Act. In 1994, the provisions of the 
HMTA, as amended, were codified in the present-day Federal hazardous 
materials transportation law, which includes provisions setting out 
an all-inclusive, comprehensive preemption program. Under the 
preemption authority, DOT may issue binding Federal preemption 
determinations in all areas of hazardous materials transportation, 
including hazardous waste.
    The law now specifies ``covered subjects'' with which State, 
local, and tribal requirements are required to be ``substantively 
the same.'' These ``covered subjects'' include shipping papers, 
packaging, marking, labeling, placarding and written reports of 
hazardous materials releases. The ``covered subjects'' preemption 
provisions have obviated the necessity to maintain a separate 
regulatory provision which addresses only hazardous waste.

Analysis/Decision

    The Petition's first argument in support of the request for 
reconsideration is that RSPA's September 24, 1995 Notice of Proposed 
Rulemaking (NPRM) failed to provide notice of its proposal to delete 
49 C.F.R. 171.3(c). The Petition also states that RSPA received no 
support for the deletion from the commenters who responded to the 
NPRM. Although the preamble did not address this issue, the NPRM did 
expressly propose deletion of 49 C.F.R. 171.3(c) in the proposed 
rule text of the NPRM. (60 FR 47734). Comments opposing the proposed 
deletion were considered; however, for the reasons stated in the 
preamble to the May 9, 1996 final rule and in this letter, RSPA 
believes that deletion of 49 C.F.R. 171.3(c) is appropriate.
    Second, the Petition cites 49 CFR 171.3(c) as historically 
serving as a basis for voluntary harmonization of non-Federal 
requirements with Federal requirements. Absent voluntary 
harmonization, the Petition's third point of consideration is an 
argument that RSPA has cited the regulation in every binding 
preemption determination concerning hazardous waste. RSPA does not 
dispute the historical usefulness of 49 CFR 171.3(c) for harmonizing 
non-Federal hazardous waste requirements with Federal requirements. 
However, RSPA believes that utilization of the ``covered subjects'' 
preemption authority in the Federal hazardous materials 
transportation law facilitates harmonization of non-Federal 
requirements with Federal law. This preemption language goes far 
beyond the limited provisions of 49 CFR 171.3(c).
    As a fourth and final point, the Petition argues that deletion 
of the regulation undermines Congress' directive that a uniform 
program of regulation be utilized for the transportation of 
hazardous waste.
    RSPA agrees that Congress has called for a uniform Federal 
program for the regulation of hazardous waste transportation.
    RSPA believes that because deletion of 49 CFR 171.3(c) removes 
hazardous waste as a separate area of consideration, deletion of 
this regulation achieves Congress' goal of implementing a uniform, 
comprehensive system of regulation of hazardous waste 
transportation. As noted previously, the preemption provisions of 
the Federal hazardous materials transportation law address all 
issues pertaining to transportation of hazardous materials, 
including hazardous waste.
    For the foregoing reasons, your petition for reconsideration is 
denied.

        Sincerely,
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.

    Issued in Washington, D.C., on September 20, 1996, under 
authority delegated in 49 CFR Part 1.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-24715 Filed 9-30-96; 8:45 am]
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