[Code of Federal Regulations]
[Title 49, Volume 5]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR397.219]

[Page 491-492]
 
                        TITLE 49--TRANSPORTATION
 
                      DEPARTMENT OF TRANSPORTATION
 
PART 397_TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND PARKING 
RULES--Table of Contents
 
                     Subpart E_Preemption Procedures
 
Sec.  397.219  Waiver determination and order.

    (a) Upon consideration of the application and other relevant 
information received or obtained during the proceeding, the 
Administrator issues an order setting forth his or her determination.

[[Page 492]]

    (b) The Administrator may issue a waiver of preemption order only if 
he or she finds that the requirement of the State, political subdivision 
thereof, or Indian tribe affords the public a level of safety at least 
equal to that afforded by the requirements of the Act and the 
regulations issued under the Act and does not unreasonably burden 
commerce. In determining whether the requirement of the State, political 
subdivision thereof, or Indian tribe unreasonably burdens commerce, the 
Administrator may consider the following factors:
    (1) The extent to which increased costs and impairment of efficiency 
result from the highway routing designation of the State, political 
subdivision thereof, or Indian tribe;
    (2) Whether the highway routing designation of the State, political 
subdivision thereof, or Indian tribe has a rational basis;
    (3) Whether the highway routing designation of the State, political 
subdivision thereof, or Indian tribe achieves its stated purpose; and
    (4) Whether there is need for uniformity with regard to the subject 
concerned and if so, whether the highway routing designation of the 
State, political subdivision thereof, or Indian tribe competes or 
conflicts with those of other States, political subdivisions thereof, or 
Indian tribes.
    (c) The order includes a written statement setting forth the 
relevant facts and the legal basis for the determination, and provides 
that any person aggrieved by the order may file a petition for 
reconsideration in accordance with Sec.  397.223.
    (d) The Administrator serves a copy of the order upon the applicant, 
any other person who participated in the proceeding and upon any other 
person readily identifiable by the Administrator as one who may be 
affected by the order. A copy of each order is placed on file in the 
public docket. The Administrator may publish the order or notice of the 
order in the Federal Register.
    (e) If no petition for reconsideration is filed within 20 days in 
accordance with Sec.  397.223, an order issued under this section 
constitutes the final agency decision regarding whether a particular 
requirement of a State, political subdivision thereof, or Indian tribe 
is preempted under the Act or any regulations issued thereunder, or 
whether preemption is waived.