§5125 — Title 49 Transportation | U.S. Code

Summary

Federal hazardous materials rules override state, local, and tribal rules when you cannot obey both the state rule and the federal rule, or when the state rule gets in the way of carrying out federal hazardous materials laws or security rules. States and tribes cannot set different rules on key subjects like what is a hazardous material, how it is packed and labeled, shipping papers, incident reporting to responders, or how packages are designed and tested, unless their rule is basically the same as the federal rule. When the federal government issues a new rule for those subjects, the Secretary will set an effective date that is at least 90 days later and no more than 2 years later. If a state sets a fine the Secretary finds appropriate for those subjects, no other authority may add another fine for the same violation. After 2 years from a federal highway-routing rule, states and tribes may only make or keep truck routing rules if those rules follow the federal routing requirements and are listed in the Department’s route registry. Older routing rules made before the federal rule or before Nov. 16, 1990 have some exceptions, and the Secretary can let a route stay in effect while a dispute is decided. A person directly affected can ask the Secretary to decide if a state rule is overridden; the Secretary will publish the request and must decide within 180 days or explain the delay. The applicant normally must wait to sue until the Secretary acts or 180 days pass, though they may go straight to court instead. States or tribes can ask the Secretary to waive preemption if they admit their rule is overridden; the Secretary may grant a waiver if the state rule gives at least the same public protection and is not an unreasonable burden on commerce. States may charge fair fees tied to hazardous-material transport and must report every two years how the fees are set, used, and how much was collected. Each preemption rule stands on its own. This section does not stop states from using their own enforcement tools, penalties, or required mental-state rules when enforcing transport rules.

Title 49, §5125

Transportation — Source: USLM XML via OLRC

(a)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)(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 and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident.

(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)(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), and is published in the Department’s hazardous materials route registry under section 5112(c).

(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)(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(f). 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)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(f). 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)(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 biennially 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)Each standard for preemption in subsection (a), (b)(1), or (c), and in section 5119(f), is independent in its application to a requirement of a State, political subdivision of a State, or Indian tribe.

(h)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.

Notes & Related Subsidiaries

Historical and Revision Notes

Pub. L. 103–272 Revised SectionSource (U.S. Code)Source (Statutes at Large) 5125(a)49 App.:1811(a).Jan. 3, 1975, Pub. L. 93–633, § 112(a)–(e), 88 Stat. 2161; Nov. 30, 1979, Pub. L. 96–129, § 216(a), 93 Stat. 1015; restated Nov. 16, 1990, Pub. L. 101–615, § 13, 104 Stat. 3259. 5125(b)49 App.:1804(a)(4), (5).Jan. 3, 1975, Pub. L. 93–633, § 105(a)(4), (5), (b)(4), 88 Stat. 2157; restated Nov. 16, 1990, Pub. L. 101–615, § 4, 104 Stat. 3247, 3250. 5125(c)49 App.:1804(b)(4). 5125(d)49 App.:1811(c). 5125(e)49 App.:1811(d). 5125(f)49 App.:1811(e). 5125(g)49 App.:1811(b). In subsections (a) and (b)(1), the words “and unless authorized by Federal law” are omitted as surplus. In subsection (a), before clause (1), the reference to subsections (b) and (c) is substituted for 49 App.:1811(a)(3) for clarity. In subsection (b)(1), before clause (A), the words “ruling, provision” are omitted as surplus. In subsection (b)(3), the word “imposes” is substituted for “assesses” for consistency. In subsection (c)(1), the words “the procedural requirements of” and “the substantive requirements of” are omitted as surplus. In subsection (c)(2)(A), the words “procedural requirements of the Federal standards established pursuant to” are omitted as surplus. In subsection (f), the words “may bring a civil action for judicial review” are substituted for “may seek judicial review . . . only by filing a petition” for consistency in the revised title. Pub. L. 103–429This amends 49:5125(a) and (b)(1) to clarify the restatement of 49 App.:1804(a)(4) and 1811(a) by section 1 of the Act of July 5, 1994 (Public Law 103–272, 108 Stat. 781).

Editorial Notes

Amendments

2012—Subsec. (b)(1)(D). Pub. L. 112–141, § 33006(d), inserted “and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident” before period at end. Subsec. (c)(1). Pub. L. 112–141, § 33013(b), inserted “, and is published in the Department’s hazardous materials route registry under section 5112(c)” before period at end. Subsec. (f)(2). Pub. L. 112–141, § 33011, substituted “biennially” for “, upon the Secretary’s request,”. 2008—Subsec. (d)(1). Pub. L. 110–244, § 302(c)(1), substituted “5119(f)” for “5119(e)”. Subsec. (e). Pub. L. 110–244, § 302(c)(2), substituted “5119(f)” for “5119(b)” in introductory provisions. Subsec. (g). Pub. L. 110–244, § 302(c)(2), (3), substituted “(a), (b)(1), or (c)” for “(b), (c)(1), or (d)” and “5119(f)” for “5119(b)”. 2005—Subsec. (b)(1)(E). Pub. L. 109–59, § 7122(a)(1), added subpar. (E) and struck out former subpar. (E) which read as follows: “the design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or a container represented, marked, certified, or sold as qualified for use in transporting hazardous material.” Subsec. (b)(2). Pub. L. 109–59, § 7126, substituted “If the Secretary” for “If the Secretary of Transportation”. Pub. L. 109–59, § 7122(a)(2), substituted “subjects that the Secretary prescribes. The” for “subjects that the Secretary prescribes after November 16, 1990. However, the”. Subsec. (d)(1). Pub. L. 109–59, § 7122(b), inserted “or section 5119(e)” before period at end of first sentence. Subsec. (e). Pub. L. 109–59, § 7122(c), inserted “or section 5119(b)” before period at end of first sentence. Subsec. (f). Pub. L. 109–59, § 7123(a), redesignated subsec. (g) as (f), realigned margins, and struck out heading and text of former subsec. (f). Text read as follows: “A party to a proceeding under subsection (d) or (e) of this section may bring a civil action in an appropriate district court of the United States for judicial review of the decision of the Secretary not later than 60 days after the decision becomes final.” Subsec. (g). Pub. L. 109–59, § 7123(a)(2), redesignated subsec. (h) as (g). Former subsec. (g) redesignated (f). Subsecs. (h), (i). Pub. L. 109–59, § 7123(a)(2), redesignated subsecs. (h) and (i) as (g) and (h), respectively. Pub. L. 109–59, § 7122(d), added subsecs. (h) and (i). 2002—Subsecs. (a), (b)(1). Pub. L. 107–296 substituted “chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security” for “chapter or a regulation prescribed under this chapter” wherever appearing. 1994—Subsecs. (a), (b)(1). Pub. L. 103–429 inserted “and unless authorized by another law of the United States” after “section” in introductory provisions. Subsec. (b)(1)(E). Pub. L. 103–311, § 117(a)(2), substituted “a packaging or a” for “a package or”. Subsec. (d). Pub. L. 103–311, § 120(b), inserted after second sentence “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.” Subsec. (g). Pub. L. 103–311, § 107, designated existing provisions as par. (1) and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date

of 2012 AmendmentAmendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.

Effective Date

of 2002 AmendmentAmendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an

Effective Date

note under section 101 of Title 6, Domestic Security.

Effective Date

of 1994 AmendmentAmendment by Pub. L. 103–429 effective July 5, 1994, see section 9 of Pub. L. 103–429, set out as a note under section 321 of this title.

§5125 Preemption

Summary

Title 49, §5125

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

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