PHMSA upholds most of preemption action on FDNY hazmat permits, fees

New York City continues to see itself as a nation unto itself when it comes to interstate hazardous materials shipments. The latest was an FDNY request for reconsideration of a federal preemption action published in the Federal Register back in July 2017.

On July 6, 2017, the Pipeline and Hazardous Materials Safety Administration (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 petitioned for reconsideration of that determination, which has now been granted in part, and denied in part, as follows:

1. Permit and Inspection Requirement—PHMSA affirms its determination that the Hazardous Materials Transportation Act (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 hazardous materials regulations’ (HMR’s) prohibition against unnecessary delays in the transportation of hazardous material on vehicles based outside the inspecting jurisdiction.
2. Permit Fee—Based 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 USC 5125(f)(1), and therefore affirms its determination that the permit fee is preempted.