California and Washington Meal and Rest Break Rules; Notice of Waiver Provision Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 14 August 2023 Subjects: American Government , Safety

[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55111-55112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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:
     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 petition 
for waiver.
     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.

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; Tracy.White@dot.gov. 
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, 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, 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]
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