In a move that could portend poorly for state and local control, the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) recently determined that some of New York City’s hazardous materials (hazmat) transportation requirements don’t pass muster—at least for some vehicles. Does the ensuing confusion hurt or help hazardous materials shippers and carriers? You be the judge.
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The American Trucking Associations (ATA) objected to certain New York City Fire Department (FDNY) hazmat transportation regulations related to permits, inspections, and permit fees. The ATA called on PHMSA to preempt these regulations.
Permits and Inspections
PHMSA regulations prohibit unnecessary delays in the transportation of hazmat on public highways (49 CFR 177.800). The ATA claimed that FDNY’s permit and inspection requirements cause unnecessary delays because the process delays drivers whose fastest route is through the City.
According to PHMSA, state and local governments may apply annual inspection requirements on trucks based outside its jurisdiction only if it can conduct the equivalent of a “spot” inspection when the truck arrives in the jurisdiction. The state or local government may not have permit or inspection requirements that interrupt the hazmat transportation for several hours or longer.
PHMSA determined that FDNY’s inspection and permit requirements are okay for motor vehicles that are based within FDNY’s jurisdiction. However, with respect to motor vehicles based outside the City, FDNY’s inspection and permit requirements are not flexible or accommodating enough to avoid unnecessary delays. According to PHMSA, FDNY’s unit that performs inspections and issues permits is only open until 3 p.m. on weekdays. PHMSA claims that the FDNY has not shown that its program has the flexibility to provide spot or roadside inspections that would avoid unnecessary delays when faced with an unannounced arrival of a hazmat truck based outside its jurisdiction.
Upshot. If your business is based in New York City, you are subject to FDNY’s hazmat inspection and permit requirements. You should be able to plan and schedule these inspections without incurring any unnecessary delays. If on occasion you do, it’s just a part of doing business. If, however, your business is based outside of the City, when it comes to FDNY’s hazmat permit and inspection requirements, you can “fuhgeddaboudit.”
Permit Fees
PHMSA determined that FDNY’s permit flat fee of $210 for each tractor and trailer it inspects is both unfair and does not pass the “used for” test and preempted the entire permit fee requirement for everyone.
Although state and local governments are allowed to have fees for hazardous materials transportation, there has to be a relationship between fees paid and the benefits received by intrastate and interstate carriers. Since the FDNY does not maintain statistics on whether carriers are engaged in intra- or interstate commerce, there is no evidence that the flat fee confers any benefit to permitholders.
In addition, the revenue the FDNY receives for its hazmat permit program is tossed into the City’s general fund, which is OK if it can show that the permit funds are used for purposes related to hazardous materials transportation. In PHMSA’s eyes, it can’t.
Upshot. Everyone can “fuhgeddaboudit” when it comes to hazmat permit fees in the Big Apple. We’re sure, though, that the FDNY will do some regulation magic to remedy that!