[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Notices]
[Pages 17281-17283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9038]


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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 Reopening Comment Period.

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SUMMARY: RSPA is reopening the comment period on the application by the 
Association of Waste Hazardous Materials Transporters (AWHMT) for an 
administrative determination that Federal hazardous material 
transportation law preempts certain provisions of the Fire Code of the 
City of Houston, Texas (Houston Fire Code), relating to the storage, 
use, dispensing, and handling of hazardous materials. In November 1996, 
the Houston City Council amended the Houston Fire Code, including 
provisions challenged in AWHMT's application. The comment period is 
being reopened to allow interested parties the opportunity to comment 
upon the amended requirements in the Houston Fire Code and the manner 
in which these requirements are presently being applied and enforced.

DATES: Comments received on or before May 27, 1997, and rebuttal 
comments received on or before July 8, 1997, 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 all 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

[[Page 17282]]

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. Background

    On March 20, 1996, RSPA published in the Federal Register, and 
invited comments on, an application by AWHMT for an administrative 
determination that Federal hazardous material transportation law 
preempts certain provisions of the Houston Fire Code, as adopted May 
15, 1995, in Ordinance No. 95-279. Public Notice and Invitation to 
Comment, 61 FR 11463. The Houston Fire Code adopted in Ordinance No. 
95-279 consisted of the Uniform Fire Code (1991 edition), as modified 
in a ``Conversion Document.'' The specific provisions challenged by 
AWHMT concerned the storage, use, dispensing, and handling of hazardous 
materials.
    AWHMT separately provided copies of citations issued to operators 
of cargo tank motor vehicles for loading or unloading corrosive 
materials without the permit required by the Houston Fire Code. In its 
application, AWHMT noted the exception in Sec. 80.101 of the Houston 
Fire Code for ``[o]ff-site hazardous materials transportation in 
accordance with DOT requirements,'' but stated that the Houston Fire 
Department did not consider ``off-site'' transportation to include 
loading, unloading, or storage incidental to transportation.
    According to comments submitted by the Texas Tank Truck Carriers 
Association, Inc. (TTTC), the Houston Fire Department was applying the 
Houston Fire Code's permit requirements to any vehicle transporting 
hazardous materials (above threshold quantities) that was not 
transiting the City of Houston (City) on a designated ``hazardous 
material route.'' TTTC also stated that, in adopting Ordinance No. 95-
279, the City had eliminated previous exemptions for: (a) Tank trucks 
that operated within the City for no more than 30 days per year and 
were in compliance with U.S. Department of Transportation requirements, 
and (b) liquid petroleum gas trucks that possessed a valid ``Form 4 
Card'' issued by the Texas Railroad Commission.
    In its initial May 1996 comments, the City stated that the Houston 
Fire Department did not construe the Houston Fire Code adopted in 
Ordinance No. 95-279 as applying to ``over-the-road (or off-site) 
transportation of flammable and combustible liquids or hazardous 
materials,'' but acknowledged that the Fire Department's practice had 
been to regulate and require a permit for ``any tank vehicle 
transporting those materials inside the city limits for more than 
thirty days.'' The City further stated that the Houston Fire Department 
intended to submit the 1994 edition of the Uniform Fire Code to the 
Houston City Council for adoption and would:

--Make clear that permit requirements would not apply to over-the-
road (off-site) transportation of hazardous materials;
--Propose the deletion of Sec. 79.1203(n) which required a tank 
vehicle used for flammable or combustible liquids to be marked with 
a serial number issued by the fire chief, ``FLAMMABLE'' and ``NO 
SMOKING'' signs, and the company name or corporate symbol; and
--Propose the deletion of Houston's modification of Sec. 79.1207 
which required two fire extinguishers (rather than one) on a tank 
vehicle used for flammable or combustible liquids.

    In a February 13, 1997 ``supplementary comment,'' the City provided 
a certified copy of Ordinance No. 96-1249, approved by the Houston City 
Council on November 26, 1996, which (among other matters) amended 
Ordinance No. 95-279 to adopt the 1994 edition of the Uniform Fire Code 
together with certain ``City of Houston Amendments.'' The City also 
provided a three-page excerpt from Article 1 of the revised Houston 
Fire Code in which exceptions to Secs. 106.8(f) and (h) (concerning 
permit requirements for the storage, use, dispensing, and handling of 
flammable and combustible liquids and hazardous materials) state that 
``A permit is not required for any activity where the requirement of 
local permits is preempted by federal or state law.'' The City did not 
otherwise explain the current status of the provisions challenged in 
the AWHMT application (including those requirements that the City's May 
1996 comments stated would be proposed for deletion) or discuss the 
manner in which those provisions are currently applied and enforced. 
The City did not provide other excerpts from (or a complete copy of) 
the current Houston Fire Code.
    On March 17, 1997, AWHMT provided RSPA with a copy of TTTC's 
Circular Letter No. 1224, dated February 21, 1997, in which TTTC 
expressed the opinion that, because ``federal preemption in this area 
prevails * * * bulk carriers will not be required to get hazardous 
materials permits for bulk equipment under the Uniform Fire Code for 
the City of Houston.'' TTTC stated that it was attempting to obtain 
information from ``the legal division of the Houston City Council'' 
regarding the City's interpretation of Ordinance No. 96-1249, and that 
it was still seeking deletion of the marking requirements in Sec. 
79.1203(n) and the two-fire extinguisher requirement in Sec. 79.1207. 
TTTC also indicated that it had not yet obtained any parts of the 
revised Houston Fire Code other than the same three-page excerpt that 
the City included with its supplementary comment.

II. Reopening of Comment Period

    The comment period on AWHMT's application is being reopened so that 
interested parties may provide further information on the current 
status of the challenged provisions in the Houston Fire Code and how 
those provisions are being applied or enforced. Interested parties are 
invited to submit comments on all issues relevant to whether 49 U.S.C. 
5125 preempts provisions of the Houston Fire Code, including:

    (1) The current text of the provisions that AHWMT's application 
asserted to be preempted by Federal hazardous material 
transportation law (see 49 CFR 107.203(b)(2)), and clarification as 
to which provisions challenged in AWHMT's application have been 
eliminated by Ordinance No. 96-1249;
    (2) The manner in which the challenged provisions of the Houston 
Fire Code are applied and enforced, including examples of any recent 
enforcement actions taken by the Houston Fire Department;
    (3) Whether the Houston Fire Code (including permit and 
inspection requirements) are currently being applied to operators of 
vehicles transporting hazardous materials that:
    (a) Pick-up or deliver hazardous materials within the City;
    (b) Depart from a designated ``hazardous material route'' for 
rest, fuel, food, or other purposes; or
    (c) Are operated within the City for no more than 30 calendar 
days per year;
    (4) The scope and meaning of the exceptions in Secs. 79.101(a) 
and 80.101(a) of the Houston Fire Code, including the City's 
construction of ``transportation * * * in accordance with DOT 
regulations'' in Sec. 79.101(a) and ``off-site transportation'' in 
Sec. 80.101(a), and whether the exceptions in Secs. 79.101(a) and 
80.101(a) apply to permit requirements set forth in Article 4 (or 
elsewhere) in the Houston Fire Code; and

[[Page 17283]]

    (5) Whether AWHMT's application raises issues concerning the 
applicability of the Hazardous Materials Regulations, 49 CFR parts 
171-180, that should be considered by RSPA (in addition to or 
instead of action on AWHMT's application) in the rulemaking under 
Docket No. HM-223, ``Applicability of the Hazardous Materials 
Regulations to Loading, Unloading and Storage.'' See Advance Notice 
of Proposed Rulemaking, 61 FR 39522 (July 29, 1996), and Notices of 
Meeting, 61 FR 49723 (Sept. 23, 1996), 61 FR 53483 (Oct. 11, 1996).

    Persons intending to comment should review the standards and 
procedures governing applications for preemption determinations, set 
forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC, on April 3, 1997.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 97-9038 Filed 4-8-97; 8:45 am]
BILLING CODE 4910-60-P