[Code of Federal Regulations]
[Title 49, Volume 2]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR107.221]

[Page 34]
 
                        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 Chief Counsel issues a 
determination.
    (b) The Chief Counsel 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 Chief Counsel 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 
Chief Counsel.
    (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.
    (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; 71 FR 30068, May 25, 2006]