You have asked for an opinion regarding whether the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), Pub. L. No. 103-305, 108 Stat. 1569 (codified in relevant part at 49 U.S.C. §§ 14501 and 41713), preempts the Department of Agriculture's authority under O.C.G.A. § 10-2-17 to inspect scales used exclusively for weighing packages to be shipped by the United Parcel Service, Inc. ("UPS").

It is my official opinion that the Department's authority has been preempted in this regard.

The doctrine of preemption is rooted in the Supremacy Clause, which makes the laws of the United States "the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. Preemption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983).

Sections 14501(c)(1) and 41713(b)(4) of the FAAAA are express preemption provisions which remove the states' power to regulate certain aspects of motor and intermodal carriers such as UPS. Both sections provide that a state may not enact or enforce laws "related to a price, route, or service" of any covered carrier. Georgia law authorizes the Commissioner to "inspect scales used for the calculation and determination of fees or charges for the transportation of bulk materials, packages, goods, and commodities in intrastate shipments by rail, parcel services, motor vehicles, motor transport, buses, and airlines." O.C.G.A. § 10-2-17.

Whether preemption of state law has occurred is fundamentally a question of statutory intent, English v. General Electric Co., 496 U.S. 72, 78-79 (1989), and the analysis accordingly must begin with the "language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992); FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990); Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). Section 14501(c)(1) provides as follows:

(c) Motor carriers of property.--

(1) General rule.-- Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

49 U.S.C. § 14501(c)(1) (emphasis added). Similarly, Section 41713(b)(4) provides the following:

(4) Transportation by air carrier or carrier affiliated with a direct air carrier.--

(A) General rule.-- Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier

affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).

49 U.S.C. § 41713(b)(4)(A) (emphasis added).

The United States Supreme Court has observed that the ordinary meaning of "relate to" is "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Morales, 504 U.S. at 383 (quoting Black's Law Dictionary 1158 (5th ed. 1979)). In Morales, the Court held that a substantially similar provision of the Airline Deregulation Act ("ADA") preempted state law in a broad manner and that the state law need not actually prescribe rates, routes or services in order to be preempted. Id. at 385. If that were the case, the Court reasoned, Congress would have forbidden the states to "regulate rates, routes, or services" rather than adopting the broad "relating to" language. Id. The Court has repeatedly recognized that a similarly worded preemption clause of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1144(a), which preempted all state laws insofar as they "related to any employee benefit plan," has a "broad scope." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985). The Court has further stated that the "breadth of [the ERISA provision's] preemptive reach is apparent from [its] language," Shaw, 463 U.S. at 96, that it has an "expansive sweep," Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987), is "deliberately expansive," Id. at 46, and is "conspicuous for its breadth," Holliday, 498 U.S. at 58.

While any analysis of statutory construction must begin with the text of the provision in question, the analysis may move on, as need be, to both the structure and purpose of the act in which it appears. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671, 1677 (1995). It appears without dispute that Congress intended for the preemption provisions in the FAAAA to be as broad in scope as those in both the ADA and ERISA. In fact, the ADA preemption provision, 49 U.S.C. § 41713(b)(1), appears in the same section as one of the FAAAA's preemption provisions and includes nearly identical "relating to" phraseology. Furthermore, the legislative history of the FAAAA's preemption provisions specifically endorsed the Morales Court's broad interpretation of the ADA's preemption clause.

In accordance with this expansive interpretation, the Court held that state law or enforcement actions "relate to" airline "rates, routes, or services" under the ADA if they have "a connection with, or reference to, airline 'rates, routes, or services.'" Morales, 504 U.S. at 384 (emphasis added). Similarly, the Court has held that, under ERISA, a law that specifically refers to covered welfare benefit plans is preempted on that basis alone. District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 129-130 (1992). In other words, a state law that refers to a carrier's rates, routes, or services is necessarily "related to" those rates and services. Official Code of Georgia Annotated § 10-2-17 is specifically directed at regulation of scales used to calculate fees for the delivery of packages and goods by parcel services, and is therefore preempted by the FAAAA on that basis alone.

In expressing the opinion that O.C.G.A. § 10-2-17 has been preempted by the FAAAA, I do not intend to opine that all state laws that may apply to UPS have been preempted. The FAAAA's savings clause allows state regulation of highway routes, the size or weight of the vehicle or the hazardous nature of the cargo, and the amount of financial responsibility relating to insurance and self-insurance; it also permits states to regulate the transportation of household goods. 49 U.S.C. § 41713(b)(4)(B). In addition, the Court has made clear that "some state actions may affect [prices] in too tenuous, remote, or peripheral a manner" to have a preemptive effect. Morales, 504 U.S. at 390 (citing Shaw, 463 U.S. at 100). The phrase "relating to," while clearly a broad term, also serves as limiting language of the statute. Travelers Ins. Co., 115 S. Ct. at 1679-1680; California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 117 S. Ct. 832, 840 (1997). Additionally, this opinion is limited to those scales used exclusively for preempted purposes and is not intended to insulate scales from regulation that may be employed for both preempted and non-preempted uses.

Finally, I do not express an opinion as to whether preemption of this type of state regulation would occur in the absence of a specific reference to the prices and services of carriers like UPS. While laws of general applicability are not exempt from preemption, Morales, 504 U.S. at 386, this opinion deals solely with the state law as it is presently worded.

As stated above, however, Congress intended broad application of the FAAAA's preemption provision, and since the state law in question specifically refers to the prices and services of

parcel services like UPS, it is my official opinion that O.C.G.A. § 10-2-17, regarding the Department of Agriculture's authority to inspect scales used exclusively to determine fees and charges for package delivery by UPS, has been preempted by federal law.

Prepared by:

JOHN L. MCKINLEY
Assistant Attorney General

Section 14501 was recodified from the former 49 U.S.C. § 11501 when Congress enacted the Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 103, 109 Stat. 803, 899 (effective Jan. 1, 1996).

In amending the FAAAA, the conferees noted that they did not "intend to alter the broad preemption interpretation adopted by the United States Supreme Court in Morales." H.R. Conf. Rep. No. 103-677, 103rd Cong., 2d Sess. 87 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1755.