[Federal Register Volume 63, Number 234 (Monday, December 7, 1998)]
[Notices]
[Pages 67506-67511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32382]


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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