Hazardous Materials: Oregon Hazardous Waste Management Regulation, 8257-8259 [2017-00788]

Download as PDF Federal Register / Vol. 82, No. 14 / Tuesday, January 24, 2017 / Notices Memorandum of Agreement, dated January 3, 2017; project-level air quality conformity; and a Finding of No Significant Impact, dated January 6, 2017. Supporting Documentation: Environmental Assessment, dated May 2016. 2. Project name and location: 68th Street/Hunter College Station Improvement Project, New York, NY. Project sponsor: Metropolitan Transportation Authority (MTA). Project description: The proposed project would reconfigure the 68th Street/ Hunter College Subway Station located at Lexington Avenue and East 68th Street in Manhattan to provide Americans with Disabilities Act (ADA) accessibility and improve passenger circulation. The project would make changes at the street, mezzanine, and platform levels, including new street stairs, new mezzanines, and new platform stairs near the north end of the station. Final agency actions: Section 4(f) de minimis impact determination; Section 106 finding of no adverse effect; and a Finding of No Significant Impact, dated July 28, 2016. Supporting Documentation: Environmental Assessment, dated February 2016. Lucy Garliauskas, Associate Administrator Planning and Environment. [FR Doc. 2017–01449 Filed 1–23–17; 8:45 am] BILLING CODE P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [Docket No. PHMSA–2016–0163; PDA– 39(R)] Hazardous Materials: Oregon Hazardous Waste Management Regulation Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Public Notice and Invitation to comment. AGENCY: Interested parties are invited to comment on an application by NORA, An Association of Responsible Recyclers (NORA) for an administrative determination as to whether Federal hazardous material transportation law preempts a hazardous waste regulation of the State of Oregon that imposes a strict liability standard on transporters. DATES: Comments received on or before March 10, 2017 and rebuttal comments received on or before April 24, 2017 will be considered before an administrative sradovich on DSK3GMQ082PROD with NOTICES SUMMARY: VerDate Sep<11>2014 19:36 Jan 23, 2017 Jkt 241001 determination is issued by PHMSA’s Chief Counsel. Rebuttal comments may discuss only those issues raised by comments received during the initial comment period and may not discuss new issues. ADDRESSES: NORA’s application and all comments received may be reviewed in the Docket Operations Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. The application and all comments are available on the U.S. Government Regulations.gov Web site: http://www.regulations.gov. Comments must refer to Docket No. PHMSA–2016–0163 and may be submitted by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. • Fax: 1–202–493–2251. • Mail: Docket Operations Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. • Hand Delivery: Docket Operations Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. A copy of each comment must also be sent to (1) Scott D. Parker, Executive Director, NORA, An Association of Responsible Recyclers, 7250 Heritage Village Plaza, Suite 201, Gainesville, VA 20155, and (2) Ellen Rosenblum, Attorney General, Justice Building, 1162 Court Street NE., Salem OR 97301. A certification that a copy has been sent to these persons must also be included with the comment. (The following format is suggested: ‘‘I certify that copies of this comment have been sent to Mr. Parker and Ms. Rosenblum at the addresses specified in the Federal Register.’’) Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing a comment submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477–78), or you may visit http:// www.regulations.gov. A subject matter index of hazardous materials preemption cases, including a PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 8257 listing of all inconsistency rulings and preemption determinations, is available through PHMSA’s home page at http:// phmsa.dot.gov. From the home page, click on ‘‘Hazardous Materials Safety,’’ then on ‘‘Standards & Rulemaking,’’ then on ‘‘Preemption Determinations’’ located on the right side of the page. A paper copy of the index will be provided at no cost upon request to Mr. Lopez, at the address and telephone number set forth in the FOR FURTHER INFORMATION CONTACT section below. FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel (PHC–10), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone No. 202–366–4400; facsimile No. 202–366–7041. SUPPLEMENTARY INFORMATION: I. Application for a Preemption Determination NORA has applied to PHMSA for a determination whether Federal hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts the State of Oregon’s Administrative Rule (OAR), OAR 340–100–0002(1) 1, as it is applied to transporters. Specifically, NORA states that the Oregon Environmental Quality Commission (OEQC) interprets the Oregon regulation, which adopts the United States Environmental Protection Agency’s regulation, 40 CFR 263.20(a)(1), as imposing a strict liability standard on transporters of hazardous waste.2 According to NORA, under Oregon law, ‘‘the transporter exercising reasonable care may not rely on the information provided by the generator and instead must be held to a strict liability standard.’’ (emphasis omitted). NORA presents three main arguments for why it believes Oregon’s hazardous waste regulation should be preempted. First, NORA contends that it is not possible to comply with both the Oregon rule and the federal requirements because the ‘‘HMTA regulation requires the transporter to exercise reasonable care’’ while Oregon’s strict liability interpretation does not. Next, NORA argues that 1 The Oregon regulation adopts by reference the United States Environmental Protection Agency’s rules and regulations governing the management of hazardous waste, including its generation, transportation, treatment, storage, recycling and disposal, as prescribed in 40 CFR parts 260 to 268, 270, and 273, and subparts A and B of part 124. See OAR 340–100–0002(1). 2 NORA states that this issue is being litigated and is presently under consideration by the Oregon Supreme Court. E:\FR\FM\24JAN1.SGM 24JAN1 8258 Federal Register / Vol. 82, No. 14 / Tuesday, January 24, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES Oregon’s strict liability standard creates an obstacle for interstate transporters. Furthermore, NORA opines that the State’s inconsistent strict liability standard will encourage the misclassification of hazardous material. Last, NORA states ‘‘a strict liability standard is not ‘substantively the same’ as a reasonable care liability standard.’’ NORA notes that ‘‘under Oregon’s interpretation, a transporter who satisfies the reasonable care standard in section 171.2(f) would nonetheless be strictly liable for the generator’s waste mischaracterization.’’ In summary, NORA contends the State of Oregon’s Administrative Rule, OAR 340–100–0002(1), should be preempted because: • It is not possible to comply with both the Oregon rule and the federal requirements; • It creates an obstacle to carrying out the federal requirements; and • A strict liability standard is not substantively the same as the federal requirements. II. Federal Preemption Section 5125 of 49 U.S.C. contains express preemption provisions relevant to this proceeding. As amended by Section 1711(b) of the Homeland Security Act of 2002 (Pub. L. 107–296, 116 Stat. 2319), 49 U.S.C. 5125(a) provides that a requirement of a State, political subdivision of a State, or Indian tribe is preempted—unless the non-Federal requirement is authorized by another Federal law or DOT grants a waiver of preemption under section 5125(e)—if (1) complying with the nonFederal requirement and the Federal requirement is not possible; or (2) the non-Federal requirement, as applied and enforced, is an obstacle to accomplishing and carrying out the Federal requirement. These two sentences set forth the ‘‘dual compliance’’ and ‘‘obstacle’’ criteria that PHMSA’s predecessor agency, the Research and Special Programs Administration, had applied in issuing inconsistency rulings prior to 1990, under the original preemption provision in the Hazardous Materials Transportation Act (HMTA). Public Law 93–633 § 112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria are based on U.S. Supreme Court decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978). Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal requirement concerning any of the following subjects is preempted—unless authorized by VerDate Sep<11>2014 19:36 Jan 23, 2017 Jkt 241001 another Federal law or DOT grants a waiver of preemption—when the nonFederal requirement is not ‘‘substantively the same as’’ a provision of Federal hazardous material transportation law, a regulation prescribed under that law, or a hazardous materials security regulation or directive issued by the Department of Homeland Security. The five subject areas include: The designation, description, and classification of hazardous material; the packing, repacking, handling, labeling, marking, and placarding of hazardous material; the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents; the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident; and the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. To be ‘‘substantively the same,’’ the non-Federal requirement must conform ‘‘in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted.’’ 49 CFR 107.202(d).3 The 2002 amendments and 2005 reenactment of the preemption provisions in 49 U.S.C. 5125 reaffirmed Congress’s long-standing view that a single body of uniform Federal regulations promotes safety (including security) in the transportation of hazardous materials. More than thirty years ago, when it was considering the HMTA, the Senate Commerce Committee ‘‘endorse[d] the principle of preemption in order to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation.’’ S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). When Congress expanded the preemption 3 Additional standards apply to preemption of non-Federal requirements on highway routes over which hazardous materials may or may not be transported and fees related to transporting hazardous material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) which explains that a ‘‘facility at which functions regulated under the HMR are performed may be subject to applicable laws and regulations of state and local governments and Indian tribes.’’ PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 provisions in 1990, it specifically found that many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements. And because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable. Therefore, in order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable.4 A United States Court of Appeals has found uniformity was the ‘‘linchpin’’ in the design of the Federal laws governing the transportation of hazardous materials. Colorado Pub. Util. Comm’n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991). III. Preemption Determinations Under 49 U.S.C. 5125(d)(1), any person (including a State, political subdivision of a State, or Indian tribe) directly affected by a requirement of a State, political subdivision or tribe may apply to the Secretary of Transportation for a determination whether the requirement is preempted. The Secretary of Transportation has delegated authority to PHMSA to make determinations of preemption, except for those concerning highway routing (which have been delegated to the Federal Motor Carrier Safety Administration). 49 CFR 1.97(b). Section 5125(d)(1) requires notice of an application for a preemption determination to be published in the Federal Register. Following the receipt and consideration of written comments, PHMSA publishes its determination in the Federal Register. See 49 CFR 107.209(c). A short period of time is allowed for filing of petitions for reconsideration. 49 CFR 107.211. A petition for judicial review of a final preemption determination must be filed in the United States Court of Appeals 4 Public Law 101–615 § 2, 104 Stat. 3244. (In 1994, Congress revised, codified and enacted the HMTA ‘‘without substantive change,’’ at 49 U.S.C. Chapter 51. Public Law 103–272, 108 Stat. 745 (July 5, 1994).) E:\FR\FM\24JAN1.SGM 24JAN1 Federal Register / Vol. 82, No. 14 / Tuesday, January 24, 2017 / Notices for the District of Columbia or in the Court of Appeals for the United States for the circuit in which the petitioner resides or has its principal place of business, within 60 days after the determination becomes final. 49 U.S.C. 5127(a). Preemption determinations do not address issues of preemption arising under the Commerce Clause, the Fifth Amendment or other provisions of the Constitution, or statutes other than the Federal hazardous material transportation law unless it is necessary to do so in order to determine whether a requirement is authorized by another Federal law, or whether a fee is ‘‘fair’’ within the meaning of 49 U.S.C. 5125(f)(1). A State, local or Indian tribe requirement is not authorized by another Federal law merely because it is not preempted by another Federal statute. Colorado Pub. Util. Comm’n v. Harmon, above, 951 F.2d at 1581 n.10. In making preemption determinations under 49 U.S.C. 5125(d), PHMSA is guided by the principles and policies set forth in Executive Order No. 13132, entitled ‘‘Federalism’’ (64 FR 43255 (Aug. 10, 1999)), and the President’s May 20, 2009 memorandum on ‘‘Preemption’’ (74 FR 24693 (May 22, 2009)). Section 4(a) of that Executive Order authorizes preemption of State laws only when a statute contains an express preemption provision, there is other clear evidence Congress intended to preempt State law, or the exercise of State authority directly conflicts with the exercise of Federal authority. The President’s May 20, 2009 memorandum sets forth the policy ‘‘that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.’’ Section 5125 contains express preemption provisions, which PHMSA has implemented through its regulations. sradovich on DSK3GMQ082PROD with NOTICES IV. Public Comments All comments should be directed to whether 49 U.S.C. 5125 preempts a hazardous waste regulation of the State of Oregon that imposes a strict liability standard on transporters. Comments should specifically address the preemption criteria discussed in Part II above. Issued in Washington, DC, on January 10, 2017. Vasiliki Tsaganos, Acting Chief Counsel. [FR Doc. 2017–00788 Filed 1–23–17; 8:45 am] BILLING CODE 4910–60–P VerDate Sep<11>2014 19:36 Jan 23, 2017 Jkt 241001 DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Appraisals for Higher-Priced Mortgage Loans Office of the Comptroller of the Currency (OCC), Treasury. ACTION: Notice and request for comment. AGENCY: The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of its information collection titled ‘‘Appraisals for Higher-Priced Mortgage Loans.’’ The OCC also is giving notice that it has sent the collection to OMB for review. DATES: Comments must be submitted on or before February 23, 2017. ADDRESSES: Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557–0313, 400 7th Street SW., Suite 3E–218, Mail Stop 9W–11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465–4326 or by electronic mail to prainfo@occ.treas.gov. You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649–6700 or, for persons who are deaf or hard of hearing, TTY, (202) 649–5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments. All comments received, including attachments and other supporting materials, are part of the public record SUMMARY: PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 8259 and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557–0313, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503 or by email to: oira submission@ omb.eop.gov. FOR FURTHER INFORMATION CONTACT: Shaquita Merritt, OCC Clearance Officer, (202) 649–5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649–5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E–218, Mail Stop 9W–11, Washington, DC 20219. Under the PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the OMB for each collection of information that they conduct or sponsor. ‘‘Collection of information’’ is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. The OCC requests that OMB extend its approval of the following collection: Title: Appraisals for Higher-Priced Mortgage Loans. OMB Control No.: 1557–0313. Type of Review: Regular. Frequency of Response: On occasion. Affected Public: Businesses or other for-profit. Estimated Number of Respondents: 1,399. Estimated Total Annual Burden: 19,946 hours. Description: This information collection relates to section 1471 of the Dodd-Frank Act, which added a new section 129H to the Truth in Lending Act (TILA) establishing special appraisal requirements for ‘‘higher-risk mortgages.’’ For certain mortgages with an annual percentage rate that exceeds the average prime offer rate by a specified percentage, creditors must obtain an appraisal or appraisals meeting certain specified standards, provide applicants with a notification regarding the use of the appraisals, and give applicants a copy of the written appraisals used. The statute permits the OCC to issue a rule to include exemptions from these requirements. The OCC implemented these SUPPLEMENTARY INFORMATION: E:\FR\FM\24JAN1.SGM 24JAN1

Agencies

[Federal Register Volume 82, Number 14 (Tuesday, January 24, 2017)]
[Notices]
[Pages 8257-8259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00788]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2016-0163; PDA-39(R)]


Hazardous Materials: Oregon Hazardous Waste Management Regulation

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Public Notice and Invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by 
NORA, An Association of Responsible Recyclers (NORA) for an 
administrative determination as to whether Federal hazardous material 
transportation law preempts a hazardous waste regulation of the State 
of Oregon that imposes a strict liability standard on transporters.

DATES: Comments received on or before March 10, 2017 and rebuttal 
comments received on or before April 24, 2017 will be considered before 
an administrative determination is issued by PHMSA's Chief Counsel. 
Rebuttal comments may discuss only those issues raised by comments 
received during the initial comment period and may not discuss new 
issues.

ADDRESSES: NORA's application and all comments received may be reviewed 
in the Docket Operations Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590. The application and all 
comments are available on the U.S. Government Regulations.gov Web site: 
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2016-0163 and may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Docket Operations Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9:00 a.m. and 
5:00 p.m., Monday through Friday, except Federal holidays.
    A copy of each comment must also be sent to (1) Scott D. Parker, 
Executive Director, NORA, An Association of Responsible Recyclers, 7250 
Heritage Village Plaza, Suite 201, Gainesville, VA 20155, and (2) Ellen 
Rosenblum, Attorney General, Justice Building, 1162 Court Street NE., 
Salem OR 97301. A certification that a copy has been sent to these 
persons must also be included with the comment. (The following format 
is suggested: ``I certify that copies of this comment have been sent to 
Mr. Parker and Ms. Rosenblum at the addresses specified in the Federal 
Register.'')
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing a comment submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78), or you may visit http://www.regulations.gov.
    A subject matter index of hazardous materials preemption cases, 
including a listing of all inconsistency rulings and preemption 
determinations, is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Hazardous Materials 
Safety,'' then on ``Standards & Rulemaking,'' then on ``Preemption 
Determinations'' located on the right side of the page. A paper copy of 
the index will be provided at no cost upon request to Mr. Lopez, at the 
address and telephone number set forth in the FOR FURTHER INFORMATION 
CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel 
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., Washington, 
DC 20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION: 

I. Application for a Preemption Determination

    NORA has applied to PHMSA for a determination whether Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts 
the State of Oregon's Administrative Rule (OAR), OAR 340-100-0002(1) 
\1\, as it is applied to transporters. Specifically, NORA states that 
the Oregon Environmental Quality Commission (OEQC) interprets the 
Oregon regulation, which adopts the United States Environmental 
Protection Agency's regulation, 40 CFR 263.20(a)(1), as imposing a 
strict liability standard on transporters of hazardous waste.\2\ 
According to NORA, under Oregon law, ``the transporter exercising 
reasonable care may not rely on the information provided by the 
generator and instead must be held to a strict liability standard.'' 
(emphasis omitted).
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    \1\ The Oregon regulation adopts by reference the United States 
Environmental Protection Agency's rules and regulations governing 
the management of hazardous waste, including its generation, 
transportation, treatment, storage, recycling and disposal, as 
prescribed in 40 CFR parts 260 to 268, 270, and 273, and subparts A 
and B of part 124. See OAR 340-100-0002(1).
    \2\ NORA states that this issue is being litigated and is 
presently under consideration by the Oregon Supreme Court.
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    NORA presents three main arguments for why it believes Oregon's 
hazardous waste regulation should be preempted. First, NORA contends 
that it is not possible to comply with both the Oregon rule and the 
federal requirements because the ``HMTA regulation requires the 
transporter to exercise reasonable care'' while Oregon's strict 
liability interpretation does not. Next, NORA argues that

[[Page 8258]]

Oregon's strict liability standard creates an obstacle for interstate 
transporters. Furthermore, NORA opines that the State's inconsistent 
strict liability standard will encourage the misclassification of 
hazardous material. Last, NORA states ``a strict liability standard is 
not `substantively the same' as a reasonable care liability standard.'' 
NORA notes that ``under Oregon's interpretation, a transporter who 
satisfies the reasonable care standard in section 171.2(f) would 
nonetheless be strictly liable for the generator's waste 
mischaracterization.''
    In summary, NORA contends the State of Oregon's Administrative 
Rule, OAR 340-100-0002(1), should be preempted because:
     It is not possible to comply with both the Oregon rule and 
the federal requirements;
     It creates an obstacle to carrying out the federal 
requirements; and
     A strict liability standard is not substantively the same 
as the federal requirements.

II. Federal Preemption

    Section 5125 of 49 U.S.C. contains express preemption provisions 
relevant to this proceeding. As amended by Section 1711(b) of the 
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2319), 49 
U.S.C. 5125(a) provides that a requirement of a State, political 
subdivision of a State, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants 
a waiver of preemption under section 5125(e)--if (1) complying with the 
non-Federal requirement and the Federal requirement is not possible; or 
(2) the non-Federal requirement, as applied and enforced, is an 
obstacle to accomplishing and carrying out the Federal requirement.
    These two sentences set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA's predecessor agency, the Research and 
Special Programs Administration, had applied in issuing inconsistency 
rulings prior to 1990, under the original preemption provision in the 
Hazardous Materials Transportation Act (HMTA). Public Law 93-633 Sec.  
112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria 
are based on U.S. Supreme Court decisions on preemption. Hines v. 
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. 
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Department of Homeland 
Security. The five subject areas include: The designation, description, 
and classification of hazardous material; the packing, repacking, 
handling, labeling, marking, and placarding of hazardous material; the 
preparation, execution, and use of shipping documents related to 
hazardous material and requirements related to the number, contents, 
and placement of those documents; the written notification, recording, 
and reporting of the unintentional release in transportation of 
hazardous material and other written hazardous materials transportation 
incident reporting involving State or local emergency responders in the 
initial response to the incident; and the designing, manufacturing, 
fabricating, inspecting, marking, maintaining, reconditioning, 
repairing, or testing a package, container, or packaging component that 
is represented, marked, certified, or sold as qualified for use in 
transporting hazardous material in commerce.
    To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).\3\
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    \3\ Additional standards apply to preemption of non-Federal 
requirements on highway routes over which hazardous materials may or 
may not be transported and fees related to transporting hazardous 
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) 
which explains that a ``facility at which functions regulated under 
the HMR are performed may be subject to applicable laws and 
regulations of state and local governments and Indian tribes.''
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    The 2002 amendments and 2005 reenactment of the preemption 
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view 
that a single body of uniform Federal regulations promotes safety 
(including security) in the transportation of hazardous materials. More 
than thirty years ago, when it was considering the HMTA, the Senate 
Commerce Committee ``endorse[d] the principle of preemption in order to 
preclude a multiplicity of State and local regulations and the 
potential for varying as well as conflicting regulations in the area of 
hazardous materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd 
Sess. 37 (1974). When Congress expanded the preemption provisions in 
1990, it specifically found that many States and localities have 
enacted laws and regulations which vary from Federal laws and 
regulations pertaining to the transportation of hazardous materials, 
thereby creating the potential for unreasonable hazards in other 
jurisdictions and confounding shippers and carriers which attempt to 
comply with multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements. And because of the 
potential risks to life, property, and the environment posed by 
unintentional releases of hazardous materials, consistency in laws and 
regulations governing the transportation of hazardous materials is 
necessary and desirable. Therefore, in order to achieve greater 
uniformity and to promote the public health, welfare, and safety at all 
levels, Federal standards for regulating the transportation of 
hazardous materials in intrastate, interstate, and foreign commerce are 
necessary and desirable.\4\
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    \4\ Public Law 101-615 Sec.  2, 104 Stat. 3244. (In 1994, 
Congress revised, codified and enacted the HMTA ``without 
substantive change,'' at 49 U.S.C. Chapter 51. Public Law 103-272, 
108 Stat. 745 (July 5, 1994).)
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    A United States Court of Appeals has found uniformity was the 
``linchpin'' in the design of the Federal laws governing the 
transportation of hazardous materials. Colorado Pub. Util. Comm'n v. 
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe may apply to 
the Secretary of Transportation for a determination whether the 
requirement is preempted. The Secretary of Transportation has delegated 
authority to PHMSA to make determinations of preemption, except for 
those concerning highway routing (which have been delegated to the 
Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(c). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211. A petition for judicial review of 
a final preemption determination must be filed in the United States 
Court of Appeals

[[Page 8259]]

for the District of Columbia or in the Court of Appeals for the United 
States for the circuit in which the petitioner resides or has its 
principal place of business, within 60 days after the determination 
becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution, or statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(f)(1). A State, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), PHMSA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). Section 4(a) of that Executive Order authorizes 
preemption of State laws only when a statute contains an express 
preemption provision, there is other clear evidence Congress intended 
to preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. The President's May 
20, 2009 memorandum sets forth the policy ``that preemption of State 
law by executive departments and agencies should be undertaken only 
with full consideration of the legitimate prerogatives of the States 
and with a sufficient legal basis for preemption.'' Section 5125 
contains express preemption provisions, which PHMSA has implemented 
through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts 
a hazardous waste regulation of the State of Oregon that imposes a 
strict liability standard on transporters. Comments should specifically 
address the preemption criteria discussed in Part II above.

    Issued in Washington, DC, on January 10, 2017.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2017-00788 Filed 1-23-17; 8:45 am]
 BILLING CODE 4910-60-P