Pipeline and Hazardous Materials Safety Administration

Introduction

October 2, 2002

INDEX TO PREEMPTION OF
STATE AND LOCAL LAWS AND REGULATIONS
UNDER THE FEDERAL HAZARDOUS MATERIAL TRANSPORTATION LAW
(49 U.S.C. §§ 5101-5127)

This document contains an alphabetized subject matter index of issues arising under the preemption provisions of Title 49, Chapter 51 of the United States Code, 49 U.S.C. §§ 5101-5127 (referred to in this index as the Federal hazardous material transportation law, or Federal hazmat law). The original Hazardous Materials Transportation Act (HMTA), Pub. L. 93-633, 88 Stat. 2156 (1975), was amended and codified in 1994. Chapter 51 and DOT's regulations issued under Chapter 51 govern the transportation of hazardous materials in commerce.

This index analyzes the implementation of the preemption provisions in Federal hazmat law by DOT and the courts. Court decisions are legally binding on the parties to those cases and may constitute binding precedents within the geographical area of each court's jurisdiction. DOT's 1978-1990 inconsistency rulings were advisory, non-binding opinions; its post-1990 preemption determinations are legally binding subject to judicial review. All of DOT's inconsistency rulings and preemption determinations are listed at the end of this index, with the citation to the volume and page of Federal Register where each was published.

Preemption Standards

Generally. Sections 5125(a) and (b) provide that, in the absence of a waiver of preemption by the Department or specific authority in another Federal law, a requirement of a State, political subdivision of a State, or Indian tribe is preempted when:

--(the "dual compliance" test) it is not possible to comply with both the non-Federal requirement and the Federal hazmat law or a regulation prescribed under Federal hazmat law;

--(the "obstacle" test) as applied or enforced, the non-Federal requirement is an obstacle to accomplishing and carrying out the Federal hazmat law or a regulation prescribed under Federal hazmat law; or

--(the "covered subjects" test) the non-Federal requirement concerns any of five "covered subjects" and is not "substantively the same as" requirements in the Federal hazmat law or a regulation prescribed under Federal hazmat law; these covered subjects are:

(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 design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or a container 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.

A more general preemption standard ("inconsistent") was contained in the original HMTA, "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. 1192, 93rd Cong., 2nd Sess. 37 (1974). The "dual compliance" and "obstacle" tests were the regulatory criteria used by the Research and Special Programs Administration (RSPA) and the courts before 1990. In 1990, these tests were added to the statute.

Highway Routing. Section 5125(c) provides that, with certain exceptions, a State or Indian tribe may establish, maintain, or enforce highway routing designations, limitations, and requirements for hazardous materials only when those designations, limitations, or requirements meet Federal procedural and substantive requirements. The Federal Highway Administration (FHWA) issued the regulations that States and Indian tribes must follow in order to designate or limit highway routing of hazardous materials, in 1992 (with respect to radioactive materials) and 1994 (with respect to non-radioactive materials).

Hazmat Fees. Section 5125(g) provides that a State, political subdivision, or Indian tribe may impose a fee related to transporting hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including enforcement and planning, developing, and maintaining a capability for emergency response.

Motor Carrier Registration and Permitting. Section 5119 provides that, after DOT enacts regulations with regard to the forms and procedures for the registration and permitting of motor carriers that transport hazardous material, a State may establish, maintain, or enforce a requirement related to the registration or permitting of a motor carrier only when that requirement "is the same as" DOT's regulations. DOT has not yet issued these regulations.

Waiver of Preemption

Section 5125(e) provides that DOT may waive preemption of a State, local, or Indian tribe requirement, in response to an application that "acknowledges" preemption, if DOT determines that the non-Federal requirement: (1) provides the public with "at least as much protection as do requirements" of the Federal hazardous material transportation law and the regulations issued under that law, and (2) is not "an unreasonable burden on commerce."

Issuance of a Preemption Determination or Waiver

DOT has delegated to RSPA the authority to decide applications for a preemption determination and for a waiver of preemption, except for those concerning highway routing which have been delegated to FHWA. 49 C.F.R. § 1.53(b). The procedures for deciding applications for a preemption determination or waiver of preemption are set forth at 49 C.F.R. §§ 107.201 - 107.227 (RSPA) and §§ 387.201 - 397.225 (FHWA).

Any person "aggrieved" by a decision on an application for a preemption determination or a waiver of preemption may file a petition for reconsideration within 20 days of service of that decision. 49 C.F.R. §§ 107.223(a) (RSPA), 397.223(a) (FHWA). A party to a preemption determination or a waiver of preemption proceeding may also seek judicial review of DOT's decision by the "appropriate district court of the United States . . . not later than 60 days after the decision becomes final." 49 U.S.C. § 5125(f).