[Federal Register Volume 61, Number 55 (Wednesday, March 20, 1996)]
[Notices]
[Pages 11462-11468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6593]
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[[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
