[Code of Federal Regulations]
[Title 49, Volume 2]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR107.202]

[Page 27-28]
 
                        TITLE 49--TRANSPORTATION
 
 CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 107_HAZARDOUS MATERIALS PROGRAM PROCEDURES--Table of Contents
 
                          Subpart C_Preemption
 
Sec.  107.202  Standards for determining preemption.

    (a) Except as provided in Sec.  107.221 and unless otherwise 
authorized by Federal law, any requirement of a State or political 
subdivision thereof or an Indian tribe that concerns one of the 
following subjects and that is not substantively the same as any 
provision of the Federal hazardous materials transportation law, a 
regulation issued under the Federal hazardous material transportation 
law, or a hazardous material transportation security regulation or

[[Page 28]]

directive issued by the Secretary of Homeland Security that concerns 
that subject, is preempted:
    (1) The designation, description, and classification of hazardous 
material.
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (3) The preparation, execution, and use of shipping documents 
pertaining to hazardous material and requirements related to the number, 
content, and placement of those documents.
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (5) The design, manufacturing, fabrication, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or a container 
which is represented, marked, certified, or sold as qualified for use in 
the transportation of hazardous material.
    (b) Except as provided in Sec.  107.221 and unless otherwise 
authorized by Federal law, any requirement of a State or political 
subdivision or Indian tribe is preempted if--
    (1) It is not possible to comply with a requirement of the State, 
political subdivision, or Indian tribe and a requirement under the 
Federal hazardous material transportation law, a regulation issued under 
the Federal hazardous material transportation law, or a hazardous 
material transportation security regulation or directive issued by the 
Secretary of Homeland Security;
    (2) The requirement of the State, political subdivision, or Indian 
tribe, as applied or enforced, is an obstacle to accomplishing and 
carrying out the Federal hazardous material transportation law, a 
regulation issued under the Federal hazardous material transportation 
law, or a hazardous material transportation security regulation or 
directive issued by the Secretary of Homeland Security.
    (3) It is preempted under 49 U.S.C. 5125 (c).
    (c) 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.
    (d) For purposes of this section, ``substantively the same'' means 
that the non-Federal requirement conforms in every significant respect 
to the Federal requirement. Editorial and other similar de minimis 
changes are permitted.

[Amdt. 107-24, 56 FR 8622, Feb. 28, 1991, as amended by Amdt. 107-25, 57 
FR 20428, May 13, 1992; Amdt. 107-29, 58 FR 51527, Oct. 1, 1993; Amdt. 
107-32, 59 FR 49130, Sept. 26, 1994; Amdt. 107-38, 61 FR 21098, May 9, 
1996; Amdt. 107-39, 61 FR 51337, Oct. 1, 1996; 68 FR 52847, Sept. 8, 
2003]

                        Preemption Determinations