Hazardous Materials: California Meal and Rest Break Requirements, 60777-60779 [2016-21205]
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mstockstill on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / Notices
environment. Likely areas of
investigation include effects on air
quality and greenhouse gas emissions,
property acquisition and displacements,
ecosystems (including threatened and
endangered species), community
livability, energy use, environmental
justice, geology and soils, hazardous
materials, historic and cultural
resources, land use and economic
effects, noise and vibration, parks and
recreation, safety and security,
transportation, utilities and public
services, visual and aesthetic qualities,
water quality and hydrology, and
wetlands. Significant impacts prior to
the development of mitigation measures
may occur in the areas of property
acquisition and displacements, historic
and cultural resources, noise and
vibration, parks and recreation,
transportation, visual and aesthetic
qualities, water quality and hydrology,
and wetlands. Significant beneficial
impacts could occur in the areas of air
quality and greenhouse gas emissions,
energy use, environmental justice, safety
and security, and transportation. The
EIS will evaluate short-term
construction impacts and long-term
operating impacts and will also consider
indirect and cumulative impacts. The
EIS will propose measures to avoid,
minimize, and mitigate adverse impacts.
In accordance with FTA policy and
regulations, FTA, Metro and TriMet will
comply with all Federal environmental
laws, regulations, and executive orders
applicable to the proposed project
during the environmental review
process.
Roles of Agencies and the Public:
NEPA, and FTA’s regulations for
implementing NEPA, call for broad
involvement in the EIS process. FTA,
Metro and TriMet therefore invite
Federal and non-Federal agencies and
Indian tribes to participate in the NEPA
process. Any agency or tribe interested
in the Project that does not receive such
an invitation should promptly notify the
Metro Investment Area Project Manager
identified above under ADDRESSES.
Interested parties may review a draft
Coordination Plan for public and agency
involvement at the Project Web site. It
identifies the Project’s coordination
approach and structure, details the
major milestones for agency and public
involvement, and includes an initial list
of interested agencies and organizations.
Combined FEIS and Record of
Decision: Under 23 U.S.C. 139, FTA
should combine the Final EIS and
Record of Decision if it is practicable.
FTA invites interested parties to
comment on a combined FEIS/ROD for
the Project to help FTA decide whether
combining the FEIS/ROD is practicable.
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specific request for a complete printed
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environmental document will be
available for review at Metro’s offices;
an electronic copy of the complete
environmental document will be
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Other: Metro and TriMet may seek
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submission of certain projectjustification information to support a
request to initiate preliminary
engineering. This information is
normally developed in conjunction with
the NEPA process. The EIS will include
pertinent New Starts evaluation criteria.
Dated: August 25, 2016.
Kenneth A. Feldman,
Deputy Regional Administrator, Federal
Transit Administration, Region 10, Seattle,
WA.
[FR Doc. 2016–21160 Filed 9–1–16; 8:45 am]
BILLING CODE P
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
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Public notice and invitation to
comment.
AGENCY:
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
SUMMARY:
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60777
from requiring an employee to work
during any mandatory meal or rest
period.
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: https://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
https://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
DATES:
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02SEN1
60778
Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / Notices
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477–78), or you may visit https://
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 https://
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:
mstockstill on DSK3G9T082PROD with NOTICES
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
1 See
CA LABOR §§ 226.7 (2015); 512 (2015).
relevant IWC provisions for meal and rest
periods are located in section 11 (Meal Periods) and
section 12 (Rest Periods). See 8 CCR §§ 11090(11)
and (12).
2 The
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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 § 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
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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 § 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 nonFederal 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
3 Additional standards apply to preemption of
non-Federal requirements on highway routes over
which hazardous materials may or may not be
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Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / Notices
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 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.
mstockstill on DSK3G9T082PROD with NOTICES
Public Law 101–615 § 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
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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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.’’
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60779
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
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
[Docket No. PHMSA–2016–0066 (Notice No.
16–16)]
Information Collection Activities
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of Transportation
(DOT).
ACTION: Notice and request for
comments.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995,
PHMSA issues this notice to announce
that the Information Collection Requests
(ICR) discussed below will be forwarded
to the Office of Management and Budget
(OMB) for renewal and extension. This
ICR describes the nature of the
information collection and its expected
burden. On June 27, 2016 [81 FR 41648],
PHMSA published a Federal Register
notice with a 60-day comment period
under Docket No. PHMSA–2016–0066
(Notice No. 2016–10) that solicited
comments pertaining to this ICR.
PHMSA did not receive any comments
in response to the June 27, 2016 notice.
DATES: Interested persons are invited to
submit comments on, or before October
3, 2016.
ADDRESSES: Send comments regarding
the burden estimate, including
suggestions for reducing the burden, by
any of the following methods:
• Mail: Office of Information and
Regulatory Affairs, Office of
Management and Budget, Attention:
Desk Officer for DOT–PHMSA, 725 17th
Street NW., Washington, DC 20503.
SUMMARY:
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Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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:
https://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 https://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 https://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 https://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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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