PHMSA Pre-empts FDNY Hazmat Permit Fee

Posted on 7/7/2017 by Roger Marks

In the Federal Register yesterday, the US DOT Pipeline and Hazardous Materials Safety Administration (PHMSA) announced that the Federal Hazardous Materials Regulations (HMR) in some cases pre-empt hazmat inspection and permit rules created by the New York City Fire Department.

FDNY Hazmat Inspection and Permit Requirements

For carriers based outside of FDNY’s jurisdiction, this action invalidates the FDNY hazmat transportation inspection and permit requirements at FC 2707.4 and 105.6. So, if you are outside of New York City, you are not subject to these FDNY hazmat inspection and permit requirements.

Motor carriers based within New York City are subject to FDNY’s jurisdiction, however, and therefore must still comply with the FDNY vehicle inspection and permit requirements

FDNY Hazmat Permit Fee

FDNY requires motor vehicle carriers to obtain a permit to transport certain quantities of flammable liquids, combustible liquids, compressed gases, and explosives within the city.

PHMSA has now determined that this is not a “fair” fee and states that FDNY has failed to prove that the fee is “used for a purpose related to transporting hazardous materials,” as required by 49 USC 5125(f)(1). Therefore, PHMSA has chosen to pre-empt the FDNY hazmat fee, rendering it unenforceable at least for the time being.  

Legal Challenge to FDNY Hazmat Rules

The legal challenge to FDNY’s hazmat rules was brought by the American Trucking Association (ATA), which argued on behalf of carriers that the additional hazmat inspection and permit requirements created an undue time and cost burden. Further, it made it difficult for carriers to comply with PHMSA’s 49 CFR regulations, which require hazardous materials to be “transported without unnecessary delay.” [49 CFR 177.88(d)]

What Is Federal Preemption Under Hazmat Transportation Law?

Federal agencies like US DOT may “pre-empt” or invalidate State or local laws or regulations when those State rules conflict with or encourage noncompliance with Federal requirements.
In this case, PHMSA “found that the City created its own independent set of cargo containment, equipment and related requirements that overlap extensive HMR requirements, are likely to encourage noncompliance with the HMR, and concern subjects that [PHMSA] has determined are its exclusive province under the HMTA.”

To see the Federal pre-emption rules for hazardous materials, see 49 U.S.C. 5125

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Tags: hazmat, inspection, NYC, PHMSA, shipping

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