PHMSA Publishes Preemption Determination Notice

On September 21, 2018, the Pipelines Hazardous Materials Safety Administration (PHMSA) published in the Federal Register a notice of administrative determination of preemption on hazardous materials transportation in California. The National Tank Truck Carriers filed for this issue to be addressed. Specifically, PHMSA found 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 found 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.

NTTC had 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 10 hours of work. Generally, the employee must be ‘‘off duty’’ during the meal period. In addition, employees are 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.

For more information, please view the Federal Register notice here. If you have any questions, or would like to get involved in the TIA Environmental and Hazmat Subcommittee, please contact Chris Burroughs at burroughs@tianet.org.