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

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

[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Notices]
[Pages 20463-20464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09548]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0048]


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

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

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

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SUMMARY: FMCSA requests comments on a petition submitted by the 
American Bus Association, Inc. (ABA) requesting a determination that 
the State of California's Meal and Rest Break Rules (MRB Rules), as 
applied to drivers of passenger-carrying 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 June 10, 2019.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2019-0048 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-2019-0048), 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

[[Page 20464]]

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-2019-0048'' 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 on-line 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 the California MRB Rules, as applied 
to property-carrying CMV drivers subject to FMCSA's HOS regulations, 
are preempted under 49 U.S.C. 31141. (Docket No. FMCSA-2018-0304; 83 FR 
67470 (December 28, 2018)). On January 10, 2019, the ABA submitted a 
petition to FMCSA seeking a determination that the same provisions of 
the California MRB Rules, as applied to passenger-carrying CMV drivers 
subject to FMCSA's HOS regulations, are also preempted under 49 U.S.C. 
31141.
    The ABA's petition states that the California Labor Code requires 
employers to ``provide employees with a meal break of not less than 30 
minutes for every five hours worked.'' Petition at 2 (citing Cal. Lab. 
Code Sec.  512(a); California Code of Regulations (CCR) Section 
11090(11)). In addition, the petition states that ``every employer is 
required to `authorize and permit' all employees to take rest periods, 
which insofar as practicable shall be in the middle of each work 
period, at the rate of ten minutes net rest time per four hours or 
major fraction thereof.'' Id. (quoting 8 CCR 11090(12)). This 
authorized rest period time must be ``counted as hours worked for which 
there shall be no deduction from wages.'' Id. The petition further 
states, ``[S]ection 226.7(b) of the California Labor Code states `[a]n 
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 . . ..''' Id. (quoting Cal. Lab. Code Sec.  226.7(b)).
    In its petition, the ABA alleges that the California MRB Rules 
undermine existing Federal fatigue management rules for passenger 
carriers and that they conflict with driver attendance needs. Petition 
at 5-11. The petition also contends that it is difficult for drivers of 
passenger-carrying CMVs to comply with the MRB Rules due to the lack of 
adequate parking and due to Federal service and security requirements. 
Id. at 8-10. Lastly, the petition argues that the cost of complying 
with the MRB Rules creates an unreasonable burden on interstate 
commerce. Id. at 10-11.

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 (FMCSRs); (2) is 
less stringent than such a regulation; or (3) is additional to or more 
stringent than such a regulation 49 U.S.C. 31141(c)(1).
    If the Secretary decides that a State law or regulation has the 
same effect as a regulation prescribed under 49 U.S.C. 31136, the State 
law or regulation may be enforced. 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 ABA's petition or otherwise relevant. The Agency 
has placed the petition in the docket.

    Issued on: May 3, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-09548 Filed 5-8-19; 8:45 am]
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