[Federal Register Volume 67, Number 96 (Friday, May 17, 2002)]
[Notices]
[Pages 35193-35197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12420]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Preemption Determination No. PD-18(R); Docket No. RSPA-98-3577 (PDA-
18(R))]


Broward County, Florida's Requirements on the Transportation of 
Certain Hazardous Materials To or From Points in the County

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

ACTION: Decision on petition for reconsideration of an administrative 
determination of preemption.

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    Petitioner: Broward County, Florida (the County).
    Local Laws Affected: Broward County, Florida Code of Ordinance No. 
1999-53, Sec. 27-352; 27-355(a)(1); 27-356(b)(4)d.1; 27-436; 27-439(b); 
27-439(f)(1); 27-439(g)(1) and 27-439(g)(2).
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180.
    Modes Affected: Highway and rail.

SUMMARY: The County's petition for reconsideration is denied, and RSPA 
affirms its December 27, 2000 determination that Federal hazardous 
materials transportation law preempts the County's Ordinance No. 1999-
53 on the following subjects to the extent that, as applied and 
enforced, they relate to transportation in commerce: certain hazardous 
materials definitions and the requirements that rely on those 
definitions; written notification of a hazardous materials release; 
retention of shipping papers; licensing fees for hazardous waste 
transporters; and monthly reports of transportation activity.

FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

A. Preemption Determination (PD) No. 18(R)

    In April 1998, the Association of Waste Hazardous Materials 
Transporters (AWHMT) applied for a determination that Federal hazardous 
material transportation law preempts 10 specific provisions of Chapter 
27 of the Broward County Ordinance (Ordinance) that defined hazardous 
materials and set requirements for their transportation to and from 
points within the County. These provisions were contained in Article 
XII (entitled ``Hazardous Material'') of Chapter 27.
    On August 6, 1998, RSPA published in the Federal Register a public 
notice and invitation to comment on AWHMT's application (63 FR 42098). 
RSPA received comments from Nufarm, the Hazardous Materials Advisory 
Council (now the Dangerous Goods Advisory Council), Freehold Cartage, 
Inc., the Association of American Railroads (AAR), Mr. Tony Tweedale, 
and the Institute of Makers of Explosives (IME). AWHMT submitted 
rebuttal comments.
    On September 28, 1999, the Broward County Commissioners amended 
Chapter 27 by adopting Ordinance No. 1999-53 (the revised Ordinance). 
Some of the regulations originally challenged in AWHMT's application 
were modified and moved by the County to new Article XVII (entitled 
``Waste Transporters''); some were deleted from the revised Ordinance; 
and others remained where they were in the previous Ordinance.
    Because the County had substantially modified the Ordinance, RSPA 
asked AWHMT to supplement its application to reflect the revisions to 
the Ordinance, and invited interested parties to comment on the 
County's revised Ordinance. 64 FR 59231. (Nov. 2, 1999). On behalf of 
AWHMT, the American Trucking Associations (herein referred to as ATA/
AWHMT) submitted the revised application. In addition, IME and AAR 
submitted comments. On March 22, 2000, the County submitted its 
comments to the revised Ordinance. On May 5, 2000, ATA/AWHMT submitted 
rebuttal comments to the County's comments.
    As a result of the County's changes to the revised Ordinance, ATA/
AWHMT withdrew its challenge to four of the County's requirements. ATA/
AWHMT continued to challenge the County's definitions of certain 
hazardous materials in Sec. 27-352 and 27-436, and the County's 
requirements for release reporting in Sec. 27-355(a)(1) and 27-
439(f)(1), packaging standards in Sec. 27-439(e)(2), fees in 
Sec. 439(a), monthly reporting in Sec. 27-439(g), and vehicle 
inspection in Sec. 27-439(e)(3). In addition, AAR continued to 
challenge the County's shipping paper requirements in Sec. 27-
439(g)(1), and vehicle marking requirements in Sec. 27-439(e)(4). 
RSPA's December 27, 2000 decision addressed only the challenges to the 
revised Ordinance.
    In its decision, RSPA determined that Federal hazardous material 
transportation law preempts County requirements pertaining to certain 
hazardous material definitions, all requirements that rely on those 
definitions, written notification of a hazardous material release, 
shipping paper retention for certain hazardous materials transporters, 
licensing fees for hazardous waste transporters and monthly 
transportation activity reporting. 65 FR 81950-60. RSPA stated that 
these requirements were preempted only to the extent that they related 
to transportation in commerce or differed from the HMR or other Federal 
requirements. Id. In addition, RSPA determined that Federal hazardous 
material transportation law did not preempt County requirements 
pertaining to oral notification of a hazardous material release, 
packaging standards for hazardous waste transport vehicles, shipping 
paper retention for

[[Page 35194]]

hazardous waste transporters, periodic vehicle inspection and vehicle 
marking. Id.
    In Part II of its decision, RSPA discussed the standard for making 
preemption determinations under the Federal hazardous materials 
transportation law. 65 FR 81951-52. As RSPA explained, unless there is 
specific authority in another Federal law or DOT grants a waiver, a 
local (or other non-Federal) requirement is preempted if:

--It is not possible to comply with both the local requirements and a 
requirement in the Federal hazardous material transportation law or 
regulations;
--The local requirement, as applied or enforced, is an ``obstacle'' to 
accomplishing and carrying out the Federal hazardous materials 
transportation law or regulations; or
--The local requirement concerns any of five specific subjects and is 
not ``substantively the same as'' a provision in the Federal hazardous 
materials transportation law or regulations. Id. at 81951. Among these 
five subjects are (1) ``the designation, description, and 
classification of hazardous material,'' (2) ``the preparation, 
execution, and use of shipping documents related to hazardous material 
and requirements related to the number, contents, and placement of 
those documents,'' and (3) ``the written notification, recording and 
reporting of the unintentional release in transportation of hazardous 
material.'' See 49 U.S.C. 5125(a) and (b). Id.
    In addition, a State, political subdivision, or Indian tribe may 
impose a fee related to transporting hazardous material ``only if the 
fee is fair and used for a purpose relating to transporting hazardous 
material, including enforcement and planning, developing, and 
maintaining a capability for emergency response.'' 49 U.S.C. 
5125(g)(1).
    These preemption provisions stem from congressional findings that 
State and local laws which vary from Federal hazardous material 
transportation requirements can create ``the potential for unreasonable 
hazards in other jurisdictions and confounding shippers and carriers 
which attempt to comply with multiple and conflicting * * * regulatory 
requirements,'' and that safety is advanced by ``consistency in laws 
and regulations governing the transportation of hazardous materials.'' 
Pub. L. 101-615 Sec. 2(3) and 2(4), 104 Stat. 3244.

B. Petition for Reconsideration and Comments

    Within the 20-day time period provided in 49 CFR 107.211(a), the 
County filed a petition for reconsideration and stay of PD-18(R). The 
County challenged the preemption of:
     Revised Ordinances 27-325 and 27-436 pertaining 
to certain hazardous materials definitions,
     Revised Ordinances 27-355(a)(1) and 27-439(f)(1) 
pertaining to incident release reporting,
     Revised Ordinance 27-356(b)(4)d.1 pertaining to 
shipping paper retention requirements,
     Revised Ordinance 27-439(b) pertaining to fees, 
and
     Revised Ordinance 27-439(g)(2) pertaining to 
monthly reporting requirements.
    The County certified that it had mailed a copy of its petition to 
all organizations and individuals that had submitted comments to the 
original application, with the exception of one individual whose 
address was incomplete. IME submitted comments to the County's petition 
for reconsideration and stay.
    In its petition for reconsideration, the County argues that Article 
XII, Hazardous Materials, applies exclusively to ``the generation, use, 
storage, handling, processing, manufacturing and disposal of hazardous 
materials.'' The County explains that the Article does not seek to 
regulate the transportation of hazardous materials in any fashion, but 
rather gives deference to Federal law. The County further contends that 
Article XII, Waste Transporters, has been subdivided and is the only 
area in which the County intends to regulate hazardous materials 
transportation in or incidental to commerce. The County argues that it 
has every right to regulate certain hazardous materials-related 
activities and facilities within the County's borders without Federal 
Government interference. Thus, the County concludes that RSPA has 
improperly sought to preempt a non-Federal regulation that does not 
conflict with Federal regulations. For the reasons discussed below, 
RSPA finds that portions of Article XII do apply to transportation in 
commerce, including storage incidental to transportation, and to that 
extent are preempted.

II. Discussion

A. Hazardous Materials Definitions

    The County challenges RSPA's determination that its definitions of 
hazardous materials, combustible liquid, flammable liquid, biomedical 
waste discarded hazardous materials and sludge are preempted under 49 
U.S.C. 5125(b)(1)(A). 65 FR 81952-54. Following is a summary of the 
County's arguments concerning each preempted definition.
     Hazardous Materials. The County states that the 
term ``hazardous materials'' as defined in Sec. 27-352 applies 
exclusively to Article XII, ``the generation, use, storage, handling, 
processing, manufacturing and disposal of hazardous material.'' As 
previously mentioned, the County states that Article XII does not seek 
to regulate the transportation of hazardous materials in any fashion 
and gives deference to Federal law. In support of its claim, the County 
points to Sec. 27-351 of the County Ordinance, which states that

    (1) The Department of Planning and Environmental Protection 
(DPEP) to the extent permitted by state and federal law, shall have 
the authority to license, evaluate, review, and administer all 
hazardous materials activities, and all environmental assessments 
and remediation actions performed within Broward County. (Emphasis 
added by the County).

    The County further states that Article XVII, which is titled 
``Waste Transporters,'' has been properly subdivided and is the only 
area in which the County intends to regulate hazardous materials 
transportation. The County contends that it has the right to regulate 
hazardous material facilities, construction overlying contamination, 
storage and use of hazardous material in wellfield zones, and 
abandonment or improper disposal of hazardous materials that occurs 
within Broward County without Federal Government interference. Thus, 
the County concludes that RSPA has improperly sought to preempt Article 
XII, which does not conflict with Federal regulations.
     Combustible liquid and flammable liquid. The 
County contends that the requirements for storage, handling processing, 
manufacturing and disposal of hazardous materials do not apply to 
materials defined as combustible liquid and flammable liquid in 
Sec. 27-352. The County states that Article XVII, titled ``Waste 
Transporters'' (which contains Sec. 27-436), applies to the generation, 
use and transportation of hazardous materials in commerce. The County 
further states that Article XVII is self-contained and the only place 
in the Code where the County seeks to regulate hazardous materials 
transportation in or incidental to commerce.
     Biomedical waste. The County states that it will 
delete the definition of biomedical waste contained in Sec. 27-436

[[Page 35195]]

in upcoming revisions of the Code and will replace it with the HMR 
definition of ``regulated waste.'' The County anticipates this will 
take approximately six months because of the County's requirements for 
notice and public hearing.
     Discarded hazardous materials. The County states 
that it will delete the definition of discarded hazardous materials 
contained in Sec. 27-436 in upcoming revisions of the Code and replace 
it with the HMR definition of ``hazardous material.'' The County states 
that this revision will only apply to Article XVII, Waste Transporters, 
because that is the only section where the County seeks to regulate the 
transportation of hazardous materials in or incidental to commerce. The 
County further states that it will not revise the current definition of 
hazardous materials found in Sec. 27-352 because that section does not 
apply to transportation. The County anticipates this will take 
approximately six months because of the County's requirements for 
notice and public hearing.
     Sludge. The County states that RSPA has 
overstepped its authority by preempting the County's definition of 
sludge. The County agrees with RSPA's determination that sludge does 
not have a counterpart in the HMR. 65 FR 81953. The County argues that 
49 CFR 171.8 does not include water and wastewater residual sludges in 
its list of regulated materials. The County claims that sludge, as 
defined by the County, has not been determined or designated by the 
Secretary of Transportation to pose an unreasonable risk to health, 
safety and property when transported. The County also states that 
sludge, as defined in County Code and state rule, is a solid waste, not 
a hazardous material as defined by the HMR. The County contends that, 
because solid waste is not a substance regulated by DOT, DOT does not 
have jurisdiction to preempt the County's regulations of sludge 
transportation.
    In its decision, RSPA, under 49 U.S.C. 5125(b)(1)(A), preempted the 
County's definitions of hazardous materials, combustible liquid, 
flammable liquid, biomedical waste, discarded hazardous materials, and 
sludge because these definitions were not ``substantively the same as'' 
their counterparts in the HMR or did not have counterparts in the HMR. 
65 FR 81952-53. Section 5125(b)(1)(A) preempts non-Federal requirement 
on the ``designation, description, and classification of hazardous 
material'' that are not ``substantively the same as'' the HMR. However, 
RSPA stated that these definitions were only preempted to the extent 
that they related to transportation in commerce. 65 FR 81952-53.
    As RSPA stated in its decision, it appears from a plain reading of 
Article XII and Article XVII of the County's revised Ordinance that the 
County uses the definitions in defining the applicability of its 
regulation of transportation in commerce. 65 FR 81953. RSPA found that

    Article XII regulates the ``generation, use, storage, handling, 
processing, manufacturing, and disposal of hazardous materials.'' 
Revised Ordinance 27-351. The * * * DPEP is authorize to license, 
evaluate, review and administer all hazardous materials activities * 
* * performed in Broward County. Id. Article XVII regulates the 
transportation of discarded hazardous material, sludge, and 
biomedical waste and applies to ``all persons conducting activities 
within geographic boundaries of Broward County, who transport 
discarded hazardous material, sludge, or biomedical waste to, from, 
and within Broward County.'' Revised Ordinance 27-435.

Id. Based on these regulations, RSPA determined that the County was 
using the challenged definitions in defining the applicability of its 
regulation of transportation in commerce and preempted the definitions. 
Id.
    If, however, that is not the case for a particular definition, then 
RSPA's preemption decision does not apply to that definition. 
Therefore, if the County's definitions in Sec. 27-352 of hazardous 
material, combustible liquid, flammable liquid, and discarded hazardous 
materials, as applied and enforced by the County, do not relate to 
transportation in commerce or storage incidental to transportation, the 
preemption provisions in 49 U.S.C. 5125(b)(1)(A) do not apply.
    Concerning the definitions of biomedical waste and discarded 
hazardous materials in Sec. 27-352 and 27-436, RSPA's determination 
that these definitions are preempted still applies.
    Concerning the definition of sludge in Sec. 27-436, RSPA does not 
agree with the County that it does not have the authority to preempt 
this definition as it is applied and enforced. It appears that the 
County is using the definition of sludge to regulate a material as a 
hazardous material. The definition of sludge is contained in Article 
XVII, Waste Transporters, which, as the County states in its comments, 
is the section where the County seeks to regulate the transportation of 
hazardous materials in commerce. As previously mentioned, Sec. 27-435 
of Article XVII, which deals with the applicability of the article, 
states ``[t]his article applies to all persons conducting activities 
within geographical boundaries of Broward County, which transport 
discarded hazardous material, sludge, or biomedical waste to, from, and 
within Broward County.'' Based on this information, the County appears 
to be attempting to use the definition of sludge for the purpose of 
regulating a hazardous material and, therefore, continues to find that 
the definition is preempted under 49 U.S.C. 5125(b)(1)(A). However, as 
stated in the previous determination, this definition and the 
regulations that apply this definition are preempted only to the extent 
that they relate to transportation in commerce and storage incidental 
to transportation in commerce. 65 FR 81953-54.
    The County can, however, define sludge as it deems appropriate for 
State purposes, such as disposal, and RSPA's preemption of the 
definition has no effect on non-transportation-related functions. The 
County is correct that the HMR do not contain a specific definition of 
``solid waste.'' Solid waste and hazardous waste are defined in the 
Environmental Protection Agency's (EPA's) Resource Conservation and 
Recovery Act (RCRA) regulations at 40 CFR 261.2 and 261.3, 
respectively. We do not address whether the County's definition of 
sludge conflicts with EPA's definitions for solid waste or hazardous 
waste.

B. Release-Reporting Requirements

    The County maintains its position that Article XII regulates 
releases that do not involve transportation, including storage 
incidental to transportation in commerce. The County states that 
Article XII has been consistently enforced in that manner and, 
therefore, should not be preempted. The County states that it has 
agreed to modify section 27-439(f)(1) and provides sample language of 
how it intends to revise the section. The County anticipates that it 
will take approximately six months to complete the revisions because of 
the required notice and public hearing requirements in its local law.
    In its decision, RSPA addressed two requirements in the County's 
revised Ordinance that dealt with release reporting--Sec. 27-355(a)(1) 
in Article XII and Sec. 27-439(f)(1) in Article XVII. 65 FR 81954-
81955. RSPA found that the written notification requirement contained 
in Sec. 27-355(a)(1), and the requirement in Sec. 27-439(f)(1) to 
report releases in accordance with Sec. 27-355(a)(1), were preempted to 
the extent that they related to the transportation of hazardous 
materials in commerce, including loading, unloading and

[[Page 35196]]

storage incidental to transportation. Id. RSPA found that these 
requirements were not ``substantively the same'' as the Federal written 
incident-reporting requirements found in 49 CFR 171.16 and, therefore, 
were preempted under 49 U.S.C. 5125(b)(1)(D). Id. RSPA determined that 
the oral incident notification requirements contained in Sec. 27-
355(a)(1) and 27-439(f)(1) were not preempted. 65 FR 81955.
    As mentioned above, the County argues that Article XII [which 
contains Sec. 27-355(a)(1)] regulates releases that do not involve 
transportation, including storage incidental to transportation in 
commerce, and has consistently been enforced in that manner. The County 
made the same argument in its comments to the initial proceeding. At 
that time, RSPA determined that it was not apparent from the face of 
the revised Ordinance whether Article XII could be construed as 
applying to hazardous materials transportation or storage incidental to 
transportation. 65 FR 81954. Thus, RSPA stated that its decision to 
preempt Sec. 27-355(a)(1) was limited to the extent that Sec. 27-
355(a)(1) related to transportation in commerce, including storage 
incidental to commerce. Id. The text of Sec. 27-355(a)(1) has not 
changed; therefore, RSPA reaches the same conclusion in this instance 
that Sec. 27-355(a)(1) is preempted by Federal hazardous materials 
transportation law to the extent that it relates to transportation in 
commerce or storage incidental to transportation in commerce. If this 
regulation does not pertain to a release that occurs during 
transportation or storage incidental to transportation as the County 
claims, then RSPA's decision is irrelevant to the County's application 
of the regulation.
    Concerning the proposed revisions to Sec. 27-439(f)(1), it appears 
from the County's comments that the modification has not been made and 
likely will not be made for some time. Thus, RSPA's determination that 
this section is preempted as it pertains to written incident release 
reporting is affirmed.

C. Shipping Paper Requirements

    The County's only comment is that it does not regulate intermediate 
rail transporters. IME contends that it is unclear what the County is 
asking of RSPA. IME points out that RSPA preempted section 27-439(g)(1) 
as it relates to intermediate rail transporters and that if the County 
does not regulate intermediate rail transporters RSPA's decision has no 
bearing on that part of the revised Ordinance.
    In its decision, RSPA addressed two sections of the revised 
Ordinance that dealt with shipping paper retention: Sec. 27-
356(b)(4)d.1 in Article XII and Sec. 27-439(g)(1) in Article XVII. 65 
FR 81956. RSPA determined that Sec. 27-356(b)(4)d.1 was preempted under 
the ``substantively the same as'' test to the extent that the 
requirement differed from the HMR and EPA's requirements for hazardous 
waste manifest retention because (1) it requires a five-year retention 
period for waste manifests, bills of lading or other equivalent 
manifesting, rather than three years as required under the HMR and by 
the EPA, and (2) it applies to intermediate rail transporters, which 
were exempt from this type of record retention under the HMR. Id. RSPA 
determined that Sec. 27-439(g)(1) was only preempted to the extent that 
it applies to intermediate rail transporters. Id.
    Section 27-435, which defines the applicability of Article XVII, 
states that the ``article applies to all persons conducting activities 
within the geographical boundaries of Broward County, which transport 
discarded hazardous materials, sludge, or biomedical waste to, from, 
and within Broward County.'' It is not apparent from a plain reading of 
this section that it excludes intermediate rail transporters. However, 
if the County does not regulate intermediate rail transporters, as it 
asserts, then RSPA's determination that Sec. 27-356(b)(4)d.1 and 27-
439(g)(1) are preempted as applied to intermediate rail transporters is 
moot.
    As mentioned above, however, RSPA also preempted Sec. 27-
356(b)(4)d.1 under the ``substantively the same as'' test because it 
imposed a longer record retention period for hazardous waste manifests, 
bills of lading and other equivalent manifesting. Id. The section 
requires that these documents be maintained on site for five years. As 
RSPA explained in its decision, the Federal requirements for hazardous 
waste manifests require, among other things, that a copy of the 
manifest * * * must be ``[r]etained by the shipper (generator) and by 
the initial and each subsequent carrier for three years from the date 
the waste was accepted by the initial carrier.'' 49 CFR 
Sec. 172.205(e)(5). Id. EPA also requires a three-year waste manifest 
retention period for hazardous waste generators and transporters. Id. 
See also 40 CFR 262.40 and 263.22. Neither RSPA nor EPA specifies where 
a manifest must be kept.
    Thus, Sec. 27-356(b)(4)d.1 remains preempted under the 
``substantively the same as'' test to the extent that the requirement 
differs from the HMR (and EPA) requirements for hazardous waste 
manifest retention.

D. Fee Requirements

    The County states that it has begun revising its transporter 
license fee structure, which will be based upon use of service. The 
County explains that all license fees that are colleted are deposited 
into the General Fund of Broward County. It states that these funds are 
then budgeted for use related to transporting hazardous materials, 
including enforcement, planning, and maintaining a capability for 
emergency response. The County further explains that the County's DPEP 
maintains a trained staff in its Emergency Response section, each with 
on-call capabilities. The County estimates that it will take 
approximately six months to implement the new fee structure because of 
its notice and public hearing requirements.
    RSPA preempted the County's existing fee structure contained in 
Sec. 27-439(a) because it failed the fairness and ``used for'' tests, 
as well as the ``obstacle'' test. 65 FR 81958-59. RSPA determined that 
the County's fee for obtaining a waste transport license was the same 
for every transporter that transported discarded hazardous materials, 
sludge or biomedical waste ``to, from and within'' the County. 65 FR 
81959. RSPA determined that the County's fee structure was not fair 
under the standards set forth in 49 U.S.C. 5125(g)(1) because it was 
not based on some fair approximation of use of facilities and because 
it discriminated against interstate commerce. Id. RSPA determined that 
the County's fee structure failed the ``used for'' test under 49 U.S.C. 
5125(g)(1) because the County did not provide any evidence of how it 
used the waste transporter fee. Id. Finally, RSPA determined that 
because the County's fee failed the fairness and ``used for'' tests in 
49 U.S.C. 5125(g)(1), it created an obstacle to carrying out the 
Federal hazardous materials transportation law and, thus, failed the 
``obstacle'' test in 49 U.S.C. 5125(a)(2). Id.
    As mentioned above, the County indicates that it has begun 
modifying its waste transporter fee structure and that the funds are 
budgeted for items that appear to meet the requirements of 49 U.S.C. 
5125(g)(1). To date, however, the County has not submitted its revised 
regulation and may not be able to do so for several months. Therefore, 
RSPA reaffirms it decision that the County's fee requirement contained 
in Sec. 27-439(a) is preempted under 49 U.S.C. 5125(g)(1) for the 
reasons stated above. Once the County has competed its revision to that 
section of the

[[Page 35197]]

Ordinance, it can apply to RSPA for a determination of whether Federal 
hazardous materials transportation law preempts its new requirement.

E. Reporting Requirements

    The County states that it will revise its reporting requirements by 
deleting Sec. 27-439(g)(2) in the upcoming version of Chapter 27. In 
its decision, RSPA preempted this section under the ``obstacle'' test 
because it required information in excess of the Federal reporting 
requirements. 65 FR 81959-60. If the County does remove this section in 
an upcoming revision of the County Code, then RSPA's preemption 
determination as to this particular section will become moot. Until 
that time, however, the section remains preempted.

III. Ruling

    The County's petition for reconsideration and stay of determination 
is denied. RSPA finds that Federal hazardous materials preemption law 
preempts:
     Portions of revised Sec. 27-352 and 27-436 
containing the definitions of biomedical waste, combustible liquid, 
discarded hazardous materials, flammable liquid, hazardous material and 
sludge, to the extent that these definitions relate to transportation 
in commerce.
     All County hazardous materials transportation 
requirements that rely on these definitions.
     Portions of Sec. 27-355(a)(1) and 27-439(f)(1) 
containing written incident release reporting requirements, to the 
extent that these sections pertain to transportation in commerce.
     Section 27-356(b)(4)d.1 containing shipping 
paper requirements, to the extent that they differ from HMR or EPA 
requirements for shipping paper and waste manifest retention. (Section 
27-439(g)(1) is preempted only if it is applied to intermediate rail 
transporters.)
     Section 27-439(b) containing the fee 
requirements for obtaining a waste transporter license.
     Section 27-439(g)(2) containing monthly 
reporting requirements, to the extent that this requirement relates to 
transportation in commerce.
    The County's request for a six-month stay to modify its existing 
regulations is also denied. It has been more than six months since the 
County submitted its request for a stay, but the County has provided no 
evidence that it has made the contemplated revisions to its Ordinance. 
Therefore, the specific sections discussed above are preempted.

IV. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes 
RSPA's final agency action on ATA/AWHMT's application for a 
determination of preemption of specific sections of Broward County, 
Florida's revised Ordinances. Any party to this proceeding ``may bring 
a civil action in an appropriate district court of the United States 
for judicial review of [this] decision * * * not later than 60 days 
after the decision becomes final.'' 49 U.S.C. 5125(f). This decision 
becomes final on the date of Federal Register publication. 49 CFR 
107.213.

    Issued in Washington, DC on May 13, 2002.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 02-12420 Filed 5-16-02; 8:45 am]
BILLING CODE 4910-60-P