Washington Meal and Rest Break Rules for Commercial Motor Vehicle Drivers; Petition for Determination of Preemption

Topics:  Washington Trucking Associations

Raymond P. Martinez
Federal Motor Carrier Safety Administration
9 October 2019

[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Notices]
[Pages 54266-54267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22061]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0128]


Washington Meal and Rest Break Rules for Commercial Motor Vehicle 
Drivers; 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 
Washington Trucking Associations, Inc. (WTA) requesting a determination 
that the State of Washington's Meal and Rest Break Rules (MRB rules), 
as applied to drivers of commercial motor vehicles (CMVs) subject to 
FMCSA's hours of service (HOS) regulations, are preempted by Federal 
law. FMCSA requests comments in response to this petition.

DATES: Comments must be received on or before November 8, 2019.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2019-0128 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: Tracy M. White, Enforcement and 
Litigation Division; FMCSA Office of Chief Counsel; Telephone: (202) 
493-0349; email: Tracy.White@dot.gov. If you have questions on viewing 
or submitting material to the docket, contact Docket Services, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. 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-2019-0128), 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 
materials 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-2019-0128'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on the ``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 online FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act: DOT solicits comments from the public to better inform 
its preemption determinations. DOT posts these comments, without edit, 
including any personal information the commenter provides, to 
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy.

SUPPLEMENTARY INFORMATION: 

Background

    On December 21, 2018, FMCSA granted petitions filed by the American 
Trucking Associations, Inc. and the Specialized Carriers and Rigging 
Association, and determined that California's meal and rest break 
rules, as applied to property-carrying CMV drivers subject to FMCSA's 
HOS regulations, are preempted under 49 U.S.C. 31141. (Docket No. 
FMCSA-2018-0304; 83 FR 67470 (December 28, 2018)). On April 8, 2019, 
the WTA submitted a petition to FMCSA seeking a determination that 
Washington's MRB rules are also preempted under 49 U.S.C. 31141.
    The WTA's petition states that Washington law requires employers to 
provide employees with a meal period of at least 30 minutes for every 
5-hour work period and a 10-minute break for every 4-hour work period. 
See Petition at 2 (citing Wash. Admin. Code (WAC) 296-126-092). In 
addition, the petition states that while ``employees may not waive 
their right to a rest period at all,'' employees may waive their right 
to a meal break. Id. (citations omitted). However, the WTA contends 
that ``a missed [meal] break creates the presumption of a violation, 
with the burden on the employer to prove waiver as an affirmative 
defense.'' Id. (citations omitted). In its petition, the WTA explains 
that ``Washington's rules contemplate a paid, on-duty 30-minute meal 
break when the employee is required by the employer to remain on duty 
on the premises.'' However, ``even if the 30-minute break is paid 
pursuant to that provision,'' the WTA argues that employers remain 
obligated to ``make every effort to provide employees with an 
uninterrupted meal period'' and to ``continue the meal period until the 
employee has received 30 minutes total of mealtime.'' Id. at 2-3.
    In its petition, the WTA alleges that similar to California's 
requirements, the Washington MRB rules are ``regulations on commercial 
motor vehicle safety

[[Page 54267]]

within the meaning of [49 U.S.C. 31141]'' and that they are 
``additional to or more stringent than FMCSA's rules.'' Petition at 4-
5. Additionally, the petition states that the Washington MRB rules have 
no safety benefit beyond those provided by FMCSA's rules, are 
incompatible with the Federal HOS regulations, and impose an 
unreasonable burden on interstate commerce. Id. at 5-7. The petition 
states, ``Given the similarity between Washington and California meal 
and rest break rules, the Agency's analysis of California's rules in 
its recent preemption order applies equally to Washington's.'' Id. at 
4.

Applicable Law

    Section 31141 of title 49, United States Code, prohibits States 
from enforcing a law or regulation on CMV safety that the Secretary of 
Transportation (Secretary) has determined to be preempted. To determine 
whether a State law or regulation is preempted, the Secretary must 
decide whether a State law or regulation: (1) Has the same effect as a 
regulation prescribed under 49 U.S.C. 31136, which is the authority for 
much of the Federal Motor Carrier Safety Regulations; (2) is less 
stringent than such a regulation; or (3) is additional to or more 
stringent than such a regulation 49 U.S.C. 31141(c)(1).
    If the Secretary decides that a State law or regulation has the 
same effect as a regulation prescribed under 49 U.S.C. 31136, the State 
law or regulation may be enforced. 49 U.S.C. 31141(c)(2). If the 
Secretary decides that a State law or regulation 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 that the State's law or regulation and 
all similar laws and regulations of other States will have on 
interstate commerce. 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 49 U.S.C. 31141 is a legal determination 
reserved to the judgment of the Agency, FMCSA seeks comments on any 
issues raised in the WTA's petition or otherwise relevant. The Agency 
has placed the petition in the docket.

    Issued on: September 27, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-22061 Filed 10-8-19; 8:45 am]
 BILLING CODE 4910-EX-P