Preemption Determination No. PD-14(R); Houston, TX, Fire Code Requirements on the Storage, Transportation, and Handling of Hazardous Materials

[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Notices]
[Pages 33949-33953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16026]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. PDA-15(R)]


Preemption Determination No. PD-14(R); Houston, TX, Fire Code 
Requirements on the Storage, Transportation, and Handling of Hazardous 
Materials

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

ACTION: Decision on petition for reconsideration of administrative 
determination of preemption.

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    Petitioner: City of Houston, Texas.
    State Laws Affected: Houston, Texas, Ordinance No. 96-1249 adopting 
the 1994 Uniform Fire Code with certain modifications.
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.
    Modes Affected: Highway.

SUMMARY: RSPA denies the petition for reconsideration submitted by the 
City of Houston (City), in which the City asked RSPA to defer any 
determination whether Federal hazardous material transportation law 
preempts provisions of the Houston Fire Code relating to the 
transportation of hazardous materials. RSPA clarifies that its December 
7, 1998 determination applies only to the transportation of hazardous 
materials in commerce by motor vehicles. In that determination, RSPA 
found that the following requirements in the Houston Fire Code are not 
preempted because they do not apply when the transportation of 
hazardous materials is governed by DOT's regulations: (1) Permits for 
vehicles that transport hazardous materials in commerce, including the 
definition of ``hazardous materials'' as part of these permit 
requirements; (2) the design, construction, or operation of tank 
vehicles used for transporting flammable or combustible liquids; (3) 
physical bonding during loading of a tank vehicle with a flammable or 
combustible liquid; (4) unattended parking of a tank vehicle containing 
a flammable or combustible liquid; and (5) the service rating of the 
fire extinguisher required to be carried on a tank vehicle used to 
transport a flammable or combustible liquid.

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

SUPPLEMENTARY INFORMATION:

I. Background

    In February 1996, the Association of Waste Hazardous Materials 
Transporters (AWHMT) applied for an administrative determination that 
Federal hazardous material transportation law preempts certain 
provisions of the Fire Code of the City of Houston, Texas, as applied 
to tank vehicles that pick up or deliver hazardous materials within the 
City of Houston (City).
    At that time, the Houston Fire Code consisted of the 1991 edition 
of the Uniform Fire Code as modified in a ``Conversion Document.'' The 
requirements challenged by AWHMT involved: (1) Inspections and fees 
required to obtain an annual permit for a cargo tank motor vehicle to 
pick up or deliver hazardous materials (including flammable and 
combustible liquids) within the City; (2) the definition of ``hazardous 
materials'' as used in these permit requirements; and (3) design, 
construction, and operating requirements for tank vehicles used to 
transport flammable and combustible liquids, including the number and 
service rating of fire extinguishers required on the vehicle, 
unattended parking of the vehicle, ``FLAMMABLE'' and ``NO SMOKING'' 
markings on the vehicle, and static protection (or ``bonding'') during 
loading of the vehicle. AWHMT separately provided copies of citations 
that the City had issued to operators of cargo tank motor vehicles for 
loading or unloading corrosive materials within the City without a 
permit, despite an exception in Sec. 80.101(a) of the 1991 edition of 
the Uniform Fire Code for:


[[Page 33950]]


    Off-site hazardous materials transportation in accordance with 
DOT requirements.

In Sec. 79.101(a), there was also a similar exception for:

    The transportation of flammable and combustible liquids when in 
accordance with DOT regulations on file and approved by DOT.

    In November 1996, the City adopted the 1994 edition of the Uniform 
Fire Code together with certain ``City of Houston Amendments.'' At this 
time, the ``FLAMMABLE'' and ``NO SMOKING'' marking requirement was 
eliminated, and the City reduced from two to one the number of fire 
extinguishers required on a tank vehicle used to transport a flammable 
or combustible liquid. In all other respects, the provisions in the 
Houston Fire Code challenged by AWHMT were not substantively changed. 
The exceptions for the transportation of hazardous materials ``in 
accordance with'' DOT's regulations were retained in the Uniform Fire 
Code. See Secs. 7901.1.1 and 8001.1.1, Uniform Fire Code (1994 
edition).
    RSPA specifically invited detailed comments on ``the scope and 
meaning'' of these exceptions in the Uniform Fire Code. See the Public 
Notices published in the Federal Register on March 20, 1996, 61 FR 
11463, 11465, and April 9, 1997, 62 FR 17281, 17282. In its May 1997 
comments, the City stated that it recognizes these exceptions, and 
permits ``are no longer required for vehicles transporting hazardous 
material or flammable or combustible material if the vehicle meets DOT 
requirements''; that ``the inspection and fee provisions * * * also do 
not apply to such vehicles''; and that tank vehicle design and 
construction requirements in the Uniform Fire Code were applied only 
``to tank vehicles that are used exclusively on-site and to off-site 
vehicles not meeting DOT specifications.'' The City argued that other 
``challenged provisions still in effect are not preempted,'' and it 
also requested ``[i]n the alternative * * * that a decision on AWHMT's 
application be postponed until completion'' of RSPA's rulemaking 
proceeding in Docket No. HM-223, ``Applicability of the Hazardous 
Materials Regulations to Loading, Unloading, and Storage.'' See RSPA's 
Advance Notice of Proposed Rulemaking, 61 FR 39522 (July 29, 1996), and 
Supplemental Advance Notice of Proposed Rulemaking, 64 FR 22718 (Apr. 
27, 1999).
    In PD-14(R), published in the Federal Register on December 7, 1998, 
RSPA indicated it agreed with the City's interpretation of the 
exceptions in Secs. 7901.1.1 and 8001.1.1, but that RSPA read those 
exceptions to ``apply to the entire contents of Articles 79 and 80--not 
just the permit requirements.'' 63 FR 67506, 67510. RSPA stated that it 
``must assume that the City applies the exceptions in Secs. 7901.1.1 
and 8001.1.1 in a consistent manner,'' to all the requirements in 
Articles 79 and 80. Id. Accordingly, RSPA found that that Federal 
hazardous material transportation law does not preempt requirements in 
the following sections of the Houston Fire Code because these 
requirements do not apply to the transportation of hazardous materials 
that is subject to the HMR:

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

63 FR at 67511.
    In PD-14(R), RSPA declined to consider a separate requirement in 
the Houston Fire Code that rail tank cars containing flammable or 
combustible liquids ``shall be unloaded as soon as possible after 
arrival at point of delivery'' and within 24 hours of being connected 
for transfer operations unless otherwise approved by the fire chief. 
Sec. 7904.5.4.3. RSPA noted that this requirement in the Uniform Fire 
Code, as adopted by Los Angeles County, had been found to be preempted 
in PD-9(R), Los Angeles County Requirements Applicable to the 
Transportation and Handling of Hazardous Materials on Private Property, 
60 FR 8774, 8783, 8788 (Feb. 15, 1995). However, AWHMT had not 
challenged this requirement, as adopted in the Houston Fire Code, until 
May 1997, fifteen months after its application which, as all parties 
understood, ``challenged requirements in the Houston Fire Code only as 
applied to motor carriers that pick up or deliver hazardous materials 
within the City.'' 63 FR at 67508.
    RSPA also declined to defer its decision in PD-14(R) until 
completion of the rulemaking in HM-223. RSPA noted that other 
preemption proceedings (PDs 8(R)-11(R)) involve requirements of the 
Uniform Fire Code (as adopted by Los Angeles County) as applied to the 
``'on-site' handling and transportation of hazardous materials.'' 63 FR 
at 67507. Unlike the issues in those decisions that have been placed 
``on hold'' pending the consideration of the scope of the HMR in HM-
223,

no party here disputes that the HMR apply to carriers who pick up or 
deliver hazardous materials within the City for ``off-site'' 
transportation. The main issue in this case is whether the Houston 
Fire Code applies to those carriers and their vehicles--not whether 
the HMR apply.

Id. RSPA added that:

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

Id.
    In Part I.C. of its decision, RSPA discussed the applicability of 
Federal hazardous material transportation law to the transportation of 
hazardous materials in commerce and the standards for making 
determinations of preemption. 63 FR at 67508-67509. As explained there, 
unless DOT grants a waiver or there is specific authority in another 
Federal law, a State (or other non-Federal) requirement is preempted 
if:

--It is not possible to comply with both the State requirement and a 
requirement in the Federal hazardous material transportation law or 
regulations;
--The State requirement, as applied or enforced, is an ``obstacle'' 
to the accomplishing and carrying out of the Federal hazardous 
material transportation law or regulations; or
--The State requirement concerns a ``covered subject'' and is not 
``substantively the same as'' a provision in the Federal hazardous 
material transportation law or regulations. Among the five covered 
subjects are (1) ``the designation, description, and classification 
of hazardous material,'' and (2) the ``packing, repacking, handling, 
labeling, marking, and placarding of hazardous material.''

See 49 U.S.C. 5125 (a) & (b). These preemption provisions stem from 
congressional findings that State and local laws which vary from 
Federal hazardous material transportation requirements can create ``the 
potential for unreasonable hazards in other

[[Page 33951]]

jurisdictions and confounding shippers and carriers which attempt to 
comply with multiple and conflicting * * * regulatory requirements,'' 
and that safety is advanced by ``consistency in laws and regulations 
governing the transportation of hazardous materials.'' Pub. L. 101-615 
Secs. 2(3) & 2(4), 104 Stat. 3244.
    In PD-14(R), RSPA also explained its procedures for issuing 
preemption determinations and the rights to file a petition for 
reconsideration and/or judicial review. 63 FR at 67509, 67511.
    Within the 20-day time period provided in 49 CFR 107.211(a), the 
City filed a petition for reconsideration of PD-14(R). The City 
certified that it had mailed a copy of its petition to AWHMT and all 
others who had submitted comments. AWHMT submitted comments on the 
City's petition for reconsideration.

II. Petition for Reconsideration

    In its petition, the City again acknowledges that the Uniform Fire 
Code contains ``exceptions for areas governed by DOT regulations,'' but 
states that ``[c]ontrary to DOT's statement at [63 FR] 67506, however, 
the City's exceptions for DOT-regulated activities apply only to 
transportation.'' (emphasis in original) The City appears to argue that 
the requirements challenged by AWHMT that fall within 
``transportation'' are only those ``relating to tank vehicle design, 
construction, and operation and to fire extinguishers.'' The City asks 
RSPA to defer considering the other requirements challenged by AWHMT 
because they are ``within the scope of the pending rulemaking [in] 
Docket No. HM-223'' and ``not within the intended scope of [the Uniform 
Fire Code] exception for DOT-regulated transportation activity'':

--Permits for the storage, handling * * * dispensing, mixing, 
blending or using hazardous materials.
--Physical bonding during loading of the vehicle.
--Unattended parking of the vehicle.

    According to the City, ``[d]eferral is all the more appropriate in 
light of the recent extension of the HMR during the course of this 
proceeding to all intrastate transportation of hazardous materials in 
commerce.'' The City asserts that

    DOT's refusal to defer consideration of Fire Code requirements 
imposed on carriers at in-transit facilities completely ignores 
DOT's confirmation that HM-223 is expressly intended to address 
activities at ``transfer and other mid-transportation facilities'' 
which, under any logical construction, would include activities at 
``in-transit facilities.'' * * * The City's position is that the 
activities regulated by the Fire Code are not incidental to 
transportation. Lacking a rule [in HM-223], DOT should defer its 
decision altogether.

    On February 3, 1999, an official of the Houston Fire Department 
telephoned RSPA's Office of the Chief Counsel to ask about the status 
of RSPA's determination in PD-14(R) and the rulemaking in HM-223. Based 
on that conversation, RSPA understands that the concerns raised in the 
City's petition for reconsideration relate to the facilities at which 
hazardous materials are stored, rather than the vehicles that transport 
hazardous materials and pick up or deliver hazardous materials within 
the City. According to this official, the interest of the Fire 
Department is that the same fire protection standards apply to both (1) 
the buildings and other facilities where hazardous materials are stored 
for short times in the course of transportation and (2) the facilities 
where hazardous materials are stored and used outside of 
transportation.

III. Discussion

    The Uniform Fire Code (1994 edition) states that it is primarily 
directed at ``the hazards of fire and explosion arising from the 
storage, handling, and use of hazardous substances, materials and 
devices, and from conditions hazardous to life and property in the use 
and occupancy of buildings and premises.'' Sec. 101.2 (``Scope'') 
(emphasis added); see 63 FR at 67507. The specific exceptions in Secs. 
7901.1.1 and 8001.1.1 for transportation ``in accordance with'' DOT's 
regulations seem to be clear that the Uniform Fire Code is not intended 
to apply to vehicles when they are transporting hazardous materials 
subject to the HMR. When the Uniform Fire Code is properly applied in 
this manner, there is no inconsistency with Federal hazardous material 
transportation law or the HMR.
    AWHMT submitted its application after the City applied permit 
requirements in the 1991 edition of the Uniform Fire Code (as adopted 
and amended by the City) to motor carriers that (according to AWHMT) 
were transporting hazardous materials in accordance with and subject to 
the HMR. Specifically, the City issued citations to the operators of 
motor vehicles that loaded or unloaded corrosive materials within the 
City when the vehicles had not been inspected and issued a permit. See 
the discussion in PD-14(R), 63 FR at 67510, and in RSPA's Notices, 61 
FR 11463 (Mar. 20, 1996), and 62 FR 17281 (Apr. 9, 1997). Following the 
City's adoption of the 1994 edition of the Uniform Fire Code, however, 
as discussed in PD-14(R), 63 FR at 67510,

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

    Based on these representations that the City is now interpreting 
its Fire Code in a manner that is fully consistent with Federal 
hazardous material transportation law and the HMR, RSPA concluded that 
Federal hazardous material transportation law does not preempt the 
requirements in the Houston Fire Code challenged in AWHMT's 
application. RSPA understood that the City was no longer requiring 
permits (or inspections) for vehicles that pick up or deliver hazardous 
materials within the City, which were subject to the HMR. As discussed 
in Part I, above, RSPA also read the exceptions in Secs. 7901.1.1 and 
8001.1.1 to ``apply to the entire contents of Articles 79 and 80 [of 
the Uniform Fire Code]--not just to the permit requirements.'' Id.
    The City's petition for reconsideration seems to disagree with this 
last conclusion. Its statements that requirements challenged by AWHMT, 
as applied to vehicle operators, concern activities that are not 
subject to the HMR but are ``within the scope of the pending rulemaking 
Docket No. HM-223,'' are somewhat confusing. The concept that the 
exceptions in Secs. 7901.1.1 and 8001.1.1 apply to only some of the 
requirements in Articles 79 and 80 of the Uniform Fire Code mirrors 
similar contradictory statements in the City's May 1997 comments that 
requirements in Article 79 of the Uniform Fire Code concerning physical 
bonding, unattended parking, and fire extinguishers ``are not affected 
by the [e]xceptions'' in Secs. 7901.1.1 and 8001.1.1. See 63 FR at 
67510. RSPA found this statement to be ``in direct conflict with the 
plain language of these exemptions.'' Id.
    More importantly, the City has not shown that its asserted 
uncertainty about the applicability of the HMR to certain 
transportation-related activities should cause RSPA to defer its 
determination on AWHMT's

[[Page 33952]]

application. The activities covered by specific requirements challenged 
by AWHMT seem to clearly fit within the scope of ``transportation'' 
subject to the HMR.
    Based on AWHMT's application and the comments submitted, RSPA 
understood that, during 1995-96, the City required a carrier to obtain 
a vehicle permit (following inspection of the cargo tank motor vehicle) 
in order for the carrier to deliver hazardous materials within the 
City--as contrasted to a consignee's unloading of a bulk container over 
an extended period of time after delivery of the container by the 
carrier. RSPA stated in PDs 8(R)-11(R) that unloading by the carrier 
would generally be a part of the delivery to the consignee and 
incidental to the movement of those materials in commerce, ``even when 
that unloading takes place exclusively at a consignee's facility.'' 60 
FR at 8777.
    Similarly, the loading of a tank vehicle with a flammable or 
combustible liquid, for which static protection (or ``bonding'') is 
required by 49 CFR 177.837(c), would ordinarily be considered loading 
``incidental to the movement'' of property off-site (or in commerce) 
and within the scope of ``transportation'' subject to the HMR, see 49 
U.S.C. 5102(12), rather than Sec. 7904.6.1 of the Uniform Fire Code. 
DOT's parking regulations in 49 CFR 397.7 seem to apply to any tank 
vehicle in the locations specified in Sec. 7904.6.5.2.1 of the Uniform 
Fire Code (``residential streets, or within 500 (152.4 m) of a 
residential area, apartment, or hotel complex, educational facility, 
hospital or care facility'').
    In this proceeding, AWHMT did not challenge the City's requirements 
that apply to a facility that stores hazardous materials, as opposed to 
the vehicles that move those materials. The City has not raised any 
specific issues relating to the storage of hazardous materials. 
Finally, in PD-14(R) RSPA did not consider requirements in the City's 
Fire Code as they apply to facilities that store hazardous materials.
    As a general matter, the transportation of hazardous materials in 
commerce subject to the Federal hazardous materials transportation law 
and the HMR includes the storage of those materials ``incidental to 
[their] movement.'' 49 U.S.C. 5102(12). Accordingly, RSPA has stated 
that the HMR clearly apply to ``transportation-related storage.'' IR-
19, Nevada Public Service Commission Regulations Governing 
Transportation of Hazardous Materials, 52 FR 24404, 24409 (June 30, 
1987), decision on appeal, 53 FR 11600 (Apr. 7, 1988). And RSPA 
reiterated in PDs 8(R)--11(R) that the HMR apply to ``[s]torage that is 
incidental to transportation,'' which includes ``storage by a carrier 
that may occur between the time a hazardous material is offered for 
transportation and the time it reaches its intended destination and is 
accepted by the consignee.'' 60 FR at 8778. See also PD-12(R), New York 
Department of Environmental Conservation Requirements on the Transfer 
and Storage of Hazardous Wastes Incidental to Transportation, 60 FR 
52527, 62541 (Dec. 6, 1995), decision on petition for reconsideration, 
62 FR 15970, 15972 (April 3, 1997) (``transportation-related 
activities'' subject to the HMR include the interim storage of 
hazardous materials at a transfer facility). In contrast, ``RSPA does 
not regulate consignee storage, including the types of containers used 
to store hazardous materials that are no longer in transportation in 
commerce.'' PD-9(R), 60 FR at 8788.
    RSPA has long encouraged States and localities to adopt and enforce 
requirements on the transportation of hazardous materials that are 
consistent with the HMR. See, e.g., PD-12(R), 60 FR at 62530. This 
applies to storage that is incidental to the movement of hazardous 
materials in commerce, as well as the actual movement of those 
materials. The enforceability of non-Federal requirements on 
``incidental'' storage depends on the consistency of those requirements 
with the HMR and, of course, the applicability of the requirements 
themselves in terms of exceptions such as Secs. 7901.1.1 and 8001.1.1 
of the Uniform Fire Code.
    As stated in PD-14(R), 63 FR at 67510, ``a State or local permit 
requirement is not per se preempted; rather, `a permit itself is 
inextricably tied to what is required to get it.' '' This principle 
applies to the storage of hazardous materials in transportation as well 
as to the actual movement of these materials. IR-28, San Jose 
Restrictions on Storage of Hazardous Materials, 55 FR 8884, 8890 (Mar. 
8, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9, 1992).
    With respect to permits for a facility where hazardous materials 
are stored in transportation, however, State requirements are preempted 
when they are ``so open-ended and discretionary that they authorize the 
[State] to approve storage prohibited by the HMR or prohibit storage 
authorized by the HMR.'' IR-19, 52 FR at 24410. The Court of Appeals 
for the Ninth Circuit agreed in Southern Pac. Transp. Co. v. Public 
Serv. Comm'n, 909 F.2d 352, 358 (9th Cir. 1980), that such State 
requirements create ``a separate regulatory regime for these activities 
[including storage in transportation], fostering confusion and 
frustrating Congress' goal of developing a uniform national scheme of 
regulation.''
    Similarly, in IR-28, RSPA found that ``unfettered discretion * * * 
with respect to approval or disapproval of storage of hazardous 
materials incidental to the transportation thereof is inconsistent with 
the HMTA and the HMR.'' 55 FR at 8890. RSPA also noted that

detailed information required to be provided concerning the identity 
and quantity of hazardous materials (and other materials) which a 
transportation carrier might store at its facility during a given 
year is impossible to compile and provide in advance because a 
common carrier is at the mercy of its customers, including the 
general public, who may without advance notice offer to the carrier 
virtually any quantity of any of the thousands of hazardous 
materials listed in, or covered by, the HMR.

Id. at 8891.
    To decide this case, however, RSPA need not precisely delineate the 
incidental storage that is encompassed within the scope of 
``transportation'' (as defined in Federal hazardous material 
transportation law) from that which is not. In its May 1997 comments, 
the City asked RSPA to find that the provisions challenged by AWHMT 
``are not preempted.'' That is the determination made by RSPA in PD-
14(R), and it is unclear that the City is ``aggrieved'' by RSPA's 
determination in PD-14(R). See 49 CFR 107.211(a). To the extent that 
the exceptions in Secs. 7901.1.1 and 8001.1.1 mean that provisions in 
the Uniform Fire Code do not apply to transportation of hazardous 
materials in commerce, including incidental storage, that result 
derives from the plain language of the Uniform Fire Code and not from 
any inconsistency with the HMR. That matter is separate and distinct 
from issues relating to whether the storage of a hazardous material is 
``incidental to [its] movement,'' which will be considered in RSPA's 
rulemaking in Docket No. HM-223. ANPRM, 61 FR at 38524.
    For all the reasons set forth above and in PD-14(R), 63 FR at 
67507, there is no basis for RSPA to defer its determination in PD-
14(R). Because of the concerns expressed in the City's petition for 
reconsideration, however, RSPA is clarifying that this determination 
applies only to the transportation of hazardous materials in commerce 
by a motor vehicle.

[[Page 33953]]

IV. Ruling

    RSPA denies the City's petition for reconsideration and affirms its 
December 7, 1998 determination that Federal hazardous material 
transportation law does not preempt requirements in the following 
sections of the Houston Fire Code because these requirements do not 
apply to the transportation of hazardous materials subject to the HMR:

Secs. 105.4, 105.8.f.3, 105.h.1, 106.1, 7901.3.1, and 8001.3.1., to 
the extent that these sections require a permit for a vehicle to 
transport hazardous materials in commerce within the City, including 
activities (such as loading, unloading, handling, and dispensing) 
that are encompassed within the scope of transportation, and 
including the requirements for inspection of the vehicle and payment 
of a fee in order to obtain a permit;
Secs. 209 and 8001.1.2, concerning the definition of ``hazardous 
materials'' as relevant to the permit requirements in Secs. 
105.8.f.3 and 8001.3.1;
Sec. 7904.6.1, concerning requirements for the design and 
construction of tank vehicles used to transport a flammable or 
combustible liquid;
Sec. 7904.6.3.4, concerning physical bonding during the loading of a 
tank vehicle with a flammable or combustible liquid, to prevent the 
accumulation of static charges;
Sec. 7904.6.5.2.1, prohibiting unattended parking of tank vehicles 
used for flammable or combustible liquids at specific locations or 
``at any other place that would, in the opinion of the chief, 
present an extreme life hazard''; and
Sec. 7904.6.7, requiring a fire extinguisher with a minimum rating 
of 2-A, 20-B:C on board a tank vehicle used for flammable or 
combustible liquids.

V. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes 
RSPA's final agency action on AWHMT's application for a determination 
of preemption as to certain requirements in the Houston Fire Code 
concerning the transportation of hazardous materials, including storage 
and handling that are a part of transportation.

    Issued in Washington, DC on June 17, 1999.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 99-16026 Filed 6-23-99; 8:45 am]
BILLING CODE 4910-60-P