49 U.S.C. § 5125 : US Code - Section 5125: Preemption

Search 49 U.S.C. § 5125 : US Code - Section 5125: Preemption

(a) General. - Except as provided in subsections (b), (c), and
(e) of this section and unless authorized by another law of the
United States, a requirement of a State, political subdivision of a
State, or Indian tribe is preempted if -
(1) complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a
regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive issued
by the Secretary of Homeland Security is not possible; or
(2) the requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing
and carrying out this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security
regulation or directive issued by the Secretary of Homeland
Security.
(b) Substantive Differences. - (1) Except as provided in
subsection (c) of this section and unless authorized by another law
of the United States, a law, regulation, order, or other
requirement of a State, political subdivision of a State, or Indian
tribe about any of the following subjects, that is not
substantively the same as a provision of this chapter, a regulation
prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security, is preempted:
(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 designing, manufacturing, fabricating, inspecting,
marking, maintaining, reconditioning, repairing, or testing a
package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material in commerce.
(2) If the Secretary prescribes or has prescribed under section
5103(b), 5104, 5110, or 5112 of this title or prior comparable
provision of law a regulation or standard related to a subject
referred to in paragraph (1) of this subsection, a State, political
subdivision of a State, or Indian tribe may prescribe, issue,
maintain, and enforce only a law, regulation, standard, or order
about the subject that is substantively the same as a provision of
this chapter or a regulation prescribed or order issued under this
chapter. The Secretary shall decide on and publish in the Federal
Register the effective date of section 5103(b) of this title for
any regulation or standard about any of those subjects that the
Secretary prescribes. The effective date may not be earlier than 90
days after the Secretary prescribes the regulation or standard nor
later than the last day of the 2-year period beginning on the date
the Secretary prescribes the regulation or standard.
(3) If a State, political subdivision of a State, or Indian tribe
imposes a fine or penalty the Secretary decides is appropriate for
a violation related to a subject referred to in paragraph (1) of
this subsection, an additional fine or penalty may not be imposed
by any other authority.
(c) Compliance With Section 5112(b) Regulations. - (1) Except as
provided in paragraph (2) of this subsection, after the last day of
the 2-year period beginning on the date a regulation is prescribed
under section 5112(b) of this title, a State or Indian tribe may
establish, maintain, or enforce a highway routing designation over
which hazardous material may or may not be transported by motor
vehicles, or a limitation or requirement related to highway
routing, only if the designation, limitation, or requirement
complies with section 5112(b).
(2)(A) A highway routing designation, limitation, or requirement
established before the date a regulation is prescribed under
section 5112(b) of this title does not have to comply with section
5112(b)(1)(B), (C), and (F).
(B) This subsection and section 5112 of this title do not require
a State or Indian tribe to comply with section 5112(b)(1)(I) if the
highway routing designation, limitation, or requirement was
established before November 16, 1990.
(C) The Secretary may allow a highway routing designation,
limitation, or requirement to continue in effect until a dispute
related to the designation, limitation, or requirement is resolved
under section 5112(d) of this title.
(d) Decisions on Preemption. - (1) A person (including a State,
political subdivision of a State, or Indian tribe) directly
affected by a requirement of a State, political subdivision, or
tribe may apply to the Secretary, as provided by regulations
prescribed by the Secretary, for a decision on whether the
requirement is preempted by subsection (a), (b)(1), or (c) of this
section or section 5119(e). The Secretary shall publish notice of
the application in the Federal Register. The Secretary shall issue
a decision on an application for a determination within 180 days
after the date of the publication of the notice of having received
such application, or the Secretary shall publish a statement in the
Federal Register of the reason why the Secretary's decision on the
application is delayed, along with an estimate of the additional
time necessary before the decision is made. After notice is
published, an applicant may not seek judicial relief on the same or
substantially the same issue until the Secretary takes final action
on the application or until 180 days after the application is
filed, whichever occurs first.
(2) After consulting with States, political subdivisions of
States, and Indian tribes, the Secretary shall prescribe
regulations for carrying out paragraph (1) of this subsection.
(3) Subsection (a) of this section does not prevent a State,
political subdivision of a State, or Indian tribe, or another
person directly affected by a requirement, from seeking a decision
on preemption from a court of competent jurisdiction instead of
applying to the Secretary under paragraph (1) of this subsection.
(e) Waiver of Preemption. - A State, political subdivision of a
State, or Indian tribe may apply to the Secretary for a waiver of
preemption of a requirement the State, political subdivision, or
tribe acknowledges is preempted by subsection (a), (b)(1), or (c)
of this section or section 5119(b). Under a procedure the Secretary
prescribes by regulation, the Secretary may waive preemption on
deciding the requirement -
(1) provides the public at least as much protection as do
requirements of this chapter and regulations prescribed under
this chapter; and
(2) is not an unreasonable burden on commerce.
(f) Fees. - (1) A State, political subdivision of a State, 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.
(2) A State or political subdivision thereof or Indian tribe that
levies a fee in connection with the transportation of hazardous
materials shall, upon the Secretary's request, report to the
Secretary on -
(A) the basis on which the fee is levied upon persons involved
in such transportation;
(B) the purposes for which the revenues from the fee are used;
(C) the annual total amount of the revenues collected from the
fee; and
(D) such other matters as the Secretary requests.
(g) Application of Each Preemption Standard. - Each standard for
preemption in subsection (b), (c)(1), or (d), and in section
5119(b), is independent in its application to a requirement of a
State, political subdivision of a State, or Indian tribe.
(h) Non-Federal Enforcement Standards. - This section does not
apply to any procedure, penalty, required mental state, or other
standard utilized by a State, political subdivision of a State, or
Indian tribe to enforce a requirement applicable to the
transportation of hazardous material.