83 FR 47961 - Hazardous Materials: California Meal and Rest Break Requirements

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration

Federal Register Volume 83, Issue 184 (September 21, 2018)

Page Range		47961-47969
FR Document		2018-20542
PHMSA finds that California's meal and rest break requirements 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 finds that the California meal and rest break requirements 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 California meal and rest break requirements 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, because the California requirements are an obstacle to carrying out the requirements of 49 CFR 172.800 with respect to such motor carriers.
Federal Register, Volume 83 Issue 184 (Friday, September 21, 2018)
[Federal Register Volume 83, Number 184 (Friday, September 21, 2018)]
[Notices]
[Pages 47961-47969]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20542]


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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: Notice of Administrative Determination of Preemption.

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    Applicant: National Tank Truck Carriers, Inc. (NTTC).
    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: PHMSA finds that California's meal and rest break requirements 
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 finds that the California meal and rest break requirements 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 California meal and rest break 
requirements 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, because the 
California requirements are an obstacle to carrying out the 
requirements of 49 CFR 172.800 with respect to such motor carriers.

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

    NTTC has applied to PHMSA for a determination as to whether the 
Federal Hazardous Material Transportation Law, 49 U.S.C. 5101 et seq., 
preempts California's meal and rest break requirements, as applied to 
the transportation of hazardous materials. Under the California 
requirements, an employee is entitled to a 30-minute meal period after 
five hours of work and a second 30-minute meal period after ten hours 
of work. Generally, the employee must be ``off duty'' during the meal 
period. In addition, employees are

[[Page 47962]]

entitled to a 10-minute rest period for every four hours worked. If a 
meal or rest period is not provided, the employer is required to pay 
the employee one hour of pay for each workday that the meal period or 
rest period is not provided. See Cal. Lab. Code Sec. Sec.  226.7(b) & 
(c), 512(a), 516(a); Cal. Code Regs. tit. 8, Sec.  11090(11)-(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[,]'' and thus 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 attendance 
requirements that the HMR imposes in certain situations, because under 
certain circumstances, the HMR ``implicate the driver `working' under 
California law.'' As such, NTTC argues that a carrier (employer) cannot 
comply with both the state and federal requirements. Last, NTTC points 
out that many motor carriers include a ``constant attendance of cargo'' 
requirement in the written security plans required by the HMR. NTTC 
contends that the California meal and rest break requirements are 
inflexible and may require that the drivers make unnecessary stops or 
prohibit constant attendance by the driver. 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.
    PHMSA published notice of NTTC's application in the Federal 
Register on September 2, 2016. 81 FR 60777. Interested parties were 
invited to comment on NTTC's application. The initial comment period 
closed on October 17, 2016, followed by a rebuttal comment period that 
remained open until December 1, 2016. In response to the notice, six 
industry trade associations, seven petroleum distributors, four 
transport companies, and three individuals submitted comments in 
support of preemption. Only the International Brotherhood of Teamsters 
(IBT) opposed the petition; California did not submit comments. NTTC 
submitted rebuttal comments. The comments are summarized in Part III 
below.

II. Preemption Under Federal Hazardous Material Transportation Law

    As discussed in the September 2, 2016 notice, 49 U.S.C. 5125 
contains express preemption provisions relevant to this proceeding. 79 
FR 21838, 21839-40. 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, Pub. L. 93-633, 88 Stat. 2161 (Jan. 3, 1975).

    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 Indian tribe may 
apply to the Secretary of Transportation for a determination as to 
whether the requirement is preempted. The Secretary of Transportation 
has delegated authority to PHMSA to make preemption determinations, 
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 the Secretary to publish notice of an 
application for a preemption determination 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). Any person aggrieved by a preemption determination may file 
a petition for reconsideration within 20 days of publication of the 
determination in the Federal Register. 49 CFR 107.211. If a person 
files a timely reconsideration petition, the decision by PHMSA's Chief 
Counsel on the petition for reconsideration becomes PHMSA's final 
agency action with respect to that person. If a person does not file a 
timely reconsideration petition, PHMSA's initial determination is 
PHMSA's final agency action as to that person, as of the date of 
publication in the Federal Register. Any person who wishes to seek 
judicial review of a preemption determination must do so by filing a 
petition for review in the United States Court of Appeals for the 
District of Columbia Circuit, or in the United States Court of Appeals 
for the circuit in which the petitioner resides or has its principal 
place of business, within 60 days after the determination becomes final 
with respect to the filing party. 49 U.S.C. 5127(a).
    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 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\ In particular, PHMSA preemption 
determinations, including this determination, do not address whether a 
State, local, or Indian tribe requirement is covered by the preemption 
provision of the Federal Aviation Administration Authorization Act of 
1994, which applies to laws ``related to a price, route, or service of 
any motor carrier . . . with respect to the transportation of 
property.'' 49 U.S.C. 14501(c)(1). In addition, PHMSA does not 
generally consider issues regarding the proper application or 
interpretation of a non-Federal regulation, but rather how such 
requirements are actually ``applied or enforced.'' ``[I]solated 
instances of improper enforcement (e.g., misinterpretation of 
regulations) do not render such provisions inconsistent'' with Federal 
Hazardous Material Transportation Law, but are more appropriately 
addressed in the appropriate State or local forum. PD-14(R), Houston, 
Texas, Fire Code Requirements on the Storage, Transportation, and 
Handling of

[[Page 47963]]

Hazardous Materials, 63 FR 67506, 67510 n.4 (Dec. 7, 1998).\3\
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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).
    \3\ Preemption determinations issued by PHMSA are labelled 
herein as ``PD.'' Inconsistency rulings issued by PHMSA's 
predecessor agency are labelled as ``IR.''
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    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.

III. Public Comments

A. Comments Supporting Preemption

Unnecessary Delay
    Several commenters argue that the California meal and rest break 
requirements conflict with the HMR's requirement that hazmat shipments 
by highway be transported without unnecessary delay. See 49 CFR 
177.800(d). The commenters acknowledge that the health and safety of 
the driver might be a reasonable motive for requiring breaks, but 
contend that the delays caused by the California requirements are not 
necessary or reasonable in the context of the transportation of 
hazardous materials.
    In support of this contention, several commenters note that many 
drivers transporting hazardous materials are subject to the break 
requirements set by the Department's Federal Motor Carrier Safety 
Administration (FMCSA) in its Hours of Service (HOS) regulations, 49 
CFR part 395.
    The commenters explain that the HOS rule requires a 30-minute rest 
at least every eight hours, whereas the California rule requires many 
more breaks during a comparable work day. The American Trucking 
Associations, Inc. (ATA), in its comments, illustrates this point by 
noting that a driver working an 11-hour day would have to make one stop 
for a 30-minute break under the federal rules. But under the California 
rules, ATA estimates the same driver would have to take five breaks 
(two 30-minute meal periods, and three 10-minute rest periods) over the 
course of the same work day. Furthermore, ATA reasons that since each 
break will entail a stop, the result would be four ``arbitrary stops,'' 
in contrast to the HOS rule.
    Also, Cox Petroleum Transport (COX) contends that the ``conflicting 
and competing'' federal and state standards make it extremely confusing 
and difficult to be in full compliance when a driver's work day 
includes interstate transportation.
Constant Attendance and Security Plans
    Several commenters argue that the California meal and rest break 
requirements should be preempted because they interfere with the HMR 
security plan requirements. See 49 CFR 172.800-172.802 Specifically, 
the commenters argue that adherence to the California meal and rest 
break requirements would preclude motor carriers from including a 
``constant attendance'' requirement in the en route section of the 
security plans that motor carriers are required under the HMR to 
develop when offering, or transporting, certain hazardous materials. As 
the commenters explain, although security plans may not be applicable 
to all of their hazmat shipments, most motor carriers that develop 
security plans often make them universally applicable to their hazmat 
transportation operations. According to the commenters, when motor 
carriers need to ensure en route security for hazmat, they use the 
constant attendance method because it is ``a time-proven, low-cost, and 
highly effective method'' to ensure en route security. Moreover, the 
commenters say that PHMSA and FMCSA view a ``constant attendance'' 
requirement included in a security plan as a useful and effective 
method for ensuring the safety and security of hazmat in 
transportation. For example, the commenters point to PHMSA's guidance 
on implementing security plans and FMCSA's current exemption to the HOS 
rule for certain carriers subject to the security plan requirements. 
See 81 FR 83923 (Nov. 22, 2016). Regarding the exemption, ATA further 
reasons that if the federal off-duty break requirement presented a 
sufficient obstacle to the security plan regulations to warrant an 
exemption, it follows that state rules requiring off-duty breaks would 
constitute a similar obstacle and warrant preemption.
Uniformity
    ATA, American Pyrotechnics Association (APA), California Trucking 
Association (CTA), COX, and National Association of Chemical 
Distributors (NACD) expressed their concerns that if the California 
rule is allowed to stand, other states may follow suit, leading to many 
different standards that would seriously hinder a motor carrier's 
ability to transport hazardous materials safely and securely, while 
also trying to comply with all the potentially different sets of rules 
it may encounter during the trip. To illustrate this point, ATA argues 
that without preemption of non-federal meal and break laws, carriers 
operating in multiple states would potentially be subject to ``an 
arbitrarily large and complex patchwork'' of different state rules. 
According to ATA, approximately twenty-one states have their own set of 
varying meal breaks and nine states have rest break requirements.
Shortage of Parking and Safe Havens
    Western States Trucking Association (WSTA) believes the core reason 
the California meal and rest break requirements need to be preempted is 
the inability of a driver of a commercial motor vehicle (CMV) ``to 
`just pull-over' or even find suitable truck parking in order to comply 
with an inflexible state meal and rest break requirement.'' According 
to WSTA, the shortage of available truck parking is a well-documented 
national issue. Consequently, WSTA argues that the ability of truck 
drivers to simply pull over or find a safe place to park is not as easy 
as the proponents of California's rule claim, especially when hazardous 
materials are involved. For example, according to WSTA, ``safe haven'' 
parking is even in shorter supply than general truck parking.
    WSTA believes that the California rule is ill-conceived as applied 
to CMVs. It presumes the regulations were designed for employees 
working in more structured environments that are not subject to many of 
the external factors that impact the trucking industry, such as road 
and weather conditions, shipper/receiver delays, breakdowns of 
equipment, randomized vehicle inspections by law enforcement, and 
traffic conditions.
California Independent Oil Marketers Association (CIOMA)
    CIOMA submitted its comments supporting federal preemption of 
California's meal and rest break requirements. Eight additional 
commenters voiced their support for CIOMA's comments.

[[Page 47964]]

    CIOMA points out that California's high demand and use of hazardous 
materials, particularly petroleum fuels, along with the state's large 
size and its congested traffic conditions, create conditions that make 
delivering petroleum fuels safely and on-time a complicated logistical 
feat.
    CIOMA says it has long been involved with issues involving 
hazardous material carrier meal and rest breaks, and that its previous 
attempts to work with the California Department of Industrial 
Relations, Division of Labor Standards Enforcement (DLSE) to obtain 
clarity regarding driver breaks under the California requirements have 
been unsuccessful. CIOMA reasons that since ``a simple, broad based 
determination from DLSE'' interpreting the rules is not available, it 
believes the federal constant attendance regulation ``definitively 
achieves clarity, with public safety as the utmost priority.''
    According to CIOMA, companies that transport hazardous materials, 
despite the lack of clarity surrounding meal and rest breaks, often 
require their drivers to take meal and rest breaks near the truck. 
CIOMA cites several reasons for this practice, including the safety of 
their drivers, the public, and the environment; minimizing 
unintentional releases; security threats; and insurance and other 
economic considerations. CIOMA says fuel marketers and cargo carriers 
provide this type of maximum security for their fuel cargos despite the 
risk of running afoul of California's ``unreasonable and 
contradictory'' meal and rest break requirements, and the risk of 
costly legal judgments ``due to the complexity of [the] California 
requirements.''
    Therefore, CIOMA believes the highest and best manner to assure the 
continued safe conduct of hazardous materials deliveries in the state 
is to adhere to the federal constant attendance requirements. CIOMA 
reasons that this will ensure drivers will collect pay for their 
constant vigilance of hazardous cargos, while employers will be assured 
that they will not be penalized for conduct in the best interest of the 
health, welfare, and safety of the public.
Miscellaneous Issues
    Two of the individual commenters indicated that there were 
increased administrative burdens, additional operational costs, and an 
increased threat of litigation associated with trying to comply with 
the California rule. According to one individual, complying with the 
California rule has raised the annual cost of operating his small 
company to approximately $300,000. Additionally, he stated that he is 
faced with higher administrative costs associated with tracking his 
employees' rest breaks, as well as increased exposure to ``frivolous 
labor lawsuits.'' He also indicated that in order to accommodate the 
required break periods, his company had to reduce its delivery hours, 
and consequently, suffered losses due to price fluctuations.

B. Comments Opposing Preemption

    The International Brotherhood of Teamsters (IBT) is the only 
commenter opposing the petition. With respect to NTTC's unnecessary 
delay argument, IBT rhetorically asks, ``what constitutes unnecessary 
delay?'' IBT contends that California has determined that its break 
requirements are necessary to protect the health, welfare, and safety 
of drivers and others on the roads, by ensuring that drivers are well-
rested and attentive.
    With respect to NTTC's argument based on the HMR attendance 
requirement, IBT argues that there are sufficient exemption provisions 
in the California regulations to make federal preemption unnecessary. 
IBT points out that the California regulations have an ``Exemptions'' 
provision that explicitly covers rest periods.\4\ As for the meal break 
requirement, IBT notes that the provision permits an on-duty meal break 
when the nature of the work prevents an employee from being relieved of 
all duty, which NTTC argues applies here because of the attendance 
requirements under the HMR. An on-duty meal break is an on-the-job paid 
meal period, and therefore, it must be agreed to by the employer and 
employee by written agreement. As such, IBT believes that a motor 
carrier can comply with both the federal attendance rule and the 
California meal break requirement by simply executing a meal break 
agreement with its drivers.
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    \4\ Cal. Code Regs. tit. 8, Sec.  11090(17) (``If, in the 
opinion of the Division after due investigation, it is found that 
the enforcement of any provision contained in Section 7, Records; 
Section 12, Rest Periods; Section 13, Change Rooms and Resting 
Facilities; Section 14, Seats; Section 15, Temperature; or Section 
16, Elevators, would not materially affect the welfare or comfort of 
employees and would work an undue hardship on the employer, 
exemption may be made at the discretion of the Division. Such 
exemptions shall be in writing to be effective and may be revoked 
after reasonable notice is given in writing. Application for 
exemption shall be made by the employer or by the employee and/or 
the employee's representative to the Division in writing. A copy of 
the application shall be posted at the place of employment at the 
time the application is filed with the Division.'').
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    IBT further argues that the California rules are not an obstacle to 
the HMR, as alleged by NTTC. NTTC says that delays from drivers 
deviating from their routes to accommodate the California rule are 
inconsistent with safe transportation, are an obstacle, and should be 
preempted. However, IBT believes that the potential for route deviation 
and/or delay is the same under either the California or the federal HOS 
regulations. IBT reasons that a state mandated break cannot jeopardize 
safety more so than a federally mandated break such as the HOS rule. 
Therefore, it concludes that if there is not an ``obstacle'' argument 
against the HOS rule, there cannot be one against the California rule.
    Finally, IBT disputes NTTC's argument that security for hazardous 
materials shipments is jeopardized because the California rule negates 
a constant attendance requirement that many carriers include in the en 
route section of their security plans that are required under the HMR. 
According to IBT, nothing in the California rules prevents constant 
attendance, when required. In fact, IBT, recalling its earlier 
exemption argument, contends that constant attendance is accommodated 
by the California rule with its rest period exemption and the on-duty 
meal break exception.

C. Rebuttal Comments

    NTTC, in rebuttal comments, notes that California did not submit 
comments in this proceeding. NTTC argues that the state's silence here 
is ``indicative of the low importance the State attaches to its 
interests in applying California meal and rest beak [sic] laws to motor 
carriers transporting hazardous materials versus the federal interests 
in safe and secure hazardous materials transportation.''
    NTTC addresses IBT's rest break exemption argument by pointing out 
that although it is true there is the potential for employers to 
receive an exemption on a case-by-case basis, an exemption is entirely 
discretionary, an exemption may be revoked, and qualification for the 
exemption is based on a finding by the Division \5\ that enforcing the 
rest break requirement would not materially affect the welfare or 
comfort of employees. Notwithstanding the potential for an exemption, 
NTTC characterizes the meal and rest breaks requirements as a 
``separate regulatory regime'' for hazmat transportation, which creates 
confusion and frustrates Congress's goal of developing a uniform, 
national scheme of regulation.
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    \5\ Division of Labor Standards Enforcement of the State of 
California. See Cal. Code Regs. tit. 8, Sec.  11090(2).
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    NTTC contends that no such exemption exists for the meal break

[[Page 47965]]

requirement. According to NTTC, IBT has contrived an exemption for the 
meal break requirement, because the rule only allows for an on-duty 
meal break in lieu of the requirement that the meal break must be off-
duty. However, an employer still has to provide a meal break, whether 
on-duty or off-duty, which according to NTTC, will likely result in 
additional stops and delays in the transportation of hazardous 
materials.
    NTTC also refutes IBT's notion that there is sufficient 
flexibility, through exemptions and other permissible alternatives, in 
the California rule that makes federal preemption unnecessary. NTTC 
notes that a recent California Supreme Court decision makes it clear 
that failure to provide a meal or rest break is a legal violation. As 
such, NTTC argues that federal preemption is appropriate.
    NTTC further points out the uncertainty a motor carrier faces when 
trying to comply with the meal break requirement--or, alternatively, 
qualifying for, receiving, and maintaining an allowance for an on-duty 
meal break--while also attempting to comply with the federal rules that 
implicate a constant attendance requirement.
    NTTC is not persuaded by IBT's public policy argument, i.e., that 
there is no conflict with the federal unnecessary delay requirement 
because California has deemed its rest and meal breaks necessary for 
the health, safety, and welfare of the driver.
    NTTC points to an example in ATA's submission that contrasts the 
HOS rule with the California rule to rebut IBT's assertion that any 
route deviation due to the meal and break requirements is no different 
from an HOS deviation. The example reveals four extra stops, resulting 
in an estimated additional hour of break time per work day under the 
California rule, compounded by the lack of safe and legal places to 
park.
    NTTC explains that while it is true the California rule has been in 
place for decades, the requirements were not being enforced against 
hazmat carriers, until recently. According to NTTC, litigation against 
hazmat carriers for meal and rest break violations has increased 
dramatically. NTTC posits that the trend of increased litigation will 
have a negative effect on the safe and secure transportation of 
hazardous materials. Therefore, NTTC believes it is imperative that 
PHMSA provide clarity to this issue by determining that the California 
rule is preempted with respect to drivers of motor vehicles 
transporting hazardous materials.
    Fundamentally, NTTC reasons that the State's interests, with 
respect to drivers transporting hazardous materials, are outweighed by 
the necessity for a national uniform set of rules for the 
transportation of hazardous materials.

IV. Discussion

A. The California Requirements

    Section 512(a) of the California Labor Code provides that:

    An employer may not employ an employee for a work period of more 
than five hours per day without providing the employee with a meal 
period of not less than 30 minutes, except that if the total work 
period per day of the employee is no more than six hours, the meal 
period may be waived by mutual consent of both the employer and 
employee. An employer may not employ an employee for a work period 
of more than 10 hours per day without providing the employee with a 
second meal period of not less than 30 minutes, except that if the 
total hours worked is no more than 12 hours, the second meal period 
may be waived by mutual consent of the employer and the employee 
only if the first meal period was not waived.

Cal. Lab. Code Sec.  512(a)
    The state Industrial Welfare Commission is permitted to modify 
these requirements and to require additional rest breaks. See Cal. Lab. 
Code Sec. Sec.  512(b), 516(a). The Commission has issued an order for 
the transportation industry that repeats the statutory meal break 
requirements, while also requiring additional rest breaks. Cal. Code 
Regs. tit. 8, Sec.  11090. The provisions at issue here are subsections 
(11) and (12).
    These subsections state:

11. Meal Periods

    (A) No employer shall employ any person for a work period of 
more than five (5) hours without a meal period of not less than 30 
minutes, except that when a work period of not more than six (6) 
hours will complete the day's work the meal period may be waived by 
mutual consent of the employer and the employee.
    (B) An employer may not employ an employee for a work period of 
more than ten (10) hours per day without providing the employee with 
a second meal period of not less than 30 minutes, except that if the 
total hours worked is no more than 12 hours, the second meal period 
may be waived by mutual consent of the employer and the employee 
only if the first meal period was not waived.
    (C) Unless the employee is relieved of all duty during a 30 
minute meal period, the meal period shall be considered an ``on 
duty'' meal period and counted as time worked. An ``on duty'' meal 
period shall be permitted only when the nature of the work prevents 
an employee from being relieved of all duty and when by written 
agreement between the parties an on-the-job paid meal period is 
agreed to. The written agreement shall state that the employee may, 
in writing, revoke the agreement at any time.
    (D) If an employer fails to provide an employee a meal period in 
accordance with the applicable provisions of this order, the 
employer shall pay the employee one (1) hour of pay at the 
employee's regular rate of compensation for each workday that the 
meal period is not provided.
    (E) In all places of employment where employees are required to 
eat on the premises, a suitable place for that purpose shall be 
designated.

12. Rest Periods

    (A) Every employer shall authorize and permit all employees to 
take rest periods, which insofar as practicable shall be in the 
middle of each work period. The authorized rest period time shall be 
based on the total hours worked daily at the rate of ten (10) 
minutes net rest time per four (4) hours or major fraction thereof. 
However, a rest period need not be authorized for employees whose 
total daily work time is less than three and one-half (3\1/2\) 
hours. Authorized rest period time shall be counted as hours worked 
for which there shall be no deduction from wages.

Cal. Code Regs. tit. 8, Sec. Sec.  11090(11) and (12)
    Section 226.7 of the California Labor Code provides that:

    . . .
    (b) An employer shall not require an employee to work during a 
meal or rest or recovery period mandated pursuant to an applicable 
statute, or applicable regulation, standard, or order of the 
Industrial Welfare Commission, the Occupational Safety and Health 
Standards Board, or the Division of Occupational Safety and Health.
    (c) If an employer fails to provide an employee a meal or rest 
or recovery period in accordance with a state law, including, but 
not limited to, an applicable statute, or applicable regulation, 
standard, or order of the Industrial Welfare Commission, the 
Occupational Safety and Health Standards Board, or the Division of 
Occupational Safety and Health, the employer shall pay the employee 
one additional hour of pay at the employee's regular rate of 
compensation for each workday that the meal or rest or recovery 
period is not provided.

    . . .
Cal. Lab. Code Sec. Sec.  226.7(b) & (c).

B. Unnecessary Delay

    NTTC argues that as applied to drivers of motor vehicles 
transporting hazardous materials, California's meal and rest break 
requirements conflict with 49 CFR 177.800(d), a provision of the HMR 
that states that:

    All shipments of hazardous materials [by motor vehicle] must be 
transported without unnecessary delay, from and including the time 
of commencement of the loading of the hazardous material until its 
final unloading at destination.


[[Page 47966]]


    In prior decisions, the agency \6\ has identified several 
principles regarding unnecessary delay that are relevant to this 
proceeding.
---------------------------------------------------------------------------

    \6\ Effective February 20, 2005, PHMSA was created to further 
the ``highest degree of safety in pipeline transportation and 
hazardous materials transportation,'' and the Secretary of 
Transportation redelegated hazardous materials safety functions from 
the Research and Special Programs Administration (RSPA) to PHMSA's 
Administrator. 49 U.S.C. 108, as amended by the Norman Y. Mineta 
Research and Special Programs Improvement Act (Pub. L. 108-426, 
Sec.  2, 118 Stat. 2423 (Nov. 30, 2004)); and 49 CFR 1.96(b), as 
amended at 77 FR 49987 (Aug. 17, 2012). For consistency, the terms 
``PHMSA,'' ``the agency,'' and ``we'' are used in the remainder of 
this determination, regardless of whether an action was taken by 
RSPA before February 20, 2005, or by PHMSA after that date.
---------------------------------------------------------------------------

    First, ``[t]he manifest purpose of the HMTA and the Hazardous 
Materials Regulations is safety in the transportation of hazardous 
materials. Delay in such transportation is incongruous with safe 
transportation. Given that the materials are hazardous and that their 
transportation is not risk-free, it is an important safety aspect of 
the transportation that the time between loading and unloading be 
minimized.'' IR-2, State of Rhode Island Rules and Regulations 
Governing the Transportation of Liquefied Natural Gas and Liquefied 
Propane Gas Intended to Be Used by a Public Utility, 44 FR 75566, 75571 
(Dec. 20, 1979).
    Second, ``[s]ince safety risks are `inherent in the transportation 
of hazardous materials in commerce', an important aspect of 
transportation safety is that transit time be minimized. This precept 
has been incorporated in the HMR . . ., which directs highway shipments 
to proceed without unnecessary delay . . . .'' IR-6, City of Covington 
Ordinance Governing Transportation of Hazardous Materials by Rail, 
Barge, and Highway Within the City, 48 FR 760, 765 (Jan. 6, 1983) 
(citation omitted) (determining that city requirement to provide an 
advance notification of the intent to transport hazardous materials 
within city limits was inconsistent with federal law).
    Third, State and local requirements likely to cause unnecessary 
transportation delays are preempted. IR-2; IR-6; PD-22(R), New Mexico 
Requirements for the Transportation of Liquefied Petroleum Gas, 67 FR 
59386 (Sept. 20, 2002) (determining that state vehicle inspection 
requirements and fees for vehicles transporting bulk quantities of 
liquefied petroleum gas within the state were preempted). Closely 
related to the problem of delay is that of redirection. State and local 
requirements which ``directly or indirectly divert hazardous materials 
shipments onto longer, more circuitous routes increase the time both 
that these shipments are in transit and that the public is exposed to 
the risks inherent in their transportation.'' IR-17, Illinois Fee on 
Transportation of Spent Nuclear Fuel; Application for Inconsistency 
Ruling by Wisconsin Electric Power Company, 51 FR 20926, 20931 (June 9, 
1986), decision on appeal, 52 FR 36200 (Sept. 25, 1987). Accordingly, 
``several types of non-Federal requirements have been found to be 
inconsistent with the HMTA and the HMR on the basis that they create a 
potential for unnecessary delay,'' including subject areas such as 
advance notification of hazardous materials shipments, time-consuming 
permitting processes with no definite decision dates, and route, time, 
and weather limitations on travel. PD-4(R), California Requirements 
Applicable to Cargo Tanks Transporting Flammable and Combustible 
Liquids, 58 FR 48940 (Sept. 20, 1993), decision on reconsideration, 60 
FR 8800 (Feb. 15, 1995).
    Last, as for what constitutes unnecessary delay, the agency has 
found that a delay of ``hours or days'' is unnecessary, but a minimal 
delay is reasonable and presumptively valid. PD-22(R) at 59400; IR-17 
at 36205.
    Applying these principles here, it is clear that the delays caused 
by California's meal and rest break requirements are unnecessary. 
California requires that drivers be given a 30-minute meal break every 
five hours, as well as an additional 10-minute rest break every four 
hours. For example, in the course of an 11-hour shift, California will 
often require drivers to pull over and take a break at least four 
separate times. As many of the commenters point out, the amount of 
delay caused by these multiple required stops far exceeds the sum of 
the required break times. The commenters cite factors such as more 
stops, the shortage of parking and safe havens, deviations from routes, 
congested traffic conditions, and forfeiting a place in line to take 
mandated breaks. For example, the inability of driver of a commercial 
motor vehicle to ``just pull over'' in order to take one of the state 
mandated breaks generally results in additional time spent looking for 
safe parking and significant deviations from the carrier's intended 
route. These delays may result in the driver missing a delivery and 
thus negatively impacting the scheduling of subsequent pickups and 
deliveries, and causing even more delays. Under our standards, 
cumulative delays of this type cannot be considered ``minimal.''
    The unnecessary nature of these delays is further demonstrated by 
comparing California's requirements with the requirements of FMCSA's 
HOS regulations. As noted by many of the commenters, the HOS 
regulations generally require drivers to take a 30-minute rest break 
every 8 hours. See, e.g., 49 CFR 395.3(a)(3)(ii). This requirement is 
imposed in order to enhance highway safety by requiring a break after a 
driver has completed what, in most industries, would be a full day's 
work. California, on the other hand, will often require drivers to take 
at least 3 breaks during that 8-hour period and at least 4 breaks 
during the driver's 11-hour driving window. There is no evidence that 
such frequent delays are necessary.
    IBT offers an opposing view. IBT denies that the California rule 
causes unnecessary delay, and insists that California has a legitimate 
public safety interest to require that drivers on California roads are 
well-rested and attentive. To be sure, we have acknowledged ``[t]here 
is a longstanding Federal-State relationship in the field of highway 
transportation safety that recognizes the legitimacy of State action 
taken to protect persons and property within the State, even where such 
action impacts upon interstate commerce.'' IR-2 at 75566. California 
undoubtedly has a legitimate interest in protecting its citizens, and 
its meal and rest break requirements may be an effective way of 
promoting that interest across a variety of industries and work 
settings. And PHMSA of course recognizes that drivers of motor vehicles 
need to--and do--take meal and rest breaks. However, in the specific 
context of the transportation of hazardous materials by motor vehicle, 
any delay imposes additional safety risks by increasing the time during 
which a hazardous materials accident or incident many occur. In this 
context, California's rigid rules--which require drivers to take breaks 
within tightly specified intervals, rather than allowing drivers to use 
their judgment--impose delays that are unnecessary. Notwithstanding 
California's interest in the welfare and comfort of its citizens, the 
state laws supporting those interests, with respect to drivers 
transporting hazardous materials, must not conflict with the HMTA. 
Here, we find that the amount of delay caused by California's 
requirements is unnecessary.
    PHMSA, for the reasons set forth above, finds that California's 
meal and rest break requirements create an unnecessary delay in the 
transportation of hazardous materials. California's requirements 
therefore make it impossible to comply with 49 CFR 177.800(d), and are 
an obstacle to

[[Page 47967]]

accomplishing and carrying out that regulation. Therefore, California's 
requirements are preempted by 49 U.S.C. 5125(a)(1) and 49 U.S.C. 
5125(a)(2) with respect to all drivers of motor vehicles that are 
transporting hazardous materials.\7\
---------------------------------------------------------------------------

    \7\ Some commenters make arguments based on the purported 
applicability of California's requirements to drivers who cross into 
or out of California. Because PHMSA has determined that the 
California requirements are preempted as to all drivers of motor 
vehicles that are transporting hazardous materials, regardless of 
where they are operating, it is not necessary to reach these 
arguments or determine the extent to which California's rules apply 
in the context of interstate transportation.
---------------------------------------------------------------------------

C. Conflict With the HMR Attendance Requirements

    NTTC also raises two additional preemption arguments that would 
apply to a narrower set of drivers than its ``unnecessary delay'' 
argument. All drivers covered by those arguments are also covered by 
PHMSA's ``unnecessary delay'' determination. Nevertheless, PHMSA will 
address NTTC's narrower arguments in the interest of completeness.
    NTTC argues that the California meal and rest break requirements 
conflict with 49 CFR 397.5, which generally requires that a motor 
vehicle: (1) ``be attended at all times by its driver or a qualified 
representative of the motor carrier that operates it'' if it contains a 
Division 1.1, 1.2, or 1.3 explosive material; and (2) ``be attended by 
its driver'' if it contains hazardous materials other than Division 
1.1, Division 1.2, or 1.3 materials, and is ``located on a public 
street or highway, or the shoulder of a public highway.'' NTTC argues 
that because California requires breaks to be off-duty, it is not 
possible to comply with both the state law and the federal law.
    The Federal attendance requirement is a part of the Federal Motor 
Carrier Safety Regulations (FMCSR) issued by FMCSA. The requirement has 
been incorporated into the HMR by 49 CFR 177.804(a), which provides 
that if a motor carrier or other person is subject to the portion of 
the HMR concerning carriage by public highway, it ``must comply with 49 
CFR part 383 and 49 CFR parts 390 through 397 . . . to the extent those 
regulations apply.'' PHMSA has explained that the incorporation of 
portions of the FMCSR into the HMR ``was not intended to change the 
intent, scope of application, or preemptive effects of the FMCSR as 
they existed under their original statutory authority.'' IR-22, City of 
New York Regulations Governing Transportation of Hazardous Materials, 
52 FR 46574, 46575 (December 8, 1987), affirmed on appeal, 54 FR 26698 
(June 23, 1989). The FMCSR provide that they are ``not intended to 
preclude States or subdivisions thereof from establishing or enforcing 
State or local laws relating to safety, the compliance with which would 
not prevent full compliance with [the FMCSR] by the person subject 
thereto.'' 49 CFR 390.9. Thus, a provision of the FMCSR that has been 
incorporated by reference into the HMR has preemptive effect under 49 
U.S.C. 5125 only to the extent that it is impossible to comply with 
both the FMCSR provision and a State, local, or tribal law. See IR-22 
at 46575.
    NTTC argues that it is not possible for drivers subject to the 
federal attendance requirement to comply with both that requirement and 
California's meal and rest break requirements. It notes that California 
law prohibits an employer from requiring an employee to work during a 
mandated meal or rest break. Cal. Lab. Code Sec.  226.7(b). And it 
argues that an employer that requires its drivers to comply with the 
federal attendance requirements is necessarily requiring its drivers to 
work.
    The issue raised by NTTC is similar to an issue identified by FMCSA 
with respect to its HOS regulations. As discussed above, the HOS 
regulations generally require drivers to take a 30-minute, off-duty 
break every 8 hours. When FMCSA promulgated that requirement in 2011, 
it included an exception specifying that ``[o]perators of commercial 
motor vehicles containing Division 1.1., 1.2, or 1.3 explosives may use 
30 minutes or more of attendance time to meet the requirement for a 
rest break.'' 76 FR 81134, 81187 (Dec. 27, 2011) (codified at 49 CFR 
395.1(q)). FMCSA explained that ``[t]his exception will allow the 
driver to meet the requirements of 49 CFR 397.5 . . . to attend the 
vehicle at all times without violating the break requirement.'' Id. at 
81154. Thus, FMCSA was concerned--as NTTC is concerned here--that it 
would not be possible to comply with a break requirement while also 
complying with the attendance requirement.
    IBT argues that there is no conflict between California's meal and 
rest break requirements and the federal attendance rule, because there 
are exemptions and other accommodations in the California rule that 
make it possible to comply with both sets of requirements. For example, 
IBT points out that the California rule has an exemption provision that 
explicitly covers rest periods. See Cal. Code Regs. tit. 8 Sec.  
11090(17) (``If, in the opinion of the Division after due 
investigation, it is found that the enforcement of any provision 
contained in . . . Section 12, Rest Periods . . . would not materially 
affect the welfare or comfort of employees and would work an undue 
hardship on the employer, exemption may be made at the discretion of 
the Division.''). As for the meal break requirement, IBT notes that the 
provision permits an on-duty meal break when the nature of the work 
prevents an employee from being relieved of all duty, and the employer 
and employee agree to an on-duty break in writing. See Cal. Code Regs. 
tit. 8, Sec.  11090(11)(C). Overall, IBT contends that a motor carrier 
employer can easily obtain the necessary exemptions and other 
accommodations in order to be in compliance with the state and federal 
rules.
    However, in its rebuttal comments, NTTC's description of the 
procedural requirements and standards for obtaining an exemption 
implies that motor carriers may face a greater administrative hurdle 
than that described by IBT. For example, NTTC points out that the 
exemption for rest breaks is entirely at the discretion of DLSE, the 
exemption may be revoked, and qualification for the exemption hinges on 
whether DLSE finds that enforcing the rest break requirement ``would 
not materially affect the welfare or comfort of employees'' 
irrespective of whether the requirement causes a conflict with the 
federal attendance requirement.
    Additionally, the experience shared by CIOMA in its comments 
supports NTTC's characterization that obtaining the necessary 
exemptions and allowances may not be the simple administrative process 
portrayed by IBT. For example, CIOMA stated it has long been involved 
with issues protecting hazardous material carrier meal and rest breaks, 
and that its previous attempts to work with DLSE to obtain clarity 
regarding driver breaks under the California rule have been 
unsuccessful. In its submission, CIOMA provided copies of its 
correspondence with DLSE whereby it sought clarification on an earlier 
interpretation issued by DLSE regarding the applicability of the 
state's meal break requirement. After reviewing the letters, some key 
principles are evident. For instance, although DLSE confirmed that the 
rule provides for the possibility of an on-duty meal break, it 
indicated that it was a ``limited alternative'' to the off-duty 
requirement. DLSE further cautioned that it was not a waiver of the 
meal break requirement, and is narrowly construed. Also, DLSE 
emphasized that the burden is on the employer to prove the ``nature of 
the work'' prevents an

[[Page 47968]]

employee from being relived of all duty and is therefore eligible for 
the exception. Moreover, DLSE indicated that a determination whether to 
allow an on-duty meal break is very fact specific and that there many 
factors that it may consider in evaluating an exception request. More 
importantly, DLSE said that it could not issue an opinion or give a 
blanket exception from the obligation to provide off-duty meal periods.
    PHMSA agrees with NTTC and CIOMA, for the reasons summarized above, 
that there is significant uncertainty about whether motor carriers 
could obtain exemptions and other accommodations from California's 
requirement, and that the mere possibility of obtaining relief from 
California's requirement, particularly since such relief is within the 
discretion of the State, is too illusory to defeat preemption. In any 
event, IBT's focus on exemptions also misses a more fundamental point. 
If it is only possible for a motor carrier to simultaneously comply 
with a federal requirement and a State requirement if it obtains an 
exemption from the State requirement, then it is not actually possible 
to simultaneously comply with both requirements.
    Therefore, for the reasons stated above, we find that the 
California meal and rest break requirements are preempted under 49 
U.S.C. 5125(a)(1) with respect to the drivers of motor vehicles which 
contain a Division 1.1, 1.2, or 1.3 explosive material, and which are 
subject to the attendance requirement of 49 CFR 397.5(a), because it is 
not possible to simultaneously comply with that requirement and the 
California requirements.\8\
---------------------------------------------------------------------------

    \8\ NTTC has not provided evidence that is impossible for those 
transporting other hazardous materials to comply with California's 
requirements while also complying with the requirement of 49 CFR 
397.5(c) that such cargo be attended when it is ``located on a 
public street or highway, or the shoulder of a public highway.'' 
Indeed, it seems probable that drivers could--and do--take breaks at 
locations other than the public streets or highways, or the 
shoulders of public highways. Accordingly, PHMSA determines that the 
California requirements are not preempted on this basis.
---------------------------------------------------------------------------

D. Obstacle To Accomplishing the HMR Security Objectives

    NTTC also argues that the California rules are an obstacle to the 
security objectives of the HMR. Specifically, NTTC argues that the 
California rule frustrates the ability of carriers to deploy an 
effective, widely used deterrent, i.e., constant attendance, in their 
written security plans.
Constant Attendance in Security Plans
    The HMR requires that carriers of certain security-sensitive hazmat 
must develop and implement a written security plan that accounts for 
personnel, cargo, and en route security. See 49 CFR 172.800-172.802. 
According to NTTC and several commenters, many carriers include a 
constant attendance requirement for en route security in their plans. 
As the commenters explain, although security plans may not be 
applicable to all of their hazmat shipments, most motor carriers that 
develop security plans often make them universally applicable to their 
hazmat transportation operations. According to the commenters, when 
motor carriers need to ensure en route security for hazmat, they use 
the constant attendance method because it is ``a time-proven, low-cost, 
and highly effective method'' to ensure en route security.
Exemption to the HOS Rule
    Again, NTTC argues by analogy to an action taken by FMCSA with 
respect to the HOS regulations, which as noted above, generally require 
drivers to take a 30-minute off-duty break after eight hours of 
driving.
    In 2015, ATA filed an exemption request with FMCSA. ATA sought the 
exemption from the HOS rule on behalf of all motor carriers whose 
drivers transport hazmat loads subject to PHMSA's security plan 
requirement. FMCSA, in consideration of ATA's request for an exemption 
to the federal HOS rule, recognized that a conflict existed between the 
HOS break requirement and the constant attendance requirement that 
motor carriers typically include in their PHMSA mandated security 
plans. As FMCSA explained in its notice announcing the application, 
although constant attendance is not specifically mandated by the 
security plan rules, ``[t]hese plans normally require a driver to 
`attend' such cargo while the [commercial motor vehicle] is stopped, 
which would be an on-duty activity [under the HOS rules]. This forces 
drivers to choose between FMCSA's off-duty rest break requirement and 
compliance with PHMSA's security plans, many of [which] include an on-
duty `attendance' requirement.'' 80 FR 25004, 25004 (May 1, 2015).
    Ultimately, FMCSA granted a two-year exemption from the 30-minute 
break requirements for carriers whose drivers transport hazmat loads 
requiring placarding under 49 CFR part 172, subpart F, or select agents 
and toxins identified in 49 CFR 172.800(b)(13) that do not require 
placarding, and who have filed security plans requiring constant 
attendance of hazmat in accordance with 49 CFR 172.800-804. 80 FR 
50912, 50913 (August 21, 2015). In allowing the exemption, FMCSA 
determined that the exemption would ``likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent such exemption.'' Id. Congress later mandated that 
certain exemptions from FMCSA's HOS regulations be valid for five years 
from the date the exemptions were granted. See Fixing America's Surface 
Transportation Act Sec.  5206(b)(2), Public Law 114-94 (Dec. 4, 2015). 
FMCSA accordingly extended the exemption through August 20, 2020. 81 FR 
83923 (Nov. 22, 2016).
IBT's Comments and PHMSA's Conclusion
    IBT, as the sole opponent to preemption on this basis, relies on 
the same defense that it used against NTTC's other preemption claims. 
Essentially, IBT contends that constant attendance is accommodated by 
the California rule with its rest period exemption provision and on-
duty meal break exception.
    PHMSA concludes that California's meal and rest break requirements 
are an obstacle to carrying out the HMR's security plan requirements. 
Just as FMCSA recognized that complying with its HOS regulations would 
present an obstacle to a motor carrier including a widely-used 
``constant attendance'' provision in its security plan, PHMSA 
determines that complying with California's meal and rest break 
requirements would present a similar obstacle. IBT's arguments 
concerning the possibility of exemptions do not change this 
determination. As noted above, there is significant uncertainty about 
how available exemptions are. And more fundamentally, if a regulated 
entity were able to obtain an exemption from California's requirements, 
there would be no need to decide whether those requirements were 
preempted; the question before PHMSA is whether the State requirements 
are an obstacle to federal law with respect to those regulated entities 
who are not exempted.
    For the reasons stated above, the California meal and rest break 
requirements are preempted under 49 U.S.C. 5125(a)(2) 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.

V. Ruling

    PHMSA finds that California's meal and rest break requirements 
create an

[[Page 47969]]

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 finds that the 
California meal and rest break requirements 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 California meal and rest break requirements 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.

VI. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
determination may file a petition for reconsideration within 20 days of 
publication of this determination in the Federal Register. If a 
petition for reconsideration is filed within 20 days of publication in 
the Federal Register, the decision by PHMSA's Chief Counsel on the 
petition for reconsideration becomes PHMSA's final agency action with 
respect to the person requesting reconsideration. See 49 CFR 
107.211(d).
    If a person does not request reconsideration in a timely fashion, 
then this determination is PHMSA's final agency action as to that 
person, as of the date of publication in the Federal Register.
    Any person who wishes to seek judicial review of a preemption 
determination must do so by filing a petition for review in the United 
States Court of Appeals for the District of Columbia Circuit, or in the 
United States Court of Appeals for the circuit in which the petitioner 
resides or has its principal place of business, within 60 days after 
the determination becomes final with respect to the filing party. See 
49 U.S.C. 5127(a).
    The filing of a petition for reconsideration is not a prerequisite 
to seeking judicial review of this decision under 49 U.S.C. 5127(a).

    Issued in Washington, DC, on September 14, 2018.
Paul J. Roberti,
Chief Counsel.
[FR Doc. 2018-20542 Filed 9-20-18; 8:45 am]
 BILLING CODE 4910-60-P
Federal Register / Vol. 83, No. 184 / Friday, September 21, 2018 / Notices 47963

Hazardous Materials, 63 FR 67506, working an 11-hour day would have to Uniformity
67510 n.4 (Dec. 7, 1998).3 make one stop for a 30-minute break ATA, American Pyrotechnics
In making preemption determinations under the federal rules. But under the Association (APA), California Trucking
under 49 U.S.C. 5125(d), PHMSA is California rules, ATA estimates the Association (CTA), COX, and National
guided by the principles and policies set same driver would have to take five Association of Chemical Distributors
forth in Executive Order No. 13132, breaks (two 30-minute meal periods, (NACD) expressed their concerns that if
entitled ‘‘Federalism’’ (64 FR 43255 and three 10-minute rest periods) over
the California rule is allowed to stand,
(Aug. 10, 1999)), and the President’s the course of the same work day.
other states may follow suit, leading to
May 20, 2009 memorandum on Furthermore, ATA reasons that since
many different standards that would
‘‘Preemption’’ (74 FR 24693 (May 22, each break will entail a stop, the result
seriously hinder a motor carrier’s ability
2009)). Section 4(a) of that Executive would be four ‘‘arbitrary stops,’’ in
to transport hazardous materials safely
Order authorizes preemption of state contrast to the HOS rule.
Also, Cox Petroleum Transport (COX) and securely, while also trying to
laws only when a statute contains an comply with all the potentially different
express preemption provision, there is contends that the ‘‘conflicting and
competing’’ federal and state standards sets of rules it may encounter during the
other clear evidence Congress intended trip. To illustrate this point, ATA argues
to preempt state law, or the exercise of make it extremely confusing and
difficult to be in full compliance when that without preemption of non-federal
State authority directly conflicts with meal and break laws, carriers operating
the exercise of federal authority. The a driver’s work day includes interstate
transportation. in multiple states would potentially be
President’s May 20, 2009 memorandum subject to ‘‘an arbitrarily large and
sets forth the policy ‘‘that preemption of Constant Attendance and Security Plans complex patchwork’’ of different state
state law by executive departments and rules. According to ATA, approximately
Several commenters argue that the
agencies should be undertaken only twenty-one states have their own set of
California meal and rest break
with full consideration of the legitimate varying meal breaks and nine states
requirements should be preempted
prerogatives of the states and with a have rest break requirements.
because they interfere with the HMR
sufficient legal basis for preemption.’’
security plan requirements. See 49 CFR Shortage of Parking and Safe Havens
Section 5125 contains express
172.800–172.802 Specifically, the
preemption provisions, which PHMSA Western States Trucking Association
commenters argue that adherence to the
has implemented through its (WSTA) believes the core reason the
California meal and rest break
regulations. California meal and rest break
requirements would preclude motor
III. Public Comments carriers from including a ‘‘constant requirements need to be preempted is
attendance’’ requirement in the en route the inability of a driver of a commercial
A. Comments Supporting Preemption section of the security plans that motor motor vehicle (CMV) ‘‘to ‘just pull-over’
Unnecessary Delay carriers are required under the HMR to or even find suitable truck parking in
develop when offering, or transporting, order to comply with an inflexible state
Several commenters argue that the meal and rest break requirement.’’
certain hazardous materials. As the
California meal and rest break According to WSTA, the shortage of
commenters explain, although security
requirements conflict with the HMR’s available truck parking is a well-
plans may not be applicable to all of
requirement that hazmat shipments by documented national issue.
their hazmat shipments, most motor
highway be transported without Consequently, WSTA argues that the
carriers that develop security plans
unnecessary delay. See 49 CFR ability of truck drivers to simply pull
often make them universally applicable
177.800(d). The commenters to their hazmat transportation over or find a safe place to park is not
acknowledge that the health and safety operations. According to the as easy as the proponents of California’s
of the driver might be a reasonable commenters, when motor carriers need rule claim, especially when hazardous
motive for requiring breaks, but contend to ensure en route security for hazmat, materials are involved. For example,
that the delays caused by the California they use the constant attendance according to WSTA, ‘‘safe haven’’
requirements are not necessary or method because it is ‘‘a time-proven, parking is even in shorter supply than
reasonable in the context of the low-cost, and highly effective method’’ general truck parking.
transportation of hazardous materials. to ensure en route security. Moreover, WSTA believes that the California
In support of this contention, several the commenters say that PHMSA and rule is ill-conceived as applied to CMVs.
commenters note that many drivers FMCSA view a ‘‘constant attendance’’ It presumes the regulations were
transporting hazardous materials are requirement included in a security plan designed for employees working in
subject to the break requirements set by as a useful and effective method for more structured environments that are
the Department’s Federal Motor Carrier ensuring the safety and security of not subject to many of the external
Safety Administration (FMCSA) in its hazmat in transportation. For example, factors that impact the trucking
Hours of Service (HOS) regulations, 49 the commenters point to PHMSA’s industry, such as road and weather
CFR part 395. guidance on implementing security conditions, shipper/receiver delays,
The commenters explain that the HOS plans and FMCSA’s current exemption breakdowns of equipment, randomized
rule requires a 30-minute rest at least to the HOS rule for certain carriers vehicle inspections by law enforcement,
every eight hours, whereas the subject to the security plan and traffic conditions.
California rule requires many more requirements. See 81 FR 83923 (Nov. 22,
breaks during a comparable work day. 2016). Regarding the exemption, ATA California Independent Oil Marketers
daltland on DSKBBV9HB2PROD with NOTICES

The American Trucking Associations, further reasons that if the federal off- Association (CIOMA)
Inc. (ATA), in its comments, illustrates duty break requirement presented a CIOMA submitted its comments
this point by noting that a driver sufficient obstacle to the security plan supporting federal preemption of
3 Preemption determinations issued by PHMSA
regulations to warrant an exemption, it California’s meal and rest break
are labelled herein as ‘‘PD.’’ Inconsistency rulings
follows that state rules requiring off- requirements. Eight additional
issued by PHMSA’s predecessor agency are labelled duty breaks would constitute a similar commenters voiced their support for
as ‘‘IR.’’ obstacle and warrant preemption. CIOMA’s comments.

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47968 Federal Register / Vol. 83, No. 184 / Friday, September 21, 2018 / Notices

employee from being relived of all duty Constant Attendance in Security Plans filed security plans requiring constant
and is therefore eligible for the The HMR requires that carriers of attendance of hazmat in accordance
exception. Moreover, DLSE indicated certain security-sensitive hazmat must with 49 CFR 172.800–804. 80 FR 50912,
that a determination whether to allow develop and implement a written 50913 (August 21, 2015). In allowing the
an on-duty meal break is very fact security plan that accounts for exemption, FMCSA determined that the
specific and that there many factors that personnel, cargo, and en route security. exemption would ‘‘likely achieve a level
it may consider in evaluating an See 49 CFR 172.800–172.802. According of safety that is equivalent to, or greater
exception request. More importantly, to NTTC and several commenters, many than, the level that would be achieved
DLSE said that it could not issue an absent such exemption.’’ Id. Congress
carriers include a constant attendance
opinion or give a blanket exception from later mandated that certain exemptions
requirement for en route security in
the obligation to provide off-duty meal from FMCSA’s HOS regulations be valid
their plans. As the commenters explain,
periods. for five years from the date the
although security plans may not be
exemptions were granted. See Fixing
PHMSA agrees with NTTC and applicable to all of their hazmat
America’s Surface Transportation Act
CIOMA, for the reasons summarized shipments, most motor carriers that
§ 5206(b)(2), Public Law 114–94 (Dec. 4,
above, that there is significant develop security plans often make them
2015). FMCSA accordingly extended the
uncertainty about whether motor universally applicable to their hazmat
exemption through August 20, 2020. 81
carriers could obtain exemptions and transportation operations. According to
FR 83923 (Nov. 22, 2016).
other accommodations from California’s the commenters, when motor carriers
requirement, and that the mere need to ensure en route security for IBT’s Comments and PHMSA’s
possibility of obtaining relief from hazmat, they use the constant Conclusion
California’s requirement, particularly attendance method because it is ‘‘a time- IBT, as the sole opponent to
since such relief is within the discretion proven, low-cost, and highly effective preemption on this basis, relies on the
of the State, is too illusory to defeat method’’ to ensure en route security. same defense that it used against
preemption. In any event, IBT’s focus on Exemption to the HOS Rule NTTC’s other preemption claims.
exemptions also misses a more Essentially, IBT contends that constant
fundamental point. If it is only possible Again, NTTC argues by analogy to an attendance is accommodated by the
for a motor carrier to simultaneously action taken by FMCSA with respect to California rule with its rest period
comply with a federal requirement and the HOS regulations, which as noted exemption provision and on-duty meal
a State requirement if it obtains an above, generally require drivers to take break exception.
exemption from the State requirement, a 30-minute off-duty break after eight PHMSA concludes that California’s
then it is not actually possible to hours of driving. meal and rest break requirements are an
simultaneously comply with both In 2015, ATA filed an exemption obstacle to carrying out the HMR’s
requirements. request with FMCSA. ATA sought the security plan requirements. Just as
exemption from the HOS rule on behalf FMCSA recognized that complying with
Therefore, for the reasons stated of all motor carriers whose drivers its HOS regulations would present an
above, we find that the California meal transport hazmat loads subject to obstacle to a motor carrier including a
and rest break requirements are PHMSA’s security plan requirement. widely-used ‘‘constant attendance’’
preempted under 49 U.S.C. 5125(a)(1) FMCSA, in consideration of ATA’s provision in its security plan, PHMSA
with respect to the drivers of motor request for an exemption to the federal determines that complying with
vehicles which contain a Division 1.1, HOS rule, recognized that a conflict California’s meal and rest break
1.2, or 1.3 explosive material, and existed between the HOS break requirements would present a similar
which are subject to the attendance requirement and the constant obstacle. IBT’s arguments concerning
requirement of 49 CFR 397.5(a), because attendance requirement that motor the possibility of exemptions do not
it is not possible to simultaneously carriers typically include in their change this determination. As noted
comply with that requirement and the PHMSA mandated security plans. As above, there is significant uncertainty
California requirements.8 FMCSA explained in its notice about how available exemptions are.
D. Obstacle To Accomplishing the HMR announcing the application, although And more fundamentally, if a regulated
Security Objectives constant attendance is not specifically entity were able to obtain an exemption
mandated by the security plan rules, from California’s requirements, there
NTTC also argues that the California ‘‘[t]hese plans normally require a driver would be no need to decide whether
rules are an obstacle to the security to ‘attend’ such cargo while the those requirements were preempted; the
objectives of the HMR. Specifically, [commercial motor vehicle] is stopped, question before PHMSA is whether the
NTTC argues that the California rule which would be an on-duty activity State requirements are an obstacle to
frustrates the ability of carriers to [under the HOS rules]. This forces federal law with respect to those
deploy an effective, widely used drivers to choose between FMCSA’s off- regulated entities who are not
deterrent, i.e., constant attendance, in duty rest break requirement and exempted.
their written security plans. compliance with PHMSA’s security For the reasons stated above, the
plans, many of [which] include an on- California meal and rest break
8 NTTC has not provided evidence that is duty ‘attendance’ requirement.’’ 80 FR requirements are preempted under 49
impossible for those transporting other hazardous 25004, 25004 (May 1, 2015). U.S.C. 5125(a)(2) as to motor carriers
materials to comply with California’s requirements Ultimately, FMCSA granted a two- who are required to file a security plan
daltland on DSKBBV9HB2PROD with NOTICES

while also complying with the requirement of 49
CFR 397.5(c) that such cargo be attended when it
year exemption from the 30-minute under 49 CFR 172.800, and who have
is ‘‘located on a public street or highway, or the break requirements for carriers whose filed security plans requiring constant
shoulder of a public highway.’’ Indeed, it seems drivers transport hazmat loads requiring attendance of hazardous materials.
probable that drivers could—and do—take breaks at placarding under 49 CFR part 172,
locations other than the public streets or highways,
subpart F, or select agents and toxins V. Ruling
or the shoulders of public highways. Accordingly,
PHMSA determines that the California identified in 49 CFR 172.800(b)(13) that PHMSA finds that California’s meal
requirements are not preempted on this basis. do not require placarding, and who have and rest break requirements create an

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Federal Register / Vol. 83, No. 184 / Friday, September 21, 2018 / Notices 47969

unnecessary delay in the transportation DEPARTMENT OF TRANSPORTATION Department of Transportation, 1200
of hazardous materials, and are New Jersey Avenue SE, Washington, DC
therefore preempted with respect to all Pipeline and Hazardous Materials 20590–0001.
drivers of motor vehicles that are Safety Administration
SUPPLEMENTARY INFORMATION: Section
transporting hazardous materials. The [Docket No. PHMSA–2018–0020 (Notice No.
agency also finds that the California 1320.8(d), Title 5, Code of Federal
2018–13)] Regulations (CFR) requires PHMSA to
meal and rest break requirements are
preempted with respect to drivers of provide interested members of the
Hazardous Materials: Information
motor vehicles that are transporting public and affected agencies an
Collection Activities
Division 1.1, 1.2, or 1.3 explosive opportunity to comment on information
material and are subject to the AGENCY: Pipeline and Hazardous collection and recordkeeping requests.
attendance requirements of 49 CFR Materials Safety Administration This notice identifies a new information
397.5(a), because it is not possible for a (PHMSA), DOT. collect request that PHMSA will be
motor carrier employer’s drivers to ACTION: Notice and request for submitting to OMB. This information
comply with the off-duty requirement of comments. collection will be contained in 49 CFR
the California rule and the federal 171.6 of the Hazardous Materials
SUMMARY: In accordance with the Regulations (HMR; 49 CFR parts 171–
attendance requirement. Finally, the
Paperwork Reduction Act of 1995, 180). PHMSA will revise burden
California meal and rest break
PHMSA invites comments on a new estimates, where appropriate, to reflect
requirements are preempted as to motor
information collection pertaining to current reporting levels or adjustments
carriers who are required to file a
hazardous materials transportation for based on changes in proposed or final
security plan under 49 CFR 172.800,
which PHMSA intends to request from rules published once the information
and who have filed security plans
the Office of Management and Budget collection is approved. The following
requiring constant attendance of
(OMB). PHMSA received five comments information is provided for this
hazardous materials.
in response to the 60-Day Notice, all of information collection: (1) Title of the
VI. Petition for Reconsideration/ which were outside the scope of this information collection; (2) summary of
Judicial Review information collection request. the information collection activity; (3)
In accordance with 49 CFR DATES: Interested persons are invited to description of affected public; (4)
107.211(a), any person aggrieved by this submit comments on or before October estimate of total annual reporting and
determination may file a petition for 22, 2018. recordkeeping burden; and (5)
reconsideration within 20 days of ADDRESSES: You may submit comments frequency of collection. PHMSA will
publication of this determination in the regarding the burden estimate, request a 3-year approval for this
Federal Register. If a petition for including suggestions for reducing the information collection activity and will
reconsideration is filed within 20 days burden, identified by Docket No. publish a notice in the Federal Register
of publication in the Federal Register, PHMSA–2018–0020 (Notice No. 2018– upon OMB’s approval. PHMSA requests
the decision by PHMSA’s Chief Counsel 13), by any of the following methods: comments on the following information
on the petition for reconsideration • Mail: Office of Information and collection:
becomes PHMSA’s final agency action Regulatory Affairs, Office of Title: Generic Clearance for the
with respect to the person requesting Management and Budget, Attention: Collection of Qualitative Feedback on
reconsideration. See 49 CFR 107.211(d). Desk Officer for DOT–PHMSA, 725 17th Agency Service Delivery.
If a person does not request Street NW, Washington, DC 20503. Abstract: The information collection
reconsideration in a timely fashion, then • Fax: 202–395–5806. activity will garner qualitative customer
this determination is PHMSA’s final • Email to OIRA_Submission@ and stakeholder feedback in an efficient,
agency action as to that person, as of the omb.eop.gov. timely manner, in accordance with the
date of publication in the Federal We invite comments on: (1) Whether Department’s commitment to improving
Register. the proposed collection of information service delivery. Qualitative feedback is
Any person who wishes to seek is necessary for the proper performance information that provides useful
judicial review of a preemption of the functions of the Department, insights on perceptions and opinions,
determination must do so by filing a including whether the information will not statistical surveys that yield
petition for review in the United States have practical utility; (2) the accuracy of quantitative results that can be
Court of Appeals for the District of the Department’s estimate of the burden generalized to the population of study.
Columbia Circuit, or in the United of the proposed information collection; This feedback will provide insight into
States Court of Appeals for the circuit in (3) ways to enhance the quality, utility, customer or stakeholder perceptions,
which the petitioner resides or has its and clarity of the information to be opinions, experiences, and expectations,
principal place of business, within 60 collected; and (4) ways to minimize the as well as an early warning of issues
days after the determination becomes burden of the collection of information with service or focus attention on areas
final with respect to the filing party. See on respondents, including the use of where communication, training, or
49 U.S.C. 5127(a). automated collection techniques or
The filing of a petition for changes in operations might improve
other forms of information technology. delivery of products or services. These
reconsideration is not a prerequisite to Docket: For access to the dockets to
seeking judicial review of this decision collections will allow for ongoing,
read background documents or collaborative, and actionable
under 49 U.S.C. 5127(a).
daltland on DSKBBV9HB2PROD with NOTICES

comments received, go to http:// communications between PHMSA and
Issued in Washington, DC, on September www.regulations.gov. customers and stakeholders. It will also
14, 2018. allow feedback to contribute directly to
FOR FURTHER INFORMATION CONTACT:
Paul J. Roberti, Steven Andrews or Shelby Geller, the improvement of program
Chief Counsel. Standards and Rulemaking Division, management. Feedback or information
[FR Doc. 2018–20542 Filed 9–20–18; 8:45 am] (202) 366–8553, Pipeline and Hazardous collected under this generic clearance
BILLING CODE 4910–60–P Materials Safety Administration, U.S. will provide useful information, but it

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Document Created: 2018-09-21 00:24:34
Document Modified: 2018-09-21 00:24:34
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		Notice of Administrative Determination of Preemption.
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.
FR Citation		83 FR 47961
83 FR 47961 - Hazardous Materials: California Meal and Rest Break Requirements

DEPARTMENT OF TRANSPORTATIONPipeline and Hazardous Materials Safety Administration

Federal Register Volume 83, Issue 184 (September 21, 2018)

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
