49 C.F.R. § 107.202

Standards for determining preemption

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

(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 § 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; 77 FR 60939, Oct. 5, 2012]

Notes of Decisions

Cited in 8 cases (4 in the last 5 years), 1998–2025 · leading case: Roth v. Norfalco LLC, 651 F.3d 367 (3rd Cir. 2011).

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Roth v. Norfalco LLC, 651 F.3d 367 (3rd Cir. 2011). · cites it 2× “” 49 C.F.R. § 107.202 (d); see also H.R.Rep.”

Buono v. Tyco Fire Prods., LP, 78 F.4th 490 (2d Cir. 2023). “” 49 C.F.R. § 107.202 (d); see Roth, 651 F.”

New York by its Dep't of Env't Conservation v. United States Dep't of Transp., 37 F. Supp. 2d 152 (N.D.N.Y. 1999). “See 49 C.F.R. § 107.202 . 1 Additionally, the Secre *155 tary of DOT was given the authority to render decisions regarding whether state requirements are preempted.”

DCC Propane LLC v. KMT Enter., Inc. (2d Cir. 2025). · cites it 3× “4th at 499–500 (quoting 49 C.F.R. § 107.202 (d)). Although the substantive duties imposed by the HMTA and HMRs on hazardous-materials transporters are undoubtedly “federal requirements” relevant to the preemption analysis, see id.”

DCC Propane, LLC v. KMT Enter., Inc. (D. Conn. 2024). · cites it 2× “The HMR define “substantively the same” as “conform[ing] in every significant respect to the Federal requirement,” though it permits “[e]ditorial and other similar de minimis changes.”

Long Island Bottle Gas & Supply Corp. v. Town of Smithtown, 250 A.D.2d 649 (N.Y. App. Div. 1998). “They further failed to establish that the fees charged by them for compliance with the local regulations were fair (see, 49 CFR 107.202 [c]). Thus, they failed to make the required prima facie showing of their entitlement to summary judgment.”

Malerba v. New York City Tr. Auth., 2024 NY Slip Op 04344 (N.Y. App. Div. 2024). “Editorial and other similar de minimis charges are permitted'"], quoting 49 CFR § 107.202 [d]; see id. , citing Roth v Norfalco LLC , 651 F3d 367, 377 [3d Cir 2011] [adopting the HMR's interpretation of "substantively the same"]).”

Dept. of Env. Conserv. v. Us Dept. of Transp., 37 F. Supp. 2d 152 (N.D.N.Y. 1999). “See 49 C.F.R. § 107.202 . [1] Additionally, the Secretary *155 of DOT was given the authority to render decisions regarding whether state requirements are preempted.”

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