[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Proposed Rules]
[Pages 68624-68633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31506]



[[Page 68623]]

_______________________________________________________________________

Part IV





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



_______________________________________________________________________



49 CFR Parts 105, 106, and 107



Revised and Clarified Hazardous Materials Safety Rulemaking and Program 
Procedures; Proposed Rule

Federal Register / Vol. 63, No. 238 / Friday, December 11, 1998 / 
Proposed Rules

[[Page 68624]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 105, 106, and 107

[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: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: In response to President Clinton's mandate to Federal agencies 
to make communications with the public more understandable, RSPA is 
issuing this NPRM in which it proposes to revise and clarify the 
hazardous materials safety rulemaking and program procedures by:
     Putting them into plain language and making minor 
substantive changes.
     Creating a new part that will contain all defined terms 
used in RSPA's procedural regulations.
     Demonstrating clearer Federal Register and Code of Federal 
Regulations (CFR) formats.
DATES: Send your comments on or before February 9, 1999.
ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room PL 401, 400 Seventh Street, SW, 
Washington, DC 20590-0001. You must identify the docket number RSPA-98-
3974 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that RSPA 
has received your comments, include a self-addressed, stamped postcard. 
You may also submit comments by e-mail to [email protected]. 
You may review public dockets containing comments to these proposed 
regulations in the Dockets Office between 9:00 a.m. and 5:00 p.m., 
Monday through Friday, except Federal holidays. The Dockets Office is 
on the plaza level of the Nassif Building at the Department of 
Transportation at the above address. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Karin Christian, Office of the Chief 
Counsel, (202) 366-4400, Research and Special Programs Administration.
SUPPLEMENTARY INFORMATION:

                  1. Proposed Substantive Changes

    RSPA (``we'') proposes to revise all of parts 106 and 107, and to 
create a new part 105 that will eventually contain all definitions for 
terms used in Title 49, parts 106, 107 and 110, and perhaps parts 130 
and 171 through 180. The proposed revisions respond to President 
Clinton's June 1, 1998 Executive Memorandum directing Federal agencies 
to make communications with the public more understandable. We propose 
to clarify existing requirements and make minor substantive changes 
which are explained in the following paragraphs. We will revise the 
remainder of subchapter A into plain language in a future rulemaking.

                                Part 105

    We propose to create a new part 105 that will tell you how to 
obtain information from us about our procedural regulations and the 
Hazardous Materials Regulations (HMR). It will also explain subpoenas 
and service of documents. We also have revised mailing addresses 
throughout parts 105 and 106 to ensure that documents you send us reach 
the appropriate RSPA office in a timely manner.
    Also, proposed part 105 would eventually contain all definitions 
that are now in various places throughout subchapter A and may 
eventually include the definitions now found throughout subchapters B 
and C. This change would let you go to a single location for all 
defined terms. Part 105 would also include some definitions found in 
section 5102 of Federal hazardous material transportation law, 49 
U.S.C. 5101 et seq, that apply to terms used in the Hazardous Materials 
Regulations but do not appear in the regulations themselves. As a 
result of the present deficiency, you must refer to the statute to 
determine what particular words in the regulations mean.
    At this time, proposed part 105 contains a limited number of 
definitions that have been rewritten into plain language. Many of these 
terms are also defined in 49 CFR parts 107 and 171. Consequently, the 
same term may be defined with different language in part 105 on the one 
hand and parts 107 and 171 on the other. Nevertheless, the plain 
language definitions in proposed part 105 are intended to have the same 
meaning as those in parts 107 and 171; we did not intend to make any 
substantive changes when we rewrote the proposed part 105 definitions 
into plain language.

                                Part 106

    Proposed Sec.  106.5 contains new information on 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 proposes to allow commenters to electronically file 
their comments in a rulemaking proceeding. It also would allow us to 
reject paper and electronic comments that are frivolous, abusive, or 
repetitious.
    Sections 106.80 through 106.95 talk about ``public meetings'' 
rather than ``informal hearings.'' We are proposing this language 
change to more accurately reflect the nature of these public, 
information-gathering sessions.
    Sections 106.115 through 106.140 propose to eliminate the current 
petition-for- reconsideration procedures in Sec. 106.35 and 
Sec. 106.38. Current Sec. 106.35 requires that you 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 you are challenging. Current 
Sec. 106.38 then allows you to appeal the decision of the Associate 
Administrator or the Chief Counsel by filing an appeal with RSPA's 
Administrator.
    Only the Administrator has the authority, delegated from the 
Secretary of Transportation, to grant a petition for reconsideration 
that results in a new final rule. Therefore, petitions for 
reconsideration and appeals are currently processed through the 
Administrator. The proposed regulatory change avoids duplicative appeal 
procedures by limiting the process to action by the Administrator only.

                                Part 107

    The substance of the procedural regulations in part 107, subpart A, 
has been captured in proposed parts 105 and 106. Consequently, with the 
exception of Sec. 107.1--which would contain the definitions now found 
in

[[Page 68625]]

Sec. 107.3--we propose to remove the regulations currently contained in 
Part 107 subpart A.

            2. Clearer Federal Register and CFR Formats

    Plain language helps readers find requirements quickly and 
understand them easily. To do that, we have reorganized and reworded 
the parts using plain-language techniques not usually found in the 
Federal Register and CFR, such as these:
     Undesignated center headings cluster related sections 
within subparts.
     Short sections, paragraphs, sentences, and words speed up 
reading and enhance understanding.
     Sections as questions and answers focus sections better 
and combine to establish a rule.
     Personal pronouns reduce passive voice and draw readers 
into the writing.
     Tables display complex information in a simple, easy-to-
read format.
    In coordination with the Office of the Federal Register (OFR) and 
the National Partnership for Reinventing Government (NPR), RSPA is 
proposing changes in format that would make all regulations easier to 
read. The changes respond to the call in President Clinton's Executive 
Memorandum of June 1, 1998, for writing that uses ``easy-to-read design 
features.'' RSPA intends to use these and other plain language 
techniques, as appropriate, in future rulemaking projects if the OFR 
approves them for general use. The public and all agencies are invited 
to comment on the proposed changes.

                      Staggering Paragraph Levels

    OFR strongly recommends that agencies never use more than three 
levels of paragraphs (for example (a)(1)(i)), but distinguishing one 
level from another is hard because all paragraphs in the CFR start at 
the same distance from the left margin. To make relative importance 
stand out, we have drafted this proposed rule using the following 
format features:
     Different paragraph levels start in different places. You 
see the limit of three levels and proposed staggered indentations at 
Sec. 106.45. Indenting first lines of three levels of paragraphs has 
virtually no effect on the length of the text.
     Main paragraphs start at the margin. This change would 
show that main paragraphs (those without numbers or letters) are at the 
highest level. See the first sentence in Sec. 106.45.

                       Spacing Between Paragraphs

    The dense formats of the Federal Register and CFR save on pages but 
hinder reading. Though section headings are framed by blank lines above 
and below them, there is no such relief to the fine print within a 
section, where users do their closest reading. To make navigation 
faster and easier, at least one commercial publisher of the Federal 
Acquisition Regulations has adopted two techniques that RSPA proposes 
here:
     Blank half lines separate paragraphs. The visual relief 
helps readers move around and spot things fast. Using this proposed 
rule document as an example, blank half lines add about one-half page 
in 10 (or an increase of about 5 percent). Agencies may be able to 
offset this space increase and resulting increases in publication costs 
by taking advantage of some economies of plain language.
     All new paragraphs start on new lines. Most paragraphs do 
start on new lines now, with this exception: when a paragraph consists 
of just a heading, the next paragraph starts beside it. The compression 
creates an occasional inconsistency that complicates reading. Imagine 
Sec. 106.40(d)(1) starting next to ``Withdrawing a direct final rule.'' 
The proposed change makes the placement of section designations 
entirely consistent. It lets readers devote more of their limited time 
to understanding the substance and less to compensating for the 
format's irregularities.
    RSPA, OFR and NPR are interested in your views on the need for 
format changes in the Federal Register and CFR. Changes can be 
implemented over time, as new regulatory documents are published, but 
where? In the Federal Register alone? In the CFR as well? Within the 
Federal Register, should blank half lines between paragraphs be added 
to regulatory text alone or to preambles as well?

                       Identifying Defined Terms

    RSPA proposes to list, at the beginning of each subpart, the 
defined terms that are used within the subpart and to refer the reader 
to the new part 105 definitions. This way, readers will know that RSPA 
has given a term a precise meaning and will know where to find it. This 
proposal leaves certain practices unchanged. In a definitions section, 
writers would still underline a term on its first appearance and OFR 
would still italicize the defined term. In such a section, writers 
would still have the option of ending a definition with a cross-
reference to the term's first substantive use. Similarly, writers would 
still have the option of following the first substantive use of a 
defined term with a cross-reference back to the section that defines 
it.

                        Clarifying Table Format

    This proposal illustrates the use of horizontal lines and plain 
language in a table format, and adopts other standard features of table 
design. For an example, see the table in Sec. 106.110.
     Tables use horizontal lines. This is common practice in 
newspapers and magazines (stock market tables are an example). But 
tables in the Federal Register and CFR often have vertical lines 
between columns, separating closely related matter and blocking normal 
left-to-right reading. Under this proposal, if-then tables would appear 
with horizontal lines between rows and no vertical lines anywhere.
     Column widths vary. Currently, columns may be too wide or 
too narrow for the amount of text. This proposal would have column 
widths adjusted to fit the text in them.
     Column headings start at left margins. Currently, column 
headings which are centered do not contribute to the clean left margin 
that substitutes for a vertical line.
     Column headings appear in boldface. In plain text now, 
they do not stand out as they might. Agencies would continue to have 
the option of submitting tables in camera-ready form.
     Tables use text font. In the past, tables and text have 
appeared in different fonts, a visual inconsistency we propose to 
eliminate.

               Centering Headings in the Federal Register

    After clustering related sections into subparts, writers currently 
have the option of clustering them further under center headings. They 
draft these headings in initial caps, without number or letter 
designations, in both the text and tables of contents. You see the 
organizing power of center headings throughout parts 105 and 106.
    Currently, undesignated center headings appear as intended in the 
CFR but not in the Federal Register. In the latter, center headings 
appear at the left margin and look like section headings without 
section numbers. The effect is confusing, especially for first-time 
readers. The proposed change would improve the placement and look of 
undesignated center headings in the Federal Register by making them 
appear centered as they do in the CFR.

[[Page 68626]]

               Using Bulleted Lists in Preamble Summaries

    Currently, preamble summaries appear in running text only. But the 
information required there--what the rule does, why it is necessary, 
and the intended effect--lends itself to vertical listing with bullets. 
(See this preamble's summary.)

                 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 will not prepare 
a regulatory impact analysis or a regulatory evaluation because this 
proposed rule has minimal economic impact. This determination may 
change as a result of public comment. This proposed rule is not 
significant according to the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034; February 26, 1979).

                         Executive Order 12612

    RSPA has analyzed this proposed rule in accordance with the 
principles and criteria in Executive Order 12612 (``Federalism''). RSPA 
has determined that this proposed rule does not have sufficient 
Federalism impacts to warrant the preparation of a federalism 
assessment.

                         Executive Order 13084

    We do not believe that the revised regulations evolving from this 
NPRM will significantly or uniquely affect the communities of Indian 
tribal governments when analyzed under the principles and criteria 
contained in Executive Order 13084 (``Consultation and Coordination 
with Indian Tribal Governments''). Therefore, the funding and 
consultation requirements of this Executive Order would not apply. 
Nevertheless, this NPRM specifically requests comments from affected 
persons, including Indian tribal governments, as to its potential 
impact.

                       Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), RSPA 
must consider whether a notice of proposed rulemaking would have a 
significant economic impact on a substantial number of small entities. 
This proposed rule 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. This proposed rule does not propose any 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 proposed 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.

           Impact on Business Processes and Computer Systems

    Many computers that use two digits to keep track of dates will, on 
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900. 
This glitch, the Year 2000 problem, could cause computers to stop 
running or to start generating erroneous data. The Year 2000 problem 
poses a threat to the global economy in which Americans live and work. 
With the help of the President's Council on Year 2000 Conversion, 
Federal agencies are reaching out to increase awareness of the problem 
and to offer support. We do not want to impose new requirements that 
would mandate business process changes when the resources necessary to 
implement those requirements would otherwise be applied to the Year 
2000 problem.
    This NPRM does not propose business process changes or require 
modifications to computer systems. Because this NPRM apparently does 
not affect organizations' ability to respond to the Year 2000 problem, 
we do not intend to delay the effectiveness of the proposed 
requirements in this NPRM.

                          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.
    Accordingly, RSPA proposes to amend 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 How does RSPA identify defined terms?
105.10 How does RSPA define the terms used in this subchapter?
                     Subpart B--General Procedures
105.15 Which defined terms are used in this subpart?

               Obtaining Guidance and Public Information

105.20 Where can I get guidance and interpretations?
105.25 Where can I review public documents on file with RSPA?
105.30 Is information I submit to RSPA made available to the public?

                           Serving Documents

105.35 How may RSPA and others serve documents in RSPA proceedings?
105.40 How do I designate an agent to receive documents on my behalf 
      if I am not a United States resident?

                               Subpoenas

105.45 What is involved in issuing a subpoena?
105.50 How are subpoenas served?
105.55 What if I do not want to obey a subpoena?
    Authority: 49 U.S.C. 5101-5127.

                       Subpart A--Definitions


Sec. 105.5  How does RSPA identify defined terms?

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

[[Page 68627]]

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.


Sec. 105.10  How does RSPA define the terms used in this subchapter?

Terms used in this subchapter are defined as follows:
    Approval means written consent, including a competent authority 
approval, from the Associate Administrator for Hazardous Materials 
Safety 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 for Hazardous Materials Safety 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 for Hazardous Materials Safety.
    Exemption means a document issued by RSPA 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 Highway Administration routing rules at 49 CFR part 397).
    Federal hazardous material transportation law and Federal hazmat 
law mean 49 U.S.C. 5101 through 5127.
    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 determines is capable of posing an unreasonable risk 
to health, safety, and property when transported in commerce, and 
designates 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 as it does under section 4 of the 
Indian Self-Determination and Education 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) when it offers hazardous materials for 
transportation in commerce or transports hazardous materials to further 
a commercial enterprise. Person excludes 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).
    Political subdivision includes 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 RSPA 
that Federal hazardous materials law does or does not void a specific 
State, political subdivision, or Indian tribe requirement.
    Regulations issued under Federal hazmat law means regulations 
contained in this subchapter (49 CFR parts 105 through 110) and in 
subchapter C of this chapter (49 CFR parts 171 through 180).
    State means:
      (1) Any of the 50 United States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, the U.S. Virgin Islands, American Samoa, Guam, or any other 
territory or possession of the United States designated by the 
Secretary of Transportation.
      (2) As used in 49 U.S.C. 5119 (uniformity of State registration 
and permitting forms and procedures), a State of the United States or 
the District of Columbia.
    Transports or Transportation means movement of property, and any 
loading, unloading, or storage incidental to that movement.
    Waiver of Preemption means a decision by RSPA to forego preemption 
of a non-Federal requirement (that is, to allow a State, political 
subdivision or Indian tribe requirement to remain in effect) that 
provides at least as much public protection as Federal hazmat law and 
the regulations issued under Federal hazmat law, and does not 
unreasonably burden commerce.

                   Subpart B--General Procedures


Sec. 105.15  Which defined terms are used in this subpart?

The following defined terms (see subpart A of this part) appear in this 
subpart: Approval; Exemption; Federal hazardous materials law; 
Hazardous materials; Hazardous materials regulations; Indian tribe; 
Preemption determination; State; Transportation; Waiver of preemption.

             Obtaining Guidance and Public Information


Sec. 105.20   Where can I get guidance and interpretations?

    (a) Hazardous materials regulations. You can get 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 line at 1-800-467-
4922 (in the Washington, DC area call 202-366-4488). The line is 
staffed from 9:00 a.m. through 5:00 p.m. Eastern time, Monday through 
Friday except Federal holidays.

[[Page 68628]]

 After hours, you can leave a recorded message and your call will be 
returned by the next business day.
      (2) Access the Office of Hazardous Materials Safety's home page 
via the Internet at http://hazmat.dot.gov.
      (3) Send a letter, with your return address and a daytime 
telephone number, to:

  Guidance and Interpretations
  Attn: DHM-333
  RSPA/U.S. Department of Transportation (USDOT)
  Washington, DC 20590-0001.

    (b) Federal Hazmat law and preemption. You can get information and 
answers to your questions on Federal hazardous materials transportation 
law, 49 U.S.C. 5101 through 5127, 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 
9:00 a.m. to 5:00 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
  Attn: DCC-10
  RSPA/USDOT
  Washington, DC 20590-0001.

Sec. 105.25  Where can I review public documents on file with RSPA?

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 Register notices, and RSPA's 
rulings, determinations, and orders issued in response to those 
applications.
    (b) Hazardous Materials Record Center. Unless a particular document 
says otherwise, the following documents are available for public review 
and copying at RSPA's Hazardous Materials Record Center, USDOT, room 
8421, 400 7th Street, SW, Washington, DC 20590-0001:
      (1) Rulemaking documents in proceedings started before 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 before 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 before February 1, 1997. 
Also available are public comments, Federal Register notices, and 
RSPA's rulings, determinations, and orders issued in response to those 
applications.
      (4) Interpretations of RSPA's regulations.
    (c) Office of Hazardous Materials Safety.
      (1) 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 approval, 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.
      (2) 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.
      (3) Send your written request to:

  Request to Review Documents
  Attn: DHM-333
  RSPA/USDOT
  Washington, DC 20590-0001.

Sec. 105.30  Is information I submit to RSPA made available to the 
public?

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; 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  How may RSPA and others serve 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:

[[Page 68629]]

      (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, return receipt requested, 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  How do I designate an agent to receive documents on my 
behalf if I am not a United States resident?

    (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, or 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:

  Designation of Agent
  Attn: DHM-333
  RSPA/USDOT
  Washington, D.C. 20590-0001.

    (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  What is involved in issuing a subpoena?

    (a) Subpoenas explained. A subpoena is a document that may require 
you to attend a hearing or produce documents or other physical evidence 
in your possession or control. RSPA may issue a subpoena either on its 
initiative or at the request of someone participating in a hearing. 
Anyone who requests that RSPA issue a subpoena must show that the 
subpoena seeks information that will materially advance the hearing.
    (b) Attendance and mileage expenses.
      (1) If you receive a subpoena to attend a hearing 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 they ask RSPA to pay the 
attendance and mileage fees because of demonstrated financial hardship.
      (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  How are subpoenas served?

    (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  What if I do not want 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:

[[Page 68630]]

      (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 produce 
physical evidence.
    2. Revise part 106 to read as follows:

PART 106--RULEMAKING PROCEDURES

                  Subpart A--RSPA Rulemaking Documents
Sec.
106.5 Which defined terms are used in this subpart?
106.10 How does RSPA issue rules?
106.15 What is an advance notice of proposed rulemaking?
106.20 What is a notice of proposed rulemaking?
106.25 May RSPA change its regulations without first issuing an 
      ANPRM or NPRM?
106.30 What is a final rule?
106.35 What is an interim final rule?
106.40 What is a direct final rule?
106.45 How can I track RSPA's rulemaking activities?
          Subpart B--Participating in the Rulemaking Process.
106.50 Which defined terms are used in this subpart?
106.55 How may I participate in RSPA's rulemaking process?

                            Written Comments

106.60 Who may file comments?
106.65 What information must I put in my written comments?
106.70 Where and when do I file my comments?
106.75 May I ask for more time to file my comments?

                 Public Meetings and Other Proceedings

106.80 What takes place at a public meeting?
106.85 May I ask RSPA to hold a public meeting?
106.90 How will RSPA handle my request for a public meeting?
106.95 What other proceedings might I take part in?

                        Petitions for Rulemaking

106.100 May I ask RSPA to add, amend, or delete a regulation?
106.105 What information must I include in a petition for 
      rulemaking?
106.110 How will RSPA handle my petition for rulemaking?

                                Appeals

106.115 May I appeal an action that RSPA has taken?
106.120 What information must I put in my appeal?
106.125 What is the deadline for filing my appeal?
106.130 Where do I file my appeal?
106.135 Will the filing of my appeal keep a final rule from becoming 
      effective?
106.140 How will RSPA handle my appeal?
    Authority: 49 U.S.C. 5101-5127.

                Subpart A--RSPA Rulemaking Documents


Sec. 106.5  Which defined terms are 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  How does RSPA issue 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.


Sec. 106.15  What is an 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  What is a notice of proposed rulemaking?

A notice of proposed rulemaking (NPRM) proposes RSPA's specific 
regulatory changes for public comment and contains supporting 
information. It generally includes proposed regulatory text.


Sec. 106.25  May RSPA change its 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  What is a 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  What is an interim final rule?

An interim final rule sets out new regulatory requirements and their 
effective date. RSPA may issue an interim final rule without first 
issuing a notice of proposed rulemaking and accepting public comment 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 issue it as a 
final rule.


Sec. 106.40  What is a 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

[[Page 68631]]

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 insubstantial 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  How can I track RSPA's rulemaking activities?

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 which 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.

         Subpart B--Participating in the Rulemaking Process


Sec. 106.50  Which defined terms are used in this subpart?

The following defined terms (see part 105, subpart A, of this 
subchapter) appear in this subpart: File; Person; Political 
subdivision; State.


Sec. 106.55  How may I participate in RSPA's 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  Who may file 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  What information must I put in my 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 do I file my comments?

    (a) Unless you are told to do otherwise in the rulemaking document

[[Page 68632]]

on which you are commenting, send your comments to us in either of the 
following ways:
      (1) By mail to:

  Docket Management System
  USDOT
  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 which you are commenting. We will 
consider late-filed comments to the extent possible.
    (c) We may reject your paper or electronic comments if they are 
frivolous, abusive, or repetitious. We may reject comments you file 
electronically if you do not follow the electronic filing instructions 
at the DOT website.


Sec. 106.75  May I ask for more time to file my comments?

Yes. 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:

  Request for Extension
  Attn: DHM-333
  RSPA/USDOT
  Washington, DC 20590-0001.

               Public Meetings and Other Proceedings


Sec. 106.80  What takes place at a public meeting?

A public meeting is a nonadversarial, 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  May I ask RSPA to hold a public meeting?

If a rulemaking document does not provide for a public meeting, you may 
ask for one 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:

  Request for Public Meeting
  Attn: DHM-333
  RSPA/USDOT
  Washington, DC 20590-0001.

Sec. 106.90  How will RSPA handle my request for a public meeting?

RSPA will review your request and, if you have shown good cause for a 
public meeting, will grant it and publish a notice of the meeting in 
the Federal Register.


Sec. 106.95   What other proceedings might I take part in?

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. 106.100  May I ask RSPA to add, amend, or delete a regulation?

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:

  Petition for Rulemaking
  Attn: DHM-333
  RSPA/USDOT
  Washington, DC 20590-0001.

    (b) For regulations in 49 CFR parts 105, 106, or 107, submit the 
petition to:

  Office of the Chief Counsel
  Attn: DCC-10
  RSPA/USDOT
  Washington, DC 20590-0001.

Sec. 106.105  What information must I include in 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:
      (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 (Title 
5, U.S.C.), 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 record keeping 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. 106.110  How will RSPA handle my petition for rulemaking?

We will review and respond to your petition for rulemaking as follows:

[[Page 68633]]



 
------------------------------------------------------------------------
If your petition is ...    And if we determine
                                 that ...                Then ...
------------------------------------------------------------------------
(a) Incomplete                                    we may return your
                                                   petition with a
                                                   written explanation
------------------------------------------------------------------------
(b) Complete             your petition does not   we will notify you in
                          justify a rulemaking     writing that we will
                          action                   not start a
                                                   rulemaking proceeding
------------------------------------------------------------------------
(c) Complete             your petition does       we will notify you in
                          justify a rulemaking     writing that we will
                          action                   start a rulemaking
                                                   proceeding
------------------------------------------------------------------------

                              Appeals


Sec. 106.115  May I appeal an action that RSPA has taken?

You may appeal the following RSPA actions:
    (a) Any regulation that RSPA issues 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. 106.120  What information must I put in my appeal?

    (a) Appeal of a regulation. If you appeal RSPA's issuance of a 
regulation, 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 regulation at 
issue.
      (3) An explanation of why compliance with the regulation 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. 106.125  What is the deadline for filing my appeal?

    (a) Appeal of a regulation. If you appeal RSPA's issuance of a 
regulation, your appeal document must reach us no later than 30 days 
after the date RSPA published the regulation 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. 106.130  Where do I file my appeal?

Send your appeal to:

  Appeal
  Attn: DHM-333
  RSPA/USDOT
  Washington, DC 20590-0001.

Sec. 106.135  Will the filing of my appeal keep a final rule from 
becoming effective?

No, unless RSPA provides otherwise.


Sec. 106.140  How will RSPA handle my appeal?

    (a) Appeal of a regulation.
      (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 rule 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

    1. The authority citation for part 107 would continue 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.


Secs. 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, 107.14  [Removed]


Sec. 107.3  [Redesignated as Sec. 107.1]

    2. Part 107, subpart A, would be amended by revising the subpart 
heading; by removing Secs. 107.1, 107.5, 107.7, 107.9, 107.11, 107.13, 
107.14; and by redesignating Sec. 107.3 as Sec. 107.1, to read as 
follows:

                       Subpart A--Definitions

    Issued at Washington, DC on November 18, 1998, under authority 
delegated in 49 CFR part 106.
Judith S. Kaleta,
Chief Counsel.
[FR Doc. 98-31506; Filed 12-10-98; 8:45 am]
BILLING CODE 4910-60-F