[Code of Federal Regulations]

[Title 49, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR107.202]



[Page 27-28]

 

                        TITLE 49--TRANSPORTATION

 

   CHAPTER I--PIPELINE AND HAZARDOUS MATERIALS SAFETY 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 

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.



[[Page 28]]



    (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