California requires an employer to provide employees who works more than five hours with a 30-minute uninterrupted, off-duty meal break (and another meal break if they work more than 10 hours). State law also requires an employer to provide employees with a 10-minute uninterrupted, off-duty break every four hours. Regulations issued by the U.S. Department of Transportation (DOT), on the other hand, require only that a commercial driver not drive more than eight hours without first taking a 30-minute, off-duty meal break.

This conflict between California and federal law regarding drivers of Hazardous Materials (“Hazmat”) was resolved by the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) in response to a petition from the National Tank Truck Carriers, Inc. (NTTC). Under 49 U.S.C. § 125, the PHMSA is vested with the authority to declare a state law to be preempted by the Federal Hazardous Material Transportation Law and the Hazardous Materials Regulations (HMR). On September 21, 2018, the PHMSA did just that by issuing a “Notice of Administrative Determination of Preemption” in which it held California’s meal and rest break requirements to be preempted by the HMR because they (1) caused unnecessary delay in transporting hazardous materials, (2) conflicted with HMR attendance requirements, and (3) were an obstacle to HMR security objectives.

Unnecessary Delay in the Transportation of Hazmat Freight. The HMR requires shipments of hazardous materials to be transported without unnecessary delay because delay is “incongruous with safe transportation” as any delay increases the time when an accident may occur. Likewise, state requirements that directly or indirectly divert hazardous materials onto longer, more circuitous routes are inconsistent with the HMR. Yet, California law requires a driver to pull over and take a break at least four separate times during an 11-hour shift (two 30-minute meal breaks and two 10-minute rest breaks), even though federal law requires only a single 30-minute break during a 14-hour on-duty shift. The PHMSA preempted California’s meal and rest break requirements as to drivers transporting hazardous materials because California’s requirements create an unnecessary delay in the transportation of hazardous materials.

Conflict with HMR Attendance Requirements. The HMR requires a motor vehicle (1) to be attended at all times by its driver if it contains certain categories of explosive materials (Divisions 1.1, 1.2 and 1.3), or (2) to be attended at all times by its driver if it contains non-explosive hazardous materials and is located on a public street or highway, or on the shoulder of a public highway. The PMHSA evaluated the HMR mandatory attendance requirements against California’s requirement that drivers must be completely off-duty and uninterrupted by work matters during meal and rest breaks. Because the PMHSA concluded it is impossible for drivers to simultaneously comply with both requirements, it preempted California meal and rest break laws as to drivers transporting hazmat freight.

Obstacle to HMR Security Objectives. The HMR requires carriers of certain security-sensitive hazardous materials to develop and implement a written security plan that accounts for personnel, cargo and en route security. Such carriers generally require constant attendance for en route security, which is a “time-proven, low-cost, and highly effective method.” As California meal and rest breaks must be off-duty, the PHMSA preempted California’s requirements because they are an obstacle to carrying out the HMR’s security plan requirements.

While the PHMSA may issue a Notice of Administrative Determination of Preemption, under federal law, any person aggrieved by the PHMSA’s determination can file a petition for reconsideration within 20 days, and any person wishing to seek judicial review may file a petition for review within 60 days in the United States Court of Appeals for the D.C. Circuit or in the circuit where the petitioner resides. Employers with employees driving in California are accordingly cautioned to wait at least 60 days before making any changes that would not comply with California law.