Exemption, Approval, Registration and Reporting Procedures; Miscellaneous Provisions

Passage 1[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] ======================================================================= ----------------------------------------------------------------------- Research and Special Programs Administration [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. ----------------------------------------------------------------------- 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.#

Passage 2SUPPLEMENTARY 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#

Passage 3Dear 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. As more fully explained below, RSPA does not believe that the decision to eliminate 49 C.F.R. 171.3(c) should be reversed.#

Passage 4In 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.#

Passage 5The 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.#

Passage 6Sincerely, 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#