[Federal Register Volume 85, Number 35 (Friday, February 21, 2020)]
[Notices]
[Pages 10216-10218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03449]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2016-0097; PD-38(R)]
Hazardous Materials: California Meal and Rest Break Requirements
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Dismissal of petition for reconsideration of an administrative
determination of preemption.
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Petitioner: The California Labor Commissioner.
Local Law Affected: California Labor Code, Sections 226.7, 512, and
516; California Code of Regulations (CCR), title 8, section 11090.
Applicable Federal Requirements: Federal Hazardous Material
Transportation Law (HMTA), 49 U.S.C. 5101 et seq., and the Hazardous
Materials Regulations (HMR), 49 CFR parts 171-180.
Mode Affected: Highway.
SUMMARY: On September 21, 2018, in response to a petition from the
National Tank Truck Carriers, Inc. (NTTC), PHMSA published a
determination that California's meal and rest break rules (MRB Rules)
are preempted, under 49 U.S.C. 5125, as applied to drivers of motor
vehicles transporting hazardous materials. The California Labor
Commissioner's petition for reconsideration of that decision is denied
on the grounds of mootness. After PHMSA issued its preemption
determination, and after the request for reconsideration was filed, the
Federal Motor Carrier Safety Administration (FMCSA) determined that the
MRB Rules are preempted, under 49 U.S.C. 31141, as applied to property-
carrying commercial motor vehicles drivers covered by FMCSA's hours of
service regulations. FMCSA's decision covers a broader group of drivers
than PHMSA's decision, including NTTC's members. Accordingly, granting
the California Labor Commissioner's petition for reconsideration will
not change the fact that the MRB Rules cannot be enforced against
NTTC's members.
FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief
Counsel, 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. Background
A. PHMSA Proceeding
NTTC applied to PHMSA for a determination on whether Federal
Hazardous Material Transportation Law, 49 U.S.C. 5101 et seq., preempts
the MRB Rules, as applied to the transportation of hazardous materials.
Section 5125 of 49 U.S.C. contains express preemption provisions
relevant to this proceeding. In particular, subsection (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 section 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.\1\
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\1\ These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that are based on U.S. Supreme Court decisions
on preemption. See 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). PHMSA's predecessor
agency, the Research and Special Programs Administration, applied
these criteria in issuing inconsistency rulings under the original
preemption provisions in Section 112(a) of the Hazardous Materials
Transportation Act, Public Law 93-633, 88 Stat. 2161 (Jan. 3, 1975).
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PHMSA 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
[[Page 10217]]
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).\2\
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\2\ A State, local or Indian tribe requirement is not
``authorized by'' another federal statute merely because it is not
preempted by that statute. See Colorado Pub. Util. Comm'n v. Harmon,
951 F.2d 1571,1581 n.10 (10th Cir. 1991).
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On September 21, 2018, PHMSA published in the Federal Register its
determination of NTTC's application in PD-38(R), 83 FR 47961. PHMSA
found that the MRB Rules create an unnecessary delay in the
transportation of hazardous materials, and are therefore, preempted
with respect to all drivers of motor vehicles that are transporting
hazardous materials. The agency also found that the MRB Rules are
preempted with respect to drivers of motor vehicles that are
transporting Division 1.1, 1.2, or 1.3 explosive material and are
subject to the attendance requirements of 49 CFR 397.5(a), because it
is not possible for a motor carrier employer's drivers to comply with
the off-duty requirement of the California rule and the federal
attendance requirement. Finally, the MRB Rules are preempted as to
motor carriers who are required to file a security plan under 49 CFR
172.800, and who have filed security plans requiring constant
attendance of hazardous materials.
The California Labor Commissioner (Labor Commissioner) filed a
petition for reconsideration of PD-38(R) within the 20-day time period
provided in 49 CFR 107.211. The Labor Commissioner is seeking
reconsideration of PD-38(R) and has asked PHMSA to issue a new
determination finding no preemption.
B. FMCSA Proceeding
On September 24, 2018, the American Trucking Associations, Inc.
(ATA) petitioned FMCSA to preempt the California MRB Rules as applied
to drivers of commercial motor vehicles subject to FMCSA's hours of
service (HOS) regulations. The Specialized Carriers and Rigging
Association (SCRA) also filed a petition seeking a preemption
determination concerning the same meal and rest break requirements.\3\
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\3\ FMCSA did not open a separate docket for the SCRA's petition
because the SCRA submitted its petition in lieu of comments as part
of the ATA proceeding, Docket No. FMCSA-2018-0304.
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FMCSA's preemption authority arises under the Motor Carrier Safety
Act of 1984. Under 49 U.S.C. 31141, States are prohibited from
enforcing a law or regulation on Commercial Motor Vehicle (CMV) safety
that FMCSA has preempted. To determine whether a State law or
regulation is preempted, FMCSA must decide whether a State law or
regulation: (1) Has the same effect as an FMCSA regulation prescribed
under 49 U.S.C. 31136, (2) is less stringent than such a regulation; or
(3) is additional to or more stringent than such a regulation. If FMCSA
determines that a State law or regulation has the same effect as an
FMCSA regulation, it may be enforced; but a State law or regulation
that is less stringent may not be enforced. A State law or regulation
that FMCSA determines to be additional to or more stringent than an
FMCSA regulation may not be enforced if FMCSA decides that the State
law or regulation (1) has no safety benefit; (2) is incompatible with
the FMCSA regulation prescribed by FMCSA; or (3) would cause an
unreasonable burden on interstate commerce. To determine whether a
State law or regulation will cause an unreasonable burden on interstate
commerce, FMCSA may consider the cumulative effect that the State's law
or regulation and all similar laws and regulations of other states will
have on interstate commerce. Only one of these conditions is necessary
for preemption. See 49 U.S.C. 31141(c)(1)-(5).
On December 28, 2018, FMCSA published in the Federal Register its
determination with respect to ATA's application, 83 FR 67470. FMCSA
concluded that: (1) The MRB Rules are State laws or regulations ``on
commercial motor vehicle safety,'' to the extent they apply to drivers
of property-carrying CMVs subject to FMCSA's HOS rules; (2) the MRB
Rules are additional to or more stringent than FMCSA's HOS rules; (3)
the MRB Rules have no safety benefit; (4) the MRB Rules are
incompatible with FMCSA's HOS rules; and (5) enforcement of the MRB
Rules would cause an unreasonable burden on interstate commerce.
Accordingly, FMCSA granted the petitions for preemption of the ATA and
the SCRA, and determined that the MRB Rules are preempted pursuant to
49 U.S.C. 31141. Therefore, California may no longer enforce the MRB
Rules with respect to drivers of property-carrying CMVs subject to
FMCSA's HOS rules. As noted below, NTTC has made clear in this PHMSA
proceeding that its members are covered by FMCSA's HOS rules; thus, the
FMCSA decision precludes the enforcement of the MRB Rules against
NTTC's members.
FMCSA, after issuing its decision, received inquiries about whether
a preemption decision it issued under Section 31141 applies to
litigation that was pending at the time the decision was issued.
Therefore, on March 22, 2019, FMCSA's Office of the Chief Counsel
issued a legal opinion to address this question.\4\ The agency
concluded that a FMCSA preemption decision under Section 31141
precludes courts from granting relief pursuant to the preempted state
law or regulation at any time following issuance of the decision,
regardless of whether the conduct underlying the lawsuit occurred
before or after the decision was issued, and regardless of whether the
lawsuit was filed before or after the decision was issued.
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\4\ Federal Motor Carrier Safety Administration Legal Opinion of
the Office of Chief Counsel (March 22, 2019), available at https://www.fmcsa.dot.gov/safety/fmcsa-legal-opinion-applicability-preemption-determinations-pending-lawsuits.
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Four petitions for review challenging FMCSA's decision have been
filed in the U.S. Court of Appeals for the Ninth Circuit. The cases
have been consolidated and the proceeding is currently ongoing.\5\
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\5\ Intl Brotherhood of Teamsters, et al v. FMCSA, Court of
Appeals Docket No.: 18-73488; Consolidated Docket Nos.: 19-70323;
19-70329; and 19-70413.
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II. Dismissal on Grounds of Mootness
FMCSA's preemption determination renders moot the California Labor
Commissioner's petition for reconsideration of PHMSA's preemption
determination. While PHMSA's determination applied to drivers of motor
vehicles transporting hazardous materials, FMCSA's determination
applies to a broader class of drivers: All drivers of property-carrying
CMVs subject to FMCSA's HOS rules. NTTC's filings in this PHMSA
proceeding make clear that its members--companies that specialize in
bulk transportation services by cargo tank throughout North America--
are subject to FMCSA's HOS rules. FMCSA's decision therefore precludes
enforcement of the MRB Rules against NTTC's members.
Furthermore, the express language of FMCSA's statute makes its
preemption decision binding on courts. The plain language of FMCSA's
preemption provision states that a ``State may not enforce a State law
or regulation on commercial motor vehicle safety that the Secretary of
Transportation decides under this section may not be enforced.'' 49
U.S.C. 31141(a). Thus, as noted in the FMCSA legal opinion discussed
above, once the agency issues a preemption decision under Section
31141, ``the State law or regulation, to the extent preempted, is
invalidated and `without effect,' and courts lack authority to take any
contrary action on the basis of that State law or regulation,
regardless of when the underlying
[[Page 10218]]
conduct occurred.'' Because 49 U.S.C. 31141(f) grants the Courts of
Appeals exclusive jurisdiction to review FMCSA's decision, and because
the Ninth Circuit denied a request that FMCSA's decision be stayed
during the pendency of the litigation, FMCSA's decision will remain
binding unless and until overturned by the Ninth Circuit. Therefore,
FMCSA's decision rendered the MRB Rules ``without effect'' with respect
to drivers of property-carrying CMVs subject to FMCSA's HOS rules--
including NTTC's members--and may not be enforced. A PHMSA ruling
granting the California Labor Commissioner's petition for
reconsideration would not change the fact that the MRB Rules cannot be
enforced against NTTC's members.
III. Ruling
For the reasons set forth above, the California Labor
Commissioner's petition for reconsideration is dismissed because the
issues raised in the petition are moot. In the event the FMCSA decision
is overturned and the state requirements become enforceable again, the
California Labor Commissioner may petition PHMSA to reopen the docket
so that it may refile its petition for reconsideration.
Issued in Washington, DC, on February 13, 2020.
Paul J. Roberti,
Chief Counsel.
[FR Doc. 2020-03449 Filed 2-20-20; 8:45 am]
BILLING CODE 4910-60-P