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. § 107.209

Determination

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(a) Upon consideration of the application and other relevant information received, the Chief Counsel issues a determination.

(b) The determination includes a written statement setting forth the relevant facts and the legal basis for the determination, and provides that any person aggrieved thereby may file a petition for reconsideration with the Chief Counsel.

(c) The Chief Counsel provides a copy of the determination to the applicant and to any other person who substantially participated in the proceeding or requested in comments to the docket to be notified of the determination. A copy of each determination is placed on file in the public docket. The Chief Counsel will publish the determination or notice of the determination in the Federal Register, at which time the determination becomes a final agency action.

(d) A determination issued under this section constitutes an administrative determination as to whether a particular requirement of a State or political subdivision or Indian tribe is preempted under the Federal hazardous materials transportation law. The fact that a determination has not been issued under this section with respect to a particular requirement of a State or political subdivision or Indian tribe carries no implication as to whether the requirement is preempted under the Federal hazardous materials transportation law.

[Amdt. 107-24, 56 FR 8623, 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]
Notes of Decisions
Cited in 11 cases, 1981–2003 · leading case: Ohio ex rel. Celebrezze v. United States Dep't of Transp., 766 F.2d 228 (6th Cir. 1985).
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Ohio ex rel. Celebrezze v. United States Dep't of Transp., 766 F.2d 228 (6th Cir. 1985). · cites it 4× “Defendants’ own regulation 49 C.F.R. § 107.209 (d) requires an inconsistency ruling to include a written statement setting forth the relevant facts upon which the ruling is based.”
Nat'l Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509 (D.R.I. 1982). · cites it 2× “209 (c) (1980) provides: In determining whether a State or political subdivision requirement is inconsistent with the Act or the regulations issued under the Act, the Associate Director for [Operation and Enforcement] considers: (1) Whether compliance with both the State or…”
Sawash v. Suburban Welders Supply Co., 553 N.E.2d 894 (Mass. 1990). “Furthermore, the language of § 1811 to the effect that only “inconsistent” State requirements are preempted has been interpreted by the Department of Transportation to mean that only State law that actually conflicts (in the sense discussed below) with the HMTA or a related…”
City of New York v. Ritter Transp. Inc., 515 F. Supp. 663 (S.D.N.Y. 1981). · cites it 2× “49 C.F.R. § 107.209 (c) (1979) relates to the standard to be applied in an inconsistency proceeding, and provides: “In determining whether a State or political subdivision requirement is inconsistent with the Act or the regulations issued under the Act, the Associate Director…”
CSX Transp., Inc. v. Pub. Utils. Comm'n, 701 F. Supp. 608 (S.D. Ohio 1988). “See also 49 C.F.R. § 107.209 . The statement in this RSPA ruling that “RSPA encourages states to adopt and enforce the HMR as state requirements” does not relate to railroads.”
Consol. Rail Corp. v. City of Bayonne, 724 F. Supp. 320 (D.N.J. 1989). “2d at 1113 (citing 49 C.F.R. § 107.209 (c)(1), (2)). The Court notes that although plaintiffs are correct in their assertion that the FRSA only provides for "state" participation and regulation, not for municipalities ( see, e.”
Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103 (3rd Cir. 1985). “49 C.F.R. §§ 107.209 (c)(1), (2). The DOT included a policy statement in an appendix to Part 177 of HM-164 (“Appendix A”) to assist states and localities in promulgating highway “routing rules” 14 that are not inconsistent with HM-164.”
Tennessee v. United States Dep't of Transp., 326 F.3d 729 (6th Cir. 2003). “See 49 C.F.R. § 107.209 . Within 60 days of publication, the parties are free to seek judicial review of the determination in a federal district court.”
Chlorine Inst., Inc. v. California High. Patrol, 29 F.3d 495 (9th Cir. 1994). “2d at 355 (citing 49 C.F.R. § 107.209 ). Therefore, the court considered the challenge in light of an "obstacle” test identical to the one now incorporated into the HMTUSA.”
S. Pac. Transp. Co. v. Pub. Serv. Comm'n of Nevada, 909 F.2d 352 (9th Cir. 1990). “49 C.F.R. § 107.209 . In this case, the district court held that the Nevada regulations were not inconsistent with the HMTA and HMR.”
Colorado Pub. Utils. Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991). “The Secretary has delegated his authority to make initial administrative decisions about applications for Inconsistency Rulings and about applications for exemptions from preemption to the Director of the Office of Hazardous Materials Transportation, Research and Special…”
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