The Pipeline and Hazardous Materials Safety Administration announced in the Federal Register that federal hazardous materials transportation law preempts the controversial Fire Department of the City of New York's permit and inspection requirements, FC 2707.4 and 105.6 (transportation of hazardous materials), with respect to trucks based outside the inspecting jurisdiction, because scheduling and conducting a vehicle inspection (as required for a permit) may cause unnecessary delays in the transportation of hazardous materials from locations outside the City of New York.
The American Trucking Associations (ATA) had applied to PHMSA for a determination on whether Federal hazardous material transportation law, 49 USC 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.
This requirement was contained in the FC in Title 29 of the New York City Administrative Code. The Fire Department of the City of New York (FDNY) implements the FC rules in Title 3 of the Rules of the City of New York. The relevant provisions of the FC and the FDNY rules regarding the City of New York's hazardous materials inspection and permitting program, and related fees, include:
FC 2707--set forth the requirements for the transportation of hazardous materials;
FC 2707.3--prohibited the transportation of hazardous materials in quantities requiring a permit without such permit;
FC 2707.4 and 105.6--permit requirement and exclusions;
FDNY Rule 2707-02--set forth routing, timing, escort, and other requirements for the transportation of hazardous materials;
FC Appendix A, Section A03.1(39) and (67)--specified the permit (inspection and re-inspection) fees.
ATA stated in its filing that motor carriers “must file a separate application for each tractor or trailer,” and pay a $210 fee “for each tractor or trailer to be inspected, and, if approved, must be ready to present copies of the permit to enforcement officials at their request.”
In summary, ATA contended that: The City of New York's regulatory regime was deficient in several ways. Only motor carriers are required to obtain the City of New York's permit, which imposes an unfair burden on a single mode of transportation.
The permit requirements applied only to some carriers and impeded their drivers' ability to comply with 49 CFR 177.800(d), which mandates that “hazardous materials must be transported without unnecessary delay.”
Finally, the City of New York (City) could not show that it is using funds generated from its permit fees for hazardous materials enforcement and emergency response training.
PHMSA stated in its ruling that FDNY's permit and inspection requirements, FC 2707.4 and 105.6 (transportation of hazardous materials), create an obstacle to accomplishing and carrying out the HMR's prohibition against unnecessary delays in the transportation of hazardous materials on vehicles based outside of the inspecting jurisdiction.
Accordingly, the HMTA preempts FDNY's permit and inspection requirements with respect to vehicles based outside the inspecting jurisdiction. PHMSA, however, finds that the HMTA does not preempt FDNY's permit and inspection requirements with respect to motor vehicles that are based within the inspecting jurisdiction.
PHMSA 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 USC 5125(f)(1).