[Code of Federal Regulations]

[Title 49, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR107.215]



[Page 30-31]

 

                        TITLE 49--TRANSPORTATION

 

   CHAPTER I--PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION, 

                      DEPARTMENT OF TRANSPORTATION

 

PART 107_HAZARDOUS MATERIALS PROGRAM PROCEDURES--Table of Contents

 

                          Subpart C_Preemption

 

Sec. 107.215  Application.



    (a) With the exception of requirements preempted under 49 U.S.C. 

5125(c), any State or political subdivision thereof, or Indian tribe may 

apply to the Associate Administrator for a waiver of preemption with 

respect to any requirement that the State or political subdivision 

thereof or an Indian tribe acknowledges to be preempted under the 

Federal hazardous materials transportation law, or that has been



[[Page 31]]



determined by a court of competent jurisdiction to be so preempted. The 

Associate Administrator may waive preemption with respect to such 

requirement upon a determination that such requirement--

    (1) Affords an equal or greater level of protection to the public 

than is afforded by the requirements of the Federal hazardous material 

transportation law or the regulations issued thereunder, and

    (2) Does not unreasonably burden commerce.

    (b) Each application filed under this section for a waiver of 

preemption determination must:

    (1) Be submitted to the Associate Administrator:

    (i) By mail addressed to the Associate Administrator for Hazardous 

Materials Safety (Attn: Hazardous Materials Preemption Docket), Pipeline 

and Hazardous Materials Safety Administration, U.S. Department of 

Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001;

    (ii) By fax to the Associate Administrator for Hazardous Materials 

Safety (Attn: Hazardous Materials Preemption Docket), at 202-366-5713; 

or

    (iii) Electronically to the Associate Administrator for Hazardous 

Materials Safety (Attn: Hazardous Materials Preemption Docket), at 

aahspreemption@dot.gov.

    (2) Set forth the text of the State or political subdivision 

requirement for which the determination is being sought;

    (3) Include a copy of any court order and any ruling issued under 

Sec. 107.209 having a bearing on the application;

    (4) Contain an express acknowledgment by the applicant that the 

State, political subdivision, or Indian tribe requirement is preempted 

under Federal hazardous materials transportation law, unless it has been 

so determined by a court of competent jurisdiction or in a determination 

issued under Sec. 107.209;

    (5) Specify each requirement of the Federal hazardous materials 

transportation law that preempts the State, political subdivision, or 

Indian tribe requirement;

    (6) State why the applicant believes the State, political 

subdivision or Indian tribe requirements affords an equal or greater 

level of protection to the public than is afforded by the requirements 

of the Federal hazardous material transportation law or the regulations 

issued thereunder;

    (7) State why the applicant believes the State, political 

subdivision or Indian tribe requirement does not unreasonably burden 

commerce; and

    (8) Specify what steps the State, political subdivision or Indian 

tribe is taking to administer and enforce effectively its inconsistent 

requirement.



[Amdt. 107-3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107-22, 55 

FR 39978, Oct. 1, 1990; Amdt. 107-24, 56 FR 8621, 8623, Feb. 28, 1991; 

56 FR 15510, Apr. 17, 1991; Amdt. 107-23, 56 FR 66156, Dec. 20, 1991; 

Amdt. 107-25, 57 FR 20428, May 13, 1992; Amdt. 107-32, 59 FR 49131, 

Sept. 26, 1994; Amdt. 107-38, 61 FR 21099, May 9, 1996; 68 FR 52847, 

Sept. 8, 2003 ]