California Meal and Rest Break Rules; Petition for Determination of Preemption

Raymond P. Martinez
Federal Motor Carrier Safety Administration
4 October 2018

[Federal Register Volume 83, Number 193 (Thursday, October 4, 2018)]
[Notices]
[Pages 50142-50143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21624]



[[Page 50142]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0304]


California Meal and Rest Break Rules; Petition for Determination 
of Preemption

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

ACTION: Notice of petition for determination of preemption; request for 
comments.

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SUMMARY: FMCSA requests comments on a petition submitted by the 
American Trucking Associations, Inc. (ATA) requesting a determination 
that the State of California's meal and rest break rules are preempted 
by Federal law. Among other things, FMCSA requests comments on what 
effect, if any, California's meal and rest break requirements may have 
on interstate commerce.

DATES: Comments must be received on or before October 29, 2018.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2018-0304 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received without 
change to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Regulatory 
Affairs Division; FMCSA Chief Counsel; Telephone: (202) 366-1354; 
Email: Charles.Medalen@dot.gov. If you have questions on viewing or 
submitting material to the docket, contact Docket Services, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2018-0304), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2018-0304'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party and then submit. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope. FMCSA will consider all comments and material received 
during the comment period.
    Docket. For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act. In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its determination. 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.dot.gov/privacy.
Background
    On September 24, 2018, ATA submitted a petition to FMCSA requesting 
a determination under 49 U.S.C. 31141 that the State of California's 
Meal and Rest Break rules are preempted by Federal law (Petition). The 
petition stated that, under California law, within the transportation 
industry, an employer may not employ an employee for a work period of 
more than five hours per day without providing the employee with a meal 
period of not less than 30 minutes, except that if the total work 
period per day of the employee is no more than six hours, the meal 
period may be waived by mutual consent of both the employer and 
employee. Petition at 1-2 (citing Cal. Lab. Code Sec.  512(a)). The 
petition stated that an employer may not employ an employee for a work 
period of more than 10 hours per day without providing the employee 
with a second meal period of not less than 30 minutes, except that if 
the total hours worked is no more than 12 hours, the second meal period 
may be waived by mutual consent of the employer and the employee only 
if the first meal period was not waived. Id. Ordinarily, the employee 
must be ``relieved of all duty'' for the period, unless ``the nature of 
the work prevents an employee from being relieved of all duty,'' and 
the employee enters into a written agreement to remain on duty, which 
he or she may revoke at any time. Id. at 2 (citing Cal. Industrial Wage 
Commission Wage Order No. 9 Sec.  11(C)).
    The petition also stated that California law provides that, within 
the transportation industry, every employer shall authorize and permit 
all employees to take rest periods, which insofar as practicable shall 
be in the middle of each work period. Id. (citing Wage Order No. 9 
Sec.  12(a)). The authorized rest period time shall be based on the 
total hours worked daily at the rate of ten (10) minutes net rest time 
per four (4) hours or major fraction thereof. However, a rest period 
need not be authorized for employees whose total daily work time is 
less than three and one-half (3 \1/2\) hours. Authorized rest period 
time shall be counted as hours worked for which there shall be no 
deduction from wages. Id.
    In short, California generally requires employers in the 
transportation industry to provide employees with an off-duty 30-minute 
break for every five hours worked, before the end of each five-hour 
period; and a ten-minute off-duty break for every four hour period (or 
``major fraction thereof,'' i.e., period greater than two hours), in 
the middle of each such period if possible. Commercial drivers covered 
by collective bargaining agreements that meet certain statutorily 
enumerated criteria, however, are not

[[Page 50143]]

subject to the meal period requirement. See id. (citing Cal. Lab. Code 
Sec.  512(e), (f)(2)).
Applicable Law
    Section 31141 of title 49, United States Code, prohibits States 
from enforcing a law or regulation on commercial motor vehicle 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 (FMCSRs); (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 has the 
same effect as a regulation prescribed under 49 U.S.C. 31136, the State 
law or regulation may be enforced. Id. Sec.  31141(c)(2). If the 
Secretary decides that a State law or egulation is less stringent than 
a regulation prescribed under 49 U.S.C. 31136, the State law or 
regulation may not be enforced. Id. Sec.  31141(c)(3). 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. Sec.  
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 on implementation of the State law or 
regulation and all similar laws and regulations of other States. Id. 
Sec.  31141(c)(5). The Secretary's authority under 49 U.S.C. 31141 is 
delegated to the FMCSA Administrator by 49 CFR 1.87(f).
Request for Comments
    Although preemption under 31141 is a legal determination reserved 
to the judgment of the Agency, FMCSA seeks comment on any issues raised 
in ATA's petition or otherwise relevant. The Agency has placed ATA's 
petition in the docket.

    Issued on: September 28, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-21624 Filed 10-3-18; 8:45 am]
 BILLING CODE 4910-EX-P