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PHMSA Affirms Preemption of NYC’s Hazmat Permit Fee

Posted on 5/15/2020 by Roger Marks

A few years ago, trucking industry groups asked PHMSA to pre-empt hazardous materials inspection and permit requirements imposed by the New York City fire department (FDNY).

Found in the city’s fire code at FC 2707.4 and 105.6, FDNY’s hazmat permitting and inspection requirements apply to carriers who transport certain quantities of hazardous materials. To get the required permit, those carriers must pay a $105 inspection fee.

On July 6, 2017, PHMSA pre-empted, i.e., invalidated, this requirement—but only for carriers outside of FDNY’s jurisdiction. The inspection and permit requirement (and fee) continue to apply for carriers within FDNY’s inspection jurisdiction. 

Shortly after PHMSA finalized its pre-emption determination, New York City requested that the agency reconsider the decision.

PHMSA Responds to NYC’s Request for Reconsideration

On May 15, 2020, PHMSA officially denied (in part) the city’s request for reconsideration.

We say “in part” because PHMSA reversed one element of its determination. In 2017, PHMSA stated that the fire department was “not using the revenue it collects from its permit fee for authorized purposes.” Based on new information provided by FDNY, PHMSA now says that the revenue is being used for the appropriate purpose.

That said, PHMSA still believes that the fee is “not fair” and therefore affirms its 2017 preemption determination. 

49 USC 5125(f)(1) requires that any hazardous materials-related fee be both fair and used for a purpose related to hazmat transportation.

Do you work with hazardous waste in the Empire State? Lion will present the New York Hazardous Waste Management Webinar on May 28. Join us for live, instructor-led training to help satisfy NYSDEC’s annual training mandate for hazardous waste personnel.

What is Federal Preemption?

Under hazmat transportation law, Federal agencies like US DOT may preempt or invalidate State or local laws or regulations when those State rules conflict with or encourage noncompliance with the Federal requirements.  
In the case of New York City’s hazmat fee, PHMSA found that “the city created its own independent set of cargo containment, equipment, and related requirements that overlap extensive HMR requirements and are likely to encourage noncompliance with the HMR.”

The law concerning preemption of hazardous materials requirements are found at 49 USC 5125. 

PHMSA’s Other May 2020 Pre-emption Determination

The pre-emption of FDNY’s hazmat fee was one of two such determinations in the May 11 Federal Register. PHMSA also pre-empted Washington State’s vapor pressure requirement for crude oil by rail that’s set to take effect at a future date.

Read More: PHMSA Pre-empts Washington State Crude by Rail Rule

Online Hazmat Training at Lion.com

hazmat online trainingNew hazmat employees must complete DOT hazmat training within 90 days of hire and may not perform any unsupervised hazmat job function until they are trained. Re-training is required once every three years. (49 CFR 172.704)

The Hazmat Ground Shipper Certification online course covers what manager and employees must know to identify and properly prepare hazardous materials for transport by highway anywhere in the US. Sign up now for in-depth training to classify, package, mark, label, handle, load, unload, and document hazmat ground shipments. A recurrent version is also available.

Tags: hazardous materials, hazmat shipping, PHMSA, state rules

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