California's Meal and Rest Break Rules for Drivers of Passenger-Carrying Commercial Motor Vehicles; Petition for Determination of Preemption |
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Alan Hanson
Federal Motor Carrier Safety Administration
21 January 2020
[Federal Register Volume 85, Number 13 (Tuesday, January 21, 2020)]
[Notices]
[Pages 3469-3480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00835]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2019-0048]
California's Meal and Rest Break Rules for Drivers of Passenger-
Carrying Commercial Motor Vehicles; 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 the petition submitted by the American Bus
Association (ABA) 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 passenger-carrying commercial motor
vehicle drivers subject to FMCSA's hours of service regulations.
Federal law provides for preemption of State laws on commercial motor
vehicle safety that are additional to or more stringent than Federal
regulations if they (1) have no safety benefit; (2) are incompatible
with Federal regulations; or (3) would cause an unreasonable burden on
interstate commerce. The FMCSA has determined that California's MRB
rules are laws on commercial motor vehicle (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).
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)
493-0349; email Charles.Fromm@dot.gov.
Electronic Access
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 FDMS for 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 FDMS published in the Federal Register on
December 29, 2010. 75 FR 82132.
Background
On January 10, 2019, ABA petitioned 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 passenger-
carrying CMVs subject to FMCSA's hours of service (HOS) regulations.
For the reasons set forth below, FMCSA grants the petition.
California Meal and Rest Break 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
[[Page 3470]]
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 Regulations, is
entitled ``Order Regulating Wages, Hours, and Working Conditions in the
Transportation Industry'' hereafter: ``8 CCR section 11090'' or
``section 11090.'' \1\ Section 11090(11). Meal Periods, reads as
follows:
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\1\ California Industrial Welfare Commission Order No. 9-2001 is
identical to 8 CCR Section 11090.
``(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 the State
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 FMCSA Administrator by 49 CFR 1.87(f).
Federal Motor Carrier Safety Regulations (FMCSRs) Concerning HOS for
Drivers of Passenger-Carrying CMVs, Fatigue, and Coercion
For drivers operating a passenger-carrying CMV in interstate
commerce, the Federal HOS rules allow up to 10 hours of driving time
following 8 consecutive hours off duty, and driving is prohibited after
the operator has
[[Page 3471]]
accumulated 15 hours of on-duty time.\2\ 49 CFR 395.5(a). The 15-hour
on-duty limit is non-consecutive; therefore, any time that a driver
spends off-duty does not count against the 15-hour window.\3\ While the
HOS rules for passenger-carrying CMVs impose limits after which driving
is prohibited, they do not mandate a 30-minute rest period within the
drive-time window, unlike the HOS rules for property-carrying CMVs. The
HOS rules also impose weekly driving limits. In this regard, drivers
are prohibited from operating a passenger-carrying CMV after having
been on duty 60 hours in any 7 consecutive days, if the employing motor
carrier does not operate CMVs every day of the week; or after having
been on duty 70 hours in any period of 8 consecutive days, if the
employing motor carrier operates CMVs every day of the week. 49 CFR
395.5(b).
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\2\ Subject to certain conditions, a driver who is driving a
passenger-carrying CMV that is equipped with a sleeper berth, may
accumulate the equivalent of 8 consecutive hours of off-duty time by
taking a combination of at least 8 consecutive hours off-duty and
sleeper berth time; or by taking two periods of rest in the sleeper
berth. 49 CFR 395.1(g)(3).
\3\ ``Off-duty'' time is not specifically defined in the HOS
rules; however, the Agency issued guidance stating that a driver may
record time as off-duty provided: (1) The driver is relieved of all
duty and responsibility for the care and custody of the vehicle, its
accessories, and any cargo or passengers it may be carrying, and (2)
during the stop, and for the duration of the stop, the driver must
be at liberty to pursue activities of his/her own choosing. 78 FR
41852 (July 12, 2013).
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Additionally, the FMCSRs 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. 49 CFR 390.6.
The ABA Petition and Comments Received
As set forth more fully below, ABA argues that California's MRB
rules 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, ABA cites the Agency's 2018 Decision finding
that the MRB rules are preempted under section 31141, as applied to
drivers of property-carrying CMVs subject to the HOS rules.
Additionally, ABA argues that the MRB rules ``undermine existing
Federal fatigue management rules'' and ``require drivers to take breaks
that might be counterproductive to safety.'' The ABA also contends that
the MRB rules ``conflict with driver attendance needs,'' that they are
``untenable'' due to inadequate parking for CMVs, and that they make it
difficult to comply with the Federal regulations governing passenger
service responsibility and terminal facilities. Lastly, ABA argues that
``compliance costs create an unreasonable burden on interstate
commerce.'' The ABA's petition seeks an FMCSA determination that
California's MRB rules, as applied to passenger-carrying CMV drivers
who are subject to the HOS rules, are preempted pursuant to 49 U.S.C.
31141 and, therefore, may not be enforced.
The FMCSA published a notice in the Federal Register on May 9,
2019, seeking public comment on whether California's MRB rules, as
applied to drivers of passenger-carrying CMVs, are preempted by Federal
law. 84 FR 20463. Although preemption under section 31141 is a legal
determination reserved to the judgment of the Agency, FMCSA sought
comment on issues raised in ABA's petition or otherwise relevant. While
the public comment period ended on June 10, 2019, the Agency accepted
all public comments submitted through November 7, 2019. The Agency
received 28 comments, with 20 in support of the petition and 8 in
opposition.\4\ The Agency considered all the comments received. They
are discussed more fully below.
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\4\ A comment letter submitted by the Center for Justice and
Democracy, opposing ABA's petition, was joined by 23 organizations.
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The Agency's Prior Decisions Regarding Preemption Under Section 31141
I. FMCSA's Decision Rejecting a Petition for a Preemption Determination
On July 3, 2008, a group of motor carriers \5\ petitioned 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.
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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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On December 24, 2008, 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. 73 FR 79204. 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.\6\
Ibid. at 79205-06.
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\6\ In a 2014 amicus brief in the matter of Dilts v. Penske
Logistics, LLC, United States Court of Appeals for the Ninth
Circuit, No. 12-55705 (2014), the United States explained that FMCSA
continued to adhere to the view expressed in the 2008 Decision that
California's MRB rules were not preempted by section 31141 because
they were not laws ``on commercial motor vehicle safety.'' 2014 WL
809150, 26-27. 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. See 769 F.3d 637.
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II. FMCSA's 2018 Decision Granting Petitions To Preempt the MRB Rules
In 2018, the American Trucking Associations (ATA) and the
Specialized Carriers and Rigging Association (SCRA) petitioned FMCSA to
reconsider its 2008 Decision and declare California's MRB rules
preempted under section 31141 insofar as they apply to drivers of CMVs
subject to the Federal HOS rules. The ATA acknowledged that FMCSA had
previously determined that it could not declare the California MRB
rules preempted under section 31141 because they were not regulations
``on commercial motor vehicle safety.'' The 2018 petitioners urged the
Agency to revisit that determination, noting that, by its terms, the
statute did not limit the Agency's preemption authority to those State
laws that directly targeted the transportation industry. Rather, the
appropriate question was whether the State law targeted conduct already
covered by a Federal regulation designed to ensure motor vehicle
safety. The 2018 petitioners also provided evidence that California's
meal and rest break laws were detrimental to the safe operation of
CMVs.
The FMCSA published a notice in the Federal Register seeking public
comment on whether the California MRB rules should be declared
preempted. 83 FR 50142 (Oct. 4, 2018). The Agency sought public
comments in order to make an informed decision on issues relevant to
the determination, including what effect California's rules had on
interstate motor carrier
[[Page 3472]]
operations. Ibid. In total, FMCSA received more than 700 comments, and
several letters from members of Congress.
On December 21, 2018, FMCSA issued a determination declaring the
MRB rules preempted with respect to operators of property-carrying
motor vehicles subject to the Federal HOS rules. 83 FR 67470. The
Agency first acknowledged that it was departing from its 2008 Decision
finding that the MRB rules were not laws ``on commercial motor vehicle
safety'' because they were laws of broad applicability and not
specifically directed to motor vehicle safety. Ibid. at 67473-74. The
Agency explained that its 2008 Decision was ``unnecessarily
restrictive'' and not supported by either the statutory language or
legislative history. Ibid. The Agency considered the fact that 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). The Agency explained that Congress, by
tying the scope of the Secretary's preemption authority directly to the
scope of the Secretary's authority to regulate the CMV industry,
provided a framework for determining whether a State law or regulation
is subject to section 31141. The Agency concluded that ``[I]f 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.'' Ibid. at 67473. The Agency further determined that because
California's MRB rules plainly regulated the same conduct as the
Federal HOS regulations, they were laws ``on commercial motor vehicle
safety.''
Having concluded that the California MRB rules were laws ``on
commercial motor vehicle safety,'' under section 31141, the Agency next
determined that they are additional to or more stringent than the
Federal HOS regulations. 83 FR 67474-75. The FMCSA found that the MRB
rules require employers to provide property-carrying CMV drivers with
more rest breaks than the Federal HOS regulations; and allow a smaller
window of driving time before a break is required. Ibid.
The Agency next explained that because the MRB rules are more
stringent, they may be preempted if the Agency determined that that MRB
rules have no safety benefit, that they are incompatible with HOS
regulations, or that enforcement of the MRB rules would cause an
unreasonable burden on interstate commerce. 83 FR 67475. The FMCSA
found that the MRB rules provided no safety benefit beyond the Federal
regulations, and that given the current shortage of available parking
for CMVs, the required additional breaks adversely impacted safety
because they exacerbated the problem of CMVs parking at unsafe
locations. Ibid. at 67475-77. The Agency also determined that the MRB
rules were incompatible with the Federal HOS regulations because they
required employers to provide CMV drivers with more breaks, at less
flexible times, than the Federal HOS regulations. Ibid. at 67477-78.
Lastly, the Agency determined that enforcing the MRB rules would
impose an unreasonable burden on interstate commerce. 83 FR 67478-80.
In this regard, the 2018 petitioners and other commenters provided
information demonstrating that the MRB rules imposed significant and
substantial costs stemming from decreased productivity and
administrative burden. Ibid. at 67478-79. The Agency also considered
the cumulative effect on interstate commerce of similar laws and
regulations in other States. Currently 20 other States have varying
applicable break rules. The Agency determined that the diversity of
State regulation of meal and rest breaks for CMV drivers has resulted
in a patchwork of requirements that the Agency found to be an
unreasonable burden on interstate commerce. Ibid. at 67479-80.
Accordingly, FMCSA granted the petitions for preemption and
determined that California ``may no longer enforce'' its meal and rest
break rules with respect to drivers of property-carrying commercial
motor vehicles subject to the HOS rules.
Decision
I. Section 31141 Expressly Preempts State Law Therefore the Presumption
Against Preemption Does Not Apply
In their comments, the International Brotherhood of Teamsters (the
Teamsters) and the American Association for Justice contend that
California's MRB rules are subject to a presumption against preemption.
Citing the Agency's amicus brief in Dilts v. Penske, the Teamsters
argue that the MRB rules fall within an area of California's
traditional police power and thus are subject to the presumption. The
American Association of Justice argues that the presumption requires
FMCSA to adopt ``the reading that disfavors pre-emption'' in
interpreting section 31141.
The presumption against preemption is a canon of statutory
interpretation employed by courts that favors reading ambiguous Federal
statutes in a manner that avoids preempting State law absent clear
congressional intent to do so. See, e.g., Association des Eleveurs de
Canards et d'Oies du Quebec v. Becerra, 870 F.3d 1140, 1146 (9th Cir.
2017). 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 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). Where, however, a provision at issue constitutes an area of
traditional State regulation, ``that fact alone does not `immunize'
state employment laws from preemption if Congress in fact contemplated
their preemption.'' Dilts v. Penske Logistics, LLC, 769 F.3d 637, 643
(9th Cir. 2014). And here there is no dispute that Congress has given
FMCSA the authority to review and preempt State laws; the only
questions concern the application of that authority to specific State
laws. The FMCSA is aware of no authority suggesting that the
presumption against preemption limits an agency's ability to interpret
a statute authorizing it to preempt State laws.
In any event, 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); see also Atay v. County of Maui, 842 F.3d
688, 699 (9th Cir. 2016). Section 31141 expressly preempts State laws
on commercial motor vehicle safety. Thus, the MRB rules are not subject
to a presumption against preemption, and the question that FMCSA must
answer is whether the MRB rules, as applied to drivers of passenger-
carrying CMVs, should be preempted under section 31141.
II. The California MRB Rules, as Applied to Drivers of Passenger-
Carrying CMVs, 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 State provisions at issue are laws or regulations ``on
commercial motor vehicle safety.'' 49 U.S.C. 31141(c)(1). 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
[[Page 3473]]
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. 73 FR 79204, 79206. The FMCSA
reconsidered this conclusion and explained in its 2018 Decision 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. In this regard, the Agency explained:
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. 83 FR 67470.
Consistent with the reasoning in the 2018 Decision, the Agency finds
that if the State law or regulation at issue imposes requirements in an
area of regulation that is within FMCSA's section 31136 regulatory
authority, then the State law or regulation is a regulation ``on
commercial motor vehicle safety.
Regarding California's MRB rules, as applied to drivers of
passenger-carrying CMVs, ABA argues that the MRB rules ``require[ ]
meal and rest breaks of fixed durations and at mandated intervals
throughout the work day so as to prevent fatigue-related incidents.''
The ABA further contends that, ``The fact that the FMCSA has
promulgated regulations for commercial truck and bus drivers in 49 CFR
part 395 addressing the very hours of service and break issues
encompassed in the California MRB Rules underscores that the State
rules are requirements `on commercial motor vehicle safety.' '' The
Agency agrees. As explained above, the Federal HOS rules for passenger-
carrying CMVs have long imposed drive time limits for drivers. While
the HOS rules do not include a mandated 30-minute rest period, they
regulate how long a driver may operate a passenger-carrying CMV before
an off-duty period is required. The Federal regulations also prohibit
drivers from operating CMVs when fatigued, and thus require drivers to
take any additional breaks necessary to prohibit fatigued driving, and
prohibit employers from coercing drivers into operating a CMV during
these required breaks. Thus, both the HOS and MRB rules impose
requirements for off-duty periods. Therefore, the Agency determines
that, because the HOS and MRB rules cover the same subject matter, the
MRB rules, as applied to drivers of passenger-carrying CMVs, are laws
on CMV safety.
California's Labor Commissioner, California's Attorney General, the
American Association for Justice, the Teamsters, and other commenters
who oppose ABA's petition argue that the Agency's analysis and
conclusions in the 2018 Decision were incorrect and that FMCSA should
revert to the legal position articulated in the 2008 Decision and in
the Government's amicus brief in Dilts v. Penske. California's Labor
Commissioner and Attorney General further contend the Agency's 2018
Decision ``improperly changed the agency's position and expanded the
preemptive scope of the statute'' and that the MRB rules are ``are
employment laws of general applicability rather than regulations on
commercial motor vehicles'' as the Agency determined in 2008 and in its
Dilts amicus brief. The FMCSA disagrees with this argument. As the
Agency explained in the 2018 Decision, its prior position articulated
in 2008 need not forever remain static. 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
Agency's 2018 Decision acknowledged the changed interpretation of
section 31141 and provided a reasoned explanation for the new
interpretation. See FCC v. Fox Television Stations, Inc., 556 U.S. 502,
514-16 (2009). Similarly, this decision explains the basis for the
Agency's conclusion that the MRB rules are laws on CMV safety, as
applied to drivers of passenger-carrying CMVs. Irrespective of the
whether the MRB rules have general applicability to employers and
workers in the State, when they are applied to CMV drivers, they govern
the same conduct as the Federal HOS rules. Therefore, they are laws on
CMV safety.
FMCSA's interpretation of section 31141 is consistent with the
legislative history of the 1984 Act. As originally enacted, the 1984
Act granted the Agency authority to promulgate regulations ``pertaining
to'' CMV safety, and likewise to review State laws ``pertaining to''
CMV safety. Public Law 98-554 Sec. Sec. 206(a), 208(a) (originally
codified at 49 U.S.C. App. 2505, 2507). Congress amended these
provisions during the 1994 recodification of Title 49 of the United
States Code. See Public Law 103-272 (July 5, 1994), 108 Stat. 1008. As
recodified, the law allows the Agency to promulgate regulations and
review State laws ``on commercial motor vehicle safety,'' rather than
``pertaining to commercial motor vehicle safety.'' Compare 49 U.S.C.
app. 2505 and 49 U.S.C. app. 2507 (1984) with 49 U.S.C. 31136 and 49
U.S.C. 31141(c)(1) (1994). Congress made clear, however, that any
changes made during their comprehensive effort to restructure and
simplify Title 49 ``may not be construed as making a substantive change
in the laws replaced.'' Public Law 103-272 Sec. Sec. 1(e), 6(a). The
change in wording therefore did not narrow the Agency's rulemaking
authority or the scope of the State laws subject to preemption review.
California's MRB rules clearly ``pertain to'' CMV safety as applied to
drivers of passenger-carrying CMVs subject to the HOS rules, and
therefore fall within the scope of section 31141. See, e.g.,
``Pertain,'' Dictionary.com, https://www.dictionary.com/browse/pertain
(definition 1) (``to have reference or relation; relate.'').
The Agency's interpretation is also consistent with congressional
purposes. Congress was concerned that a lack of uniformity between
Federal and State laws on the same subject matter could impose
substantial burdens on interstate truck and bus operations, and
potentially hamper safety. See, e.g., 1984 Cong. Rec. 28215 (Oct. 2,
1984) (statement of Sen. Packwood); ibid. at 28219 (statement of Sen.
Danforth). Accordingly, as the Senate Report on the bill that became
the 1984 Act explained, the preemption review provision was designed to
ensure ``as much uniformity as practicable whenever a Federal standard
and a State requirement cover the same subject matter.'' S. Rep. 98-424
at 14 (1984). The fact that a State regulation may be broader than a
Federal safety regulation and impose requirements outside the area of
CMV safety does not eliminate Congress's concerns. Such laws may still
be incompatible with Federal safety standards or unduly burden
interstate commerce when applied to the operation of a CMV.
[[Page 3474]]
In their comments, the Labor Commissioner and Attorney General also
argue that the Agency should not preempt the MRB rules because the
``FMCSA specifically declined to regulate rest periods for drivers of
passenger-carrying commercial motor vehicles and the Federal commercial
motor vehicle safety regulations are only intended to be `minimum
safety standards.' '' The Agency finds this argument unpersuasive. As
explained above, both the MRB rules, as applied to drivers of
passenger-carrying CMVs, and the Federal HOS rules limit the amount of
time that a driver may work before an off-duty period is required. In
comments on ABA's petition, the ATA correctly pointed out that the
Agency made the affirmative decision in 2003 not to subject drivers of
passenger-carrying CMVs to the same HOS rules as property-carriers
because of operational considerations that distinguish bus drivers from
truck drivers with respect to fatigue. See 68 FR 22456, 22462 (Apr. 28,
2003). Irrespective of the fact that the HOS rules for passenger-
carrying CMVs do not include a provision requiring a 30-minute rest
break, both the HOS and the MRB rules govern the same subject matter--
how long a driver may drive before a required off-duty period. The
absence of a 30-minute break provision in the HOS rules for passenger
carriers does not mean that California's MRB rules are not laws on CMV
safety.
As the Agency noted in the 2018 Decision, in response to the ATA
and SCRA petitions regarding property-carrying CMVs, the California
Labor Commissioner acknowledged that the MRB rules improve driver and
public safety. Here, in response to ABA's petition, the Labor
Commissioner and the Attorney General ``reaffirm that California's meal
and rest period requirements promote driver and public safety.'' These
statements further demonstrate that the MRB rules are rules ``on CMV
safety'' and, therefore, fall squarely within the scope of the
Secretary's preemption authority.
III. The MRB Rules Are ``Additional to or More Stringent Than'' the
Agency's HOS Regulations for Passenger-Carrying Vehicles Within the
Meaning of Section 31141
Having concluded that the MRB rules, as applied to drivers of
passenger-carrying CMVs, are laws ``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 for
passenger-carrying CMVs. 49 U.S.C. 31141(c)(1).
As explained above, the HOS rules prohibit a driver from operating
a passenger-carrying CMV for more than 10 hours following 8 consecutive
hours off duty, or for any period after having been on duty 15 hours
following 8 consecutive hours off duty. 49 CFR 395.5(a). The 15-hour
on-duty limit is non-consecutive; therefore, any time that a driver
spends off-duty does not count against the 15-hour duty window. While
the HOS regulations permit drivers of passenger-carrying CMVs to take
time off duty in the middle of a duty period for a rest break and
extend the 15-hour window in which they may drive, the rules do not
require that they do so. Conversely, not only do the MRB rules require
employers to provide passenger-carrying CMV drivers with meal and rest
breaks, they are required to provide them at specified intervals.
Therefore, California's MRB rules are additional to or more stringent
than the HOS regulations.
California's Labor Commissioner and Attorney General do not deny
that the MRB rules require employers to provide for breaks during the
work day while the Federal HOS regulations for passenger-carrying CMVs
do not. Citing Augustus v. ABM Security Services, Inc., 385 P.3d 823
(Cal. 2016), and Murphy v. Kenneth Cole Prods., Inc., 155 P.3d 284
(Cal. 2007), they argue in their comments that the MRB rules are not
``additional to or more stringent than'' the Agency's HOS regulations
because under the MRB rules, employers may either provide the required
meal and rest periods or pay additional wages. The Labor Commissioner
and Attorney General assert that California law permits employers to
pay higher wages as an alternative to complying with the MRB rules, and
that the MRB rules therefore are not more stringent that the HOS
regulations.
The Agency disagrees. As FMCSA explained in its December 2018
Decision, California law prohibits an employer from requiring 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). The California Supreme Court has held 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).\7\ This ruling is
not undercut by the two cases cited by the Labor Commissioner and
Attorney General. 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 at 834 & n.14. 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 say 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 the additional hour of
pay.\8\
---------------------------------------------------------------------------
\7\ In Kirby, the California Supreme Court addressed, inter
alia, the question of whether a section 226.7 claim alleging an
employer's failure to provide statutorily mandated meal and rest
periods, constituted an action brought for the nonpayment of wages.
See 274 P.3d at 1167. The Court held that it did not and explained
that the premium pay ``is the legal remedy for a violation . . . but
whether or not it has been paid is irrelevant to whether section
226.7 was violated. In other words, section 226.7 does not give
employers a lawful choice between providing either meal and rest
breaks or an additional hour of pay.'' Ibid.
\8\ Even if employers did have an option of either complying
with the MRB Rules or paying additional wages, 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 for breaks not required by the HOS regulations; or
(2) provide the remedy of additional pay not required by the HOS
regulations.
---------------------------------------------------------------------------
Employers of passenger-carrying CMV drivers complying with the
minimum requirements of the HOS regulations would nevertheless be
violating the MRB rules on their face. That alone is dispositive of the
relevant inquiry. See, e.g., S. Rep. No. 98-424, at 14 (``It is the
Committee's intention that there be as much uniformity as practicable
whenever a Federal standard and a State requirement cover the same
subject matter. However, a State requirement and a Federal standard
cover the same
[[Page 3475]]
subject matter only when meeting the minimum criteria of the less
stringent provision causes one to violate the other provision on its
face.''). The MRB rules therefore are ``additional to or more stringent
than'' the HOS regulations.
IV. The MRB Rules Have No Safety Benefits That Extend Beyond Those
Provided by the FMCSRs
Because the MRB rules, as applied to drivers of passenger-carrying
CMVs, 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. Ibid.
Section 31141 authorizes the Secretary to preempt the MRB rules if
they have ``no safety benefit.'' 49 U.S.C. 31141(c)(4)(A). Consistent
with the 2018 Decision, FMCSA continues to interpret 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. The statute tasks FMCSA with determining whether a State
law that is more stringent than Federal law, which would otherwise
undermine the Federal goal of uniformity, is nevertheless justified.
There would be no point to the ``safety benefit'' provision if it were
sufficient that the more stringent State law provides the same safety
benefit as Federal law. 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 could be
preempted.
The ABA argues that California's MRB rules ``undermine existing
federal fatigue management rules.'' In this regard, ABA contends:
Under the MRB rules, drivers are required to take periodic
breaks at certain times regardless of whether the driver feels
fatigued. At other times, when the driver might actually feel
fatigued, the driver might feel obligated to continue the trip
because of the delay already caused by taking the designated break
under California law. FMCSA has determined that providing the driver
with flexibility to determine when to take a break, based on the
driver's own physiology, traffic congestion, weather and other
factors, will encourage safer driving practices than simply
mandating a break at designated intervals. The MRB Rules act counter
to this FMCSA mandate and the flexibility the FMCSA rules allow.
In its comments on ABA's petition, ATA agreed, stating that
``specifying multiple arbitrary breaks, even when a driver is not
fatigued, makes it less likely that a driver will take a break when he
or she is fatigued.'' The Truckload Carriers Association also noted
that ``flexibility will empower drivers to rest when they are feeling
fatigued, regardless of how long they have been in the driver's seat
that day or how far they are from their final destination.'' This
sentiment was also echoed by other commenters, such as the Greater
California Livery Association and the National Limousine Association.
Additionally, the United Motorcoach Association stated, ``The
application of the California Meal and Rest Break rules clearly
endangers passengers and the traveling public. Any suggestion that a
bus or motorcoach driver can simply pull off to the side of the road
and `rest' while 50+ passengers sit patiently behind the driver is
wildly mistaken.''
Citing several National Transportation Safety Board (NTSB) studies,
safety recommendations, and the NTSB 2019-2020 Most Wanted List
addressing issues surrounding fatigue-related highway accidents, the
California Labor Commissioner and Attorney General contend that the MRB
rules support the public safety goal of reducing fatigue-related
accidents. In addition, the Labor Commissioner and Attorney General
point out that FMCSA commissioned an Evidence Report to assess and
characterize the relationship between crash and fatigue in generally
healthy motorcoach drivers.\9\ They contend that the Evidence Report
described studies that showed ``that a 30-minute rest break reduced the
incidence of `safety critical events' while others showed that long-
haul truck drivers who napped had a significantly lower incidence of
crash or near-crash.'' The Labor Commissioner and Attorney General
added that ``the timeframe for incidence of crash maps closely to the
timeframe for California's meal and rest periods.'' They argue that
because the HOS rules for passenger-carrying CMVs do not require
drivers to take the same 30-minute rest period applicable to property-
carrying CMVs, ``FMCSA cannot conclude, as it did in the December 2018
preemption determination regarding property-carrying commercial motor
vehicles, that California's meal and rest period requirements `do not
provide additional safety benefits.''' Accordingly, they conclude that
``it defies logic to suggest that the safety of bus drivers and their
precious human cargo is not enhanced by the State's break
requirements.'' The Amalgamated Transit Union, the Transportation
Trades Department/AFL-CIO, the Teamsters, and the American Association
for Justice make similar arguments and cite publications by the NTSB
and others to show that CMV drivers' safety performance can easily
deteriorate due to fatigue.
---------------------------------------------------------------------------
\9\ Manila Consulting Group, Inc. Evidence Report, Fatigue and
Motorcoach/Bus Driver Safety. McLean, VA: Manila Consulting Group,
Inc; December 2012.
---------------------------------------------------------------------------
The Agency disagrees that the absence of a 30-minute break
requirement in the HOS rules for drivers of passenger-carrying CMVs,
unlike property-carriers, renders it impossible for the Agency to find
that that the MRB rules provide no safety benefit beyond the Federal
regulations. The FMCSA has long recognized that there are operational
differences between commercial passenger carriers and commercial
freight carriers and that those differences require different fatigue
management measures. In this regard, the Agency's 2003 HOS final rule
did not propose any changes to the Federal HOS rules for drivers of
passenger-carrying CMVs because the Agency determined that the nature
of passenger-carrier operations requires a different framework for
fatigue management than the HOS rules for property-carrier operations
which includes more flexibility to accommodate operational challenges
presented in passenger carrier transportation. 68 FR 22456, 22461 (Apr.
28, 2003). In addition, when the Agency revised the HOS rules in 2011
to mandate a 30-minute off-duty rest period for drivers operating
property-carrying CMVs, the Agency did not impose a similar requirement
on drivers of passenger-carrying CMVs. 76 FR 81134, 81186. In response
to a commenter who opposed different HOS rules for property- and
passenger-carriers, the Agency explained, ``[T]he HOS rules are not
one-size-fits-all.'' Ibid. at 81165. The Agency's decision in 2011 not
to impose a 30-minute rest period requirement for passenger-carrying
CMVs was appropriate given the nature of bus operations, where drivers
may stop and rest at times that coincide with passenger rest stops.
The ABA and several commenters have described the operational
differences. In this regard, ABA points out, ``In looking at a bus
driver's schedule in practice, a scheduled service driver often will
take multiple breaks during intermediate stops along a schedule. These
will occur whenever practical, such as when all passengers disembark
for a food or restroom break.'' Similarly, the United Motorcoach
Association explains that ``most charter drivers take their meals with
the groups.'' Coach USA notes that
[[Page 3476]]
``charter/tour drivers are able to take breaks while their passengers
are out sightseeing'' and further explains that ``buses operating on
long trips take pre-scheduled breaks for the benefit of the drivers and
passengers. . . .'' Greyhound Lines (Greyhound) noted that a typical
schedule would be ``structured to provide the driver and passenger a
safe and comfortable meal and rest stop at the approximate half-way
point of the trip.''
The Federal regulations establish a fatigue management framework
for drivers of passenger-carrying CMVs that prohibits a driver from
operating a CMV if she feels too fatigued or is otherwise unable to
safely drive and that prohibits employers from coercing a driver too
fatigued to operate the CMV safely to remain behind the wheel. 49 CFR
392.3, 390.6. In addition, the Federal HOS rules provide for a
nonconsecutive 15-hour duty window that gives drivers flexibility to
schedule off-duty breaks at times that accord with the passenger
itinerary or travel schedule and with the driver's actual level of
fatigue. 49 CFR 395.5(a). The HOS rule in conjunction with FMCSRs
prohibiting fatigued driving and coercion sufficiently mitigate the
risk that fatigued driving would lead to crashes. Additionally, the
Agency believes that this framework is appropriate because it provides
the flexibility needed for passenger carrier operations while still
prohibiting a driver from operating a CMV when too fatigued to safely
do so. Interposing the MRB rules on top of the Agency's framework
eliminates the regulatory flexibilities provided and requires the
driver to stop the bus and log off duty at fixed intervals each day
regardless of the driver's break schedule or actual level of fatigue.
The Agency determines that the MRB rules provide no safety benefit
beyond the safety benefit already provided by the Federal regulatory
framework for passenger-carrying CMVs.
The Agency acknowledges the dangers of fatigued driving. However,
the Labor Commissioner and the Attorney General mischaracterize one of
the statements quoted from the Evidence Report. In evaluating the
question ``How much rest does a fatigued professional driver need to
resume driving unimpaired,'' the Evidence Report did, in fact, state
that studies found that ``a 30-minute rest break reduced the incidence
of `safety critical events.''' However, that statement was made in
relation to drivers of property-carrying CMVs. Evidence Report: Fatigue
and Motorcoach/Bus Driver Safety at 84. With regard to passenger-
carrying CMVs, the Evidence Report explained that, ``No included
studies assessed only motorcoach drivers or presented data in a manner
that allowed us to specifically address this driver group.'' Ibid. The
Agency notes that the Labor Secretary has provided no data or research
to show that California's MRB rules have led to a reduction in fatigue-
related crashes among passenger-carrying CMVs.
The ABA further argues that a ``lack of adequate parking also makes
the MRB rules untenable.'' In this regard, ABA cites the Agency's
finding in the 2018 Decision that the increase in required stops to
comply with the MRB Rules, when the driver may not be fatigued, will
exacerbate the problem of property-carrying CMV drivers parking at
unsafe locations. The ABA contends that ``[b]us drivers face an even
more difficult task than truck drivers to find a parking space and
safely park the vehicle several times each day in order to comply with
the California requirements while ensuring that the passengers are
safely accommodated.'' The United Motorcoach Association explained,
``[A] bus or motorcoach parked on the side of the road while a driver
`rests' poses a crash risk from traffic.'' The Truckload Carrier's
Association stated, ``While the lack of safe truck parking is already
an issue at the forefront of our industry, it is conceivably even worse
for buses as they are more restricted than trucks as to where they can
park given that they are transporting human cargo.'' The National
Limousine Association, Coach USA and other commenters also advanced
similar arguments.
The Agency agrees that California's enforcement of the MRB rules
could exacerbate the problem of CMV drivers parking at unsafe
locations. The shortage of safe, authorized parking spaces for CMVs and
the negative safety implication of enforcing the MRB rules is well-
documented in FMCSA's 2018 Decision preempting California's MRB rules
for drivers of property carrying CMVs. See 83 FR 67476-77. The Agency
adopts that reasoning here. If a passenger-carrying CMV driver resorted
to stopping at an unsafe location--such as a highway shoulder and
ramp--to comply with the MRB rules, such an action would present a
safety hazard to the passengers, the driver, and other highway users.
In sum, the MRB rules abrogate the flexibilities provided by the
Federal HOS rules for passenger-carrying CMVs without an added safety
benefit. Therefore, FMCSA determines that the MRB rules do not provide
a safety benefit not already realized under the FMCSRs.
V. The MRB Rules Are Incompatible With the Federal HOS Regulations for
Passenger-Carrying CMVs
The Agency has determined that the MRB rules are ``additional to or
more stringent than a regulation prescribed by the Secretary under
section 31136;'' therefore, they must be preempted if the Agency also
determines that the MRB rules are ``incompatible with the regulation
prescribed by the Secretary.'' 49 U.S.C. 31141(c)(4)(B). The 1984 Act
limits the scope of the Agency's inquiry in this regard to a State
law's compatibility with a regulation prescribed under section 31136.
The ABA argues that the MRB rules conflict with various regulatory
provisions that were not prescribed pursuant to the authority of
section 31136.\10\ Because the provisions cited were not prescribed
pursuant to section 31136, they fall outside the scope of a section
31141 compatibility analysis. Therefore, the Agency has limited its
compatibility analysis to the question of whether the MRB rules are
incompatible with the HOS rules for passenger-carrying CMVs, which were
prescribed pursuant to section 31136.
---------------------------------------------------------------------------
\10\ The ABA cites the regulations implementing the
transportation and related provisions of the Americans with
Disabilities Act of 1990 at 49 CFR part 37, issued pursuant to 42
U.S.C. 12101-12213 and 49 U.S.C. 322; former Interstate Commerce
Commission regulations at 49 CFR part 374, subpart C, issued under
49 U.S.C. 13301 and 14101; and California's regulations prohibiting
idling, Cal. Code Regs., tit. 13, Sec. 2485.
---------------------------------------------------------------------------
Regarding the MRB rules' compatibility with the HOS rules, ABA
argues that ``the timing requirements for meal and rest breaks under
the MRB rules remove the flexibility allowed under the federal HOS
regulations, thus making the MRB rules incompatible with the federal
HOS regulations.'' Similarly, Coach USA stated, ``Under the federal HOS
rules applicable to motor passenger carriers, bus drivers have the
flexibility to take breaks when they need breaks, and when they can
safely do so consistent with the need to monitor the bus and the
passengers at all times. These federal rules have proven their worth in
terms of bus safety; incompatible state regulations such as
California's can only add confusion to the bus sector.''
The American Association for Justice argues that FMCSA erred in
applying the regulatory definition for ``compatibility,'' found at 49
CFR 355.5, in the Agency's 2018 Decision preempting the MRB rules for
drivers of property carrying CMVs.\11\ In this
[[Page 3477]]
regard, the American Association for Justice states, ``If only laws
that are `identical' to federal rules could meet this standard, as ATA
and ABA claim, then every state law that is `additional to or more
stringent' than federal law would meet this requirement and be
preempted.'' The California Labor Commissioner and Attorney General
make a similar argument.
---------------------------------------------------------------------------
\11\ Under 49 CFR 355.5, ``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. . .
.'' See also 49 CFR 350.105.
---------------------------------------------------------------------------
The Agency finds that the MRB rules, as applied to drivers of
passenger-carrying CMVs, are incompatible with the Federal HOS
regulations. Assuming arguendo that the Agency's application of the
regulatory definition of ``compatible'' is inconsistent with Congress's
intent, FMCSA need not rely on the fact that the MRB rules are not
``identical to'' or ``have the same effect'' as the HOS rules to find
them incompatible. Congress's clear intent for the 1984 Act was to
minimize disuniformity in the national safety regulatory regime. See
Pub. L. 98-554, title II Sec. 202, 203 (``The Congress finds that . .
. improved, more uniform commercial motor vehicle safety measures and
strengthened enforcement would reduce the number of fatalities and
injuries and the level of property damage related to commercial motor
vehicle operations.''); S.Rep. No. 98-424, at 14 (``It is the
Committee's intention that there be as much uniformity as practicable
whenever a federal standard and a state requirement cover the same
subject matter.''); see also ibid. at 15 (``In adopting this section,
the Committee does not intend that States with innovative safety
requirements that are not identical to the national norm be discouraged
from seeking better ways to protect their citizens, so long as a strong
safety need exists that outweighs this goal of uniformity.''). As
described below, the MRB rules frustrate Congress's goal of uniformity
because they abrogate the flexibility that the Agency allows under the
HOS rules. This fact alone renders the MRB rules incompatible.
California's MRB rules require employers to provide passenger-
carrying CMV drivers with meal and rest breaks of specified duration at
specific intervals. With regard to meal break timing, the California
Supreme Court clarified that, in the absence of a waiver, California
law ``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. Brinker Restaurant Corp. v.
Superior Court, 273 P.3d 513, 537 (Cal. 2012). As discussed infra, an
employer must relieve the employee of all duty and employer control
during the meal break. Ibid. at 533. On-duty meal breaks (breaks
occurring on the jobsite) are permissible under California law ``only
when the nature of the work prevents an employee from being relieved of
all duty and when by written agreement'' the employer and employee
mutually agree to an ``on-the-job paid meal period.'' Ibid. California
interprets the circumstances justifying on-duty meal periods very
narrowly, and any agreement consenting to on-the-job breaks may be
revoked by the employee at any time. See generally Abdullah v. U.S.
Security Associates, Inc., 731 F.3d 952, 958-60 (9th Cir. 2013). While
employers do not have an affirmative obligation to ensure that the
employee stops working, they do have an obligation to make reasonable
efforts to ensure that the employee can take a 30-minute uninterrupted
break, free from all responsibilities. Ibid. at 535-37. With regard to
rest period timing, 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.'' Ibid. at 529. In contrast to the required meal breaks,
employers may never require their employees to remain ``on call''
during these mandatory rest periods. Augustus v. ABM Sec. Servs., Inc.,
385 P.3d at 832. In contrast, the HOS rules do not mandate breaks at
specified intervals. Instead, the HOS rules allow, but do not require,
drivers of passenger-carrying CMVs the flexibility to take off-duty
breaks as necessary, and other provisions of the FMCSRs prohibit a
driver from operating a CMV when too fatigued to safely do so.
The Labor Commissioner and the Attorney General contend that the
MRB rules are not incompatible with the HOS rules because they ``impose
an obligation to provide required meal and rest periods or to simply
provide an additional hour of pay for not providing the break (assuming
an exemption has not been granted for the rest period requirement, and
that there is no waiver of the meal period or agreement to an on-duty
meal period).'' This argument is also unavailing. As explained supra,
in Kirby v. Immoos Fire Protection, Inc., the California Supreme Court
held 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.'' 274 P.3d at 1168 (emphasis
in original). In addition, while California's regulations authorize the
Labor Commissioner to grant an employer an exemption from the 10-minute
rest break requirement, such exemptions are granted at the Labor
Commissioner's discretion, and there is no provision for an exemption
from the 30-minute meal break requirement.\12\ See Cal. Code Regs. tit.
8, 11090 (IWC Order 9-2001), subd. 17. Lastly, while the Labor
Commissioner and the Attorney General mention that the meal break may
be waived, it may only be waived by the mutual consent of the employer
and employee, and if the employee's shift is of sufficient length to
require two 30-minute meal breaks, both may not be waived. See Cal.
Code Regs. tit. 8, 11090 (IWC Order 9-2001), subd. 11(A)-(B).
---------------------------------------------------------------------------
\12\ The Labor Commissioner may grant an employer's exemption
request if, after due investigation, it is found that the
enforcement of the rest period provision would not materially affect
the welfare or comfort of employees and would work an undue hardship
on the employer. See Cal. Code Regs. tit. 8, 11090 (IWC Order 9-
2001), subd. 17.
---------------------------------------------------------------------------
The Teamsters contend that ``California's rule in no way conflicts
with Federal regulations.'' This argument also fails. The Agency's
compatibility determination 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. The express
preemption provision in section 31141 does not require such a stringent
test. In any event, California's MRB rules actively undermine
Congress's goal of uniformity, as well as FMCSA's affirmative policy
objectives by abrogating the flexibility that the Agency built into the
HOS rules. That would be sufficient to support a finding of
incompatibility even under the conflict preemption test urged by the
Teamsters.
The FMCSA determines that the MRB rules, as applied to drivers of
passenger-carrying CMVs, are incompatible with the Federal HOS
regulations.
VI. 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
[[Page 3478]]
burden on interstate commerce, only burdens that are unreasonable.
A. Operational Burden and Costs
The ABA argues that complying with the MRB rules is operationally
burdensome because the rules require that drivers be relieved of all
duty during the mandated meal and rest breaks, which do not permit a
driver to attend to passenger needs. The ABA also argues that complying
with the MRB rules compromises operators' ability to meet passenger
itinerary and scheduling requirements. The ABA further contends that
the cost of complying with MRB rules unreasonably burdens interstate
commerce.
In describing the operational burden caused by the MRB rules'
requirement that drivers be relieved of all duty, ABA explains:
Under the California MRB rules, when the bus driver logs off
duty to take the required meal or rest breaks, the driver must be
``relieved of all duty'' for the break period, unless the ``nature
of the work prevents an employee from being relieved of all duty,''
and the employee enters into a revocable written agreement to remain
on duty. Calif. Wage Order 9 11(C). This is simply not feasible for
typical intercity bus operations. Drivers cannot leave the bus, the
passengers and their baggage and other belongings for ten or 30
minutes several times each day, abdicating all responsibility for
the safety or security of the passengers or property on the bus.
The ABA asserts that ``during the MRB mandated `breaks' it is
unreasonable to assume that the driver may simply disavow any
responsibility for the passengers, their belongings or the coach.'' The
ABA states that while a driver may agree to waive a mandated break, the
driver may rescind such an agreement at any time, thus such a waiver
agreement affords no certainty to the carrier.
The ABA also argues that complying with the MRB rules compromises
operators' ability to meet scheduling requirements. In this regard, ABA
states, ``[I]ntercity bus companies providing scheduled service
typically offer interline connections with other motor carriers through
the National Bus Traffic Association and also with Amtrak. They have
designated and agreed times at which the services will meet, and
passengers will transfer from one carrier to another.'' The ABA further
explains, ``Charter and tour bus operators, while typically not
interlining with other carriers, also have dedicated schedules and
service obligations to their passengers. They frequently must meet time
constraints to deliver their passengers to a scheduled athletic
contest, an artistic performance, or other timed event.'' The ABA
concludes that requiring a driver to comply with the MRB rules ``while
accounting for traffic, weather, passenger rest stop needs and other
disruptions, makes it inconceivable that a carrier could reliably meet
the requirements of these service obligations.''
In addition, ABA further contends that the cost of complying with
the MRB rules unreasonably burdens interstate commerce, stating, ``The
cost of compliance with the meal and rest break rules are staggering.
Nor are these costs hypothetical.'' The ABA states, ``Requiring
additional driving time and/or drivers would change the fundamental
nature of bus service. Buses would no longer offer the most affordable
source of intercity passenger transportation.''
Several commenting motor carriers also described the operational
burdens imposed by the MRB rules. Greyhound expressed concern about the
requirement that drivers be relieved of all duty during meal breaks
under the MRB rules, stating, ``During rest stops, Greyhound drivers
are still responsible for the safety and security of the bus as well as
passengers. The driver must ensure the safe de-boarding of passengers
and their safe and timely re-boarding, ensure the bus remains secure,
answer passenger questions, retrieve luggage if requested and respond
to emergency situations.'' Greyhound argues, ``The nature of the job
prohibits a completely duty-free break in the majority of locations
where the driver may stop.'' Greyhound states that a driver cannot be
relieved of all duty during MRB rule mandated breaks without other
Greyhound personnel present. Coach USA stated:
Even during scheduled meal and rest breaks, a driver cannot
safely be relieved of all duty. During a scheduled meal stop, for
example, all passengers exit the vehicle, and the driver secures the
bus and then begins his or her meal break. During these breaks,
Coach drivers sometimes are required to address emergency passenger
situations that arise, such as a passenger who needs urgent access
to her insulin or another who needs to access an EpiPen left on the
bus to deal with an allergic reaction. Passengers also sometimes
need bus access for any number of other reasons, such as having left
money needed to purchase food on the bus. If the bus is locked and
secured and the driver has left the area of the bus to take a
California-rule mandated off-duty break, these passengers will face
real problems. Further, passengers with mobility impairments may
also need attention, including assistance in boarding and de-
boarding the bus. In these situations, drivers cannot ignore a
passenger's urgent needs, yet could not meet those needs to the
extent they are required by California regulation to be relieved of
all duty.
Transportation Charter Services commented that complying with the MRB
rules interferes with operational schedules and service connections.
The company explained that the driver's daily itinerary is determined
by the group chartering the bus and that passenger meal, rest, and view
point stops are scheduled based on travel times between destinations,
which do not always coincide with the break time required by the MRB
rules. Other commenters including H & L Charter Co., Pacific Coachways
Charter Services, Best Limousines & Transportation, Royal Coach Tours,
Sierra Pacific Tours, the California Bus Association, and Classic
Charter made similar arguments.
In addition, several commenters described the ways in which
complying with the MRB rules compromises operators' ability to meet
scheduling requirements. Coach USA explained, ``Such mandated stops
make it difficult, if not impossible, for bus carriers to meet
schedules that passengers expect them to meet.'' Coach USA further
stated, ``Passengers depend on such schedules to make connections and
timely arrive at their destinations. The California rules impair the
ability of bus carriers to provide the timely and efficient service
passengers expect and thus unduly burden commerce.'' Coach USA also
said that the unpredictability of driving conditions is already a
burden that bus carriers need to deal with while maintaining schedules
and that ``[a]dding mandatory rest and meal breaks at given hours into
the mix of factors that impact schedules will make keeping such
schedules all the more difficult, burdening the ability of carriers to
meet their interstate commerce obligations.''
Greyhound explained that its network ``is an interlocking
interstate system of schedules which connect with other buses of
Greyhound, other intercity bus companies, local transit, Amtrak and
other modes at hundreds of locations in California and across the
country.'' Greyhound argued that if a driver stops to take a required
break, ``that stop will jeopardize connections throughout the system
that interstate passengers rely on.'' Greyhound said that it carried
769,566 interstate passengers in the last fiscal year who either
started or finished their journeys at a California location. The
company contends, ``All of these passengers face potential disruptions
to their trips because of missed connections or delayed arrivals and
departures caused by the inflexibility of the MRB Rules on the one hand
and the
[[Page 3479]]
vagaries of California traffic on the other.''
Mr. Thomas Miller, an airport shuttle and charter bus operator,
also described administrative and operational burdens associated with
complying with the MRB rules and how they affect scheduling. He
explained, ``California laws with respect to the 5-hour meal break
rules do not work in the bus and charter operator business. Traffic is
so unpredictable you cannot stay legal 100% of the time.'' Mr. Miller
further stated, ``We require our drivers to take an unpaid rest break
at the airport even if the total round trip is under 5 hours. They hate
it, they would rather have it at home on their split shift.''
Several commenters discussed the need to have additional personnel
present with the driver to attend to passenger needs or the need to
undertake other measures in order to comply with the MRB rules. In this
regard, the United Motorcoach Association commented that ``The
California MRB needlessly extends a driver's workday and . . . will
periodically require a relief driver to avoid exceeding driving and/or
on-duty limits to accommodate the California MRB.'' Similarly,
Greyhound stated that complying with the requirement that drivers be
relieved of all duty is impracticable without other Greyhound personnel
present. Coach USA stated, ``Commerce would be further burdened if
carriers were forced to meet the California rules by hiring two
drivers. . . . Not only would this impose extraordinary cost burdens,
but it would make much worse a driver shortage that already confronts
the motor passenger carrier industry.'' Mr. Miller explained that his
attorney advised him to consider having his drivers report for work 40
minutes earlier to account for the MRB rules mandated breaks. Other
commenters such as the Greater California Livery Association and the
National Limousine Association stated that complying the with MRB rules
would result in a ``substantial increase in driver costs'' due to
decreased productivity and the need for additional drivers.
The California Labor Commissioner and Attorney General dispute that
enforcing the MRB rules unreasonably burdens interstate commerce. They
rely on Yoder v. Western Express, Inc., 181 F. Supp.3d 704 (C.D. Cal.
2015), in which a Federal district court held that application of
California's wage and hour laws to a motor carrier did not violate the
dormant Commerce Clause. The Labor Commissioner and the Attorney
General argue that ``California wage and hour laws at issue, including
meal and rest break requirements, should be afforded, at minimum,
significant weight in a Commerce Clause analysis.'' They explain that
the district court in Yoder applied the standard set forth in Pike v.
Bruce Church, Inc., 397 U.S. 137 (1970), under which non-discriminatory
State laws will generally not be found to violate the dormant Commerce
Clause ``unless the burden imposed on [interstate] commerce is clearly
excessive in relation to the putative local benefits.'' See Yoder, 181
F. Supp. 3d at 718 (quoting Pike, 397 U.S. at 142). They note that the
court in Yoder found that ``California has an indisputably legitimate
public interest in enforcing labor laws which protect its workers'' and
rejected the claim of the defendant, Western Express, that the burden
on interstate commerce was clearly excessive in relation to
California's legitimate public interest in regulating employment
matters. See Yoder, 181 F. Supp. 3d at 720. The Labor Commissioner and
the Attorney General conclude that ABA's assertions of an unreasonable
burden on interstate commerce fails ``in light of California's
`legitimate interest in promoting driver and public safety' which FMCSA
has recognized.''
The Amalgamated Transit Union contends that ABA's petition failed
to ``include any evidence of the costs of the MRB rules.'' Similarly,
the Transportation Trades Department/AFL-CIO argues that ``while ABA
makes the claim that `the cost of compliance with the meal and rest
break rules are staggering' it provides absolutely no empirical
evidence for this statement and relies entirely on conjecture.'' The
Teamsters state that ABA ``provides no empirical evidence'' to support
its argument related to the costs associated with MRB rule compliance.
The Teamsters continue, ``For decades, the motor carrier industries
have presumably found a way--one that is feasible--to comply with
federal laws in conjunction with state laws. While and to the extent
that compliance can result in increased expenditures, this does not
outweigh the safety benefits that protect drivers and passengers.''
The FMCSA concludes that application of the MRB rules to passenger-
carrying motor carriers unreasonably burdens interstate commerce. The
Agency does not believe that the operational burdens described by ABA
and the carriers are mere speculation. As ABA correctly states, the MRB
rules provide that ``[u]nless 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.'' Cal. Code Regs.
tit. 8, 11090 ((IWC Order 9-2001), subd. 11(C) (emphasis added). The
California Supreme Court explained that the employee must be free to
leave the premises, without any work-related responsibilities, during
the entire 30-minute period. Brinker Restaurant Corp. v. Superior
Court, 273 P.3d at 533. Further, ``[a]n `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. . . . that the employee may, in writing, revoke the agreement
at any time.'' Ibid. Moreover, an employer may never require their
employees to remain ``on call'' during a 10-minute rest break. Augustus
v. ABM Sec. Servs., Inc., 385 P.3d at 832. The Agency agrees that the
requirement that a driver be relieved of all duty for a meal break or
rest break at specified intervals without regard to location or
passenger needs would result in significant operational burden for the
motor carrier. While the MRB rules provide that an employer and
employee may agree to an ``on duty'' meal break or to waive the meal
break altogether, the employee may unilaterally rescind that agreement
at any time. As ABA and most commenters have described, it would be
untenable for a motor carrier transporting passengers to have the
driver become unavailable to attend to passenger needs at an
inopportune time and location due to an MRB-mandated off-duty break.
The Agency also agrees with ABA that complying with the MRB rules
presents an operational burden regarding scheduling. Under the Federal
HOS rules, motor carriers and drivers have the flexibility to schedule
off-duty breaks in a way the best accommodates the driver's need for
rest, passenger needs, and the travel schedule; the MRB rules offer
much less flexibility.
The FMCSA also concludes that the California Labor Commissioner and
Attorney General do not show that there is no unreasonable burden by
relying on the district court opinion in Yoder v. Western Express. As
noted above, Yoder analyzed whether California's wage and hour laws
violated the dormant Commerce Clause, not whether those laws were
preempted under 49 U.S.C. 31141. FMCSA acknowledges that it has
suggested in the past that the test for determining whether a State law
unreasonably burdens interstate commerce under section 31141 is the
same as or similar to the test for determining whether a State law
[[Page 3480]]
violates the dormant Commerce Clause. Upon further consideration,
however, FMCSA concludes that nothing in the text of section 31141 or
elsewhere suggests that only unconstitutional State laws can cause an
unreasonable burden on interstate commerce. In any event, even if FMCSA
could only find an unreasonable burden on interstate commerce by
finding that the burdens on commerce are clearly excessive in relation
to putative local benefits, that standard would easily be met here. As
discussed above, there is no evidence that the MRB rules provide a
safety benefit beyond the benefits already provided by the Federal HOS
regulations. The significant burdens identified by ABA and the carriers
thus are clearly excessive.
Based on the foregoing, FMCSA concludes that the MRB rules cause an
unreasonable burden on interstate commerce.
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).
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 the
American Association for Justice have pointed out.\13\ The ABA argues
that ``[c]omplying with each of these regulatory schemes absolutely
presents an unreasonable burden on interstate commerce.'' Several other
commenters have described the burden resulting from differing State
meal and rest break laws. Greyhound explained, ``20 other states have
meal and rest break provisions. . . . [t]he potential applicability of
these provisions could wreak havoc on Greyhound's carefully constructed
interstate, interconnected route system and could pose a serious threat
to the many small bus companies, who rely on their Greyhound
connections to support their intercity services.'' The National
Limousine Association and the Greater California Livery Association
explained, ``The proliferation of rules like California's in at least
20 other states, applied to drivers of CMVs in interstate commerce,
would increase the associated productivity loss enormously and
represent an even greater burden on interstate commerce.'' Coach USA
stated that ``confusion would become commonplace to meet all such break
requirements as state borders are crossed.'' The United Motorcoach
Association commented, ``As passenger carrier drivers cross multiple
state lines, the result can be fluctuating start/stop times resulting
in sleep truncation and disruption.'' Other commenters, such as
Transportation Charter Services, Pacific Coachways Charter Services,
Best Limousine & Transportation, Royal Coach Tours, Sierra Pacific
Tours, the California Bus Association, and Classic Charter stated that
having to comply with the meal and rest break requirements of 20 states
and the Federal HOS rules would make it impossible for them to meet
planned schedules and itineraries.
---------------------------------------------------------------------------
\13\ According to the National Conference of State Legislators
and the American Association for Justice, the following States have
meal and rest break 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.
---------------------------------------------------------------------------
In the 2018 Decision, FMCSA described the meal and rest break laws
of Oregon, Nevada, and Washington and noted differences regarding when
each State required a break to occur. See 83 FR 67470, 67479-80. The
Agency determined that the diversity of State regulation of required
meal and rest breaks for CMV drivers has resulted in a patchwork of
requirements. Ibid. The Agency adopts that reasoning here.
The American Association for Justice argues that ABA failed to
provide ``adequate justification for singling out the laws of one state
when similar arguments can be made for the laws in the other 20
states.'' Similarly, the Center for Justice and Democracy argues that
ABA has provided ``no adequate explanation for specifically singling
out California law in this petition.'' The Agency is not persuaded by
this argument. Nothing in section 31141 prohibits a petitioner from
seeking a preemption determination concerning the laws of one State,
even where other States have similar laws. Having concluded that the
MRB rules impose significant operational burden and costs, the Agency
further determines that the burden would be increased by the cumulative
effect of other States' similar laws.
C. Summary
Consistent with the Agency's 2018 Decision, FMCSA acknowledges that
the State of California has a legitimate interest in promoting driver
and public safety. However, just as the Federal HOS rules and other
provisions in the FMCSRs serve to promote that interest with respect to
drivers of property-carrying CMVs, so do they serve to promote it for
drivers of passenger-carrying CMVs. The Labor Commissioner and the
Attorney General have stated that the local benefit of enforcing the
MRB rules is driver and public safety. However, the Agency has
determined that the MRB rules offer no safety benefit beyond the
Federal regulations governing drive-time limits, fatigue, and coercion.
The FMCSA also determines that enforcing the MRB rules results in
increased operational burden and costs. In addition, the Agency finds
that requiring motor carriers to comply with Federal HOS rules and also
identify and adjust their operations in response to the many varying
State requirements is an unreasonable burden on interstate commerce.
Even where the differences between individual State regulations are
slight, uniform national regulation is significantly less burdensome.
The Agency finds that the burden on interstate commerce caused by the
MRB rules is clearly excessive relative to any safety benefit. The
Agency therefore concludes that the MRB rules place an unreasonable
burden on interstate commerce.
Preemption Decision
As described above, 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 passenger-carrying CMVs subject to
FMCSA's HOS rules; (2) the MRB rules are additional to or more
stringent than FMCSA's HOS rules; (3) the MRB rules have no safety
benefit; (4) the MRB rules are incompatible with FMCSA's HOS rules; and
(5) enforcement of the MRB rules would cause an unreasonable burden on
interstate commerce. Accordingly, FMCSA grants ABA's petition for
preemption and determines that the MRB rules are preempted pursuant to
49 U.S.C. 31141. Effective the date of this decision, California may no
longer enforce the MRB rules with respect to drivers of passenger-
carrying CMVs subject to FMCSA's HOS rules.
Issued under authority delegated in 49 CFR 1.87 and redelegated
by Notice executed on January 7, 2020, on: January 13, 2020.
Alan Hanson,
Chief Counsel.
[FR Doc. 2020-00835 Filed 1-17-20; 8:45 am]
BILLING CODE 4910-EX-P