What does 49 CFR 107.215 (Application) require?

Short answer

49 CFR 107.215 requires a State or political subdivision thereof, or Indian tribe to apply to the Chief Counsel for a waiver of preemption with respect to any requirement that the State or political subdivision thereof or Indian tribe acknowledges to be preempted under the Federal hazardous materials transportation law. The application must include specific information, such as the text of the State or political subdivision requirement and an express acknowledgment that the requirement is preempted.

The rule says

"A State or political subdivision thereof, or Indian tribe may apply to the Chief Counsel for a waiver of preemption with respect to any requirement that the State or political subdivision thereof or Indian tribe acknowledges to be preempted under the Federal hazardous materials transportation law, or that has been determined by a court of competent jurisdiction to be so preempted." (49 CFR 107.215(a))

Each application filed under this section for a waiver of preemption determination must: ... (8) Specify what steps the State, political subdivision or Indian tribe is taking to administer and enforce effectively its inconsistent requirement — 49 CFR 107.215(b).

In plain English

This regulation allows states or local governments to apply for an exemption from federal hazardous materials transportation laws if they have a requirement that is more stringent. The application must provide detailed information about the requirement and how it will be enforced. The goal is to ensure that the state or local requirement provides an equal or greater level of protection to the public than the federal law. In practice, this means that states or local governments must carefully review their requirements and provide evidence that they are necessary and effective.

What to do

• Review your state or local requirements to determine if they are preempted by federal hazardous materials transportation law.
• Gather information and evidence to support your application, including the text of the requirement and an express acknowledgment that it is preempted.
• Submit your application to the Chief Counsel, including all required information, such as the steps you are taking to administer and enforce the requirement.
• Ensure that your requirement provides an equal or greater level of protection to the public than the federal law.