[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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