Ask X3What does 49 CFR 107.221 (Determination) require?
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According to 49 CFR 107.221, after reviewing your application and other relevant information, the Chief Counsel issues a written determination regarding whether a State, local, or tribal requirement is preempted under federal hazardous materials law or whether a waiver of preemption should be granted.
Specifically, the Chief Counsel may only issue a waiver of preemption if they find that the local requirement:
* Provides the public with a level of safety at least equal to federal hazardous material transportation laws and regulations; and
* Does not unreasonably burden commerce.
To decide if a requirement unreasonably burdens commerce, the Chief Counsel looks at:
1. The resulting increased costs and reduced efficiency.
2. Whether the requirement has a rational basis.
3. Whether the requirement actually achieves its stated purpose.
4. Whether there is a need for uniformity, and whether the requirement conflicts with those of other states, local governments, or Indian tribes.
What the final determination includes and how it is handled:
* It includes a written statement of the relevant facts and legal bases.
* It states that anyone aggrieved by the determination can file a petition for reconsideration with the Chief Counsel.
* The Chief Counsel sends a copy to the applicant, anyone who substantially participated in the proceeding, or anyone who requested notice in the docket.
* A copy is placed in the public docket.
* The determination (or a notice of it) is published in the Federal Register, which makes it a final agency action.