[Federal Register Volume 81, Number 171 (Friday, September 2, 2016)]
[Notices]
[Pages 60777-60779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21205]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2016-0097; PDA-38(R)]


Hazardous Materials: California Meal and Rest Break Requirements

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by 
the National Tank Truck Carriers, Inc. (NTTC) for an administrative 
determination as to whether Federal hazardous material transportation 
law preempts regulations of the State of California that prohibit an 
employer from requiring an employee to work during any mandatory meal 
or rest period.

DATES: Comments received on or before October 17, 2016 and rebuttal 
comments received on or before December 1, 2016 will be considered 
before an administrative determination is issued by PHMSA's Chief 
Counsel. Rebuttal comments may discuss only those issues raised by 
comments received during the initial comment period and may not discuss 
new issues.

ADDRESSES: The NTTC's application and all comments received may be 
reviewed in the Docket Operations Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590. The application and all 
comments are available on the U.S. Government Regulations.gov Web site: 
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2016-0097 and may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Docket Operations Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9:00 a.m. and 
5:00 p.m., Monday through Friday, except Federal holidays.
    A copy of each comment must also be sent to (1) Prasad Sharma, 
Esq., Scopelitis, Garvin, Light, Hanson & Feary, 1850 M Street, NW., 
Suite 280, Washington, DC 20036, and (2) Kamala D. Harris, Attorney 
General, Office of the Attorney General, 1300 ``I'' Street, Sacramento, 
CA 95814-2919. A certification that a copy has been sent to these 
persons must also be included with the comment. (The following format 
is suggested: ``I certify that copies of this comment have been sent to 
Mr. Sharma and Ms. Harris at the addresses specified in the Federal 
Register.'')
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing a comment submitted on behalf of an 
association, business, labor union, etc.). You may

[[Page 60778]]

review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477-78), or you may visit http://www.regulations.gov.
    A subject matter index of hazardous materials preemption cases, 
including a listing of all inconsistency rulings and preemption 
determinations, is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Hazardous Materials 
Safety,'' then on ``Standards & Rulemaking,'' then on ``Preemption 
Determinations'' located on the right side of the page. A paper copy of 
the index will be provided at no cost upon request to Mr. Lopez, at the 
address and telephone number set forth in the FOR FURTHER INFORMATION 
CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel 
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., Washington, 
DC 20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    NTTC has applied to PHMSA for a determination whether Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts 
California meal and rest break requirements, as applied to hazardous 
materials carriers. NTTC states ``California law . . . generally 
prohibits an employer (e.g., a motor carrier) from requiring an 
employee (e.g., a driver) to work during any meal or rest period 
mandated by an applicable order of the Industrial Welfare Commission 
(`IWC').'' \1\ The IWC Order for the transportation industry, codified 
in the California Code of Regulations (CCR), title 8, section 11090, 
contains the requirements for meal and rest periods. Under the rules, 
an employee is entitled to a thirty minute meal period after five hours 
of work and a second thirty minute meal period after ten hours of work. 
Generally, the employee must be ``off duty'' during the meal period. 
For rest periods, employees are entitled to a ten minute rest period 
for every four hours worked. And, if a meal or rest period is not 
provided, the employer shall pay the employee one hour of pay.\2\
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    \1\ See CA LABOR Sec. Sec.  226.7 (2015); 512 (2015).
    \2\ The relevant IWC provisions for meal and rest periods are 
located in section 11 (Meal Periods) and section 12 (Rest Periods). 
See 8 CCR Sec. Sec.  11090(11) and (12).
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    NTTC presents three main arguments for why it believes the meal and 
rest break requirements should be preempted. First, NTTC contends that 
the California requirements ``were not promulgated with an eye toward 
safe transportation of hazardous materials[,]'' or the Federal hours of 
service regulations, and thus, they create the potential for 
unnecessary delay when a driver must deviate from his or her route to 
comply with the requirements. Next, NTTC argues that the meal and rest 
break requirements conflict with the Hazardous Material Regulations 
(HMR)'s attendance requirements because under certain circumstances, 
the HMR ``implicate the driver `working' under California law.'' As 
such, NTTC says that a carrier (employer) cannot comply with both the 
State and Federal requirements. Last, NTTC points out that although not 
mandatory in the HMR security plan requirements, many motor carriers 
include a ``constant attendance of cargo'' requirement in their written 
security plans. However, NTTC contends that the California meal and 
rest break requirements are inflexible and may create unnecessary stops 
or prohibit constant attendance. Therefore, NTTC believes the 
requirements are an obstacle to the security objectives of the HMR.
    In summary, NTTC contends the California meal and rest break 
regulations should be preempted because they:
     Create unnecessary delay for the transportation of 
hazardous materials;
     Conflict with the HMR attendance requirements; and
     Create an obstacle to accomplishing the security 
objectives of the HMR.

II. Federal Preemption

    Section 5125 of 49 U.S.C. contains express preemption provisions 
relevant to this proceeding. As amended by Section 1711(b) of the 
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2319), 49 
U.S.C. 5125(a) provides that a requirement of a State, political 
subdivision of a State, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants 
a waiver of preemption under Sec.  5125(e)--if

    (1) complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter, a 
regulation prescribed under this chapter, or a hazardous materials 
transportation security regulation or directive issued by the 
Secretary of Homeland Security is not possible; or
    (2) the requirement of the State, political subdivision, or 
tribe, as applied or enforced, is an obstacle to accomplishing and 
carrying out this chapter, a regulation prescribed under this 
chapter, or a hazardous materials transportation security regulation 
or directive issued by the Secretary of Homeland Security.

    These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA's predecessor agency, the Research and 
Special Programs Administration, 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 is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Department of Homeland 
Security:

    (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 and 
other written hazardous materials transportation incident reporting 
involving State or local emergency responders in the initial 
response to the incident.
    (E) the designing, manufacturing, fabricating, inspecting, 
marking, maintaining, reconditioning, repairing, or testing a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material in commerce.

    To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).\3\
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    \3\ Additional standards apply to preemption of non-Federal 
requirements on highway routes over which hazardous materials may or 
may not be transported and fees related to transporting hazardous 
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) 
which explains that a ``facility at which functions regulated under 
the HMR are performed may be subject to applicable laws and 
regulations of state and local governments and Indian tribes.''

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[[Page 60779]]

    The 2002 amendments and 2005 reenactment of the preemption 
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view 
that a single body of uniform Federal regulations promotes safety 
(including security) in the transportation of hazardous materials. More 
than thirty years ago, when it was 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 Congress expanded the preemption provisions in 
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1990, it specifically found:

    (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.

    Public Law 101-615 Sec.  2, 104 Stat. 3244. (In 1994, Congress 
revised, codified and enacted the HMTA ``without substantive change,'' 
at 49 U.S.C. Chapter 51. Public Law 103-272, 108 Stat. 745 (July 5, 
1994).) A United States Court of Appeals has found uniformity was the 
``linchpin'' in the design of the Federal laws governing the 
transportation of hazardous materials. Colorado Pub. Util. Comm'n v. 
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe may apply to 
the Secretary of Transportation for a determination whether the 
requirement is preempted. The Secretary of Transportation has delegated 
authority to PHMSA to make determinations of preemption, except for 
those concerning highway routing (which have been delegated to the 
Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(c). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211. A petition for judicial review of 
a final preemption determination must be filed in the United States 
Court of Appeals for the District of Columbia or in the Court of 
Appeals for the United States for the circuit in which the petitioner 
resides or has its principal place of business, within 60 days after 
the determination becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution, or 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, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(f)(1). 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), PHMSA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). Section 4(a) of that Executive Order authorizes 
preemption of State laws only when a statute contains an express 
preemption provision, there is other clear evidence Congress intended 
to preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. The President's May 
20, 2009 memorandum sets forth the policy ``that preemption of State 
law by executive departments and agencies should be undertaken only 
with full consideration of the legitimate prerogatives of the States 
and with a sufficient legal basis for preemption.'' Section 5125 
contains express preemption provisions, which PHMSA has implemented 
through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts 
regulations of the State of California that prohibit an employer from 
requiring an employee to work during any mandatory meal or rest period. 
Comments should specifically address the preemption criteria discussed 
in Part II above.

    Issued in Washington, DC, on August 23, 2016.
Joseph Solomey,
Senior Assistant Chief Counsel.
[FR Doc. 2016-21205 Filed 9-1-16; 8:45 am]
 BILLING CODE 4910-60-P