81 FR 60777 - Hazardous Materials: California Meal and Rest Break Requirements

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration

Federal Register Volume 81, Issue 171 (September 2, 2016)

Page Range		60777-60779
FR Document		2016-21205

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.

Federal Register, Volume 81 Issue 171 (Friday, September 2, 2016)

[Federal Register Volume 81, Number 171 (Friday, September 2, 2016)]
[Notices]
[Pages 60777-60779]
From the Federal Register Online [www.thefederalregister.org]
[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

60778 Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / Notices

review DOT’s complete Privacy Act NTTC presents three main arguments out this chapter, a regulation prescribed
Statement in the Federal Register for why it believes the meal and rest under this chapter, or a hazardous materials
published on April 11, 2000 (65 FR break requirements should be transportation security regulation or directive
19477–78), or you may visit http:// preempted. First, NTTC contends that issued by the Secretary of Homeland
Security.
www.regulations.gov. the California requirements ‘‘were not
A subject matter index of hazardous promulgated with an eye toward safe These two paragraphs set forth the
materials preemption cases, including a transportation of hazardous materials[,]’’ ‘‘dual compliance’’ and ‘‘obstacle’’
listing of all inconsistency rulings and or the Federal hours of service criteria that PHMSA’s predecessor
preemption determinations, is available regulations, and thus, they create the agency, the Research and Special
through PHMSA’s home page at http:// potential for unnecessary delay when a Programs Administration, had applied
phmsa.dot.gov. From the home page, driver must deviate from his or her in issuing inconsistency rulings prior to
click on ‘‘Hazardous Materials Safety,’’ route to comply with the requirements. 1990, under the original preemption
then on ‘‘Standards & Rulemaking,’’ Next, NTTC argues that the meal and provision in the Hazardous Materials
then on ‘‘Preemption Determinations’’ rest break requirements conflict with the Transportation Act (HMTA). Pub. L. 93–
located on the right side of the page. A Hazardous Material Regulations 633 § 112(a), 88 Stat. 2161 (1975). The
paper copy of the index will be (HMR)’s attendance requirements dual compliance and obstacle criteria
provided at no cost upon request to Mr. because under certain circumstances, are based on U.S. Supreme Court
Lopez, at the address and telephone the HMR ‘‘implicate the driver ‘working’ decisions on preemption. Hines v.
number set forth in the FOR FURTHER under California law.’’ As such, NTTC Davidowitz, 312 U.S. 52 (1941); Florida
INFORMATION CONTACT section below. says that a carrier (employer) cannot Lime & Avocado Growers, Inc. v. Paul,
comply with both the State and Federal 373 U.S. 132 (1963); Ray v. Atlantic
FOR FURTHER INFORMATION CONTACT:
requirements. Last, NTTC points out Richfield, Inc., 435 U.S. 151 (1978).
Vincent Lopez, Office of Chief Counsel
that although not mandatory in the Subsection (b)(1) of 49 U.S.C. 5125
(PHC–10), Pipeline and Hazardous
HMR security plan requirements, many provides that a non-Federal requirement
Materials Safety Administration, U.S.
motor carriers include a ‘‘constant concerning any of the following subjects
Department of Transportation, 1200
attendance of cargo’’ requirement in is preempted—unless authorized by
New Jersey Avenue SE., Washington,
their written security plans. However, another Federal law or DOT grants a
DC 20590; telephone No. 202–366–4400;
NTTC contends that the California meal waiver of preemption—when the non-
facsimile No. 202–366–7041.
and rest break requirements are Federal requirement is not
SUPPLEMENTARY INFORMATION: inflexible and may create unnecessary ‘‘substantively the same as’’ a provision
I. Application for a Preemption stops or prohibit constant attendance. of Federal hazardous material
Determination Therefore, NTTC believes the transportation law, a regulation
requirements are an obstacle to the prescribed under that law, or a
NTTC has applied to PHMSA for a security objectives of the HMR. hazardous materials security regulation
determination whether Federal In summary, NTTC contends the or directive issued by the Department of
hazardous material transportation law, California meal and rest break Homeland Security:
49 U.S.C. 5101 et seq., preempts regulations should be preempted
California meal and rest break because they: (A) the designation, description, and
classification of hazardous material.
requirements, as applied to hazardous • Create unnecessary delay for the (B) the packing, repacking, handling,
materials carriers. NTTC states transportation of hazardous materials; labeling, marking, and placarding of
‘‘California law . . . generally prohibits • Conflict with the HMR attendance hazardous material.
an employer (e.g., a motor carrier) from requirements; and (C) the preparation, execution, and use of
requiring an employee (e.g., a driver) to • Create an obstacle to accomplishing shipping documents related to hazardous
work during any meal or rest period the security objectives of the HMR. material and requirements related to the
mandated by an applicable order of the number, contents, and placement of those
Industrial Welfare Commission II. Federal Preemption documents.
(‘IWC’).’’ 1 The IWC Order for the Section 5125 of 49 U.S.C. contains (D) the written notification, recording, and
transportation industry, codified in the express preemption provisions relevant reporting of the unintentional release in
California Code of Regulations (CCR), to this proceeding. As amended by transportation of hazardous material and
other written hazardous materials
title 8, section 11090, contains the Section 1711(b) of the Homeland transportation incident reporting involving
requirements for meal and rest periods. Security Act of 2002 (Pub. L. 107–296, State or local emergency responders in the
Under the rules, an employee is entitled 116 Stat. 2319), 49 U.S.C. 5125(a) initial response to the incident.
to a thirty minute meal period after five provides that a requirement of a State, (E) the designing, manufacturing,
hours of work and a second thirty political subdivision of a State, or fabricating, inspecting, marking, maintaining,
minute meal period after ten hours of Indian tribe is preempted—unless the reconditioning, repairing, or testing a
work. Generally, the employee must be non-Federal requirement is authorized package, container, or packaging component
‘‘off duty’’ during the meal period. For by another Federal law or DOT grants a that is represented, marked, certified, or sold
rest periods, employees are entitled to a waiver of preemption under § 5125(e)— as qualified for use in transporting hazardous
material in commerce.
ten minute rest period for every four if
hours worked. And, if a meal or rest (1) complying with a requirement of the To be ‘‘substantively the same,’’ the
period is not provided, the employer State, political subdivision, or tribe and a non-Federal requirement must conform
mstockstill on DSK3G9T082PROD with NOTICES

shall pay the employee one hour of requirement of this chapter, a regulation ‘‘in every significant respect to the
pay.2 prescribed under this chapter, or a hazardous Federal requirement. Editorial and other
materials transportation security regulation similar de minimis changes are
1 See CA LABOR §§ 226.7 (2015); 512 (2015). or directive issued by the Secretary of permitted.’’ 49 CFR 107.202(d).3
2 The relevant IWC provisions for meal and rest Homeland Security is not possible; or
periods are located in section 11 (Meal Periods) and (2) the requirement of the State, political 3 Additional standards apply to preemption of

section 12 (Rest Periods). See 8 CCR §§ 11090(11) subdivision, or tribe, as applied or enforced, non-Federal requirements on highway routes over
and (12). is an obstacle to accomplishing and carrying which hazardous materials may or may not be

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Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / Notices 60779

The 2002 amendments and 2005 for a determination whether the Section 5125 contains express
reenactment of the preemption requirement is preempted. The preemption provisions, which PHMSA
provisions in 49 U.S.C. 5125 reaffirmed Secretary of Transportation has has implemented through its
Congress’s long-standing view that a delegated authority to PHMSA to make regulations.
single body of uniform Federal determinations of preemption, except
IV. Public Comments
regulations promotes safety (including for those concerning highway routing
security) in the transportation of (which have been delegated to the All comments should be directed to
hazardous materials. More than thirty Federal Motor Carrier Safety whether 49 U.S.C. 5125 preempts
years ago, when it was considering the Administration). 49 CFR 1.97(b). regulations of the State of California that
HMTA, the Senate Commerce Section 5125(d)(1) requires notice of prohibit an employer from requiring an
Committee ‘‘endorse[d] the principle of an application for a preemption employee to work during any
preemption in order to preclude a determination to be published in the mandatory meal or rest period.
multiplicity of State and local Federal Register. Following the receipt Comments should specifically address
regulations and the potential for varying and consideration of written comments, the preemption criteria discussed in
as well as conflicting regulations in the PHMSA publishes its determination in Part II above.
area of hazardous materials the Federal Register. See 49 CFR Issued in Washington, DC, on August 23,
transportation.’’ S. Rep. No. 1102, 93rd 107.209(c). A short period of time is 2016.
Cong. 2nd Sess. 37 (1974). When allowed for filing of petitions for Joseph Solomey,
Congress expanded the preemption reconsideration. 49 CFR 107.211. A
Senior Assistant Chief Counsel.
provisions in 1990, it specifically found: petition for judicial review of a final
preemption determination must be filed [FR Doc. 2016–21205 Filed 9–1–16; 8:45 am]
(3) many States and localities have enacted
laws and regulations which vary from in the United States Court of Appeals BILLING CODE 4910–60–P

Federal laws and regulations pertaining to for the District of Columbia or in the
the transportation of hazardous materials, Court of Appeals for the United States
thereby creating the potential for for the circuit in which the petitioner DEPARTMENT OF TRANSPORTATION
unreasonable hazards in other jurisdictions resides or has its principal place of
and confounding shippers and carriers which Pipeline and Hazardous Materials
business, within 60 days after the
attempt to comply with multiple and Safety Administration
determination becomes final. 49 U.S.C.
conflicting registration, permitting, routing,
notification, and other regulatory 5127(a). [Docket No. PHMSA–2016–0066 (Notice No.
Preemption determinations do not 16–16)]
requirements,
(4) because of the potential risks to life, address issues of preemption arising
property, and the environment posed by under the Commerce Clause, the Fifth Information Collection Activities
unintentional releases of hazardous Amendment or other provisions of the AGENCY: Pipeline and Hazardous
materials, consistency in laws and Constitution, or statutes other than the
regulations governing the transportation of
Materials Safety Administration
Federal hazardous material (PHMSA), Department of Transportation
hazardous materials is necessary and transportation law unless it is necessary
desirable, (DOT).
(5) in order to achieve greater uniformity
to do so in order to determine whether
ACTION: Notice and request for
and to promote the public health, welfare, a requirement is authorized by another
Federal law, or whether a fee is ‘‘fair’’ comments.
and safety at all levels, Federal standards for
regulating the transportation of hazardous within the meaning of 49 U.S.C. SUMMARY: In accordance with the
materials in intrastate, interstate, and foreign 5125(f)(1). A State, local or Indian tribe Paperwork Reduction Act of 1995,
commerce are necessary and desirable. requirement is not authorized by PHMSA issues this notice to announce
Public Law 101–615 § 2, 104 Stat. another Federal law merely because it is that the Information Collection Requests
3244. (In 1994, Congress revised, not preempted by another Federal (ICR) discussed below will be forwarded
codified and enacted the HMTA statute. Colorado Pub. Util. Comm’n v. to the Office of Management and Budget
‘‘without substantive change,’’ at 49 Harmon, above, 951 F.2d at 1581 n.10. (OMB) for renewal and extension. This
U.S.C. Chapter 51. Public Law 103–272, In making preemption determinations
ICR describes the nature of the
108 Stat. 745 (July 5, 1994).) A United under 49 U.S.C. 5125(d), PHMSA is
information collection and its expected
States Court of Appeals has found guided by the principles and policies set
burden. On June 27, 2016 [81 FR 41648],
uniformity was the ‘‘linchpin’’ in the forth in Executive Order No. 13132,
PHMSA published a Federal Register
design of the Federal laws governing the entitled ‘‘Federalism’’ (64 FR 43255
notice with a 60-day comment period
transportation of hazardous materials. (Aug. 10, 1999)), and the President’s
under Docket No. PHMSA–2016–0066
Colorado Pub. Util. Comm’n v. Harmon, May 20, 2009 memorandum on
(Notice No. 2016–10) that solicited
951 F.2d 1571, 1575 (10th Cir. 1991). ‘‘Preemption’’ (74 FR 24693 (May 22,
2009)). Section 4(a) of that Executive comments pertaining to this ICR.
III. Preemption Determinations Order authorizes preemption of State PHMSA did not receive any comments
laws only when a statute contains an in response to the June 27, 2016 notice.
Under 49 U.S.C. 5125(d)(1), any
express preemption provision, there is DATES: Interested persons are invited to
person (including a State, political
subdivision of a State, or Indian tribe) other clear evidence Congress intended submit comments on, or before October
directly affected by a requirement of a to preempt State law, or the exercise of 3, 2016.
State, political subdivision or tribe may State authority directly conflicts with ADDRESSES: Send comments regarding
the exercise of Federal authority. The the burden estimate, including
mstockstill on DSK3G9T082PROD with NOTICES

apply to the Secretary of Transportation
President’s May 20, 2009 memorandum suggestions for reducing the burden, by
transported and fees related to transporting sets forth the policy ‘‘that preemption of any of the following methods:
hazardous material. See 49 U.S.C. 5125(c) and (f). State law by executive departments and • Mail: Office of Information and
See also 49 CFR 171.1(f) which explains that a agencies should be undertaken only Regulatory Affairs, Office of
‘‘facility at which functions regulated under the
HMR are performed may be subject to applicable
with full consideration of the legitimate Management and Budget, Attention:
laws and regulations of state and local governments prerogatives of the States and with a Desk Officer for DOT–PHMSA, 725 17th
and Indian tribes.’’ sufficient legal basis for preemption.’’ Street NW., Washington, DC 20503.

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Document Created: 2018-02-09 11:55:34
Document Modified: 2018-02-09 11:55:34

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Public notice and invitation to comment.
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.
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.
FR Citation		81 FR 60777

81 FR 60777 - Hazardous Materials: California Meal and Rest Break Requirements

DEPARTMENT OF TRANSPORTATIONPipeline and Hazardous Materials Safety Administration

Federal Register Volume 81, Issue 171 (September 2, 2016)

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration