[Federal Register Volume 67, Number 122 (Tuesday, June 25, 2002)]
[Rules and Regulations]
[Pages 42948-42959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15281]
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Part V
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 105, 106, 107, and 171
Revised and Clarified Hazardous Materials Safety Rulemaking and Program
Procedures; Final Rule
Federal Register / Vol. 67, No. 122 / Tuesday, June 25, 2002 / Rules
and Regulations
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 105, 106, 107, and 171
[Docket No. RSPA-98-3974]
RIN 2137-AD20
Revised and Clarified Hazardous Materials Safety Rulemaking and
Program Procedures
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: In this final rule, RSPA revises and clarifies its hazardous
materials safety rulemaking and program procedures. RSPA has re-written
the rulemaking procedures in plain language and made minor substantive
changes for clarification. In addition, RSPA created a new part that
contains defined terms used in RSPA's procedural regulations.
DATES: This final rule is effective July 25, 2002.
FOR FURTHER INFORMATION CONTACT: Karin V. Christian, Office of the
Chief Counsel, (202) 366-4400, Research and Special Programs
Administration.
SUPPLEMENTARY INFORMATION:
1. Background Information
On December 11, 1998, RSPA (``we'') published a Notice of Proposed
Rulemaking (``Notice'') that had two purposes: (1) To re-write in plain
language, clarify, and make minor substantive changes to RSPA's
hazardous materials safety rulemaking and program procedures, and (2)
to propose a new Federal Register format. (63 FR 68624). These changes
responded to a June 1, 1998 Executive Memorandum directing Federal
agencies to make communications with the public more understandable.
The Office of the Federal Register (OFR) is currently considering
various format options and has not made any final decisions with regard
to format changes. On March 23, 2001, OFR printed a document in the
Federal Register illustrating a possible new two-column format and
possible changes in fonts, headings, line spacing, and tables. (66 FR
16374). On May 14, 2002, OFR published a document with a modified two-
column format. (67 FR 34573). OFR invited agencies and the public to
comment on the proposed format. Because OFR is in the process of
considering format changes, in this final rule we are finalizing only
our plain language re-write and some minor substantive changes to
clarify the regulations. We are not making format changes.
We received 18 comments, including comments from industry
associations, private citizens, and other Federal agencies. Other
Federal agencies and groups filed comments directly with the Office of
the Federal Register commenting on the proposed new Federal Register
format. Comments from Federal agencies focused on the new format we
proposed, while private citizens and industry groups commented on the
minor substantive changes, the proposed format, or both.
In addition to the comments we received in response to our Notice,
RSPA received additional comments on the procedural regulations in
response to a December 20, 1999 notice published as part of its
Regulatory Flexibility Act review. Section 610 of the Regulatory
Flexibility Act of 1980, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, requires agencies to conduct periodic
reviews of rules that have a significant economic impact on a
substantial number of small business entities. In the December 20, 1999
Notice, focusing on parts 106, 107 and 171, RSPA invited comments on
both the economic impact of its regulations and on ways to make the
regulations easier to read and understand. In response to the Notice,
RSPA received comments from the Institute of Makers of Explosives and
E.I. DuPont de Nemours & Co. (DuPont) regarding plain language efforts.
Many commenters applauded RSPA's efforts to make the regulations
easier to read and understand. Commenters stated that the proposed
plain language changes would make it easier to find and understand the
regulations. Most supported various minor substantive changes and
format changes.
Several commenters expressed caution regarding future efforts to
re-write the regulations. The Association of Waste Hazardous Materials
Transporters stated that, in view of the limited resources available to
RSPA to accomplish its more substantive rulemakings, it believes that
additional plain language changes should only be made when we are
issuing new rules or substantively revising or updating existing rules.
The Hazardous Materials Advisory Council [now the Dangerous Goods
Advisory Council] expressed concern that plain language efforts not
delay other important rules.
RSPA agrees with commenters' concerns about using limited resources
to re-write regulations when substantive rulemaking actions are
pending. In order to maximize resources, we plan to make plain language
improvements only as sections or parts are being reviewed and revised
for substantive reasons.
RSPA used a question-and-answer format for the proposed changes to
the procedural regulations. After reviewing the question headings, we
decided to convert them to non-question headings. These are more
concise and direct. In addition, because we may not re-write the rest
of the procedural regulations for quite some time, the non-question
headings are consistent with the headings currently used in the rest of
the regulations. If we used question headings in a portion of the
procedural regulations, the format would not have been consistent.
The Chemical Manufacturers' Association (CMA) [now the American
Chemistry Council] said that RSPA should ensure the regulatory intent
is not lost when regulations are rewritten in plain language. CMA also
stated that new substantive and procedural regulations should be in
separate notices and not in plain language re-write notices. In this
final rule, RSPA is making only minor changes to clarify the existing
regulations.
Below is a discussion of the minor substantive changes we proposed
and the comments we received.
2. Minor Substantive Changes
In this rule, we are revising all of part 106 and creating a new
part 105. We are clarifying existing requirements and making minor
substantive changes that are explained in the following paragraphs.
Part 105
We are creating a new part 105 to contain general information and
definitions. To do this, we are moving the general information on how
to obtain information from us about our procedural regulations and the
Hazardous Materials Regulations (HMR; Parts 171-180) from part 107 into
a newly created part 105. The new part 105 also contains information on
subpoenas and service of documents.
We are revising mailing addresses throughout parts 105 and 106 to
ensure that documents reach the appropriate RSPA office. In this final
rule, we are also up-dating some information contained in the Notice of
Proposed Rulemaking because the location of certain information in RSPA
changed since the time of the proposal. For example, RSPA's Hazardous
Materials Record Center no longer houses rulemaking documents,
interpretations, or preemption documents. This information can now be
accessed by visiting the Docket Management System
[[Page 42949]]
(http://dms.dot.gov) or through the Internet Web site (http://hazmat.dot.gov). For older information received by RSPA before February
1, 1997, you may obtain rulemaking information from the Office of
Hazardous Materials Standards and preemption information from the
Office of the Chief Counsel. In this final rule, we are also adding a
reference under Sec. 105.25 to the Office of Hazardous Materials
Safety's ``Fax On Demand System'' through which a requester may choose
documents (e.g., proposed and final rules, DOT forms, letters of
clarification, and safety notices) to be faxed to his or her fax
machine by dialing 1-800-467-4922 and selecting Option 2.
The Association of Waste Hazardous Materials Transporters requested
that we clarify the regulations in part 105 concerning filing requests
for information under the Freedom of Information Act (FOIA). In
response to that comment, we added Sec. 105.26 referring readers to the
Department's FOIA regulations in 49 CFR part 7. Part 7 explains the
procedures for filing requests for records under FOIA and also provides
RSPA contact information.
We received a number of comments concerning the location of
definitions and the ``plain language'' definitions themselves. CMA, the
Truck Trailer Manufacturers Association, the National Propane Gas
Association, and DuPont supported locating all definitions in one
section. Several urged RSPA to expand part 105 and incorporate in a
single location all the definitions currently spread throughout the
regulations and the Federal hazardous materials transportation law (49
U.S.C. 5101 et seq.). Because States do not adopt the procedural
regulations contained in parts 105, 106, and 107 and instead adopt only
the Hazardous Materials Regulations (HMR), beginning at part 171, RSPA
is not moving all other definitions into new part 105. This approach
will facilitate State incorporation of the HMR as a self-contained unit
with necessary definitions in Sec. 171.8. New part 105 contains a
limited number of definitions rewritten in plain language. Other
definitions are contained in part 171 and apply to sections of the HMR.
We are not making any substantive changes to the definitions in new
part 105. For definitions contained in part 105 that are also contained
in parts 107 and 171, we are changing the definitions in parts 107 and
171 to make them consistent.
Several commenters expressed concern that several definitions in
Sec. 105.10 are different than those found in the current regulatory
text and different from the statutory definitions. One commenter asked
whether definitions in the statute could be changed and mentioned the
definition for ``transports'' or ``transportation'' as an example of a
definition that differed in the proposed rule and the statute.
Based on these concerns, we compared the definitions that we
proposed in Sec. 105.10 with the definitions in other parts of the HMR
and in the statute. After comparing these, we are making the
definitions more consistent in this final rule.
The following is a discussion of each of the definitions proposed
in Sec. 105.10 and the changes we are making.
In this final rule, we are adding ``(49 CFR parts 171 through
180)'' after ``subchapter C of this chapter'' to the definition of
``approval'' that we proposed and are adopting. This change will advise
readers about the parts in subchapter C. In addition, in this final
rule, we are clarifying that an approval may be issued by agencies or
officials other than the Associate Administrator for Hazardous
Materials Safety. Therefore, we are adding the words ``or other
designated Department official'' after ``from the Associate
Administrator for Hazardous Materials Safety.'' We are also making the
definitions of ``approval'' in part 107 and Sec. 171.8 consistent with
the definition in part 105.
In the definition of ``exemption'' we proposed and are adopting, we
are now updating the reference to the Federal Highway Administration to
the Federal Motor Carrier Safety Administration to reflect the new DOT
agency. In this final rule, we are also changing the definition of
``exemption'' in part 107 to make it consistent with part 105.
Upon review, we decided not to adopt the plain language definition
of ``Federal hazardous material transportation law'' we proposed, but
to adopt instead the definition of that term now in part 107 and
Sec. 171.8. The definition we are adopting uses the legal citation 49
U.S.C. 5101 et seq., rather than the cite 49 U.S.C. 5101 through 5127.
We are adopting the new definition of ``filed'' as proposed. We are
using the same new definition of ``filed'' in part 107 for consistency.
With regard to the definition of ``hazardous material,'' we are
changing the verbs ``determines'' to ``has determined'' and
``designates'' to ``has designated'' because this language accurately
reflects that the designation has already been made. We are also
replacing the current definition of hazardous material in Sec. 171.8 to
be consistent.
With regard to the definition of ``Indian tribe,'' we will not
adopt the proposed definition because ``Indian tribe'' is currently
defined in the Federal hazardous materials transportation law. To be
consistent with the Federal hazardous materials transportation law, we
will use the statutory definition in part 105. We are also replacing
the definition in part 107 with the statutory definition.
To further clarify the definition of ``person'' we proposed and are
adopting in this final rule, we are replacing the words ``when it''
with ``that'' and the word ``excludes'' with ``does not include.'' We
are also adding a sentence to clarify that ``person'' does not include
any government or Indian tribe that transports hazardous material for a
governmental purpose. To be consistent, we are replacing the
definitions of ``person'' in part 107 and Sec. 171.8 with the clarified
definition of ``person.''
In the definition of ``political subdivision'' that we proposed and
are adopting, we are changing the word ``includes'' to ``means''
because the current definition covers all applicable entities.
In the definition of ``preemption determination,'' we are replacing
``RSPA'' with ``Associate Administrator for Hazardous Materials
Safety'' to clarify who in RSPA issues a preemption determination
decision.
In the definition of ``regulations issued under Federal hazmat
law,'' we are changing ``hazmat law'' to ``Federal hazardous materials
transportation law.'' In addition, we are clarifying that the first
reference is to subchapter A by deleting ``this'' before subchapter and
adding ``A'' to it.
With regard to the definition of ``state,'' we decided not to adopt
the proposed definition of ``state.'' After reviewing the definitions,
we decided to use the definition of ``state'' set out in Sec. 171.8
because it is clear and simple. In this final rule, we are using that
definition in the new part 105 and replacing the definition in part 107
with that definition.
A commenter expressed concern that the definition of
``transportation'' we proposed differed from the definition in the
statute. The statutory definition has the word ``the'' before
``movement,'' has no comma after property, does not have the word
``any'' before loading, and has the words ``the movement'' instead of
the proposed ``that movement.'' Although we believe these plain
language changes were minor editorial changes, we are not adopting the
plain language definition. Rather, to be
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consistent with the statute, we are using the definition currently set
out in the Federal hazardous materials transportation law in both the
new part 105 and in part 107.
We are revising the definition of ``waiver of preemption'' we
proposed. We are replacing ``RSPA'' with ``Associate Administrator for
Hazardous Materials Safety'' to clarify who in RSPA makes the waiver
decision and dividing the long sentence that was proposed into two so
that it is easier to understand.
Part 106
Section 106.10 contains new information about our rulemaking
process. Specifically, it states that we use informal rulemaking
procedures under the Administrative Procedure Act. Furthermore, this
section sets out the types of rulemaking documents we normally use to
propose and adopt changes to our regulations.
Section 106.15 describes an advance notice of proposed rulemaking.
Section 106.20 describes a notice of proposed rulemaking.
Section 106.30 describes a final rule.
Section 106.35 describes an interim final rule.
Section 106.40 describes a direct final rule.
Section 106.70 states that commenters may electronically file their
comments in a rulemaking proceeding through the Internet to http://dms.dot.gov. Commenters support the option of filing comments
electronically and the availability of internet web sites that increase
public access to information.
In the Notice, with regard to Sec. 106.70, we also proposed to add
that we may reject paper and electronic comments that are ``frivolous,
abusive, or repetitious.'' Several commenters expressed concerns about
the phrase ``frivolous, abusive, or repetitious.'' This proposed change
was partially intended to address the types of comments the agency has
received over the Internet that do not relate to a rulemaking.
Commenters were concerned about the subjective nature of the proposed
standard and about the possible rejection of comments under such a
standard. A commenter asked, for example, whether a comment would be
considered repetitious and rejected if it is the same or similar to one
submitted by another commenter. All relevant comments will be
considered, including those similar to those submitted by other
commenters. We agree with commenters' concern about the proposed
language and revised the language to state that we may reject comments
not relevant to a rulemaking. Generally, all comments received will be
part of the docket; however, comments that are not relevant to the
rulemaking may not be considered for that particular rulemaking.
In Secs. 106.80 through 106.90, we are using the terms ``public
meetings'' rather than ``informal hearings.'' This language more
accurately reflects the nature of these public, information-gathering
sessions. One commenter requested confirmation that no present
protections afforded to parties are reduced or eliminated by replacing
the term ``informal hearings'' with ``public meetings.'' By replacing
the term ``informal hearing'' with ``public meeting,'' no rights or
protections are reduced or eliminated. The nature of the proceeding is
unchanged. In a public meeting, interested parties may present
information and arguments. RSPA officials preside over public meetings
and keep a transcript or minutes.
In Secs. 106.110 through 106.130, we are eliminating the petition
for reconsideration procedures to streamline the appeal process.
Commenters supported the proposed change for processing petitions for
reconsideration and appeals to the Administrator, and stated that the
change will simplify the process. DuPont stated that revising the
petition for reconsideration procedures to effectively remove those
from the process who cannot grant a petition in the first place results
in a more efficient procedure.
Section 106.35 currently requires a person to file a petition for
reconsideration of a rule with either RSPA's Associate Administrator
for Hazardous Materials Safety or RSPA's Chief Counsel, depending on
the subject matter of the regulation the person is challenging.
Currently, Sec. 106.38 then allows a person to appeal the decision of
the Associate Administrator or the Chief Counsel to RSPA's
Administrator. However, only the Administrator can issue a final rule.
Consequently, the Associate Administrator does not have the authority
to grant a petition for reconsideration that would result in issuance
of a new final rule, only deny it. By eliminating the petition for
reconsideration procedures, we are eliminating a step that procedurally
cannot produce the end result often sought by the petitioner--a new
final rule. Appeals will now be directly addressed to the
Administrator. This change does not deprive anyone of the ability to
appeal a final rule.
In this final rule, we are also further clarifying the RSPA actions
that an interested person may appeal. In Secs. 106.110-106.130, we are
clarifying that you may appeal RSPA's withdrawal of a notice of
proposed rulemaking, in addition to RSPA's issuance of a final rule.
Part 107
With the exception of the definitions in part 107, we are moving
the rest of subpart A in part 107 to new part 105. The definitions
section, Sec. 107.3, remains in part 107 and is redesignated as
Sec. 107.1. We are replacing the definitions of ``approval,''
``competent authority approval,'' ``exemption,'' ``filed,'' and
``person'' with definitions that we adopted in section 105.10.
With regard to the definition of ``Indian tribe,'' we are replacing
the definition in part 107 with the statutory definition.
We are replacing the definition of ``state'' in part 107 with the
definition of ``state'' found in Sec. 171.8 because it is clear and
simple.
With regard to the definition of ``transports'' or
``transportation,'' we are replacing the definition in part 107 with
the current statutory definition.
Part 171
To make the definitions in Sec. 171.8 consistent with the
definitions in new part 105, we are replacing the definitions of
``approval,'' ``exemption,'' ``hazardous material,'' and ``person'' in
Sec. 171.8 with the new definitions we are adopting in Sec. 105.10.
3. Regulatory Analysis and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule is not considered a significant regulatory action under
section 3(f) of Executive Order 12866. Consequently, it was not
reviewed by the Office of Management and Budget. RSPA has not prepared
a regulatory impact analysis or a regulatory evaluation because this
proposed rule has minimal economic impact. This rule is not significant
according to the Regulatory Policies and Procedures of the Department
of Transportation (44 FR 11034; February 26, 1979).
Executive Order 13132
RSPA has analyzed this rule in accordance with the principles and
criteria in Executive Order 13132 (``Federalism''). RSPA has determined
that the rule does not have sufficient Federalism impacts to warrant
the preparation of a Federalism assessment.
Executive Order 13175
These clarified procedural regulations will not have substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal
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Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes when
analyzed under the principles and criteria contained in Executive Order
13175 (``Consultation and Coordination with Indian Tribal
Governments''). Therefore, the funding and consultation requirements of
this Executive Order do not apply.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), RSPA
must consider whether a regulation would have a significant economic
impact on a substantial number of small entities. This rule merely
clarifies and revises RSPA's general procedures and rulemaking
procedures to assist the public to better understand our procedures.
Therefore, I certify that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. The information collection requirements in 49 CFR parts
106 and 107 have been approved under OMB Control No. 2137-0051,
``Rulemaking and Exemptions Petitions.'' This final rule does not
impose new information collection requirements.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading of this document to cross-
reference this action with the Unified Agenda.
Unfunded Mandates Reform Act
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objectives of the rule.
List of Subjects
49 CFR Part 105
Administrative practice and procedure, Hazardous materials
transportation.
49 CFR Part 106
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
Accordingly, RSPA amends 49 CFR chapter I, subchapter A, as
follows:
1. Add part 105 to read as follows:
PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL
PROCEDURES
Subpart A--Definitions
Sec.
105.5 Definitions.
Subpart B--General Procedures
105.15 Defined terms are used in this subpart.
Obtaining Guidance and Public Information
105.20 Guidance and interpretations.
105.25 Reviewing public documents.
105.26 Obtaining records on file with RSPA.
105.30 Information made available to the public and request for
confidential treatment.
Serving Documents
105.35 Serving documents in RSPA proceedings.
105.40 Designated agents for non-residents.
Subpoenas
105.45 Issuing a subpoena.
105.50 Serving a subpoena.
105.55 Refusal to obey a subpoena.
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Subpart A--Definitions
Sec. 105.5 Definitions
(a) This part contains the definitions for certain words and
phrases used throughout this subchapter (49 CFR parts 105 through 110).
At the beginning of each subpart, the Research and Special Programs
Administration (``RSPA'' or ``we'') will identify the defined terms
that are used within the subpart--by listing them--and refer the reader
to the definitions in this part. This way, readers will know that RSPA
has given a term a precise meaning and will know where to look for it.
(b) Terms used in this part are defined as follows:
Associate Administrator means Associate Administrator for Hazardous
Materials Safety, Research and Special Programs Administration.
Approval means written consent, including a competent authority
approval, from the Associate Administrator or other designated
Department official, to perform a function that requires prior consent
under subchapter C of this chapter (49 CFR parts 171 through 180).
Competent Authority means a national agency that is responsible,
under its national law, for the control or regulation of some aspect of
hazardous materials (dangerous goods) transportation. Another term for
Competent Authority is ``Appropriate authority'' which is used in the
International Civil Aviation Organization's (ICAO) Technical
Instructions for the Safe Transport of Dangerous Goods by Air. The
Associate Administrator is the United States Competent Authority for
purposes of 49 CFR part 107.
Competent Authority Approval means an approval by the competent
authority that is required under an international standard (for
example, the ICAO Technical Instructions for the Safe Transport of
Dangerous Goods by Air and the International Maritime Dangerous Goods
Code). Any of the following may be considered a competent authority
approval if it satisfies the requirement of an international standard:
(1) A specific regulation in subchapter A or C of this chapter.
(2) An exemption or approval issued under subchapter A or C of this
chapter.
(3) A separate document issued to one or more persons by the
Associate Administrator.
Exemption means a document issued by the Associate Administrator
under the authority of 49 U.S.C. 5117. The document permits a person to
perform a function that is not otherwise permitted under subchapter A
or C of this chapter, or other regulations issued under 49 U.S.C. 5101
et seq. (e.g., Federal Motor Carrier Safety routing requirements.)
Federal hazardous material transportation law means 49 U.S.C. 5101
et seq.
File or Filed means received by the appropriate RSPA or other
designated office within the time specified in a regulation or
rulemaking document.
Hazardous material means a substance or material that the Secretary
of Transportation has determined is capable of posing an unreasonable
risk
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to health, safety, and property when transported in commerce, and has
designated as hazardous under section 5103 of Federal hazardous
materials transportation law (49 U.S.C. 5103). The term includes
hazardous substances, hazardous wastes, marine pollutants, elevated
temperature materials, materials designated as hazardous in the
Hazardous Materials Table (see 49 CFR 172.101), and materials that meet
the defining criteria for hazard classes and divisions in part 173 of
subchapter C of this chapter.
Hazardous Materials Regulations or HMR means the regulations at 49
CFR parts 171 through 180.
Indian tribe has the same meaning given that term in section 4 of
the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b).
Person means an individual, firm, copartnership, corporation,
company, association, or joint-stock association (including any
trustee, receiver, assignee, or similar representative); or a
government or Indian tribe (or an agency or instrumentality of any
government or Indian tribe) that transports a hazardous material to
further a commercial enterprise or offers a hazardous material for
transportation in commerce. Person does not include the following:
(1) The United States Postal Service.
(2) Any agency or instrumentality of the Federal government, for
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal
penalties).
(3) Any government or Indian tribe (or an agency or instrumentality
of any government or Indian tribe) that transports hazardous material
for a governmental purpose.
Political subdivision means a municipality; a public agency or
other instrumentality of one or more States, municipalities, or other
political body of a State; or a public corporation, board, or
commission established under the laws of one or more States.
Preemption determination means an administrative decision by the
Associate Administrator that Federal hazardous materials law does or
does not void a specific State, political subdivision, or Indian tribe
requirement.
Regulations issued under Federal hazardous materials transportation
law means regulations contained in subchapter A of this chapter (49 CFR
parts 105 through 110) and in subchapter C of this chapter (49 CFR
parts 171 through 180).
State means a State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other
territory or possession of the United States designated by the
Secretary.
Transports or Transportation means the movement of property and
loading, unloading, or storage incidental to the movement.
Waiver of Preemption means a decision by the Associate
Administrator to forego preemption of a non-Federal requirement--that
is, to allow a State, political subdivision or Indian tribe requirement
to remain in effect. The non-Federal requirement must provide at least
as much public protection as the Federal hazardous materials
transportation law and the regulations issued under Federal hazardous
materials transportation law, and may not unreasonably burden commerce.
Subpart B--General Procedures
Sec. 105.15 Defined terms used in this subpart.
The following defined terms (see subpart A of this part) appear in
this subpart: Approval; Exemption; Federal hazardous material
transportation law; Hazardous material; Hazardous materials
regulations; Indian tribe; Preemption determination; State;
Transportation; Waiver of preemption
Obtaining Guidance and Public Information
Sec. 105.20 Guidance and interpretations.
(a) Hazardous materials regulations. You can obtain information and
answers to your questions on compliance with the hazardous materials
regulations (49 CFR parts 171 through 180) and interpretations of those
regulations by contacting RSPA's Office of Hazardous Materials Safety
as follows:
(1) Call the Hazardous Materials Information Center at 1-800-467-
4922 (in Washington, DC, call 202-366-4488). The Center is staffed from
9 a.m. through 5 p.m. Eastern time, Monday through Friday except
Federal holidays. After hours, you can leave a recorded message and
your call will be returned by the next business day.
(2) E-mail the Hazardous Materials Information Center at
[email protected].
(3) Access the Office of Hazardous Materials Safety home page via
the Internet at http://hazmat.dot.gov.
(4) Send a letter, with your return address and a daytime telephone
number, to: Office of Hazardous Materials Standards, Research and
Special Programs Administration, Attn: DHM-10, U.S. Department of
Transportation, 400 7th Street SW., Washington, DC 20590-0001.
(b) Federal hazardous materials transportation law and preemption.
You can obtain information and answers to your questions on Federal
hazardous materials transportation law, 49 U.S.C. 5101 et seq., and
Federal preemption of State, local, and Indian tribe hazardous material
transportation requirements, by contacting RSPA's Office of the Chief
Counsel as follows:
(1) Call the office of the Chief Counsel at (202) 366-4400 from 9
a.m. to 5 p.m. Eastern time, Monday through Friday except Federal
holidays.
(2) Access the Office of the Chief Counsel's home page via the
Internet at http://rspa-atty.dot.gov.
(3) Send a letter, with your return address and a daytime telephone
number, to: Office of the Chief Counsel, Research and Special Programs
Administration, Attn: DCC-10, U.S. Department of Transportation,
Washington, DC 20590-0001.
(4) Contact the Office of the Chief Counsel for a copy of
applications for preemption determinations, waiver of preemption
determinations, and inconsistency rulings received by RSPA before
February 1, 1997.
Sec. 105.25 Reviewing public documents.
RSPA is required by statute to make certain documents and
information available to the public. You can review and copy publicly
available documents and information at the locations described in this
section.
(a) DOT Docket Management System. Unless a particular document says
otherwise, the following documents are available for public review and
copying at the Department of Transportation's Docket Management System,
Room PL 401, 400 7th Street, SW., Washington, DC 20590-0001, or for
review and downloading through the Internet at http://dms.dot.gov:
(1) Rulemaking documents in proceedings started after February 1,
1997, including notices of proposed rulemaking, advance notices of
proposed rulemaking, public comments, related Federal Register notices,
final rules, appeals, and RSPA's decisions in response to appeals.
(2) Applications for exemption received by RSPA after February 1,
1997. Also available are supporting data, memoranda of any informal
meetings with applicants, related Federal Register notices, public
comments, and decisions granting or denying exemptions applications.
(3) Applications for preemption determinations and waiver of
preemption determinations received by RSPA after February 1, 1997. Also
available are public comments, Federal
[[Page 42953]]
Register notices, and RSPA's rulings, determinations, decisions on
reconsideration, and orders issued in response to those applications.
(b) Hazardous Materials Record Center. Applications for exemptions
and related background information received by RSPA before February 1,
1997 are available for public review and copying at the Hazardous
Materials Record Center, U.S. Department of Transportation, Room 8421,
400 7th Street, SW., Washington, DC 20590-0001:
(c) Office of Hazardous Materials Safety. (1) You may obtain
documents (e.g., proposed and final rules, notices, letters of
clarification, safety notices, DOT forms and other documents) by using
the ``Fax On Demand'' system. To reach the ``Fax On Demand'' system,
dial 1-800-467-4922 and select Option 2. You may choose documents to be
faxed to your machine.
(2) Upon your written request, we will make the following documents
and information available to you:
(i) Appeals under 49 CFR part 107 and RSPA's decisions issued in
response to those appeals.
(ii) Records of compliance order proceedings and RSPA compliance
orders.
(iii) Applications for approvals, including supporting data,
memoranda of any informal meetings with applicants, and decisions
granting or denying approvals applications.
(iv) Other information about RSPA's hazardous materials program
required by statute to be made available to the public for review and
copying and any other information RSPA decides should be available to
the public.
(3) Your written request to review documents should include the
following:
(i) A detailed description of the documents you wish to review.
(ii) Your name, address, and telephone number.
(4) Send your written request to: Associate Administrator for
Hazardous Materials Safety, Research and Special Programs
Administration, Attn: DHM-1, U.S. Department of Transportation, 400 7th
Street, SW., Washington, DC 20590-0001.
Sec. 105.26 Obtaining records on file with RSPA.
To obtain records on file with RSPA, other than those described in
Sec. 105.25, you must file a request with RSPA under the Freedom of
Information Act (FOIA) (5 U.S.C. 552). The procedures for filing a FOIA
request are contained in 49 CFR part 7.
Sec. 105.30 Information made available to the public and request for
confidential treatment.
When you submit information to RSPA during a rulemaking proceeding,
as part of your application for exemption or approval, or for any other
reason, we may make that information publicly available unless you ask
that we keep the information confidential.
(a) Asking for confidential treatment. You may ask us to give
confidential treatment to information you give to the agency by taking
the following steps:
(1) Mark ``confidential'' on each page of the original document you
would like to keep confidential.
(2) Send us, along with the original document, a second copy of the
original document with the confidential information deleted.
(3) Explain why the information you are submitting is confidential
(for example, it is exempt from mandatory public disclosure under the
Freedom of Information Act, 5 U.S.C. 552 or it is information referred
to in 18 U.S.C. 1905).
(b) RSPA Decision. RSPA will decide whether or not to treat your
information as confidential. We will notify you, in writing, of a
decision to grant or deny confidentiality at least five days before the
information is publicly disclosed, and give you an opportunity to
respond.
Serving Documents
Sec. 105.35 Serving documents in RSPA proceedings.
(a) Service by RSPA. We may serve the document by one of the
following methods, except where a different method of service is
specifically required:
(1) Registered or certified mail.
(i) If we serve a document by registered or certified mail, it is
considered served when mailed.
(ii) An official United States Postal Service receipt from the
registered or certified mailing is proof of service.
(iii) We may serve a person's authorized representative or agent by
registered or certified mail, or in any other manner authorized by law.
Service on a person's authorized agent is the same as service on the
person.
(2) Personal service.
(3) Publication in the Federal Register.
(b) Service by others. If you are required under this subchapter to
serve a person with a document, serve the document by one of the
following methods, except where a different method of service is
specifically required:
(1) Registered or certified mail.
(i) If you serve a document by registered or certified mail, it is
considered served when mailed.
(ii) An official United States Postal Service receipt from the
registered or certified mailing is proof of service.
(iii) You may serve a person's authorized representative or agent
by registered or certified mail or in any other manner authorized by
law. Service on a person's authorized agent is the same as service on
the person.
(2) Personal service.
(3) Electronic service.
(i) In a proceeding under Sec. 107.317 of this subchapter (an
administrative law judge proceeding), you may electronically serve
documents on us.
(ii) Serve documents electronically through the Internet at http://dms.dot.gov.
Sec. 105.40 Designated agents for non-residents.
(a) General requirement. If you are not a resident of the United
States but are required by this subchapter or subchapter C of this
chapter to designate a permanent resident of the United States to act
as your agent and receive documents on your behalf, you must prepare a
designation and file it with us.
(b) Agents. An agent:
(1) May be an individual, a firm, or a domestic corporation.
(2) May represent any number of principals.
(3) May not reassign responsibilities under a designation to
another person.
(c) Preparing a designation. Your designation must be written and
dated, and it must contain the following information:
(1) The section in the HMR that requires you to file a designation.
(2) A certification that the designation is in the correct legal
form required to make it valid and binding on you under the laws,
corporate bylaws, and other requirements that apply to designations at
the time and place you are making the designation.
(3) Your full legal name, the principal name of your business, and
your mailing address.
(4) A statement that your designation will remain in effect until
you withdraw or replace it.
(5) The legal name and mailing address of your agent.
(6) A declaration of acceptance signed by your agent.
(d) Address. Send your designation to:
Office of Hazardous Materials Exemptions and Approvals Research and
Special Programs Administration, Attn: DHM-30, U.S. Department of
Transportation 400 7th Street, SW., Washington, DC 20590-0001.
[[Page 42954]]
(e) Designations are binding. You are bound by your designation of
an agent, even if you did not follow all the requirements in this
section, until we reject your designation.
Subpoenas
Sec. 105.45 Issuing a subpoena.
(a) Subpoenas explained. A subpoena is a document that may require
you to attend a proceeding, produce documents or other physical
evidence in your possession or control, or both. RSPA may issue a
subpoena either on its initiative or at the request of someone
participating in a proceeding. Anyone who requests that RSPA issue a
subpoena must show that the subpoena seeks information that will
materially advance the proceeding.
(b) Attendance and mileage expenses.
(1) If you receive a subpoena to attend a proceeding under this
part, you may receive money to cover attendance and mileage expenses.
The attendance and mileage fees will be the same as those paid to a
witness in a proceeding in the district courts of the United States.
(2) If RSPA issues a subpoena to you based upon a request, the
requester must serve a copy of the original subpoena on you, as
required in Sec. 105.50. The requester must also include attendance and
mileage fees with the subpoena unless the requester asks RSPA to pay
the attendance and mileage fees because of demonstrated financial
hardship and RSPA agrees to do so.
(3) If RSPA issues a subpoena at the request of an officer or
agency of the Federal government, the officer or agency is not required
to include attendance and mileage fees when serving the subpoena. The
officer or agency must pay the fees before you leave the hearing at
which you testify.
Sec. 105.50 Serving a subpoena.
(a) Personal service. Anyone who is not an interested party and who
is at least 18 years of age may serve you with a subpoena and fees by
handing the subpoena and fees to you, by leaving them at your office
with the individual in charge, or by leaving them at your house with
someone who lives there and is capable of making sure that you receive
them. If RSPA issues a subpoena to an entity, rather than an
individual, personal service is made by delivering the subpoena and
fees to the entity's registered agent for service of process or to any
officer, director or agent in charge of any of the entity's offices.
(b) Service by mail. You may be served with a copy of a subpoena
and fees by certified or registered mail at your last known address.
Service of a subpoena and fees may also be made by registered or
certified mail to your agent for service of process or any of your
representatives at that person's last known address.
(c) Other methods. You may be served with a copy of a subpoena by
any method where you receive actual notice of the subpoena and receive
the fees before leaving the hearing at which you testify.
(d) Filing after service. After service is complete, the individual
who served a copy of a subpoena and fees must file the original
subpoena and a certificate of service with the RSPA official who is
responsible for conducting the hearing.
Sec. 105.55 Refusal to obey a subpoena.
(a) Quashing or modifying a subpoena. If you receive a subpoena,
you can ask RSPA to overturn (``quash'') or modify the subpoena within
10 days after the subpoena is served on you. Your request must briefly
explain the reasons you are asking for the subpoena to be quashed or
modified. RSPA may then do the following:
(1) Deny your request.
(2) Quash or modify the subpoena.
(3) Grant your request on the condition that you satisfy certain
specified requirements.
(b) Failure to obey. If you disobey a subpoena, RSPA may ask the
Attorney General to seek help from the United States District Court for
the appropriate District to compel you, after notice, to appear before
RSPA and give testimony, produce subpoenaed documents or physical
evidence, or both.
2. Revise part 106 to read as follows:
PART 106--RULEMAKING PROCEDURES
Subpart A--RSPA Rulemaking Documents
Sec.
106.5 Defined terms used in this subpart.
106.10 Process for issuing rules.
106.15 Advance notice of proposed rulemaking.
106.20 Notice of proposed rulemaking.
106.25 Revising regulations without first issuing an ANPRM or
NPRM.
106.30 Final rule.
106.35 Interim final rule.
106.40 Direct final rule.
106.45 Tracking rulemaking actions.
Subpart B--Participating in the Rulemaking Process
106.50 Defined terms used in this subpart.
106.55 Public participation in the rulemaking process.
Written Comments
106.60 Filing comments.
106.65 Required information for written comments.
106.70 Where and when to file comments.
106.75 Extension of time to file comments.
Public Meetings and Other Proceedings
106.80 Public meeting procedures.
106.85 Requesting a public meeting.
106.90 Other rulemaking proceedings.
Petitions for Rulemaking
106.95 Requesting a change to the regulations.
106.100 Required information for a petition for rulemaking.
106.105 RSPA response to a petition for rulemaking.
Appeals
106.110 Appealing a RSPA action.
106.115 Required information for an appeal.
106.120 Appeal deadline.
106.125 Filing an appeal.
106.130 RSPA response to an appeal.
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Subpart A--RSPA Rulemaking Documents
Sec. 106.5 Defined terms used in this subpart.
The following defined terms (see part 105, subpart A, of this
subchapter) appear in this subpart: File; Person; State.
Sec. 106.10 Process for issuing rules.
(a) RSPA (``we'') uses informal rulemaking procedures under the
Administrative Procedure Act (5 U.S.C. 553) to add, amend, or delete
regulations. To propose or adopt changes to a regulation, RSPA may
issue one or more of the following documents. We publish the following
rulemaking documents in the Federal Register unless we name and
personally serve a copy of a rule on every person subject to it:
(1) An advance notice of proposed rulemaking.
(2) A notice of proposed rulemaking.
(3) A final rule.
(4) An interim final rule.
(5) A direct final rule.
(b) Each of the rulemaking documents in paragraph (a) of this
section generally contains the following information:
(1) The topic involved in the rulemaking document.
(2) RSPA's legal authority for issuing the rulemaking document.
(3) How interested persons may participate in the rulemaking
proceeding (for example, by filing written comments or making oral
presentations).
(4) Whom to call if you have questions about the rulemaking
document.
(5) The date, time, and place of any public meetings being held to
discuss the rulemaking document.
(6) The docket number and regulation identifier number (RIN) for
the rulemaking proceeding.
[[Page 42955]]
Sec. 106.15 Advance notice of proposed rulemaking.
An advance notice of proposed rulemaking (ANPRM) tells the public
that RSPA is considering an area for rulemaking and requests written
comments on the appropriate scope of the rulemaking or on specific
topics. An advance notice of proposed rulemaking may or may not include
the text of potential changes to a regulation.
Sec. 106.20 Notice of proposed rulemaking.
A notice of proposed rulemaking (NPRM) contains RSPA's specific
proposed regulatory changes for public comment and contains supporting
information. It generally includes proposed regulatory text.
Sec. 106.25 Revising regulations without first issuing an ANPRM or
NPRM.
RSPA may add, amend, or delete regulations without first issuing an
ANPRM or NPRM in the following situations:
(a) We may go directly to a final rule or interim final rule if,
for good cause, we find that a notice of proposed rulemaking is
impracticable, unnecessary, or contrary to the public interest. We must
place that finding and a brief statement of the reasons for it in the
final rule or interim final rule.
(b) We may issue a direct final rule (see Sec. 106.40).
Sec. 106.30 Final rule.
A final rule sets out new regulatory requirements and their
effective date. A final rule will also identify issues raised by
commenters in response to the notice of proposed rulemaking and give
the agency's response.
Sec. 106.35 Interim final rule.
An interim final rule is issued without first issuing a notice of
proposed rulemaking and accepting public comments and sets out new
regulatory requirements and their effective date. RSPA may issue an
interim final rule if it finds, for good cause, that notice and public
procedure are impracticable, unnecessary, or contrary to the public
interest. RSPA will clearly set out this finding in the interim final
rule. After receiving and reviewing public comments, as well as any
other relevant documents, RSPA may revise the interim final rule and
then issue a final rule.
Sec. 106.40 Direct final rule.
A direct final rule makes regulatory changes and states that the
regulatory changes will take effect on a specified date unless RSPA
receives an adverse comment or notice of intent to file an adverse
comment within the comment period--generally 60 days after the direct
final rule is published in the Federal Register.
(a) Actions taken by direct final rule. We may use direct final
rulemaking procedures to issue rules that do any of the following:
(1) Make minor substantive changes to regulations.
(2) Incorporate by reference the latest edition of technical or
industry standards.
(3) Extend compliance dates.
(4) Make noncontroversial changes to regulations. We must determine
and publish a finding that use of direct final rulemaking, in this
situation, is in the public interest and unlikely to result in adverse
comment.
(b) Adverse comment. An adverse comment explains why a rule would
be inappropriate, or would be ineffective or unacceptable without a
change. It may challenge the rule's underlying premise or approach.
Under the direct final rule process, we do not consider the following
types of comments to be adverse:
(1) A comment recommending another rule change, in addition to the
change in the direct final rule at issue, unless the commenter states
why the direct final rule would be ineffective without the change.
(2) A frivolous or irrelevant comment.
(c) Confirmation of effective date. We will publish a confirmation
document in the Federal Register, generally within 15 days after the
comment period closes, if we have not received an adverse comment or
notice of intent to file an adverse comment. The confirmation document
tells the public the effective date of the rule--either the date stated
in the direct final rule or at least 30 days after the publication date
of the confirmation document, whichever is later.
(d) Withdrawing a direct final rule. (1) If we receive an adverse
comment or notice of intent to file an adverse comment, we will publish
a document in the Federal Register before the effective date of the
direct final rule advising the public and withdrawing the direct final
rule in whole or in part.
(2) If we withdraw a direct final rule because of an adverse
comment, we may incorporate the adverse comment into a later direct
final rule or may publish a notice of proposed rulemaking.
(e) Appeal. You may appeal RSPA's issuance of a direct final rule
(see Sec. 106.115) only if you have previously filed written comments
(see Sec. 106.60) to the direct final rule.
Sec. 106.45 Tracking rulemaking actions.
The following identifying numbers allow you to track RSPA's
rulemaking activities:
(a) Docket number. We assign an identifying number, called a docket
number, to each rulemaking proceeding. Each rulemaking document that
RSPA issues in a particular rulemaking proceeding will display the same
docket number. This number allows you to do the following:
(1) Associate related documents that appear in the Federal
Register.
(2) Search the DOT Docket Management System (``DMS'') for
information on particular rulemaking proceedings--including notices of
proposed rulemaking, public comments, petitions for rulemaking,
appeals, records of additional rulemaking proceedings and final rules.
There are two ways you can search the DMS:
(i) Visit the public docket room and review and copy any docketed
materials during regular business hours. The DOT Docket Management
System is located at the U.S. Department of Transportation, Plaza Level
401, 400 7th Street, SW., Washington, DC 20590-0001.
(ii) View and download docketed materials through the Internet at
http://dms.dot.gov.
(b) Regulation identifier number. The Department of Transportation
publishes a semiannual agenda of all current and projected Department
of Transportation rulemakings, reviews of existing regulations, and
completed actions. This semiannual agenda appears in the Unified Agenda
of Federal Regulations that is published in the Federal Register in
April and October of each year. The semiannual agenda tells the public
about the Department's--including RSPA's--regulatory activities. The
Department assigns a regulation identifier number (RIN) to each
individual rulemaking proceeding in the semiannual agenda. This number
appears on all rulemaking documents published in the Federal Register
and makes it easy for you to track those rulemaking proceedings in both
the Federal Register and the semiannual regulatory agenda itself, as
well as to locate all documents in the Docket Management System
pertaining to a particular rulemaking.
Subpart B--Participating in the Rulemaking Process
Sec. 106.50 Defined terms used in this subpart.
The following defined terms (see part 105, subpart A, of this
subchapter)
[[Page 42956]]
appear in this subpart: File; Person; Political subdivision; State.
Sec. 106.55 Public participation in the rulemaking process.
You may participate in RSPA's rulemaking process by doing any of
the following:
(a) File written comments on any rulemaking document that asks for
comments, including an advance notice of proposed rulemaking, notice of
proposed rulemaking, interim final rule, or direct final rule.
(b) Ask that we hold a public meeting in any rulemaking proceeding
and participate in any public meeting that we hold.
(c) File a petition for rulemaking that asks us to add, amend, or
delete a regulation.
(d) File an appeal that asks us to reexamine our decision to issue
all or part of a final rule, interim final rule, or direct final rule.
Written Comments
Sec. 106.60 Filing comments.
Anyone may file written comments about proposals made in any
rulemaking document that requests public comments, including any State
government agency, any political subdivision of a State, and any
interested person invited by RSPA to participate in the rulemaking
process.
Sec. 106.65 Required information for written comments.
Your comments must be in English and must contain the following:
(a) The docket number of the rulemaking document you are commenting
on, clearly set out at the beginning of your comments.
(b) Information, views, or arguments that follow the instructions
for participation that appear in the rulemaking document on which you
are commenting.
(c) All material that is relevant to any statement of fact in your
comments.
(d) The document title and page number of any material that you
reference in your comments.
Sec. 106.70 Where and when to file comments.
(a) Unless you are told to do otherwise in the rulemaking document
on which you are commenting, send your comments to us in either of the
following ways:
(1) By mail to: Docket Management System, U.S. Department of
Transportation, Room PL 401, Washington, DC 20590-0001.
(2) Through the Internet to http://dms.dot.gov.
(b) Make sure that your comments reach us by the deadline set out
in the rulemaking document on you which are commenting. We will
consider late-filed comments to the extent possible.
(c) We may reject comments that are not relevant to the rulemaking.
We may reject comments you file electronically if you do not follow the
electronic filing instructions at the DOT Web site.
Sec. 106.75 Extension of time to file comments.
You may ask for more time to file comments on a rulemaking
proceeding. If RSPA grants your request, it is granted to all persons.
We will notify the public of the extension by publishing a document in
the Federal Register. If RSPA denies your request, RSPA will notify you
of the denial. To ask for more time, you must do the following:
(a) File a request for extension at least ten days before the end
of the comment period established in the rulemaking document.
(b) Show that you have good cause for the extension and that an
extension is in the public interest.
(c) Include the docket number of the rulemaking document you are
seeking additional time to comment on, clearly set out at the beginning
of your request.
(d) Send your request to: Docket Management System, U.S. Department
of Transportation, Room PL 401, 400 7th Street, SW., Washington, DC
20590-0001.
Public Meetings and Other Proceedings
Sec. 106.80 Public meeting procedures.
A public meeting is a non-adversarial, fact-finding proceeding
conducted by a RSPA representative. Generally, public meetings are
announced in the Federal Register. Interested persons are invited to
attend and to present their views to the agency on specific issues.
There are no formal pleadings and no adverse parties, and any
regulation issued afterward is not necessarily based exclusively on the
record of the meeting. Sections 556 and 557 of the Administrative
Procedure Act (5 U.S.C. 556 and 557) do not apply to public meetings
under this part.
Sec. 106.85 Requesting a public meeting.
(a) You may ask for a public meeting by filing a written request
with RSPA no later than 20 days before the expiration of the comment
period specified in the rulemaking document. Send your request for a
public meeting to: Docket Management System, U.S. Department of
Transportation, Room PL 401, 400 7th Street, SW., Washington, DC 20590-
0001.
(b) RSPA will review your request and, if you have shown good cause
for a public meeting, we will grant it and publish a notice of the
meeting in the Federal Register.
Sec. 106.90 Other rulemaking proceedings.
During a rulemaking proceeding, RSPA may invite you to do the
following:
(a) Participate in a conference at which minutes are taken.
(b) Make an oral presentation.
(c) Participate in any other public proceeding to ensure that RSPA
makes informed decisions during the rulemaking process and to protect
the public interest, including a negotiated rulemaking or work group
led by a facilitator.
Petitions for Rulemaking
Sec. 106.95 Requesting a change to the regulations.
You may ask RSPA to add, amend, or delete a regulation by filing a
petition for rulemaking as follows:
(a) For regulations in 49 CFR parts 110, 130, 171 through 180,
submit the petition to: Office of Hazardous Materials Standards,
Research and Special Programs Administration, Attn: DHM-10, U.S.
Department of Transportation, 400 7th Street, SW., Washington, DC
20590-0001.
(b) For regulations in 49 CFR parts 105, 106, or 107, submit the
petition to: Office of the Chief Counsel, Research and Special Programs
Administration, Attn: DCC-10, U.S. Department of Transportation, 400
7th Street, SW., Washington, DC 20590-0001.
Sec. 106.100 Required information for a petition for rulemaking.
(a) You must include the following information in your petition for
rulemaking:
(1) A summary of your proposed action and an explanation of its
purpose.
(2) The language you propose for a new or amended rule, or the
language you would delete from a current rule.
(3) An explanation of your interest in your proposed action and the
interest of anyone you may represent.
(4) Information and arguments that support your proposed action,
including relevant technical and scientific data available to you.
(5) Any specific cases that support or demonstrate the need for
your proposed action.
(b) If the impact of your proposed action is substantial, and data
or other information about that impact are available to you, we may ask
that you provide information about the following:
[[Page 42957]]
(1) The costs and benefits of your proposed action to society in
general, and identifiable groups within society in particular.
(2) The direct effects, including preemption effects under section
5125 of Federal hazardous materials transportation law, of your
proposed action on States, on the relationship between the Federal
government and the States, and on the distribution of power and
responsibilities among the various levels of government. (See 49 CFR
part 107, subpart C, regarding preemption.)
(3) The regulatory burden of your proposed action on small
businesses, small organizations, small governmental jurisdictions, and
Indian tribes.
(4) The recordkeeping and reporting burdens of your proposed action
and whom they would affect.
(5) The effect of your proposed action on the quality of the
natural and social environments.
Sec. 106.105 RSPA response to a petition for rulemaking.
We will review and respond to your petition for rulemaking as
follows:
------------------------------------------------------------------------
And if we
If your petition is . . . determine that . . Then . . .
-------------------------------------------.----------------------------
(a) Incomplete.................. .................. We may return your
petition with a
written
explanation.
------------------------------------------------------------------------
(b) Complete.................... Your petition does We will notify you
not justify a in writing that
rulemaking action. we will not start
a rulemaking
proceeding.
------------------------------------------------------------------------
(c) Complete.................... Your petition does We will notify you
justify a in writing that
rulemaking action. we will start a
rulemaking
proceeding.
------------------------------------------------------------------------
Appeals
Sec. 106.110 Appealing a RSPA Action.
You may appeal the following RSPA actions:
(a) RSPA's issuance of a final rule or RSPA's withdrawal of a
notice of proposed rulemaking under the rulemaking procedures in this
part. However, you may appeal RSPA's issuance of a direct final rule
only if you previously filed comments to the direct final rule (see
Sec. 106.40(e)).
(b) Any RSPA decision on a petition for rulemaking.
Sec. 106.115 Required information for an appeal.
(a) Appeal of a final rule or withdrawal of a notice of proposed
rulemaking. If you appeal RSPA's issuance of a final rule or RSPA's
withdrawal of a notice of proposed rulemaking, your appeal must include
the following:
(1) The docket number of the rulemaking you are concerned about,
clearly set out at the beginning of your appeal.
(2) A brief statement of your concern about the final rule or the
withdrawal of notice of proposed rulemaking at issue.
(3) An explanation of why compliance with the final rule is not
practical, reasonable, or in the public interest.
(4) If you want RSPA to consider more facts, the reason why you did
not present those facts within the time given during the rulemaking
process for public comment.
(b) Appeal of a decision. If you appeal RSPA's decision on a
petition for rulemaking, you must include the following:
(1) The contested aspects of the decision.
(2) Any new arguments or information.
Sec. 106.120 Appeal deadline.
(a) Appeal of a final rule or withdrawal of a notice of proposed
rulemaking. If you appeal RSPA's issuance of a final rule or RSPA's
withdrawal of a proposed rulemaking, your appeal document must reach us
no later than 30 days after the date RSPA published the regulation or
the withdrawal notice in the Federal Register. After that time, RSPA
will consider your petition to be one for rulemaking under
Sec. 106.100.
(b) Appeal of a decision. If you appeal RSPA's decision on a
petition for rulemaking, your appeal document must reach us no later
than 30 days from the date RSPA served you with written notice of
RSPA's decision.
Sec. 106.125 Filing an appeal.
Send your appeal to: Docket Management System, U.S. Department of
Transportation, Room PL 401, 400 7th Street, SW., Washington, DC 20590-
0001.
Sec. 106.130 RSPA response to an appeal.
Unless RSPA provides otherwise, filing an appeal will not keep a
final rule from becoming effective. We will handle an appeal according
to the following procedures:
(a) Appeal of a final rule or withdrawal of a notice of proposed
rulemaking. (1) We may consolidate your appeal with other appeals of
the same rule.
(2) We may grant or deny your appeal, in whole or in part, without
further rulemaking proceedings, unless granting your appeal would
result in the issuance of a new final rule.
(3) If we decide to grant your appeal, we may schedule further
proceedings and an opportunity to comment.
(4) RSPA will notify you, in writing, of the action on your appeal
within 90 days after the date that RSPA published the final rule or
withdrawal of notice of proposed rulemaking at issue in the Federal
Register. If we do not issue a decision on your appeal within the 90-
day period and we anticipate a substantial delay, we will notify you
directly about the delay and will give you an expected decision date.
We will also publish a notice of the delay in the Federal Register.
(b) Appeal of a decision. (1) We will not consider your appeal if
it merely repeats arguments that RSPA has previously rejected.
(2) RSPA will notify you, in writing, of the action on your appeal
within 90 days after the date that RSPA served you with written notice
of its decision on your petition for rulemaking. If we do not issue a
decision on your appeal within the 90-day period, and we anticipate a
substantial delay, we will notify you directly about the delay and will
give you an expected decision date.
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
3. The authority citation for part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L.
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
4. The heading for subpart A is revised to read as follows:
[[Page 42958]]
Subpart A--Definitions
Secs. 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, 107.14 [Removed]
5. Sections 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, and 107.14
are removed.
6. Section 107.3 is redesignated as Sec. 107.1 and, in newly
redesignated Sec. 107.1, the definitions for ``Approval,'' ``Competent
Authority,'' ``Competent Authority Approval,'' ``Exemption,''
``Filed,'' ``Indian Tribe,'' ``Person,'' ``State,'' and ``Transports or
transportation'' are revised to read as follows:
Sec. 107.1 Definitions.
* * * * *
Approval means written consent, including a competent authority
approval, from the Associate Administrator or other designated
Department official, to perform a function that requires prior consent
under subchapter C of this chapter (49 CFR parts 171 through 180).
* * * * *
Competent Authority means a national agency that is responsible,
under its national law, for the control or regulation of some aspect of
hazardous materials (dangerous goods) transportation. Another term for
Competent Authority is ``Appropriate authority,'' which is used in the
International Civil Aviation Organization's (ICAO) Technical
Instructions for the Safe Transport of Dangerous Goods by Air. The
Associate Administrator is the United States Competent Authority for
purposes of this part 107.
Competent Authority Approval means an approval by the competent
authority that is required under an international standard (for
example, the ICAO Technical Instructions for the Safe Transport of
Dangerous Goods by Air and the International Maritime Dangerous Goods
Code). Any of the following may be considered a competent authority
approval if it satisfies the requirement of an international standard:
(1) A specific regulation in subchapter A or C of this chapter.
(2) An exemption or approval issued under subchapter A or C of this
chapter.
(3) A separate document issued to one or more persons by the
Associate Administrator.
* * * * *
Exemption means a document issued by the Associate Administrator
under the authority of 49 U.S.C. 5117. The document permits a person to
perform a function that is not otherwise permitted under subchapter A
or C of this chapter, or other regulations issued under 49 U.S.C. 5101
through 5127 (e.g., Federal Motor Carrier Safety routing requirements.)
* * * * *
Filed means received by the appropriate RSPA or other designated
office within the time specified in a regulation or rulemaking
document.
* * * * *
Indian Tribe has the same meaning given that term in section 4 of
the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b).
* * * * *
Person means an individual, firm, copartnership, corporation,
company, association, or joint-stock association (including any
trustee, receiver, assignee, or similar representative); or a
government or Indian tribe (or an agency or instrumentality of any
government or Indian tribe) that transports a hazardous material to
further a commercial enterprise or offers a hazardous material for
transportation in commerce. Person does not include the following:
(1) The United States Postal Service.
(2) Any agency or instrumentality of the Federal government, for
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal
penalties.)
(3) Any government or Indian tribe (or an agency or instrumentality
of any government or Indian tribe) that transports hazardous material
for a governmental purpose.
* * * * *
State means a State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other
territory or possession of the United States designated by the
Secretary.
Transports or transportation means the movement of property and
loading, unloading, or storage incidental to the movement.
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
7. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
8. In Sec. 171.8, the definitions for ``Approval,'' ``Exemption,''
``Hazardous material,'' and ``Person'' are revised to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Approval means a written authorization, including a competent
authority approval, from the Associate Administrator or other
designated Department official, to perform a function for which prior
authorization by the Associate Administrator is required under
subchapter C of this chapter (49 CFR parts 171 through 180.)
* * * * *
Exemption means a document issued by the Associate Administrator
under the authority of 49 U.S.C. 5117. The document permits a person to
perform a function that is not otherwise permitted under subchapter A
or C of this chapter, or other regulations issued under 49 U.S.C. 5101
through 5127 (e.g., Federal Motor Carrier Safety routing).
* * * * *
Hazardous material means a substance or material that the Secretary
of Transportation has determined is capable of posing an unreasonable
risk to health, safety, and property when transported in commerce, and
has designated as hazardous under section 5103 of Federal hazardous
materials transportation law (49 U.S.C. 5103). The term includes
hazardous substances, hazardous wastes, marine pollutants, elevated
temperature materials, materials designated as hazardous in the
Hazardous Materials Table (see 49 CFR 172.101), and materials that meet
the defining criteria for hazard classes and divisions in part 173 of
subchapter C of this chapter.
* * * * *
Person means an individual, firm, copartnership, corporation,
company, association, or joint-stock association (including any
trustee, receiver, assignee, or similar representative); or a
government or Indian tribe (or an agency or instrumentality of any
government or Indian tribe) that transports a hazardous material to
further a commercial enterprise or offers a hazardous material for
transportation in commerce. Person does not include the following:
(1) The United States Postal Service.
(2) Any agency or instrumentality of the Federal government, for
the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal
penalties.).
(3)Any government or Indian tribe (or an agency or instrumentality
of any government or Indian tribe) that transports hazardous material
for a governmental purpose.
* * * * *
[[Page 42959]]
Issued at Washington, DC, on May 30, 2002, under authority
delegated in 49 CFR part 106.
Suzanne M. Te Beau,
Acting Administrator.
[FR Doc. 02-15281 Filed 6-24-02; 8:45 am]
BILLING CODE 4910-60-P