HARRIS v. PAC ANCHOR TRANSPORTATION

Respondents’ Petition for Review

Cal.June 28, 2011

IN THE SUPREME COURT OF CALIFORNIA THEPEOPLEex rel. KAMALAD. Case Number £ 194388 HARRIS,as Attorney General, etc., Plaintiff and Appellant, v. su PAC ANCHOR TRANSPORTATION, FILED INC., et al., ; Defendants and Respondents. JUN 28 209}. Frederick «. Ohirich Clerk Deputy After a Decision by the Court of Appeal Second Appellate District, Division Five [Case No. B220966] Appeal from a Judgment of the Superior Court for Los Angeles County Hon. Elizabeth A. White, Judge [Case No. BC397600] PETITION FOR REVIEW Neil S. Lerner (SBN 134031) Arthur A. Severance (SBN 246691) SANDS LERNER 12400 Wilshire Blvd., Suite 1300 Los Angeles, CA 90603 Tel.: (310) 979-9144 Fax: (310) 979-9244 Email: nsl@sandslerner.com; aas(@sandslerner.com Attorneysfor Alfredo Barajas and Pac Anchor Transportation, Inc. Service on the Office of the Attorney General and the District Attorney of the County of Los Angeles required by Bus. & Prof. Code § 17209 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLEex rel. KAMALAD. Case Number HARRIS,as Attorney General, etc., Plaintiff and Appellant, V. PAC ANCHOR TRANSPORTATION, INC., et al., Defendants and Respondents. After a Decision by the Court of Appeal Second Appellate District, Division Five [Case No. B220966] Appeal from a Judgmentof the Superior Court for Los Angeles County Hon.Elizabeth A. White, Judge [Case No. BC397600] PETITION FOR REVIEW Neil S. Lerner (SBN 134031) Arthur A. Severance (SBN 246691) SANDS LERNER 12400 Wilshire Blvd., Suite 1300 Los Angeles, CA 90603 Tel.: (310) 979-9144 Fax: (310) 979-9244 Email: nsl@sandslerner.com; aas(@sandslerner.com Attorneysfor Alfredo Barajas and Pac Anchor Transportation, Inc. Service on the Office of the Attorney General and the District Attorney of the County of Los Angeles required by Bus. & Prof. Code § 17209 TABLE OF CONTENTS TABLE OF AUTHORITIESon ccsscccssesssesecessssecesesesssssssessesssssssarcevecessuccescessereeceeseesee ii ISSUE PRESENTED . Can the State of California (the “State”) enforce its employmentlaws against motor carriers by seeking an injunction under the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., to compel them to treat individuals whodrive trucks for them as employees, rather than independentcontractors, or is such an action unconstitutional becauseit is preempted by the Federal Aviation Administration Authorization Act (““FAAAA”), 49 U.S.C.§ L45O1(C)(L)? cosceccsscscsssssseessssscsssssssssseveccessussessssesesstssecssssssesssssesistisessasevesesseeesese 1 WHY REVIEW SHOULD BE GRANTED. ..ccecscsssseessssssececsssssssssecsssssseessrsessesssesee 1 BACKGROUND..eeeccssssssssessssssseessssssssssssssssuvecessnserecsssassrssessuetessenvasesssssssiesssssvecsees 3 LEGAL DISCUSSION..u....cscsscsssssssssssssssssessscsssesesessuscessessesssuesssssssesssstssessssesessnvesee 5 I. IL. Review Is Necessary Because the Issue Involves a Conflict Between an Express Federal Policy Against State Interference with the Forces of Competition Between Motor Carriers and a State Policy Favoring the Use of Employee Drivers Over Independent Contractors .0....0ccccceeceeeeees 5 Review Is Necessary to Resolve a Split Between the Divisions of the Second District of the Court of Appeal Regarding the Preemption of Claims Against Air and Motor Carriers Under the Unfair Competition Law.......ccceccsesessesessssescscessscsecsesseseasssescscesseceasacaeaees 8 CONCLUSIONoesccessssettcesssssteeseenseecesssssssssesssesseessesssssesssuseetisecstsssevessvseteeeeeee 10 CERTIFICATE OF COMPLIANCE........cccccccscssscssssececcecsesesesesssesseatsatsaesaeceuens 11 DECLARATION OF SERVICE.....ccccccccccccccccccssesscssscescesseaeecsaseaeesesersesaeessesessesues 12 EXHIBIT A: Opinion of the Court of Appeal EXHIBIT B: Excerpt from H.R. Conf. Rep. 103-677 (1993) > reprinted in 1994 U.S.C.C.A.N. 1715 TABLE OF AUTHORITIES I. CASES Am.Airlines, Inc., v. Wolens, 513 U.S. 219 (1995)... eececsecesesscssecerseseesees 6-7 Am. Trucking Ass’ns v. City ofLos Angeles, 559 F.3d 1046 (9th Cir, 2009) oo. ecceccessseecssecsssccssessesssnessasssussasssressspsstessiseetesesceesececce 7 Blackwell v. SkywestAirlines, Inc., No. 06cv0307 DMS (AJB), 2008 WL 5103195 (S.D. Cal. Dec. 3, 2008) veecsccccccsscsssessesececeseescccce. 9-10 Californiansfor Safe & Competitive Dump Truck Transp.v. Mendonca, 152 F.3d 1184 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999) oeecscscssssesssssssuesessssrcetsesetseseceeseces, 1, 4-5, 9-10 Fitz-Gerald v. SkywestAirlines, Inc., 155 Cal. App.4th 411 (2007), reh’g denied, No. B187785, 2007 Cal. App. LEXIS 1719 (Oct. 16, 2007), depublication denied, No. S158366, 2008 Cal. LEXIS 1056 (Jan. 30, 2008).......:eeeseeesseeesaneesseeeessueeaeees 1-5, 8-9 In re Korean Airlines, Co., No. 08-56385, 2011 WL 1458794 (9th Cir, Apr. 18, 2011)... cecssssesssssssssessessessesssssssseessessssssereeteeesseeeseecccc. 9 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) veces 1, 4-5 Rowe v. N.H. Motor Transport Ass'n, 552 U.S. 364 (2008) wo... 1-2, 5-6, 9 Tanen v. Southwest Airlines, Co., 187 Cal. App. 4th 1156 (2010)...a.9 Il. STATUTES 1993 Cal. Stat. ch. 1226 § 4 (1993) (“AB 2015”), codified at Cal. Pub. Util. Code §§ 4120 et seg. (1994) oo ccecsesesetreecssteesens 5-6 49 U.S.C. § 1310214)... ecccecssssescssesssssusssevesssstsssisesssessssesssteseeseeseeeeceescc I 49 USC. § 1350 Lcccccccscesscsssessnsesssssecsssusssssecsstusssuvsssssssussessavestsesesteessescecc 1 49 ULS.C. § 13504... cceccssessssusesssssecssesssssusssusssssussssuvesaressasessstessseteseereeeeecccc. ! 49 ULS.C. L4SO1(C) coececsssessssnessnessssssscsssusssssssasnsesisssusessisesesipessteceetescesceccc 1 Federal Aviation Administration Authorization Act (“FAAAA”), AD U.S.C. § L4SOU(C) 1) eeceeseccscssssesesssssecsesssseesssssessseeveuceteessecccc.passim Airline Deregulation Act (“ADA”), 49 U.S.C. 41713(b)(1) ceeceecccccece. 2, 7-10 Unfair Competition Law,Cal. Bus. & Prof. Code . §§ 17200 ef SCG. 0... eeceessecsecssssssessssssssessearssssssescetssseesescetescecceccc. 1-5, 7-10 Cal. Lab. Code § 226 wi... iccecsessscsssssssssesssssssssssusssuissssissssssavsestiseesteeeeeeeccce 3 Cal. Lab. Code § 1194... ccssesssssssssussseresssstssssscssssssssesssaseettteeeseecceeccc 3 li TABLE OF AUTHORITIES, CONTINUED IL. STATUTES, CONTINUED Cal. Lab. Code § 2802.00... eeecssssssssesesseseseseesesesesesesessssesesscsescsvscsescssssasenars 3 Cal. Lab. Code § 3700.0... cccesssesesssessessesescescssescssseesesessescseuscsusscecseneevensens 3 Cal. R. Ct. § 8.S04(D)(5) oo. ecceecccecseseeseescesseseseescsscsesssscsssscssesvecsssesseeseasareee 4 Cal. R. Ct. § 8.504(e)(1)(A) oo. eeceeccesessesesescsenssecscecsesesssecsccessecscscsvsvevasarenes 4 Cal. R. Ct. § 8.268(6). eeecsecessesesessesessesesscacsesescescacsesscsecscsesststssessnaseceees 5 Cal. R. Ct. § 805(e)(1)(C)..neee ceeeecssesescesessesesscenssnesscscesescsccsssststecsevsvaceesevaes 2 Cal. Unemp.Ins. Code § 976 o....ccccccccccsscsscessscsssscessesvsscscesseasscsareessceerarsacace 3 Cal. Unemp.Ins. Code § 976.6 .o..cccescssssessesesssscsessesesessescesesesesetscsstavsnsseaees 3 Cal. Unemp.Ins. Code § 984 oo. ccccccccssscsseccescsesecscsessessecssssscecssssvavsesseeeees 3 Cal. Unemp.Ins. Code § 13020 oo..ccccccccccccsscsscsescsscsssscesacscsscsesersceseassaeers 3 II. REGULATIONS T.W.C. Wage Order 9-2001 § 4 o..eeecccecesecescecesssssessscsscssesscsevevsscseeveeeacaceas 3 T.W.C. Wage Order 9-200] § 7 o..ccccccccsecsessessssessesscscsssssessesscsssecssseveceesscaces 3 IV. OTHER AUTHORITIES A.B. 950, 2011-12 Leg., Reg. Sess. (Cal. 2011) ...ceecccccecceseeceseeceeeeeceeceees 7 H.R. Conf. Rep. 103-677 (1993), reprinted in 1994 U.S.C.C.ALN. 17S cecceceeccececsesssesessesseasescsscseserseesssscsesseaees2, 5-6, 9 it ISSUE PRESENTED Can the State of California (the “State”) enforce its employment laws against motor carriers by seeking an injunction under the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., to compel them to treat individuals who drive trucks for them as employees, rather than independent contractors, or is such an action unconstitutional becauseit is preempted by the Federal Aviation Administration Authorization Act (““FAAAA”), 49 U.S.C. § 14501(c)(1)? WHY REVIEW SHOULD BE GRANTED The Court of Appeal misapplied the tests for FAAAA preemption when it considered this issue. Pursuant to those tests, the State’s action under the Unfair Competition Law against the defendant motorcarriers is preempted if it either refers to or affects the carrier’s prices, routes, or services. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 388-90 (1992): Rowe v. N.H. Motor Transport Ass’n, 552 U.S. 364, 370 (2008). Even if the effect is remote, the State’s action is still preempted if it interferes with the forces of competition between motor carriers. Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1188 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999). In addition, the Court of Appeal erred by rejecting the holding in Fitz-Gerald v. SkywestAirlines, Inc., 155 Cal. App. 4th 411, 423 (2007), reh’g denied, No. B187785, 2007 Cal. App. LEXIS 1719 (Oct. 16, 2007), depublication denied, No. $158366, 2008 Cal. LEXIS 1056 (Jan. 30, 2008), that the preemptive language employed by the FAAAA preempts all actions under the Unfair Competition Law against motorcarriers. The Court should grant review because this issue does not solely affect the defendant motor carriers, it affects all motor carriers engaged in the interstate transportation of property (“motorcarriers”) in California. 49 U.S.C. §§ 1310214) 13501, 13504, 14501(c). Moreover, because the 1 FAAAA employs the same preemptive language as the Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713(b)(1); Rowe, 552 U.S. at 369, the issue alsoaffects all air carriers operting in California. This issue embodies and ongoing conflict between a State policy favoring the use of employee drivers over independent contractors and a Congressional policy against state interference with the forces of competition between motor carriers. Congress specifically adopted its policy and enacted the FAAAA to thwart an attempt by the State to impose its policy on motor carriers operating in California. H.R. Conf. Rep. 103- 677 (““HRCR”) at 87 (1993), reprinted in 1994 U.S.C.C.A.N. 1715 (“USCCAN”) at 1759 (1 Appx. at 270).' Nevertheless, the State and its political subdivisions (collectively the “State”) have repeatedly sought to substitute the State’s policy for the Congressional policy ever since. Review is necessary to resolve this policy conflict conclusively and to give effect to the Congressional policy against state interference by protecting motor carriers operating in California from the State’s continuing efforts to impose the use of employee drivers on them. Furthermore, review is necessary to secure the uniform application of the law to air and motorcarriers. Two published decisions by the Court of Appeal for the Second Appellate District explicitly disagree whether the preemption language employed by the FAAAAand the ADA preemptsall actions under the Unfair Competition Law against air and motorcarriers. In this matter, Division Five held that it does not. Opn.at 5. In Fitz-Geraldv. Skywest Airlines, Inc., Division Six held that it does. Because the decision by the Court of Appeal has created this split within the Court of Appeal, because this case involves an ongoing conflict between Congressional and State policies regarding motor carriers, and ' The relevant excerptis attached as Exhibit “B.” Cal. R. Ct. § 805(e)(1)(C). 2 because the issue is of importance not only to the defendant motorcarriers, but to all air and motor carriers operating in California, the Court should grant review ofthis issueof first impression. BACKGROUND The State filed a complaint against the defendant motor carriers alleging that they violated various California employment laws (Cal. Lab. Code §§ 226, 1194, 2802, 3700; Cal. Unemp.Ins. Code §§ 976, 976.6, 984, 13020; I.W.C. Wage Order 9-2001 §§ 4, 7) by treating drivers who drive trucks owned by onecarrier and leased together with the drivers’ services to the other as independentcontractors, rather than employees. Opn.at 1; 1 Appx.at 10:20-11:9, 13:6-14:7. The State did not assert a single cause of action under the state employmentlawsthecarriers allegedly violated. Instead, it chose to assert a single cause of action under the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., based on the alleged violation of those laws. The State’s action alleges that the carriers “illegally lowered their costs of doing business,” unfairly and unlawfully profited, and obtained an unfair advantage over their competitors by misclassifying the drivers, and seeks restitution, a civil penalty, and an injunction prohibiting the carriers from continuing to treat the drivers as independent contractors. Opn. at 1; 1 Appx. at 9:26-10:11, 14:8-12, 14:27-15:10. The defendant motor carriers filed a motion for judgment on the pleadings. Opn. at 2. Thetrial court granted the motion, holding that the FAAAA preempts the State’s action for three reasons: 1) Pursuant to Fitz-Gerald v. Skywest Airlines, Inc., 155 Cal. App. 4th 411, 423 (2007), reh’g denied, No. B187785, 2007 Cal. App. LEXIS 1719 (Oct. 16, 2007), depublication denied, No. $158366, 2008 Cal. LEXIS 1056 (Jan. 30, 2008), the FAAAA preemptsall actions under the Unfair Competition Law against motorcarriers; 2) Underthe first part of effect test for preemption set forth in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the State’s action logically has a forbidden direct and significant effect on the defendant motorcarriers’ prices, routes, and services; and 3) Even if that effect is remote, under the second part of the effect test as set forth in Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1188 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999), the State’s action is nevertheless preempted because it impermissibly interferes with the forces of competition between motor carriers by erecting an entry control that discourages the participation of independentcontractor drivers in the market. 2 Appx. at 429:5-432:15; see Opn.at 2. The State appealed the judgment, and on May 18, 2011, the Court of Appeal reversed it.” Opn. at 6. In its Opinion, the court rejected the reasoning of Fitz-Gerald and held the FAAAA does not preempt actions against motorcarriers under the Unfair Competition Law. Opn.at 5. However, the court only applied the first part of the effect test set forth in Morales to the state employment laws that the defendant motor carriers allegedly violated. Jd. at 5-6. The court implicitly found those laws to be generally applicable to all businesses, and therefore found that they only remotely affect the carriers’ prices, routes, and services. Jd. The court reasoned that, because the State’s action under the Unfair Competition Law is based on the violation of laws which only remotely affect the carriers’ prices, routes, and services, the State’s action itself also only remotely affects them. Jd. at 6. Therefore, the court held that the FAAAA does not preempt the State’s action. Jd. * The Opinion of the Court of Appealis attached as Exhibit “A.” Cal. R. Ct. §§ 8.504(b)(5), (e)(1)(A). The defendant motorcarriers filed a petition for rehearing in which they asked the court to apply the reference test for preemption set forth in Morales, to apply the first part of the effect test from Morales directly to the State’s action under the Unfair Competition Law, not just to the state employment laws that the carriers allegedly violated, and to apply the second part of the effect test set forth in Californians. In addition, the carriers asked the court to reexamine its position regarding Fitz-Geraldin light of the policies behind the Unfair Competition Law and the FAAAA, as well as the case law interpreting those laws. The Court of Appealdenied the petition on June 17, 2011. Cal. R. Ct. § 8.268(c). LEGAL DISCUSSION I. REVIEW IS NECESSARY BECAUSE THEISSUE INVOLVES A CONFLICT BETWEEN AN EXPRESS FEDERAL POLICY AGAINST STATE INTERFERENCE WITH THE FORCES OF COMPETITION BETWEEN MOTOR CARRIERS AND A STATE POLICY FAVORING THE USE OF EMPLOYEE DRIVERS OVER INDEPENDENT CONTRACTORS. Congress deregulated the trucking industry in 1980. Rowe v. NH. Motor Transport Ass’n, 552 U.S. 364, 367 (2008). Since that time, the State has repeatedly attempted impose a state policy favoring the use of employee drivers over independent contractors on motor carriers operating» in California. To that end, in 1993 the State enacted Assembly Bill 2015 (“AB 2015”), 1993 Cal. Stat. ch. 1226 § 4 (1993), codified at Cal. Pub. Util. Code §§ 4120 et seq. (1994), a law that exempted intermodalair and . motor carriers from State regulation but denied the exemption to carriers using a large proportion of independent contractor drivers. See H.R. Conf. Rep. 103-677 (““HRCR”) at 87 (1993), reprinted in 1994 U.S.C.C_AN. 1715 “USCCAN”) at 1759 (1 Appx. at 270). . In direct response, in 1994 Congress intervened by enacting the preemptive provision of the FAAAA to strike down AB 2015. Jd. To end the patchwork of regulation created by AB 2015 andother laws enacted by the states after federal regulation of the trucking industry ended, Congress prohibited the State, the other states, and their political subdivisions from “enact[ing] or enforc[ing] any law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier,” with certain exceptions that are not applicable here. 49 U.S.C. § 14501(c)(1); HRCRat 87, reprinted in USCCANat 1759 (1 Appx.at 270). In its findings regarding the FAAAA, Congress recognized that to foster competition between motor carriers, it had to leave carriers to themselves andto prevent the states from substituting their own policies for the competitive market forces Congress sought to promote: [P]reemption legislation is in the public interest as well as necessary to facilitate interstate commerce. State economic regulation of motor carrier operation causes significant inefficiencies, increased costs, reduction of competition, inhibition of innovation and technology and curtails the expansion of markets . . . . The sheer diversity of these regulatory schemes is a huge problem for national and regional carriers attempting to conduct a standard way of doing business. HRCRat 87, reprinted in USCCANat 1759 (1 Appx. at 270); Rowe, 552 US. at 372; Am. Airlines, Inc., v. Wolens, 513 U.S. 219, 227-28 (1995). Congress singled out AB 2015 for scorn, indicating that it specifically intended to preemptthe states from acting to discourage the use of independent contractor drivers where the states determined them to be undesirable and to encourage the use of independent contractor drivers where competitive forces determined them to be profitable. Despite this clear Congressional policy against state interference with competition in the trucking industry in general and against state interference with the use of independent contractor drivers specifically, the State has continued to attempt to impose its policy favoring the use of employee drivers over independent contractors on motorcarriers operating in California. In the most recent attempt, the State Assembly introduced a bill designating all individuals that drive trucks for motor carriers operating in California ports as employees. A.B. 950, 2011-12 Leg., Reg. Sess. (Cal. 2011). At the same time, the Port of Los Angeles has been seeking to impose mandatory concession agreements on motorcarriers operating there that will require the carriers to transition from the use of independent contractor drivers to employee drivers. Am. Trucking Ass’ns v. City ofLos Angeles, 559 F.3d 1046, 1049 (9th Cir. 2009). The State’s action under the Unfair Competition Law against the defendant motor carriers and similar actions against other motor carriers operating in the Ports of Los Angeles and Long Beach are merely a pretext for another attempt to impose the State’s policy disfavoring independent contractor drivers on motor carriers. By seeking an injunction to force the defendant motor carriers to treat the drivers under the current arrangement as employees, the State is attempting to force the carriers to use employee drivers rather than independent contractors. These ongoing efforts by the State to impose the very samestate policy on motorcarriers that prompted Congress to enact the FAAAA pose a federalism problem that the Court should review. The U.S. Supreme Court has already determined that causes of action under state consumerprotection laws such as the Unfair Competition Law are the sort of state interference with the forces of competition that Congress intended to preempt in enacting the preemptive language of the FAAAA.In American Airlines, Inc., v. Wolens, 513 U.S. 219, 227 (1995), a case interpreting the identical preemptive language employed by the ADA, the Court found that consumer protection laws present the potential for states to regulate carrier business practices by imposing state policies on them and therefore held that causes of action against carriers under such laws are subject to preemption. Thus, the State’s action not only interferes with the forces of competition between motorcarriers by seeking to impose the very California policy that Congress intended to thwart by enacting the FAAAA,it does so using a cause of action that the U.S. Supreme Court has already deemedto be a vehicle for such interference. The Court should grant review to conclusively resolve this conflict between the express Congressional policy against state interference with the forces of competition in the trucking industry and the State policy favoring the use of employee drivers and to protect air and motorcarriers from further attempts by the State to use the Unfair Competition Law to substitute its policies for the forces of competition in their industries. I. REVIEW IS NECESSARY TO RESOLVE A SPLIT BETWEENTHEDIVISIONS OF THE SECOND DISTRICT OF THE COURT OF APPEAL REGARDING THE PREEMPTION OF CLAIMS AGAINST AIR AND MOTOR CARRIERS UNDER THE UNFAIR COMPETITION LAW. Furthermore, the Court should grant review because the decision in this matter by Division Five of the Second Appellate District of the Court of Appeal explicitly disagrees with an earlier decision by Division Six regarding the preemption of actions against air and motorcarriers under the Unfair Competition Law. In Fitz-Gerald v. Skywest Airlines, Inc., 155 Cal. App. 4th 411, 423 (2007), reh’g denied, No. B187785, 2007 Cal. App. LEXIS 1719 (Oct. 16, 2007), depublication denied, No. $158366, 2008 Cal. LEXIS 1056 (Jan.30, 2008), Division Six held that the preemptive language of the ADA preempts all causes of action against air carriers under the Unfair Competition Law, including a cause of action based on the violation of California employment laws. The decision by Division Six in Fitz-Gerald extends to motor carriers as well. When Congress enacted the preemptive provision of the FAAAA, it borrowed the provision’s preemptive language from the comparable provision of the ADA. Compare 49 U.S.C. § 14501(c)(1), with § 41713(b)(1); Rowe v. N.H. Motor Transport Ass’n, 552 U.S. 364, 370 (2008). Congress specifically intended the FAAAA to have the same preemptive effect regarding state action against motor carriers that the ADA has regarding state action against air carriers. HRCR at 83-85, reprinted in USCCANat 1755-57 (1 Appx. at 266-68); Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d at 1188 nn.4-5; see Rowe, 552 U.S. at 370. Therefore, case law interpreting the ADA applies to the FAAAA and affects both air carriers and motor carriers. Similarly, case law interpreting the FAAAA applies to both air and motor carriers. See Tanen v. Southwest Airlines, Co., 187 Cal. App. 4th 1156, 1165-66 (2010); In re Korean Airlines, Co., No. 08-56385, 2011 WL 1458794 at *8 (9th Cir. Apr. 18, 2011). | Thus, by holding in Fitz-Gerald that the ADA preempts actions under the Unfair Competition Law against air carriers, Division Six also implicitly held that the FAAAA preempts actions against motor carriers under the Unfair Competition Law. In this matter, Division Five expressly rejected that holding, stating it saw no reason for the FAAAA to preempt such actions against motor carriers. Opn. at 5. Because the decision by Division Five also extends to air carriers, Division Five has created split between within the Second Appellate District of the Court of Appeal regarding whether actions against air carriers and motor carriers under the Unfair Competition Law are preempted. Furthermore, Division Five has created a potential split between state and federal courts in California on this issue. In Blackwellv. Skywest Airlines, Inc., No. 06cv0307 DMS (AJB), 2008 WL 5103195 at *20 (S.D. Cal. Dec. 3, 2008), the U.S. District Court for the Southern District of California agreed with Division Six. Citing Fitz-Gerald with approval, the court found it wassettled that the ADA preempts actions against air carriers under the Unfair Competition Law and held that such an action based on the violation of California employment laws was preempted. Blackwell indicates that federal courts confronting the preemption issue may favor the approach taken by Division Six in Fitz-Gerald. If they do, plaintiffs filing actions against air and motor carriers under the Unfair Competition Law could very well obtain different results depending on whetherthey file the actions in state or federal court. Review is necessary to ensure the uniform application of the law in California. CONCLUSION The Court should review the issue of whether the FAAAA preempts the State’s cause of action against the defendant motor carriers under the Unfair Competition Law not only to correct the errors committed by the Court of Appeal, but also to resolve a disagreement between the divisions of the Second Appellate District, to answer a question that affects all air and motor carriers operating in California, and to block the State’s continuing efforts to substitute its policy favoring the use of employee drivers for the Congressional policy against such state interference with the forces of competition in the trucking industry. Dated: June 27, 2011 Respectfully submitted, Gl NeilS. Lerner Arthur A. Severance Attorneysfor Defendant-Respondents Alfredo Barajas and Pac Anchor Transportation, Inc. 10 CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Rule 8.504(d)(1) of the California Rules of Court, the attached PETITION FOR REVIEW uses 13 point Times New Romanfont including footnotes and contains 3,014 words, which is less than the total number of words permitted by the Rules of Court. I rely on the word count of the computer program used to prepare this brief in makingthis certification. Dated: June 27, 2011 Respectfully submitted, SANDS LERNER Neil S. Lerner Arthur A. Severance Attorneysfor Defendant-Respondents Alfredo Barajas and Pac Anchor Transportation, Inc, 11 Filed 5/18/11 MAY 18 201! CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT - DIVISION FIVE THE PEOPLEex rel. KAMALA D. B220966 HARRIS, as Attorney General, etc., (Los Angeles County Super. Ct. — Plaintiff and Appellant, No. BC397600) Vv. PAC ANCHOR TRANSPORTATION, INC., et al., Defendants and Respondents, * APPEAL from a judgment of the Superior Court of Los Angeles County, — Elizabeth A. White, Judge. Reversed. | . | Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, ChiefAssistant Attorney General, Mark J. Breckler, Senior Assistant Attorney General, Jon M. Ichinaga and Satoshi Yanai, Deputy Attorneys General, for Plaintiff and Appellant. . Sands Lerner, Neil S. Lerner and Arthur A. Severance for Defendants and Respondents. | Plaintiff and appellant State ofCalifornia appeals from a judgment following an order granting judgment on the pleadingsin favor of defendants and respondents Alfredo Barajas and Pac Anchor Transportation, Inc. The State contends the Federal Aviation Administration Authorization Act (FAAAA) (49 U.S.C. § 14501 et seq.) does not preemptthis action under California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) based on alleged violations of California labor and unemployment insurance laws. We agree the State’s unfair competition action isnot related to aprice, route, or service of a motorcarrier with respect to the transportation of property, and therefore, the action is not preempted by the FAAAA. Wereverse. FACTS Pac Anchoris a trucking company in Long Beach, California. Barajas is an owner _ ofPac Anchor, where he works as a manager andtruck dispatcher. Pac Anchor has contracts with shipping companies to transport shipping containers from the ports of Los Angeles and Long Beachto locations in Southern California, including warehouses and railroad freight depots. Barajas owns 75 trucks. Herecruits drivers, theri leases his trucks andthe drivers to Pac Anchor. Barajas and Pac Anchorclassify the drivers as independent contractors. As aresult, Barajas and Pac Anchordo not obtain workers’ compensation insurance, withhold state disability insurance or incometaxes, pay unemployment insuranceor employmenttraining fund taxes on behalf ofthe drivers; reimburse business expenses, insure payment of the state minimum wage, or provide itemized written statements of hours and pay to the drivers. The drivers do not invest any capital, however, or own the trucks that they drive: They use trucks, tools, and equipment furnished by Barajas and Pac Anchor. The drivers are employed for extended periods oftime, but can be discharged without cause. The _ drivers take all their instructions from Barajas and Pac Anchor. They are notskilled workers anddo not have substantial contro! over operational details. The drivers do not have other customersor their own businesses. The drivers do not have Departmentof Transportation operating authority or other necessary permits and/or licenses to | independently engagein the transport of cargo. They are an integrated part ofBarajas’s | and PacAnchor’s trucking business, because they perform the core activity of delivering cargo. PROCEDURAL HISTORY On September5, 2008,the State filed a complaint against Barajas and Pac Anchor for violation ofthe UCL. The complaint alleged that Barajas and Pac Anchor misclassified drivers as independentcontractors and,as a result, “illegally loweredtheir costs of doing business.” Specifically, Barajas and Pac Anchorviolated the UCL “by engaging in acts of unfair competition including, but notlimitedto, the following: [{] a. Failing to pay unemploymentinsurance taxes as required by Unemployment Insurance Code [section] 976; [{] b. Failing to pay Employment Training Fund taxesas required by UnemploymentInsurance Code [section] 976.6; [§] c. Failing to withhold State Disability Insurance taxes as required by UnemploymentInsurance Code[section] 984; _[§] d. Failing to withhold State income taxes as required by Unemployment Insurance Code [section] 13020; [9] e. Failing to provide workers’ compensation as required by . - Labor Code [section] 3700; [9] f. Failing to provide employees with itemized written statements as required by Labor Code [section] 226andto maintain and provide employees with records required by [California Industrial Welfare Commission (Iwo)] WageOrder [No.] 9, subsection 7; [{] .g. Failing to reimburse employees for business expenses and losses as required by Labor Code[section] 2802; fand] [a h. Failing to ensure paymentat all times of California’s minimum wageas required by Labor Code [section] 1194 and (Iwc] Wage Order9, subsection 4.” Asa result of these practices, Barajas and Pac Anchor“haveobtained an unfair advantage overits competitors, deprived employees ofbenefits and protections to whichtheyare entitled under California law, harmed their truck driver employees, harmed thegeneral public, and deprived the State . . . of payments for California state payroll taxes.” The State sought restitution, civil penalties, and injunctiverelief. Barajas and Pac Anchorfiled a motion for judgment on the pleadings on August 21, 2009. After a hearing on September 22, 2009,the trial court found the action was preempted by the FAAAAforthree reasons, First, the court concluded that the holding of Fitz-Gerald v. SkyWest, Inc. (2007) 155 Cal.App.4th 411 (Fitz-Gerald) required finding all UCLcauses of action against motorcarriers preempted by the FAAAA.Second, the court found that requiring Barajas and Pac Anchorto treat its truck ‘drivers as employees would increase the motorcarrier’s operational costs, and therefore, the action related to the motorcarrier’s prices, routes, and services. Third, the court concludedthat the action threatened to interfere with the forces of competition by | discouraging independentcontractors from competing in the truckingmarket. The court entered an order granting judgment on the pleadings on October 13, 2009, and entered | judgmentin favor of Barajas and Pac Anchor on October 14, 2009. The State filed a timely notice of appeal. DISCUSSION Standard of Review “A judgment on the pleadings i n favor of the defendantis appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ.Proc., § 438, subd. (c)(3)(B)(ii).) A motion for judgmenton the pleadingsis equivalent to a demurrer and is governed by the same de novostandard of review. [Citations.] All properly pleaded, material facts are deemedtrue, but not contentions, deductions, or conclusionsof fact or law; judicially noticeable matters may be considered. [Citations, }” (Kapsimallis v. Allstate Ins. Co, (2002) 104 Cal.App.4th 667, 672.) Federal Preemption Principles “The supremacy clause ofthe United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preempt state law. (U.S. Const., art. VI,cl. 2; Cipollone v. Liggett Group, Inc, (1992) 505 U.S. 504, 516; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949.) There are four species of federal preemption: express, conflict, obstacle, and field. [Citation.]” (Viva! Internat. Voice For Animals v. Adidas Promotional Retail | Operations, Inc, (2007) 41 Cal.4th 929, 935, fns. omitted.) “First, express preemption arises when Congress‘define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressionalintent, [citation], and when Congress has madeits intent known through explicit statutory language, the courts’ task is an easy one.’ [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when “under the circumstancesof[a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and executionofthe full purposes and objectives of 93 Congress,”’ [Citations.] Finally, field preemption, ie, ‘Congress’ intent to pre-emptall state law in a particular area,’ applies ‘where the scheme offederal regulationis sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation.’ [Citations.]” (Viva! Internat. Voice For Animals v. Adidas Promotional Retail Operations, Inc., supra, 4 Cal.4th at p. 936.) - Express Preemption Provision of the FAAAA The FAAAA preemptsstate and local regulation relating to the prices, routes or services of motor carriers with respectto the transportation of property. (49 U.S.C. § 14501 (c).) Specifically, section 14501(c) oftitle 49 of the United States Code provides ‘in pertinent part: “(1) ... Except as provided in paragraphs (2) and (3), a State . . ..may not enact or enforce a law, regulation, or other provision having the force and effect of law relatedto a price, route, or service of any motorcarrier ... with respect to the transportation of property.” . Aspart ofthe deregulation of motorcarriers, Congress believed it was necessary to eliminate non-uniform state regulations which had caused “‘significant inefficiencies, increased costs, reduction of competition, inhibition of innovation and technology, and curtail[ed] the expansion of markets.’ H.R. Conf. Rep. No. 103-677, at 86-88 (1994), reprinted in 1994 U.S.C.C.A.N, 1715, 1758-60.” (CaliforniansJor Safe & Competitive Dump Truck Transp. v. Mendonca(9th Cir. 1998) 152 F.3d 1184, 1187 (Mendonca).) The preemption provision of the FAAAA isidentical to the preemption provision of the Airline Deregulation Act of 1978 (ADA) to “‘even the playing field’ betweenair carriers and motorcarriers. [H.R. Conf. Rep. No. 103-677, supra,] at 85, 1994 —US.C.C.AN.at 1757, 1759.” (Mendonca, supra, 152 F.3d at p. 1187.) The preemption clauses of theFAAAA and the ADAare interpreted broadly and expansively. (Mendonca, supra, 152 F3d at p. 1188, fn. 5.) “The phrase‘related to’ in this general preemptionprovisionis ‘interpreted quite broadly.’ [Citation.] Thus, “Tal state or local regulation is related to the price, route, or service of a motorcarrierif the regulation has more than an indirect, remote, or tenuous effect on the motor carrier’s prices, routes, or services.”’ [Citations.]” (CPFAgency Corp. v. Sevel's 24 HourTiowing Service (2005) 132 Cal.App.4th 1034, 1044.) Theissue before us in this case is whetherthe State’s unfair competition action relates to “a price, route, or service” provided by Barajas and Pac Anchor. Relevant Cases Applying the Preemption Standard . Three relevant federal court cases have interpreted and applied the preemption provisions of the ADA and the FAAAA.In Morales vy. Trans WorldAirlines, Inc. (1992) 204 U.S, 374, 383 (Morales), the United States Supreme Court considered whether - enforcement of certain fare advertising guidelines through state consumerprotection laws was preempted by the ADA. The Morales court held that “{s]tate enforcement actions having a connection with, or reference to, airline ‘rates, routes, or services’ are pre- empted under[the ADA].” (id. at p. 384.) The court foundthat the guidelines were indisputably related to fares. (/d. at pp. 387-388.) Therefore, the court held that the fare advertising guidelines were preempted by the ADA.(id. at p. 391.) The United States Supreme Court further developed the scope ofthe ADA preemption in American Airlines, Inc. v. Wolens (1995) 513 U.S. 219 (Wolens). The plaintiffs inWolens had filed class action lawsuits for breach of contract and violation of ‘state consumer protection and deceptive business practices laws, based on changes to American Airlines’ frequentflyer program. (dd. at pp. 224-225.) “Plaintiffs’ claims relate to ‘rates,’ i.e., American’s charges in the form of mileage credits for free tickets and upgrades,andto ‘services,’ i.e., access to flights and class-of-serve upgrades unlimited by retrospectively applied capacity controls and blackout dates.” | (d. at p. 226.) The Wolens court held that the plaintiffs’ claims under the state consumer protection law amounted to enforcementof a law related to air carrier rates, routes, or services and, therefore, were preempted. (/d. at p. 228.) However, common-law remedies for breach of contract were not a requirement imposed under state law, and therefore, the plaintiffs’ breach of contract claims based on the airline’s voluntary contractual commitments were not preempted. (/d. at pp. 228-229.) In Mendonca,supra, 152 F.3d at page 1189, the Ninth Circuit held that enforcement of California’s Prevailing Wage Law (CPWL) (Lab. Code, §§ 1770-80) was not preempted by the FAAAA, CPWL requires contractors and subcontractors awarded public works contracts to pay workers the prevailing wages. (Lab. Code, § 1771.) A group of motor carriers argued that CPWL directly affected “prices, routes, or services,” because rates were based on costs, performance factors, and conditions, including prevailing wage requirements. (Mendonca, supra, at p. 1189.) The appellate court concluded that although the wage law was “related to” the motorcarrier’s prices, routes, and services in a sense, the effect was “no morethan indirect, remote, and tenuous.” (Ibid.) CPWL did notfrustrate “the purpose of deregulation by acutely interfering with the forces ofcompetition.” (Jbid.) | Division Six ofthis appellate district similarly found in Fitz-Gerald, supra, 155 Cal.App.4th at page 423, that actions to enforce California’s minimum wage laws and labor laws governing mealandrest breaks are not preempted by the ADA. Specifically, the Fitz-Gerald court concludedtheplaintiffs’ causes of action for unpaid minimum wages under Labor Codesection 1194, unpaid meal and rest breaks, unpaid overtime, and waiting time penalties under Labor Code section 203 were not preempted bythe ADA. (Fitz-Gerald, supra, at p. 415.) The Fitz-Gerald court found that although state minimum wagelawsultimately result in higher fares, fewer routes, and less service, the connection was too tenuous for preemption to apply. (/d. at p. 423, fn. 7.) “Ifthe rule | was otherwise, ‘any string of contingencies is sufficient to establish a connection with price, route or service, [and] there will be no end to ADA preemption. [Citation.]’ [Citation.]” (id. at p. 423.) , — The court in Fitz-Gerald also held, however, that the ADA bars causes of action under the UCL. (Fitz-Gerald, supra, 155 Cal.App.4th at p. 423.) We disagree with Fitz- Gerald's cursory citation to Morales and Wolens to support the conclusionthatall state unfair business practices statutes are preempted by the ADA. Where causeofaction is based on allegations of unlawful violations of the State’s labor and unemployment_ insurance Jaws, we see no reason to find preemption merely because the pleading raised . these issues under the UCL, as opposed to separately stated causesofaction. We respectfully disagree with Fitz-Gerald’s contrary conclusion as to preemption of causes of action under the UCL. The State’s UCL Action The State contends its action under the UCL is not preempted by the FAAAA, becauseit is not related to the price, route or service of any motor carrier. We apree. The UCLdefines “unfair competition” as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by[the false advertising law (Bus. & Prof. Code, § 17500 et seq.)].” (Bus. & Prof. Code, § 17200.) “The UCL’s purposeis to protect both consumers and . competitors by promoting fair competition in commercial markets for goods andservices. [Citation.]” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949 (Kasky).) “‘Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.’ [Citation.]” (Shvarts y. Budget Group, inc. (2000) 81 Cal.App.4th 1153, 1157, emphasis added.) . “An ‘unlawful’ business practice or act within the meaning of the UCL‘is an act or practice, committed pursuant to businessactivity, that is at the same timeJorbidden by Jaw. [Citation.]’ [Citation.] The CaliforniaSupreme Court has explainedthat “[b]y proscribing “any unlawful” businesspractice, “[Business and Professions Code] section 17200 ‘borrows’ violations of other laws andtreats them as unlawfulpractices” that the unfair competition law makes independently actionable. [Citation.]’ [Citation.]” (Bernardo v. Planned Parenthood Federation ofAmerica (2004) 115 Cal.App.4th 322, 351-352.) “In addition, under [Business and Professions Code] section 17200, ‘a practice may be deemedunfair even if not specifically proscribed by someother law.’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) The State’s action against Barajas and Pac Anchor under the UCLis based on alleged violationsof statutory obligations concerning employees. Specifically, the State alleges violations of certain laws governing minimumlaborstandards,including Labor | Code section 1194 (requiring the paymentof California’s minimumwage), Labor Code section 226 (requiring issuance ofitemized wage statements to employees), Labor Code section 2802 (requiring reimbursement of employee expenses), Labor Code section 3700 (requiring employers to secure workers’ compensation insurance or receive certification: to self-insure), and certain laws governing generally applicable state payroll tax ' tequirements, including Unemployment Insurance Codesection 976 (requiring contributions to the State Unemployment Fund), Unemployment Insurance Code section 976.6 (requiring contributions to the State Employment Training Fund), UnemploymentInsurance Code section 984 (requiring employee contributions to the State Disability Fund, which employers must withhold from employee wages under UnemploymentInsurance Code section 986), and Unemployment Insurance Code section 13020 (requiring employers to withhold incometaxes from employee wages). “States possess broadauthority under their police powers to regulate the employmentrelationship to protect workers within the State. Child labor laws, minimum and other wage laws, lawsaffecting occupational health andsafety . . . are only a few examples.’ [Citation] State laws requiring that employers contribute to unemployment and workmen’s compensation funds, laws prescribing mandatory state holidays, and those dictating payment to employeesfor time spentat the polls or on jury dutyall have withstood scrutiny. [Citation.]” (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 756.) In this case, the State’s action to enforce Barajas’s and Pac Anchor’s statutory obligations as an employeris not related to Pac Anchor’s prices, routes, or services, even though it may remotely affect the prices, routes, or services that the motor carrier provides. Case law supports finding that the effect of California’sminimum wage law (Lab. Code, § 1194) on a motorcarrier’s prices, routes, and services is too tenuous for preemption under the FAAAA.(See Fiiz-Gerald, supra, 155 Cal.App.4that p. 423 [connection of minimum wagelaw to higher fares, fewer routes, and less service is tenuous], Mendonca,supra, 152 F.3d at p. 1189 [California’s prevailing wage law applicable to public works contractors is not preempted by the FAAAA].) Other ‘California labor and unemploymentinsurance provisions that Barajas andPac Anchor allegedly violated have a similarly indirect and tenuous connection to Pac Anchor’s prices, routes, and services. Wehold that the State’s UCL action based on Barajas’s and Pac Anchor’salleged violations of generally applicable state laws governingan employer’s relationship with employeesis not an action related to theprice, route, or service of a motorcarrier and, therefore, not preempted by the FAAAA. 10 DISPOSITION The judgmentis reversed. Costs on appeal are awarded to appellant State of California. KRIEGLER,J. Weconcur: ARMSTRONG,Acting P. J. MOSK,J. 1] HOUSE CONFERENCE REPORTNO. 103-677 H.R. CONF. REP. 103-677, H.R. Conf. Rep. No. 677, 103RD Cong., 2ND Sess. 1994, 1994 U.S.C.C.A.N. 1715, 1994 WL 440339 ***0 *7 PLL. 103-305, FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT OF 1994 DATES OF CONSIDERATION AND PASSAGE House: October 7, 13, 1993; August 8, 1994 Senate: June 9, 10, 14, 15, 16, August 8, 1994 Cong. Record Vol. 139 (1993) Cong. Record Vol. 140 (1994) House Report (Public Works and Transportation Committee) No. 103-240, Sept. 14, 1993 (To accompany H.R. 2739) Senate Report (Commerce, Science and Transportation Committee) No. 103-18], Nov. 12, 1993 (To accompanyS. 1491) House Conference Report No. 103-677, Aug. 5, 1994 (To accompany H.R. 2739) HOUSE CONFERENCE REPORTNO.103-677 August 5, 1994 [To accompany H.R. 2739] **@ The committee of conference on the disagreeing votes of the two Houses on the amendmentofthe Senate to thebill (H.R. 2739) to amend the Airport and Airway ImprovementActof 1982 to authorize appropriationsforfiscal years 1994, 1995, and 1996,andfor other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: That the House recede from its disagreement to the amendmentof the Senate and agree to the same with an amendment as follows: In lieu of the matter proposed to be inserted by the Senate amendment, insert the following: SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.-This Act may becited as the “Federal Aviation Administration Authorization Act of 1994”, (b) TABLE OF CONTENTS.— Sec. !. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Amendmentoftitle 49, United States Code. TITLE I-AIRPORT AND AIRWAY IMPROVEMENT Sec. 101. Airport improvement program. Sec. 102. Airway improvementprogram. Sec. 103. Operations of FAA. Sec. 104. Innovative technology policy. Sec. 105. Inclusion of explosive detection devices and universal access systems. Sec. 106. Submission and approval of project grant applications. Sec. 107. Preventive maintenance. Sec. 108. Repeal of general aviation airport project grant application approval. Sec. 109. Reports on impacts of new airport projects. Sec. 110. Airport fees policy. Sec. 111. Airport financialreports. Sec. 112. Additional enforcementagainstillegal diversion WestlawNext © 2011 Thomson Reuters. Noclaim to original LS. Government! Works. HOUSE CONFERENCE REPORTNO.103-677 of airport revenue. Sec. 113. Resolution ofairport-air carrier disputes concerning airport fees. Sec. Sec. Sec. ' Sec. Sec. Sec. 114. 115. 116. 117. 118. 119. Terminal development. Letters ofintent. Military airport program. Terminal developmentcosts. Airport safety data collection. Soundproofing and acquisition of certain residential buildings and properties. Sec. 120. Landing aids and navigational equipment inventory pool. Sec. 121. Review of passenger facility charge program. TITLE Il-OTHER AVIATION PROGRAMS Sec. 201. Term ofoffice of FAA Administrator. Sec. 202. Assistance to foreign aviation authorities. Sec. 203. Use of passengerfacility charges to meet Federal mandates. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 204. 205. 206. 207. 208. 209. 301. 302. 303. 304. 305. 306. 307. Passengerfacility charges. Gambling on commercialaircraft. Slots for air carriers at airports. Air service termination notice. State taxation ofair carrier employees. Foreign fee collection. TITLE III-RESEARCH, ENGINEERING, AND DEVELOPMENT Short title. Aviation research authorization of appropriations. Joint aviation research and development program. Aircraft cabin air quality research program. Use of domestic products. Purchase of American made equipmentand products. Cooperative agreements for research, engineering, and development. Sec. 308. Research program on quietaircraft technology. TITLE IV-EXTENSION OF AIRPORT AND AIRWAY TRUST FUND EXPENDITURE AUTHORITY Sec. 401. Expenditures from Airport and Airway Trust Fund. TITLE V-MISCELLANEOUS PROVISIONS Sec. 501. Rulemaking on randomtesting for prohibited drugs. Sec. 502. Transportation security report. Sec Sec Sec . 503. Repeal of annual report requirement. . 504. Advanced landing system. . 505. Asbestos removal and building demolition and removal, vacantair force station, Marin County, California. Sec. 506. Land acquisition costs. Sec. 507. Information on disinsection ofaircraft. Sec. 508. Contract towerassistance. Sec. 509. Discontinuation of aviation safety journal. Sec. 510. Monroeairport improvement. LALWestawNext’ © 2011 Thomson Reuters. No claim to original U.S. Government Works. HOUSE CONFERENCE REPORTNO.103-677 Sec. 511. Soldotna airport improvement. Sec. 512. Sturgis, Kentucky. Sec. 513. Rolla airport improvement. Sec. 514. Palm Springs, California. Sec. 515. Real estate transfers in Alaska and weather observationservices. Sec. 516. Relocation of airwayfacilities. Sec. 517. Safety at Aspen-Pitkin County Airport. Sec. 518. Collective bargaining at Washingtonairports. Sec. 519. Report on certain bilateral negotiations. Sec. 520. Study on innovative financing. Sec. 521. Safety of Juneau International Airport. Sec, 522. Study on child restraint systems. Sec. 523. Sense of Senate relating to DOT Inspector General. Sec. 524. Sense of Senate on issuanceof report on usage of radarat the Cheyenne, Wyoming,airport. Sec. 525. North Korea. TITLE VI-INTRASTATE TRANSPORTATION OF PROPERTY Sec. 601.Preemption ofintrastate transportation of property. — SEC. 2. DEFINITIONS. In this Act, the following definitions apply: (1) Administrator—The term “Administrator” means the Administrator of the Federal Aviation Administration. (2) Secretary._The term “Secretary” means the Secretary of Transportation. SEC. 3. AMENDMENTOFTITLE 49, UNITED STATES CODE. Exceptas otherwise expressly provided, wheneverin this Act an amendmentorrepealis expressed in terms of an amendment to, or a repealof, a section orother provision, the reference shall be considered to be made to a section or other provision of title 49, United States Code. TITLE I-AIRPORT AND AIRWAY IMPROVEMENT SEC. 101. AIRPORT IMPROVEMENT PROGRAM. (a) Authorization of Appropriations.Section 48103 is amended— (1) by striking “Not more”andall that follows through “1993,” and inserting “The total amounts whichshall be available after September 30, 1981, to the Secretary of Transportation”; and (2) by inserting before the period at the end “shall be $17,583,500,000 forfiscal years ending before October 1, 1994, $19,744,500,000 for fiscal years ending before October 1, 1995, and $21,958,500,000 for fiscal years ending before October 1, 1996”. (b) Obligational Authority.Section 47104(c) is amendedbystriking “After” andall that follows through “Secretary” and inserting “After September 30, 1996, the Secretary”. SEC. 102. AIRWAY IMPROVEMENT PROGRAM. (a) Airway Facilities and Equipment.—Section 48101(a) is amended- (1) in paragraph (1) by striking “for” and inserting “For”; (2) in paragraph (2}- (A) by striking “for” and inserting “For”; and WestlawNext © 26 horson Reuters. No clair ta original U.S. Goverement Works. 3 HOUSE CONFERENCE REPORTNO.103-677 The Conferees agree to accept the House language. | H.R. 2739 SECTION 307 Present law No provision. Senatebill No provision. Housebill This provision expresses the sense of the Congress that any recipient of a grant by this Act should purchase, when available and cost-effective, American made equipment and products. Conference agreement The Conferees agree to accept the House language. TITLE IV. EXPENDITURES FROM AIRPORT AND AIRWAY TRUST FUND Present law The present Airport and Airway Trust Fund(“Trust Fund”) (sec. 9502(d) of the Internal Revenue Code) authorizes amounts to be paid outof the Trust Fund for obligations incurred underthe previous airport and airway authorization Acts from 1970 and 1944 (as those Acts werein effect on the date of enactment of the Airport Improvement Program Temporary Extension Act of 1994). Also, amounts are authorized to be paid out of the Trust Fund for obligations incurred under the Federal Aviation Act of 1958, as amended, which are attributable to planning, research and development, construction, or operations and maintenanceofair traffic control, air navigation, communications, or supporting services for the Federal airway system. In addition, administrative expenses of the Department of Transportationattributable to Trust Fund-related activities described aboveare authorized from the Trust Fund. Amounts in the Trust Fund are available (as provided by Appropriations Acts) for making expenditures before October1, 1995. Housebill The Housebill extends the Trust Fund expenditure authority through September30, 1996, and allows expenditures from the Trust Fund for obligations incurred under the Housebill's airport and airway authorizing Act. *82 **1754 Senate amendment The Senate amendment allows expenditures from the Trust Fund for obligations incurred under the Senate amendment's airport and airwayauthorizing Act. Conference agreement ***63 The conference agreement extends the Trust Fund expenditure authority through September 30, 1996, and allows expenditures from the Trust Fund for obligations incurred under the conference agreement's airport and airway authorizingAct. The conference agreement also makestechnical, conforming changesto reflect the codification of the airport and airway Acts referred to in section 9502(d) of the Internal Revenue Code. SECTION 601—Preemption ofIntrastate Transportation of Property WestiawNext © 2011 Thomson Reuters. No claim to orginal US. Government Works 63 HOUSE CONFERENCE REPORTNO. 103-677 Housebill No provision. Senate amendment The Senate provision preempted State andlocal law regarding trucking rates, routes and services of“intermodalall-cargo air carriers”. Intermodalall-cargo air carriers included: air carriers, indirect air cargo air carriers, motorcarriers that are affiliated with an air carrier through commoncontrolling ownership and motorcarriers which,as principalor agent, utilize or are affiliated through commoncontrolling ownership with, companiesthat utilize air carriers at least 15,000 times annually. Conference substitute The provision preempts State regulation of prices, routes and services by air carriers and carriersaffiliated with a direct air carrier through commoncontrolling ownership in subsection (b) and all other motorcarriers in subsection (c). The purpose of this demarkation is (1) to as completely as possible level the playing field betweenair carriers on the one hand and motorcarriers on the other with respectto intrastate economic trucking regulation, and (2) to recognizethat air carrier express packagedelivery companies may differ in corporate form, but operate in the same manner. Thus, this provision includes carriers affiliated with a direct air carrier through common controlling ownership in a new paragraph added to Section 41713(b) of Title 49, United States Code,the former section 105 ofthe Federal Aviation Act. Motorcarriers are deregulated with a new subsection (h) added to section 11501 of Title 49 (the Interstate Commerce Act). Subsection (a) enumerates Congress’ findings and purposesin enacting Section 601. Subsection (b) preempts State regulation of air carriers and carriers affiliated with direct air carriers through common controlling ownership by the addition of a new paragraph (4)(A) to Section 41713(b) of Title 49, United States Code, which is the recodified former Section 105(a) of the Federal Aviation Act. Paragraph (4)(A) preemptsState regulation forthis entire class ofcarriersinan *83 **J755 identical manner to the preemption provision passed in 1978 contained in the former Section 105. The central purpose of this legislation is to extend to all affected carriers, air carriers and carriers affiliated with direct air carriers through common controlling ownership on the one hand and motorcarriers on the other, the identical intrastate preemption of prices, routes and services as that originally contained in Section 105(a), 49 U.S.C. App. 1305(a)(1), of the Federal Aviation Act. ***64 However, Congress has recently enacted a recodification of certain subtitles of Title 49. This recodification has changedthe language usedin the original section 105. For clarity and consistency, we will follow the recodification language in amendments to both the Interstate Commerce Act and Federal Aviation Act. In substituting the word “related”for the prior word “relating” and the word “price” for the word “rates” we are intending no substantive change to the previously enacted _ preemption provision in Section 105 of the Federal Aviation Act and do not intend to impair the applicability of prior judicial case law interpreting these provisions. In particular, the conferees do not intend to alter the broad preemption interpretation adopted by the United States Supreme Court in Morales v. TransWorld Airlines, Inc., 504 U.S. , 199 L.Ed. 157, 112 S.Ct 2031 (1992). The conferees understand that in recodifying Title 49, Congress made no substantive change to the Statute. Section 1(a) of P.L. 103-272 states “[c]ertain general and permanent laws *** are revised, recodified and enacted *** without substantive change ***” Furthermore, page 5 of the Report accompanying P.L. 103-272 states the following: “Asin othercodification bills enactingtitles of the United States Codeinto positive law,this bill makes no substantive change inthe law.It is sometimes feared that mere changes in terminology and style will result in changes in substance or impair the precedent value ofearlier judicial decisions and other interpretations. This fear might have some weightif this were the usual kind of amendatory legislation when it can be inferred that a change of language is intended to change substance. In a codification law, however,the courts uphold the contrary presumption:the law is intended to remain substantively unchanged.” The following authorities affirm this principle: (For a completelist of citations, see Report to Accompany H.R. 1758, P.L. 103— 272 [Report number 103-180] at 5.) Thus, the Conferees have used the term “price, route and service” rather than “rate, route and service”in both the Aviation subtitle and the Motor Carrier subtitle. The intention in using the identical term “price”in both areas is to create uniformity in WiestlawNext ©2014 Tho o claim to original U.S. Government Works 64 HOUSE CONFERENCE REPORTNO.103-677 the preemptive language andto create consistency with the earlier preemption provision. The use ofthis term is not intended to alter any meaning or affect any judicial interpretation. To ensure that no meaningis altered or changed by the recodification, the definition of “price”in subtitle VII that was created as part of the recodification ofTitle 49 has been amendedto strikethat definition's referenceto air transportation. The conferees believe that the recodification's creation of a definition of “price” created a circumstance which would have defined the word in a man4>>nermannerinconsistent with its intended use and meaningin this section and therefore have madethis conforming change. In doingso, the conferees intend no substantive changeto existing law,just as the recodificationitself is deemed to have made no substantive change in existing law. The substantive meaning andthe continuity of case law continue uninterrupted and unaltered from the old section 105 of the Federal Aviation Act, through the recodified version, to the modifications made by this section. ***65 Paragraph (4)(B) emphasizesthat State authority to regulate safety, financial responsibility relating to insurance, transportation ofhousehold goods,vehicle size and weight and hazardous materials routing ofair carriers andcarriers affiliated with a direct air carrier through commoncontrolling ownership is unchanged,since State regulation in thoseareas is not a price, route or service and thus is unaffected. (This provision is identical to the new subsection 11501(h)(2)(A) discussed below.) Thislist is not intendedto beall inclusive, but merely to specify some of the matters which are not “prices, rates or services” and whichare therefore not preempted. The conferees do notintend the regulatory authority which the States may continue to exercise (partially identified in section 41713(b) and under section 11501(h)) to be used as a guise for continued economic regulation as it relates to prices, routes or services. There has been concer raised that States, which by this provision are prohibited from regulating intrastate prices, routes and services, may instead attempt to regulate intrastate trucking markets through its unaffected authority to regulate matters such as safety, vehicle size and weight, insurance andself-insurance requirements, or hazardous materials routing matters. The conferees do not intend for States to attempt to de facto regulate prices, routes or services ofintrastate trucking through the guise of some form of unaffected regulatory authority. ; There has been further concer raised that new sections 41713(b)(4)(B) and 11501(h)(2)(A) may be construed as granting States additional authority to regulate in those enumerated areas rather than simply stressing that the preemption provisions do not apply to those areas. The conferees emphasize that nothing in these new subsections contains a new grant of Federal authority to a State to regulate commerce andnothing in these sections amends other Federal statutes that govern the ability of States to impose safety requirements, hazardous materials routing matters, truck size and weightrestrictions or financial responsibility requirements relating to insurance or any other unenumerated authority not preemptedbythese sections. For example, if a State exercises authority over the routing of hazardous materials shipments by motor carriers, it must exercise that authority consistent with Federal standards issued on routing pursuantto Federal law governing transportation of hazardous materials (49 U.S.C.Sections 5101-5127). The intention of the confereesis solely to identify certain areas that are not preempted by the preemption provision. Newparagraph (4)(C) ofSection 41713(b)states that the preemption provision addedto Section 41713(b) does not modify any earlier provisionsof the current Section 41713(b) or the former Sec5>>tionSection 105 of the Federal Aviation Act, including that applicable to the State ofAlaska. Subsection (c) of Section 601 preempts State regulation of prices, routes and services of motor carriers by addinga new subsection (h) to section 11501 of Title 49, United States Code. The preemption provision, new subsection (h)(1), is identical to the preemption provision deregulating air carriers andcarriers affiliated with a direct air carrier through commoncontrolling ownership andis intended to function in the exact same mannerwith respectto its preemptive effects. The intentionis to create a completely level playing field between air carriers and carriers affiliated with a direct air carrier through commoncontrolling ownership on the one hand and motorcarriers on the other. ***66 New subsection (h)(1) contains a parenthetical limitation which states that this section applies to motorcarriers other than thosecarriers affiliated with a direct air carrier through common controlling ownership. This parenthetical is merely intended to ensure that no carrieraffiliated with a direct air carrier through common controlling ownership would be covered by both preemption provisions. Furthermore, neither preemption provision would preempt the ability of a State to issue a certificate or other documentation (in written or electronic form) demonstrating that the carrier complies with State requirements which are not preempted by these sections and nothing in this amendmentis intended to changethe application of State tax laws to motorcarriers. WestlawNext © 20171 The iaimto original U.S. Government Works. , 85C G S. @ a ae oO oy HOUSE CONFERENCE REPORTNO.103-677 The conferees further clarify that the motor carrier preemption provision does not preemptState regulation of garbage and refuse collectors. The managers have been informed by the Department of Transportation that under ICC case law, garbage and refuse are not considered “property”. Thus garbage collectors are not considered “motor carriers of property” and are thus unaffected by this provision. The term motor carrier as used in new subsection (h) of section 11501 has a broad connotation. The term covers the transportation of property by motorcarriers of passengers. Thus, when a motorcarrier of passengersis transporting property in intrastate commerce,there is no jurisdiction by the State regulatory body overprice, route or service for any of the property being transported. Thelatter is true evenif the property is being transported in the same vehicle that moves passengers. The term motorcarrier covers contract carriers and commoncarriers ofproperty. Also includedin the term is a motorcarrier that handles express shipments. The law also applies to private motorcarriers, that is, carriers that are pursuing their own business interests or interests of any corporate affiliate. New subsection (h)(2) emphasizes that State authority to regulate safety, financial fitness and insurance, transportation of household goods, vehicle size and weight and hazardous materials routing ofmotorcarriers is unchanged since State regulation in those areas is not a price, route or service and thus is unaffected. This subsection is identical to section 41713(b)(4)(B), described above. New subsection (h)(3) permits continued State regulation over four enumerated standard transportation practices in an optional *86 **J758 manner. This section does not confer any new authority to a State, but merely confirmsthat these four areas are not preempted. These four areas are uniform cargo liability rules, uniform bills of lading or receipts, uniform cargo credit rules and antitrust immunity for interlining, classifications and mileage guides. This permitted State regulatory authority is limited in two respects. First, a State may only regulate in these four areas in a mannerthat is no more burdensomethan a Federal regulation on the same subject matter. Second, none of these regulations shall apply to any carrier that does not wish to be subject to such regulations. ***67 The purpose of new subsection(h)(3) is to permit carriers that want to follow State standard transportation practices to be subject to State-wide regulatory schemes in these four areas only. Any carrier which so chooses does not have to elect to be subject to such regulation. New subsection (h)(3) also contains a provision that permits carriers affiliated with a direct air carrier through common controlling ownership, which by the explicit terms of new subsection (h)(1) are not subject to the terms of that provision,to elect to be subject to State regulation in any of the four areas enumerated in new subsection (h)(3). This sentence was included to allow a carrier affiliated with a direct air carrier through commoncontrolling ownership to be subject to State regulation in these four areasif it so chose. Subsection (d) provides that all subsections of Section 601 will take effect on January 1, 1995, except that any regulation of motor carriers operating in the State of Hawaii preemptedby subsection (c) of Section 601 shall not be affected for three years from the date of enactment. The conferees directed the difference in the effective date for the State of Hawaii at the request of the State. The State had requested the conferees to totally except Hawaii from the preemption provision based on Hawaii's unique geographic circumstance, as the only State that is non-contiguous to the mainlandsince the State is totally surrounded by water. Therefore,all regulation of motor carrier transportation in the State of Hawaii is regulated by the State of Hawaii. Thoughthe conferees were not willing to except Hawaii from the preemptionprovisions, they were convinced that due to these special circumstances the State should have additional time before preemption goesinto effect. Background andstatement of purpose Currently, 41 jurisdictions regulate, in varying degrees, intrastate prices, routes and services of motor carriers. The jurisdictions which do not regulate are: Alaska, Arizona, Delaware, District of Columbia, Florida, Maine, Maryland, New Jersey, Vermont and Wisconsin. Typical forms of regulation include entry controls,tariff filing and price regulation, and types of commodities carried. Not all 41 States regulate each of these aspects nor do they all regulate them in the same mannerorto the same degree. Entry controls at the State level vary from liberalto strict. Strict entry controls often serve to protect carriers, while restricting new applicants from directly competing for any given route and type of trucking business. About 26 States strictly regulate truck 87>>ingtrucking prices. Such regulation is usually designed to ensure not that prices are kept low, but that they are kept high enoughto coverall costs and are not so low as to be “predatory”. Price regulation also involvesfiling oftariffs and long O o we© 2077 Thomson Reuters. No claim to ontinal US. Government Works. HOUSE CONFERENCE REPORTNO. 103-677 intervals for approval to change prices. A company which wants to changeits prices often must go througha costly and lengthy hearing proceeding in each State in whichit operates. ***68 The need for section 601 has arisen from this patchwork of regulation and in a June 25, 1991 9th Circuit Court of Appeals decision (Federal Express Corporation v. California Public Utilities Commission, 936 F.2d 1075 (9th Cir., 1991), cert. denied, 112 S.Ct. 2956 (1992)) in which Federal Express challenged California's authority to regulate the company's motor carrier operations. The court foundthat intrastate economic regulations for motor carriers did not apply to Federal Express because it was preemptedby the Airline Deregulation Act of 1978, byvirtue ofthe factthatit is an air carrier. Although several ofits competitors conduct similar operations, they are not organized as air carriers. For example, United Parcel Service remained regulated, becauseit is organized as a “motorcarrier”, puttingit at a competitive disadvantage in a numberofStates. In light of the inequity created by the 9th Circuit Court Decision, California enacted legislation in October of 1993, which extended the exemption enjoyed by Federal Express as a result ofits court victory to its competitors that are motorcarriers affiliated with direct air carriers. The California legislation denied this exemption, however, to those using a large proportion of owner-operators instead of company employees, thereby denying the exemption to Roadway Package System, even though the Roadway holding companyincludes an air operation. Likewise, the Texas Attomey General has applied the 9th Circuit decision to Texas and broadenedit to include other intermodalair groundcarriers with similar operations. The Texas Railroad Commission has accepted the Attorney General decision. However, competitors whose operations are not integratedarestill regulated. Likewise, Kentucky enactedlegislation in May 1994 exempting from its regulation the carriage ofpackages weighing less than 150 pounds, by motorcarriersaffiliated with either direct or indirectair carriers. Despite the movement toward deregulation by someindividualstates, the conferees believe preemption legislation is in the public interest as well as necessary to facilitate interstate commerce. State economic regulation of motor carrier operations causessignificantinefficiencies, increased costs, reduction ofcompetition, inhibition of innovation and technology andcurtails the expansionofmarkets. According to DepartmentofTransportation estimates, preemptionofState economic regulation could eventually yield $3—8 billion per year in savings. Other estimates put the savings as high as $5—-12 billion. The sheer diversity of these regulatory schemesis a huge problem fornational and regionalcarriers attempting to conduct a standard way of doing business. In hearings held on this issue, numerous examples have beencited in which rates for shipments within a state exceed rates for comparable distancesacrossstate lines. In the small package express business, companies frequently ship goods across state lines and back into *88 **1760 the state of origin to avoid the higher rates for purely intrastate shipments. Lifting of these antiquated controls will permit our transportation companiesto freely compete moreefficiently and provide quality service to their customers. Service options will be dictated by the marketplace; and not by anartificial regulatory structure. ***69 The provision is supported by the Clinton Administration. Its statement of administration policy during floor consideration of S. 1491 reads: “The Administration particularly supports the Amendment's provision which addresses the problem ofinconsistent regulation of intermodalall-cargo air carriers. Enactmentofthis provision would be an importantstep in resolving conflicting laws that interfere with efficient intermodal cargo movements.” After years of official policy against intrastate motor carrier deregulation, the American Trucking Associations issued a position on June 24, 1994 whichstated that “ATA will no longer oppose Federal preemptionofstate regulation of motor carrier rates and entry based on economic factors,” with some conditions that would allow regulatory protection to continue for non- economicfactors, suchasliability rules, antitrust immunity to publish documents, insurance, safety, leasing and cargocredit rules. The conferees have attempted to address these conditions in Section 11501oftitle 49 as amended by this provision. It is importantto note that the Senate provision created some ambiguity as to which carriers would beableto avail themselves of the preemption. In the version agreed to by the conferees,it is clear that all air carriers and carriers affiliated with a direct air carrier through commoncontrolling ownership, motorcarriers and motor private carriers involved in the transportation of property are covered by the preemption. The conferees believed it was patently unfair to create a level playing field for most ofthe industry, while leaving an unfortunate few still bound by economic regulatory controls. The conferees are well aware that in recent years there has been considerable litigation with respect to the status ofcertain carriers, specifically as to whethertheyare air carriers or are motorcarriers, and whether they are covered by the Railway Labor Act or the National Labor Relations Act. The purposeofthis section is to preempt economic regulation by the States, not to alter, determine or affect in any way whetherany carrier is or should be considered either an air carrier or a motor cartier for any purpose other than this section, whether anycarrier is or should be covered by one laborstatute or another, or the status of any collective bargaining agreement. WastlawNext © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6? HOUSE CONFERENCE REPORTNO.103-677 During the hearing on preemption of State regulation held by the House Committee on Public Works and Transportation on July 20, 1994, concerns were raised regarding the devaluation of operating rights andits effect on motor carriers, as a result of preemption of State authority to regulate the price, route, or service for intrastate transportation. Some motorcarriers have purchased or paid to acquire the authority to operate trucks in many States. These operating rights for many motorcarriers, especially small carriers, are an importantpart of their net business assets. The conferees *89 **2761 recognize that this will eliminate the asset value of the operating authority of those affected motorcarriers. ***7@ From the Committee on Public Works and Transportation, for consideration oftitles I and II of the House bill, and the Senate amendment(except secs. 121, 206, 304, 415, 418 andtitle VI), and modifications committed to conference: Norman Y. Mineta, Nick Rahall, James L. Oberstar, Robert A. Borski, Bob Clement, Bud Shuster, Bill Clinger, ThomasE.Petri, From the Committee on Banking, Finance and Urban Affairs, for consideration of title VI of the Senate amendment, and modifications committed to conference: Henry Gonzalez, Steve Neal, From the Committee on Education and Labor, for consideration of sec. 418 of the Senate amendment, and modifications committed to conference: William D. Ford, Major R. Owens, Howard “Buck” McKeon, From the Committee on Education and Labor, for consideration of sec. 208 of the Housebill, and modifications committed to conference: William D. Ford, Bill Clay, Pat Williams, From the Committee on Foreign Affairs, for consideration of sec. 415 ofthe Senate amendment, and modifications committed to conference: , Lee H. Hamilton, Tom Lantos, Gary L. Ackerman, Howard L. Berman, Eni Faleomavaega, Benjamin A. Gilman, Bill Goodling, Jim Leach, From the Committee on Science, Space, and Technology, for consideration oftitle III of the Housebill, and secs. 206 and 304 of the Senate amendment, and modifications committed to conference: George E. Brown,Jr., Tim Valentine, Dan Glickman, Pete Geren, Jane Harman, Robert S. Walker, Tom Lewis, VWestlawNext © 2011 Thomson Reuters. No claim to original US. Government Works. 68 HOUSE CONFERENCE REPORTNO.103-677 Constance Morella, *90 **1762 From the Committee on Ways and Means, for considerationoftitle TV of the Housebill, and secs. 121 and 122 of the Senate amendment, and modifications committed to conference: Sam Gibbons, Dan Rostenkowski, J.J. Pickle, Pete Stark, Bill Archer, Phil Crane, Managersonthe Part of the House. Emest Hollings, Wendell Ford, James Exon, John C. Danforth, Larry Pressler, Managersonthe Part of the Senate. End of Document © 2011 Thomson Reuters. No claim to original US. Government Works. WaestlavNext © 2014 Thomson Reuters. No claimte US. Government Works. ag DECLARATIONOF SERVICEBYU.S. MAIL Case Name: People v. Pac Anchor Transportation, Inc. Court of Appeal Case No.: B220966 I declare: I am employed at the law firm Sands Lerner, the office of a member of the California State Bar at whosedirection this service is made. I am over _ the age of 18 and not a partyto this action. On June 27, 2011, I served the attached PETITION FOR REVIEW by delivering copies thereof enclosed in sealed envelopes and addressed as follows to the common carrier Overnite Express, which promises overnight delivery by 11:00 a.m. on June 28, 2011,to the following recipients: . Kamala D. Harris, Esq. Clerk of the Court MarkJ. Breckler, Esq. Second District Court of Appeal, Jon M.Ichinaga, Esq. Division Five Maurice R.Jourdane, Esq. 300 S. Spring Street Satoshi Yanai, Esq. Second Floor, North Tower Office of the Attorney General Los Angeles, CA 90013 300 S. Spring St., Ste. 1702 Los Angeles, CA 90013 Appellate Coordinator Attorneys for Plaintiff-Appellant, Office of the Attorney General People of the State of California Consumer Law Section 300 S. Spring Street Clerk ofthe Court Los Angeles, CA 90013-1230 Los Angeles County Superior Court — [Bus. & Prof. Code § 17209] Central District Stanley Mosk Courthouse Office of the District Attorney 111 N. Hill Street County of Los Angeles Los Angeles, CA 90012 210 West Temple Street Los Angeles, CA 90012 [Bus. & Prof. Code § 17209] I declare under penalty ofperjury under the lawsofthe State of California ‘that the foregoing is true and correct and that this declaration was executed on June 27, 2011, at Los Angeles, California. - Ruthelene Luckey fore {xi Declarant Signature So 12