[Code of Federal Regulations]
[Title 49, Volume 2]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR107.221]

[Page 33]
 
                        TITLE 49--TRANSPORTATION
 
 CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 107_HAZARDOUS MATERIALS PROGRAM PROCEDURES--Table of Contents
 
                          Subpart C_Preemption
 
Sec.  107.221  Determination.

    (a) After considering the application and other relevant information 
received or obtained during the proceeding, the Associate Administrator 
issues a determination.
    (b) The Associate Administrator may issue a waiver of preemption 
only on finding that the requirement of the State or political 
subdivision thereof or Indian tribe affords the public a level of safety 
at least equal to that afforded by the requirements of the Federal 
hazardous material transportation law or the regulations issued 
thereunder and does not unreasonably burden commerce. In determining if 
the requirement of the State or political subdivision thereof or Indian 
tribe unreasonably burdens commerce, the Associate Administrator 
considers:
    (1) The extent to which increased costs and impairment of efficiency 
result from the requirement of the State or political subdivision 
thereof or Indian tribe.
    (2) Whether the requirement of the State or political subdivision 
thereof or Indian tribe has a rational basis.
    (3) Whether the requirement of the State or political subdivision 
thereof or Indian tribe achieves its stated purpose.
    (4) Whether there is need for uniformity with regard to the subject 
concerned and if so, whether the requirement of the State or political 
subdivision thereof or Indian tribe competes or conflicts with those of 
other States or political subdivisions thereof or Indian tribes.
    (c) The determination includes a written statement setting forth 
relevant facts and legal bases and providing that any person aggrieved 
by the determination may file a petition for reconsideration with the 
Associate Administrator.
    (d) The Associate Administrator 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 Associate Administrator will publish the 
determination or notice of the determination in the Federal Register.
    (e) A determination under this section constitutes an administrative 
finding of whether a particular requirement of a State or political 
subdivision thereof or Indian tribe is preempted under the Federal 
hazardous materials transportation law, or whether preemption is waived.

[Amdt. 107-38, 61 FR 21099, May 9, 1996, as amended at 68 FR 52848, 
Sept. 8, 2003]