Federal law preempts FDNY hazmat permit and inspection
Posted July 7, 2017
A New York City permit requirement for the transportation of certain hazardous materials is preempted by federal hazardous material transportation law, according to the Pipeline and Hazardous Materials Safety Administration (PHMSA).
The American Trucking Associations applied to PHMSA for a determination on whether federal hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts the City of New York’s requirement that those wishing to transport hazardous materials by motor vehicle must, in certain circumstances, obtain a permit.
In a notice appearing in the Federal Register on July 6, 2017, PHMSA finds the permit and inspection requirements for New York City’s Fire Department (i.e., FDNY) — FC 2707.4 and 105.6 (transportation of hazardous materials) — create an obstacle to accomplishing and carrying out the prohibition in the Hazardous Materials Regulations against unnecessary delays in the transportation of hazardous materials on vehicles based outside of the inspecting jurisdiction. Federal law preempts FDNY’s permit and inspection requirements with respect to vehicles based outside the inspecting jurisdiction. PHMSA, however, finds that federal hazardous materials transportation law does not preempt FDNY’s permit and inspection requirements with respect to motor vehicles that are based within the inspecting jurisdiction.
PHMSA also finds that FDNY has not shown that the fee it imposes with respect to its permit and inspection requirements is “fair” or “used for a purpose related to transporting hazardous material,” as required by 49 U.S.C. 5125(f)(1). Accordingly, the federal law preempts FDNY's permit fee requirement.
Any person aggrieved by this decision may file a petition for reconsideration within 20 days of publication. This decision will become PHMSA's final decision 20 days after publication if no petition for reconsideration is filed. If a petition for reconsideration is filed within the deadline, the action by PHMSA’s Chief Counsel on the petition for reconsideration will be PHMSA’s final action.
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