[Federal Register: September 10, 2009 (Volume 74, Number 174)]
[Notices]
[Page 46644-46654]
[DOCID:fr10se09-113]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2007-28444 (PDA-32(R))]

Maine Department of Environmental Protection Requirements on
Transportation of Cathode Ray Tubes

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

ACTION: Notice of administrative determination of preemption.

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    Local Laws Affected: Title 06-096, Maine Code of Regulations (MCR)
Chapters 850, 851, 853 & 857 (For convenience, provisions in Title 06-
096 MCR are referred to herein simply by the Chapter and section
number, e.g., ``MCR 850 section 3(A)'').
    Applicable Federal Requirements: Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials
Regulations (HMR), 49 CFR parts 171-180. Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. 6901 et seq., and 40 CFR Chapter I,
subchapter I (Solid Wastes).
    Modes Affected: Highway.
SUMMARY: Federal hazardous material transportation law does not preempt
MDEP's regulations on classification of used cathode ray tubes
(``CRTs'') as ``universal waste'' and broken CRTs and glass removed
from CRTs (``CRT glass'') as a State ``hazardous waste'' and the
marking, labeling, shipping documentation, and transporter
requirements, because these requirements do not apply or pertain to
materials regulated under Federal hazardous materials transportation
law and the HMR or otherwise constitute an obstacle to accomplishing
and carrying out Federal hazardous materials transportation law and the
regulations issued under that law.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001 (Tel. No.<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I Background

A. Application

    In this determination, PHMSA considers whether the Federal
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts
the following requirements of the Maine Department of Environmental
Protection (``MDEP'') relating to CRTs and broken CRTs and CRT glass
destined for reuse, repair, or recycling (as those requirements are
presently applied):\1\
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    \1\ In June 2008, MDEP added or revised ``notes'' to its
regulations and revised guidance materials to advise that (1) it had
revised its Recyclable Material Uniform Bill of Lading form to
delete the word ``Hazardous'' from the title of the form; (2) the
shipping document should clearly indicate whether the ``particular
material is regulated by DOT'' and suggested describing CRTs as
``Non-DOT regulated material (CRT) for recycle as universal waste'';
and (3) the marking specified in 40 CFR 262.32 (``HAZARDOUS WASTE--
Federal Law Prohibits Improper Disposal'') did not apply to ``State-
only hazardous wastes [that] are not DOT regulated hazardous
materials.'' See the Notes to MCR 851 sections 8(A)(4), 853 section
11(Q), and 857 sections 4, 6.
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    (1) ``Whole, intact, and unbroken'' CRTs are classified as
``universal waste'' in MCR 850 section 3(A)(13)(b)(i) \2\ and, for
transportation of intact CRTs:
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    \2\ According to MDEP, ``CRTs are primarily treated as universal
waste'' and ``nearly all CRTs leave the State as universal waste''
under the guidance set forth in MDEP's Universal Waste Handbook that
``[i]ncidental breakage of ten (10) or fewer * * * CRTs may still be
handled as universal waste.''
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    (a) The generator must prepare and a transporter must carry one of
the following documents: (i) A ``hazardous waste manifest''; (ii) the
``Maine Recyclable Material Uniform Bill of Lading''; or (iii) ``a log
system of tracking'' shipments to a central accumulation facility
within Maine from an instate small universal waste generator, or to a
consolidation facility within Maine from an instate small universal
waste generator or central accumulation facility. MCR 857 sections 4-8
& 13 (as amended effective June 12, 2008).
    (b) The generator must mark and label each package with the words
``Waste Cathode Ray Tubes.'' MCR 850 section 3(A)(13)(e)(xxii)(e).
    (c) The transporter must meet certain conditions (in order to be
exempt from obtaining a license) including maintaining (i) at least
$1,000,000 in liability insurance, and (ii) ``a plan for the cleanup of
discharges'' in the possession of the vehicle operator. MCR 853
sections 10, 11(H) & (K).
    (2) Broken CRTs and CRT glass are classified as a State ``hazardous
waste,'' in MCR 850 section 3(A) and, for transportation of broken CRTs
and CRT glass:
    (a) The generator must prepare and the transporter must carry a
``hazardous waste manifest.'' MCR 857 sections 4-8.
    (b) The generator must mark and label each transportation package
``in accordance with the applicable Federal Department of
Transportation regulations on hazardous materials under 49 CFR Part
172'' and also mark ``each container of 110 gallons or less'' with the
following:

    State Hazardous Waste--State Law Prohibits Improper Disposal. If
found, contact the nearest police or public safety authority or the
Maine Department of Environmental Protection (1-800-482-0777).

Generator's Name & Address---------------------------------------------

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Manifest Document Number-----------------------------------------------

    MCR 851 Sec.  8(A) (as amended effective June 12, 2008).

    (c) The transporter must obtain a license from MDEP and meet
additional conditions including maintaining (i) at least $500,000 in
liability insurance, and (ii) ``a plan for the cleanup of discharges''
in the possession of the vehicle operator. MCR 853 sections 4(A)(1),
5(B)(9), 8(B) & (F).
    In its application for an administrative preemption determination,
the Electronic Industries Alliance (Alliance) contends that MDEP's
classification, shipping paper, and marking or labeling requirements
are not ``substantively the same as'' requirements in the HMR, and that
both these requirements and the additional requirements on transporters
``cause confusion, interfere with the flow of trade, and otherwise
serve as an obstacle to the purposes of the Federal hazmat law.''
    On May 6, 2008, PHMSA published a notice in the Federal Register
inviting interested persons to submit comments on the Alliance's
application. 73 FR 25079. In response to this notice, comments were
submitted by MDEP, environmental agencies of eight States (Connecticut,
Illinois, Maryland, Massachusetts, New Hampshire, North Carolina, South
Carolina, and Washington), the New Hampshire Attorney General, the
Association of State and Territorial Solid Waste Management Officials
(ASTSWMO), Ecomaine, the Electronics TakeBack Coalition, the Maine Pulp
and Paper Association (MPPA), the Natural Resources Council of Maine,
and the Utility Solid Waste Activities Group (USWAG). The Alliance and
MDEP submitted rebuttal comments.

B. Federal Regulation of CRTs and CRT Glass

    A CRT is ``a vacuum tube, composed primarily of glass, which is the
visual or video display component of an electronic device.'' 40 CFR
260.10. Examples are televisions, computer monitors, medical,
automotive, and oscilloscope devices. CRTs are built of a specialized
glass that often contains lead. Under regulations of the U.S.
Environmental Protection Agency (EPA), solid waste containing lead is
considered toxic if ``the extract from a representative sample of the
waste'' contains greater than 5 mg lead per liter, ``using the Toxicity
Characteristic Leaching Procedure, test Method 1311 in `Test Methods
for Evaluating Solid Waste, Physical/Chemical Methods,' EPA Publication
SW-846.'' 40 CFR 261.24.
    In general, black and white monitors (or ``monochrome CRTs'') do
not have sufficient lead to meet the toxicity characteristic for a
hazardous waste under EPA's regulations, but the more significant
quantities of lead used to make color cathode ray tubes exceed the
``toxicity characteristic regulatory level of 5 milligrams per liter
that is used to classify lead-containing wastes as hazardous (40 CFR
261.24(b)).'' EPA Notice of Proposed Rulemaking (NPRM), ``Modification
of the Hazardous Waste Program; Cathode Ray Tubes,'' 67 FR 40508, 40510
(June 12, 2002). A note to MCR 850 section 3(A)(13)(a)(ii) states that,
according to information in a 1996 Tufts University masters thesis,
``CRTs are believed to represent 75% of the lead in the solid waste
stream. Lead, which is used to shield harmful radiation in the CRT,
comprises more than 10 percent of a CRT's mass.''
    Until recently, some used CRTs were potentially subject to
regulation as EPA hazardous wastes unless covered by the exclusions for
household waste and conditionally exempt small quantity generators (a
person who generates less than 100 kg of non ``acute'' hazardous waste
in a calendar month). See 40 CFR 261.4(b)(1), 261.5, as discussed at 67
FR at 40511 and in EPA's final rule, 71 FR 42928, 42929 (July 28,
2006). Accordingly, used CRTs not covered by the exclusions for
household waste and conditionally exempt small quantity generators
might be subject to regulation in transportation as a hazardous
material because they were a hazardous waste ``subject to the Hazardous
Waste Manifest Requirements of the U.S. Environmental Protection Agency
specified in 40 CFR part 262.'' See 49

CFR 171.8 (definitions of ``hazardous material'' and ``hazardous
waste'').
    However, in its July 28, 2006 final rule, which became effective
January 29, 2007, EPA addressed the ``mounting volumes of outdated
computer and electronics equipment'' and the concern that there has
been ``a barrier to CRT recycling created by some existing hazardous
waste management regulations.'' 71 FR at 42931. First, EPA explained in
the preamble to that final rule that its hazardous waste management
regulations, including the Uniform Hazardous Waste Manifest
requirements in 40 CFR part 262, do not apply to unused CRTs, because
``EPA does not regulate unused chemical products that are reclaimed,''
and that the existing exemptions from Federal hazardous waste
management requirements for household waste and small quantity
generators remained applicable. 71 FR at 42929.
    Second, EPA adopted a ``conditional exclusion'' from its waste
management regulations for the following categories of CRTs and CRT
glass because they are not ``solid wastes'': \3\
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    \3\ This exclusion does not apply to CRT materials that are sent
for disposal or that are speculatively accumulated. 40 CFR
261.1(c)(8). Additional notification and consent requirements apply
when used, intact CRTs or broken CRTs are exported for reuse or
recycling. 40 CFR 261.39(a)(5), 261.40, 261.41. See 71 FR at 42948-
49.
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    (a) Used intact CRTs sent for recycling (40 CFR 261.4(a)(22)(i));
    (b) Broken CRTs sent for recycling that are transported in a
container (including a vehicle) constructed, filled, and closed to
minimize releases of CRT glass to the environment and labeled ``Do not
mix with other glass materials'' and one of the following: ``Used
cathode ray tube(s)-contains leaded glass'' or ``Leaded glass from
televisions or computers'' (40 CFR 261.4(a)(22)(iii), 261.39(a)(1)-
(4)). See 71 FR at 42929, 42948.
    (c) CRT glass destined for recycling at a CRT glass manufacturer or
a lead smelter after processing (40 CFR 261.4(a)(22)(iv), 261.39(c)).
See 71 FR at 42829, 42948.
    Accordingly, since January 29, 2007, used CRTs, broken CRTs, and
CRT glass that are not subject to EPA's hazardous waste management
regulations, including the Uniform Hazardous Waste Manifest
requirements in 40 CFR part 262, are not hazardous materials for
purposes of the HMR. As the Alliance notes, these items are not
hazardous substances, marine pollutants, elevated temperature
materials, designated as hazardous in the Hazardous Materials Table (49
CFR 172.101), or materials that meet ``the defining criteria for hazard
classes'' in the HMR. See 49 CFR 171.8 (definition of a ``hazardous
material'').\4\ The primary risk during transportation of used CRTs
appears to be ``the risk of injury to personnel [from] breakage of the
items,'' according to an exchange of emails among MDEP staff, provided
with MPPA's comments.
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    \4\ USWAG also states that the HMR do not classify the lead in
CRTs as a hazardous material but notes that the HMR do ``classify
several other forms of lead as hazardous materials including
specific lead compounds (e.g., lead azide, lead cyanide and lead
nitrate), other lead compounds when soluble in water, and lead
having a diameter less than 100 micrometers. See 49 CFR 172.101
Table & Appendix A, Table 1.''
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C. Related Proceedings

    The Alliance participated in EPA's CRT rulemaking. In its comments
on the June 12, 2002 NPRM (which have been placed in the public docket
of this preemption determination), the Alliance endorsed and proposed
expanding ``the proposed conditional exclusions for'' used CRTs, broken
CRTs, and CRT glass. Under the heading ``Transportation Issues,'' the
Alliance stated that it:

believes that the benefits of the proposed rules for * * * CRTs * *
* can be enhanced significantly by noting that, once finalized, they
will preempt more stringent state rules regarding transportation of
these items. Although the RCRA regulatory scheme generally allows
state programs to be more stringent than the federal program, EPA
and the courts have long recognized that there is an exception in
the case of transportation-related requirements (e.g., manifesting,
packaging, labeling, and transportation registration requirements),
unless preemption is explicitly waived by the federal government. In
the present case, preemption would be an important step forward in
ensuring uniform nationwide rules that could facilitate development
of a recycling infrastructure.

    In the preamble to the July 28, 2006 final rule, EPA stated that
``authorized states'' which ``administer and enforce a hazardous waste
program within the state in lieu of the federal program'' under 42
U.S.C. 6926 ``are not required to adopt federal regulations * * * that
are considered less stringent than previous federal regulations.'' 71
FR at 42943. Accordingly, ``States currently regulating CRTs as
hazardous waste, including under the universal waste rule, would not
have to amend their programs, since their programs are more stringent
than the federal requirements.'' Id. at 42944. EPA discussed scenarios
``when used CRTs or processed CRT glass [are] transported to and from
states with different regulations governing these wastes'' and stated
that, ``for the portion of the trip through * * * states that do not
consider the waste to be excluded, the transporter must have a
manifest, except as provided by the universal waste rules, and must
move the waste in compliance with 40 CFR Part 263.'' Id. In a separate
document in the public docket responding to comments, EPA stated that
issues of preemption of state transportation requirements were outside
the scope of the EPA rulemaking.
    On October 25, 2006, the Alliance petitioned the United States
Court of Appeals for the District of Columbia for review of EPA's July
28, 2006 final rule. Electronic Industries Alliance v. U.S.
Environmental Protection Agency, Case No. 06-1359. In its Preliminary
and Non-Binding Statement of Issues (which has been placed in the
public docket), the Alliance stated that the issues to be raised in the
judicial review proceeding include ``[w]hether EPA's determination on
transport of CRTs and CRT glass within and between states was contrary
to the Hazardous Materials Transportation Act (`HMTA') and its
implementing regulations, which provide that federal requirements for
transport of hazardous materials, including hazardous wastes, generally
preempt state requirements that differ.'' On May 18, 2007, that Court
granted the Alliance's motion to hold the petition for review in
abeyance pending further order of the Court and directed the parties
``to file motions to govern future proceedings in this case within 30
days of the completion of the Department of Transportation's
proceedings'' on the Alliance's application for a preemption
determination.

II. Federal Preemption

    PHMSA's May 6, 2008 notice discussed the express preemption
provisions in 49 U.S.C. 5125 that are relevant to this proceeding. 73
FR at 25081-82. As amended by Section 1711(b) of the Homeland Security
Act of 2002 (Pub. L. 107-296, 116 Stat. 2320), 49 U.S.C. 5125(a)
provides that--in the absence of a waiver of preemption by DOT under
Sec.  5125(e) or specific authorization in another Federal law--a
requirement of a State, political subdivision of a State, or Indian
tribe is preempted if

    (1) complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a
regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security is not possible; or
    (2) the requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive

issued by the Secretary of Homeland Security.

    These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that PHMSA had applied in issuing inconsistency
rulings (IRs) prior to 1990, under the original preemption provision in
the Hazardous Materials Transportation Act (HMTA). Public Law 93-633
section 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).
    In addition, subsection (b)(1) of 49 U.S.C. 5125, as slightly
revised in 2005,\5\ 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 Secretary of Homeland Security:
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    \5\ These revisions are contained in the Hazardous Materials
Transportation Safety and Security Reauthorization Act of 2005,
which is Title VII of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public
Law 109-59, 119 Stat. 1891 (Aug. 10, 2005).

    (A) the designation, description, and classification of
hazardous material.
    (B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
    (E) the designing, manufacturing, fabricating, inspecting,
marking, maintaining, reconditioning, repairing, or testing of a
package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material.

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).
    The 2002 and 2005 amendments to 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:

    (3) 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,
    (4) 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,
    (5) 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.

Pub. L. 101-615 section 2, 104 Stat. 3244. A United States Court of
Appeals has found that 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 that concern highway routing (which have been delegated to
FMCSA). 49 CFR 1.53(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. A short period of time is allowed for filing 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 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). For purposes of determining whether there is
preemption under Federal hazardous material transportation law, 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 Executive Order 13132 authorizes
preemption of State laws only when a statute contains an express
preemption provision, there is other clear evidence that 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 and which PHMSA applies in making
administrative preemption determinations.

IV. Standing of the Alliance To Apply for a Preemption Determination

    At the time of its May 8, 2007 application, the Alliance was ``a
non-

profit trade association consisting of both associations and individual
companies in the electronics and `high technology' industries.'' It
stated that the activities of its ``member companies include[d]
manufacturing, sale, and distribution of CRTs, use of CRTs, and
collection and recycling of used CRTs and CRT glass,'' and that its
Environmental Issues Council ``is specifically designed to address the
electronics industry's environmental and related regulatory concerns
and to actively work to reduce the environmental impacts of the
electronic industry's products through their entire life cycle, from
design, through use, to end of life.''
    According to its comments, MDEP performed ``background research''
which indicates that the Alliance is now ``a very different
organization than the one which existed at the time of [its]
application.'' In response to MDEP's request ``for an explanation,''
the Alliance wrote PHMSA on May 19, 2008, to advise that it had
``undergone a realignment'' so that ``under the current structure,
EIA's only direct members are the four constituent trade associations;
through its representation of them, EIA continues to represent the
interests of member companies of the associations on relevant issues,
such as the Maine CRT transport rules.'' The Alliance also stated that
its Environmental Issues Council had been dissolved, but asserted that
it ``continues to be involved in environmental issues (e.g., those
raised by the Maine rule requiring used CRTs to be transported as
hazardous wastes), as necessary and appropriate to represent the four
constituent trade associations and their members.''
    MDEP argues that the Alliance's application should be dismissed on
the grounds that (1) the Alliance failed to identify any specific
members directly affected the MDEP requirements it challenges, and (2)
following the Alliance's ``realignment,'' its only members are trade
associations. The Alliance replies that MDEP ``does not actually
dispute that EIA represents the interests of electronic companies that
are directly affected by the Maine rules for CRT transport'' and the
``Maine `takeback' program for CRTs [which] explicitly requires
manufacturers to transport, and/or pay for transport of the CRTs they
produced (when they reach the end of life) as well as a pro rata share
of `orphan' CRTs.''
    To the extent that 49 U.S.C. 5125(d)(1) contains a ``standing''
requirement for applying for a preemption determination, PHMSA has
interpreted that requirement broadly and found that an industry
association may raise issues of preemption when the association's
members are ``directly affected'' by a non-Federal requirement. PD-
6(R), ``Michigan Marking Requirements for Vehicles Transporting
Hazardous and Liquid Industrial Wastes,'' 59 FR 6186, 6189 (Feb. 9,
1994). PHMSA has also noted the ``all parties engaged in hazardous
materials transportation or the regulation of that transportation will
be served by [PHMSA] addressing [preemption] issues.'' PD-2(R),
``Illinois Environmental Protection Agency's Uniform Hazardous Waste
Manifest,'' 58 FR 11176, 11181 (Feb. 23, 1993), quoting from IR-32,
``City of Montevallo, Alabama Ordinance on Hazardous Waste
Transportation,'' 55 FR 36736, 36741 (Sept. 6, 1990). Accordingly, when
an administrative proceeding has been initiated in response to a proper
application, PHMSA has declined to terminate the proceeding because of
a change in circumstances. In PD-25(R), ``Missouri Prohibition against
Recontainerization of Hazardous Waste at a Transfer Facility,'' 66 FR
37089, 37090 (July 16, 2001), the applicant for a preemption
determination purported to ``withdraw'' its application, but PHMSA
stated that it

believes that the value in deciding whether a non-Federal
requirement is inconsistent with (or preempted by) Federal hazardous
material transportation law ``goes beyond the resolution of an
individual controversy. At a time when hazardous materials
transportation is receiving a great deal of public attention, the
forum provides [PHMSA] an opportunity to express its views on the
proper role of State and local vis-a-vis Federal regulatory activity
in this area.'' IR-2, Rhode Island Rules and Regulations Governing
the Transportation of Liquefied Natural Gas, etc., decision on
appeal, 45 FR 71881, 71882 (Oct. 30, 1980).

    This same important purpose exists when State or local requirements
apply to individual companies that are members of one or more
associations that, in turn, belong to an overall association. In actual
practice, an industry association is just as ``directly affected'' by a
State or local requirement on its ``second-level'' members, and DOT has
not hesitated to consider issues of preemption raised in those
circumstances. See, most recently, PD-31(F), ``District of Columbia
Requirements for Routing of Certain Hazardous Materials,'' 71 FR 18137
(April 10, 2006); and Docket No. FMCSA-2008-0204 [PDA-33(F)], ``City of
Boston's Hazardous Materials Routing Designation,'' 73 FR 46349 (Aug.
8, 2008), 51335 (Sept. 2, 2008). For purposes of this administrative
proceeding, PHMSA finds that the Alliance had ``standing'' to submit
its May 8, 2007 application for a determination whether Federal
hazardous material transportation law preempts the MDEP requirements on
used CRT's and CRT glass, and it did not lose that standing because of
its ``realignment'' following submission of its application.

V. Requirements on ``State-Only'' Waste

    The ultimate question to be decided in this proceeding is the
extent to which Federal hazardous material transportation law precludes
a State from imposing transportation-related requirements on materials
that are regulated as ``hazardous waste'' by a State, but not regulated
as ``hazardous materials'' under the HMR. This requires consideration
of the statutory and regulatory differences (and overlaps) between (a)
hazardous materials, as defined in Federal hazardous material
transportation law and designated in the HMR, because they pose ``risks
to life, property and the environment * * * in transportation * * * in
intrastate, interstate, and foreign commerce,'' 49 U.S.C. 5101, and (b)
hazardous wastes, to which RCRA and EPA's regulations apply, which pose
a ``present and future threat to human health and the environment''
when disposed. 42 U.S.C. 6902(b).

A. Application and Comments in Support of Preemption

    In its application, the Alliance repeatedly emphasizes that CRTs
and CRT glass destined for reuse or recycling are not ``hazardous
materials'' for purposes of the HMR. From this predicate, it argues
that State or local requirements that apply to more or different
materials than covered by the HMR are preempted. It quotes from PD-
18(R), ``Broward County, Florida's Requirements on the Transportation
of Certain Hazardous Materials,'' 65 FR 81950, 81953-54 (Dec. 27,
2000), that ``non-Federal definitions and classifications that result
in regulating the transportation * * * of more, fewer or different
hazardous materials than the HMR * * * are preempted''; and IR-32, 55
FR at 36743, that a non-Federal ``definition of `hazardous waste' that
includes not only those materials regulated under the HMR but also
other materials not regulated under the HMR * * * is inconsistent with
the HMR, and, therefore, preempted.''
    The Alliance argues that MDEP may not impose any requirement for
shipping documentation with respect to materials that ``are not subject
to any shipping paper requirements under the

HMR.'' It asserts that ``state requirements regarding shipping
documents are preempted if they are not `substantively the same' as the
corresponding requirements in the HMR'' and that, ``under this
standard, state shipping documents must `conform[] in every significant
respect to the Federal requirement. See 49 CFR 107.202(d).'' The
Alliance points out that the MDEP requirements for a manifest, bill of
lading, or log ``include a number of data elements that are not
required in HMR shipping papers.'' It refers to prior determinations in
which PHMSA has found that:

--``the shipping paper requirements of the HMR are exclusive and * * *
any additional [state] shipping paper requirements are inconsistent
under the [Federal hazmat law],'' IR-5, ``City of New York
Administrative Code Governing Definition of Certain Hazardous
Materials,'' 47 FR 51991, 51994 (Nov. 18, 1982);
--state requirements are preempted which ``instruct the preparer of the
* * * Manifest to enter the total quantity of each hazardous waste * *
* in a different manner than the HMR,'' PD-2(R), 58 FR at 11182;
--state requirements ``to use a hazardous waste manifest [for]
materials that are not hazardous wastes'' are preempted, PD-23(RF),
``Morrisville, PA Requirements for Transportation of `Dangerous Waste,'
'' 66 FR 37260, 37265 (July 17, 2001); and
--a state may not require additional information to be included on the
manifest, PD-29(R), ``Massachusetts Requirements on the Storage and
Disposal of Infectious or Physically Dangerous Medical or Biological
Waste,'' 69 FR 34715, 34719 (June 22, 2004).

    In its responsive comments, the Alliance states that the
alternative to use a bill of lading, log, or other form approved by
MDEP for intact CRTs is ``nothing but an illusion,'' and MDEP is able
to track shipments without requiring ``that certain information and
shipping papers accompany CRT shipments, when there is no such
requirement under federal law.'' It asserts that, with respect to
broken CRTs and CRT glass, ``[t]he question at issue is not whether a
state may allow state-regulated wastes to be included on a manifest
[or] how such state-regulated wastes should be indicated on the
manifest,'' but rather, ``whether MDEP has the authority to require use
of a uniform hazardous waste manifest for non-HMR materials.'' The
Alliance quotes from PHMSA's determination in PD-23(RF), that
``additional requirements by States (or localities) for the use of a
specific form beyond what is required in Federal regulations create a
`substantial burden for both generator and transporters.' '' 66 FR at
37265.
    The Alliance asserts that the MDEP marking and labeling
requirements are preempted because ``the HMR does not impose any
labeling/marking requirements on intact CRTs,'' or on broken CRTs and
CRT glass ``assuming they are handled consistent with the requirements
of EPA's conditional exclusions.'' And it states that MDEP may not call
broken CRTs or CRT glass ``hazardous waste,'' or intact CRTs
``universal waste'' (a ``special subset of hazardous wastes eligible
for management under reduced regulatory requirements''), because these
``materials do not meet the HMR definition of `hazardous waste.' ''
    The Alliance disputes MDEP's ``claim that its `labeling and marking
requirements primarily apply to the Maine generator, not to the
transporter, and thus are not a transportation issue.'' It compares the
MDEP marking and labeling requirements to the requirements for marking
``liquid industrial waste'' and ``hazardous waste'' that PHMSA found to
be preempted in PD-6(R). It contends that the ``newly established
label,'' which omits any reference to Federal law, ``still does not
save the state marking/labeling requirements from preemption'' because
these requirements ``are still substantively different than federal
marking/labeling requirements.''
    The Alliance further contends that all the MDEP requirements
``serve as an obstacle'' to accomplishing and carrying out the Federal
hazardous materials transportation law and the HMR ``by creating
substantial regulatory confusion'' and ``inhibit[ing] the free flow of
commerce in CRTs for recycling.'' It states that ``shippers and
carriers will undoubtedly be confused when broken CRTs and CRT glass
are classified and regulated during transportation as `hazardous
wastes' by MDEP, but are not similarly classified or regulated by
DOT.'' For example, it attributes confusion to MDEP's requirements that
broken CRTs and CRT glass (1) must be ``shipped with a `Uniform
Hazardous Waste Manifest,' which * * * requires a `Certification of
receipt of hazardous materials' ''; (2) ``must be marked during
transportation with the words `HAZARDOUS WASTE' and a reference to
federal law''; and (3) may not be offered ``to a transporter who is not
licensed as a hazardous waste transporter.'' The Alliance states that
``the added burdens imposed by the Maine regulations'' are a factor
that led one of its members to refuse to provide recycling ``services
for used CRTs generated in Maine.''
    The Alliance also states that differences between the MDEP
requirements and those in different States illustrate the ``substantial
confusion'' when shipments travel through more than one State. It also
argues that a finding of preemption would not ``undermine'' the ability
of States ``to regulate hazardous wastes that are not regulated by EPA,
to streamline requirements for wastes that have not been designated as
federal universal wastes, and to develop collection and recycling
programs for CRTs and other electronic wastes.''
    Two other industry associations, MPPA and USWAG, submitted comments
in agreement with the Alliance's position that Federal hazardous
material transportation law preempts the MDEP requirements on CRTs and
CRT glass. MPPA states that ``its member mills regularly generate CRTs
and arrange for reuse, recycling, or disposal of CRTs, using
transporters, and * * * [u]nder some circumstances, MPPA members also
transport used and unused CRTs.'' MPPA represents that, in regulating
intact CRTs as ``universal waste,'' MDEP has gone

beyond the federal Universal Waste rules and indeed beyond its own
hazardous waste rules in several regards, including transportation
requirements. * * * Among the requirements which are ``broader in
scope'' than federal Universal Waste regulations are the DEP rules
covering employee training, weekly inspections, storage and aisle
space, shipment tracking documents, the Maine ``Uniform Hazardous
Materials Bill of Lading,'' and Universal Waste transporter
operating standards. Maine requires that all used, unused, or
unwanted CRTS generated and shipped from Maine facilities ultimately
be transported to a recycling facility, whether they are intact or
broken. MPPA believes that the DEP attempted in some cases to
address the overlap of the HMR and its new scheme, but the DEP
adopted an overbroad approach that ultimately conflicts with and
frustrates a uniform HMR transportation program.

    MPPA attributes ``confusion that the regulated public faces when
attempting to wrestle with the DEP's transportation requirements'' to
the differences ``from the federal HMR regulations and EPA's
regulations.'' It states that this results from Maine's failure to
adopt ``the EPA's conditional exclusion for Universal Wastes,'' Maine's
classification of broken CRTs and CRT glass as fully regulated State
``hazardous wastes,'' rather than universal wastes, and the ``alternate
shipping paper'' requirements for intact CRTs. MPPA emphasizes that,
``to the extent that MPPA or its members

do not understand the requirements, that underscores the confusion
generated by these different requirements.'' It attached to its
comments an email exchange among MDEP staff during 2003 considering,
but not deciding in the absence of any proposal ``submitted for review
and approval,'' whether shrink wrapping CRTs for shipment would be
acceptable, and states that ``some individuals and companies no longer
transport Universal Waste due to an inability or unwillingness to meet
the additional requirements adopted by the DEP.'' MPPA also states that
it ``believes that the Maine Universal Waste rules, and the
transportation rules in particular, provide a `De Facto' scheme that
regulates Universal Waste as it if were hazardous material under the
HMR.''
    MPPA states that its ``members are also subject to enforcement
action by the DEP, which has a vigorous enforcement program including
notices of violation and regular assessment of penalties for violations
of the DEP hazardous waste regulations.'' While MPPA ``is not aware of
enforcement actions taken against its members as transporters or
shippers of CRTs,'' it refers to ``DEP enforcement action on [other]
Universal Wastes,'' and states it has ``no doubt that DEP would enforce
its Universal Waste rules on CRTs if it learned of violations.''
    USWAG (an intervenor in the litigation pending in the Court of
Appeals for review of EPA's July 28, 2006 final rule) states that
``preemption of Maine's CRT regulations [is] both necessary and
critical to ensuring national uniformity in transportation safety.'' It
asserts that a finding that State requirements are not preempted
because they affect the transportation of ``materials that are not
regulated by the HMR/HMTA (i.e., lead in CRTs and CRT glass)'' would
``ignore[] the HMTA statutory scheme whereby DOT is provided with the
authority for designating `hazardous materials.' '' USWAG further
contends that

    If DOT's preemption authority is limited to those substances
that it has determined pose unreasonable risks, it allows for the
development of non-federal transportation standards for all other
substances rather than a uniform national set of transportation
safety regulations. DOT's conclusions on substances that it
determines do not pose an unreasonable risk are rendered meaningless
if states can expand this list on their own. Congress' intent will
be frustrated if every state (and even every locality) may
promulgate transportation standards for any substance in various
amounts and forms provided the state's list does not explicitly
overlap with DOT-regulated hazardous materials.

    USWAG states that ``[a]ll of Maine's particular transportation
requirements should be preempted because the state has used a
classification system for the materials to be regulated that is
inconsistent with the HMR.'' It also refers to PHMSA's prior findings
of preemption in cases including:

--PD-23(RF), when a state had ``create[d] a scheme for designating and
classifying hazardous material that is not substantively the same as in
the HMR'' (66 FR at 38624);
--PD-6(R), where the ``liquid industrial waste'' marking was
``tantamount to the creation of an additional class of hazardous
materials with its own marking requirements'' (59 FR at 6192); and
--IR-32, in which PHMSA referred to the statements in prior decisions
``that it considers the Federal rule in definition of hazard classes to
be exclusive'' (55 FR at 36742).

B. Comments in Opposition to Preemption

    MDEP agrees with the Alliance that, following EPA's CRT rulemaking,
intact and broken CRTs destined for recycling are not a ``hazardous
material.'' It emphasizes that it ``regulates CRTs and CRT glass as a
state-only waste,'' and it does not attempt ``to regulate CRTs as
federal hazardous material.'' It states that both ``DOT and EPA have
agreed that States have the right to regulate state-only waste, and
EIA's assertions to the contrary are baffling.'' MDEP quotes from
Massachusetts v. U.S. Department of Transportation, 93 F.3d 890, 894
(D.C. Cir. 1996), that ``the regulation of how waste may be picked up
or dropped off in a state must be thought an area of traditional state
control.'' It also refers to PHMSA's 1996 letter (discussed in the May
6, 2008 Federal Register notice, 73 FR at 25083) that waste regulated
by the State of Utah, which is not subject to the HMR, may be described
on the manifest as ``Utah Regulated Only,'' ``non-RCRA waste,'' ``Utah
only waste,'' or ``Utah Hazardous waste, liquid or solid, n.o.s.''
    MDEP states that it has been authorized by EPA ``to implement the
RCRA hazardous waste program,'' and that, in 2004,

EPA determined that MDEP's inclusion of CRTs in the State's
universal waste rule was different from, but equivalent to the
Federal regulations. 69 FR at 64864. Both EPA and MDEP's universal
waste rules established streamlined hazardous waste management
regulations which were intended to encourage the recycling of
certain widely generated wastes. * * * EPA's recent adoption of the
final CRT rule in July 2006 changed the federal CRT requirements but
reconfirmed MDEP authority, and even specifically addressed how
interstate-transportation of state-only regulated materials through
States adopting EPA's new conditional exclusion should be handled.
71 FR 42927, 42944. DOT preemption was clearly not contemplated by
EPA.

    MDEP also argues that its requirements for ``tracking of state-only
hazardous waste, whether broken CRTs as hazardous waste or intact CRTs
as universal waste, do not create a new classification of federal
hazardous materials.'' In its rebuttal comments, it states that, ``to
preclude any suggestion or misimpression that MDEP has ever attempted,
or is presently attempting, to create a de facto DOT hazardous
materials classification of this portion of its state-only hazardous
waste program, MDEP has recently provided new clarifications and
guidance in a number of its materials--e.g., its website, its
regulations, and its forms.'' It emphasizes that, ``even prior to such
guidance, transporters have understood that, in Maine, broken CRTs,
similar to other state-only hazardous wastes, are part of the MDEP's
state-only hazardous waste program, and may not be identified or
treated as DOT hazardous materials unless they are defined as such by
DOT.''
    MDEP notes that it has excluded the word ``hazardous'' from the
``Maine Recyclable Material Uniform Bill of Lading'' form. It states
that the alternative tracking documents allowed ``to be utilized for
universal wastes * * * make even clearer than before that Maine is not
attempting to regulate CRTs as federal hazardous materials.''
    MDEP contends that its ``labeling and marking requirements apply to
the Maine generator, not to the transporter, and thus are not a
transportation issue'' because they concern ``non-transportation
operations at fixed facilities.'' It also states that ``under both
federal and MDEP universal waste rules the word `waste' may be placed
on a package and under both federal and MDEP rules this syntax does not
mean that it is a DOT hazardous material.'' It asserts that its marking
and labeling requirements do not create confusion because there is no
indication that either intact or broken CRTs are federal hazardous
materials, stating ``the MDEP approach to state-only universal waste is
the antithesis of confusing; rather, in conformance with the practices
nationwide for the movement of universal wastes, it carefully
delineates a bright line between DOT hazardous materials and universal
wastes, including state-only universal waste.''
    MDEP argues that its requirements on transporters of intact or
broken CRTs are

not obstacles to the goals of Federal hazardous material transportation
law or the HMR because ``Maine has not in any way made a de facto
classification of CRTs as federal hazardous material.'' It states that
the Alliance's arguments about possible confusion, hypothetical
noncompliance, and risks to transportation safety are ``unsubstantiated
and fl[y] in the face of the reality of years of successful state and
federal co-operation with state-only hazardous waste programs,
including universal waste.''
    MDEP states that the preemption determination cases cited by the
Alliance and USWAG ``fall into four general fact patterns.'' The first
is that in PD-7(R) in which PHMSA found that: ``Operator requirements
for the transport of oils that are not hazardous materials are not
subject to preemption by the HMTA.'' 59 FR at 28914. According to MDEP,
``operation of the MDEP program'' resembles the circumstances
considered in PD-7(R), where an extensive analysis was not required in
that determination (as USWAG argues), ``because Maryland's definitions
of covered oils were, as here, sufficiently transparent to prevent
anyone from incorrectly believing that the vegetable oils were DOT
hazardous materials.''
    MDEP distinguishes the second fact pattern of PD-6(R) on the ground
that there is nothing in the MDEP marking or labeling requirements
comparable to the Michigan requirement which was ``sufficiently similar
to HMR markings that it appears to be a hazard warning, but that does
not conform to HMR markings, [so that] the purposes of the HMR are
undermined.''
    MDEP states the third and fourth fact patterns involve ``cases
where the challenged non-Federal requirements contained language that
effectively blurred the definition of items on DOT's designated
hazardous materials list'' with items regulated under the non-Federal
requirements or ``a non-Federal requirement'' was applied to the same
material ``in a different manner,'' including:

--the definitions of gases ``under pressure'' and gases and mixtures
considered ``combustible'' or ``flammable,'' IR-5, 47 FR at 51993;
--``a system of classifying hazardous materials which is totally at
variance with the system of hazard class definitions on which the
Federal hazardous materials regulatory system is based,'' IR-6, ``City
of Covington Ordinance Governing Transportation of Hazardous
Materials,'' 48 FR 760, 763 (Jan. 6, 1983);
--the definition of ``radioactive materials,'' IR-12, ``St. Lawrence
County, New York; Local Law Regulating the Transportation of
Radioactive Materials,'' 49 FR 46632, 46651 (Nov. 27, 1984);
--State Police regulations which include ``materials listed in the SARA
[Title III] table which are not listed in the HMR Table'' but omit some
``materials listed in the HMR Table but not in the SARA Table'' IR-29,
``State of Maine Statutes and Regulations on Transportation of
Hazardous Materials,'' 55 FR 9304, 9308;
--a local definition of ``hazardous waste'' as including ``radioactive
waste'' with a lower threshold of activity than subject to the HMR as a
``hazardous material,'' IR-32, 55 FR at 36742;
--the definitions of ``hazardous materials,'' ``combustible liquid,''
``flammable liquid,'' ``biomedical waste,'' ``discarded hazardous
materials,'' and ``sludge'' which were being ``used to regulate a
material as a hazardous material,'' but ``were not `substantively the
same as' their counterparts in the HMR or did not have counterparts in
the HMR,'' PD-18(R), 67 FR at 35195;
--the definitions of ``infectious waste,'' ``hospital waste,'' and
``dangerous waste'' that ``create a scheme for designating and
classifying hazardous material'' that is not substantively the same as
the regulation of ``regulated medical waste'' as a hazardous material
in the HMR, PD-23 (RF), 66 FR at 37264; and
--``extensive [additional] information and documentation requirements
[for the transportation of nuclear materials] * * * are likely to
confound the transporters of hazardous materials, thereby increasing
the potential for unreasonable hazards throughout the county,''
Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1583.

    Eight States, ASTSWMO, Ecomaine, and the Natural Resources Council
of Maine submitted comments opposing the Alliance's application. The
Connecticut Department of Environmental Protection, Illinois
Environmental Protection Agency, Maryland Department of the
Environment, New Hampshire Department of Environmental Services, South
Carolina Department of Health and Environmental Control, the Washington
Department of Ecology, and ASTSWMO all quote the finding in PD-7(R)
that wastes that are ``not hazardous materials are not subject to
preemption by the HMTA.'' 59 FR at 28914.
    These eight states assert that finding that the MDEP requirements
are preempted would essentially prevent states from developing state-
only regulated wastes or managing state-only universal waste in
accordance with their universal waste requirements. Most of them
specifically mention that this result would be directly contrary to
EPA's March 4, 2005 final rule (70 FR 10789) revising requirements for
the Uniform Hazardous Waste Manifest, ``which clearly provides for
states to include state only wastes and additional state waste codes
(to convey specific state information) providing it does not duplicate
information contained in federal codes.''
    Five of these states assert that ``the existence of state only
hazardous waste has not caused substantial problems or confusion.''
They allege that the Alliance ``is targeting Maine CRT requirements''
because ``Maine has one of the first in the nation manufacturer
takeback programs for electronic waste, specifically CRTs. * * * Other
states are looking at developing similar programs'' which should ``not
be thwarted by a DOT preemption determination.''
    The New Hampshire Attorney General's Office submitted a separate
comment that there is a ``presumption against preemption in areas of
traditional state control, including the regulation of waste and
environmental protection'' and, unless the ``dual compliance'' and
``obstacle'' criteria in 49 U.S.C. 5125 apply, ``a state requirement is
not preempted merely because the federal scheme has left a substance
unregulated in certain respects.''
    ASTSWMO states that a finding that the MDEP requirements on intact
and broken CRTs are preempted would (1) ``undermine long established
legal authorities for States to regulate additional wastes as hazardous
beyond those regulated by the U.S. Environmental Protection Agency
(EPA) under federal hazardous waste regulations''; (2) ``contradict
explicit authority granted to the states by EPA to include additional
wastes in the category of `universal waste' under State regulations'';
and (3) ``hinder States' abilities to tailor their regulations to local
problems and conditions.'' ASTSWMO asserts that, ``when EPA modifies
the federal hazardous waste regulatory program to make it less
stringent, States are not required to adopt the changes,'' as discussed
in EPA's July 28, 2007 final rule (71 FR at 42944). The fact that
``States may regulate additional categories of wastes as State-only
universal waste * * *

provid[es] further evidence that variation among the States' universal
waste programs is to be expected,'' which ASTSWMO finds expressed in
the preamble to EPA's ``Universal Waste Rule.'' 60 FR 25492 (May 11,
1995).
    Ecomaine is ``a quasi-municipal organization owned by 21
municipalities in southern Maine, encompassing a waste-to-energy
renewable power plant, single-sort recycling center and an ashfill/
landfill.'' It states that ``Maine's eWaste Law'' requires ``that CRTs
be recycled'' rather than being disposed at landfills and waste
facilities and that MDEP's ``efficient and desirable tracking system *
* * is crucial to the effectiveness of their program.'' Ecomaine says
it ``shares the strategy that manufacturers take responsibility for
their products,'' and states that the Alliance's application for a
preemption determination ``seems counterproductive toward a sustainable
future.''
    The Electronics TakeBack Coalition is ``a national coalition of
environmental and consumer groups, who promote green design and
responsible recycling of electronics in the U.S.'' It states that the
Alliance's application ``is simply a ploy to undermine recently enacted
state e-waste recycling legislation that requires EIA's (former)
members to participate in the electronics recycling program.'' It
compares the MDEP requirements with ``the California e-waste law, which
also places several restrictions on the handling and transportation of
CRTs in California,'' and notes that the Alliance has not challenged
the California law which ``does not require the industry to take any
responsibility for recycling.'' It states that ``Maine does not
regulate or classify these as hazardous materials, as claimed in the
EIA petition,'' and is acting within its authority to designate ``state
only hazardous wastes'' and ``universal wastes.''
    The Natural Resources Council of Maine, the ``largest environmental
advocacy group'' in Maine, states that a finding of preemption ``would
eviscerate a highly successful law that is helping to protect Maine's
citizens and wildlife from the toxic materials in electronic waste.''
It cites the ``accomplishments'' of Maine's ``electronic waste law''
and states that Maine's regulation of intact CRTs and CRT glass is
fully authorized under EPA's CRT regulation and the guidance in EPA's
universal waste program.

C. Decision

    Ever since enactment of RCRA in 1976, the year following the HMTA,
DOT and EPA have worked together to coordinate their respective
requirements on the transportation of hazardous waste and to reconcile:
--the authority in 42 U.S.C. 6926 for a State to ``administer and
enforce a hazardous waste * * * program'' that is ``equivalent to the
Federal program under'' RCRA;
--the authority recognized by EPA and DOT for a State program to
include in its hazardous waste management program additional wastes
which are not regulated by EPA, under the provision in 42 U.S.C. 6929
that nothing in RCRA ``shall be construed to prohibit any State or
political subdivision thereof from imposing any requirements * * *
which are more stringent than'' EPA's hazardous waste management
regulations;
--the requirement in 42 U.S.C. 6923(b) that, with respect to ``any
hazardous waste identified or listed'' by EPA that is subject to
Federal hazardous materials transportation law, ``the regulations
promulgated by [EPA] shall be consistent with the requirements of such
Act and the regulations thereunder''; and
--the original provision in Section 112 of the HMTA that, unless a
waiver of preemption is granted, ``any requirement of a State or
political subdivision thereof, which is inconsistent with any
requirements set forth in this title, or in a regulation issued under
this title, is preempted.''
    In May 1980, when DOT adopted its initial regulations on the
transportation of hazardous waste materials, it noted that ``six EPA-
DOT joint public hearings were held in various parts of the United
States'' and that PHMSA's predecessor agency (the Materials
Transportation Bureau [MTB]) ``worked closely with EPA in the joint
development of appropriate transportation requirements.'' 45 FR 34560,
34566, 34567 (May 22, 1980). ``MTB explained that the primary focus of
its requirements was to ensure that hazardous wastes are properly
identified to carriers and that they are delivered to predetermined
designated facilities. Proper identification of wastes is essential in
order to implement the transportation aspects of a `cradle to grave'
hazardous waste tracking system.'' 45 FR at 34567.
    Accordingly, the scope of ``hazardous waste'' covered by the HMR is
limited to ``any material that is subject to the hazardous waste
manifest requirements of the EPA specified in 40 CFR Part 262.'' 49 CFR
171.8.\6\ PHMSA's May 22, 1980 final rule also added a new Section
171.3(c) which specifically stated that a State or local requirement
that applied to a ``hazardous waste subject to this subchapter''
(emphasis added) was preempted if it ``applies differently or in
addition to the requirements in [the HMR] concerning:
---------------------------------------------------------------------------

    \6\ As originally adopted in 1980, the definition of ``hazardous
waste'' included any material that would be subject to EPA's
hazardous waste manifest requirements ``absent an interim
authorization to a state under 40 CFR Part 123, Subpart F.'' 45 FR
at 34587. This additional language was deleted in PHMSA's February
18, 1986 final rule, 51 FR 5968, because it was ``no longer
necessary due to the change in the applicability of the HMR for
hazardous wastes adopted in the final rule under HM-145D (49 FR
10507, Mar. 20, 1984).'' 50 FR 288, 290 (Jan. 3, 1985).
---------------------------------------------------------------------------

    ``(1) Packaging, marking, labeling, or placarding; \7\
---------------------------------------------------------------------------

    \7\ In its separate final rule adopting a hazardous waste
manifest system (45 FR 12737, 12740 [Feb. 26, 1980]), EPA stated
that
    DOT's labeling, marking, and placarding requirements have been
in use for several years [and are] widely understood by persons in
the transportation industry and by State and local officials in
charge of responding to discharges of hazardous materials.
Therefore, in developing its regulatory system for transporters of
hazardous waste, EPA decided to rely upon DOT's existing system to
the fullest extent possible consistent with [RCRA's] statutory
mandate to protect human health and the environment during the
transportation of hazardous waste. This effort to coordinate the
transportation regulations was facilitated by DOT's proposal to
extend the applicability of its hazardous materials regulations to
transporters of hazardous waste. Upon adoption of DOT's regulations,
these two sets of regulations will be fully interlocked, and a
transporter of hazardous waste will be required to comply with both
DOT and EPA regulations.
    EPA's requirements to package, label, mark, and placard
shipments of hazardous waste are set forth at 40 CFR 262.30-262.33.
---------------------------------------------------------------------------

    ``(2) Format or contents of discharge reports (except immediate
reports for emergency response); \8\ and
---------------------------------------------------------------------------

    \8\ EPA also adopted at 40 CFR 263.30, ``the DOT requirements
for reporting of discharges,'' and provided at 49 CFR 263.31 that a
``transporter must clean up any hazardous waste discharge that
occurs during transportation or take such action as may be required
or approved by Federal, State, or local officials so that the
hazardous waste discharge no longer presents a hazard to human
health or the environment.'' 45 FR at 12744, 33152.
---------------------------------------------------------------------------

    ``(3) Format or contents of shipping papers, including hazardous
waste manifests.'' Id.\9\
---------------------------------------------------------------------------

    \9\ Four years later, EPA and DOT issued coordinated final rules
adopting a uniform hazardous waste manifest (see 49 FR 10490 (EPA);
49 FR at 10510 (DOT) [Mar. 20, 1984]). EPA explained that it and DOT
``modified the Uniform Manifest form to allow the entry of certain
optional State information items in addition to the federally-
regulated items,'' and specifically that the ``Uniform Hazardous
Waste Manifest form has been designed to allow the listing of both
federally-regulated wastes and wastes regulated solely by the
States,'' so long as there is a clear distinction ``between
federally-regulated wastes and other wastes, as required by DOT
regulations (49 CFR 172.201(a)(1)).'' 49 FR at 10492, 10495. DOT
similarly noted that the amendments adopted by it and EPA did not
``prohibit States from requiring additional information from the
generator or the treatment, storage or disposal facility concerning
a hazardous waste shipment,'' but that this information could be
submitted ``directly to the appropriate agency of that State.'' 49
FR 10508. Thus, ``while these amendments do not prohibit the
transporter from voluntarily carrying such information, they do
preclude States from requiring the transporter from doing so.'' Id.
See also 40 CFR 271.10.

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

    This provision, specific to hazardous waste, was consistent with
PHMSA's original regulations which set forth procedures for ``a State
or a political subdivision of a State having a requirement pertaining
to the transportation of hazardous materials or any person affected by
the requirement [to] obtain an administrative ruling as to whether the
requirement is inconsistent with the [Hazardous Materials
Transportation] Act or regulations issued under the Act.'' Former 49
CFR 107.201(a), adopted at 41 FR 38167, 38171 (Sept. 9, 1976) (emphasis
supplied). Accordingly, both the general and specific preemption
provisions in PHMSA's regulations were clear that non-Federal
requirements that do not ``pertain'' to the transportation of a
hazardous material subject to the HMTA are not preempted by the HMTA.
    As discussed in Part II, above, the HMTA was amended in 1990 to (1)
specifically set forth the ``dual compliance'' and ``obstacle''
standards that PHMSA had applied in issuing administrative rulings on
preemption prior to that date; (2) specify that non-Federal
requirements in five ``covered subject'' areas must be ``substantively
the same as'' requirements in the Federal hazardous material
transportation law and the regulations issued under that law; and (3)
statutorily authorize PHMSA's administrative process for making
preemption determinations. Public Law 101-615 section 105(a)(4), 104
Stat. 3247 (Nov. 16, 1990). Thereafter, PHMSA revised its procedural
regulations in subpart C of 49 CFR part 107 (56 FR 8616, 8622 [Feb. 28,
1991]), and deleted former Sec.  171.3(c) as part of the President's
Regulatory Reinvention Initiative to eliminate unnecessary provisions
because, ``for preemption purposes, [PHMSA] looks as hazardous waste
issues together with issues covering all other hazardous materials.
RCRA's directive that EPA's hazardous waste requirements be consistent
with the Federal hazmat law does not mandate that [PHMSA] establish a
separate preemption provision for hazardous waste.'' 61 FR 21084, 21093
(May 9, 1996). See also 61 FR 51235, 51236 (Oct. 1, 1996), that
``utilization of the `covered subjects' preemption authority in the
Federal hazardous materials transportation law facilitates
harmonization of non-Federal requirements with Federal law'' and ``goes
far beyond the limited provisions of 49 CFR 171.3(c). * * * [T]he
preemption provisions of the Federal hazardous materials transportation
law address all issues pertaining to transportation of hazardous
materials, including hazardous waste.''
    These amendments to the HMTA and revisions to PHMSA's regulations
have not changed the general principle, as expressed in the preamble to
a final rule on ``Infectious Substances,'' that the ``HMR do not,
however, preempt non-Federal requirements imposed on the transportation
of materials that are not hazardous materials as defined in the HMR.''
60 FR 48780, 48784 (Sept. 20, 1995). As PHMSA explained at that time,
there can be exceptions to this general principle, such as the
situation in PD-6(R), ``where a non-Federal law or regulation requires
a method of hazard communication for non-hazardous materials
sufficiently similar to that prescribed by the HMR for a hazardous
material that the regulation is `tantamount to the creation of an
additional class of hazardous materials with its own marking
requirements.' '' Id.
    As noted by MDEP, another exception to this general principle is
where the non-Federal requirement purports to broaden the category of
hazardous materials to include materials that are not regulated under
the HMR and, thereby, create ``a system of classifying hazardous
materials which is totally at variance with the system of hazard class
definitions'' in the HMR. IR-6, 48 FR at 763. See also, e.g., IR-5, 47
FR at 51993 (additional materials included within the definitions of
gases ``under pressure'' and ``combustible'' and ``flammable'' gases
and mixtures); IR-32, 55 FR at 36742 (using a lower threshold of
activity for regulating waste radioactive material as a ``radioactive
waste''); PD-18(R), 65 FR at 81953 (``state and local hazard class and
hazardous materials definitions differing from those in the HMR and
used to regulate in areas regulated by DOT are preempted) (emphasis
supplied); PD-23(RF), 66 FR at 37263 (the term ``hospital waste'' in a
local ordinance encompasses both (1) items that are within the
definition of `regulated medical waste' in the HMR and (2) other items
that may not contain any infectious substance and, therefore, are not
regulated under the HMR'').
    These exceptions do not apply here. As the Alliances itself
stresses, MDEP regulates used CRTs and CRT glass solely as a ``State-
only'' hazardous or universal waste. There is no evidence that these
requirements
--pertain to the ``designation, description, and classification of
hazardous material,'' the ``labeling, marking, and placarding of
hazardous material,'' or the ``preparation, execution, and use of
shipping documents related to hazardous material,'' as the term
``hazardous material'' is used in the Federal hazardous material
transportation law and the regulations issued under that law;
--otherwise create any ``obstacle to accomplishing and carrying out''
the Federal hazardous material transportation law and the regulations
issued under that law; or
--prevent compliance with any requirement of the Federal hazardous
material transportation law and the regulations issued under that law.
    Rather, Maine's regulation of intact CRTs as a State-only universal
waste, and broken CRTs and CRT glass as a State-only hazardous waste,
is done in a manner that does not create any regulatory confusion or
jeopardize transportation safety. Maine's approach is consistent with
DOT's guidance regarding how to describe State-only hazardous wastes,
as set forth in PHMSA's 1996 letter addressing State-only hazardous
waste regulated by Utah. Maine's requirements for the manifesting of
broken CRTs and CRT glass follow the regulations developed by EPA (in
coordination with DOT) for the manifesting of State-only hazardous
waste.

VI. Ruling

    Federal hazardous material transportation law does not preempt
MDEP's regulations on classification of used CRTs as ``universal
waste'' and broken CRTs and CRT glass as a State ``hazardous waste''
and the marking, labeling, shipping documentation, and transporter
requirements, because these requirements do not apply or pertain to
materials regulated under Federal hazardous materials transportation
law and the HMR or otherwise constitute an obstacle to accomplishing
and carrying out Federal hazardous materials transportation law and the
regulations issued under that law.

VII. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this
decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. A petition for
judicial review of a final preemption

determination must be filed in the United States Court of Appeals 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).
    This decision will become PHMSA's final decision 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5127(a).
    If a petition for reconsideration is filed within 20 days of
publication in the Federal Register, the action by PHMSA's Chief
Counsel on the petition for reconsideration will be PHMSA's final
action. 49 CFR 107.211(d).

    Issued in Washington, DC, on September 2, 2009.
Sherri L. Pappas,
Acting Chief Counsel.
[FR Doc. E9-21768 Filed 9-9-09; 8:45 am]

BILLING CODE 4910-60-P


[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Notices]
[Pages 68581-68583]
[FR Doc No: 2015-28145]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76320; File No. SR-BATS-2015-92]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to Rules
21.2, 21.6, and 21.7, as They Relate to Order Acceptance Time

October 30, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on October 28, 2015, BATS Exchange, Inc. (the ``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
has designated this proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-
4(f)(6)(iii) thereunder,\4\ which renders it effective upon filing with
the Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange filed a proposal to amend Rules 21.2, 21.6, and 21.7
to change the time orders will be accepted on the Exchange's options
platform (``BATS Options'') from 8:00 a.m. to 7:30 a.m.
    The text of the proposed rule change is available at the Exchange's
Web site at www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant parts of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange is proposing to amend Rules 21.2, 21.6, and 21.7 to
change the time orders will be accepted on BATS Options from 8:00 a.m.
to 7:30 a.m. Currently, the Exchange begins accepting orders at 8:00
a.m. Eastern Time. Orders would then be available for execution as of
9:30 a.m. until 4:00 p.m. Eastern Time.\5\ The Exchange does not
propose to amend how it handles orders accepted prior to the market
open other than to begin accepting orders at 7:30 a.m. Eastern Time
rather than 8:00 a.m. Eastern Time.
---------------------------------------------------------------------------

    \5\ Option contracts on Fund Shares, as defined in Rule 19.3(i),
option contracts on exchange-traded notes including Index-Linked
Securities, as defined in Rule 19.3(l), and option contracts on
broad-based indexes, as defined in Rule 29.1(j), close as of 4:15
p.m. Eastern Time. See Exchange Rule 21.2(a).
---------------------------------------------------------------------------

    First, the Exchange proposes to amend Rule 21.2(a) to expressly
state that the Exchange will begin accepting orders at 7:30 a.m.
Eastern Time, as described in Rule 21.7 and discussed below. The
addition of this sentence to Rule 21.2(a) would align the text of the
rule with EDGX Exchange, Inc. (``EDGX'') Rule 21.2(a).\6\
---------------------------------------------------------------------------

    \6\ The Exchange understands that EDGX is to also file a
proposed rule change with the Commission to amend its Rules 21.2,
21.6, and 21.7 to change the time orders will be accepted from 8:00
a.m. to 7:30 a.m.
---------------------------------------------------------------------------

    Second, the Exchange proposes to amend Rule 21.6(c) to state that
orders can be entered into the System starting at 7:30 a.m. Eastern
Time. Currently, the Rule 21.6(c) states that orders can be entered
into the System from 9:30 a.m. Eastern Time until the market close.
While orders will be accepted by the System starting at 7:30 a.m.
Eastern Time, they will not be eligible for execution until 9:30 a.m.
Eastern Time. The Exchange also proposes to amend Rule 21.6(c) to state
that orders received prior to completion of the Exchange's Opening
Process will be handled in accordance with Rule 21.7 discussed below.
As with the proposed change to Rule 21.2(a) discussed above, the
addition of this sentence to Rule 21.6(c) would align the text of the
rule with EDGX Rule 21.6(c).\7\
---------------------------------------------------------------------------

    \7\ Id.
---------------------------------------------------------------------------

    Lastly, as amended, Rule 21.7 would state that the Exchange will
accept market and limit orders and quotes for inclusion in the opening
process beginning at 7:30 a.m. Eastern Time, rather than 8:00 a.m. as
is currently the case and will continue to accept market and limit
orders and quotes until such time as the Opening Process is initiated
in that option series (the ``Order Entry Period''), other than index
options.\8\ The Exchange will continue to not accept IOC,\9\ FOK \10\
or WAIT \11\ orders for queuing prior to the completion of the Opening
Process. The Exchange will also continue to convert all Intermarket

Sweep Orders (``ISOs'') \12\ entered for queuing prior to the
completion of the Opening Process into non-ISOs.
---------------------------------------------------------------------------

    \8\ Rule 21.7 also discusses order acceptance when the primary
listing market for the applicable underlying security declares a
regulatory trading halt, suspension, or pause with respect to such
security (``Regulatory Halt''). The Exchange does not propose to
amend the treatment of orders during a Regulatory Halt under Rule
21.7.
    \9\ See Exchange Rule 21.1(f)(2).
    \10\ See Exchange Rule 21.1(f)(5).
    \11\ See Exchange Rule 21.1(f)(4).
    \12\ See Exchange Rule 21.1(d)(11).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal to begin accepting orders
at 7:30 a.m. is consistent with the requirements of the Act and the
rules and regulations thereunder that are applicable to a national
securities exchange, and, in particular, with the requirements of
Section 6(b) of the Act.\13\ In particular, the proposal is consistent
with Section 6(b)(5) of the Act \14\ because it is designed to promote
just and equitable principles of trade and to remove impediments to and
perfect the mechanism of a free and open market and a national market
system. The Exchange believes that accepting orders at 7:30 a.m. will
benefit investors, the national market system, Members, and the
Exchange market by increasing competition for order flow and
executions, and thereby spurring product enhancements and lowering
prices. The Exchange also notes that other options exchanges currently
accept orders prior to 8:00 a.m. Eastern Time \15\ and the proposal
would enable the Exchange to directly compete with these exchanges for
order flow.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ See Nasdaq OMX Systems Hours of Operation, available at
http://nasdaqtrader.com/content/TechnicalSupport/nasdaq_sys_hours.pdf (stating that system hours begin at 7:00 a.m.
for Nasdaq OMX BX (``BX'') and 7:30 a.m. for Nasdaq OMX PHLX
(``PHLX''), and BX Chapter VI, Section 2(a) (stating the System
operates and shall be available to accept bids and offers and orders
from the time prior to market open specified by the Exchange on its
Web site to market close on each business day). See also Hours of
Operation of the MIAX Options Exchange (``MIAX'') available at
http://www.miaxoptions.com/hours-operation-miax-options-exchange
(stating that firms can connect and conduct pre-market activity
starting at 7:30 a.m.).
---------------------------------------------------------------------------

    Lastly, the Exchange believes the proposed additions to Rules
21.2(a) and 21.6(c) are consistent with Section 6(b)(5) of the Act \16\
because it is designed to provide consistent rules across the Exchange
and EDGX, thereby removing impediments to and perfecting the mechanism
of a free and open market and a national market system. The proposed
rule changes would provide greater harmonization between rules of
similar purpose on the Exchange and EDGX, resulting in greater
uniformity and less burdensome and more efficient regulatory compliance
and understanding of Exchange Rules. As such, the proposed rule change
would foster cooperation and coordination with persons engaged in
facilitating transactions in securities and would remove impediments to
and perfect the mechanism of a free and open market and a national
market system.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. To the contrary, the
proposed rule change is a competitive change that is designed to
attract additional order flow to the Exchange.\17\ The proposed rule
change would, therefore, increase competition by enabling the Exchange
to accept orders starting at 7:30 a.m. Eastern Time like its
competitors. For all the reasons stated above, the Exchange does not
believe that the proposed rule changes will impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of the Act, and believes the proposed change will enhance competition.
Lastly, the proposed changes to Rules 21.2(a) and 21.6(c) are not
designed to address any competitive issues but rather to provide
greater harmonization among Exchange and EDGX rules of similar purpose.
---------------------------------------------------------------------------

    \17\ See supra note 15.
---------------------------------------------------------------------------

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange has neither solicited nor received written comments on
the proposed rule change. The Exchange has not received any written
comments from members or other interested parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (A)
Significantly affect the protection of investors or the public
interest; (B) impose any significant burden on competition; and (C) by
its terms, become operative for 30 days from the date on which it was
filed or such shorter time as the Commission may designate it has
become effective pursuant to Section 19(b)(3)(A) of the Act \18\ and
paragraph (f)(6) of Rule 19b-4 thereunder,\19\ the Exchange has
designated this rule filing as non-controversial. The Exchange has
given the Commission written notice of its intent to file the proposed
rule change, along with a brief description and text of the proposed
rule change at least five business days prior to the date of filing of
the proposed rule change, or such shorter time as designated by the
Commission.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(3)(A).
    \19\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (1)
Necessary or appropriate in the public interest; (2) for the protection
of investors; or (3) otherwise in furtherance of the purposes of the
Act. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-BATS-2015-92 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File No. SR-BATS-2015-92. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such

filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File No. SR-BATS-2015-92, and should be submitted on or before November
27, 2015.
---------------------------------------------------------------------------

    \20\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2015-28145 Filed 11-4-15; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]
[Rules and Regulations]
[Page 55693]
[FR Doc No: 2012-22296]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 74

[Docket No. FDA-2011-C-0050]

D&C Red No. 6 and D&C Red No. 7; Change in Specification;
Confirmation of Effective Date

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule; confirmation of effective date.

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

SUMMARY: The Food and Drug Administration (FDA) is confirming the
effective date of August 7, 2012, for the final rule that published in
the Federal Register of July 6, 2012 (77 FR 39921) and that revised the
requirements for D&C Red No. 6 and D&C Red No. 7 by replacing the
current specification for ``Ether-soluble matter'' with a maximum limit
of 0.015 percent for the recently identified impurity 1-[(4-
methylphenyl)azo]-2-naphthalenol.

DATES: Effective Date Confirmed: August 7, 2012.

FOR FURTHER INFORMATION CONTACT:  Teresa A. Croce, Center for Food
Safety and Applied Nutrition (HFS-265), Food and Drug Administration,
5100 Paint Branch Pkwy., College Park, MD 20740-3835,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In the Federal Register of July 6, 2012, FDA
amended the color additive regulations in Sec. Sec.  74.1306 and
74.1307 (21 CFR 74.1306 and 74.1307) by replacing the current
specification for ``Ether-soluble matter'' with a maximum limit of
0.015 percent for the recently identified impurity 1-[(4-
methylphenyl)azo]-2-naphthalenol. FDA also removed Appendix A in 21 CFR
part 74, which pertains to the ether-soluble matter specification. The
changes to Sec. Sec.  74.1306 and 74.1307 also affect the color
additive regulations in Sec. Sec.  74.2306 and 74.2307 (21 CFR 74.2306
and 74.2307) because the identity and specifications in Sec. Sec.
74.1306 and 74.1307 are referenced by Sec. Sec.  74.2306 and 74.2307.
    FDA gave interested persons until August 6, 2012, to file
objections or requests for a hearing. The Agency received no objections
or requests for a hearing on the final rule. Therefore, FDA finds that
the effective date of the final rule that published in the Federal
Register of July 6, 2012, should be confirmed.
    Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, and
redelegated to the Director, Office of Food Additive Safety, notice is
given that no objections or requests for a hearing were filed in
response to the July 6, 2012, final rule. Accordingly, the amendments
issued thereby became effective August 7, 2012.

    Dated: September 5, 2012.
Dennis M. Keefe,
Director, Office of Food Additive Safety, Center for Food Safety and
Applied Nutrition.
[FR Doc. 2012-22296 Filed 9-10-12; 8:45 am]
BILLING CODE 4160-01-P


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

							                                         OFFICE OF

				PREVENTION, PESTICIDES

	AND TOXIC SUBSTANCES

To:  	AZM Docket

	EPA-HQ-OPP-2005-0061

From:	Katie Hall

	OPP/SRRD

Date:	January 29, 2007

Re:	Note to Docket documenting AZM registrant request for HASPOC review

At a meeting on January 23, 2007 with the Office of Pesticide Programs Health Effects Division (HED), Ephi Gur of Makhteshim Agan of North America (MANA) and Larry Hodges of Bayer CropScience requested a HASPOC review for the AZM toxicology database.  Please see attached agenda.  EPA agreed that this request constitituted the request for HASPOC review contemplated by paragraph 5 of Bayer’s and MANA’s 11/06 requests to amend the terms and conditions of their AZM registrations.  EPA has set a tentative date of March 8 for the HASPOC review.   Based on that date, the registrants have noted that they intend to provide a detailed HASPOC review package to HED by February 22, 2007.

Agenda

Azinphos methyl

(AZM)

January 23, 2007

0900 – 1000

One Potomac Yard, 2777 South Crystal Drive, Arlington, VA 22202

Tenth Floor

Purpose: Discussion to set the Agenda for the AZM HAZPOC review.

Participants (currently planned):

US EPA

Cathy Eiden, Tina Levine, Vicki Dellarco, Margaret Rice, Tom Myers, Katie Hall

Makhteshim Agan of North America, Inc

		Ephi Gur, Elliot Gordon

Bayer CropScience

		Larry Hodges

Topics:

1. AZM regulatory and scientific background.

	a. Agency WOE evaluation of March 17, 2006.

b. HSRB review of AZM 28-day repeat dose human study of April 5, 2006

(Minutes: May 15, 2006; Final Report: June 26, 2006).

	c. Agency revised Occupational Risk Assessment of June 6, 2006.

2. Interspecies Uncertainty Factor.

	a. Basis for 1x interspecies UF (EPA position of March 17, 2006).

	b. EPA’s rationale for 10x UF (EPA position of June 6, 2006).

		i). Exclusion of human data.

		ii). Concern for “steep dose-response”

3. Proposed Charge to the HAZPOC.

a. Conduct an independent evaluation of the Inveresk 1999 repeat-dose human study to ascertain whether is it sufficiently robust to be considered in the WOE risk characterization for AZM (McFarlane, 1999).

i). Two other human studies* and the animal data as a whole should be considered in this evaluation. *An acute toxicity study (single dose) in humans (McFarlane, 1998) and a human dermal absorption study (Selim, 1999)).

ii). The individual data should be reviewed to ascertain the statistical power present in the study.

b. Review data that speak to the issue of dose-response for AZM.

i). Analysis of the dose differential between measurable levels of AChE depression and levels of AChE depression that cause adverse effects.

ii). The relevance of the dose-response curve for occupational risk assessment.

4. Discussion of proposed charge.

5. Conclusion

	a. Agreement as to the Charge to the HAZPOC.

	b. Schedule of the HAZPOC meeting.

c. Registrant actions in preparation for and participation in the HAZPOC review.