Notice2023-17463
California and Washington Meal and Rest Break Rules; Notice of Waiver Provision
Primary source
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Published
August 14, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA provides notice that the Agency will consider petitions for waiver of its 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.
Full Text
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<title>Federal Register, Volume 88 Issue 155 (Monday, August 14, 2023)</title>
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[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55111-55112]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17463]
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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; Notice of
Waiver Provision
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of waiver provision.
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SUMMARY: FMCSA provides notice that the Agency will consider petitions
for waiver of its 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.
DATES: While petitions for waiver may be submitted at any time, FMCSA
requests that any petitions for waiver of the above referenced
preemption determinations be submitted by November 13, 2023. FMCSA will
publish any petitions for waiver that it receives and will provide an
opportunity for public comment with respect to the petitions.
ADDRESSES: You may submit a petition for waiver to the Federal Docket
Management System Docket No. FMCSA-2018-0304, Docket No. FMCSA-2019-
0048, or Docket FMCSA-2019-0128 using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a>,
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 petition
for waiver.
<bullet> Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Washington, DC 20590-0001.
<bullet> 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.
<bullet> Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
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; <a href="/cdn-cgi/l/email-protection#a1f5d3c0c2d88ff6c9c8d5c4e1c5ced58fc6ced7"><span class="__cf_email__" data-cfemail="76220417150f58211e1f02133612190258111900">[email protected]</span></a>.
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 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 Association 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)-(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, 2021
WL 4507755 (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
[[Page 55112]]
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)-(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)-(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, <a href="https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf">https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf</a>.
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C. Federal Preemption Under the Motor Carrier Safety Act of 1984
Section 31141 of title 49, United States Code, 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. section 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. section 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. section 31141(d)(1).
III. Petitions for Waiver of California and Washington Meal and Rest
Break Preemption Determinations
FMCSA provides notice that the Agency will consider any petition
seeking waiver of the Agency's decisions preempting (1) California's
MRB rules for drivers of property-carrying CMVs (Docket No. FMCSA-2018-
0304; 83 FR 67470), (2) California's MRB rules for drivers of
passenger-carrying CMVs (Docket No. FMCSA-2019-0048; 85 FR 3469), or
(3) Washington's MRB rules for drivers of property-carrying CMVs
(Docket No. FMCSA-2019-0128, 85 FR 73335). Section 31141(d) requires
that a petition for waiver demonstrate to the Agency's satisfaction
that a waiver from Federal preemption is in the public interest and is
consistent with the safe operation of CMVs. A petition for waiver need
not contend that the Agency erred in determining that the California
and Washington MRB rules are laws on CMV safety, that they are more
stringent than the Federal HOS regulations, or that they meet any or
all the criteria for preemption under 31141(c)(4)-(5), and the Agency
encourages waiver petitioners to include arguments that do not depend
on a conclusion that the Agency's preemption determinations were
erroneous.
The Agency requests that any waiver petition address the following
issues, in addition to any other relevant issues:
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, whether any such effect will
burden interstate commerce or create additional dangers to drivers and
the public, and whether the applicant intends to take any actions to
mitigate or address any such effect; 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, whether
any such effect will weaken the resiliency of the national supply
chain, and whether the applicant intends to take any actions to
mitigate or address any such effect.
Any person may file a petition for waiver in the appropriate docket
specified above or may send it to FMCSA at the address provided in the
FOR FURTHER INFORMATION CONTACT section of this notice.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-17463 Filed 8-11-23; 8:45 am]
BILLING CODE 4910-EX-P
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