[Federal Register Volume 60, Number 37 (Friday, February 24, 1995)]
[Notices]
[Pages 10419-10421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4625]



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DEPARTMENT OF TRANSPORTATION
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.

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    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 
[[Page 10420]] 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, self-protection 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 Non-Resident 
Special Certificate or an employer's certification on a State-approved 
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 
Sec. 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 [[Page 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]
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