96-24715. Exemption, Approval, Registration and Reporting Procedures; Miscellaneous Provisions  

  • [Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
    [Rules and Regulations]
    [Pages 51235-51236]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-24715]
    
    
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    DEPARTMENT OF TRANSPORTATION
    
    Research and Special Programs Administration
    
    49 CFR Part 171
    
    [Docket HM-207C, Amdt. No. 171-141]
    RIN 2137-AC63
    
    
    Exemption, Approval, Registration and Reporting Procedures; 
    Miscellaneous Provisions
    
    AGENCY: Research and Special Programs Administration (RSPA), DOT.
    
    ACTION: Response to petition for reconsideration.
    
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    SUMMARY: RSPA is publishing a letter in which it denied a petition for 
    reconsideration of a provision in the final rule in the HM-207C 
    proceeding which revised procedures for applying for exemptions and 
    established procedures for applying for approvals, and registering and 
    filing reports with RSPA. That provision deleted a paragraph that 
    specified when State or local hazardous waste requirements would be 
    preempted.
    
    EFFECTIVE DATE: The effective date for the final rule published under 
    Docket HM-207C on May 9, 1996 (61 FR 21084) remains October 1, 1996.
    
    FOR FURTHER INFORMATION CONTACT: Kathleen Stokes Molinar, Office of the 
    Chief Counsel, (202) 366-4400, or Diane LaValle, Office of Hazardous 
    Materials Standards, (800) 467-4922, RSPA, US Department of 
    Transportation, 400 7th Street S.W., Washington, D.C. 20590-0001.
    
    SUPPLEMENTARY INFORMATION: On May 9, 1996, RSPA published a final rule 
    which amended the Hazardous Materials Regulations by changing and 
    clarifying RSPA's procedures and requirements for its exemptions, 
    approvals, registration, reporting, preemption, and enforcement 
    procedures and programs. These changes and clarifications included a 
    modification of 49 CFR 171.3 pertaining to hazardous waste.
        RSPA deleted 49 CFR 171.3(c) concerning preemption of State or 
    local hazardous waste transportation requirements. That section 
    preempted a requirement if it applied because the material in issue was 
    a waste material and if the non-Federal requirement applied differently 
    from, or in addition to, the HMR requirements concerning packaging, 
    marking, labeling, or placarding, format or contents of discharge 
    reports, and format or contents of shipping papers (including hazardous 
    waste manifests).
        RSPA received one petition for reconsideration of this issue. On 
    September 20, 1996, RSPA denied the petition for reconsideration in a 
    letter which has been sent to the petitioner. This document publishes 
    verbatim the letter of denial as follows:
    
    September 20, 1996.
    Mr. Charles Dickhut,
    Chairman, Association of Waste Hazardous Materials Transporters, 2200 
    Mill Road, Alexandria, Virginia 22314
    
        Dear Mr. Dickhut: This letter responds to your May 22, 1996 
    Petition for Reconsideration (Petition) regarding a provision of the 
    Final Rule issued under Docket HM-207C, published in the Federal 
    Register on May 9, 1996, at 61 FR 21084. The Petition requests that 
    the Research and Special Programs Administration (RSPA) reconsider 
    the decision to delete 49 C.F.R. 171.3(c), which provided that 
    certain requirements of a State or political subdivision pertaining 
    to hazardous waste which applied differently from, or were in 
    addition to, the Federal requirements would be found to be 
    inconsistent with the Federal requirements.
        The Petition is based upon four considerations. First, you state 
    that ``* * * no mention, let alone justification, of RSPA's intent 
    to delete the provision was included in the notice of proposed 
    rulemaking on docket HM-207C,'' and you further state that ``* * * 
    no support was voiced for this amendment. On the other hand, several 
    comments asked that the provision be retained.'' Second, you state 
    that 49 C.F.R. 171.3(c) has served as regulatory support for 
    voluntary harmonization of non-Federal requirements with Federal 
    requirements. Third, you contend that where voluntary harmonization 
    has not been achieved, 49 C.F.R. 171.3(c) has been relied upon and 
    cited by RSPA in each binding preemption determination issued since 
    1990 which has dealt exclusively with hazardous waste. Fourth, you 
    assert that deletion of 49 C.F.R. 171.3(c) undermines the 
    Congressional mandate for implementation of a uniform program of 
    regulation for the transportation of hazardous waste.
    
    [[Page 51236]]
    
        As more fully explained below, RSPA does not believe that the 
    decision to eliminate 49 C.F.R. 171.3(c) should be reversed.
    
    The Federal Hazardous Materials Law
    
        In 1975, Congress enacted the Hazardous Materials Transportation 
    Act (HMTA) to provide DOT with greater authority to protect the 
    Nation against the risks to life and property which are inherent in 
    the transportation of hazardous materials. In 1990, the HMTA was 
    amended by Congress' enactment of the Hazardous Materials 
    Transportation Uniform Safety Act. In 1994, the provisions of the 
    HMTA, as amended, were codified in the present-day Federal hazardous 
    materials transportation law, which includes provisions setting out 
    an all-inclusive, comprehensive preemption program. Under the 
    preemption authority, DOT may issue binding Federal preemption 
    determinations in all areas of hazardous materials transportation, 
    including hazardous waste.
        The law now specifies ``covered subjects'' with which State, 
    local, and tribal requirements are required to be ``substantively 
    the same.'' These ``covered subjects'' include shipping papers, 
    packaging, marking, labeling, placarding and written reports of 
    hazardous materials releases. The ``covered subjects'' preemption 
    provisions have obviated the necessity to maintain a separate 
    regulatory provision which addresses only hazardous waste.
    
    Analysis/Decision
    
        The Petition's first argument in support of the request for 
    reconsideration is that RSPA's September 24, 1995 Notice of Proposed 
    Rulemaking (NPRM) failed to provide notice of its proposal to delete 
    49 C.F.R. 171.3(c). The Petition also states that RSPA received no 
    support for the deletion from the commenters who responded to the 
    NPRM. Although the preamble did not address this issue, the NPRM did 
    expressly propose deletion of 49 C.F.R. 171.3(c) in the proposed 
    rule text of the NPRM. (60 FR 47734). Comments opposing the proposed 
    deletion were considered; however, for the reasons stated in the 
    preamble to the May 9, 1996 final rule and in this letter, RSPA 
    believes that deletion of 49 C.F.R. 171.3(c) is appropriate.
        Second, the Petition cites 49 CFR 171.3(c) as historically 
    serving as a basis for voluntary harmonization of non-Federal 
    requirements with Federal requirements. Absent voluntary 
    harmonization, the Petition's third point of consideration is an 
    argument that RSPA has cited the regulation in every binding 
    preemption determination concerning hazardous waste. RSPA does not 
    dispute the historical usefulness of 49 CFR 171.3(c) for harmonizing 
    non-Federal hazardous waste requirements with Federal requirements. 
    However, RSPA believes that utilization of the ``covered subjects'' 
    preemption authority in the Federal hazardous materials 
    transportation law facilitates harmonization of non-Federal 
    requirements with Federal law. This preemption language goes far 
    beyond the limited provisions of 49 CFR 171.3(c).
        As a fourth and final point, the Petition argues that deletion 
    of the regulation undermines Congress' directive that a uniform 
    program of regulation be utilized for the transportation of 
    hazardous waste.
        RSPA agrees that Congress has called for a uniform Federal 
    program for the regulation of hazardous waste transportation.
        RSPA believes that because deletion of 49 CFR 171.3(c) removes 
    hazardous waste as a separate area of consideration, deletion of 
    this regulation achieves Congress' goal of implementing a uniform, 
    comprehensive system of regulation of hazardous waste 
    transportation. As noted previously, the preemption provisions of 
    the Federal hazardous materials transportation law address all 
    issues pertaining to transportation of hazardous materials, 
    including hazardous waste.
        For the foregoing reasons, your petition for reconsideration is 
    denied.
    
            Sincerely,
    Alan I. Roberts,
    Associate Administrator for Hazardous Materials Safety.
    
        Issued in Washington, D.C., on September 20, 1996, under 
    authority delegated in 49 CFR Part 1.
    Alan I. Roberts,
    Associate Administrator for Hazardous Materials Safety.
    [FR Doc. 96-24715 Filed 9-30-96; 8:45 am]
    BILLING CODE 4910-60-P
    
    
    

Document Information

Effective Date:
5/9/1996
Published:
10/01/1996
Department:
Research and Special Programs Administration
Entry Type:
Rule
Action:
Response to petition for reconsideration.
Document Number:
96-24715
Dates:
The effective date for the final rule published under Docket HM-207C on May 9, 1996 (61 FR 21084) remains October 1, 1996.
Pages:
51235-51236 (2 pages)
Docket Numbers:
Docket HM-207C, Amdt. No. 171-141
RINs:
2137-AC63: Revision of Exemption, Approval, Registration, and Reporting Procedures
RIN Links:
https://www.federalregister.gov/regulations/2137-AC63/revision-of-exemption-approval-registration-and-reporting-procedures
PDF File:
96-24715.pdf
CFR: (1)
49 CFR 171