California's Meal and Rest Break Rules for Commercial Motor Vehicle Drivers; Petition for Determination of Preemption

Raymond P. Martinez
Federal Motor Carrier Safety Administration
28 December 2018

[Federal Register Volume 83, Number 248 (Friday, December 28, 2018)]
[Notices]
[Pages 67470-67480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28325]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0304]


California's Meal and Rest Break Rules for Commercial Motor 
Vehicle Drivers; Petition for Determination of Preemption

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

ACTION: Order; grant of petition for determination of preemption.

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SUMMARY: The FMCSA grants petitions submitted by the American Trucking 
Associations and the Specialized Carriers and Rigging Association 
requesting a determination that the State of California's Meal and Rest 
Break rules (MRB Rules) are preempted under 49 U.S.C. 31141 as applied 
to property-carrying commercial motor vehicle (CMV) drivers covered by 
the FMCSA's hours of service regulations. Federal law provides for 
preemption of State laws on CMV safety that are additional to or more 
stringent than Federal regulations if they have no safety benefit; are 
incompatible with Federal regulations; or would cause an unreasonable 
burden on interstate commerce. The FMCSA has determined that the MRB 
Rules are laws on CMV safety, that they are more stringent than the 
Agency's hours of service regulations, that they have no safety 
benefits that extend beyond those already provided by the Federal Motor 
Carrier Safety Regulations, that they are incompatible with the Federal 
hours of service regulations, and that they cause an unreasonable 
burden on interstate commerce. The California MRB Rules, therefore, are 
preempted under 49 U.S.C. 31141(c).

ADDRESSES: You may see all the comments online through the Federal 
Document Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov or 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., Monday through Friday, 
except Federal holidays. The FDMS is available 24 hours each day, 365 
days each year.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, etc.). 
You may review DOT's Privacy Act Statement for the Federal Docket 
Management System (FDMS) published in the Federal Register on December 
29, 2010. 75 FR 82132.

FOR FURTHER INFORMATION CONTACT: Charles J. Fromm, Deputy Chief 
Counsel, Office of the Chief Counsel, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 
366-3551; email Charles.Fromm@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    On September 24, 2018, the American Trucking Associations (ATA) 
petitioned the Federal Motor Carrier Safety Administration (FMCSA) to 
preempt California statutes and rules requiring employers to give their 
employees meal and rest breaks during the work day, as applied to 
drivers of commercial motor vehicles (CMVs) subject to the FMCSA's 
hours of service (HOS) regulations. On October 29, 2018, the 
Specialized Carriers and Rigging Association (SCRA) also filed a 
petition seeking a preemption determination concerning the same meal 
and rest break requirements. The SCRA opted to submit a petition in 
lieu of comments as part of Docket No. FMCSA-2018-0304; therefore, the 
Agency will not open a separate docket for the SCRA's petition. For the 
reasons set forth below, the FMCSA grants the petitions insofar as the 
provisions at issue apply to drivers of property-carrying CMVs subject 
to the FMCSA's hours of service regulations.\1\
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    \1\ While the Agency received comments in support of the ATA's 
petition from the American Bus Association, Coach USA, Greyhound 
Lines, and the United Motorcoach Association, this determination of 
preemption does not apply to drivers of passenger-carrying CMVs in 
interstate commerce. The Agency, however, would consider any 
petition asking for a determination as to whether the MRB Rules are 
preempted with respect to such drivers.
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California Meal and Rest Break Rules (MRB Rules)

    Section 512, Meal periods, of the California Labor Code reads, in 
part, as follows:

    ``(a) 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. 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.
    ``(b) Notwithstanding subdivision (a), the Industrial Welfare 
Commission may adopt a working condition order permitting a meal 
period to commence after six hours of work if the commission 
determines that the order is consistent with the health and welfare 
of the affected employees.''

    Section 516 of the California Labor Code reads, in relevant in 
part, as follows:

    ``(a) Except as provided in Section 512, the Industrial Welfare 
Commission may adopt or amend working condition orders with respect 
to break periods, meal periods, and days of rest for any workers in 
California consistent with the health and welfare of those 
workers.''
    Section 226.7 of the California Labor Code reads, in relevant 
part, as follows:
    ``(b) An employer shall not require an employee to work during a 
meal or rest or recovery period mandated pursuant to an applicable 
statute, or applicable regulation, standard, or order of the 
Industrial Welfare Commission . . . .
    ``(c) If an employer fails to provide an employee a meal or rest 
or recovery period in accordance with a state law, including, but 
not limited to, an applicable statute or applicable regulation, 
standard, or order of the Industrial Welfare Commission, . . . the 
employer shall pay the employee one additional hour of pay at the 
employee's regular rate of compensation for each workday that the 
meal or rest or recovery period is not provided.''

    Section 11090 of Article 9 (Transport Industry) of Group 2 
(Industry and Occupation Orders) of Chapter 5 (Industrial Welfare 
Commission) of Division 1 (Department of Industrial Relations) of Title 
8 (Industrial Relations) of the California Code of

[[Page 67471]]

Regulations, is entitled ``Order Regulating Wages, Hours, and Working 
Conditions in the Transportation Industry'' (hereafter: ``8 CCR 11090'' 
or ``section 11090'').\2\
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    \2\ California Industrial Welfare Commission Order No. 9-2001 is 
identical to 8 CCR 11090.
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    Section 11090(11). Meal Periods, reads as follows:

    ``(A) No employer shall employ any person for a work period of 
more than five (5) hours without a meal period of not less than 30 
minutes, except that when a work period of not more than six (6) 
hours will complete the day's work the meal period may be waived by 
mutual consent of the employer and the employee.
    ``(B) An employer may not employ an employee for a work period 
of more than ten (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.
    ``(C) Unless the employee is relieved of all duty during a 30 
minute meal period, the meal period shall be considered an `on duty' 
meal period and counted as time worked. An `on duty' meal period 
shall be permitted only when the nature of the work prevents an 
employee from being relieved of all duty and when by written 
agreement between the parties an on-the-job paid meal period is 
agreed to. The written agreement shall state that the employee may, 
in writing, revoke the agreement at any time.
    ``(D) If an employer fails to provide an employee a meal period 
in accordance with the applicable provisions of this order, the 
employer shall pay the employee one (1) hour of pay at the 
employee's regular rate of compensation for each workday that the 
meal period is not provided.
    ``(E) In all places of employment where employees are required 
to eat on the premises, a suitable place for that purpose shall be 
designated.''

    Section 11090(12). Rest Periods, reads as follows:

    ``(A) 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. 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.
    ``(B) If an employer fails to provide an employee a rest period 
in accordance with the applicable provisions of this order, the 
employer shall pay the employee one (1) hour of pay at the 
employee's regular rate of compensation for each workday that the 
rest period is not provided.''

    Although section 11090(3)(L) provides that ``[t]he provisions of 
this section are not applicable to employees whose hours of service are 
regulated by: (1) The United States Department of Transportation, Code 
of Federal Regulations, Title 49, sections 395.1 to 395.13, Hours of 
Service of Drivers,'' the California courts have interpreted the word 
``section'' to refer only to section 11090(3), which regulates ``hours 
and days of work,'' not to all of section 11090, including meal and 
rest breaks in section 11090(11) and (12). See Cicairos v. Summit 
Logistics, Inc., 133 Cal App.4th 949 (2006).

Federal Preemption Under the Motor Carrier Safety Act of 1984

    Section 31141 of title 49, United States Code, a provision of the 
Motor Carrier Safety Act of 1984 (the 1984 Act), 49 U.S.C. Chap. 311, 
Subchap. III, 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 determines that a 
State law or regulation has the same effect as a regulation based on 
section 31136, it may be enforced. 49 U.S.C. 31141(c)(2). A State law 
or regulation that is less stringent may not be enforced. 49 U.S.C. 
31141(c)(3). And a State law or regulation the Secretary determines to 
be additional to or more stringent than a regulation based on section 
31136 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. 49 U.S.C. 31141(c)(4). To 
determine 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. 
49 U.S.C. 31141(c)(5). The Secretary need only find that one of the 
conditions set forth at paragraph (c)(4) exists to preempt State the 
provision(s) at issue. The Secretary may review a State law or 
regulation on her own initiative, or on the petition of an interested 
person. 49 U.S.C. 31141(g). The Secretary's authority under section 
31141 is delegated to the FMCSA Administrator by 49 CFR 1.87(f).

Federal Motor Carrier Safety Regulations (FMCSRs) Concerning Breaks, 
Fatigue, and Coercion

    For truck drivers operating a CMV in interstate commerce, the 
Federal HOS rules impose daily limits on driving time. 49 CFR 395.3. In 
addition, the HOS rules require long-haul truck drivers operating a CMV 
in interstate commerce to take at least 30 minutes off duty no later 
than 8 hours after coming on duty if they wish to continue driving 
after the 8th hour.\3\ 49 CFR 395.3(a)(3)(ii). The HOS regulations also 
impose both daily and weekly limits after which driving is prohibited. 
There are separate HOS regulations, imposing different limits on 
driving time, for drivers of passenger-carrying CMVs. 49 CFR 395.5.
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    \3\ The 30-minute rest break requirement does not apply to 
drivers operating under either of the short-haul exemptions in 49 
CFR 395.1(e)(1) or (2).
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    In addition, the FMCSRs also prohibit a driver from operating a 
CMV, and a motor carrier from requiring a driver to operate a CMV, 
while the driver is impaired by illness, fatigue, or other cause, such 
that it is unsafe for the driver to begin or continue operating the 
CMV. 49 CFR 392.3. The FMCSRs also prohibit a motor carrier, shipper, 
receiver or transportation intermediary from coercing a driver to 
operate a CMV in violation of this and other provisions of the FMCSRs 
or Hazardous Materials Regulations. 49 CFR 390.6.

The ATA and SCRA Petitions and Comments Received

    As set forth more fully below, the ATA argues that California's MRB 
Rules, as applied to CMV drivers working in interstate commerce, are 
within the scope of the Secretary's preemption authority under section 
31141 because they are laws ``on commercial motor vehicle safety.'' In 
this regard, the ATA acknowledges that the Agency took the position in 
2008 that the MRB Rules at issue cannot be regulations ``on commercial 
motor vehicle safety'' because they ``cover far more than the trucking 
industry.'' The ATA contends, however, that the Agency's conclusions in 
the 2008 Decision do not compel the same result here because the 
Agency's interpretation of section 31141 was wrong as a matter of 
statutory interpretation. Additionally, the ATA provides evidence 
purporting to show that the MRB Rules undermine safety. The ATA also 
contends that the

[[Page 67472]]

MRB Rules are incompatible with Federal HOS regulations and impose an 
unreasonable burden on interstate commerce. The ATA's petition seeks an 
order declaring that California's MRB Rules, as applied to CMV drivers 
who are subject to DOT's jurisdiction to regulate hours of service, 
should be preempted pursuant to 49 U.S.C. 31141(c)(4) and, therefore, 
may not be enforced.
    The SCRA explained that it filed a separate petition, rather than 
submit comments in support of the ATA's petition, to underscore their 
organization's concern that FMCSA ``be the final arbiter of whether a 
state has enacted a standard or regulation that is not identical to the 
federal standard'' and that the Agency should preempt State laws and 
regulations that are not compatible with the FMCSRs. The SCRA stated 
that the organization supports the ATA's arguments, and much of the 
SCRA's petition advanced the argument that the MRB Rules are more 
stringent than the FMCSRs and are incompatible. The petition requests 
that the Agency:

    [D]eclar[e] California's Meal and Rest Break requirements are 
preempted from being applied to drivers subject to the HOS 
regulations on rest breaks, and order that California, or any 
representative authorized under the Labor Code Private Attorneys 
General Act of 2004, is not authorized to legally enforce any 
conflicting provisions related to California's Meal and Rest Break 
requirements.

    The SCRA also contends that the Agency ``should also be willing to 
initiate a proceeding under 49 CFR 350.215'' to withhold Motor Carrier 
Safety Assistance Program grant funds from ``states with non-compatible 
state motor carrier safety laws.''
    The FMCSA published a notice in the Federal Register on October 4, 
2018 seeking public comment on whether the MRB Rules are preempted by 
Federal law. 83 FR 50142. Although preemption under section 31141 is a 
legal determination reserved to the judgment of the Agency, the FMCSA 
voluntarily sought comment on issues relevant to the preemption 
determination, including what effect, if any, California's MRB Rules 
have on interstate motor carrier operations. The public comment period 
closed on October 29, 2018.
    The Agency received more than 700 comments, including submissions 
from more than 120 organizations.\4\ While the public comment period 
ended on October 29, the Agency continued to accept public comments 
until November 5. Approximately half of the organizations that 
commented support preemption of the MRB Rules and half opposed. Of the 
individuals who commented, approximately 94% support preemption while 
6% expressed opposition. In addition, the Agency received 9 letters 
from 68 members of Congress.
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    \4\ Some comment letters were joined by multiple organizations, 
including one letter from the Center for Justice and Democracy 
opposing the ATA's petition, which was joined by 39 organizations.
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The Agency's Prior Position Regarding Preemption Under Section 31141

I. The FMCSA's December 24, 2008 Decision Rejecting a Petition for a 
Preemption Determination

    On July 3, 2008, a group of motor carriers \5\ petitioned the FMCSA 
for a determination under 49 U.S.C. 31141(c) that: (1) The California 
MRB Rules are regulations on CMV safety, (2) the putative State 
regulation imposes limitations on a driver's time that are different 
from and more stringent than Federal ``hours of service'' regulations 
governing the time a driver may remain on duty, and (3) that the State 
law should therefore be preempted. 73 FR 79204. The Agency denied the 
petition for preemption, reasoning that the MRB Rules are merely one 
part of California's comprehensive regulation of wages, hours, and 
working conditions, and that they apply to employers in many other 
industries in addition to motor carriers. The FMCSA concluded that the 
MRB Rules were not regulations ``on commercial motor vehicle safety'' 
within the meaning of 49 U.S.C. 31141 because they applied broadly to 
all employers and not just motor carriers, and that they therefore were 
not within the scope of the Secretary's statutory authority to declare 
unenforceable a State motor vehicle safety regulation that is 
inconsistent with Federal safety requirements. 73 FR 79204.
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    \5\ Affinity Logistics Corp.; Cardinal Logistics Management 
Corp.; C.R. England, Inc.; Diakon Logistics (Delaware), Inc.; 
Estenson Logistics, LLC; McLane Company, Inc.; McLane/Suneast, Inc.; 
Penske Logistics, LLC; Penske Truck Leasing Co., L.P.; Trimac 
Transportation Services (Western), Inc.; and Velocity Express, Inc.
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II. Dilts v. Penske Logistics, LLC, United States Court of Appeals for 
the Ninth Circuit, No. 12-55705 (2014)

    In Dilts v. Penske Logistics, the plaintiffs, 349 delivery drivers 
and installers, filed a class action lawsuit against the defendants, 
Penske Logistics, LLC, and Penske Truck Leasing Co. alleging that they 
routinely violate the MRB Rules. The defendants argued that the MRB 
Rules as applied to motor carriers were preempted under the Federal 
Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C. 
14501(c), because the provisions at issue were related to prices, 
routes, or services. The United States Court of Appeals for the Ninth 
Circuit invited the United States to file a brief as amicus curiae 
(Dilts amicus brief).
    In the Dilts amicus brief, the United States argued that: (1) State 
laws like California's, which do not directly regulate prices, routes, 
or services, are not preempted by the FAAAA unless they have a 
``significant effect'' on prices, routes, or services; (2) in the 
absence of explicit instructions from Congress, there is a presumption 
against preemption in areas of traditional State police power, 
including employment; (3) there was no showing of an actual or likely 
significant effect on prices, routes, or services with respect to the 
short-haul drivers at issue in the case, and so the California laws at 
issue were not preempted by the FAAAA; and (4) the preemption analysis 
might be different with respect to long-haul or interstate drivers.
    The United States also explained that the FMCSA continued to adhere 
to the view expressed in the 2008 Decision that the MRB Rules were not 
preempted by section 31141 of the 1984 Act because they were not laws 
``on commercial motor vehicle safety.'' In addition, the United States 
stated that the MRB provisions, as applied to the plaintiffs in Dilts, 
did not run afoul of general Supremacy Clause principles of conflict 
preemption because the drivers in question were not subject to the 
Agency's HOS regulations, as they were either short-haul or intrastate 
long-haul drivers. Therefore, the Dilts amicus brief explained that the 
application of the MRB Rules had little if any effect on the ability of 
the Dilts plaintiffs to comply with Federal regulatory standards.
    The Ninth Circuit concluded that the FAAAA did not preempt 
California's MRB Rules, as applied to the plaintiff drivers, because 
those State laws were not ``related to'' the defendants' prices, 
routes, or services. The Ninth Circuit made no determination whether 
the MRB Rules were within the scope of the Secretary's preemption 
authority under section 31141 because that question was not before the 
Court.

Decision

    At the outset, the FMCSA notes that several commenters contend that 
the MRB Rules are subject to a presumption against preemption. The 
FMCSA acknowledges that ``in all preemption cases, and particularly in 
those in which Congress has legislated in a field which the States have 
traditionally occupied, [there] is an assumption that the historic

[[Page 67473]]

police powers of the States were not to be superseded by the Federal 
Act unless that was the clear and manifest purpose of Congress.'' Wyeth 
v. Levine, 555 U.S. 555, 565 (2009) (alterations omitted). That 
presumption does not apply here, however, because section 31141 is an 
express preemption provision. When a ``statute contains an express pre-
emption clause, [courts] do not invoke any presumption against pre-
emption but instead focus on the plain wording of the clause, which 
necessarily contains the best evidence of Congress' pre-emptive 
intent.'' Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 
1938, 1946 (2016) (quotations omitted). Thus, the question that the 
FMCSA must answer is whether the MRB Rules are subject to preemption 
under section 31141.

I. The California Meal and Rest Break Provisions Are Laws or 
Regulations ``On Commercial Motor Vehicle Safety'' Within the Meaning 
of 49 U.S.C. 31141

    The initial question in a preemption analysis under section 31141 
is whether the provisions at issue are laws or regulations ``on 
commercial motor vehicle safety.'' 49 U.S.C. 31141(c)(1). The ATA 
argues that California's MRB Rules, as applied to CMV drivers subject 
to the FMCSA's HOS regulations, are rules on commercial motor vehicle 
safety subject to review under section 31141. In this regard, the ATA 
contends that both the text of section 31141 and its structural 
relationship with other statutory provisions make it clear that 
Congress's intended scope of section 31141 was broader than the 
construction the Agency gave it in the 2008 Decision. The ATA points 
out that the language of section 31141 mirrors that of 49 U.S.C. 31136, 
which instructs the Secretary to ``prescribe regulations on commercial 
motor vehicle safety.'' 49 U.S.C. 31136(a). Thus, the ATA contends that 
State laws and regulations covering the same ground as Federal 
regulations promulgated under section 31136 are precisely what Congress 
had in mind when it enacted section 31141.
    The FMCSA agrees. The ``on commercial motor vehicle safety'' 
language of section 31141 mirrors that of section 31136, and by tying 
the scope of the Secretary's preemption authority directly to the scope 
of the Secretary's authority to regulate the CMV industry, the Agency 
believes that Congress provided a framework for determining whether a 
State law or regulation is subject to section 31141. In other words, if 
the State law or regulation imposes requirements in an area of 
regulation that is already addressed by a regulation promulgated under 
31136, then the State law or regulation is a regulation ``on commercial 
motor vehicle safety.'' Because California's MRB Rules impose the same 
types of restrictions on CMV driver duty and driving times as the 
FMCSA's HOS regulations, which were enacted pursuant to the Secretary's 
authority in section 31136, they are ``regulations on commercial motor 
vehicle safety.'' Thus, the MRB Rules are ``State law[s] or 
regulation[s] on commercial motor vehicle safety,'' and are subject to 
review under section 31141.
    In the 2008 Decision, the Agency narrowly construed section 31141 
to conclude that because the MRB Rules are ``one part of California's 
comprehensive regulations governing wages, hours and working 
conditions,'' and apply to employers in many other industries in 
addition to motor carriers, the provisions are not regulations ``on 
commercial motor vehicle safety,'' and, thus, were not within the scope 
of the Secretary's preemption authority. The FMCSA has reconsidered 
this conclusion. There is nothing in the statutory language or 
legislative history that supports such a limitation. To the contrary, 
the statutory language refers only to a ``State law or regulation on 
commercial motor vehicle safety,'' and, the legislative history of the 
1984 Act clearly expresses Congress's intent that ``there be as much 
uniformity as practicable whenever a Federal standard and a State 
requirement cover the same subject matter.'' See S. Rep. No. 98-424, at 
14 (1984).
    The 2008 Decision rejected the claim, made by the petitioners in 
that case, that ``the FMCSA has power to preempt any state law or 
regulation that regulates or affects any matters within the agency's 
broad Congressional grant of authority.'' 73 FR at 79206. The FMCSA 
stated that if it ``were to take such a position, any number of State 
laws would be subject to challenge.'' The Agency observed, for example, 
that ``it is conceivable that high State taxes and emission controls 
could affect a motor carrier's financial ability to maintain compliance 
with the . . . FMCSRs,'' and doubted that the FMCSA has ``the authority 
to preempt State tax or environmental laws.'' 73 FR at 79206. The 
FMCSA, however, has determined that its prior position was 
unnecessarily restrictive and that it can determine that the MRB Rules 
are subject to section 31141 preemption without deciding whether 
section 31141 covers State tax laws, environmental laws, or other laws 
that ``affect'' CMV safety. As explained above, the MRB Rules impose 
the same types of work limitation requirements as the FMCSA's HOS 
regulations; thus, just as the HOS regulations are ``regulations on 
commercial motor vehicle safety'' prescribed under section 31136, the 
California MRB Rules are ``law[s] or regulation[s] on commercial motor 
vehicle safety'' covered by section 31141. This determination does not 
rely on a broad interpretation of section 31141 as applicable to any 
State law that ``affects'' CMV safety.\6\
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    \6\ The 2008 Decision also rejected the petitioners' claims that 
the California MRB Rules undermined safety, and that the rules were 
subject to preemption because they ``prevent carriers from 
maximizing their employees' driving and on-duty time.'' 73 FR 79204, 
79205 n.3, 79206. It does not appear that the Agency relied on these 
points when determining that the MRB Rules were not regulations ``on 
commercial motor vehicle safety.'' To the extent the points are 
relevant to the other portions of this analysis, they are discussed 
below.
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    California's Labor Commissioner, California's Attorney General, the 
American Association for Justice (AAJ), the International Brotherhood 
of Teamsters, and other commenters who oppose the ATA's petition argue 
that the Agency's analysis and conclusions in the 2008 Decision and in 
the Dilts amicus brief were correct, and that FMCSA should not deviate 
from its legal position therein regarding the scope of the Secretary's 
preemption authority under section 31141.
    Although the commenters opposing preemption accurately summarize 
the Agency's prior position on whether California's MRB Rules are 
preempted, the Agency's position need not forever remain static. It is 
well-settled that ``[a]n initial agency interpretation is not instantly 
carved in stone''; on the contrary, an agency must consider varying 
interpretations and the wisdom of its policy on a continuing basis. See 
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837, 863-64 (1984). When an agency changes course, it must provide 
a ``reasoned analysis for the change.'' See Motor Vehicle Manufacturers 
v. State Farm, 463 U.S. 29, 42 (1983). The Supreme Court has rejected 
the idea that an agency interpretation requires greater justification, 
or is subject to more searching review, merely because it represents a 
change from the agency's prior view. FCC v. Fox Television Stations, 
Inc., 556 U.S. 502, 514-16 (2009). Instead, an agency advancing a 
changed interpretation must acknowledge the change, and provide a 
reasoned explanation of why the agency believes the new interpretation 
is better than the old. Ibid. Here, the FMCSA has reconsidered its 
interpretation of section 31141 as applied to California's MRB Rules, 
and this decision explains the

[[Page 67474]]

basis for reconsidering its previous position.\7\
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    \7\ An agency may also be required to consider whether ``its 
prior policy has engendered serious reliance interests that must be 
taken into account.'' Fox, 556 U.S. at 515. Here, no commenter has 
argued that the FMCSA's prior position has ``engendered serious 
reliance interests,'' and the FMCSA is aware of no such interests. 
In any event, the existence of reliance interests would not change 
the FMCSA's view that California's MRB Rules are covered by section 
31141.
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    In her comments opposing the ATA's petition, the California Labor 
Commissioner argues:

    In the decade that the FMCSA has adhered to this position, 
Congress has failed to amend 49 U.S.C. 31141 to give the FMCSA the 
power to declare a wider range of State laws and regulations 
unenforceable. This Congressional inaction suggests the conclusion 
that FMCSA's views on the limited extent of its authority, as 
announced in 2008 and again in 2014, has the support of Congress.

    The Agency is unpersuaded by this argument. The Supreme Court has 
explained that ``Congressional inaction lacks persuasive significance 
because several equally tenable inferences may be drawn from such 
inaction . . . .'' Central Bank of Denver, N.A. v. First Interstate 
Bank of Denver, N. A., 511 U.S. 164, 187 (1994) (internal quotations 
omitted); see also Rapanos v. United States, 547 U.S. 715, 750 (noting 
that while the Supreme Court has ``sometimes relied on congressional 
acquiescence when there is evidence that Congress considered and 
rejected the `precise issue' presented before the Court,'' it does so 
only when there is ``overwhelming evidence of acquiescence'') (emphases 
in original). Here, the California Labor Commissioner presents no 
evidence that Congress has considered the appropriateness of the 2008 
Decision's determination that the California MRB Rules were not covered 
by section 31141. Thus, what the California Labor Commissioner portrays 
as the ``support of Congress'' ``should more appropriately be called 
Congress' failure to express any opinion.'' Ibid.
    The FMCSA's departure from the 2008 Decision is also supported by 
intervening events. In December 2011, approximately 3 years after 
issuing the 2008 Decision, the FMCSA revised the Federal HOS 
regulations. Among other changes, the 2011 final rule generally 
prohibits CMV drivers from operating property-carrying commercial motor 
vehicles if more than eight hours have passed since the end of the 
driver's last off-duty or sleeper-berth period of at least 30-minutes, 
commonly referred to as a ``rest period.'' 76 FR 81134, 81186; 49 CFR 
395.3(a)(3)(ii). Prior to the 2011 revisions, the Federal HOS 
regulations contained no provisions requiring a mandatory rest period. 
The Agency cited the Secretary's regulatory authority under section 
31136 and 49 U.S.C. 31502 as the legal basis for implementing the 
Federal HOS 30-minute off-duty or sleeper berth rest period. The 
Federal HOS regulations, including the required 30-minute rest period 
provision, are unquestionably rules ``on commercial motor vehicle 
safety'' under section 31136, and are part of the baseline against 
which Congress instructed the Agency to compare State rules under 
section 31141. Because the MRB Rules govern the same subject matter as 
the Federal HOS regulations, the FMCSA considers them to be rules ``on 
commercial motor vehicle safety'' as applied to property-carrying CMV 
drivers that are within the Agency's HOS jurisdiction and, thus, they 
are subject to preemption review under section 31141.
    As the California Employment Lawyers Association pointed out, the 
Federal HOS regulations are within the Secretary's authority because 
they ``would improve highway safety and the health of CMV drivers.'' 
The Agency notes that in her comments on this petition, the California 
Labor Commissioner acknowledged that the MRB Rules improve driver and 
public safety stating, ``It is beyond doubt that California's meal and 
rest period requirements promote driver and public safety.'' In 
addition, the ATA argues in a supplemental submission, that the Labor 
Commissioner made a similar statement in a preemption proceeding 
concerning the MRB Rules before the Pipeline and Hazardous Materials 
Administration. 83 FR 47961. There, she stated that the MRB Rules are 
``designed to ensure that workers have sufficient rest and break-time 
in order to perform their jobs safely.'' The Agency applauds 
California's commitment to driver and public safety; however, the Labor 
Commissioner admits that the MRB Rules are, in fact, laws on CMV 
safety. Thus, the Labor Commissioner's statements are new information, 
received well after the 2008 Decision, that further demonstrate that 
the MRB Rules are rules ``on motor carrier safety'' and therefore fall 
squarely within the scope of the Secretary's preemption authority.
    Finally, the AAJ commented that the ATA's petition is inconsistent 
with its previous position in the ATA's own amicus brief in Dilts. 
Specifically, the AAJ contends that the ATA took the position in Dilts 
that there was no evidence that the break requirements at issue were 
intended to address motor vehicle safety, and that the break 
requirements are not responsive to any such concerns. But the question 
of whether the ATA is taking inconsistent positions is not relevant to 
the FMCSA's analysis. While the FMCSA is considering this matter upon a 
petition, it is not adjudicating a dispute between private parties; 
instead, it is exercising its own statutory responsibility to review 
State laws or regulations. Thus, the FMCSA must reach what it believes 
to be the correct legal conclusion in the matter presently before it, 
regardless of the ATA's prior positions. The FMCSA notes, moreover, 
that the prior ATA argument cited by the AAJ related to 49 U.S.C. 
14501(c)(2)(A), which provides that the FAAAA's preemption provision 
``shall not restrict the safety regulatory authority of a State with 
respect to motor vehicles''; this language does not necessarily have 
the same scope as section 31141.\8\
---------------------------------------------------------------------------

    \8\ Sections 14501(c)(2)(A) and 31141 do not necessarily have 
the same scope because the two provisions were enacted to achieve 
different purposes. Section 14501(c)(2)(A) serves to ensure that the 
preemption of States' economic authority over motor carriers of 
property not infringe upon a State's exercise of its traditional 
police power over safety. See City of Columbus v. Ours Garage & 
Wrecker Serv., Inc., 536 U.S. 424, 426 (2002). As explained above, 
however, Congress enacted the 1984 Act, which includes section 
31141, to ensure that there be as much uniformity as practicable 
whenever a Federal standard and a State requirement cover the same 
subject matter.
---------------------------------------------------------------------------

II. The MRB Rules Are ``Additional to or More Stringent Than'' the 
Agency's HOS Regulations Within the Meaning of Section 31141

    Having concluded that the California MRB Rules are rules ``on 
commercial motor vehicle safety,'' under section 31141, the Agency next 
must decide whether the MRB Rules have the same effect as, are less 
stringent than, or are additional to or more stringent than the Federal 
HOS regulations. 49 U.S.C. 31141(c)(1). The ATA and the SCRA argue that 
the MRB Rules are ``additional to or more stringent than'' the Agency's 
HOS regulations because they impose additional obligations. As 
discussed more fully below, the FMCSA agrees. The MRB Rules require 
employers to provide CMV drivers with more rest breaks than the Federal 
HOS regulations, and they allow a smaller window of driving time before 
a break is required. For these reasons, the MRB Rules do not have the 
same effect and are not less stringent than the Federal HOS 
regulations, and instead are additional to or more stringent than the 
HOS regulations.
    Although the California Labor Commissioner contends that the ATA

[[Page 67475]]

exaggerates the requirements imposed by the MRB Rules, she does not 
deny that the MRB Rules provide for more breaks than the HOS 
regulations. She argues, however, that the MRB Rules are not 
``additional to or more stringent than'' the Agency's HOS regulations, 
within the meaning of 49 U.S.C. 31141(c), because under the MRB Rules, 
employers are obligated to either provide required meal and rest 
periods, or pay higher wages. She further explains that while 
California permits employers to pay higher wages as an alternative to 
complying with the MRB Rules, FMCSA's HOS regulations contain a flat 
prohibition on driving after more than 8 hours on duty without a 30-
minute rest period, and thus the MRB Rules are not more stringent that 
the HOS regulations. Some organizations and drivers who oppose the 
ATA's petition echo this argument.
    The Agency disagrees with this position. 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) 
(emphasis added). The California Supreme Court has held--in a decision 
not mentioned by the Labor Commissioner--that section 226.7 ``does not 
give employers a lawful choice between providing either meal and rest 
breaks or an additional hour of pay,'' and that ``an employer's 
provision of an additional hour of pay does not excuse a section 226.7 
violation.'' Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160, 1168 
(Cal. 2012) (emphasis in original). This ruling is not undercut by the 
two cases cited by the Labor Commissioner. While it is true that the 
California Supreme Court stated in Augustus v. ABM Security Services, 
Inc. that ``employers who find it especially burdensome to relieve 
their employees of all duties during rest periods'' could provide the 
extra hour of pay, it emphasized that this ``option[ ] should be the 
exception rather than rule, to be used'' only in the context of 
``irregular or unexpected circumstances such as emergencies.'' 385 P.3d 
823, 834 & n.14 (Cal. 2016). And while the California Supreme Court in 
Murphy v. Kenneth Cole Prods., Inc. held that the extra hour of pay is 
``wages'' for statute of limitations purposes, that ruling predated 
Kirby by six years, and is not inconsistent with Kirby's holding that 
an employer does not have a lawful choice to ignore the MRB Rules. 
Indeed, the California Supreme Court in Kirby specifically noted that 
its decision was consistent with Murphy. See Kirby, 274 P.3d at 1168 
(``[T]o say that a section 226.7 remedy is a wage . . . is not to stay 
that the legal violation triggering the remedy is nonpayment of wages. 
As explained above, the legal violation is nonprovision of meal or rest 
breaks . . . .''). Accordingly, the MRB Rules do not give employers the 
option of either complying with the requirements or providing penalty 
pay. The MRB Rules therefore are ``additional to or more stringent 
than'' the HOS regulations.\9\
---------------------------------------------------------------------------

    \9\ Even if employers did have an option of either complying 
with the MRB Rules or paying a penalty, the MRB Rules would still be 
``additional to or more stringent than'' the HOS regulations, since 
the MRB Rules would either: (1) Require that employers provide 
breaks not required by the HOS regulations; or (2) pay a penalty not 
required by the HOS regulations.
---------------------------------------------------------------------------

III. The MRB Rules Have No Safety Benefits That Extend Beyond Those 
Provided by the FMCSRs

    Because the MRB Rules are more stringent than the Federal HOS 
regulations, they may be enforced unless the Agency also decides either 
that the MRB Rules have no safety benefit, that they are incompatible 
with the HOS regulations, or that enforcement of the MRB Rules would 
cause an unreasonable burden on interstate commerce. 49 U.S.C. 
31141(c)(4). The Agency need only find that one of the aforementioned 
conditions exists to preempt the MRB Rules. 49 U.S.C. 31141(c)(4).
    Section 31141 authorizes the Secretary to preempt the MRB Rules if 
they have ``no safety benefit.'' 49 U.S.C. 31141(c)(4)(A). The FMCSA 
interprets this language as applying to any State law or regulation 
that provides no safety benefit beyond the safety benefit already 
provided by the relevant FMCSA regulations. While the plain statutory 
language could be read as applying only to State laws or regulations 
with no safety benefit at all, such a reading would render section 
31141(c)(4)(A) a nullity, since every State law or regulation that is 
``additional to or more stringent'' than an FMCSA regulation 
necessarily provides at least the safety benefits of the FMCSA 
regulation. A State law or regulation need not have a negative safety 
impact to be preempted under section 31141(c)(4)(A), although a law or 
regulation with a negative safety impact would be preempted.
A. Fatigue
    The ATA and the SCRA argue that imposition of California's MRB 
Rules on CMV drivers constitutes a threat to highway safety by 
specifying breaks at arbitrary times rather than when they are most 
needed. In this regard, the ATA contends that having to take multiple 
breaks at arbitrary intervals when they are not needed is a strong 
disincentive for a CMV driver to take breaks when they are needed. In 
addition, the ATA argues that ``by consuming significant amounts of 
what would otherwise be productive time permitted under the federal HOS 
rules, the California rules extend a driver's day significantly. '' 
\10\
---------------------------------------------------------------------------

    \10\ To illustrate this point, the ATA cites the example of a 
driver who starts her day at 7 a.m. Operating solely under the MRB 
Rules, the driver would have a required 10-minute break as close as 
practicable to 9 a.m., a 30-minute break some time before noon, a 
second 10-minute break as close as practicable to 1 p.m., and 
another 30-minute break some time before 5 p.m., for a total of 80 
minutes. The ATA estimated that a driver would also spend an 
additional 5 minutes on either side of a break to find parking and 
return to the highway for an additional 30 minutes. Considering the 
amount of break time required by the MRB Rules, the ATA estimates 
that a driver's work day would have to be extended by 80 minutes to 
accomplish the same amount of work.
---------------------------------------------------------------------------

    The Labor Commissioner, the AAJ, the Transportation Trades 
Department/AFL-CIO (TTD), and other commenters dispute the ATA's 
argument that the MRB Rules provide no safety benefit. Commenters in 
opposition to the petition overwhelmingly argue that the MRB Rules 
benefit highway safety because they combat driver fatigue. The Labor 
Commissioner, Worksafe, and the AAJ cite studies by the National 
Transportation Safety Board, academia, and others to show that CMV 
drivers' safety performance can easily deteriorate due to fatigue.
    The FMCSA need not resolve the arguments by the ATA and the SCRA 
that the MRB Rules pose a threat to highway safety with regard to 
fatigued driving, because the Agency determines that the MRB Rules 
provide no safety benefit beyond the safety benefit already provided by 
the Federal HOS regulations and other provisions of the FMCSRs. Here, 
the MRB Rules generally require that drivers be given a 30-minute meal 
break every five hours, as well as an additional 10-minute rest break 
every four hours. The FMCSRs require drivers to take a 30-minute rest 
break within 8 hours of coming on duty, 49 CFR 395.3(a)(3)(ii), and 
they provide for rest by prohibiting a driver from operating a CMV if 
she feels too fatigued or is otherwise unable to safely drive. 49 CFR 
392.3. Additionally, employers are prohibited from coercing a driver 
too fatigued to operate the CMV safely to remain behind the wheel or 
otherwise violate the FMCSRs. 49 CFR 390.6. The Agency appreciates the 
dangers of fatigued driving. As the ATA pointed out, the FMCSRs allow 
the driver a 30-minute rest when needed at any time

[[Page 67476]]

during an 8-hour driving interval, as well as other breaks, of no set 
time limit. The FMCSRs, moreover, prohibit drivers of property-carrying 
vehicles from driving more than 11 hours during a 14-hour shift, 
require them to take at least 10 hours off between 14-hour shifts, and 
prohibit them from exceeding certain caps on weekly on-duty time. 49 
CFR 395.3. California's additional requirements that breaks be of 
specific durations, and occur within specific intervals, do not provide 
additional safety benefits.
    In establishing the Federal rest break requirement in 2011, the 
Agency adjusted its initial proposal from requiring the rest break to 
occur within the first 7 hours of a work shift in response to 
``numerous comments about the breaks, primarily from team drivers.'' 76 
FR 81134, 81145. After balancing the need to prevent excessive hours of 
continuous driving with a driver's need for flexibility in scheduling a 
rest break, the Agency ultimately determined that an 8-hour driving 
window was appropriate to provide ``drivers [with] great flexibility in 
deciding when to take the break . . . [and to] make it significantly 
easier for team drivers to coordinate their sleeper-berth periods and . 
. . enable drivers who do not drive late into their work shift to 
dispense with a break altogether.'' 76 FR 81134, 81146. Here, the MRB 
Rules abrogate the flexibilities the Agency purposefully built into the 
Federal HOS Rules regarding when a driver is required to take a 30-
minute rest period, and they graft onto the Federal HOS regulations a 
requirement for additional 10-minute rest breaks. While the Labor 
Commissioner cites studies, statistics and recommendations from the 
NTSB, academia, and the FMCSA tending to show that drowsy driving 
causes crashes, the Agency has reached the same conclusion, hence the 
off-duty break requirement in the HOS regulations and the explicit 
prohibition against fatigued driving. Therefore, FMCSA determines that 
the MRB Rules do not provide a safety benefit not already realized 
under the FMCSRs.
B. Parking
    The ATA argues the MRB Rules also negatively impact safety by 
arbitrarily forcing trucks off the road more frequently, thus 
contributing to a critical shortage of safe truck parking. In support, 
the ATA cites of number recent of studies that were published after the 
Agency's 2008 Decision and the 2014 Dilts amicus brief. In this regard, 
Congress enacted ``Jason's Law'' in 2012 as part of the Moving Ahead 
for Progress in the 21st Century Act, Public. Law. 112-141 1401(c), 
which required the DOT to ``evaluate the capability of [each] State to 
provide adequate parking and rest facilities for commercial motor 
vehicles engaged in interstate transportation.'' The Federal Highway 
Administration (FHWA) issued the report in 2015, which stated:

    Truck parking shortages are a national safety concern. An 
inadequate supply of truck parking spaces can result in two negative 
consequences: First, tired truck drivers may continue to drive 
because they have difficulty finding a place to park for rest and, 
second, truck drivers may choose to park at unsafe locations, such 
as on the shoulder of the road, exit ramps, or vacant lots, if they 
are unable to locate official, available parking.

    See Federal Highway Administration, Jason's Law Truck Parking 
Survey Results and Comparative Analysis 1-2 (Aug. 2015) (Jason's Law 
Report), available at https://ops.fhwa.dot.gov/freight/infrastructure/truck_parking/jasons_law/truckparkingsurvey/jasons_law.pdf.
    The FHWA's Jason's Law Report also found that ``[m]ore than 75 
percent of truck drivers . . . reported regularly experiencing problems 
with finding safe parking locations when rest was needed,'' and that 
``[n]inety percent reported struggling to find safe and available 
parking during night hours.'' Ibid. at viii. The report further noted 
that nearly 80% of drivers reported that they have difficulty finding 
parking at least once per week. Ibid. at 66. Additionally, the Jason's 
Law Report showed that as many as 94% of State motor carrier safety 
officials surveyed identified locations used by commercial drivers for 
unofficial or illegal parking. Ibid. at 60. Of those locations, over 
three quarters were highway ramps or shoulders, Ibid. at 61, and the 
vast majority of unofficial parking happened at night or in the early 
morning hours, Ibid. at 62.
    The ATA also cited other recent studies and statistics showing the 
negative safety impacts associated with inadequate parking for CMVs:
     A 2016 report finding that 83.9% of surveyed drivers park 
in an unauthorized location at least once each week, and nearly half--
48.7%--three or more times per week. C. Boris et al., Managing Critical 
Truck Parking Case Study--Real World Insights from Truck Parking 
Diaries (2016), available at http://atri-online.org/wp-content/uploads/2016/12/ATRI-Truck-Parking-Case-Study-Insights-12-2016.pdf.
     A 2016 survey of drivers by the Washington State 
Department of Transportation showing that more than 60% of drivers 
reported that at least three times per week they drive while fatigued 
because they are unable to find adequate parking when they need to 
rest. WSDOT Truck Parking Survey (Aug. 2016), available at http://www.wsdot.wa.gov/NR/rdonlyres/D2A7680F-ED90-47D9-AD13-4965D6D6BD84/114207/TruckParkingSurvey2016_web2.pdf.
     A 2017 report prepared for the FHWA and the Oregon 
Department of Transportation that noted that the safety hazard of the 
truck parking shortage in Oregon ``increases closer to the California 
border,'' where ``more crashes are occurring,'' likely as ``a result of 
encountering troubles finding safe and adequate parking in Southern 
Oregon.'' S. Hernandez & J. Anderson, Truck Parking: An Emerging Safety 
Hazard to Highway Users (July 2017).
    In the 2014 Dilts amicus brief, the Agency opined that long haul 
CMV drivers would be using interstates or other major highways where 
periodic rest stops capable of accommodating a large truck are 
available. However, the studies cited by the ATA, of which the Agency 
did not have the benefit in 2014, show that the shortage of parking for 
CMVs continues to be a pressing highway safety issue. The studies cited 
by the ATA demonstrate that inadequate truck parking will often mean 
that drivers face a choice between driving while fatigued or parking 
where their vehicles will present a hazard for other motorists. Indeed, 
as the Washington State Department of Transportation Study shows, of 
those sampled, most drivers reported spending more time behind the 
wheel driving fatigued due to a lack of safe parking. The Jason's Law 
Report also demonstrates that drivers will have to resort to unsafe, 
unauthorized locations--such as shoulders and ramps--where they present 
a serious hazard to other highway users due to the shortage of safe, 
authorized parking spaces. The report explained that ``[v]ehicles 
parked on the shoulders . . . are a serious potential hazard to other 
motorists because they are fixed objects within the roadway cross-
section that are unprotected by a barrier or horizontal buffer area.'' 
See Jason's Law Report at 7. In addition, ``[w]hen trucks park on 
shoulders or ramps . . . , maneuvering in and out of traffic . . . 
poses safety risks to the truck driver and other vehicles due to the 
mix of higher speed traffic and the slower speeds of the trucks in and 
out of these areas.'' Ibid.
    Further illustrating this point, some commenters have also 
described how the shortage of available parking for CMVs has resulted 
in drivers having to park in locations that pose a potential

[[Page 67477]]

safety hazard. In this regard, the Arkansas Trucking Association, 
Covenant Transport, Hercules Forwarding, International Foodservice 
Distributors Association, National Restaurant Association, and the 
Sysco Corporation commented that their drivers have to park at roadside 
increasing the risk of motorist accidents and injuries when safer 
parking options are unavailable due to the CMV parking shortage. In 
addition, Dealer's Choice Truckaway System, the International Warehouse 
Logistics Association, Tiger Lines, CRST International, and United Road 
specifically state that the shortage of available CMV parking in 
California results in their drivers having to park at unsafe locations. 
The International Warehouse Logistics Association explained that a 
member driver was killed when his CMV was struck by another vehicle 
after he parked on the shoulder of a roadway to take a mandatory rest 
break. The National Fraternal Order of Police (NFOP) also commented 
that ``because of a scattered patchwork of State rules on rest breaks 
and hours of service, some truck drivers have to take breaks in places 
that are not optimal for the public or highway.'' The NFOP continued, 
``Having one clear and enforceable Federal standard in place for 
commercial drivers engaged in interstate commerce is important from any 
safety standpoint, especially on our nation's highways.'' The Truckload 
Carriers Association cited a recent survey where 95% of 5,400 surveyed 
drivers stated that they park in unauthorized areas when legal parking 
is not available. See Heavy Duty Trucking, August 29, 2018, https://www.truckinginfo.com/312029/80-of-drivers-say-elds-make-finding-parking-harder.
    The California Employment Lawyers Association commented that the 
studies the ATA relies upon fail to show causation, stating, ``Despite 
the fact that truckers taking rest breaks contribute to the demand for 
parking, the studies are clear that the cause of the problem is a lack 
of parking, not State meal and rest break regulations.'' This argument 
is unpersuasive. Under the Federal HOS regulations, a CMV driver would 
be required to stop and park once during an 8-hour driving period; 
however, during a shift of more than 6 and up to 10 hours, the MRB 
Rules would, at a minimum, require drivers to stop and park 3 times, 
even though they may not be fatigued.\11\ Because there is a current 
shortage of available parking for CMVs, in order to comply with the MRB 
Rules drivers may resort to parking at roadside or at an unauthorized 
location if the break does not coincide with a scheduled stop, and the 
Jason's Law Report illustrates the inherent dangers to the general 
public and the driver associated with CMV roadside parking. In fact, 
the FMCSA discussed the safety impacts associated with the parking 
shortage for CMVs in a 2015 decision granting the SCRA an exemption 
from the HOS rest break requirement for oversized loads, stating:
---------------------------------------------------------------------------

    \11\ Drivers working shifts of more than six hours up to ten 
hours are entitled to two 10-minute rest periods and one 30-minute 
meal break. See 8 CCR 11090 (11) and (12); Brinker Rest. Corp. v. 
Superior Court, 273 P.3d 513, 529-30, 536-38 (Cal. 2012).

    It is also true that parking shortages affect drivers of many 
types of vehicle . . . . No matter how well marked, trucks parked at 
roadside, especially at night, are too often mistaken for moving 
vehicles and struck, frequently with fatal consequences, before an 
---------------------------------------------------------------------------
inattentive driver can correct his mistake. 80 FR 34957.

    The Agency reiterated this point in a 2016 decision granting the 
SCRA a second exemption from the HOS rest break requirements. 81 FR 
75727. The cited studies need not show that the CMV parking shortage is 
a result of the MRB Rules. Irrespective of the cause, the fact remains 
that there is a shortage of safe parking for CMVs, and the Agency 
believes that requiring CMV drivers to make triple the number of stops 
during a 10-hour shift under the MRB Rules compared to the Federal HOS 
rules, when there is a demonstrated inability for some drivers to 
safely park, has negative safety implications.
    The California Labor Commissioner commented, ``If parking is a 
problem, surely keeping fatigued drivers on the road because there is 
nowhere to park is not the answer.'' The Agency agrees with the Labor 
Commissioner's general premise; in fact, the FMCSRs prohibit a driver 
from operating a CMV when too fatigued to drive safely. However, as 
explained above, the Agency believes that the increase in required 
stops to comply with the MRB Rules, when the driver may not be 
fatigued, will exacerbate the problem of drivers parking at unsafe 
locations.

IV. The MRB Rules Are Incompatible With the Federal HOS Regulations

    As described above, the MRB Rules must be preempted if the Agency 
decides that they are ``incompatible with the regulation prescribed by 
the Secretary.'' 49 U.S.C. 31141(c)(4)(B). Here, the Agency determines 
that the MRB Rules are incompatible with the Federal HOS regulations.
    The legislative history of the 1984 Act clearly expresses 
Congress's intent that ``there be as much uniformity as practicable 
whenever a Federal standard and a State requirement cover the same 
subject matter.'' See S. Rep. No. 98-424, at 14 (1984). To that end, in 
determining whether a State law or regulation is compatible, the Agency 
applies the definition of ``compatible or compatibility'' in accordance 
with the Agency's regulations implementing the Motor Carrier Safety 
Assistance Program (MCSAP), which state, ``Compatible or Compatibility 
means that State laws and regulations applicable to interstate commerce 
and to intrastate movement of hazardous materials are identical to the 
FMCSRs and the HMRs or have the same effect as the FMCSRs . . . .'' 49 
CFR 355.5.
    The MCSAP was first authorized in sections 401-404 of the Surface 
Transportation Assistance Act of 1982 (STAA). Public Law 97-424, 96 
Stat. 2097, 2154. Section 402 of the STAA authorized the Secretary to 
make grants to States for the development or implementation of programs 
for the enforcement of State rules, regulations, standards, and orders 
applicable to commercial motor vehicle safety that were compatible with 
Federal requirements. The 1984 Act subsequently authorized the 
Secretary to preempt incompatible State laws and regulations on 
commercial motor vehicle safety under section 31141. The Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA), Public Law 102-
240, 105 Stat. 1914, reauthorized the MCSAP, and in 1992, the FHWA, the 
FMCSA's predecessor agency, issued a final rule to implement revisions 
to the MCSAP as required by the ISTEA, including adopting a definition 
for ``compatible or compatibility.'' 57 FR 40946. The final rule stated 
that not only did it serve to implement the requirements of the ISTEA, 
it also explained:

    This rule does implement express preemption provisions contained 
in the MCSA of 1984. The preemptive authority therein furthers the 
goal of national uniformity of commercial motor vehicle safety 
regulations and their enforcement, as intended by Congress. This 
intention was evidenced in the STAA of 1982, creating the MCSAP; the 
review of State commercial motor vehicle safety laws and regulations 
and determinations of compatibility required by the MCSA of 1984; 
and the intrastate compatibility provision in section 4002 of the 
ISTEA.

    Because the FHWA promulgated the MCSAP regulations at 49 CFR part 
355 to implement the compatibility provision in section 4002 of the 
ISTEA

[[Page 67478]]

and the preemption provisions of the 1984 Act, the Agency believes that 
49 CFR 355.5 sets forth the appropriate test for determining whether a 
State law or regulation is compatible under section 31141. The Agency 
notes that the compatibility test under section 355.5 is different from 
``conflict preemption'' under the Supremacy Clause, where conflict 
arises when it is impossible to comply with both the State and Federal 
regulations. Under the MCSAP regulations, the ability to comply with 
both the State law and the FMCSRs does not make the State law 
compatible.
    Here, both the ATA and the SCRA argue that the MRB Rules are not 
compatible with the HOS regulations; therefore, they may be preempted. 
In this regard, the ATA argues:

    The California rules are also incompatible with federal HOS 
rules. In the regulations it adopted ``[t]o provide guidelines for a 
continuous regulatory review of State laws and regulations,'' 49 CFR 
355.1(b), the Agency has defined ``[c]ompatible or compatibility'' 
to mean, in relevant part, ``that State laws and regulations 
applicable to interstate commerce . . . are identical to the FMCSRs 
. . . or have the same effect as the FMCSRs,'' Ibid. at Sec.  355.5 
(emphases added). The California break rules cannot meet this 
standard: They are indisputably not ``identical to'' the federal 
break rule, and their effect, as discussed above, is far different.

    The SCRA explains, ``The petitioners contend that [compatibility] 
should be interpreted to require [the provision at issue] not exactly 
to be identical, but almost identical in every meaningful way, so the 
state standard could be worded differently as long as it achieved 
identical requirements.'' The SCRA goes on to argue that while 
California has taken steps to ensure its other regulations on motor 
carrier safety are compatible with the FMCSRs, it has failed to bring 
the MRB Rules into compatibility.
    The Agency agrees with the ATA and with the SCRA that the MRB Rules 
are incompatible with the Federal HOS regulations. As described above, 
the MRB Rules are more stringent than the Federal HOS regulations; 
therefore, the requirements are not identical. Not only do the MRB 
Rules require employers to provide CMV drivers with more rest breaks 
than the Federal HOS regulations, the timing requirements for rest 
periods under the MRB Rules provide less flexibility than the Federal 
HOS regulations. As described more fully above, the Agency determined 8 
hours was an appropriate window to require driver to take a 30-minute 
rest while providing great flexibility to do so. The MRB Rule's 
requirement that drivers be provided a 30-minute break every five 
hours, as well as an additional 10-minute rest break every four hours, 
significantly reduces the flexibilities the Agency built into the 
Federal HOS regulations, and they graft onto the Federal HOS rules 
additional required rest breaks that the Agency did not see fit to 
include. The MRB Rules therefore are not compatible with the Federal 
HOS regulations.

V. Enforcement of the MRB Rules Would Cause an Unreasonable Burden on 
Interstate Commerce

    The MRB Rules may not be enforced if the Agency decides that 
enforcing them ``would cause an unreasonable burden on interstate 
commerce.'' 49 U.S.C. 31141(c)(4)(C). Section 31141 does not prohibit 
enforcement of a State requirement that places an incidental burden on 
interstate commerce, only burdens which are unreasonable. In 
determining whether a State law poses an unreasonable burden on 
interstate commerce, it is well settled that the Agency should consider 
whether the burden imposed is clearly excessive in relation to the 
putative local benefits derived from the State law. See e.g., Pike v. 
Bruce Church, Inc., 397 U.S. 137, 142 (1970).
A. Decreased Productivity, Administrative Burden, and Costs
    The ATA contends that California's rules impose an unreasonable 
burden on interstate commerce because they ``entail an enormous loss in 
driver productivity by requiring carriers to provide far more off-duty 
time within a driver's duty window than the Agency has deemed necessary 
under the federal rules.'' According to its example described above, 
the ATA calculates that the MRB Rules would add 80 minutes of 
additional non-productive time to a driver's ten-hour shift beyond the 
required 30-minute rest period under the Federal HOS rules, thus 
reducing a driver's productivity by more than 13%. Citing its 2017 
American Trucking Trends statistics, the ATA contends that such a 
productivity reduction is a massive burden on interstate commerce 
because in 2016 trucks carried 70.6% of primary shipment domestic 
tonnage, accounting for 79.8% of the nation's primary shipment freight 
bill. See American Trucking Associations, American Trucking Trends 
2017. The ATA further cites statistics compiled by the Port of Oakland 
Seaport showing that California's three major container ports carry 
approximately 50% of the nation's total container cargo volume. See 
Port of Oakland Seaport, Facts and Figures, available at http://www.oaklandseaport.com/performance/facts-figures/ (``California's three 
major container ports carry approximately 50% of the nation's total 
container cargo volume''). Given California's share of the national 
economy and the role of its ports in interstate commerce, the ATA 
argues that the estimated loss of productivity due to the MRB Rules 
``would be more than enough to represent an unreasonable burden on 
interstate commerce.''
    The California Labor Commissioner argues that the ATA overstates 
the loss of productivity and that the ATA's example incorrectly 
calculated the amount of break time the MRB Rules would require and 
employer to provide a driver working a 10-hour shift. In this regard, 
the Labor Commissioner explained that, rather than the 4 breaks 
totaling 80 minutes calculated by the ATA, an employer would only be 
required to provide a driver working a 10-hour shift with 3 breaks 
totaling 50 minutes.\12\ The Labor Commissioner further argues that 
using the ATA's example, an employer would only have to provide two 10-
minute breaks beyond the 30 minute off-duty rest period already 
required by the Federal HOS regulations.
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    \12\ Citing Brinker, the Labor Commissioner explains that the 
MRB Rules require a first meal period no later than the end of an 
employee's fifth hour of work, and a second meal period no later 
than the end of the employee's 10th hour of work. Thus, in the ATA's 
example, the employer would only be required to provide one meal 
period no later than noon and two 10-minute rest breaks. While the 
ATA and the Labor Commissioner disagree about the specific 
hypothetical at issue, there are many hypotheticals where the 
California rules require significantly more break time than the 
Federal HOS regulations. In Brinker, the California Supreme Court 
explained, ``Employees are entitled to 10 minutes' rest for shifts 
from three and one-half to six hours in length, 20 minutes for 
shifts of more than six hours up to 10 hours, 30 minutes for shifts 
of more than 10 hours up to 14 hours, and so on.'' 273 P.3d at 529. 
Regarding meal breaks, the court explained, ``[S]ection 512 requires 
a first meal period no later than the end of an employee's fifth 
hour of work, and a second meal period no later than the end of an 
employee's 10th hour of work.'' Ibid. at 537. Thus, the MRB Rules 
would require an employer to provide an employee working 12 hours 
with three 10 minute breaks and two 30-minute meal breaks while the 
Federal HOS regulations would require one 30 minute off-duty break 
to be taken within the first 8 hours of driving time.
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    Other commenters opposing the petition, including the TTD and the 
California Employment Lawyers Association, argue that the ATA's 
arguments concerning lost productivity are speculative and unsupported. 
In this regard, the TTD states that the ATA's argument is nothing more 
than a `` `back of the napkin' speculation on lost productivity . . . 
[that] invokes the theoretical specter of damage to

[[Page 67479]]

interstate shipping without evidence.'' The California Employment 
Lawyers Association commented that the ATA's petition ``cannot cite any 
actual evidence of any burden they have caused on interstate commerce'' 
and that ``[u]nsupported conjecture is not a basis for finding 
preemption pursuant to section 31141(c)(4)-(5).''
    At the outset, the Agency acknowledges that the State of California 
has a legitimate interest in promoting driver and public safety, as the 
Labor Commissioner explained. However, the Federal HOS rules and the 
provisions in the FMCSRs relating to fatigued driving and employer 
coercion serve to promote that interest. The Agency does not dismiss as 
mere speculation the ATA's argument that the MRB Rules will result in 
decreased productivity. It is indisputable that the MRB Rules decrease 
each driver's available duty hours, as the Agency recognized in the 
Dilts amicus brief, as compared to the Federal HOS regulations. See 
Dilts Amicus Brief at 19. In addition, some commenters have provided 
information describing decreased productivity caused by the MRB Rules, 
thus bolstering the ATA's argument in this regard. For example, CRST 
International explained that its carriers move time sensitive freight 
from ports in California across the nation and, by forcing its drivers 
to shut down for breaks beyond those required by the Federal HOS 
regulations, the MRB Rules result in decreased productivity, greater 
fuel consumption, and increased emissions. In the same vein, The FedEx 
Corporation stated:

    The California rules have resulted in a costly loss to driver 
productivity by requiring more off-duty time for drivers than what 
is deemed necessary by federal rules. Though FedEx networks are 
carefully engineered to ensure the safe and efficient movement of 
customers' goods, the state-required breaks prevent Fed Ex companies 
from using efficient network designs to their full potential.

    The FedEx Corporation further explained that in order to take off-
duty breaks, the ``drivers must slow down, exit the roadway, find a 
safe and suitable location to park and secure their vehicles, and then 
exit the vehicle'' and that the company has to build additional time, 
up to 90 minutes, into the drivers' routes. Similarly, the National 
Retail Federation explained that a member company reported that due to 
the MRB Rules, the company's drivers in California had a 3% reduction 
in productivity compared to drivers in the balance of the country, 
which cost the company $1.5 million annually.
    Citing a recent study by the American Transportation Research 
Institute (ATRI) to determine the impact of California's MRB Rules on 
trucking productivity, New Prime commented:

    Under the ATRI study's methodology, GPS data was used to 
quantify the unproductive time associated with securing parking 
during prescribed meal and rest break periods. See ATRI, California 
Truck Parking Analysis (Oct. 2018). The ATRI study employed a sample 
of eleven truck parking areas in California. By tracking ten trucks 
with each of these truck stop areas, ATRI determined that, on 
average, it required 12.5 minutes of additional time to locate a 
spot and then to return to the highway for continued driving. Ibid. 
at 3. Applying ATRI's $66.65 average cost per hour to operate a 
commercial vehicle, each required stop comes at a price tag of 
$13.84 in direct costs.

    New Prime further explained that applying ATRI's findings to its 
business, complying with the MRB Rules it could equate to an annual 
cost of more than $1.8 million, assuming 180 of the company's trucks 
had an average of two break stops per day, to be borne by New Prime and 
its independent contractor drivers. The FMCSA acknowledges that even 
without the MRB Rules, many drivers would take breaks beyond those 
required by the HOS regulations. It is nevertheless clear that the MRB 
Rules require drivers to take more breaks than they otherwise would, 
and may require those breaks to occur at times they otherwise would not 
occur.
    In addition to decreased productivity resulting from the MRB Rules, 
some commenters have also provided information about the costs and the 
administrative burden associated with complying with the MRB Rules. In 
this regard, C.R. England explained that the company regularly 
considers whether market forces justify the costs associated with 
conducting interstate commercial business in California, and explained 
that the MRB Rules have:

    [R]esulted in additional compliance costs such as additional 
administrative head count, additional operations headcount, 
adjustments to the timing and costs of freight delivery and 
logistics, and costs associated with outside vendors and internal 
programming and product development, among other things. In 
addition, the ever complicated and onerous regulatory and legal 
framework in California, including these break rules, results in 
significant legal fees and costly litigation.

    Similarly, Joval Transportation claims to have stopped conducting 
business in California due to the excessive regulations. The FedEx 
Corporation commented, ``California rules on meal periods and rest 
breaks have required FedEx companies to revise routes, as well as 
compensation plans and policies, at a great operational cost . . . We 
have been forced to lengthen routes and driver workdays to accommodate 
compliant break times and locations.''
    Based on the numerous comments received, the FMCSA concludes that 
the MRB Rules impose significant and substantial costs stemming from 
decreased productivity and administrative burden.
B. Cumulative Effect of the MRB Rules and Other States' Similar Laws
    Section 31141 does not limit the Agency to looking only to the 
State whose rules are the subject of a preemption determination. The 
FMCSA ``may consider the effect on interstate commerce of 
implementation of that law or regulation with the implementation of all 
similar laws and regulations of other States.'' 49 U.S.C. 31141(c)(5). 
Here, the ATA argues that the Agency should consider what the 
cumulative effect would be if all States implemented rules similar to 
California's MRB Rules. In this regard, the ATA states, ``[T]he 
proliferation of rules like California's in other states, applied to 
commercial drivers working in interstate commerce, would increase the 
associated freight productivity loss enormously, and would represent an 
even larger burden on interstate commerce.''
    To date, 20 States in addition to California regulate, in varying 
degrees, meal and rest break requirements, as the National Conference 
of State Legislators, the Center for Justice and Democracy, and other 
commenters have pointed out.\13\ For example, Oregon requires employers 
to provide meal periods of not less than 30 minutes to non-exempt 
employees who work 6 or more hours in one shift and a 10-minute rest 
period for every 4 hours worked.\14\ See Or. Admin. R. 839-020-0050. In 
the State of Washington, employers are required to provide non-exempt, 
nonagricultural employees a meal break of 30 minutes

[[Page 67480]]

or more for every 5 hours worked and a rest break of 10 minutes or more 
for every 4 hours worked.\15\ See WAC 296-126-092. The State of Nevada 
requires employers to provide nonexempt employees a 30-minute meal 
period when working a continuous eight hours and a 10-minute break for 
each four (4) hours worked or major fraction thereof.\16\ See NRS 
608.019; NAC 608.145.
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    \13\ According to the National Conference of State Legislators, 
the following States have meal and rest laws: California, Colorado, 
Connecticut, Delaware, Illinois, Kentucky, Maine, Maryland, 
Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, 
North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, 
and West Virginia.
    \14\ In Oregon, no meal period is required if the shift is less 
than 6 hours, additional meal periods are required to be provided to 
employees who work 14 hours or more. If the shift is less than seven 
hours, the meal period must commence between two and five hours from 
the beginning of the shift. If the work period is more than seven 
hours, the meal period between three and six hours from the 
beginning of the shift. These rest and meal period requirements 
apply to employees 18 years of age and older, and Oregon's rest and 
meal period requirements specific to minors are found at OAR 839-
021-0072.
    \15\ In Washington, the meal period must commence between two 
and five hours from the beginning of the shift. The rest break must 
commence no later than the end of the third hour of the shift. WAC 
296-126-092
    \16\ Nevada requires one 10-minute break if the employee works 
between 3\1/2\ and 7 hours; two 10-minute breaks if the employee 
works between 7 and 11 hours; three 10-minute breaks if the employee 
works between 11 and 15 hours; or four 10-minute breaks if the 
employee works between 15 and 19 hours. See NAC 608.145(a)-(d).
---------------------------------------------------------------------------

    Here, the diversity of State regulation of required meal and rest 
breaks for CMV drivers has resulted in a patchwork of requirements, and 
several commenters have described the difficulty navigating them. In 
this regard, the American Association of Bakers stated that its member 
companies and drivers who are part of regional distribution networks 
have had to create ``elaborate schedules to remain in compliance with 
separate meal and rest break rules that are far less flexible'' than 
the Federal HOS regulations. C.R. England provided a map showing the 
patchwork of State-mandated break laws that a driver could encounter on 
one or more long-haul trips that span the country, and stated that 
complying with disparate State laws in this regard was costly and time 
consuming. The National Association of Wholesaler-Distributors 
commented that one of its member companies that operates in six States 
must spend ``several thousand dollars annually simply to track the 
differences in [rest break] rules for the states in which they 
operate.'' Other commenters, such as the Association of American 
Railroads, Motor Carriers of Montana, New Prime, and the National 
Association of Small Trucking Companies, also discussed operating 
procedure adjustments and other administrative burdens that result from 
varying State requirements which serve to disrupt the flow of 
interstate commerce.
    The International Brotherhood of Teamsters argues that drivers pass 
through an assortment of State or local regulations throughout their 
workday, including varying speed limits, tolling facilities, and 
enforcement zones for distracted driving and DUI; yet those rules do 
not constitute an unreasonable burden on interstate commerce. The 
Agency is not persuaded by this argument. The 1984 Act explicitly 
prohibits the Agency from ``prescrib[ing] traffic safety regulations or 
preempt[ing] state traffic regulations'' such as those described. 49 
U.S.C. 31147(a). In addition, issues surrounding State taxation and 
tolling are well outside the scope of the Agency's statutory authority. 
Therefore, the extent to which the ``assortment of state or local 
regulations'' cited by the International Brotherhood of Teamsters 
unreasonably burden interstate commerce, if at all, as compared to the 
MRB Rules is not part of the Agency's deliberative process.
    The Agency determines that enforcing the MRB Rules decreases 
productivity and results in increased administrative burden and costs. 
In addition, the Agency believes it to be an unreasonable burden on 
interstate commerce for motor carriers to have to cull through the 
varying State requirements, in addition to Federal HOS rules, to remain 
in compliance, as commenters have described. As explained above, 
uniform national regulation is less burdensome than individual State 
regulations, which are often conflicting. Therefore, the Agency 
concludes that the MRB Rules place an unreasonable burden on interstate 
commerce.

Preemption Decision

    As described above, the FMCSA concludes that: (1) The MRB Rules are 
State laws or regulations ``on commercial motor vehicle safety,'' to 
the extent they apply to drivers of property-carrying CMVs subject to 
the FMCSA's HOS rules; (2) the MRB Rules are additional to or more 
stringent than the FMCSA's HOS rules; (3) the MRB Rules have no safety 
benefit; (4) the MRB Rules are incompatible with the FMCSA's HOS rules; 
and (5) enforcement of the MRB Rules would cause an unreasonable burden 
on interstate commerce. Accordingly, the FMCSA grants the petitions for 
preemption of the ATA and the SCRA, and determines that the MRB Rules 
are preempted pursuant to 49 U.S.C. 31141. California may no longer 
enforce the MRB Rules with respect to drivers of property-carrying CMVs 
subject to FMCSA's HOS rules.

    Dated: December 21, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-28325 Filed 12-21-18; 4:15 pm]
 BILLING CODE 4910-EX-P