[Federal Register Volume 71, Number 101 (Thursday, May 25, 2006)]
[Rules and Regulations]
[Pages 30066-30068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8064]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2006-24824]
RIN 2137-AE18


Hazardous Materials: Preemption Determinations; Procedural 
Regulations

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
revising its procedural regulations for issuing administrative 
determinations as to whether Federal hazardous material transportation 
law preempts a State, local, or Indian tribe requirement and for 
issuing waivers of preemption.

DATES: This rule is effective May 25, 2006.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief 
Counsel, (202) 366-4400, Pipeline and Hazardous Materials Safety 
Administration.

SUPPLEMENTARY INFORMATION: Federal hazardous material transportation 
law, 49 U.S.C. 5101 et seq., authorizes any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe to apply to 
the Secretary of Transportation for a determination as to whether the 
requirement is preempted. 49 U.S.C. 5125(d)(1). The statutory criteria 
for preemption of a non-Federal requirement are set forth in section 
5125(a), (b), (c), and (f). Section 5125(e) authorizes the Secretary of 
Transportation to waive preemption on a finding that the non-Federal 
requirement is not an unreasonable burden on commerce and provides the 
public at least as much protection as the requirements of Federal 
hazardous material transportation law and regulations.
    The Secretary of Transportation has delegated authority to PHMSA to 
decide all requests for preemption determinations and waivers of 
preemption under 49 U.S.C. 5125, except those concerning highway 
routing (which have been delegated to the Federal Motor Carrier Safety 
Administration (FMCSA)). 49 CFR 1.53(b)(2), 1.73(d)(2). PHMSA's 
procedural regulations implementing this authority (49 CFR part 107, 
subpart C (107.201-107.227)) currently designate PHMSA's Associate 
Administrator for Hazardous Materials Safety to receive applications, 
conduct proceedings, and make decisions on applications for preemption 
determinations and waivers.
    PHMSA is transferring these functions to its Chief Counsel and 
amending its procedural regulations accordingly. This change is made 
effective upon publication.
    PHMSA also is amending its procedural regulations to provide that 
decisions on applications under 49 U.S.C. 5125(d) and (e), and 
decisions on petitions for reconsideration of these administrative 
actions, are final upon publication of the decision in the Federal 
Register. Accordingly, the filing of a petition for reconsideration 
will not postpone the 60-day period for filing a petition for judicial 
review of the decision under 49 U.S.C. 5127.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 5125 
and 49 CFR 1.53(b)(2), and amends previously issued regulations 
relating to PHMSA's authority to issue Federal preemption 
determinations and waivers of preemption.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under

[[Page 30067]]

section 3(f) of Executive Order 12866 and, therefore, was not reviewed 
by the Office of Management and Budget. This rule is not significant 
under the Regulatory Policies and Procedures of the Department of 
Transportation (44 FR 11034). This final rule has no economic impact, 
and preparation of a regulatory evaluation is not warranted.

C. Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). The 
final rule has no preemptive effect on State, local, or Indian tribe 
enforcement procedures and penalties, and preparation of a federalism 
assessment is not warranted.

D. Regulatory Flexibility Act and Executive Order 13272

    I certify this final rule will not have a significant economic 
impact on a substantial number of small entities.

E. Paperwork Reduction Act

    There are no new information requirements in this final rule.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Act of 1995. It does not result in annual costs of 
$120.7 million or more, in the aggregate, to any of the following: 
State, local, or Indian tribal governments, or the private sector, and 
is the least burdensome alternative to achieve the objective of the 
rule.

G. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
the spring and fall of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 107

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


0
In consideration of the foregoing, 49 CFR, Subtitle B, Chapter I is 
amended as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Sec.  4 
(28 U.S.C. 2461 note); Pub. L. 104-121 Sec. Sec.  212-213; Pub. L. 
104-134 Sec.  31001; 49 CFR 1.45, 1.53.


0
2. In Sec.  107.201, revise paragraph (d) to read as follows:


Sec.  107.201  Purpose and scope.

* * * * *
    (d) An application for a preemption determination that includes an 
application for a waiver of preemption will be treated and processed 
solely as an application for a preemption determination.
0
3. In Sec.  107.203, revise paragraphs (a), (b)(1), and (d) to read as 
follows:


Sec.  107.203  Application.

    (a) With the exception of highway routing matters covered under 49 
U.S.C. 5125(c), any person, including a State or political subdivision 
thereof or an Indian tribe, directly affected by any requirement of a 
State or political subdivision thereof or an Indian tribe, may apply to 
the Chief Counsel for a determination as to whether that requirement is 
preempted by Sec.  107.202(a), (b), or (c).
    (b) * * *
    (1) Be submitted to the Chief Counsel:
    (i) By mail addressed to the Chief Counsel, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 400 
7th Street, SW., Suite 8417, Washington, DC 20590-0001;
    (ii) By facsimile to 202-366-7041; or
    (iii) Electronically to the Chief Counsel at 
[email protected].
* * * * *
    (d) Once the Chief Counsel has published notice in the Federal 
Register of an application received under paragraph (a) of this 
section, no applicant for such determination may seek relief with 
respect to the same or substantially the same issue in any court until 
final action has been taken on the application or until 180 days after 
filing of the application, whichever occurs first. Nothing in Sec.  
107.203(a) prohibits a State or political subdivision thereof or Indian 
tribe, or any other person directly affected by any requirement of a 
State or political subdivision thereof or Indian tribe, from seeking a 
determination of preemption in any court of competent jurisdiction in 
lieu of applying to the Chief Counsel under paragraph (a) of this 
section.

0
4. In Sec.  107.205, make the following changes:
0
a. In paragraph (a), remove the term ``Associate Administrator'' both 
times it appears and add in its place the term ``Chief Counsel.''
0
b. In paragraph (b), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
c. Revise paragraph (c).
    The revisions read as follows:


Sec.  107.205  Notice.

* * * * *
    (c) Each person submitting written comments to the Chief Counsel 
with respect to an application filed under this section must send a 
copy of the comments to the applicant and certify to the Chief Counsel 
that he or she has complied with this requirement. The Chief Counsel 
may notify other persons participating in the proceeding of the 
comments and provide an opportunity for those other persons to respond. 
Late-filed comments are considered so far as practicable.


Sec.  107.207  [Amended]

0
5. In Sec.  107.207(a) and (b), remove the term ``Associate 
Administrator'' each time it appears (five times in total) and add in 
its place the term ``Chief Counsel.''

0
6. In Sec.  107.209, make the following changes:
0
a. In paragraphs (a) and (b), remove the term ``Associate 
Administrator'' and add in its place the term ``Chief Counsel.''
0
b. Revise paragraph (c) to read as follows:


Sec.  107.209  Determination.

* * * * *
    (c) The Chief Counsel provides a copy of the determination to the 
applicant and to any other person who substantially participated in the 
proceeding or requested in comments to the docket to be notified of the 
determination. A copy of each determination is placed on file in the 
public docket. The Chief Counsel will publish the determination or 
notice of the determination in the Federal Register, at which time the 
determination becomes a final agency action.
* * * * *

0
7. In Sec.  107.211, make the following changes:
0
a. Revise paragraphs (a) and (d).
0
b. In paragraph (b), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel''.
0
c. In paragraph (c), remove the term ``Associate Administrator'' both 
times it appears and add in its place the term ``Chief Counsel.''

[[Page 30068]]

    The revisions read as follows:


Sec.  107.211  Petition for reconsideration.

    (a) Any person aggrieved by a determination issued under Sec.  
107.209 may file a petition for reconsideration. The petition must be 
filed with the Chief Counsel, in the same manner specified for filing 
an application in Sec.  107.203(b), within 20 days of publication of 
the determination in the Federal Register.
* * * * *
    (d) The Chief Counsel will publish the decision on the petition for 
reconsideration or notice of the decision in the Federal Register, at 
which time the decision on the petition for reconsideration becomes a 
final agency action.

0
8. Revise Sec.  107.213 to read as follows:


Sec.  107.213  Judicial review.

    A party to a proceeding under Sec.  107.203(a) may seek review of a 
determination of the Chief Counsel by filing a petition, within 60 days 
after the determination becomes final, in the United States Court of 
Appeals for the District of Columbia or in the Court of Appeals for the 
United States for the circuit in which the person resides or has its 
principal place of business.

0
9. In Sec.  107.215, revise paragraph (a) introductory text and 
paragraph (b)(1) to read as follows:


Sec.  107.215  Application.

    (a) With the exception of requirements preempted under 49 U.S.C. 
5125(c), a State or political subdivision thereof, or Indian tribe may 
apply to the Chief Counsel for a waiver of preemption with respect to 
any requirement that the State or political subdivision thereof or 
Indian tribe acknowledges to be preempted under the Federal hazardous 
materials transportation law, or that has been determined by a court of 
competent jurisdiction to be so preempted. The Chief Counsel may waive 
preemption with respect to such requirement upon a determination that 
such requirement--
* * * * *
    (b) * * *
    (1) Be submitted to the Chief Counsel:
    (i) By mail addressed to the Chief Counsel, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 400 
7th Street, SW., Suite 8417, Washington, DC 20590-0001;
    (ii) By facsimile to 202-366-7041; or
    (iii) Electronically to the Chief Counsel at 
[email protected].
* * * * *


Sec.  107.217  [Amended]

0
10. In Sec.  107.217, make the following changes:
0
a. In paragraph (a), remove the phrases ``to the Associate 
Administrator'' and ``filed with the Associate Administrator.''
0
b. In paragraph (b)(2), remove the phrase ``filed with the Associate 
Administrator.''
0
c. In paragraph (c) , remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
d. In paragraph (d), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
e. In paragraph (e), remove the phrase ``to the Associate 
Administrator'' both times it appears and, in the last sentence, remove 
the term ``Associate Administrator'' and add in its place the term 
``Chief Counsel.''


Sec.  107.219  [Amended]

0
11. In Sec.  107.219, make the following changes:
0
a. In paragraphs (a) and (b), remove the term ``Associate 
Administrator'' each time it appears (four times in total) and add in 
its place the term `` Chief Counsel.''
0
b. In the first sentence of paragraph (c), remove the term ``Associate 
Administrator'' and add in its place the term ``Chief Counsel.''
0
c. In the first sentence of paragraph (d), remove the term ``Associate 
Administrator'' and add in its place the term ``Chief Counsel.''

0
12. In Sec.  107.221, make the following changes:
0
a. In paragraph (a), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
b. In paragraph (b) remove the term ``Associate Administrator'' both 
times it appears and add in its place the term ``Chief Counsel.''
0
c. In paragraph (c), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
d. Revise paragraph (d) to read as follows:


Sec.  107.221  Determination.

* * * * *
    (d) The Chief Counsel provides a copy of the determination to the 
applicant and to any other person who substantially participated in the 
proceeding or requested in comments to the docket to be notified of the 
determination. A copy of the determination is placed on file in the 
public docket. The Chief Counsel will publish the determination or 
notice of the determination in the Federal Register, at which time the 
determination becomes a final agency action.
* * * * *

0
13. In Sec.  107.223, make the following changes:
0
a. Revise paragraphs (a) and (d).
0
b. In paragraph (b), remove the term ``Associate Administrator'' and 
add in its place the term ``Chief Counsel.''
0
c. In paragraph (c), remove the term ``Associate Administrator'' both 
times it appears and add in its place the term ``Chief Counsel.''
    The revisions read as follows:


Sec.  107.223  Petition for reconsideration.

    (a) Any person aggrieved by a determination under Sec.  107.221 may 
file a petition for reconsideration. The petition must be filed with 
the Chief Counsel, in the same manner specified for filing an 
application in Sec.  107.215(b), within 20 days of publication of the 
determination in the Federal Register.
* * * * *
    (d) The Chief Counsel will publish the decision on the petition for 
reconsideration or notice of the decision in the Federal Register, at 
which time the decision on the petition for reconsideration becomes a 
final agency action.

0
14. Revise Sec.  107.227 to read as follows:


Sec.  107.227  Judicial review.

    A party to a proceeding under Sec.  107.215(a) may seek review of a 
determination of the Chief Counsel by filing a petition, within 60 days 
after the determination becomes final, in the United States Court of 
Appeals for the District of Columbia or in the Court of Appeals for the 
United States for the circuit in which the person resides or has its 
principal place of business.

    Issued in Washington, DC on May 18, 2006.
Brigham A. McCown,
Acting Administrator.
 [FR Doc. E6-8064 Filed 5-24-06; 8:45 am]
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