[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89010-89012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28399]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0304; FMCSA-2019-0048; FMCSA-2019-0128]


California and Washington Meal and Rest Break Rules; Petitions 
for Waiver of Preemption Determinations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Notice of petitions for waiver of preemption determinations; 
request for comments.

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SUMMARY: FMCSA requests comments on petitions requesting waivers of the 
Agency's December 21, 2018 and January 13, 2020 decisions preempting 
the State of California's Meal and Rest Break (MRB) rules for certain 
drivers of property- and passenger-carrying commercial motor vehicles 
(CMVs) and its November 17, 2020 decision preempting the State of 
Washington's MRB rules for certain drivers of property-carrying CMVs. 
Waiver petitions were filed by the International Brotherhood of 
Teamsters; the Truck Safety Coalition, Citizens for Reliable and Safe 
Highways and Parents Against Tired Truckers; William B. Trescott; and 
the State of California.

DATES: Comments must be received on or before February 26, 2024.

ADDRESSES: You may submit comments to the Federal Docket Management 
System Docket No. FMCSA-2018-0304, Docket No. FMCSA-2019-0048, and/or 
Docket FMCSA-2019-0128 using any of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov/, 
insert the docket number, FMCSA-2018-0304, docket number FMCSA-2019-
0048, or docket FMCSA-2019-0128 in the keyword box, and click 
``Search.'' Follow the online instructions for submitting a comment.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, West 
Building, Ground Floor, 1200 New Jersey Avenue SE, Washington, DC, 
between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal 
Holidays. To be sure someone is there to help you, please call (202) 
366-9317 or (202) 366-9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods.

[[Page 89011]]

    Privacy Act: DOT solicits comments from the public to better inform 
its decisions regarding preemption of State laws. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Tracy M. White, Enforcement and 
Litigation Division; FMCSA Office of Chief Counsel; 1200 New Jersey 
Avenue SE, Washington, DC 20590; (202) 493-0349; [email protected]. 
If you have questions on viewing or submitting material to the docket, 
contact Dockets Operations, (202) 366-9317 or (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 21, 2018, FMCSA granted petitions filed by the American 
Trucking Associations and the Specialized Carriers and Rigging 
Association, and determined that California's MRB rules, as applied to 
property-carrying CMV drivers subject to FMCSA's hours of service (HOS) 
regulations, are preempted under 49 United States Code (U.S.C.) 31141 
(Docket No. FMCSA-2018-0304; 83 FR 67470 (Dec. 28, 2018)). On January 
13, 2020, FMCSA granted a petition filed by the American Bus 
Association and determined that California's MRB rules, as applied to 
passenger-carrying CMV drivers subject to FMCSA's HOS regulations, are 
also preempted under 49 U.S.C. 31141 (Docket No. FMCSA-2019-0048; 85 FR 
3469 (Jan. 21, 2020)). On November 27, 2020, FMCSA granted a petition 
filed by the Washington Trucking Associations and determined that 
Washington's MRB rules, as applied to property-carrying CMV drivers 
subject to FMCSA's HOS regulations, are preempted under 49 U.S.C. 31141 
(Docket No. FMCSA-2019-0128, 85 FR 73335 (Nov. 17, 2020)). In each 
decision, FMCSA determined that the MRB rules are laws on CMV safety, 
that they are more stringent than the Federal regulations, and that 
they meet each of the three potential criteria for preemption under 49 
U.S.C. 31141(c)(4) and (5) (see 83 FR 67470, 85 FR 3469; 85 FR 7333). 
On January 15, 2021, the U.S. Court of Appeals for the Ninth Circuit 
denied petitions for review challenging the first preemption decision. 
Int'l Bhd. of Teamsters, Local 2785 v. FMCSA, 986 F.3d 841 (9th Cir. 
2021), cert. denied sub nom. Trescott v. Fed. Motor Carrier, No. 20-
1662, 142 S. Ct. 93 (Oct. 4, 2021). The State of California filed a 
petition for review in the Ninth Circuit in March 2020 challenging the 
second preemption decision, and the court has held that case in 
abeyance. People of the State of Cal. ex rel. Bonta v. FMCSA, No. 20-
70706 (9th Cir.). The State of Washington filed a petition for review 
in the Ninth Circuit challenging the third preemption decision but 
voluntarily dismissed the case in August 2022. State of Washington v. 
FMCSA, No. 20-73730 (9th Cir.).

II. Applicable Law

A. California's MRB Rules

    Under section 512 of the California Labor Code, employers must 
provide non-exempt employees a 30-minute meal break if they work more 
than 5 hours in a day, and employees who work a shift of 10 hours or 
more are entitled to a second 30-minute meal break. Under the 
California Code of Regulations (CCR) section 11090(12), employers are 
required to provide rest periods for non-exempt employees who work 3\1/
2\ or more hours in a day. Employees are entitled to a 10-minute rest 
period for each 4 hours, or a substantial fraction thereof, that they 
work in a day. To the extent possible, these breaks are to be taken in 
the middle of each 4-hour period (8 CCR section 11090(12)); California 
Industrial Welfare Commission Order No. 9-2001. California law provides 
that an employer shall not require an employee to work during a 
mandated meal or rest break and provides for additional pay as a remedy 
for violating that prohibition (Cal. Labor Code 226.7(b) and (c)).

B. Washington's MRB Rules

    Under the Washington Department of Labor and Industries' 
regulations in section 296-126-092 of Washington's Administrative Code 
(WAC), employers must provide employees a meal period of at least 30 
minutes that commences after the second hour and before the fifth hour 
after the shift commences (WAC 296-126-092(1) and (2)). In addition, 
Washington's MRB rules provide for a 10-minute rest period ``for each 
four hours of working time'' and must occur no later than the end of 
the third working hour (WAC 296-126-092(4)). The rest period must be 
scheduled as near as possible to the midpoint of the 4 hours of working 
time, and no employee may be required to work more than 3 consecutive 
hours without a rest period.\1\
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    \1\ Department of Labor and Industries, Administrative Policy 
ES.C.6.1, paragraph 11, https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf.
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C. Federal Preemption Under the Motor Carrier Safety Act of 1984

    Section 31141 of title 49, U.S.C., prohibits States from enforcing 
a law or regulation on CMV safety that the Secretary of Transportation 
(Secretary) has determined to be preempted. To determine whether a 
State law or regulation is preempted, the Secretary must decide whether 
a State law or regulation: (1) has the same effect as a regulation 
prescribed under 49 U.S.C. 31136, which is the authority for much of 
the Federal Motor Carrier Safety Regulations; (2) is less stringent 
than such a regulation; or (3) is additional to or more stringent than 
such a regulation (49 U.S.C. 31141(c)(1)).
    If the Secretary decides that a State law or regulation is 
additional to or more stringent than a regulation prescribed by the 
Secretary under 49 U.S.C. 31136, the State law or regulation may be 
enforced unless the Secretary decides that the State law or regulation 
(1) has no safety benefit; (2) is incompatible with the regulation 
prescribed by the Secretary; or (3) would cause an unreasonable burden 
on interstate commerce (Id. 31141(c)(4)). In deciding whether a State 
law or regulation will cause an unreasonable burden on interstate 
commerce, the Secretary may consider the cumulative effect that the 
State's law or regulation and all similar laws and regulations of other 
States will have on interstate commerce (Id. 31141(c)(5)). The 
Secretary's authority under 49 U.S.C. 31141 is delegated to the FMCSA 
Administrator by 49 U.S.C. 113(f) and 49 CFR 1.87(f).
    Pursuant to 49 U.S.C. 31141(d), FMCSA may grant a waiver of an 
FMCSA preemption decision. Under this provision, ``[a] person 
(including a State) may petition the Secretary for a waiver of a 
decision of the Secretary that a State law or regulation may not be 
enforced under this section.'' Further, ``[t]he Secretary shall grant 
the waiver, as expeditiously as possible, if the person demonstrates to 
the satisfaction of the Secretary that the waiver is consistent with 
the public interest and the safe operation of commercial motor 
vehicles'' (Id. Sec.  31141(d)(1)).

III. Request for Comment on Petitions for Waiver of California and 
Washington Meal and Rest Break Preemption Determinations

    The International Brotherhood of Teamsters; the Truck Safety 
Coalition, Citizens for Reliable and Safe Highways, and Parents Against 
Tired Truckers; and William B. Trescott have submitted

[[Page 89012]]

petitions requesting the FMCSA waive all three determinations 
preempting California's MRB rules for drivers of property- and 
passenger-carrying CMVs subject to FMCSA's HOS rules and Washington's 
MRB rules for property-carrying CMVs subject to FMCSA's HOS rules.
    The State of California has petitioned for waiver of the decisions 
preempting California's MRB rules. FMCSA has placed each petition for 
waiver in the ``Documents'' section of the appropriate docket.\2\ 
Although waiver of a preemption determination under 49 U.S.C. 31141(d) 
is a legal determination reserved to the judgment of the Agency, FMCSA 
seeks comments on any issues raised in the above referenced petitions 
for waiver or otherwise relevant. In addition, FMCSA requests that 
commenters address the following issues:
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    \2\ FMCSA also received a submission from Teamsters Locals 70, 
87, 150, 386, 439, 948 and 2785 requesting that FMCSA reverse its 
preemption decisions, as well as a comment from the Owner-Operator 
Independent Drivers Association. These documents may be viewed in 
the ``Comments'' section of the appropriate docket.
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    1. Whether and to what extent enforcement of a State's meal and 
rest break laws with respect to intrastate property-carrying and 
passenger-carrying CMV drivers has impacted the health and safety of 
drivers.
    2. Whether enforcement of State meal and rest break laws as applied 
to interstate property-carrying or passenger-carrying CMV drivers will 
exacerbate the existing truck parking shortages and result in more 
trucks parking on the side of the road and whether any such effect will 
burden interstate commerce or create additional dangers to drivers and 
the public; and
    3. Whether enforcement of a State's meal and rest break laws as 
applied to interstate property-carrying or passenger-carrying CMV 
drivers will dissuade carriers from operating in that State; and
    4. Whether enforcement of a State's meal and rest break laws as 
applied to interstate property-carrying or passenger-carrying CMV 
drivers will weaken or otherwise impact the resiliency of the national 
supply chain.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-28399 Filed 12-22-23; 8:45 am]
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