§ 5125. — Preemption.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 49USC5125]
TITLE 49--TRANSPORTATION
SUBTITLE III--GENERAL AND INTERMODAL PROGRAMS
CHAPTER 51--TRANSPORTATION OF HAZARDOUS MATERIAL
Sec. 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 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.
(2) If the Secretary of Transportation 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 after
November 16, 1990. However, 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. 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. 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) Judicial Review.--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.
(g) 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.
(Pub. L. 103-272, Sec. 1(d), July 5, 1994, 108 Stat. 781; Pub. L. 103-
311, title I, Secs. 107, 117(a)(2), 120(b), Aug. 26, 1994, 108 Stat.
1674, 1678, 1681; Pub. L. 103-429, Sec. 6(6), Oct. 31, 1994, 108 Stat.
4378; Pub. L. 107-296, title XVII, Sec. 1711(b), Nov. 25, 2002, 116
Stat. 2320.)
Historical and Revision Notes
Pub. L. 103-272
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Revised Section Source (U.S. Code) Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
5125(a)............................... 49 App.:1811(a). Jan. 3, 1975, Pub. L. 93-633, Sec.
112(a)-(e), 88 Stat. 2161; Nov. 30,
1979, Pub. L. 96-129, Sec. 216(a), 93
Stat. 1015; restated Nov. 16, 1990,
Pub. L. 101-615, Sec. 13, 104 Stat.
3259.
5125(b)............................... 49 App.:1804(a)(4), (5). Jan. 3, 1975, Pub. L. 93-633, Sec.
105(a)(4), (5), (b)(4), 88 Stat. 2157;
restated Nov. 16, 1990, Pub. L. 101-
615, Sec. 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).
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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. 103-429
This 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).
Amendments
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, Sec. 117(a)(2), substituted ``a
packaging or a'' for ``a package or''.
Subsec. (d). Pub. L. 103-311, Sec. 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, Sec. 107, designated existing
provisions as par. (1) and added par. (2).
Effective Date of 2002 Amendment
Amendment 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 Amendment
Amendment 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.
Section Referred to in Other Sections
This section is referred to in sections 5112, 5712 of this title.
