C.F.R. » Title 49 » CHAPTER I—PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION › SUBCHAPTER A—HAZARDOUS MATERIALS AND OIL TRANSPORTATION › PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES › Subpart C—Preemption

49 C.F.R. § 107.203

Application

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) With the exception of highway routing matters covered under 49 U.S.C. 5125(c), any person, including a State or political subdivision thereof or an Indian tribe, directly affected by any requirement of a State or political subdivision thereof or an Indian tribe, may apply to the Chief Counsel for a determination as to whether that requirement is preempted by § 107.202(a), (b), or (c).

(b) Each application filed under this section for a determination must:

(1) Be submitted to the Chief Counsel:

(i) By mail addressed to the Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHC-1, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;

(ii) By facsimile to 202-366-7041; or

(iii) Electronically to the Chief Counsel at [email protected].

(2) Set forth the text of the State or political subdivision or Indian tribe requirement for which the determination is sought;

(3) Specify each requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security with which the applicant seeks the State or political subdivision or Indian tribe requirement to be compared;

(4) Explain why the applicant believes the State or political subdivision or Indian tribe requirement should or should not be preempted under the standards of § 107.202; and

(5) State how the applicant is affected by the State or political subdivision or Indian tribe requirement.

(c) The filing of an application for a determination under this section does not constitute grounds for noncompliance with any requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security.

(d) Once the Chief Counsel has published notice in the Federal Register of an application received under paragraph (a) of this section, no applicant for such determination may seek relief with respect to the same or substantially the same issue in any court until final action has been taken on the application or until 180 days after filing of the application, whichever occurs first. Nothing in § 107.203(a) prohibits a State or political subdivision thereof or Indian tribe, or any other person directly affected by any requirement of a State or political subdivision thereof or Indian tribe, from seeking a determination of preemption in any court of competent jurisdiction in lieu of applying to the Chief Counsel under paragraph (a) of this section.

[Amdt. 107-24, 56 FR 8622, Feb. 28, 1991, as amended by Amdt. 107-25, 57 FR 20428, May 13, 1992; Amdt. 107-32, 59 FR 49131, Sept. 26, 1994; Amdt. 107-38, 61 FR 21098, May 9, 1996; 68 FR 52847, Sept. 8, 2003; 71 FR 30067, May 25, 2006; 72 FR 55683, Oct. 1, 2007]
Notes of Decisions
Cited in 5 cases, 1981–2003 · leading case: City of New York v. United States Dep't of Transp., 539 F. Supp. 1237 (S.D.N.Y. 1982).
Sort: Relevance Newest Treatment
City of New York v. United States Dep't of Transp., 539 F. Supp. 1237 (S.D.N.Y. 1982). “Absent an inconsistency determination, see 49 C.F.R. § 107.203 -.211, the nonfederal rules would remain in force, and therefore might pose a threat to the effectiveness of a federal regulatory initiative.”
City of New York v. Ritter Transp. Inc., 515 F. Supp. 663 (S.D.N.Y. 1981). “The objecting party may bring an “inconsistency proceeding” in the Department of Transportation, 49 C.F.R. § 107.203 (1979), or the question of inconsistency may be litigated in a court proceeding.”
Tennessee v. United States Dep't of Transp., 326 F.3d 729 (6th Cir. 2003). “See 49 C.F.R. § 107.203 (a) and (b). The applicant must also serve a copy of the application on the state, notifying state officials of their right to submit comments regarding the application to the Associate Administrator.”
S. Pac. Transp. Co. v. Pub. Serv. Comm'n of Nevada, 909 F.2d 352 (9th Cir. 1990). “On October 21, 1986, following the procedures set forth in 49 C.F.R. § 107.203 , SPTC applied for an administrative ruling on the question of whether the Nevada regulations were preempted by the HMTA.”
Colorado Pub. Utils. Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991). “In 1988, pursuant to 49 C.F.R. § 107.203 , DOE requested an advisory opinion from DOT as to whether the CNMTA and the NT-Regulations were preempted by federal law.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.