[Federal Register Volume 67, Number 122 (Tuesday, June 25, 2002)]
[Rules and Regulations]
[Pages 42948-42959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15281]



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Part V





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 105, 106, 107, and 171



Revised and Clarified Hazardous Materials Safety Rulemaking and Program 
Procedures; Final Rule

  Federal Register / Vol. 67, No. 122 / Tuesday, June 25, 2002 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 105, 106, 107, and 171

[Docket No. RSPA-98-3974]
RIN 2137-AD20


Revised and Clarified Hazardous Materials Safety Rulemaking and 
Program Procedures

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

ACTION: Final rule.

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SUMMARY: In this final rule, RSPA revises and clarifies its hazardous 
materials safety rulemaking and program procedures. RSPA has re-written 
the rulemaking procedures in plain language and made minor substantive 
changes for clarification. In addition, RSPA created a new part that 
contains defined terms used in RSPA's procedural regulations.

DATES: This final rule is effective July 25, 2002.

FOR FURTHER INFORMATION CONTACT: Karin V. Christian, Office of the 
Chief Counsel, (202) 366-4400, Research and Special Programs 
Administration.

SUPPLEMENTARY INFORMATION:

1. Background Information

    On December 11, 1998, RSPA (``we'') published a Notice of Proposed 
Rulemaking (``Notice'') that had two purposes: (1) To re-write in plain 
language, clarify, and make minor substantive changes to RSPA's 
hazardous materials safety rulemaking and program procedures, and (2) 
to propose a new Federal Register format. (63 FR 68624). These changes 
responded to a June 1, 1998 Executive Memorandum directing Federal 
agencies to make communications with the public more understandable.
    The Office of the Federal Register (OFR) is currently considering 
various format options and has not made any final decisions with regard 
to format changes. On March 23, 2001, OFR printed a document in the 
Federal Register illustrating a possible new two-column format and 
possible changes in fonts, headings, line spacing, and tables. (66 FR 
16374). On May 14, 2002, OFR published a document with a modified two-
column format. (67 FR 34573). OFR invited agencies and the public to 
comment on the proposed format. Because OFR is in the process of 
considering format changes, in this final rule we are finalizing only 
our plain language re-write and some minor substantive changes to 
clarify the regulations. We are not making format changes.
    We received 18 comments, including comments from industry 
associations, private citizens, and other Federal agencies. Other 
Federal agencies and groups filed comments directly with the Office of 
the Federal Register commenting on the proposed new Federal Register 
format. Comments from Federal agencies focused on the new format we 
proposed, while private citizens and industry groups commented on the 
minor substantive changes, the proposed format, or both.
    In addition to the comments we received in response to our Notice, 
RSPA received additional comments on the procedural regulations in 
response to a December 20, 1999 notice published as part of its 
Regulatory Flexibility Act review. Section 610 of the Regulatory 
Flexibility Act of 1980, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, requires agencies to conduct periodic 
reviews of rules that have a significant economic impact on a 
substantial number of small business entities. In the December 20, 1999 
Notice, focusing on parts 106, 107 and 171, RSPA invited comments on 
both the economic impact of its regulations and on ways to make the 
regulations easier to read and understand. In response to the Notice, 
RSPA received comments from the Institute of Makers of Explosives and 
E.I. DuPont de Nemours & Co. (DuPont) regarding plain language efforts.
    Many commenters applauded RSPA's efforts to make the regulations 
easier to read and understand. Commenters stated that the proposed 
plain language changes would make it easier to find and understand the 
regulations. Most supported various minor substantive changes and 
format changes.
    Several commenters expressed caution regarding future efforts to 
re-write the regulations. The Association of Waste Hazardous Materials 
Transporters stated that, in view of the limited resources available to 
RSPA to accomplish its more substantive rulemakings, it believes that 
additional plain language changes should only be made when we are 
issuing new rules or substantively revising or updating existing rules. 
The Hazardous Materials Advisory Council [now the Dangerous Goods 
Advisory Council] expressed concern that plain language efforts not 
delay other important rules.
    RSPA agrees with commenters' concerns about using limited resources 
to re-write regulations when substantive rulemaking actions are 
pending. In order to maximize resources, we plan to make plain language 
improvements only as sections or parts are being reviewed and revised 
for substantive reasons.
    RSPA used a question-and-answer format for the proposed changes to 
the procedural regulations. After reviewing the question headings, we 
decided to convert them to non-question headings. These are more 
concise and direct. In addition, because we may not re-write the rest 
of the procedural regulations for quite some time, the non-question 
headings are consistent with the headings currently used in the rest of 
the regulations. If we used question headings in a portion of the 
procedural regulations, the format would not have been consistent.
    The Chemical Manufacturers' Association (CMA) [now the American 
Chemistry Council] said that RSPA should ensure the regulatory intent 
is not lost when regulations are rewritten in plain language. CMA also 
stated that new substantive and procedural regulations should be in 
separate notices and not in plain language re-write notices. In this 
final rule, RSPA is making only minor changes to clarify the existing 
regulations.
    Below is a discussion of the minor substantive changes we proposed 
and the comments we received.

2. Minor Substantive Changes

    In this rule, we are revising all of part 106 and creating a new 
part 105. We are clarifying existing requirements and making minor 
substantive changes that are explained in the following paragraphs.

Part 105

    We are creating a new part 105 to contain general information and 
definitions. To do this, we are moving the general information on how 
to obtain information from us about our procedural regulations and the 
Hazardous Materials Regulations (HMR; Parts 171-180) from part 107 into 
a newly created part 105. The new part 105 also contains information on 
subpoenas and service of documents.
    We are revising mailing addresses throughout parts 105 and 106 to 
ensure that documents reach the appropriate RSPA office. In this final 
rule, we are also up-dating some information contained in the Notice of 
Proposed Rulemaking because the location of certain information in RSPA 
changed since the time of the proposal. For example, RSPA's Hazardous 
Materials Record Center no longer houses rulemaking documents, 
interpretations, or preemption documents. This information can now be 
accessed by visiting the Docket Management System

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(http://dms.dot.gov) or through the Internet Web site (http://hazmat.dot.gov). For older information received by RSPA before February 
1, 1997, you may obtain rulemaking information from the Office of 
Hazardous Materials Standards and preemption information from the 
Office of the Chief Counsel. In this final rule, we are also adding a 
reference under Sec. 105.25 to the Office of Hazardous Materials 
Safety's ``Fax On Demand System'' through which a requester may choose 
documents (e.g., proposed and final rules, DOT forms, letters of 
clarification, and safety notices) to be faxed to his or her fax 
machine by dialing 1-800-467-4922 and selecting Option 2.
    The Association of Waste Hazardous Materials Transporters requested 
that we clarify the regulations in part 105 concerning filing requests 
for information under the Freedom of Information Act (FOIA). In 
response to that comment, we added Sec. 105.26 referring readers to the 
Department's FOIA regulations in 49 CFR part 7. Part 7 explains the 
procedures for filing requests for records under FOIA and also provides 
RSPA contact information.
    We received a number of comments concerning the location of 
definitions and the ``plain language'' definitions themselves. CMA, the 
Truck Trailer Manufacturers Association, the National Propane Gas 
Association, and DuPont supported locating all definitions in one 
section. Several urged RSPA to expand part 105 and incorporate in a 
single location all the definitions currently spread throughout the 
regulations and the Federal hazardous materials transportation law (49 
U.S.C. 5101 et seq.). Because States do not adopt the procedural 
regulations contained in parts 105, 106, and 107 and instead adopt only 
the Hazardous Materials Regulations (HMR), beginning at part 171, RSPA 
is not moving all other definitions into new part 105. This approach 
will facilitate State incorporation of the HMR as a self-contained unit 
with necessary definitions in Sec. 171.8. New part 105 contains a 
limited number of definitions rewritten in plain language. Other 
definitions are contained in part 171 and apply to sections of the HMR.
    We are not making any substantive changes to the definitions in new 
part 105. For definitions contained in part 105 that are also contained 
in parts 107 and 171, we are changing the definitions in parts 107 and 
171 to make them consistent.
    Several commenters expressed concern that several definitions in 
Sec. 105.10 are different than those found in the current regulatory 
text and different from the statutory definitions. One commenter asked 
whether definitions in the statute could be changed and mentioned the 
definition for ``transports'' or ``transportation'' as an example of a 
definition that differed in the proposed rule and the statute.
    Based on these concerns, we compared the definitions that we 
proposed in Sec. 105.10 with the definitions in other parts of the HMR 
and in the statute. After comparing these, we are making the 
definitions more consistent in this final rule.
    The following is a discussion of each of the definitions proposed 
in Sec. 105.10 and the changes we are making.
    In this final rule, we are adding ``(49 CFR parts 171 through 
180)'' after ``subchapter C of this chapter'' to the definition of 
``approval'' that we proposed and are adopting. This change will advise 
readers about the parts in subchapter C. In addition, in this final 
rule, we are clarifying that an approval may be issued by agencies or 
officials other than the Associate Administrator for Hazardous 
Materials Safety. Therefore, we are adding the words ``or other 
designated Department official'' after ``from the Associate 
Administrator for Hazardous Materials Safety.'' We are also making the 
definitions of ``approval'' in part 107 and Sec. 171.8 consistent with 
the definition in part 105.
    In the definition of ``exemption'' we proposed and are adopting, we 
are now updating the reference to the Federal Highway Administration to 
the Federal Motor Carrier Safety Administration to reflect the new DOT 
agency. In this final rule, we are also changing the definition of 
``exemption'' in part 107 to make it consistent with part 105.
    Upon review, we decided not to adopt the plain language definition 
of ``Federal hazardous material transportation law'' we proposed, but 
to adopt instead the definition of that term now in part 107 and 
Sec. 171.8. The definition we are adopting uses the legal citation 49 
U.S.C. 5101 et seq., rather than the cite 49 U.S.C. 5101 through 5127.
    We are adopting the new definition of ``filed'' as proposed. We are 
using the same new definition of ``filed'' in part 107 for consistency.
    With regard to the definition of ``hazardous material,'' we are 
changing the verbs ``determines'' to ``has determined'' and 
``designates'' to ``has designated'' because this language accurately 
reflects that the designation has already been made. We are also 
replacing the current definition of hazardous material in Sec. 171.8 to 
be consistent.
    With regard to the definition of ``Indian tribe,'' we will not 
adopt the proposed definition because ``Indian tribe'' is currently 
defined in the Federal hazardous materials transportation law. To be 
consistent with the Federal hazardous materials transportation law, we 
will use the statutory definition in part 105. We are also replacing 
the definition in part 107 with the statutory definition.
    To further clarify the definition of ``person'' we proposed and are 
adopting in this final rule, we are replacing the words ``when it'' 
with ``that'' and the word ``excludes'' with ``does not include.'' We 
are also adding a sentence to clarify that ``person'' does not include 
any government or Indian tribe that transports hazardous material for a 
governmental purpose. To be consistent, we are replacing the 
definitions of ``person'' in part 107 and Sec. 171.8 with the clarified 
definition of ``person.''
    In the definition of ``political subdivision'' that we proposed and 
are adopting, we are changing the word ``includes'' to ``means'' 
because the current definition covers all applicable entities.
    In the definition of ``preemption determination,'' we are replacing 
``RSPA'' with ``Associate Administrator for Hazardous Materials 
Safety'' to clarify who in RSPA issues a preemption determination 
decision.
    In the definition of ``regulations issued under Federal hazmat 
law,'' we are changing ``hazmat law'' to ``Federal hazardous materials 
transportation law.'' In addition, we are clarifying that the first 
reference is to subchapter A by deleting ``this'' before subchapter and 
adding ``A'' to it.
    With regard to the definition of ``state,'' we decided not to adopt 
the proposed definition of ``state.'' After reviewing the definitions, 
we decided to use the definition of ``state'' set out in Sec. 171.8 
because it is clear and simple. In this final rule, we are using that 
definition in the new part 105 and replacing the definition in part 107 
with that definition.
    A commenter expressed concern that the definition of 
``transportation'' we proposed differed from the definition in the 
statute. The statutory definition has the word ``the'' before 
``movement,'' has no comma after property, does not have the word 
``any'' before loading, and has the words ``the movement'' instead of 
the proposed ``that movement.'' Although we believe these plain 
language changes were minor editorial changes, we are not adopting the 
plain language definition. Rather, to be

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consistent with the statute, we are using the definition currently set 
out in the Federal hazardous materials transportation law in both the 
new part 105 and in part 107.
    We are revising the definition of ``waiver of preemption'' we 
proposed. We are replacing ``RSPA'' with ``Associate Administrator for 
Hazardous Materials Safety'' to clarify who in RSPA makes the waiver 
decision and dividing the long sentence that was proposed into two so 
that it is easier to understand.

Part 106

    Section 106.10 contains new information about our rulemaking 
process. Specifically, it states that we use informal rulemaking 
procedures under the Administrative Procedure Act. Furthermore, this 
section sets out the types of rulemaking documents we normally use to 
propose and adopt changes to our regulations.
    Section 106.15 describes an advance notice of proposed rulemaking.
    Section 106.20 describes a notice of proposed rulemaking.
    Section 106.30 describes a final rule.
    Section 106.35 describes an interim final rule.
    Section 106.40 describes a direct final rule.
    Section 106.70 states that commenters may electronically file their 
comments in a rulemaking proceeding through the Internet to http://dms.dot.gov. Commenters support the option of filing comments 
electronically and the availability of internet web sites that increase 
public access to information.
    In the Notice, with regard to Sec. 106.70, we also proposed to add 
that we may reject paper and electronic comments that are ``frivolous, 
abusive, or repetitious.'' Several commenters expressed concerns about 
the phrase ``frivolous, abusive, or repetitious.'' This proposed change 
was partially intended to address the types of comments the agency has 
received over the Internet that do not relate to a rulemaking. 
Commenters were concerned about the subjective nature of the proposed 
standard and about the possible rejection of comments under such a 
standard. A commenter asked, for example, whether a comment would be 
considered repetitious and rejected if it is the same or similar to one 
submitted by another commenter. All relevant comments will be 
considered, including those similar to those submitted by other 
commenters. We agree with commenters' concern about the proposed 
language and revised the language to state that we may reject comments 
not relevant to a rulemaking. Generally, all comments received will be 
part of the docket; however, comments that are not relevant to the 
rulemaking may not be considered for that particular rulemaking.
    In Secs. 106.80 through 106.90, we are using the terms ``public 
meetings'' rather than ``informal hearings.'' This language more 
accurately reflects the nature of these public, information-gathering 
sessions. One commenter requested confirmation that no present 
protections afforded to parties are reduced or eliminated by replacing 
the term ``informal hearings'' with ``public meetings.'' By replacing 
the term ``informal hearing'' with ``public meeting,'' no rights or 
protections are reduced or eliminated. The nature of the proceeding is 
unchanged. In a public meeting, interested parties may present 
information and arguments. RSPA officials preside over public meetings 
and keep a transcript or minutes.
    In Secs. 106.110 through 106.130, we are eliminating the petition 
for reconsideration procedures to streamline the appeal process. 
Commenters supported the proposed change for processing petitions for 
reconsideration and appeals to the Administrator, and stated that the 
change will simplify the process. DuPont stated that revising the 
petition for reconsideration procedures to effectively remove those 
from the process who cannot grant a petition in the first place results 
in a more efficient procedure.
    Section 106.35 currently requires a person to file a petition for 
reconsideration of a rule with either RSPA's Associate Administrator 
for Hazardous Materials Safety or RSPA's Chief Counsel, depending on 
the subject matter of the regulation the person is challenging. 
Currently, Sec. 106.38 then allows a person to appeal the decision of 
the Associate Administrator or the Chief Counsel to RSPA's 
Administrator. However, only the Administrator can issue a final rule. 
Consequently, the Associate Administrator does not have the authority 
to grant a petition for reconsideration that would result in issuance 
of a new final rule, only deny it. By eliminating the petition for 
reconsideration procedures, we are eliminating a step that procedurally 
cannot produce the end result often sought by the petitioner--a new 
final rule. Appeals will now be directly addressed to the 
Administrator. This change does not deprive anyone of the ability to 
appeal a final rule.
    In this final rule, we are also further clarifying the RSPA actions 
that an interested person may appeal. In Secs. 106.110-106.130, we are 
clarifying that you may appeal RSPA's withdrawal of a notice of 
proposed rulemaking, in addition to RSPA's issuance of a final rule.

Part 107

    With the exception of the definitions in part 107, we are moving 
the rest of subpart A in part 107 to new part 105. The definitions 
section, Sec. 107.3, remains in part 107 and is redesignated as 
Sec. 107.1. We are replacing the definitions of ``approval,'' 
``competent authority approval,'' ``exemption,'' ``filed,'' and 
``person'' with definitions that we adopted in section 105.10.
    With regard to the definition of ``Indian tribe,'' we are replacing 
the definition in part 107 with the statutory definition.
    We are replacing the definition of ``state'' in part 107 with the 
definition of ``state'' found in Sec. 171.8 because it is clear and 
simple.
    With regard to the definition of ``transports'' or 
``transportation,'' we are replacing the definition in part 107 with 
the current statutory definition.

Part 171

    To make the definitions in Sec. 171.8 consistent with the 
definitions in new part 105, we are replacing the definitions of 
``approval,'' ``exemption,'' ``hazardous material,'' and ``person'' in 
Sec. 171.8 with the new definitions we are adopting in Sec. 105.10.

3. Regulatory Analysis and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule is not considered a significant regulatory action under 
section 3(f) of Executive Order 12866. Consequently, it was not 
reviewed by the Office of Management and Budget. RSPA has not prepared 
a regulatory impact analysis or a regulatory evaluation because this 
proposed rule has minimal economic impact. This rule is not significant 
according to the Regulatory Policies and Procedures of the Department 
of Transportation (44 FR 11034; February 26, 1979).

Executive Order 13132

    RSPA has analyzed this rule in accordance with the principles and 
criteria in Executive Order 13132 (``Federalism''). RSPA has determined 
that the rule does not have sufficient Federalism impacts to warrant 
the preparation of a Federalism assessment.

Executive Order 13175

    These clarified procedural regulations will not have substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal

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Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes when 
analyzed under the principles and criteria contained in Executive Order 
13175 (``Consultation and Coordination with Indian Tribal 
Governments''). Therefore, the funding and consultation requirements of 
this Executive Order do not apply.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), RSPA 
must consider whether a regulation would have a significant economic 
impact on a substantial number of small entities. This rule merely 
clarifies and revises RSPA's general procedures and rulemaking 
procedures to assist the public to better understand our procedures. 
Therefore, I certify that this proposed rule will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. The information collection requirements in 49 CFR parts 
106 and 107 have been approved under OMB Control No. 2137-0051, 
``Rulemaking and Exemptions Petitions.'' This final rule does not 
impose new information collection requirements.

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading of this document to cross-
reference this action with the Unified Agenda.

Unfunded Mandates Reform Act

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $100 
million or more to either State, local, or tribal governments, in the 
aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objectives of the rule.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 106

    Administrative practice and procedure, Hazardous materials 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Reporting and recordkeeping requirements.


    Accordingly, RSPA amends 49 CFR chapter I, subchapter A, as 
follows:
    1. Add part 105 to read as follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

Subpart A--Definitions
Sec.
105.5   Definitions.
Subpart B--General Procedures
105.15   Defined terms are used in this subpart.

Obtaining Guidance and Public Information

105.20   Guidance and interpretations.
105.25   Reviewing public documents.
105.26   Obtaining records on file with RSPA.
105.30   Information made available to the public and request for 
confidential treatment.

Serving Documents

105.35  Serving documents in RSPA proceedings.
105.40  Designated agents for non-residents.

Subpoenas

105.45   Issuing a subpoena.
105.50  Serving a subpoena.
105.55  Refusal to obey a subpoena.

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Subpart A--Definitions


Sec. 105.5  Definitions

    (a) This part contains the definitions for certain words and 
phrases used throughout this subchapter (49 CFR parts 105 through 110). 
At the beginning of each subpart, the Research and Special Programs 
Administration (``RSPA'' or ``we'') will identify the defined terms 
that are used within the subpart--by listing them--and refer the reader 
to the definitions in this part. This way, readers will know that RSPA 
has given a term a precise meaning and will know where to look for it.
    (b) Terms used in this part are defined as follows:
    Associate Administrator means Associate Administrator for Hazardous 
Materials Safety, Research and Special Programs Administration.
    Approval means written consent, including a competent authority 
approval, from the Associate Administrator or other designated 
Department official, to perform a function that requires prior consent 
under subchapter C of this chapter (49 CFR parts 171 through 180).
    Competent Authority means a national agency that is responsible, 
under its national law, for the control or regulation of some aspect of 
hazardous materials (dangerous goods) transportation. Another term for 
Competent Authority is ``Appropriate authority'' which is used in the 
International Civil Aviation Organization's (ICAO) Technical 
Instructions for the Safe Transport of Dangerous Goods by Air. The 
Associate Administrator is the United States Competent Authority for 
purposes of 49 CFR part 107.
    Competent Authority Approval means an approval by the competent 
authority that is required under an international standard (for 
example, the ICAO Technical Instructions for the Safe Transport of 
Dangerous Goods by Air and the International Maritime Dangerous Goods 
Code). Any of the following may be considered a competent authority 
approval if it satisfies the requirement of an international standard:
    (1) A specific regulation in subchapter A or C of this chapter.
    (2) An exemption or approval issued under subchapter A or C of this 
chapter.
    (3) A separate document issued to one or more persons by the 
Associate Administrator.
    Exemption means a document issued by the Associate Administrator 
under the authority of 49 U.S.C. 5117. The document permits a person to 
perform a function that is not otherwise permitted under subchapter A 
or C of this chapter, or other regulations issued under 49 U.S.C. 5101 
et seq. (e.g., Federal Motor Carrier Safety routing requirements.)
    Federal hazardous material transportation law means 49 U.S.C. 5101 
et seq.
    File or Filed means received by the appropriate RSPA or other 
designated office within the time specified in a regulation or 
rulemaking document.
    Hazardous material means a substance or material that the Secretary 
of Transportation has determined is capable of posing an unreasonable 
risk

[[Page 42952]]

to health, safety, and property when transported in commerce, and has 
designated as hazardous under section 5103 of Federal hazardous 
materials transportation law (49 U.S.C. 5103). The term includes 
hazardous substances, hazardous wastes, marine pollutants, elevated 
temperature materials, materials designated as hazardous in the 
Hazardous Materials Table (see 49 CFR 172.101), and materials that meet 
the defining criteria for hazard classes and divisions in part 173 of 
subchapter C of this chapter.
    Hazardous Materials Regulations or HMR means the regulations at 49 
CFR parts 171 through 180.
    Indian tribe has the same meaning given that term in section 4 of 
the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450b).
    Person means an individual, firm, copartnership, corporation, 
company, association, or joint-stock association (including any 
trustee, receiver, assignee, or similar representative); or a 
government or Indian tribe (or an agency or instrumentality of any 
government or Indian tribe) that transports a hazardous material to 
further a commercial enterprise or offers a hazardous material for 
transportation in commerce. Person does not include the following:
    (1) The United States Postal Service.
    (2) Any agency or instrumentality of the Federal government, for 
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal 
penalties).
    (3) Any government or Indian tribe (or an agency or instrumentality 
of any government or Indian tribe) that transports hazardous material 
for a governmental purpose.
    Political subdivision means a municipality; a public agency or 
other instrumentality of one or more States, municipalities, or other 
political body of a State; or a public corporation, board, or 
commission established under the laws of one or more States.
    Preemption determination means an administrative decision by the 
Associate Administrator that Federal hazardous materials law does or 
does not void a specific State, political subdivision, or Indian tribe 
requirement.
    Regulations issued under Federal hazardous materials transportation 
law means regulations contained in subchapter A of this chapter (49 CFR 
parts 105 through 110) and in subchapter C of this chapter (49 CFR 
parts 171 through 180).
    State means a State of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other 
territory or possession of the United States designated by the 
Secretary.
    Transports or Transportation means the movement of property and 
loading, unloading, or storage incidental to the movement.
    Waiver of Preemption means a decision by the Associate 
Administrator to forego preemption of a non-Federal requirement--that 
is, to allow a State, political subdivision or Indian tribe requirement 
to remain in effect. The non-Federal requirement must provide at least 
as much public protection as the Federal hazardous materials 
transportation law and the regulations issued under Federal hazardous 
materials transportation law, and may not unreasonably burden commerce.

Subpart B--General Procedures


Sec. 105.15  Defined terms used in this subpart.

    The following defined terms (see subpart A of this part) appear in 
this subpart: Approval; Exemption; Federal hazardous material 
transportation law; Hazardous material; Hazardous materials 
regulations; Indian tribe; Preemption determination; State; 
Transportation; Waiver of preemption

Obtaining Guidance and Public Information


Sec. 105.20  Guidance and interpretations.

    (a) Hazardous materials regulations. You can obtain information and 
answers to your questions on compliance with the hazardous materials 
regulations (49 CFR parts 171 through 180) and interpretations of those 
regulations by contacting RSPA's Office of Hazardous Materials Safety 
as follows:
    (1) Call the Hazardous Materials Information Center at 1-800-467-
4922 (in Washington, DC, call 202-366-4488). The Center is staffed from 
9 a.m. through 5 p.m. Eastern time, Monday through Friday except 
Federal holidays. After hours, you can leave a recorded message and 
your call will be returned by the next business day.
    (2) E-mail the Hazardous Materials Information Center at 
[email protected].
    (3) Access the Office of Hazardous Materials Safety home page via 
the Internet at http://hazmat.dot.gov.
    (4) Send a letter, with your return address and a daytime telephone 
number, to: Office of Hazardous Materials Standards, Research and 
Special Programs Administration, Attn: DHM-10, U.S. Department of 
Transportation, 400 7th Street SW., Washington, DC 20590-0001.
    (b) Federal hazardous materials transportation law and preemption. 
You can obtain information and answers to your questions on Federal 
hazardous materials transportation law, 49 U.S.C. 5101 et seq., and 
Federal preemption of State, local, and Indian tribe hazardous material 
transportation requirements, by contacting RSPA's Office of the Chief 
Counsel as follows:
    (1) Call the office of the Chief Counsel at (202) 366-4400 from 9 
a.m. to 5 p.m. Eastern time, Monday through Friday except Federal 
holidays.
    (2) Access the Office of the Chief Counsel's home page via the 
Internet at http://rspa-atty.dot.gov.
    (3) Send a letter, with your return address and a daytime telephone 
number, to: Office of the Chief Counsel, Research and Special Programs 
Administration, Attn: DCC-10, U.S. Department of Transportation, 
Washington, DC 20590-0001.
    (4) Contact the Office of the Chief Counsel for a copy of 
applications for preemption determinations, waiver of preemption 
determinations, and inconsistency rulings received by RSPA before 
February 1, 1997.


Sec. 105.25  Reviewing public documents.

    RSPA is required by statute to make certain documents and 
information available to the public. You can review and copy publicly 
available documents and information at the locations described in this 
section.
    (a) DOT Docket Management System. Unless a particular document says 
otherwise, the following documents are available for public review and 
copying at the Department of Transportation's Docket Management System, 
Room PL 401, 400 7th Street, SW., Washington, DC 20590-0001, or for 
review and downloading through the Internet at http://dms.dot.gov:
    (1) Rulemaking documents in proceedings started after February 1, 
1997, including notices of proposed rulemaking, advance notices of 
proposed rulemaking, public comments, related Federal Register notices, 
final rules, appeals, and RSPA's decisions in response to appeals.
    (2) Applications for exemption received by RSPA after February 1, 
1997. Also available are supporting data, memoranda of any informal 
meetings with applicants, related Federal Register notices, public 
comments, and decisions granting or denying exemptions applications.
    (3) Applications for preemption determinations and waiver of 
preemption determinations received by RSPA after February 1, 1997. Also 
available are public comments, Federal

[[Page 42953]]

Register notices, and RSPA's rulings, determinations, decisions on 
reconsideration, and orders issued in response to those applications.
    (b) Hazardous Materials Record Center. Applications for exemptions 
and related background information received by RSPA before February 1, 
1997 are available for public review and copying at the Hazardous 
Materials Record Center, U.S. Department of Transportation, Room 8421, 
400 7th Street, SW., Washington, DC 20590-0001:
    (c) Office of Hazardous Materials Safety. (1) You may obtain 
documents (e.g., proposed and final rules, notices, letters of 
clarification, safety notices, DOT forms and other documents) by using 
the ``Fax On Demand'' system. To reach the ``Fax On Demand'' system, 
dial 1-800-467-4922 and select Option 2. You may choose documents to be 
faxed to your machine.
    (2) Upon your written request, we will make the following documents 
and information available to you:
    (i) Appeals under 49 CFR part 107 and RSPA's decisions issued in 
response to those appeals.
    (ii) Records of compliance order proceedings and RSPA compliance 
orders.
    (iii) Applications for approvals, including supporting data, 
memoranda of any informal meetings with applicants, and decisions 
granting or denying approvals applications.
    (iv) Other information about RSPA's hazardous materials program 
required by statute to be made available to the public for review and 
copying and any other information RSPA decides should be available to 
the public.
    (3) Your written request to review documents should include the 
following:
    (i) A detailed description of the documents you wish to review.
    (ii) Your name, address, and telephone number.
    (4) Send your written request to: Associate Administrator for 
Hazardous Materials Safety, Research and Special Programs 
Administration, Attn: DHM-1, U.S. Department of Transportation, 400 7th 
Street, SW., Washington, DC 20590-0001.


Sec. 105.26  Obtaining records on file with RSPA.

    To obtain records on file with RSPA, other than those described in 
Sec. 105.25, you must file a request with RSPA under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552). The procedures for filing a FOIA 
request are contained in 49 CFR part 7.


Sec. 105.30  Information made available to the public and request for 
confidential treatment.

    When you submit information to RSPA during a rulemaking proceeding, 
as part of your application for exemption or approval, or for any other 
reason, we may make that information publicly available unless you ask 
that we keep the information confidential.
    (a) Asking for confidential treatment. You may ask us to give 
confidential treatment to information you give to the agency by taking 
the following steps:
    (1) Mark ``confidential'' on each page of the original document you 
would like to keep confidential.
    (2) Send us, along with the original document, a second copy of the 
original document with the confidential information deleted.
    (3) Explain why the information you are submitting is confidential 
(for example, it is exempt from mandatory public disclosure under the 
Freedom of Information Act, 5 U.S.C. 552 or it is information referred 
to in 18 U.S.C. 1905).
    (b) RSPA Decision. RSPA will decide whether or not to treat your 
information as confidential. We will notify you, in writing, of a 
decision to grant or deny confidentiality at least five days before the 
information is publicly disclosed, and give you an opportunity to 
respond.

Serving Documents


Sec. 105.35  Serving documents in RSPA proceedings.

    (a) Service by RSPA. We may serve the document by one of the 
following methods, except where a different method of service is 
specifically required:
    (1) Registered or certified mail.
    (i) If we serve a document by registered or certified mail, it is 
considered served when mailed.
    (ii) An official United States Postal Service receipt from the 
registered or certified mailing is proof of service.
    (iii) We may serve a person's authorized representative or agent by 
registered or certified mail, or in any other manner authorized by law. 
Service on a person's authorized agent is the same as service on the 
person.
    (2) Personal service.
    (3) Publication in the Federal Register.
    (b) Service by others. If you are required under this subchapter to 
serve a person with a document, serve the document by one of the 
following methods, except where a different method of service is 
specifically required:
    (1) Registered or certified mail.
    (i) If you serve a document by registered or certified mail, it is 
considered served when mailed.
    (ii) An official United States Postal Service receipt from the 
registered or certified mailing is proof of service.
    (iii) You may serve a person's authorized representative or agent 
by registered or certified mail or in any other manner authorized by 
law. Service on a person's authorized agent is the same as service on 
the person.
    (2) Personal service.
    (3) Electronic service.
    (i) In a proceeding under Sec. 107.317 of this subchapter (an 
administrative law judge proceeding), you may electronically serve 
documents on us.
    (ii) Serve documents electronically through the Internet at http://dms.dot.gov.


Sec. 105.40  Designated agents for non-residents.

    (a) General requirement. If you are not a resident of the United 
States but are required by this subchapter or subchapter C of this 
chapter to designate a permanent resident of the United States to act 
as your agent and receive documents on your behalf, you must prepare a 
designation and file it with us.
    (b) Agents. An agent:
    (1) May be an individual, a firm, or a domestic corporation.
    (2) May represent any number of principals.
    (3) May not reassign responsibilities under a designation to 
another person.
    (c) Preparing a designation. Your designation must be written and 
dated, and it must contain the following information:
    (1) The section in the HMR that requires you to file a designation.
    (2) A certification that the designation is in the correct legal 
form required to make it valid and binding on you under the laws, 
corporate bylaws, and other requirements that apply to designations at 
the time and place you are making the designation.
    (3) Your full legal name, the principal name of your business, and 
your mailing address.
    (4) A statement that your designation will remain in effect until 
you withdraw or replace it.
    (5) The legal name and mailing address of your agent.
    (6) A declaration of acceptance signed by your agent.
    (d) Address. Send your designation to:
    Office of Hazardous Materials Exemptions and Approvals Research and 
Special Programs Administration, Attn: DHM-30, U.S. Department of 
Transportation 400 7th Street, SW., Washington, DC 20590-0001.

[[Page 42954]]

    (e) Designations are binding. You are bound by your designation of 
an agent, even if you did not follow all the requirements in this 
section, until we reject your designation.

Subpoenas


Sec. 105.45  Issuing a subpoena.

    (a) Subpoenas explained. A subpoena is a document that may require 
you to attend a proceeding, produce documents or other physical 
evidence in your possession or control, or both. RSPA may issue a 
subpoena either on its initiative or at the request of someone 
participating in a proceeding. Anyone who requests that RSPA issue a 
subpoena must show that the subpoena seeks information that will 
materially advance the proceeding.
    (b) Attendance and mileage expenses.
    (1) If you receive a subpoena to attend a proceeding under this 
part, you may receive money to cover attendance and mileage expenses. 
The attendance and mileage fees will be the same as those paid to a 
witness in a proceeding in the district courts of the United States.
    (2) If RSPA issues a subpoena to you based upon a request, the 
requester must serve a copy of the original subpoena on you, as 
required in Sec. 105.50. The requester must also include attendance and 
mileage fees with the subpoena unless the requester asks RSPA to pay 
the attendance and mileage fees because of demonstrated financial 
hardship and RSPA agrees to do so.
    (3) If RSPA issues a subpoena at the request of an officer or 
agency of the Federal government, the officer or agency is not required 
to include attendance and mileage fees when serving the subpoena. The 
officer or agency must pay the fees before you leave the hearing at 
which you testify.


Sec. 105.50  Serving a subpoena.

    (a) Personal service. Anyone who is not an interested party and who 
is at least 18 years of age may serve you with a subpoena and fees by 
handing the subpoena and fees to you, by leaving them at your office 
with the individual in charge, or by leaving them at your house with 
someone who lives there and is capable of making sure that you receive 
them. If RSPA issues a subpoena to an entity, rather than an 
individual, personal service is made by delivering the subpoena and 
fees to the entity's registered agent for service of process or to any 
officer, director or agent in charge of any of the entity's offices.
    (b) Service by mail. You may be served with a copy of a subpoena 
and fees by certified or registered mail at your last known address. 
Service of a subpoena and fees may also be made by registered or 
certified mail to your agent for service of process or any of your 
representatives at that person's last known address.
    (c) Other methods. You may be served with a copy of a subpoena by 
any method where you receive actual notice of the subpoena and receive 
the fees before leaving the hearing at which you testify.
    (d) Filing after service. After service is complete, the individual 
who served a copy of a subpoena and fees must file the original 
subpoena and a certificate of service with the RSPA official who is 
responsible for conducting the hearing.


Sec. 105.55  Refusal to obey a subpoena.

    (a) Quashing or modifying a subpoena. If you receive a subpoena, 
you can ask RSPA to overturn (``quash'') or modify the subpoena within 
10 days after the subpoena is served on you. Your request must briefly 
explain the reasons you are asking for the subpoena to be quashed or 
modified. RSPA may then do the following:
    (1) Deny your request.
    (2) Quash or modify the subpoena.
    (3) Grant your request on the condition that you satisfy certain 
specified requirements.
    (b) Failure to obey. If you disobey a subpoena, RSPA may ask the 
Attorney General to seek help from the United States District Court for 
the appropriate District to compel you, after notice, to appear before 
RSPA and give testimony, produce subpoenaed documents or physical 
evidence, or both.

    2. Revise part 106 to read as follows:

PART 106--RULEMAKING PROCEDURES

Subpart A--RSPA Rulemaking Documents
Sec.
106.5   Defined terms used in this subpart.
106.10   Process for issuing rules.
106.15   Advance notice of proposed rulemaking.
106.20   Notice of proposed rulemaking.
106.25   Revising regulations without first issuing an ANPRM or 
NPRM.
106.30   Final rule.
106.35   Interim final rule.
106.40   Direct final rule.
106.45   Tracking rulemaking actions.
Subpart B--Participating in the Rulemaking Process
106.50   Defined terms used in this subpart.
106.55   Public participation in the rulemaking process.

Written Comments

106.60   Filing comments.
106.65   Required information for written comments.
106.70   Where and when to file comments.
106.75   Extension of time to file comments.

Public Meetings and Other Proceedings

106.80   Public meeting procedures.
106.85   Requesting a public meeting.
106.90   Other rulemaking proceedings.

Petitions for Rulemaking

106.95   Requesting a change to the regulations.
106.100   Required information for a petition for rulemaking.
106.105   RSPA response to a petition for rulemaking.

Appeals

106.110   Appealing a RSPA action.
106.115   Required information for an appeal.
106.120   Appeal deadline.
106.125   Filing an appeal.
106.130   RSPA response to an appeal.

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Subpart A--RSPA Rulemaking Documents


Sec. 106.5  Defined terms used in this subpart.

    The following defined terms (see part 105, subpart A, of this 
subchapter) appear in this subpart: File; Person; State.


Sec. 106.10  Process for issuing rules.

    (a) RSPA (``we'') uses informal rulemaking procedures under the 
Administrative Procedure Act (5 U.S.C. 553) to add, amend, or delete 
regulations. To propose or adopt changes to a regulation, RSPA may 
issue one or more of the following documents. We publish the following 
rulemaking documents in the Federal Register unless we name and 
personally serve a copy of a rule on every person subject to it:
    (1) An advance notice of proposed rulemaking.
    (2) A notice of proposed rulemaking.
    (3) A final rule.
    (4) An interim final rule.
    (5) A direct final rule.
    (b) Each of the rulemaking documents in paragraph (a) of this 
section generally contains the following information:
    (1) The topic involved in the rulemaking document.
    (2) RSPA's legal authority for issuing the rulemaking document.
    (3) How interested persons may participate in the rulemaking 
proceeding (for example, by filing written comments or making oral 
presentations).
    (4) Whom to call if you have questions about the rulemaking 
document.
    (5) The date, time, and place of any public meetings being held to 
discuss the rulemaking document.
    (6) The docket number and regulation identifier number (RIN) for 
the rulemaking proceeding.

[[Page 42955]]

Sec. 106.15  Advance notice of proposed rulemaking.

    An advance notice of proposed rulemaking (ANPRM) tells the public 
that RSPA is considering an area for rulemaking and requests written 
comments on the appropriate scope of the rulemaking or on specific 
topics. An advance notice of proposed rulemaking may or may not include 
the text of potential changes to a regulation.


Sec. 106.20  Notice of proposed rulemaking.

    A notice of proposed rulemaking (NPRM) contains RSPA's specific 
proposed regulatory changes for public comment and contains supporting 
information. It generally includes proposed regulatory text.


Sec. 106.25  Revising regulations without first issuing an ANPRM or 
NPRM.

    RSPA may add, amend, or delete regulations without first issuing an 
ANPRM or NPRM in the following situations:
    (a) We may go directly to a final rule or interim final rule if, 
for good cause, we find that a notice of proposed rulemaking is 
impracticable, unnecessary, or contrary to the public interest. We must 
place that finding and a brief statement of the reasons for it in the 
final rule or interim final rule.
    (b) We may issue a direct final rule (see Sec. 106.40).


Sec. 106.30  Final rule.

    A final rule sets out new regulatory requirements and their 
effective date. A final rule will also identify issues raised by 
commenters in response to the notice of proposed rulemaking and give 
the agency's response.


Sec. 106.35  Interim final rule.

    An interim final rule is issued without first issuing a notice of 
proposed rulemaking and accepting public comments and sets out new 
regulatory requirements and their effective date. RSPA may issue an 
interim final rule if it finds, for good cause, that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest. RSPA will clearly set out this finding in the interim final 
rule. After receiving and reviewing public comments, as well as any 
other relevant documents, RSPA may revise the interim final rule and 
then issue a final rule.


Sec. 106.40  Direct final rule.

    A direct final rule makes regulatory changes and states that the 
regulatory changes will take effect on a specified date unless RSPA 
receives an adverse comment or notice of intent to file an adverse 
comment within the comment period--generally 60 days after the direct 
final rule is published in the Federal Register.
    (a) Actions taken by direct final rule. We may use direct final 
rulemaking procedures to issue rules that do any of the following:
    (1) Make minor substantive changes to regulations.
    (2) Incorporate by reference the latest edition of technical or 
industry standards.
    (3) Extend compliance dates.
    (4) Make noncontroversial changes to regulations. We must determine 
and publish a finding that use of direct final rulemaking, in this 
situation, is in the public interest and unlikely to result in adverse 
comment.
    (b) Adverse comment. An adverse comment explains why a rule would 
be inappropriate, or would be ineffective or unacceptable without a 
change. It may challenge the rule's underlying premise or approach. 
Under the direct final rule process, we do not consider the following 
types of comments to be adverse:
    (1) A comment recommending another rule change, in addition to the 
change in the direct final rule at issue, unless the commenter states 
why the direct final rule would be ineffective without the change.
    (2) A frivolous or irrelevant comment.
    (c) Confirmation of effective date. We will publish a confirmation 
document in the Federal Register, generally within 15 days after the 
comment period closes, if we have not received an adverse comment or 
notice of intent to file an adverse comment. The confirmation document 
tells the public the effective date of the rule--either the date stated 
in the direct final rule or at least 30 days after the publication date 
of the confirmation document, whichever is later.
    (d) Withdrawing a direct final rule. (1) If we receive an adverse 
comment or notice of intent to file an adverse comment, we will publish 
a document in the Federal Register before the effective date of the 
direct final rule advising the public and withdrawing the direct final 
rule in whole or in part.
    (2) If we withdraw a direct final rule because of an adverse 
comment, we may incorporate the adverse comment into a later direct 
final rule or may publish a notice of proposed rulemaking.
    (e) Appeal. You may appeal RSPA's issuance of a direct final rule 
(see Sec. 106.115) only if you have previously filed written comments 
(see Sec. 106.60) to the direct final rule.


Sec. 106.45  Tracking rulemaking actions.

    The following identifying numbers allow you to track RSPA's 
rulemaking activities:
    (a) Docket number. We assign an identifying number, called a docket 
number, to each rulemaking proceeding. Each rulemaking document that 
RSPA issues in a particular rulemaking proceeding will display the same 
docket number. This number allows you to do the following:
    (1) Associate related documents that appear in the Federal 
Register.
    (2) Search the DOT Docket Management System (``DMS'') for 
information on particular rulemaking proceedings--including notices of 
proposed rulemaking, public comments, petitions for rulemaking, 
appeals, records of additional rulemaking proceedings and final rules. 
There are two ways you can search the DMS:
    (i) Visit the public docket room and review and copy any docketed 
materials during regular business hours. The DOT Docket Management 
System is located at the U.S. Department of Transportation, Plaza Level 
401, 400 7th Street, SW., Washington, DC 20590-0001.
    (ii) View and download docketed materials through the Internet at 
http://dms.dot.gov.
    (b) Regulation identifier number. The Department of Transportation 
publishes a semiannual agenda of all current and projected Department 
of Transportation rulemakings, reviews of existing regulations, and 
completed actions. This semiannual agenda appears in the Unified Agenda 
of Federal Regulations that is published in the Federal Register in 
April and October of each year. The semiannual agenda tells the public 
about the Department's--including RSPA's--regulatory activities. The 
Department assigns a regulation identifier number (RIN) to each 
individual rulemaking proceeding in the semiannual agenda. This number 
appears on all rulemaking documents published in the Federal Register 
and makes it easy for you to track those rulemaking proceedings in both 
the Federal Register and the semiannual regulatory agenda itself, as 
well as to locate all documents in the Docket Management System 
pertaining to a particular rulemaking.

Subpart B--Participating in the Rulemaking Process


Sec. 106.50  Defined terms used in this subpart.

    The following defined terms (see part 105, subpart A, of this 
subchapter)

[[Page 42956]]

appear in this subpart: File; Person; Political subdivision; State.


Sec. 106.55  Public participation in the rulemaking process.

    You may participate in RSPA's rulemaking process by doing any of 
the following:
    (a) File written comments on any rulemaking document that asks for 
comments, including an advance notice of proposed rulemaking, notice of 
proposed rulemaking, interim final rule, or direct final rule.
    (b) Ask that we hold a public meeting in any rulemaking proceeding 
and participate in any public meeting that we hold.
    (c) File a petition for rulemaking that asks us to add, amend, or 
delete a regulation.
    (d) File an appeal that asks us to reexamine our decision to issue 
all or part of a final rule, interim final rule, or direct final rule.

Written Comments


Sec. 106.60  Filing comments.

    Anyone may file written comments about proposals made in any 
rulemaking document that requests public comments, including any State 
government agency, any political subdivision of a State, and any 
interested person invited by RSPA to participate in the rulemaking 
process.


Sec. 106.65  Required information for written comments.

    Your comments must be in English and must contain the following:
    (a) The docket number of the rulemaking document you are commenting 
on, clearly set out at the beginning of your comments.
    (b) Information, views, or arguments that follow the instructions 
for participation that appear in the rulemaking document on which you 
are commenting.
    (c) All material that is relevant to any statement of fact in your 
comments.
    (d) The document title and page number of any material that you 
reference in your comments.


Sec. 106.70  Where and when to file comments.

    (a) Unless you are told to do otherwise in the rulemaking document 
on which you are commenting, send your comments to us in either of the 
following ways:
    (1) By mail to: Docket Management System, U.S. Department of 
Transportation, Room PL 401, Washington, DC 20590-0001.
    (2) Through the Internet to http://dms.dot.gov.
    (b) Make sure that your comments reach us by the deadline set out 
in the rulemaking document on you which are commenting. We will 
consider late-filed comments to the extent possible.
    (c) We may reject comments that are not relevant to the rulemaking. 
We may reject comments you file electronically if you do not follow the 
electronic filing instructions at the DOT Web site.


Sec. 106.75  Extension of time to file comments.

    You may ask for more time to file comments on a rulemaking 
proceeding. If RSPA grants your request, it is granted to all persons. 
We will notify the public of the extension by publishing a document in 
the Federal Register. If RSPA denies your request, RSPA will notify you 
of the denial. To ask for more time, you must do the following:
    (a) File a request for extension at least ten days before the end 
of the comment period established in the rulemaking document.
    (b) Show that you have good cause for the extension and that an 
extension is in the public interest.
    (c) Include the docket number of the rulemaking document you are 
seeking additional time to comment on, clearly set out at the beginning 
of your request.
    (d) Send your request to: Docket Management System, U.S. Department 
of Transportation, Room PL 401, 400 7th Street, SW., Washington, DC 
20590-0001.

Public Meetings and Other Proceedings


Sec. 106.80  Public meeting procedures.

    A public meeting is a non-adversarial, fact-finding proceeding 
conducted by a RSPA representative. Generally, public meetings are 
announced in the Federal Register. Interested persons are invited to 
attend and to present their views to the agency on specific issues. 
There are no formal pleadings and no adverse parties, and any 
regulation issued afterward is not necessarily based exclusively on the 
record of the meeting. Sections 556 and 557 of the Administrative 
Procedure Act (5 U.S.C. 556 and 557) do not apply to public meetings 
under this part.


Sec. 106.85  Requesting a public meeting.

    (a) You may ask for a public meeting by filing a written request 
with RSPA no later than 20 days before the expiration of the comment 
period specified in the rulemaking document. Send your request for a 
public meeting to: Docket Management System, U.S. Department of 
Transportation, Room PL 401, 400 7th Street, SW., Washington, DC 20590-
0001.
    (b) RSPA will review your request and, if you have shown good cause 
for a public meeting, we will grant it and publish a notice of the 
meeting in the Federal Register.


Sec. 106.90  Other rulemaking proceedings.

    During a rulemaking proceeding, RSPA may invite you to do the 
following:
    (a) Participate in a conference at which minutes are taken.
    (b) Make an oral presentation.
    (c) Participate in any other public proceeding to ensure that RSPA 
makes informed decisions during the rulemaking process and to protect 
the public interest, including a negotiated rulemaking or work group 
led by a facilitator.

Petitions for Rulemaking


Sec. 106.95  Requesting a change to the regulations.

    You may ask RSPA to add, amend, or delete a regulation by filing a 
petition for rulemaking as follows:
    (a) For regulations in 49 CFR parts 110, 130, 171 through 180, 
submit the petition to: Office of Hazardous Materials Standards, 
Research and Special Programs Administration, Attn: DHM-10, U.S. 
Department of Transportation, 400 7th Street, SW., Washington, DC 
20590-0001.
    (b) For regulations in 49 CFR parts 105, 106, or 107, submit the 
petition to: Office of the Chief Counsel, Research and Special Programs 
Administration, Attn: DCC-10, U.S. Department of Transportation, 400 
7th Street, SW., Washington, DC 20590-0001.


Sec. 106.100  Required information for a petition for rulemaking.

    (a) You must include the following information in your petition for 
rulemaking:
    (1) A summary of your proposed action and an explanation of its 
purpose.
    (2) The language you propose for a new or amended rule, or the 
language you would delete from a current rule.
    (3) An explanation of your interest in your proposed action and the 
interest of anyone you may represent.
    (4) Information and arguments that support your proposed action, 
including relevant technical and scientific data available to you.
    (5) Any specific cases that support or demonstrate the need for 
your proposed action.
    (b) If the impact of your proposed action is substantial, and data 
or other information about that impact are available to you, we may ask 
that you provide information about the following:

[[Page 42957]]

    (1) The costs and benefits of your proposed action to society in 
general, and identifiable groups within society in particular.
    (2) The direct effects, including preemption effects under section 
5125 of Federal hazardous materials transportation law, of your 
proposed action on States, on the relationship between the Federal 
government and the States, and on the distribution of power and 
responsibilities among the various levels of government. (See 49 CFR 
part 107, subpart C, regarding preemption.)
    (3) The regulatory burden of your proposed action on small 
businesses, small organizations, small governmental jurisdictions, and 
Indian tribes.
    (4) The recordkeeping and reporting burdens of your proposed action 
and whom they would affect.
    (5) The effect of your proposed action on the quality of the 
natural and social environments.


Sec. 106.105  RSPA response to a petition for rulemaking.

    We will review and respond to your petition for rulemaking as 
follows:

------------------------------------------------------------------------
                                       And if we
    If your petition is . . .     determine that . .      Then . . .
-------------------------------------------.----------------------------
(a) Incomplete..................  ..................  We may return your
                                                       petition with a
                                                       written
                                                       explanation.
------------------------------------------------------------------------
(b) Complete....................  Your petition does  We will notify you
                                   not justify a       in writing that
                                   rulemaking action.  we will not start
                                                       a rulemaking
                                                       proceeding.
------------------------------------------------------------------------
(c) Complete....................  Your petition does  We will notify you
                                   justify a           in writing that
                                   rulemaking action.  we will start a
                                                       rulemaking
                                                       proceeding.
------------------------------------------------------------------------

Appeals


Sec. 106.110  Appealing a RSPA Action.

    You may appeal the following RSPA actions:
    (a) RSPA's issuance of a final rule or RSPA's withdrawal of a 
notice of proposed rulemaking under the rulemaking procedures in this 
part. However, you may appeal RSPA's issuance of a direct final rule 
only if you previously filed comments to the direct final rule (see 
Sec. 106.40(e)).
    (b) Any RSPA decision on a petition for rulemaking.


Sec. 106.115  Required information for an appeal.

    (a) Appeal of a final rule or withdrawal of a notice of proposed 
rulemaking. If you appeal RSPA's issuance of a final rule or RSPA's 
withdrawal of a notice of proposed rulemaking, your appeal must include 
the following:
    (1) The docket number of the rulemaking you are concerned about, 
clearly set out at the beginning of your appeal.
    (2) A brief statement of your concern about the final rule or the 
withdrawal of notice of proposed rulemaking at issue.
    (3) An explanation of why compliance with the final rule is not 
practical, reasonable, or in the public interest.
    (4) If you want RSPA to consider more facts, the reason why you did 
not present those facts within the time given during the rulemaking 
process for public comment.
    (b) Appeal of a decision. If you appeal RSPA's decision on a 
petition for rulemaking, you must include the following:
    (1) The contested aspects of the decision.
    (2) Any new arguments or information.


Sec. 106.120  Appeal deadline.

    (a) Appeal of a final rule or withdrawal of a notice of proposed 
rulemaking. If you appeal RSPA's issuance of a final rule or RSPA's 
withdrawal of a proposed rulemaking, your appeal document must reach us 
no later than 30 days after the date RSPA published the regulation or 
the withdrawal notice in the Federal Register. After that time, RSPA 
will consider your petition to be one for rulemaking under 
Sec. 106.100.
    (b) Appeal of a decision. If you appeal RSPA's decision on a 
petition for rulemaking, your appeal document must reach us no later 
than 30 days from the date RSPA served you with written notice of 
RSPA's decision.


Sec. 106.125  Filing an appeal.

    Send your appeal to: Docket Management System, U.S. Department of 
Transportation, Room PL 401, 400 7th Street, SW., Washington, DC 20590-
0001.


Sec. 106.130  RSPA response to an appeal.

    Unless RSPA provides otherwise, filing an appeal will not keep a 
final rule from becoming effective. We will handle an appeal according 
to the following procedures:
    (a) Appeal of a final rule or withdrawal of a notice of proposed 
rulemaking. (1) We may consolidate your appeal with other appeals of 
the same rule.
    (2) We may grant or deny your appeal, in whole or in part, without 
further rulemaking proceedings, unless granting your appeal would 
result in the issuance of a new final rule.
    (3) If we decide to grant your appeal, we may schedule further 
proceedings and an opportunity to comment.
    (4) RSPA will notify you, in writing, of the action on your appeal 
within 90 days after the date that RSPA published the final rule or 
withdrawal of notice of proposed rulemaking at issue in the Federal 
Register. If we do not issue a decision on your appeal within the 90-
day period and we anticipate a substantial delay, we will notify you 
directly about the delay and will give you an expected decision date. 
We will also publish a notice of the delay in the Federal Register.
    (b) Appeal of a decision. (1) We will not consider your appeal if 
it merely repeats arguments that RSPA has previously rejected.
    (2) RSPA will notify you, in writing, of the action on your appeal 
within 90 days after the date that RSPA served you with written notice 
of its decision on your petition for rulemaking. If we do not issue a 
decision on your appeal within the 90-day period, and we anticipate a 
substantial delay, we will notify you directly about the delay and will 
give you an expected decision date.

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

    3. The authority citation for part 107 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L. 
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.


    4. The heading for subpart A is revised to read as follows:

[[Page 42958]]

Subpart A--Definitions


Secs. 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, 107.14  [Removed]

    5. Sections 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, and 107.14 
are removed.

    6. Section 107.3 is redesignated as Sec. 107.1 and, in newly 
redesignated Sec. 107.1, the definitions for ``Approval,'' ``Competent 
Authority,'' ``Competent Authority Approval,'' ``Exemption,'' 
``Filed,'' ``Indian Tribe,'' ``Person,'' ``State,'' and ``Transports or 
transportation'' are revised to read as follows:


Sec. 107.1  Definitions.

* * * * *
    Approval means written consent, including a competent authority 
approval, from the Associate Administrator or other designated 
Department official, to perform a function that requires prior consent 
under subchapter C of this chapter (49 CFR parts 171 through 180).
* * * * *
    Competent Authority means a national agency that is responsible, 
under its national law, for the control or regulation of some aspect of 
hazardous materials (dangerous goods) transportation. Another term for 
Competent Authority is ``Appropriate authority,'' which is used in the 
International Civil Aviation Organization's (ICAO) Technical 
Instructions for the Safe Transport of Dangerous Goods by Air. The 
Associate Administrator is the United States Competent Authority for 
purposes of this part 107.
    Competent Authority Approval means an approval by the competent 
authority that is required under an international standard (for 
example, the ICAO Technical Instructions for the Safe Transport of 
Dangerous Goods by Air and the International Maritime Dangerous Goods 
Code). Any of the following may be considered a competent authority 
approval if it satisfies the requirement of an international standard:
    (1) A specific regulation in subchapter A or C of this chapter.
    (2) An exemption or approval issued under subchapter A or C of this 
chapter.
    (3) A separate document issued to one or more persons by the 
Associate Administrator.
* * * * *
    Exemption means a document issued by the Associate Administrator 
under the authority of 49 U.S.C. 5117. The document permits a person to 
perform a function that is not otherwise permitted under subchapter A 
or C of this chapter, or other regulations issued under 49 U.S.C. 5101 
through 5127 (e.g., Federal Motor Carrier Safety routing requirements.)
* * * * *
    Filed means received by the appropriate RSPA or other designated 
office within the time specified in a regulation or rulemaking 
document.
* * * * *
    Indian Tribe has the same meaning given that term in section 4 of 
the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450b).
* * * * *
    Person means an individual, firm, copartnership, corporation, 
company, association, or joint-stock association (including any 
trustee, receiver, assignee, or similar representative); or a 
government or Indian tribe (or an agency or instrumentality of any 
government or Indian tribe) that transports a hazardous material to 
further a commercial enterprise or offers a hazardous material for 
transportation in commerce. Person does not include the following:
    (1) The United States Postal Service.
    (2) Any agency or instrumentality of the Federal government, for 
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal 
penalties.)
    (3) Any government or Indian tribe (or an agency or instrumentality 
of any government or Indian tribe) that transports hazardous material 
for a governmental purpose.
* * * * *
    State means a State of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other 
territory or possession of the United States designated by the 
Secretary.
    Transports or transportation means the movement of property and 
loading, unloading, or storage incidental to the movement.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    7. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    8. In Sec. 171.8, the definitions for ``Approval,'' ``Exemption,'' 
``Hazardous material,'' and ``Person'' are revised to read as follows:


Sec. 171.8  Definitions and abbreviations.

* * * * *
    Approval means a written authorization, including a competent 
authority approval, from the Associate Administrator or other 
designated Department official, to perform a function for which prior 
authorization by the Associate Administrator is required under 
subchapter C of this chapter (49 CFR parts 171 through 180.)
* * * * *
    Exemption means a document issued by the Associate Administrator 
under the authority of 49 U.S.C. 5117. The document permits a person to 
perform a function that is not otherwise permitted under subchapter A 
or C of this chapter, or other regulations issued under 49 U.S.C. 5101 
through 5127 (e.g., Federal Motor Carrier Safety routing).
* * * * *
    Hazardous material means a substance or material that the Secretary 
of Transportation has determined is capable of posing an unreasonable 
risk to health, safety, and property when transported in commerce, and 
has designated as hazardous under section 5103 of Federal hazardous 
materials transportation law (49 U.S.C. 5103). The term includes 
hazardous substances, hazardous wastes, marine pollutants, elevated 
temperature materials, materials designated as hazardous in the 
Hazardous Materials Table (see 49 CFR 172.101), and materials that meet 
the defining criteria for hazard classes and divisions in part 173 of 
subchapter C of this chapter.
* * * * *
    Person means an individual, firm, copartnership, corporation, 
company, association, or joint-stock association (including any 
trustee, receiver, assignee, or similar representative); or a 
government or Indian tribe (or an agency or instrumentality of any 
government or Indian tribe) that transports a hazardous material to 
further a commercial enterprise or offers a hazardous material for 
transportation in commerce. Person does not include the following:
    (1) The United States Postal Service.
    (2) Any agency or instrumentality of the Federal government, for 
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal 
penalties.).
    (3)Any government or Indian tribe (or an agency or instrumentality 
of any government or Indian tribe) that transports hazardous material 
for a governmental purpose.
* * * * *


[[Page 42959]]


    Issued at Washington, DC, on May 30, 2002, under authority 
delegated in 49 CFR part 106.
Suzanne M. Te Beau,
Acting Administrator.
[FR Doc. 02-15281 Filed 6-24-02; 8:45 am]
BILLING CODE 4910-60-P