[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


