49 U.S.C. § 5125 — Preemption

Page 228 TITLE 49—TRANSPORTATION § 5124 tions described in section 5123(a) of title 49, United States Code (as amended by this section), that occur on or after the date of enactment of this Act [Aug. 10, 2005].’’ § 5124. Criminal penalty (a) IN GENERAL.—A person knowingly vio- lating section 5104(b) or willfully or recklessly violating this chapter or a regulation, order, special permit, or approval issued under this chapter shall be fined under title 18, imprisoned for not more than 5 years, or both; except that the maximum amount of imprisonment shall be 10 years in any case in which the violation in- volves the release of a hazardous material that results in death or bodily injury to any person. (b) KNOWING VIOLATIONS.—For purposes of this section— (1) a person acts knowingly when— (A) the person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable person acting in the cir- cumstances and exercising reasonable care would have that knowledge; and (2) knowledge of the existence of a statutory provision, or a regulation or a requirement re- quired by the Secretary, is not an element of an offense under this section. (c) WILLFUL VIOLATIONS.—For purposes of this section, a person acts willfully when— (1) the person has knowledge of the facts giv- ing rise to the violation; and (2) the person has knowledge that the con- duct was unlawful. (d) RECKLESS VIOLATIONS.—For purposes of this section, a person acts recklessly when the person displays a deliberate indifference or con- scious disregard to the consequences of that per- son’s conduct. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 781; Pub. L. 109–59, title VII, § 7121, Aug. 10, 2005, 119 Stat. 1906.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5124 ............ 49 App.:1809(b). Jan. 3, 1975, Pub. L. 93–633, § 110(b), 88 Stat. 2161; re- stated Nov. 16, 1990, Pub. L. 101–615, § 12(b), 104 Stat. 3259. Editorial Notes AMENDMENTS 2005—Pub. L. 109–59 reenacted section catchline with- out change and amended text generally. Prior to amendment, text read as follows: ‘‘A person knowingly violating section 5104(b) of this title or willfully vio- lating this chapter or a regulation prescribed or order issued under this chapter shall be fined under title 18, imprisoned for not more than 5 years, or both.’’ § 5125. Preemption (a) GENERAL.—Except as provided in sub- sections (b), (c), and (e) of this section and un- less authorized by another law of the United States, a requirement of a State, political sub- division of a State, or Indian tribe is preempted if— (1) complying with a requirement of the State, political subdivision, or tribe and a re- quirement of this chapter, a regulation pre- scribed under this chapter, or a hazardous ma- terials 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 trans- portation 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 un- less authorized by another law of the United States, a law, regulation, order, or other re- quirement 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 pre- scribed under this chapter, or a hazardous mate- rials transportation security regulation or di- rective issued by the Secretary of Homeland Se- curity, is preempted: (A) the designation, description, and classi- fication of hazardous material. (B) the packing, repacking, handling, label- ing, marking, and placarding of hazardous ma- terial. (C) the preparation, execution, and use of shipping documents related to hazardous ma- terial 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 transpor- tation incident reporting involving State or local emergency responders in the initial re- sponse to the incident. (E) the designing, manufacturing, fabri- cating, inspecting, marking, maintaining, re- conditioning, 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 pre- scribed 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 re- ferred to in paragraph (1) of this subsection, a State, political subdivision of a State, or Indian tribe may prescribe, issue, maintain, and en- force 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 stand- ard about any of those subjects that the Sec- retary prescribes. The effective date may not be earlier than 90 days after the Secretary pre- scribes 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 Page 229 TITLE 49—TRANSPORTATION § 5125 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) REGULA- TIONS.—(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 pre- scribed 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, limita- tion, or requirement established before the date a regulation is prescribed under section 5112(b) of this title does not have to comply with sec- tion 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 rout- ing designation, limitation, or requirement to continue in effect until a dispute related to the designation, limitation, or requirement is re- solved 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 re- quirement 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 pre- empted 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 no- tice of having received such application, or the Secretary shall publish a statement in the Fed- eral Register of the reason why the Secretary’s decision on the application is delayed, along with an estimate of the additional time nec- essary 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 appli- cation is filed, whichever occurs first. (2) After consulting with States, political sub- divisions of States, and Indian tribes, the Sec- retary shall prescribe regulations for carrying out paragraph (1) of this subsection. (3) Subsection (a) of this section does not pre- vent 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 jurisdic- tion 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 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 pro- tection as do requirements of this chapter and regulations prescribed under this chapter; and (2) is not an unreasonable burden on com- merce. (f) 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 en- forcement and planning, developing, and main- taining 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 re- quests. (g) APPLICATION OF EACH PREEMPTION STAND- ARD.—Each standard for preemption in sub- section (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 In- dian tribe. (h) NON-FEDERAL ENFORCEMENT STANDARDS.— This section does not apply to any procedure, penalty, required mental state, or other stand- ard utilized by a State, political subdivision of a State, or Indian tribe to enforce a requirement applicable to the transportation of hazardous material. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 781; Pub. L. 103–311, title I, §§ 107, 117(a)(2), 120(b), Aug. 26, 1994, 108 Stat. 1674, 1678, 1681; Pub. L. 103–429, § 6(6), Oct. 31, 1994, 108 Stat. 4378; Pub. L. 107–296, title XVII, § 1711(b), Nov. 25, 2002, 116 Stat. 2320; Pub. L. 109–59, title VII, §§ 7122, 7123(a), 7126, Aug. 10, 2005, 119 Stat. 1907, 1909; Pub. L. 110–244, title III, § 302(c), June 6, 2008, 122 Stat. 1618; Pub. L. 112–141, div. C, title III, §§ 33006(d), 33011, 33013(b), July 6, 2012, 126 Stat. 835, 838, 839.) HISTORICAL AND REVISION NOTES PUB. L. 103–272 Revised Section Source (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). Page 230 TITLE 49—TRANSPORTATION § 5126 HISTORICAL AND REVISION NOTES—CONTINUED PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 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 ‘‘rul- ing, provision’’ are omitted as surplus. In subsection (b)(3), the word ‘‘imposes’’ is sub- stituted for ‘‘assesses’’ for consistency. In subsection (c)(1), the words ‘‘the procedural re- quirements of’’ and ‘‘the substantive requirements of’’ are omitted as surplus. In subsection (c)(2)(A), the words ‘‘procedural re- quirements of the Federal standards established pursu- ant to’’ are omitted as surplus. In subsection (f), the words ‘‘may bring a civil action for judicial review’’ are substituted for ‘‘may seek judi- cial review . . . only by filing a petition’’ for consist- ency in the revised title. PUB. L. 103–429 This amends 49:5125(a) and (b)(1) to clarify the re- statement 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), in- serted ‘‘and other written hazardous materials trans- portation incident reporting involving State or local emergency responders in the initial response to the in- cident’’ before period at end. Subsec. (c)(1). Pub. L. 112–141, § 33013(b), inserted ‘‘, and is published in the Department’s hazardous ma- terials route registry under section 5112(c)’’ before pe- riod at end. Subsec. (f)(2). Pub. L. 112–141, § 33011, substituted ‘‘bi- ennially’’ for ‘‘, upon the Secretary’s request,’’. 2008—Subsec. (d)(1). Pub. L. 110–244, § 302(c)(1), sub- stituted ‘‘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, fab- ricating, marking, maintenance, reconditioning, re- pairing, or testing of a packaging or a container rep- resented, 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 Transpor- tation’’. 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 sec- tion 5119(b)’’ before period at end of first sentence. Subsec. (f). Pub. L. 109–59, § 7123(a), redesignated sub- sec. (g) as (f), realigned margins, and struck out head- ing 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), redesig- nated 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 regula- tion 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), sub- stituted ‘‘a packaging or a’’ for ‘‘a package or’’. Subsec. (d). Pub. L. 103–311, § 120(b), inserted after sec- ond 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 re- ceived 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 nec- essary 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 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways. 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, Do- mestic 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. § 5126. Relationship to other laws (a) CONTRACTS.—A person under contract with a department, agency, or instrumentality of the United States Government that transports haz- ardous material, or causes hazardous material to be transported, or designs, manufactures, fab- ricates, inspects, marks, maintains, recondi- tions, repairs, or tests a package, container, or packaging component that is represented as qualified for use in transporting hazardous ma- terial shall comply with this chapter, regula- tions prescribed and orders issued under this chapter, and all other requirements of the Gov- ernment, State and local governments, and In- dian tribes (except a requirement preempted by a law of the United States) in the same way and to the same extent that any person engaging in that transportation, designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing that is in or affects commerce must comply with the provi- sion, regulation, order, or requirement. (b) NONAPPLICATION.—This chapter does not apply to— (1) a pipeline subject to regulation under chapter 601 of this title; or