Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Notices 10419

Issued in Washington, D.C. on February 15,

1995.

Phil Olekszyk,

Acting Deputy Associate Administrator for

Safety Compliance and Program

Implementation.

[FR Doc. 95–4624 Filed 2–23–95; 8:45 am]

BILLING CODE 4910–06–M

Research and Special Programs

Administration

[Preemption Determination No. PD–7(R);

Docket No. PDA–12(R)]

Determination That Maryland

Certification Requirements for

Transporters of Oil or Controlled

Hazardous Substances Are Preempted

by Federal Hazardous Material

Transportation Law; Decision on

Petition for Reconsideration

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Decision on petition for

reconsideration of RSPA’s

administrative determination that

Maryland certification requirements for

transporters of oil or controlled

hazardous substances are preempted by

the Federal Hazardous Material

Transportation Law.

Petitioners: Maryland Department of

the Environment (MDE).

State Laws Affected: Code of

Maryland Regulations (COMAR)

26.10.01.16.D and 26.13.04.01.F.

Applicable Federal Requirements: 49

U.S.C. 5101 et seq. (previously the

Hazardous Materials Transportation

Act, 49 App. U.S.C. 1801 et seq.), and

the Hazardous Materials Regulations

(HMR), 49 CFR parts 171–180.

Mode Affected: Highway.

SUMMARY: The Maryland Department of

the Environment petition requests

reconsideration of a RSPA

determination that Federal hazardous

material transportation law preempts

Maryland regulations requiring

certification of non-domiciled operators

of motor vehicles loading or unloading

certain hazardous materials in

Maryland. The petition is denied.

FOR FURTHER INFORMATION CONTACT:

Charles B. Holtman, Office of the Chief

Counsel, Research and Special Programs

Administration, U.S. Department of

Transportation, 400 Seventh Street SW,

Washington, DC 20590–0001, telephone

number (202) 366–4400.

I. Background

On June 3, 1994, RSPA published in

the Federal Register the determination

that Maryland certification

requirements, applicable to operators of

motor vehicles loading or unloading oil

or ‘‘controlled hazardous substances’’

(CHS) in Maryland, are preempted by

the Federal hazardous material

transportation law (Federal hazmat law),

to the extent that they apply to the

loading or unloading of oil or CHS that

is a hazardous material. 59 FR 28913.

RSPA found that these requirements are

training requirements, and that the

requirements, as enforced and applied,

are stricter than HMR training

requirements at 49 CFR 172.700–.704.

Specifically, COMAR 26.10.01.16.D,

which applies to operators of oil cargo

tanks, requires the operator to take and

pass a test administered by MDE at five

in-state locations and at out of-state

business locations approved by MDE.

COMAR 26.13.04.01.F, which applies to

operators of vehicles transporting CHS,

requires ‘‘[t]raining in the requirements

necessary to transport hazardous

waste,’’ which include requirements

promulgated by, and specific to,

Maryland. In addition, the instructor

must meet an experience criterion, and

MDE may require the operator to pass

an approved written examination. These

elements of the certification

requirements, RSPA found, are more

strict than the HMR. 59 FR 28919.

To the extent that the requirements

are more strict than the HMR, they

violate 49 CFR 172.701, which permits

States to apply training requirements to

non-domiciled vehicle operators only if

the requirements are no more strict than

those of the HMR. Accordingly, RSPA

reasoned, each of the two requirements

is ‘‘an obstacle to accomplishing and

carrying out’’ Federal hazmat law. 49

U.S.C. 5125(a)(2); see 59 FR 28919.

Within the 20-day time period

provided in 49 CFR 107.211(a), MDE

filed a petition for reconsideration of the

determination. It certified that, in

accordance with 49 CFR 107.211(c), it

had mailed copies of the petition to

CWTI/NTTC and to all others who had

submitted comments, with a statement

that each person, within 20 days, could

submit comments on the petition. RSPA

has received no comments on the MDE

petition.

II. Petition for Reconsideration

In its June 20, 1994 petition, MDE first

states that the three elements that RSPA

found to be more strict than the HMR

do not apply to both the oil and CHS

vehicle operator certification

requirements. It notes that only COMAR

26.10.01.16.D (oil) requires that the

operator pass a State-administered

examination; under COMAR

26.13.04.01.F (CHS), the examination

requirement is at the discretion of MDE.

Similarly, only COMAR 26.13.04.01.F

specifies required areas of training and

instructor experience requirements.

MDE concedes that its CHS vehicle

operator certification provisions

specifying required areas of training and

instructor experience criteria are

‘‘training requirements’’ within the

meaning of 49 CFR 172.701. On the

other hand, it contests the RSPA finding

that the examination requirement, and

the general requirement to obtain a

certificate, are training requirements. It

suggests, instead, that they ‘‘are

intended to demonstrate that the

training received by the drivers is

adequate to insure the safe

transportation and transfer of hazardous

materials in Maryland.’’ Because they

are not training requirements, MDE then

argues, RSPA cannot find them to be

obstacles simply because they violate 49

CFR 172.701. Rather, MDE contends,

RSPA must factually analyze whether

they are obstacles as enforced and

applied. MDE contends that CWTI/

NTTC has not submitted specific

evidence sufficient to allow RSPA to

find the requirements to be obstacles. As

an example, it notes, it does not in fact

require a CHS vehicle operator to take

an examination, but merely to submit a

statement from the operator’s employer

that approved training has been

completed.

MDE does not dispute that its rules

specifying areas of training for CHS

vehicle operators are training

requirements, but argues that they are

not more strict than the HMR. It submits

that the rules generally are consistent

with HMR requirements, differing only

in requiring knowledge of Maryland

requirements for transporting and

handling hazardous wastes. In this latter

respect, it contends that operator

familiarity with the laws of States of

operation should be deemed to be part

of required HMR training, and therefore

that the Maryland rules should not be

found to be more strict.

MDE concedes that the instructor

experience criterion is more strict than

the HMR. It argues that preemption of

this provision nevertheless should not

invalidate the entire CHS vehicle

operator certification program.

Finally, in their application CWTI/

NTTC represented that Maryland

applies the CHS vehicle operator

certification requirement only to those

loading or unloading RCRA hazardous

waste, and not to other materials

meeting the definition of CHS. Although

MDE did not take issue with that

representation in its comments, it now

indicates that it applies the certification

requirement to other CHS, including

PCB-contaminated wastes, certain

wastes associated with the production
10420 Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Notices

of military chemical warfare agents,

certain wastes generated in the

production of phthalate esters, and

certain other organic chemical industry

wastes not regulated under RCRA. It

notes that this fact may simply correct

the record, and may not affect the

preemption determination.

MDE asks that RSPA reverse its

preemption determination or at least

reconsider the decision with respect to

the examination and certification

requirements by examining whether

those requirements, as applied and

enforced, in fact are obstacles to

achieving the goals of the HMR.

III. Discussion

The examination requirements,

specification of training subjects, and

instructor experience criterion under

COMAR 26.01.10.16.D and

26.13.04.01.F, as well as the

certification requirements themselves,

are training requirements within the

meaning of 49 CFR 172.700(b). Under

that section, ‘‘training’’ is defined as:

[A] systematic program that ensures a

hazmat employee has familiarity with the

general provisions of [the HMR], is able to

recognize and identify hazardous materials,

has knowledge of specific requirements of

[the HMR] applicable to functions performed

by the employee, and has knowledge of

emergency response information, selfprotection measures and accident prevention

methods and procedures.

The term ‘‘training,’’ then,

particularly as it extends to ‘‘ensuring’’

hazmat employee knowledge in the

specified areas, encompasses more than

the subject matter that hazmat

employees are required to learn. It also

includes the means by which hazmat

employees are instructed and by which

the enforcing governmental body may

determine that instruction has been

successful. Accordingly, ‘‘training

requirements’’ include not only

provisions that specify the subject

matter of training, but also those that,

for instance, prescribe how instruction

is to be conducted and documented.

That the term should be read broadly

is evidenced by 49 CFR 172.701, which

states: ‘‘This subpart * * * prescribe[s]

minimum training requirements for the

transportation of hazardous materials’’

(emphasis added). Thus, under section

172.701, the requirements of the

subpart, 49 CFR 172.700–.704,

including examination requirements, 49

CFR 172.702(d), and training

documentation requirements, 49 CFR

172.704(d), all are ‘‘training

requirements.’’ As to the Maryland

certification requirements, the sole

criterion for issuance of the operator

certificate under COMAR 26.01.10.17

and 26.13.04.01.F is satisfactory

completion of prescribed training (an

applicant under COMAR 26.13.04.01.F

also must submit a $20 fee, presumably

for processing). The certificate,

therefore, is no more and no less than

a documentation of training, and the

certification requirement is a training

requirement.

This reading is consistent with the

basis of 49 CFR 172.701. As discussed

in the determination, this section,

which permits a State to apply motor

vehicle operator training requirements

more strict than the HMR only to those

domiciled in the State, balances

competing interests. On the one hand, it

‘‘recognizes the traditional regulation by

States of their own resident drivers.’’ 59

FR 28919 (quoting 57 FR 20944, 20947

(May 15, 1992)). On the other, it

recognizes that:

Were States permitted to impose stricter

requirements on non-resident operators,

operators potentially would be subject to

numerous sets of training requirements, with

resulting confusion, cost and paperwork

burdens.

59 FR 28919.

Confusion, cost and paperwork

burdens would result not only from

States specifying different subject

matters in which non-domiciled vehicle

operators must be instructed, but just as

much from disparate examination,

documentation and certification

requirements. In Inconsistency Ruling

(IR–) 26, 54 FR 16314 (Apr. 21, 1989),

California required non-resident motor

vehicle operators to have a NonResident Special Certificate or an

employer’s certification on a Stateapproved form before entering the State.

RSPA found this to be a training

requirement preempted by the HMR. 54

FR at 16323–24. We found that

‘‘documentary prerequisites for the

transportation of hazardous materials’’

imposed on non-domiciled operators

would cause unnecessary delays in the

transportation of hazardous materials in

commerce. 54 FR 16323. Section

172.701 closely adopts the rationale of

IR–26. See 57 FR 20947.

Furthermore, MDE states in its

petition, again, that its examination and

certification requirements are ‘‘to

demonstrate that the training received

by the drivers is adequate to insure the

safe transportation and transfer of

hazardous materials in Maryland.’’ As

thus characterized, these are training

requirements within the § 172.700(b)

definition. More directly, MDE asserted

in its June 23, 1993 comments on the

CWTI/NTTC application:

Subpart H (49 CFR 172.700(b)) defines

training to mean ‘‘a systematic program that

ensures a hazmat employee * * * is able to

recognize and identify hazardous materials

* * * and has knowledge of emergency

response information, self protection

measures and accident prevention methods

and procedures.’’ These are exactly the issues

addressed by the State’s training

requirements.

MDE’s characterization at that time is

diametrically opposed to the position it

now takes. For the reasons discussed,

RSPA agreed with MDE’s earlier

characterization, and is not now

persuaded to the contrary.

Whether the specific requirement to

obtain a certificate of training from the

State fails the obstacle test was not

explicitly addressed in the

determination. As MDE directly raises

the issue in its petition, this decision

will address it. Because the certification

requirements are training requirements,

to determine whether they are an

‘‘obstacle to accomplishing and carrying

out’’ Federal hazmat law, 49 U.S.C.

5125(a)(2), it is necessary only to

determine whether they violate 49 CFR

172.701. A training requirement that

violates 49 CFR 172.701 is an obstacle

as a matter of law. See 59 FR 28919. The

HMR do not require an operator to

obtain a certificate of training from a

governmental body; therefore, the MDE

requirement to do so is more strict than

the HMR, and is preempted as an

obstacle. See IR–26, 54 FR at 16323

(discussed above).

MDE is correct that if the

requirements in issue were not training

requirements, then 49 CFR 172.701

would not apply. If 49 CFR 172.701 did

not apply, RSPA could not find that

merely because the requirements as

applied to non-domiciled operators are

stricter than the HMR, they violate the

obstacle test. Rather, RSPA would need

to analyze whether these particular

requirements in fact create an obstacle.

MDE supposes wrongly, however, that

if the certification requirements are

training requirements, it is not

necessary to examine them ‘‘as applied

or enforced.’’ 49 U.S.C. 5125(a)(2).

Section 172.701 simply establishes, as a

matter of law, when non-Federal motor

vehicle operator training requirements

are an obstacle to accomplishing the

goals of the HMR. Under the obstacle

test, however, the non-Federal

requirements to be considered are those

that are applied or enforced. For one,

this ensures that RSPA does not expend

resources considering hypothetical

preemption issues.

Absent contrary evidence in the

record, RSPA presumes that a State rule

is applied and enforced by its clear

terms. In this case, MDE does not

dispute that the operator of an oil cargo
Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Notices 10421

tank subject to COMAR 26.10.01.16.D

must appear at a place designated by

MDE and demonstrate, by passing an

examination, that he or she has

knowledge of procedures for handling

oil. MDE does not dispute that the

training received by an operator of a

CHS transport vehicle subject to

COMAR 26.13.04.01.F must include

instruction in certain Maryland

requirements and must be administered

by an instructor meeting certain

experience requirements. Finally, MDE

does not dispute that a cargo tank motor

vehicle carrying oil or a vehicle carrying

CHS may not be operated in Maryland

for the purpose of loading or unloading

within the State, unless the operator has

applied to the MDE and received the

required certificate.

As to how the provisions in question

are enforced or applied, MDE disputes

only RSPA’s characterization of the CHS

operator’s examination requirement. It

states that an examination is not

required, but that a statement from the

operator’s employer that approved

training has been completed may

suffice. See also 58 FR 29322–23 & n. 5

(CWTI/NTTC agreement with this

characterization). COMAR

26.13.04.01.F(6) provides that MDE may

require an applicant for a certificate to

pass an administered written

examination; MDE does not say

unambiguously that it never so requires.

Regardless, if, as MDE applies and

enforces its rules, there is no

examination requirement under

COMAR 26.13.04.01.F, then no

preemption of an examination

requirement is found. It remains,

however, that the requirement that CHS

vehicle operators apply for and obtain a

certificate is preempted as more strict

than the HMR.

MDE requires operator training in

Maryland hazardous waste regulations,

and concedes that the HMR do not

require this. It claims that its

requirement nevertheless is not more

strict than the HMR because the HMR

should be deemed to require operator

training in the laws of States of

operation. That the MDE believes the

HMR should require operator training in

the laws of States of operation, however,

does not mean that the HMR actually do

require that type of training.

The HMR do not prohibit an employer

from training its employees in the

requirements of the various States.

Indeed, because an employer likely

would be liable for an operator’s

violation of State law, the employer

would be wise to instruct its employees

on the laws of the States in which they

operate. Nonetheless, the HMR do not

require it. Operator training that did not

include instruction in Maryland

hazardous waste law would not for that

reason violate the HMR; it would,

however, violate COMAR

26.13.04.01.F(4). This suffices to show

that the Maryland requirement, in this

respect, is more strict than the HMR.

MDE correctly surmises that its

enforcement of the certificate

requirement against operators of

vehicles loading or unloading CHS other

than RCRA hazardous waste does not

affect the preemption determination. If

the CHS that is not RCRA hazardous

waste otherwise qualifies as a hazardous

material under the HMR, then the

determination applies to operators of

vehicles loading or unloading that

material to the same extent as it applies

to operators loading or unloading RCRA

hazardous waste. If that CHS is not a

hazardous material, the preemption

determination does not apply. Training

requirements for operators of vehicles

not transporting hazardous materials are

not preempted by the HMR.

Finally, the MDE petition suggests

some confusion about the effect of a

RSPA preemption determination that

rules unfavorably on some, but not all,

elements of a State rule. The Maryland

rules are preempted only to the extent

that they are an obstacle to

accomplishing the purposes of Federal

hazmat law. Ray v. Atlantic Richfield,

Inc., 435 U.S. 151 (1978). Accordingly,

to the extent the rules are applied and

enforced against non-domiciled

operators without the offending

elements, namely the requirement to

pass an MDE-administered examination,

the requirement for training in

Maryland laws, the instructor

experience criterion and the

certification requirement, they are not

preempted.

IV. Ruling

For the reasons stated above, the MDE

petition for reconsideration is denied.

This decision incorporates and reaffirms

the determination, set forth at 59 FR

28920, that 49 U.S.C. 5125:

Preempts Maryland regulations COMAR

26.10.01.16.D and COMAR 26.13.04.01.F,

requiring certification of operators of motor

vehicles loading or unloading hazardous

materials in Maryland, as they apply to

vehicle operators not domiciled in Maryland.

Specifically, these requirements are stricter

than Federal operator training requirements

and therefore are obstacles to accomplishing

the full purposes and objectives of [Federal

hazmat law]. As applied to vehicle operators

domiciled in Maryland, the requirements are

not preempted.

V. Final Agency Action

In accordance with 49 CFR

107.211(d), this decision constitutes

RSPA’s final agency action on the April

19, 1993 CWTI/NTTC application for a

determination of preemption as to the

above-specified Maryland requirements.

Any party to this proceeding may seek

review of this determination ‘‘by the

appropriate district court of the United

States * * * within 60 days after such

decision becomes final.’’ 49 U.S.C. 5125.

Issued in Washington, DC on February 17,

1995.

Alan I. Roberts.

Associate Administrator for Hazardous

Materials Safety.

[FR Doc. 95–4625 Filed 2–23–95; 8:45 am]

BILLING CODE 4910–60–P

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