PHMSA Affirms Preemption of NYC’s Hazmat Permit Fee
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 ReconsiderationOn 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.
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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 DeterminationThe 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
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