[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: 49CFR107.221]



[Page 33]

 

                        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. 107.221  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]