Department of Transportation May 15, 2020 – Federal Register Recent Federal Regulation Documents

On July 6, 2017, PHMSA published in the Federal Register an administrative determination that Federal hazardous material transportation law preempts, in part, FDNY's permit, inspection, and fee requirements. FDNY has petitioned for reconsideration of that determination. FDNY's petition for reconsideration is granted in part, and denied in part, as follows: 1. Permit and Inspection RequirementPHMSA affirms its determination that the HMTA preempts FDNY's permit and inspection requirements, FC 2707.4 and 105.6, with respect to vehicles based outside the inspecting jurisdiction, and its determination that the HMTA does not preempt these requirements with respect to vehicles that are based within the inspecting jurisdiction. PHMSA's determination is based on its conclusion that FDNY's permit and inspection requirements create an obstacle to accomplishing and carrying out the HMR's prohibition against unnecessary delays in the transportation of hazardous material on vehicles based outside the inspecting jurisdiction. 2. Permit FeeBased on new information supplied by FDNY, PHMSA reverses its determination that FDNY is not using the revenue it collects from its permit fee for authorized purposes. However, PHMSA affirms its determination that the permit fee is not ``fair,'' as required by 49 U.S.C. 5125(f)(1), and therefore affirms its determination that the permit fee is preempted.

PHMSA finds that the HMTA preempts Washington State's vapor pressure limit for crude oil loaded or unloaded from rail tank cars, for three reasons. First, the vapor pressure requirement constitutes a scheme for classifying a hazardous material that is not substantively the same as the HMR. Second, the vapor pressure requirement imposes requirements on the handling of a hazardous material that are not substantively the same as the requirements of the HMR. Third, PHMSA has determined that the vapor pressure requirement is an obstacle to accomplishing and carrying out the HMTA. In addition, PHMSA finds that the administrative record regarding Washington State's Advance Notice of Transfer (ANT) requirement is insufficient to make a determination whether the requirement is preempted under the HMTA.