Pipeline and Hazardous Materials Safety Administration

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
Preemption Determination No. PD-14(R) (Docket No. PDA-15(R))

Houston, Texas, Fire Code Requirements on the Storage,
Transportation, and Handling of Hazardous Materials

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of administrative determination of preemption by RSPA's
Associate Administrator for Hazardous Materials Safety.

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APPLICANT: Association of Waste Hazardous Materials Transporters
(AWHMT).

LOCAL LAWS AFFECTED: Houston, Texas, Ordinance No. 96-1249 adopting the
1994 Uniform Fire Code with certain modifications.

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials
Regulations (HMR), 40 CFR Parts 171-180.

MODES AFFECTED: Highway.

SUMMARY: The Houston Fire Code contains express exceptions for
flammable and combustible liquids and other hazardous materials when
being transported ``in accordance with'' DOT's regulations. For that
reason, the following requirements in the Houston Fire Code do not
apply, and are not preempted by Federal hazardous material
transportation law, when the transportation of flammable and
combustible liquids is subject to the requirements in the HMR: (1)
permits for the storage, handling, transportation, dispensing, mixing,
blending or using hazardous materials, including the definition of
``hazardous materials'' as part of these permit requirements; (2) the
design, construction, or operation of tank vehicles used for flammable
or combustible liquids; (3) physical bonding during loading of the
vehicle; (4) unattended parking of the vehicle; and (5) the service
rating of the fire extinguisher required to be carried on the vehicle.

RSPA denies the request in AWHMT's May 1997 comments to consider a
provision limiting the time for unloading flammable or combustible
liquids from rail tank cars after delivery, because that requirement is
unrelated to the issues raised in AWHMT's application.

FOR FURTHER INFORMATION CONTACT:

[[Page 67507]]

Frazer C. Hilder, Office of the Chief Counsel, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
Street, SW, Washington, DC 20590-0001, telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Application and Public Notices

In February 1996, AWHMT applied for an administrative determination
that Federal hazardous material transportation law preempts certain
provisions of the Fire Code of the City of Houston, Texas, as adopted
March 15, 1995, in Ordinance No. 95-279. At that time, the Houston Fire
Code consisted of the Uniform Fire Code (1991 edition) as modified in a
``Conversion Document.''

In its application, AWHMT stated that the challenged provisions
were being applied to tank vehicles that picked up or delivered
hazardous materials within the City of Houston (City) and involved: (1)
inspections and fees required to obtain an annual permit to store,
handle, transport, dispense or use hazardous materials (including
flammable and combustible liquids) in excess of specified amounts; (2)
the definition of ``hazardous materials''; and (3) additional
requirements applicable to tank vehicles used for flammable and
combustible liquids. AWHMT separately provided copies of citations
issued to operators of cargo tank motor vehicles for loading or
unloading corrosive materials within the City without the permit
required by the Houston Fire Code.

The test of AWHMT's application was published in the Federal
Register on March 20, 1996, and interested parties were invited to
submit comments. 61 FR 11463. Comments were submitted by the Hazardous
Materials Advisory Council (HMAC), the National Tank Truck Carriers,
Inc. (NTTC), the Texas Tank Truck Carriers Association, Inc. (TTTC),
and the City. Rebuttal comments were submitted by AWHMT. In its
comments, the City stated that the Houston Fire Department would be
submitting the 1994 edition of the Uniform Fire Code to the Houston
City Council for adoption. According to the City, the revised version
of the Houston Fire Code would (1) make clear that the permit
requirements did not apply to over-the-road (or ``off-site'')
transportation of hazardous materials, and (2) modify some of the
requirements applicable to tank vehicles used for flammable or
combustible liquids.

In February 1997, the City provided a certified copy of Ordinance
No. 96-1249, approved by the Houston City Council on November 26, 1996,
which (among other matters) amended Ordinance No. 95-279 to adopt the
1994 edition of the Uniform Fire Code together with certain ``City of
Houston Amendments.'' Thereafter, RSPA published a notice in the
Federal Register reopening the comment period on AWHMT's application so
that interested parties could provide further information on the
current status of the challenged provisions in the Houston Fire Code,
and how those provisions are being applied or enforced in light of the
exceptions in the Houston Fire Code for ``[t]ransportation of flammable
and combustible liquids when in accordance with DOT regulations,'' and
``[o]ff-site hazardous materials transportation in accordance with DOT
requirements.'' 62 FR 17281, 17282 (April 9, 1997).

In the April 1997 notice, RSPA also invited interested parties to
comment on whether AWHMT's application raised issues concerning the
applicability of the HMR that should be considered (in addition to or
instead of action on AWHMT's application) in the rulemaking under
Docket No. HM-223, ``Applicability of the Hazardous Materials
Regulations to Loading, Unloading and Storage.'' See RSPA's Advance
Notice of Proposed Rulemaking, 61 FR 39522 (July 29, 1996), and Notices
of Meeting, 61 FR 49723 (Sept. 23, 1996) and 61 FR 53483 (Oct. 11,
1996). Further comments were submitted by the City, AWHMT, and TTTC.
The City and AWHMT also submitted rebuttal comments.

Althought the City has asked RSPA to postpone consideration of
AWHMT's application pending issuance of a final rule in HN-223, there
is no reason for deferral. The circumstances here are not comparable to
those in PDs 8(R)-11(R), California and Los Angeles County Requirements
Applicable to On-site Handling and Transportation of Hazardous
Materials, 60 FR 8774 (Feb. 15, 1995), where RSPA is deferring
consideration of petitions for reconsideration. Those proceedings,
which involve requirements in the Uniform Fire Code (as adopted by Los
Angeles County), raise issues of the applicability of the HMR as
applied to the ``on-site'' handling and transportation of hazardous
materials. In contrast, no party here disputes that the HMR apply to
carriers who pick up or deliver hazardous materials within the City for
``off-site'' transportation. The main issue in this case is whether the
Houston Fire Code applies to those carriers and their vehicles--not
whether the HMR apply.

AWHMT, the City, and other parties who submitted comments in this
proceeding are encouraged to participate fully in HM-223 because of the
relationship between the applicability of the HMR and the Uniform Fire
Code to transportation-related activities involving hazardous
materials.

B. The Challenged Houston Fire Code Requirements

At its outset, the 1994 Uniform Fire Code adopted in the City's
Ordinance No. 96-1249 states that it:

prescribes regulations consistent with nationally recognized good
practice for the safeguarding to a reasonable degree of life and
property from the hazards of fire and explosion arising from the
storage, handling and use of hazardous substances, materials and
devices, and from conditions hazardous to life and property in the
use or occupancy of buildings and premises.

Sec. 101.2 (``Scope''). The Uniform Fire Code includes ``general
provisions for safety'' (e.g., access and water supply, fire protection
equipment, emergency exists), as well as more specific requirements on
``special occupancy uses'' (e.g., places of assembly and shopping
malls, temporary structures, dry cleaners and lumber yards), ``special
processes'' (e.g., welding, organic coatings), and ``special
equipment'' (e.g., oil-burning equipment, drying ovens, refrigeration).
A separate part of the Uniform Fire Code covers ``special subjects,''
including flammable and combustible liquids (in Article 79) and
hazardous materials (in Article 80).

Within both Articles 79 and 80 (as well as Article 1) are
requirements for permits, and Article 79 contains additional provisions
concerning ``tank vehicles and vehicle operations'' relating to
flammable and combustible liquids. Because the categories of
``hazardous materials'' include flammable and combustible liquids, both
Articles 79 and 80 appear to apply to flammable and combustible
liquids. These articles of the Uniform Fire Code also contain several
exceptions, including the following in Sec. 7901.1.1:
Transportation of flammable and combustible liquids when in
accordance with DOT regulations on file with and approved by DOT.

And in Sec. 8001.1.1:
Off-site hazardous materials transportation in accordance with DOT
requirements.

To the above-quoted language in Sec. 8001.1.1, the City has added
that the exception also applies to ``other activities for which local
regulation is preempted by federal or state law.'' In the following
sections containing the

[[Page 67508]]

permit requirements challenged by AWHMT, the City of Houston Amendments
also state that, ``A permit is not required for any activity where the
requirement of local permits is preempted by federal or state law'':
Secs. 105.8.f.3, 108.5.h.1, 7901.3.1, 8001.3.1.

The provisions in the Houston Fire Code covered by AWHMT's
application relate to the following:

Permits. A permit is required to:
``Store, handle, transport, dispense, mix, blend or use
flammable or combustible liquids'' in excess of certain quantities
(Sec. 7901.3.1) and to ``. . . operate tank vehicles . . . and
similar facilities where flammable and combustible liquids are
producted, processed, transported, stored, dispensed or used'' (Sec.
105.8.f.3.3).

``Store, transport on site, dispense, use or handle hazardous
materials'' in excess of certain specified amounts (Sec. 105.8.h.1;
see also Sec. 8001.3.1 [``store, dispense, use or handle hazardous
material'']).

Before a permit is issued, the fire chief ``is authorized, but not
required, to inspect and approve the receptacles, vehicles, buildings,
devices, premises, storage spaces or areas to be used.'' Sec. 105.4.
The City charges a $175 fee ``for the permits and inspections''
applicable to flammable and combustible liquids and other hazardous
materials, and additional fees for an inspection performed ``outside of
regular hours.'' Secs. 106.1, 106.3.3, Table 106-A.

``Hazardous materials''. The classification and categories of
``hazardous materials,'' as regulated by the Houston Fire Code, are set
forth in Appendix VI-A, which states that these categories are based on
the regulations of the Department of Labor's Occupational Safety and
Health Administration (OSHA) in Title 29 of the CFR. See also Secs. 209
and 8001.1.2. The only relevance of the term ``hazardous materials'' to
this proceeding appears to be its use in the permit requirement in
Secs. 105.8h.1 and 8001.3.1.

Tank Vehicles. Among the requirements in Article 79 specifically
applicable to tank vehicles used for flammable or combustible liquids
are the following:

Sec. 7904.6.1. Tank vehicles shall be designed in accordance
with U.F.C. Standard 79.4 and Section 7904.6.

Sec. 7904.6.3.4. Bonding shall be in accordance with Section
7904.5.2.3 [which requires a metallic bond between the truck and the
fill stem or some part of the rack in electrical contact with the
fill stem, in order ``to prevent the accumulation of static charges
during truck-filling operations * * * through open domes * * *''].

Sec. 7904.6.5.2.1. Tank vehicles shall not be left unattended at
any time on residential streets, or within 500 feet (152.4 m) of a
residential area, apartment, or hotel complex, educational facility,
hospital or care facility. Tank vehicles shall not be left
unattended at any other place that would, in the opinion of the
chief, present an extreme life hazard.

Sec. 7904.6.7. Tank vehicles shall be equipped with a fire
extinguisher having a minimum rating of 2-A, 20-B:C. During
unloading of the tank vehicle, the fire extinguisher shall be out of
the carrying device on the vehicle and shall be 15 feet (4572 mm) or
more from the unloading valves.

In adopting the 1994 edition of the Uniform Fire Code, the City reduced
the number of fire extinguishers required on tank vehicles from two (in
former Sec. 79.1207) to one; it also eliminated a provision challenged
by AWHMT, requiring ``NO SMOKING'' and ``FLAMMABLE'' signs and other
identification on tank vehicles (former Sec. 79.1203(n)).

In its May 23, 1997 comments, AWHMT asked RSPA to consider an
additional requirement that rail tank cars containing flammable or
combustible liquids ``shall be unloaded as soon as possible after
arrival at point of delivery'' and within 24 hours of being connected
for transfer operations, unless otherwise approved by the fire chief.
Sec. 7904.5.4.3. AWHMT noted that the same tank car unloading
requirement in the Uniform Fire Code, as adopted by Los Angeles County,
was found to be preempted in PD-9(R), Los Angeles County Requirements
Applicable to the Transportation and Handling of Hazardous Materials on
Private Property, 60 FR 8774, 8783, 8788 (Feb. 15, 1995). Petitions for
reconsideration of that decision and the other determinations made in
PDs 8(R)-11(R) are being deferred pending RSPA's consideration of the
scope of the HMR in HM-223.

Unlike the challenge to the Los Angeles County requirements,
however, neither AWHMT nor any other party has submitted any
information as to how Sec. 7904.5.4.3 is being applied or whether there
are practical problems in complying with the 24-hour unloading
requirement. AWHMT itself acknowledged that the tank car unloading
requirement in Sec. 7904.5.4.3 applies to the recipient or consignee of
a shipment of hazardous materials in a tank car and, in this respect,
differs from the other ``requirements imposed on carriers and equipment
under the care, control and custody of carriers'' involved in AWHMT's
application.\1\

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\1\ The City also points out that the current tank car unloading
requirement (in the 1994 Uniform Fire Code) is unchanged from the
requirement in Section 79.809(c) of the 1991 Uniform Fire Code and
could have been raised in AWHMT's application.

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RSPA believes that the City and other parties who submitted
comments understood, as RSPA did, that AWHMT's application challenged
requirements in the Houston Fire Code only as applied to motor carriers
that pick up or deliver hazardous materials within the City. Indeed,
NTTC objected to ``the City's permit system [because] it involves only
cargo tank vehicles.'' In the absence of additional information, RSPA
cannot add to its prior discussion in PDs 8(R)-11(R) on this
requirement, and RSPA is denying AWHMT's belated request to consider
the 24-hour tank car unloading requirement because that requirement is
unrelated to the issues raised in AWHMT's application.

C. The HMR and Federal Preemption

Federal hazardous material transportation law and the MHR apply to
the transportation of hazardous materials in commerce.
``Transportation'' is defined as ``the movement of property and
loading, unloading, or storage incidental to the movement.'' 49 U.S.C.
5102(12). With respect to motor carriers, ground transportation is ``in
commerce'' when it takes place ``on, across, or along a public road,''
and the HMR ``apply to the ground transportation of hazardous material
on, across, or along a public road, including loading, unloading and
storage incidental to that transportation.'' PDs 8(R)-11(R), 60 FR at
8777.\2\ In the terminology used in PDs 8 (R)-11(R), the HMR
unquestionably apply to ``off-site'' transportation; the issues that
RSPA hopes to resolve in HM-223 concern the scope of ``transportation''
and the ``on-site'' activities to which the HMR apply.

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\2\ As of October 1, 1998, the HMR apply to all transportation
of hazardous materials by motor vehicle. 49 CFR 171.1(a)(1).
Previously, intrastate motor carriers of hazardous materials other
than hazardous wastes, hazardous substances, marine pollutants, and
flammable cryogenic liquids in portable tanks and cargo tanks were
regulated only by similar requirements in State or local law (and
Texas has adopted the HMR as State law). Id.

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The HMR do not contain requirements for permits, and regulations
have not yet been issued by DOT to implement the provisions of 49
U.S.C. 5109 regarding Federal motor carrier safety permits. In Part 173
of 49 CFR, the HMR contain specific rules for classifying hazardous
materials (in some cases differently than OSHA), and, at 49 CFR
172.101, there is a lengthy table listing the materials designated as
hazardous for the purpose of transportation.

[[Page 67509]]

The HMR include specifications for the construction of cargo tank
motor vehicles used to transport flammable liquids, see 49 CFR 178.345-
178.348, but authorize the use of nonspecification cargo tank motor
vehicles for the domestic highway transportation of combustible
liquids. 49 CFR 173.150(f). The HMR contain specific requirements for
physical bonding during the transfer of hazardous materials to or from
a cargo tank. 49 CFR 177.837(c). The HMR incorporate by reference
requirements in the Federal Motor Carrier Safety Regulations concerning
unattended parking of a motor vehicle containing hazardous materials,
49 CFR 397.5(c), and fire extinguishers on a power unit used to
transport hazardous materials. 49 CFR 393.95(a)(2)(i).\3\

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\3\ As provided in 49 CFR 177.804, motor carriers of hazardous
materials ``and other persons subject to this subpart shall comply
with 49 CFR parts 390 through 397 (excluding Secs. 397.3 and 397.9)
to the extent those regulations apply.''

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Strong Federal preemption is a central feature of Federal hazardous
material transportation law, contained in 49 U.S.C. 5101 et seq. (Which
codified and replaced the former Hazardous Materials Transportation Act
(HMTA), Pub. L. 93-633, 88 Stat. 2156, amended by Pub. L. 101-615, 104
Stat. 3244). In considering the HMTA, the Senate Commerce Committee
``endorse[d] the principle of preemption in order to preclude a
multiplicity of State and local regulations and the potential for
varying and conflicting regulations in the area of hazardous materials
transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
When it amended the HMTA in 1990, Congress specifically found that:

(3) many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,

(4) because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,

(5) in order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.

Pub. L. 101-615 Sec. 2, 104 Stat. 3244. A Federal Court of Appeals has
found that uniformity was the ``linchpin'' in the design of the HMTA,
including the 1990 amendments which expanded the preemption provisions.
Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.
1991).

Section 5125 of Title 49 U.S.C. contains several preemption
provisions that are relevant to AWHMT's application. Subsection (a)
provides that--in the absence of a waiver of preemption by DOT under
Sec. 5125(e) or specific authority in another Federal law--a
requirement of a State, political subdivision of a State, or Indian
tribe is preempted if:

(1) complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) the requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to the
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle''
criteria which RSPA had applied in issuing inconsistency rulings prior
to 1990, under the original preemption provision in the HMTA. The dual
compliance and obstacle criteria are based on U.S. Supreme Court
decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941);
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray
v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).

Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal
requirement about any of the following subjects, that is not
``substantively the same as'' a provision of Federal hazardous material
transportation law or a regulation prescribed under that law, is
preempted unless it is authorized by another Federal law or DOT grants
a waiver of preemption:

(A) the designation, description, and classification of
hazardous material.
(B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(C) the preparation, execution, and use of shipping documents
related to hazardous material 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.
(E) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.

Subsection (g)(1) provides that 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 relating to transporting
hazardous material, including enforcement and planning, developing,
and maintaining a capability for emergency response.

Under 49 U.S.C. 5125(d)(1), any directly affected person may apply
to the Secretary of Transportation for a determination whether a State,
political subdivision or Indian tribe requirement is preempted. The
Secretary of Transportation has delegated to RSPA the authority to make
determinations of preemption, except for those concerning highway
routing which have been delegated to FHWA. 49 CFR 1.53(b). Under RSPA's
regulations, preemption determinations are issued by RSPA's Associate
Administrator for Hazardous Materials Safety. 49 CFR 107.209(a).

Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register.
Following the receipt and consideration of written comments, RSPA
publishes its determination in the Federal Register. See 49 CFR
107.209(d). A short period of time is allowed for filing petitions for
reconsideration. 49 CFR 107.211. Any party to the proceeding may seek
judicial review in a Federal district court. 49 U.S.C. 5125(f).

Preemption determinations do not address issues of preemption
arising under the Commerce Clause of the Constitution or under statutes
other than the Federal hazardous material transportation law unless it
is necessary to do so in order to determine whether a requirement is
authorized by another Federal law. A State, local or Indian tribe
requirement is not authorized by another Federal law merely because it
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n
v. Harmon, above, 951 F.2d at 1581 n.10.

In making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policy set forth in Executive Order No.
12612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section
4(a) of the Executive Order authorizes preemption of State laws only
when a statute contains an express preemption provision, there is other
firm and palpable evidence of Congressional intent to preempt, or the
exercise of State authority directly conflicts with the exercise of
Federal authority. Section 5125 contains express preemption provisions,
which RSPA has implemented through its regulations.

[[Page 67510]]

II. Discussion

The focus of the comments in this proceeding has been the
provisions in the Houston Fire Code for a permit--including the related
inspection and fee requirements--and their application to ``off-site''
transportation. RSPA has repeatedly found that a State or local permit
requirement is not per se preempted; rather, ``a permit itself is
inextricably tied to what is required in order to get it.'' IR-2, 44 FR
at 75570-71; see also IR-3, Boston Rules Governing Transportation of
Certain Hazardous Materials by Highway Within the City, 46 FR 18918,
18923 (Mar. 23, 1981), action on appeal, 47 FR 18457 (Apr. 29, 1982);
IR-20, Triborough Bridge and Tunnel Authority Regulations Governing
Transportation or Radioactive Materials and Explosives, 52 FR 24396,
24397 (June 30, 1987); and IR-28, City of San Jose, California,
Restrictions on Storage of Hazardous Materials, 55 FR 8884, 8890 (Mar.
8, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9, 1992).

According to the initial comments submitted by the City and TTTC,
until the effective date of Ordinance No. 95-279, Houston had a simple,
straightforward exception: the City did not apply its fire code
requirements for permits or inspections to any tank truck that was
operated within the City for less than 30 days. Beginning in January
1996, however, TTTC noticed a significant increase in citations issued
to tank vehicles for failing to have the hazardous materials permit
required by Section 4.108 of the Houston Fire Code. According to TTTC,
the City was applying the Fire Code adopted in Ordinance No. 95-279 to
require a permit for every tank vehicle operating within the City that
was ``not on the hazardous material route or one of the main arteries
traveling through the Houston area, such as Highway 59.''

Although the exception for ``off-site hazardous materials
transportation in accordance with DOT requirements'' was contained in
former Sec. 80.101(a) of the 1991 edition of the Uniform Fire Code,
TTTC states that the City was interpreting the term ``off-site'' as
applying only to the designated hazardous materials routes and main
arteries through the City. Because the pick-up or delivery of any
material presumably takes place at a location off the designated
hazardous materials routes and main arteries, this interpretation of
``off-site'' meant that the City was applying its Fire Code
requirements to any vehicle that picked up or delivered hazardous
materials within the City--or stopped at a point off the designated
hazardous materials routes and main arteries for rest, fuel, food, or
other purposes. TTTC states that the term ``off-site'' should apply to
``vehicles making deliveries over-the-road'' and that these off-site
movements should be completely exempt from the permit and inspection
requirements under the Houston Fire Code adopted in Ordinance 96-1249.
TTTC contends that the Houston Fire Code should apply only to ``on-
site'' transportation, or when ``a vehicle is used exclusively on the
premises of a facility'' (emphasis in original).

TTTC states that, following AWHMT's application, the City appears
to have stopped applying its permit and inspection requirements to tank
vehicles that simply picked up or delivered hazardous materials within
the City. AWHMT states that it has no evidence ``that the City is
continuing to enforce its permit and other hazardous materials
requirements on motor carriers,'' although it believes that the
withholding of enforcement may be ``contingent on the outcome of this
proceeding.''

In the conclusion of its initial comments, the City stated that the
``express exceptions for DOT-regulated activities'' in Secs. 7901.1.1
and 8001.1.1 mean that ``the Fire Code should not be read as applicable
to over-the-road (off-site) transportation * * *'' The City elaborated
that ``permits will not be required for DOT-regulated activities''; the
``hazardous materials classifications [in the Houston Fire Code] * * *
are not applicable to activities regulated by the DOT''; and that
provisions in the Fire Code setting design and construction
requirements for tank vehicles apply only to ``off-road (or on-site)
transportation of flammable or combustible liquids not regulated by
DOT.''

In its more recent comments, the City now confirms that it does not
require permits, apply its definition of ``hazardous materials,'' or
apply its tank design requirements to vehicles ``meeting DOT
requirements.'' (The City also states that its ``30-calendar-day
requirement is no longer in effect.'') This clearly appears to be the
proper interpretation of the exceptions in Secs. 7901.1.1 and 8001.1.1,
which apply to the entire contents of Articles 79 and 80--not just the
permit requirements.

Although the City states that the provisions in Article 79
concerning physical bonding, unattended parking, and fire extinguishers
``are not affected by the [e]xceptions'' in Secs. 7901.1.1 and
8001.1.1, that conclusion is in direct conflict with the plain language
of these exceptions. It is not possible to read these exceptions as
applying to some, but not all, of the Houston Fire Code requirements on
flammable and combustible liquids (Article 79) and hazardous materials
(Article 80). If, because of these exceptions, the permit and
inspection requirements in these articles do not apply to a cargo tank
motor vehicle that is subject to regulation under the HMR, all the
other requirements in these articles (including those on physical
bonding, unattended parking, and fire extinguishers) also cannot apply.
In the absence of more detailed comments on these other requirements--
and specific information that the City is actually enforcing these
requirements against carriers that the City does not require to obtain
permits or undergo inspections--RSPA must assume that the City applies
the exceptions in Secs. 7901.1.1 and 8001.1.1 in a consistent
manner.\4\

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\4\ As a general matter, an inconsistent or erroneous
interpretation of a non-Federal regulation should be addressed in
the appropriate State or local forum, because ``isolated instances
of improper enforcement (e.g., misinterpretation of regulations) do
not render such provisions inconsistent'' with Federal hazardous
material transportation law. IR-31, Louisiana Statutes and
Regulations on Hazardous Materials Transportation, 55 FR 25572,
25584 (June 21, 1990), appeal dismissed as moot, 57 FR 41165 (Sept.
9, 1992), quoted in PD-4 (R), California Requirements Applicable to
Cargo Tanks Transporting Flammable and Combustible Liquids, 58 FR
48940 (Sept. 20, 1993), decision on reconsideration, 60 FR 8800
(Feb. 15, 1995).

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Because the City now correctly equates the exceptions in the
Houston Fire Code for vehicles ``meeting DOT requirements'' with
``subject to regulation by DOT'' under the HMR, AWHMT's challenges to
these requirements have become moot. Federal hazardous material
transportation law does not preempt non-Federal requirements that do
not apply to ``transportation in commerce.'' RSPA agrees with the
City's statements that, when it applies the Houston Fire Code to
``motor vehicles that are transporting hazardous materials exclusively
on private property,'' its local provisions are not preempted because
``transportation that takes place entirely on private property is not
transportation ``in commerce' '' Quoting from PD-9(R), 60 FR at 8785;
see also PD-10(R), 60 FR at 8792.\5\

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\5\ Certain activities that take place on private property,
including the ``loading, unloading, or storage [of hazardous
material] incidental to the movement'' of that material in commerce,
fall within the scope of ``transportation'' in commerce 49 U.S.C.
5102(12), and are subject to regulation under the HMR.See PD-9(R),
60 FR at 8788, 8789 (a 24-hour limit for unloading a tank car is
preempted because it is not substantively the same as Federal
requirements, and a prohibition against unloading hazardous
materials in accordance with a DOT exemption creates an obstacle to
accomplishing and carry out the HMR). The City is free to adopt the
HMR's requirements as local regulations and apply those consistent
requirements to the ``off-site'' transportation of hazardous
materials, including flammable and combustible liquids.

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[[Page 67511]]

III. Ruling

Because the following Houston Fire Code sections do not apply when
the transportation of flammable and combustible liquids is subject to
regulation under the HMR, these requirements are not preempted by
Federal hazardous material transportation law:

105.4, 105.8.f.3, 105.h.1, 106.1, 7901.3.1, and 8001.3.1., concerning
permits and inspections;
209 and 8001.1.2, concerning the definition of ``hazardous materials''
(as relevant to the permit requirements in Secs. 105.8.f.3 and
8001.3.1);
7904.6.1, concerning requirements for the design and construction of
tank vehicles;
Sec. 7904.6.3.4, concerning physical bonding during truck-filling
operations to prevent the accumulation of static charges;
Sec. 7904.6.5.2.1, prohibiting unattended parking of tank vehicles used
for flammable or combustible liquids at specific locations or ``at any
other place that would, in the opinion of the chief, present an extreme
life hazard''; and
Sec. 7904.6.7, requiring a fire extinguisher with a minimum rating of
2-A, 20-B:C on board a tank vehicle used for flammable or combustible
liquids.

IV. Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by
this decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. Any party to this
proceeding may seek review of RSPA's decision ``in an appropriate
district court of the United States . . . not later than 60 days after
the decision becomes final.'' 49 U.S.C. 5125(f).

This decision will become RSPA's final decision 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5125(f).

If a petition for reconsideration of this decision is filed within
20 days of publication in the Federal Register, the action by RSPA's
Associate Administrator for Hazardous Materials Safety on the petition
for reconsideration will be RSPA's final decision. 40 CFR 107.211(d).

Issued in Washington, DC, on November 30, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 98-32382 Filed 12-4-98; 8:45 am]
BILLING CODE 4910-60-P