Application by Association of Waste Hazardous Materials Transporters for a Preemption Determination as to Houston, Texas, Requirements on the Storage, Use, Dispensing and Handling of Hazardous Materials

[[Page 11463]]

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. PDA-15(R)]

Application by Association of Waste Hazardous Materials

Transporters for a Preemption Determination as to Houston, Texas,

Requirements on the Storage, Use, Dispensing and Handling of Hazardous

Materials

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

ACTION: Public Notice and Invitation to Comment.

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SUMMARY: The Association of Waste Hazardous Materials Transporters

(AWHMT) has applied for an administrative determination whether Federal

hazardous materials transportation law preempts certain requirements of

the City of Houston, Texas, relating to the storage, use, dispensing,

and handling of hazardous materials.

DATES: Comments received on or before May 6, 1996, and rebuttal

comments received on or before June 18, 1996, will be considered before

an administrative ruling is issued by RSPA's Associate Administrator

for Hazardous Materials Safety. Rebuttal comments may discuss only

those issues raised by comments received during the initial comment

period and may not discuss new issues.

ADDRESSES: The application and any comments received may be reviewed in

the Dockets Unit, Research and Special Programs Administration, Room

8421, Nassif Building, 400 Seventh Street, SW, Washington, DC 20590-

0001 (Tel. No. 202-366-4453). Comments and rebuttal comments on the

application may be submitted to the Dockets Unit at the above address,

and should include the Docket Number (PDA-15(R)). Three copies of each

should be submitted. In addition, a copy of each comment and each

rebuttal comment must also be sent to (1) Mr. Charles Dickhut,

Chairman, Association of Waste Hazardous Materials Transporters, 2200

Mill Road, Alexandria, VA 22314, and (2) Mr. Gene L. Locke, City

Attorney, City of Houston Legal Department, P.O. Box 1562, Houston, TX

77251. A certification that a copy has been sent to these persons must

also be included with the comment. (The following format is suggested:

``I hereby certify that copies of this comment have been sent to

Messrs. Dickhut and Locke at the addresses specified in the Federal

Register.'')

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. AWHMT'S Application for a Preemption Determination

AWHMT has applied for a determination that the Federal hazardous

material transportation law preempts certain provisions of the Fire

Code of the City of Houston, Texas (Houston Fire Code), as adopted May

15, 1995, in Ordinance No. 95-279. The challenged provisions concern

the storage, use, dispensing and handling of hazardous materials. The

Houston Fire Code consists of the Uniform Fire Code (1991 edition), as

modified by a ``Conversion Document.''

The parts of the Houston Fire Code challenged by AWHMT are:

sections in Article 4 concerning inspections and fees for obtaining a

permit; sections in Article 79 containing requirements for tank

vehicles used for flammable and combustible liquids; and the definition

of ``hazardous materials'' in Articles 9 and 80. In its application,

AWHMT states that one of its members has been cited for violations of

the Houston Fire Code. AWHMT has separately provided copies of

additional citations written to its members for loading or unloading

corrosive hazardous materials without a permit, memoranda of the Texas

Tank Truck Carriers Association concerning enforcement of the permit

requirement, and the ``Conversion Document.'' Copies of these materials

have been placed in the docket.

Inspections and fees. Sec. 4.104 authorizes the fire chief to

inspect and approve vehicles before a permit is issued, and Sec. 4.109

sets annual fees for the permit and inspection at amounts ranging from

$75 to $250, depending on the hazardous material and activity involved.

According to AWHMT, inspections are scheduled only after the submission

of an application for a permit and conducted only between 7:00 a.m. and

8:00 a.m., Monday through Friday. AWHMT states it is uncertain whether

multiple fees must be paid when a vehicle transports more than one

hazardous material, or a hazardous material meeting more than one

permit requirement.

Permit requirements are contained in (at least) Articles 4, 79 and

80. Sec. 4.108 makes it unlawful for any person to engage in numerous

specified activities without having a permit, including (1) operating a

tank vehicle used for the transportation of flammable or combustible

liquids, and (2) storing, transporting on-site, dispensing, using or

handling hazardous materials in excess of limited amounts. Permits to

store, dispense, use or handle flammable and combustible liquids, and

hazardous materials in general, in excess of the quantities specified

in Sec. 4.108, are also required by Secs. 79.103(a) and 80.103(a),

respectively. However, excepted from the scope of Articles 79 and 80

are the transportation of flammable and combustible liquids ``when in

accordance with DOT regulations'' and ``[o]ff-site hazardous materials

transportation in accordance with DOT requirements.'' Secs. 79.101(a),

80.101(a) (exceptions).

Tank vehicles. Tank vehicles are defined in Sec. 9.110 to include a

vehicle, other than a rail car or boat, with a cargo tank as an

integral part and used for transporting flammable or combustible

liquids, liquefied petroleum gas, or hazardous chemicals. However, the

sections in Article 79 challenged by AWHMT relate only to tank vehicles

used for flammable and combustible liquids:

--79.1201--providing that tank vehicles used for flammable and

combustible liquids must be designed, constructed, equipped and

maintained in accordance with Uniform Fire Code Standard No. 79-4.

--79.1203(d)--requiring ``bonding'' in accordance with Sec.

79.808(a)3. The latter section concerns static protection at tank

vehicle loading racks and requires a ``metallic bond wire permanently

electrically connected to the fill stem or to some part of the rack

structure in electrical contact with the fill stem'' to prevent the

accumulation of static charges.

--79.1203(n)--requiring the following signs and identification on

tank vehicles: (1) a serial number issued by the fire chief painted on

the vehicle; (2) ``FLAMMABLE'' signs on each side and the rear, and

``NO SMOKING'' signs at draw-off valves, at least four inches high and

in a color that contrasts with the background; and (3) the company name

or corporate symbol of the tank vehicle's owner or operator permanently

displayed in a conspicuous location. AWHMT's application states that a

``permit sticker'' must also be placed immediately below the fire

department's serial number. AWHMT also states that the exception in

Sec. 79.1203(n), for ``[s]ignage and identification that complies with

U.S. Department of Transportation regulations,'' is interpreted by the

fire department only as permitting DOT-required placards to be

substituted for the ``FLAMMABLE'' markings.

[[Page 11464]]

--79.1205(b)--prohibiting leaving tank vehicles unattended at any

time on residential streets, or within 500 feet of a residential area,

apartment or hotel complex, educational facility, hospital, or health

care facility, or, ``at any other place that would, in the opinion of

the [fire] chief, present an extreme life hazard.''

--79.1207--requiring tank vehicles to be equipped with at least two

fire extinguishers having a minimum rating of 2-A, 20-B:C, located as

far apart on the vehicle as possible.

Definition of hazardous materials. Sec. 9.110 defines ``hazardous

materials'' as chemicals or substances that are physical or health

hazards ``as defined and classified in Article 80 whether the materials

are in usable or waste condition.'' Sec. 80.101(b) classifies as

``hazardous materials'' the chemicals or substances ``defined as such

in Article 9. See Appendix VI-A for the classification of hazard

categories and hazard evaluations.'' AWHMT states that the hazard

classification in Appendix VI-A is based on rules of the U.S.

Department of Labor concerning occupational health and safety, rather

than the Hazardous Materials Regulations, 49 CFR Parts 171-180.

The text of AWHMT's application and a list of the attachments are

set forth in Appendix A. The attachments (which include extracts from

the Houston Fire Code) and Houston's ``Conversion Document'' may be

examined at RSPA's Dockets Unit, and copies of these items will be

provided at no cost upon request to the RSPA's Dockets Unit (see the

address and telephone number set forth in ``Addresses'' above). The

Uniform Fire Code and Standards are published by the International

Conference of Building Officials and the Western Fire Chiefs

Association. Copies may be purchased from the International Conference

of Building Officials, 5360 South Workman Mill Road, Whittier, CA

90601, telephone 800-284-4406.

II. Federal Preemption

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

Hazardous Materials Transportation Act (HMTA). Pub. L. 93-633

Sec. 112(a), 88 Stat. 2161 (1975). 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 concerning 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 (f) 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.

These statutory preemption provisions carry out Congress's view

that a single body of uniform Federal regulations promotes safety in

the transportation of hazardous materials. 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 as well as 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 original preemption

provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575

(10th Cir. 1991). (In 1994, the HMTA was revised, codified and enacted

``without substantive change,'' at 49 U.S.C. Chapter 51. Pub. L. 103-

272, 108 Stat. 745.)

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). This

administrative determination has replaced RSPA's process for issuing

inconsistency rulings. RSPA maintains a subject matter index of

hazardous materials preemption cases, including all inconsistency

rulings and preemption determinations issued. A copy of this index will

be provided at no cost upon request to the individual named in ``For

Further Information Contact'' above.

Section 5125(d)(1) requires that notice of an application for a

preemption determination must be published in the Federal Register.

Following the receipt

[[Page 11465]]

and consideration of written comments, RSPA publishes its determination

in the Federal Register. See 49 C.F.R. 107.209(d). A short period of

time is allowed for filing of petitions for reconsideration. 49 C.F.R.

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 that 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.

III. Public Comments

All comments should be limited to the issue whether 49 U.S.C. 5125

preempts the provisions of the Houston Fire Code challenged by AWHMT.

Comments should:

(1) Specifically address (a) the preemption criteria set forth in

Part II, above, and (b) whether the challenged provisions of the

Houston Fire Code are ``authorized by another law of the United

States.''

(2) Explain in detail the manner in which the challenged provisions

of the Houston Fire Code are applied and enforced.

(3) Discuss in detail the scope and meaning of the exceptions in

Secs. 79.101(a) and 80.101(a) of the Houston Fire Code, applicable to

transportation in accordance with DOT requirements, including the

relationship of the permit requirement in Sec. 4.108 to the exceptions

in Secs. 79.101(a) and 80.101(a) from the permit requirements in Secs.

79.103(a) and 80.103(a), respectively.

Persons intending to comment should review the standards and

procedures governing RSPA's consideration of applications for

preemption determinations, set forth at 49 CFR 107.201-107.211.

Issued in Washington, DC, on March 13, 1996.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

Appendix A

February 20, 1996

Application of the Association of Waste Hazardous Materials

Transporters to initiate a proceeding to determine whether various

requirements imposed by the City of Houston, Texas on persons involved

in transporting hazardous materials to or from points in the City are

preempted by the Hazardous Materials Transportation Act

Interest of the Petitioner

The Association of Waste Hazardous Materials Transporters

(AWHMT) represents companies that transport, by truck and rail,

waste hazardous materials, including industrial, radioactive and

hazardous wastes, throughout the United States, including points to

and from the City of Houston, TX (City). Despite full compliance

with the hazardous materials regulations (HMRs), members of the

AWHMT are precluded from transporting hazardous materials to or from

points in the City unless certain requirements of the Fire Code of

the City of Houston, TX, adopted pursuant to City Ordinance 95-279

(Ordinance), are met. The AWHMT asserts that the City requirements

are in contravention to the Hazardous Materials Transportation Act

(HMTA).

The Ordinance was enacted March 15, 1995 to be effective in May

of that year. However, we only recently become aware of the

Ordinance as it pertains to permits and requirements for the

loading, unloading and storage of hazardous materials incidental to

motor vehicle transportation when a member company received a notice

of violation in December 1995, apparently within the week of the

Fire Department training a team to enforce the hazardous materials

provisions of the Ordinance. Failure to comply with the Ordinance

carries penalties up to $2,000 per violation, and each day a

violation continues is counted as a separate violation.1 In

addition, violations may result in the suspension, revocation,

cancellation or denial of a permit.2

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\1\ Code Sec. 2.111(a).

\2\ Code Sec. 2.111(b).

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City Requirements For Which A Determination Is Sought

The Ordinance adopts the Uniform Fire Code U.F.C., 1991 Edition,

published by the International Conference of Building Officials with

amendments as the ``Fire Code of the City of Houston, Texas''

(Code). The Code authorizes the Houston Fire Chief (Chief) ``to

administer and enforce this code * * * pertaining to * * * [t]he

storage, use and handling of hazardous materials.'' 3 The Code

defines ``handling'' to mean ``the deliberate transport of material

by any means to a point of storage or use.'' 4 ``Use'' is

defined as ``the placing in action or making available for service

by opening or connecting anything utilized for confinement of

material whether a solid, liquid or gas.'' 5 ``Storage'' is not

defined in Article 9, Definitions, but a definition does occur in

Article 79, Flammable and Combustible Liquids. In Article 79,

``storage'' means ``the keeping, retention or leaving of flammable

or combustible liquids in closed containers, tanks or similar

vessels.'' 6 Article 9 defines ``tank'' as ``a vessel

containing more than 60 gallons.'' 7 It appears from the Fire

Department's implementation of the Code that ``storage'' occurs

whenever a motor vehicle is stopped off the City's designated

hazardous materials route, including stoppage by a driver for rest,

fuel, food, and/or comfort.

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\3\ Code Sec. 2.101(c).

\4\ Code Sec. 9.110.

\5\ Code Sec. 9.123.

\6\ Code Sec. 79.102.

\7\ Code Sec. 9.122.

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The Code requires persons that ``store, dispense, use or handle

hazardous materials in excess of quantities specified in Section

4.108'' to obtain a permit.8 The permit requirements of Article

4 ``constitute permission to * * * store, use or handle materials,

or to conduct processes which produce conditions hazardous to life

or property * * * '' 9 To obtain a permit, an application must

be submitted and fees paid.10 (Copy attached.) Also, ``before a

permit is issued, the Chief is authorized, but not required, to

inspect and approve * * * vehicles.'' 11 The Chief, in his

discretion, does require inspection of vehicles used to transport

hazardous materials in quantities requiring a permit. (Copy of Fire

Department check list for tank vehicle inspections is attached.)

Additionally, ``tank vehicles'' 12 transporting ``flammable and

combustible liquids'' are required to be ``designed, constructed,

equipped and maintained in accordance with U.F.C. Standard No. 79-

4''; be ``bonded''; carry specified fire extinguishers; and be

permanently marked with permit indicia and hazard warnings.13

Drivers of such cargo tanks must comply with certain attendance and

overfill protection requirements.14

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\8\ Code Sec. 80.103(a).

\9\ Code Sec. 4.102(a).

\10\ Code Secs. 4.103 & 4.109.

\11\ Code Sec. 4.104.

\12\ ''Tank vehicles'' are defined as vehicles ``other than a

railroad tank car or boat, with a cargo tank mounted thereon or

built as an integral part thereof used for the transportation of

flammable or combustible liquids, LP-gas, or hazardous chemicals.

Tank vehicles include self-propelled vehicles and full trailers and

semitrailers, with or without motive power, and carrying part or all

of the load.

\13\ Code Secs. 79.1201, .808(a), .1207, & .1203(n).

\14\ Code Secs. 79.1205(b) & .1203(f).

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The Code provides an exception from the requirements of Article

80 for ``[o]ff-site hazardous materials transportation in

[[Page 11466]]

accordance with DOT requirements.'' 15 However, ``off-site''

does not include loading, unloading, or storage incidental to

transportation.

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\15\ Code Sec. 80.101(a)(1).

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Federal Law Provides for the Preemption of Non-Federal Requirements

When Those Non-Federal Requirements Fail Certain Federal Preemption

Tests

The Hazardous Materials Transportation Act (HMTA) was enacted in

1975 to give the U.S. Department of Transportation (DOT) greater

authority ``to protect the Nation adequately against the risks to

life and property which are inherent in the transportation of

hazardous materials in commerce.'' 16 By vesting primary

authority over the transportation of hazardous materials in the DOT,

Congress intended to ``make possible for the first time a

comprehensive approach to minimization of the risks associated with

the movement of valuable but dangerous materials.'' 17 As

originally enacted, the HMTA included a preemption provision ``to

preclude a multiplicity of State and local regulations and the

potential for varying as well as conflicting regulations in the area

of hazardous materials transportation.'' 18 The Act preempted

``any requirement, of a State or political subdivision thereof,

which is inconsistent with any requirement set forth in [the Act],

or in a regulation issued under [the Act].'' 19 This preemption

provision was implemented through an administrative process where

DOT would issue ``inconsistency rulings'' as to,

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\16\ Public Law 93-633 Sec. 102.

\17\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.

\18\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 37.

\19\ P.L. 93-633 Sec. 112(a).

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[w]hether compliance with both the State or political

subdivision requirement and the Act or the regulations issued under

the Act is possible; and [t]he extent to which the State of

political subdivision requirement is an obstacle to the

accomplishment and execution of the Act and the regulations issued

under the Act.'' 20

\20\ 41 FR 38171 (1976).

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These criteria, commonly referred to as the ``dual compliance'' and

``obstacle'' tests, ``comport[ed] with the test for conflicts

between Federal and State statutes enunciated by the Supreme Court

in Hines v. Davidowitz, 312 U.S. 52 (1941).'' 21

\21\ 41 FR 38168 (1976).

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In 1990, Congress codified the dual compliance and obstacle

tests as the Act's general preemption provision.22 The 1990

amendments also expanded on DOT's preemption authorities. First,

Congress expressly preempted non-federal requirements in five

covered subject areas if they are not ``substantively the same'' as

the federal requirements. These covered subject areas are:

\22\ 49 U.S.C. Sec. 5125(a).

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The designation, description, and classification of

hazardous materials.

The packing, repacking, handling, labeling, marking and

placarding of hazardous materials.

The preparation, execution, and use of shipping documents

pertaining to hazardous materials and requirements respecting the

number, content, and placement of such documents.

The written notification, recording, and reporting of the

unintentional release in transportation of hazardous materials.

The design, manufacturing, fabrication, marking,

maintenance, reconditioning, repairing, or testing of a package or

container which is represented, marked, certified, or sold as

qualified for use in the transportation of hazardous

materials.23

\23\ 49 U.S.C. 5125(b).

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``Substantively the same'' was defined to mean ``conforms in every

significant respect to the Federal requirement. Editorial and other

similar de minimis, changes are permitted.'' 24 Second, non-

federal highway routing requirements that fail to satisfy the

federal standard under 49 U.S.C. Sec. 5112(b) are preempted.25

Third, non-federal registration and permitting forms and procedures

that are not ``the same'' as federal regulations to be issued are

preempted.26 Fourth, non-federal fees related to the

transportation of hazardous materials are preempted unless the fees

are ``fair and used for a purpose related to transporting hazardous

materials.'' 27 These preemption authorities are limited only

to the extent that non-federal requirements are ``otherwise

authorized'' by federal law. A non-federal requirement is not

``otherwise authorized by Federal law'' merely because it is not

preempted by another federal statute.28

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\24\ 49 CFR 107.202(d).

\25\ 49 U.S.C. 5125(c).

\26\ 49 U.S.C. 5119(c)(2).

\27\ 49 U.S.C. Sec. 5125(g).

\28\ Colo. Pub. Util. Comm'n v. Harmon, 951 F. 2d, 1571, 1581

n.10, (10th Cir. 1991).

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The hazardous materials regulations (HMRs) have been promulgated

in accordance with the HMTA's direction that the Secretary of

Transportation ``issue regulations for the safe transportation of

hazardous material in intrastate, interstate, and foreign

commerce.'' 29 ``Transportation'' is defined as ``the movement

of property and loading, unloading, or storage incidental to the

movement.'' 30 (Emphasis added.)

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\29\ 49 U.S.C. 5103(b).

\30\ 49 U.S.C. 5102(12).

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Our review of federal statutes and the Code leads us to believe

that the following specific Code requirements are subject to

preemption pursuant to 49 U.S.C. 5125(a)(2), (b), and (g) absent

further modification and/or clarification.

The Designation, Description, and Classification of Hazardous

Material in Transportation Is Reversed to the Federal Government

As noted above, the HMTA provides that non-federal rules

designating, describing, and classifying hazardous materials for

transportation is preempted unless the non-federal rules are

substantively the same as the federal rules. Article 9 of the Code

defines ``hazardous materials'' as ``those chemicals or substances

which are physical hazardous or health hazards as defined and

classified in Article 80 whether the materials are in usable or

waste condition.'' 31 Article 80 states that ``[h]azardous

materials are those chemicals or substances defined as such in

Article 9. See Appendix VI-A for the classification of hazard

categories and hazard evaluations.'' 32

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\31\ Code Sec. 9.110.

\32\ Code Sec. 80.101(b).

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Appendix VI-A designates hazard classes based on rules of U.S.

Department of Labor concerning occupational health and safety, not

the HMRs.33 Moreover, the classification scheme relies on

examples rather than objective tests to identify, for the regulated

community, what materials are subject to the requirements of the

Code. Clearly, the Code provisions relating to the ``designation,

description, and classification of hazardous materials'' are not

``substantively the same'' as DOT's designation and classification

system found at 49 CFR 172. We believe this classification scheme,

as it affects hazardous materials in transportation, is preempted

pursuant to 49 U.S.C. 5125(b)(1)(A).

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\33\ See attached Appendix VI-A.

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The Design, Manufacturing, Fabrication and Maintenance of a Package

or Container Which is Represented, Marked, Certified, or Sold as

Qualified for Use in the Transportation of Hazardous Materials is

Reserved to the Federal Government

As noted above, the HMTA preempts non-federal requirements

concerning the construction and maintenance of cargo tanks. Article

79.1201 provides that ``tank vehicles shall be designed,

constructed, equipped and maintained in accordance with U.F.C.

Standard No. 79-4.''

U.F.C. Standard No. 79-4 is the 1990 version of the 1985 edition

of the National Fire Protection Association (NFPA) standard for tank

vehicles for flammable and combustible liquids 34 In

transportation, the HMRs set the specifications for the construction

and maintenance of cargo tanks.35 Uniformity in the

construction and maintenance of packagings, especially reusable

packagings, is critical. For example, the Code, in its reference to

the NFPA standard, requires that ``Class II or Class III liquids

shall not be loaded into an adjacent compartment to Class I liquids

unless double bulkheads are provided * * *.'' 36 No such

requirement exists in the HMRs. For this reason, Congress authorized

DOT to preempt non-federal requirements affecting 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.'' Nowhere, does the Code or U.F.C. Standard No.

79-4 grant equivalency to the cargo tank construction and

maintenance standards of the HMRs. Article 79.1201

[[Page 11467]]

should be preempted pursuant to 49 U.S.C. 5125(b)(1)(E) because it

is not ``substantively the same as'' the federal cargo tanks

standards found at 49 CFR 173, 178, and 180.

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\34\ See attached NFPA 385, Standard for Tank Vehicles for

Flammable and Combustible Liquids, as amended, 1990 Edition,

hereinafter ``NFPA Standard''.

\35\ 49 CFR 178 & 180.

\36\ NFPA Standard, 6-1.7.

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The Code Requirement for Multiple Fire Extinguishers is Subject to

Review Under the Obstacle Test

Article 79.1207 provides that tank vehicles transporting

hazardous materials be equipped with ``at least two fire

extinguishers having a minimum rating of 2-A, 20-B:C.'' The federal

motor carrier safety regulations (FMCSRs) provide that vehicles used

to transport hazardous materials be equipped with one fire

extinguisher having an Underwriters' Laboratories rating of at least

10 B:C.37 The Code does not provide any justification to

support its view that the federal standard is inadequate. If it is

permissible for the City to require multiple fire extinguishers at

ratings different that the federal requirement, then it is

permissible for other jurisdictions to do the same. For an

interstate carrier of hazardous materials, such diverse requirements

cannot be tolerated particularly when they are non-reciprocal,

either recognizing comparable federal standards, or even other non-

federal standards if they exist. We believe this requirement poses

an unnecessary and unreasonable burden on motor carriers of

hazardous materials that operate in multiple jurisdictions and that

the requirement should be preempted pursuant to 49 U.S.C.

5125(a)(2).38

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\37\ 49 CFR 393.95.

\38\ Here and in other sections of this application, the AWHMT

cites to standards of the FMCSRs as examples of federal rules to

which the City requirements might be compared. We realize that these

requirements are not de facto repeated in the HMRs. However, they

are certainly given de jure meaning pursuant to 49 CFR 177.804.

Surely Congress meant the Secretary to consider the entire

regulatory scheme required of a motor carrier in determining what

rules were necessary to ensure the safe transportation of hazardous

materials. We could have just as easily cited to the Secretary's

silence in terms of a regulatory standard in the HMRs as an

affirmative determination that some type of requirement was not

necessary to the safe transportation of hazardous material. We

believe it is appropriate and necessary that RSPA consider the rules

of other federal agencies or departments within DOT and the meaning

of regulatory silence within the HMRs in determining matters of

hazardous materials preemption particularly when the challenged non-

federal requirements are applicable only to persons who transport or

offer for transport hazardous materials. Without such a view, any

number of non-federal conditions in areas such as planning,

emergency response, or vehicle accoutrements could be envisioned

which would just as effectively frustrate the transportation of

hazardous materials in interstate, intrastate, or foreign commerce

as non-federal rules concerning shipping papers, packaging

standards, or other more traditional forms of hazardous materials

regulation. We believe that any non-federal requirement that

pertains only to the transportation of hazardous waste, or some

aspect thereof, is within the RSPA's purview to consider under the

preemptive authority of the HMTA. In fact, 49 U.S.C. 5125(a)(b)--the

``obstacle test''--provides that non-federal requirements are

preempted if ``the requirement of the State, political subdivision,

or tribe, as applied or enforced, is an obstacle to accomplishing

and carrying out this chapter or a regulation prescribed under this

chapter.'' In other words, a specific HMR does not have to be the

basis from which a determination of preemption is made.

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The Code Requirements for Periodic Vehicle Inspections Are

Preempted by the HMTA

Article 4.104 provides for the inspection of vehicles prior to

the issuance of permits to transport hazardous materials. The

inspection is valid for one year. The inspection is scheduled after

the Fire Department receives an application for a permit. The

inspection is to be scheduled within 20 days of receiving

confirmation from the City that an ``H.F.D.'' (Houston Fire

Department) number has been assigned to the vehicle. The inspection

takes place at one fire station in the City. The regularly scheduled

inspections take place Monday through Friday from 7:00 am to 8:00

am.

Recently, DOT preempted inspection requirements imposed by the

State of California on cargo tanks carrying flammable and

combustible materials. California's annual inspection requirement

was preempted because the inspection could not be accomplished

without ``unnecessary delay'' within the meaning of 49 CFR

177.853(a) and consequently failed the obstacle test of the HMTA.

Vehicles were diverted out of the route of travel to inspection

locations and, in some cases, vehicles had to wait pending the

arrival of an inspector.39 We believe that the City's periodic

inspection requirements, as distinguished from random, roadside

inspections, are likewise preempted pursuant to 49 U.S.C.

5125(a)(2).

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\39\ 58 FR 48933 (September 20, 1993), affirmed on

reconsideration 60 FR 8800 (February 15, 1995).

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Non-Federal Marking Requirements on Cargo Tanks Carrying Hazardous

Materials Are Preempted

Article 79.1203(n) provides for several vehicle marking

requirements for vehicles transporting flammable or combustible

liquids. First, cargo tanks must be marked with an H.F.D. serial

number that must be permanently affixed and located on the left

forward part of the tank in letters at least 3 inches in height.

Second, the City Hazardous Material Transport Permit sticker is to

be placed immediately below the H.F.D. number. (Permit sticker

example attached.) The sticker indicates the expiration date. Third,

cargo tanks must have a sign posted on each side and at the rear

that reads ``FLAMMABLE'' in lettering that is a minimum of 4 inches

in height and a color that contrasts with the background. The Code

does provide an ``exception'' for ``signage and identification that

complies with U.S. Department of Transportation regulations.''

40 The Fire Department interprets this exception to substitute

placards for the FLAMMABLE marking. Fourth, the vehicle must be

marked with ``the company name . . . of the company that owns or

operates the vehicle.'' We believe this marking requirement comports

with 49 CFR 390.21 concerning the marking of commercial motor

vehicles. Fifth, the words ``NO SMOKING'' must be marked at ``draw-

off valves'' in letters 4 inches in height and of a color that

contrasts with the background.

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\40\ Code Sec. 79.1203(n).

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The HMTA provides that non-federal marking of a package or

container which is marked or otherwise certified pursuant to the

HMRs as qualified for use in the transportation of hazardous

materials is preempted unless the non-federal requirements are

substantively the same as federal requirements. We believe this

preemption standard--49 U.S.C. 5125(b)(1)(E)--is appropriate for

review of the first and second listed Code marking requirements. In

fact, similar cargo tank marking requirements imposed by the State

of California were preempted under this standard.41 The HMTA

also provides for the preemption of non-federal hazard warning

marking requirements for hazardous materials when such markings are

substantively different than the federal standard. We submit that

the ``NO SMOKING'' marking requirement is such a hazard warning. The

``NO SMOKING'' marking is permanent and displayed even when non-

flammable materials are being transported or when the vehicle is

empty. Permanent hazard warning vehicle markings not substantively

the same as federal requirements have been preempted pursuant to 49

U.S.C. 5125(b)(1)(B).42

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\41\ 58 FR 48933 (September 20, 1993), affirmed on

reconsideration 60 FR 8800 (February 15, 1995).

\42\ 59 FR 6186 (February 9, 1994).

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Non-Federal Financial Bonds Fail the Obstacle Test

Article 79.1203(d) provides that ``[b]onding shall be in

accordance with Section 79.808(a)3.'' We do not have access to

Sec. 79.808(a)3. Consequently, we are unable to determine if the

bonding requirement is a financial bond or a bond to conduct

electric charge. We have reason to believe the bond requirement may

refer to a financial bond because bonding requirements for static

electricity are addressed at paragraphs 79.1203 (l) and (m). Also,

the permit application asks whether or not a ``bond/insurance'' is

required. We have asked the City to clarify the nature of the bond

required by Sec. 79.808(a)3, but have not received a

response.43

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\43\ Letter to Bob Lanier, Mayor, City of Houston, TX, from

Charles Dickhut, Chairman, AWHMT, dated January 18, 1996.

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DOT has preempted non-federal bonding requirements under the

obstacle test. DOT has concluded that non-federal bonding

requirements are a barrier to the safe transportation of hazardous

materials. In a series of inconsistency rulings between 1984 and

1989, DOT found that bonding requirements divert shipments from

jurisdictions with such requirements, thereby increasing transit

time and, ultimately, increasing overall exposure to the risks of

transporting hazardous materials.44 Moreover, DOT's review of

non-federal bonding requirements has found that ``there is no

reciprocity, offset, credit or other

[[Page 11468]]

recognition for a bond posted in another [jurisdiction]. This means

that, in each [jurisdiction] with a bonding requirement in which a

transporter picks up or delivers hazardous [materials], it must post

a separate bond.'' 45 If the City bonding requirement proves to

be a financial bond, we see no reason why this bonding requirement

should also be preemptive pursuant to 49 U.S.C. 5125(a)(2).

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\44\ Inconsistency Ruling (IR)-10, IR-11, IR-15, IR-18, IR-25,

IR-31. State may not require proof of insurance meeting the Federal

requirements. Colo. Pub. Util. Comm'n v. Harmon, 951 5.2d 1571 (10th

Cir. 1991).

\45\ 57 FR 58848 (December 11, 1992), on appeal D.C. Cir. 1995.

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Driver Attendance Requirements Exceed Federal Requirements and Are

an Obstacle to the HMTA

Article 79.1205(b) provides that ``[t]ank vehicles shall not be

left unattended at any time on residential streets, or within 500

feet 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.'' Federal attendance

requirements appear at 49 CFR 177.834(i) and 397.5. Neither of these

standards is as stringent as the standard in the Code. The FMCSRs

provide that ``motor vehicle[s] containing hazardous materials must

be driven and parked in compliance with the laws, ordinances, and

regulations of the jurisdiction in which it is being operated,

unless they are at variance with specific regulations of the [DOT]

and which impose a more stringent obligation or restraint.46

Our concerns with this section of the Code is that the ``in the

opinion of the chief'' standard is unreasonably subjective, and the

500 foot standard may not be able to be met at a ``hotel complex''

where a driver may seek rest, and because of ``hours of service''

constraints may not be able to search for a hotel with appropriate

parking space. These Code standards would be an incentive for

drivers to bypass the City, and thus export ``risk'' to other

jurisdictions that ``may not be aware or prepared for a sudden,

possibly permanent, change in traffic patterns'', rather than park

in the City for food, fuel, rest, or comfort.47 We request

review of this standard under 49 U.S.C. 5125(a)(2).

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\46\ 49 CFR 397.2.

\47\ 46 FR 18921 (1981).

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The Fees Imposed by the Code are not ``Fair'' and Subject to

Preemption Under the Obstacle Test

Article 4.109 sets forth fees to be paid for permits and

inspections. The schedule of fees is confusing as it appears that

the same vehicle could be subject to multiple fee requirements. For

example, the fee for a hazardous materials permit is $175. However,

the fee for a flammable or combustible liquids permit is also listed

at $175. The permit for cryogens is $125. The permit for radioactive

materials is $175. The permit for compressed gases is $125. These

later materials are all subsets of hazardous materials in the

federal classification scheme. It appears, but is not clear, that

motor carriers must computer multiple fees for each vehicle used in

the City depending on the cargo the carrier anticipates will be

carried in the vehicle over the duration of the permit. We have

asked the City to clarify how permit fees are computed, but have not

yet received a response.48

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\48\ Letter to Bob Lanier, Mayor, City of Houston, TX, from

Charles Dickhut, Chairman, AWHMT, dated January 18, 1996.

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However the City's fees are computed--one or multiple fee

assessments per vehicle--it is clear that the fees are flat and

unapportioned. The U.S. Supreme Court has declared fees which are

flat and unapportioned to be unconstitutional under the Commerce

Clause because such fees fail the ``internal consistency''

test.49 The Court reasoned that a state fee levied on an

interstate operation violates the Commerce Clause because, if

replicated by other jurisdictions, such fees lead to interstate

carriers being subject to multiple times the rate of taxation paid

by purely local carriers even though each carrier's vehicles operate

an identical number of miles and create the same overall risk of

hazardous materials incidents.50 In addition, because they are

unapportioned, flat fees cannot be said to be ``fairly related'' to

a feepayer's level of presence or activities in the fee-assessing

jurisdiction.51 In a number of subsequent cases, courts have

relied on these arguments to strike down, enjoin, or escrow flat

truck taxes and fees.52 The City's per vehicle fee rate is

comparable to that assessed by many states. The substantial

financial burden of meeting multiple state fee requirements is

magnified many times if local entities are permitted to impose fees

on carriers in every jurisdiction in which they operate.

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\49\ American Trucking Assn's v. Scheiner, 483 U.S. 266 (1987).

\50\ Ibid., 284-86.

\51\ Ibid., 290-291 (citing Commonwealth Edison Co. v. Montana,

453 U.S. 609, 629 (1981).

\52\ American Trucking Assn's Inc. v. Secretary of

Administration, 613 N.E.2d 95 (Mass. 1993); American Trucking Assn's

Inc. v. Secretary of State, 595 A.2d 1014 (Me. 1991); Smith v.

American Trucking Assn's, Inc., 781 S.W.2d 3 (Ark. 1989); American

Trucking Assn's, Inc. v. Goldstein, 541 A.2d 955 (Md. 1988).

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We believe flat fees will also run afoul of the HMTA because

some motor carriers, otherwise in compliance with the HMRs, will

inevitably be unable to meet multiple flat per vehicle fees to the

exclusion of such carriers from some sub-set of fee-imposing

jurisdictions. While the ``choice'' of which communities to operate

in would be a decision of the motor carrier, the bar to hazardous

materials transportation that localities cannot do directly in light

of the Commerce Clause would be accomplished indirectly.53 The

result would be not only a generally undesirable patchwork of

regulations necessary to collect the various fees, but the

balkanization of carrier areas of operation would increase transfers

of hazardous materials from one company to another at jurisdictional

borders. The increased transfers would pose a serious risk to

safety, since ``the more frequently hazardous material is handled

during transportation, the greater the risk of mishap.'' 54 The

HMTA provides that a ``political subdivision * * * 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.''

55 We assert that flat fees are inherently ``unfair'' and that

the City's fee scheme would fall to the obstacle test pursuant to 49

U.S.C. 5125(a)(2).

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\53\ Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 338

(1992).

\54\ Missouri Pac. R.R. Co. v. Railroad Comm'n of Texas, 671 F.

Supp. 466, 480-81 (W.D. Tex. 1987).

\55\ 49 U.S.C. 5125(g).

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Conclusion

The Ordinance imposes requirements on the transportation of

hazardous materials which we believe are preempted by federal

law.56 Inasmuch as we have evidence that the City is indeed

enforcing the above suspect requirements, we provided the City

written notice of our concerns and our intention of file this

application if we had not heard back from the City within a

specified period of time.57 In our notice to the City, we

offered to withdraw our application if the City acts on its own to

repeal the above referenced section of the Code. Despite our offer,

however, we request timely consideration of the concerns we have

raised.

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\56\ We note that the Code provides limited authority for the

Chief to waive Article 80 requirements ``related to health hazardous

as classified in Division II [if] preempted by other * * *

statutes.'' (Code Sec. 80.101(c).) Inasmuch as this waiver authority

is so narrowly defined, we are uncertain whether this authority is

sufficient to address the range of preemptive concerns we have

raised absent amendatory language.

\57\ Letter to Bob Lanier, Mayor, City of Houston, TX, from

Charles Dickhut, Chairman, AWHMT, dated January 18, 1996.

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Certification

Pursuant to 49 CFR 107.205(a), we hereby certify that a copy of

this application has been forwarded with an invitation to submit

comments within 45 days to: The Honorable Bob Lanier Mayor, City of

Houston, 900 Bagby, Houston, TX 77002.

Respectfully submitted,

Charles Dickhut,

Chairman.

Enclosures

ATTACHMENTS

City Ordinance 95-279

Applicable Sections Fire Code of the City of Houston, TX.

Hazardous Materials Permit Application

Vehicle Inspection Scheduling Letter

Permit Sticker Example

Vehicle Inspection Check List

Appendix VI-A

U.F.C. Standard No. 79-4

Note: Copies of these Attachments may be examined at RSPA's

Dockets Unit and can be provided at no cost upon request to RSPA's

Dockets Unit; see the ADDRESSES section of this notice.

[FR Doc. 96-6593 Filed 3-19-96; 8:45 am]

BILLING CODE 4910-60-P