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

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

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

James W. Deck
Federal Motor Carrier Safety Administration
17 November 2020

[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Notices]
[Pages 73335-73348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25155]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0128]

Washington's Meal and Rest Break Rules for Drivers of 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: FMCSA grants the petition submitted by the Washington Trucking
Associations (WTA) requesting a determination that the State of
Washington's Meal and Rest Break rules (MRB rules) are preempted as
applied to property-carrying commercial motor vehicle drivers subject
to FMCSA's hours of service (HOS) 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. FMCSA
has determined that Washington's MRB rules are laws on commercial motor
vehicle (CMV) safety, that they are more stringent than the Agency's
HOS regulations, that they have no safety benefits that extend beyond
those that the Federal Motor Carrier Safety Regulations (FMCSRs)
already provide, that they are incompatible with the Federal HOS
regulations, and that they cause an unreasonable burden on interstate
commerce. The Washington MRB rules, therefore, are preempted.

FOR FURTHER INFORMATION CONTACT: Mr. 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; Charles.Fromm@dot.gov.

SUPPLEMENTARY INFORMATION:

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 FMCSA-2019-0128 to read background
documents or comments, go to http://www.regulations.gov. The FDMS is
available 24 hours each day, 365 days each year.
Privacy Act: Anyone may search the FDMS for all comments received
into

[[Page 73336]]

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 April 8, 2019, WTA petitioned FMCSA to preempt Washington
statutes and rules requiring employers to give their employees meal and
rest breaks during the work day, as applied to drivers of CMVs subject
to FMCSA's HOS rules. For the reasons set forth below, FMCSA grants the
petition.\1\
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\1\ While WTA seeks preemption of Washington's MRB rules
``insofar as they are applied to commercial motor vehicle drivers
subject to the hours-of-service regulations promulgated by FMCSA,''
the Agency's determination of preemption does not apply to drivers
of passenger-carrying CMVs in interstate commerce. The Agency,
however, would consider any petition asking for a determination as
to whether Washington's MRB rules are preempted with respect to such
drivers.
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Washington's Meal and Rest Break Rules

Section 49.12.005 of Washington's Industrial Welfare Act, codified
at chapter 49.12, Revised Code of Washington (RCW), defines
``employer'' as:
``[A]ny person, firm, corporation, partnership, business trust,
legal representative, or other business entity which engages in any
business, industry, profession, or activity in this state and employs
one or more employees, and includes the state, any state institution,
state agency, political subdivisions of the state, and any municipal
corporation or quasi-municipal corporation. However, this chapter and
the rules adopted thereunder apply to these public employers only to
the extent that this chapter and the rules adopted thereunder do not
conflict with: (i) Any state statute or rule; and (ii) respect to
political subdivisions of the state and any municipal or quasi-
municipal corporation, any local resolution, ordinance, or rule adopted
under the authority of the local legislative authority before April 1,
2003.''
The Industrial Welfare Act defines ``employee'' as, ``an employee
who is employed in the business of the employee's employer whether by
way of manual labor or otherwise.'' RCW 49.12.005.
To implement the Industrial Welfare Act, the Washington Department
of Labor and Industries promulgated regulations at chapter 296-126 of
the Washington Administrative Code (WAC), entitled ``Standards of Labor
for the Protection of the Safety, Health and Welfare of Employees for
All Occupations Subject to Chapter 49.12 RCW.'' In accordance with WAC
296-126-001(1), the regulations apply to all employers and employees,
as defined in the Industrial Welfare Act, except as specifically
excluded.\2\
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\2\ The regulations do not apply to newspaper vendors or
carriers; domestic or casual labor in or about private residences;
agricultural labor as defined in RCW 50.04.150; or sheltered
workshops. WAC 296-126-001(2).
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The regulations at WAC 296-126-092 establish the required meal and
rest periods employers must provide employees, and read as follows:
``(1) Employees shall be allowed a meal period of at least thirty
minutes which commences no less than two hours nor more than five hours
from the beginning of the shift. Meal periods shall be on the
employer's time when the employee is required by the employer to remain
on duty on the premises or at a prescribed work site in the interest of
the employer.
``(2) No employee shall be required to work more than five
consecutive hours without a meal period.''
``(3) Employees working three or more hours longer than a normal
work day shall be allowed at least one thirty-minute meal period prior
to or during the overtime period.''
``(4) Employees shall be allowed a rest period of not less than ten
minutes, on the employer's time, for each four hours of working time.
Rest periods shall be scheduled as near as possible to the midpoint of
the work period. No employee shall be required to work more than three
hours without a rest period.''
``(5) Where the nature of the work allows employees to take
intermittent rest periods equivalent to ten minutes for each 4 hours
worked, scheduled rest periods are not required.''

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 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 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 that
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 the FMCSA Administrator. 49 CFR 1.87(f).

FMCSRs Concerning HOS for Drivers of Property-Carrying CMVs, Fatigue,
and Coercion

For truck drivers operating a CMV in interstate commerce, the
Federal HOS rules impose daily limits on driving time. 49 CFR 395.3. In
this regard, a driver may not drive after a period of 14 consecutive
hours after coming on-duty following 10 consecutive hours off-duty. Id.
at 395.3(a)(1)-(2). A driver may drive a total of 11 hours during the
14-hour duty window. Id. at 395.3(a)(3)(i). In addition, after 8 hours
of driving time, the HOS rules require long-haul truck drivers
operating a CMV in interstate commerce to take a break from driving for
at least 30 consecutive minutes, if they wish to continue driving. Id.
at 395.3(a)(3)(ii).\3\ A driver may satisfy the 30-minute break
requirement by spending the time off-duty, on-duty not driving, in the
sleeper berth, or any

[[Page 73337]]

combination of these non-driving statuses. Id. The HOS rules also
impose weekly limits after which driving is prohibited. Id. at
395.3(b). There are separate HOS rules, imposing different limits on
driving time, for drivers of passenger-carrying CMVs. Id. at 395.5.
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\3\ On June 1, 2020, FMCSA published a final rule, which went
into effect on September 29, 2020, revising the 30-minute break
requirement. The revised HOS rules require a ``consecutive 30-minute
interruption in driving status'' after 8 hours of driving time,
rather than a 30-minute off-duty break after 8 hours of on-duty
time. See Final Rule: Hours of Service of Drivers, 85 FR 33396,
33452.
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In addition, the FMCSRs also prohibit a driver from operating a
CMV, and a motor carrier from requiring a driver to operate a CMV,
while the driver is so impaired, or so likely to become impaired by
illness, fatigue, or other cause that it is unsafe for the driver to
begin or continue operating the CMV. 49 CFR 392.3. The FMCSRs also
prohibit a motor carrier, shipper, receiver or transportation
intermediary from coercing a driver to operate a CMV in violation of
this and other provisions of the FMCSRs or Hazardous Materials
Regulations. 49 CFR 390.6.

The Agency's Prior Decisions Regarding Preemption of Meal and Rest
Break Rules Under Section 31141

I. FMCSA's 2008 Decision Rejecting a Petition to Preempt California's
MRB Rules

On July 3, 2008, a group of motor carriers \4\ petitioned FMCSA for
a determination under 49 U.S.C. 31141(c) that: (1) California's MRB
rules were regulations on CMV safety, (2) the putative State regulation
imposed limitations on a driver's time that were different from and
more stringent than Federal ``hours of service'' regulations governing
the time a driver may remain on duty, and (3) the State law should
therefore be preempted. 73 FR 79204.
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\4\ 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 California's MRB rules were merely one part
of the State's comprehensive regulation of wages, hours, and working
conditions, and that they applied to employers in many other industries
in addition to motor carriers. 73 FR 79204. FMCSA concluded that
California's 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 as a State motor vehicle safety
regulation that is inconsistent with Federal safety requirements.\5\
Id. at 79205-06.
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\5\ 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
section 31141 did not preempt California's MRB rules 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 California's
MRB Rules, as applied to Drivers of Property-Carrying CMVs

In 2018, the American Trucking Associations (ATA) and the
Specialized Carriers and Rigging Association 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 that a
Federal regulation designed to ensure motor vehicle safety already
covered. The 2018 petitioners also provided evidence that California's
meal and rest break laws were detrimental to the safe operation of
CMVs.
On December 21, 2018, FMCSA issued a determination declaring
California's MRB rules preempted with respect to drivers of property-
carrying CMVs 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. Id. at 67473-74. The Agency explained
that its 2008 decision was ``unnecessarily restrictive'' and not
supported by either the statutory language or legislative history. Id.
The Agency considered the fact that the language of section 31141
mirrors that of 49 U.S.C. 31136, which instructs the Secretary to
``prescribe regulations on commercial motor vehicle safety.'' 49 U.S.C.
31136(a). 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.'' Id. at 67473. The Agency further determined that because
California's MRB rules plainly regulated the same conduct as the
Federal HOS rules, 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 rules. 83 FR 67474-75. FMCSA found that California's MRB
rules require employers to provide property-carrying CMV drivers with
more rest breaks than the Federal HOS rules; and allow a smaller window
of driving time before a break is required. Id.
The Agency next explained that because California's MRB rules are
more stringent, they may be preempted if the Agency determined that the
MRB rules have no safety benefit, that they are incompatible with HOS
rules, or that enforcement of the MRB rules would cause an unreasonable
burden on interstate commerce. 83 FR 67475. FMCSA found that
California's 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. Id. at 67475-77. The Agency also determined that the MRB
rules were incompatible with the Federal HOS rules because they
required employers to provide CMV drivers with more breaks, at less
flexible times, than the Federal HOS rules. Id. at 67477-78.
Lastly, the Agency determined that enforcing California's 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. Id. at 67478-79. The Agency also

[[Page 73338]]

considered the cumulative effect on interstate commerce of similar laws
and regulations in other States. Currently 21 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. Id. 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.

III. FMCSA's 2020 Decision Granting a Petition to Preempt California's
MRB Rules, as Applied to Drivers of Passenger-Carrying CMVs

In 2019, the American Bus Association (ABA) submitted a petition to
FMCSA requesting a determination that California's MRB rules are
preempted under 49 U.S.C. 31141, as applied to passenger-carrying CMV
drivers subject to the Agency's HOS regulations. Citing the Agency's
2018 decision, ABA argued that California's MRB rules are within the
scope of the Secretary's preemption authority under section 31141
because they are laws on CMV safety. In addition, ABA argued that
California's MRB rules undermine existing Federal fatigue management
rules, that they are untenable due to inadequate parking for CMVs, and
that compliance costs create an unreasonable burden on interstate
commerce.
On January 13, 2020, FMCSA issued a determination declaring
California's MRB rules preempted with respect to drivers of passenger-
carrying CMVs subject to the Federal HOS rules; the decision was
published in the Federal Register on January 21, 2020. See 85 FR 3469.
The Agency determined that both California's MRB rules and the Federal
HOS rules govern fatigue management for drivers of passenger-carrying
CMVs; therefore, they are laws ``on commercial motor vehicle safety.''
See id. at 3472-74. FMCSA next determined that California's MRB rules
are additional to or more stringent than the Federal HOS rules for
passenger carriers because they require employers to provide CMV
drivers with meal and rest breaks at specified intervals. See id. at
3474-75. The Agency found that California's MRB rules provide no safety
benefit beyond the Federal regulations and that they are incompatible
with the Federal HOS rules. See id. at 3475-77. The Agency also
determined that enforcing California's MRB rules would impose an
unreasonable burden on interstate commerce due to the increased
operational burden and costs associated with compliance. See id. at
3478-80. In addition, the Agency considered the cumulative effect on
interstate commerce of similar meal and rest break laws and regulations
in other States and determined that the diversity of State regulation
of meal and rest breaks for CMV drivers has resulted in a patchwork of
requirements that is an unreasonable burden on interstate commerce. See
id. at 3480.

The WTA Petition and Comments Received

As set forth more fully below, WTA argued in its 2019 petition that
``FMCSA's recent determination that California's meal and rest break
rules are preempted under section 31141 compels the same conclusion
with respect to Washington's rules.'' In this regard, WTA contended
that Washington's MRB rules are like California's and therefore are
also laws ``on commercial motor vehicle safety'' within the scope of
the Secretary's preemption authority under section 31141. WTA further
argued that Washington's MRB rules are additional to or more stringent
than the Federal HOS rules, that they provide no safety benefits beyond
the Federal HOS rules, that they are incompatible with the Federal HOS
rules, and that they impose an unreasonable burden on interstate
commerce. WTA's petition seeks an FMCSA determination that Washington's
MRB rules, as applied to CMV drivers who are subject to the HOS rules,
are preempted pursuant to section 31141 and, therefore, may not be
enforced.
FMCSA published a notice in the Federal Register on October 9, 2019
seeking public comment on whether Federal law preempts Washington's MRB
rules. 84 FR 54266. Although preemption under section 31141 is a legal
determination reserved to the judgment of the Agency, FMCSA sought
comment on the issues raised in WTA's petition or those that were
otherwise relevant. Id. The Agency received and considered 33 comments
on the petition,\6\ with 24 commenters supporting preemption and 9
opposing.\7\ The comments are discussed more fully below.
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\6\ Thirty-five comments were submitted to the docket; however,
two comments raised unrelated issues.
\7\ The Center for Justice and Democracy submitted a comment
letter, opposing WTA's petition, that 30 organizations joined.
Senator Patty Murray and Representative Peter DeFazio submitted a
comment letter, opposing WTA's petition, that 12 members of Congress
joined.
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Decision

I. Section 31141 Expressly Preempts State Law, Therefore the
Presumption Against Preemption Does Not Apply

In joint comments opposing WTA's petition, the American Association
for Justice and the Washington State Association for Justice
(collectively ``the Associations for Justice'') contended that
Washington's MRB rules are subject to a presumption against preemption
that requires FMCSA to adopt ``the reading that disfavors pre-emption''
in interpreting section 31141. Quoting Bates v. Dow Agrosciences LLC,
544 U.S. 431, 449 (2005), the Associations for Justice argued, ``Only
if Congress has made its preemptive intent `clear and manifest' will
state law be forced to give way `[i]n areas of traditional state
regulation.'''
The presumption against preemption is a canon of statutory
interpretation that courts employ 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 Agency acknowledges that ``in all preemption cases, and
particularly in those in which Congress has legislated in a field which
the States have traditionally occupied, [courts] start with the
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)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). 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 Associations
for Justice's reliance on Bates v. Dow Agrosciences LLC is misplaced
because section 31141 is an express preemption clause that makes
``clear and manifest'' Congress's preemptive intent. 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.

[[Page 73339]]

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 authorizes the
Secretary to preempt State laws on commercial motor vehicle safety.
Thus, Washington's MRB rules are not subject to a presumption against
preemption, and the question that FMCSA must answer is whether they
should be preempted under section 31141.

II. Washington's MRB Rules, as Applied to Drivers of Property-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 FMCSA's
2008 decision declining to preempt California's MRB rules, which are
similar to Washington's rules, the Agency narrowly construed section
31141. In this regard, the Agency concluded that because the MRB rules
are ``one part of California's comprehensive regulations governing
wages, hours and working conditions,'' and apply to many industries,
the provisions are not regulations ``on CMV safety,'' and, thus, were
not within the scope of the Secretary's preemption authority. 73 FR
79204, 79206. FMCSA reconsidered this conclusion and explained in its
2018 decision preempting California's MRB rules, as applied to driver
of property-carrying CMVs, 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 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.

The Agency adopted this reasoning in its January 2020 decision
preempting California's MRB rules, as applied to drivers of passenger-
carrying CMVs. 85 FR 3473. Consistent with the Agency's decisions
preempting California's MRB rules, FMCSA reiterated 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.''
With regard to Washington's MRB rules, WTA argued that,
``Washington's meal and rest break rules . . . are subject to review
under section 31141'' in accordance with the Agency's framework
established in the 2018 decision preempting California's MRB rules.
Quoting FMCSA's 2018 decision, WTA further contended that Washington's
MRB rules are laws on CMV safety because they ``impose the same types
of restrictions on CMV driver duty and driving times as FMCSA's HOS
rules, which were enacted pursuant to the Secretary's authority in
section 31136.'' The Agency agrees. The Federal HOS rules have long
imposed drive time limits for drivers. In addition, the Federal
regulations also prohibit drivers from operating CMVs when fatigued,
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 Washington's
MRB rules and FMCSA's regulations cover the same subject matter
concerning CMV driver duty and driving times. Therefore, the Agency
determines that Washington's MRB rules, as applied to drivers of
property-carrying CMVs, are laws on CMV safety.
Joint comments from Washington's Governor and Attorney General
opposing WTA's petition further illustrate that Washington's MRB rules
are laws on CMV safety. In this regard, the Governor and Attorney
General stated, ``Washington enacted our meal-and-rest break standards
to provide increased safety protections to all drivers.'' They further
explained, ``By ensuring workers can take a rest break after every four
hours worked and a meal break within the first five hours of their
shift, Washington's rules are a critical tool to prevent drivers from
reaching the levels of fatigue that could result in significant
increased risk of accidents on our roadways . . . .'' The Governor and
Attorney General characterized the Washington MRB and Federal HOS rules
as having ``the common purpose of preventing fatigue and decreasing the
likelihood of dangerous accidents.'' These statements support FMCSA's
conclusion that Washington's MRB rules are laws ``on CMV safety'' and,
therefore, fall squarely within the scope of the Secretary's preemption
authority.
In comments opposing WTA's petition, the Washington Department of
Labor and Industries argued that the State's MRB rules are not laws
``on CMV safety'' but, rather, are ``laws of general applicability,
governing rest breaks across multiple industries.'' Citing Merriam-
Webster Dictionary, the Department of Labor and Industries further
contended that ``on'' is defined as ``with respect to'' and that
Washington's MRB rules are not laws ```with respect to' commercial
motor vehicle safety where [their] topic is not commercial motor
vehicle safety but employee meal and rest breaks generally.'' The
Washington Employment Lawyers Association (WELA) and the International
Brotherhood of Teamsters (Teamsters), made similar arguments concerning
the generally applicable nature of Washington's MRB rules in their
comments opposing WTA's petition.
The Agency disagrees. While a State law specifically directed only
at CMV safety would unquestionably be within the scope of section
31141, the Federal statute does not limit preemption to State laws
enacted only to cover CMV safety. Instead, section 31141 asks the
Agency to review ``state law[s] or regulation[s] on commercial motor
vehicle safety,'' and compare them to Federal regulations ``on
commercial motor vehicle safety'' promulgated under 49 U.S.C. 31136 in
order to promote a more uniform nationwide regulatory regime. As
explained below, a State regulation of broad applicability might, as
applied to commercial trucking, raise precisely the concerns that
Congress required the Secretary to address in order to avoid
unnecessary disuniformity and undue burdens on interstate commerce. See
Public Law 98-554, title II Sec. 202, 203; S. Rep. 98-424, at 14
(1984). Therefore, it is immaterial that Washington's MRB rules have
general applicability to employers and workers in the State. When the

[[Page 73340]]

MRB rules are applied to CMV drivers, they govern the same conduct as
the Federal HOS rules; they are therefore laws on CMV safety.
The Associations for Justice and WELA argued that section 31141
should be read in line with the safety exception to the express
preemption provision of the Federal Aviation Administration
Authorization Act of 1994 (FAAAA), which preempts State laws that are
related to a price, route, or service of a motor carrier of property.
See 49 U.S.C. 14501(c). The FAAAA exempts from preemption ``the safety
regulatory authority of a State with respect to motor vehicles.'' See
49 U.S.C. 14501(c)(2)(A). Quoting City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 441 (2002), the Associations for
Justice stated that laws directed at safety are exempt from section
14501(c) because section 31141 `` `affords the Secretary . . . a means
to prevent the safety exception from overwhelming [Congress's]
deregulatory purpose.' '' WELA notes that several district courts have
held that California's MRB rules do not fall within the FAAAA's safety
exception, and argues that the rules therefore cannot be covered by
section 31141.
The Agency finds this argument unavailing. Nothing in the FAAAA's
safety exception in section 14501(c)(2)(A) or in the Supreme Court's
decision in Ours Garage serves to limit the scope of the Secretary's
preemption authority under section 31141 to just those State laws
enacted with the specific intent to cover only CMV safety. Congress
enacted sections 14501(c)(2)(A) and 31141 to achieve different
purposes; therefore, the scope of one section does not necessarily
correlate to the other. In this regard, section 14501(c)(2)(A) serves
to ensure that the preemption of a State's economic authority over
motor carriers of property does not infringe upon a State's exercise of
its traditional police power over safety. See Ours Garage, 536 U.S. at
426. However, as explained above, Congress enacted the earlier 1984
Act, which includes section 31141, to ensure that there be as much
uniformity as practicable whenever a Federal standard and a State
requirement cover the same subject matter.\8\ The Supreme Court's
decision in Ours Garage merely noted that a State law that falls within
the FAAAA's safety exception--and therefore is not preempted by the
FAAAA--may nevertheless be preempted under section 31141. That decision
did not suggest that the two provisions are necessarily coextensive.
The Agency is not here called upon to decide whether the FAAAA's safety
exception would apply to California's MRB rules, and need not decide
that question in order to determine that section 31141 applies.
---------------------------------------------------------------------------

\8\ Congress enacted the 1984 Act 10 years before the FAAAA. See
Motor Carrier Safety Act of 1984, Public Law 98-554, title II, sec.
208, 98 Stat. 2829, 2836-37 (Oct. 30, 1984); Federal Aviation
Administration Authorization Act of 1994, Public Law 103-305, title
VI, sec. 601(c), 108 Stat. 1569, 1606 (Aug. 23, 1994); see also ICC
Termination Act of 1995, Public Law 104-88, title I, sec. 103, 109
Stat. 803, 899 (Dec. 29, 2995).
---------------------------------------------------------------------------

The Associations for Justice also argued that the Agency should
adhere to the legal position articulated in the 2008 decision regarding
California's rules and stated, ``FMCSA's previous longstanding position
is correct--it lacks statutory authority to preempt generally
applicable state labor laws that are not specifically directed at
safety.'' FMCSA disagrees. As the Agency explained in the 2018 and 2020
decisions preempting California's MRB rules, FMCSA's 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).
FMCSA's decisions preempting California's MRB rules acknowledged the
Agency's 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
Washington's MRB rules are laws on CMV safety, as applied to drivers of
property-carrying CMVs.
WELA argued that section 31141 gives no indication that Congress
intended that the Agency's preemption authority extend to a State law
that imposes requirements in an area of regulation that is within
FMCSA's section 31136 regulatory authority. WELA stated, ``If Congress
had intended such a result, it could (and would) have said so
explicitly.'' The Agency disagrees. As FMCSA explained in its decisions
preempting California's MRB rules, the Agency's interpretation of
section 31141 is 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); id.
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. The Agency believes
that 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.
Furthermore, the Agency continues to find that its 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). Congress made clear,
however, that any changes made during its 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. Washington's MRB rules, as applied to
drivers of property-carrying CMVs subject to the HOS rules, clearly
``pertain to'' CMV safety, as Washington's Governor and Attorney
General confirmed, and therefore fall within the scope of section
31141. See, e.g., ``Pertain,'' Black's Law Dictionary (11th ed. 2019)
(``To relate directly to; to concern or have to do with.'')
The Associations for Justice argued that, ``Congress and the
Supreme Court declined to preempt the rules, largely because these laws
are viewed as important state employment protections applicable across
industries.'' In this regard, the Associations stated:

In the last two years, the motor carrier industries have
unsuccessfully tried to preempt state meal and rest laws through the
legislative branch by amendments to the recently passed Federal
Aviation

[[Page 73341]]

Administration Reauthorization Act of 2018. See H.R.302 FAA
Reauthorization Act of 2018, Public Law 115-254 (2018). Congress
decided not to include these amendments in the final passage of the
bill. Additionally, the trucking industry also unsuccessfully tried
to preempt state meal-and-rest-break rules by asking the U.S.
Supreme Court to overturn yet another court of appeals decision
upholding state meal and rest break laws. Ortega v. J. B. Hunt
Transport, Inc., 694 Fed. Appx. 589 (9th Cir. 2017) (unpublished),
cert. denied, 138 S. Ct. 2601 (2018). The Supreme Court declined the
invitation, allowing the rules to continue to be enforced.

The Agency finds this argument unpersuasive. The Supreme Court has
explained that ``Congressional inaction lacks persuasive significance
because several equally tenable inferences may be drawn from such
inaction . . .'' Central Bank of Denver, N.A. v. First Interstate Bank
of Denver, N. A., 511 U.S. 164, 187 (1994) (internal quotations
omitted); see also Rapanos v. United States, 547 U.S. 715, 750 (noting
that, while the Supreme Court has ``sometimes relied on congressional
acquiescence when there is evidence that Congress considered and
rejected the `precise issue' presented before the Court,'' it does so
only when there is ``overwhelming evidence of acquiescence'') (emphases
in original). Here, the Associations have presented no evidence that
Congress considered the ``precise issue'' of whether State meal and
rest break laws are within the Secretary's preemption authority under
section 31141. Thus, what the Associations portray as congressional
recognition that the MRB rules are ``important state employment
protections applicable across industries'' should more appropriately be
called Congress's failure to express any opinion. See id. The
Associations' argument that the Supreme Court declined to preempt meal
and rest break laws is equally flawed. In the matter of Ortega v. J. B.
Hunt Transport, Inc., the question before the Ninth Circuit was whether
California's MRB rules were ``related to'' prices, routes, or services,
and therefore as a matter of law preempted by the FAAAA. See 694 Fed.
Appx. at 590. The Supreme Court declined to review preemption of
California's MRB rules under the FAAAA, not under section 31141. And
even with respect to the FAAAA issue, the Supreme Court's ``denial of a
writ of certiorari import[ed] no expression of opinion upon the merits
of the case. . .'' Missouri v. Jenkins, 515 U.S. 70, 85 (1995) (quoting
United States v. Carver, 260 U.S. 482, 490 (1923)).
The Associations for Justice also argued that the Agency's
interpretation of the scope of the phrase ``on commercial motor vehicle
safety'' in section 31141 would ``impose on the Secretary an
implausible, impractical burden of reviewing many thousands of
background state rules and then determining how their effect on safety
compares with federal requirements.'' The Agency finds this argument
without merit. Title 49 CFR parts 350 and 355 set forth the process for
FMCSA's continuous review of State laws and regulations.

III. Washington's MRB Rules Are ``Additional to or More Stringent
Than'' the Agency's HOS Rules for Property-Carrying Vehicles Within the
Meaning of Section 31141

Having concluded that Washington's MRB rules, as applied to drivers
of property-carrying CMVs, are laws ``on commercial motor vehicle
safety,'' under section 31141, the Agency next must decide whether they
have the same effect as, are less stringent than, or are additional to
or more stringent than the Federal HOS rules for property-carrying
CMVs. 49 U.S.C. 31141(c)(1). As described above, the Federal HOS rules
establish daily and weekly limits on driving time for all drivers of
property-carrying CMVs operating in interstate commerce and
additionally require long-haul truck drivers to take a break from
driving of at least 30 minutes after 8 hours of driving time if they
wish to continue driving. 49 CFR 395.3(a)-(b). Washington's MRB rules
require employers to provide a meal period of at least 30 minutes that
commences after the second hour and before the fifth hour after the
shift commences. WAC 296-126-092(1)-(2). To illustrate, the Department
of Labor and Industries explained, ``[A]n employee who normally works a
12-hour shift shall be allowed to take a 30-minute meal period no later
than at the end of each five hours worked.'' See Department of Labor
and Industries, Administrative Policy ES.C.6.1, paragraph 5 (Dec. 1,
2017).\9\ The Washington MRB rules further provide, ``Employees working
three or more hours longer than a normal work day shall be allowed at
least one thirty-minute meal period prior to or during the overtime
period.'' WAC 296-126-092(3). While an employee may choose to waive the
meal period requirement, the employee may rescind the waiver agreement
at any time. See Department of Labor and Industries, Administrative
Policy ES.C.6.1, paragraph 8.
---------------------------------------------------------------------------

\9\ The Department of Labor and Industries further explained
that while meal periods may be unpaid as long as employees are
completely relieved from duty, employees who are not relieved of all
work duties during the meal break must be paid. See Department of
Labor and Industries, Administrative Policy ES.C.6.1, paragraph 6.
---------------------------------------------------------------------------

In addition, Washington's MRB rules provide for a 10-minute rest
period ``for each four hours of working time'' and must occur no later
than the end of the third working hour. WAC 296-126-092(4).\10\ The
rest period must be scheduled as near as possible to the midpoint of
the four hours of working time, and no employee may be required to work
more than three consecutive hours without a rest period. See Department
of Labor and Industries, Administrative Policy ES.C.6.1, paragraph 11.
Employees may not waive their right to a rest period. Id. at paragraph
9.
---------------------------------------------------------------------------

\10\ Employers are excepted from the requirement to provide a
rest period ``Where the nature of the work allows employees to take
intermittent rest periods equivalent to ten minutes for each 4 hours
worked.'' WAC 296-126-092(5). The Department of Labor and Industries
defines an ``intermittent rest period'' as ``an interval of short
duration in which employees are allowed to rest, relax, and engage
in brief personal activities while relieved of all work duties.''
Department of Labor and Industries, Administrative Policy ES.C.6.1,
paragraph 12.
---------------------------------------------------------------------------

Quoting the Agency's 2018 decision preempting California's MRB
rules, WTA argued that because Washington's rules ```require employers
to provide CMV drivers with more rest breaks than the Federal HOS
rules, and they allow a smaller window of driving time before a break
is required' . . . they are additional to, and more stringent than, the
federal HOS rules.'' In comparing Washington's and California's MRB
rules, WTA stated, ``In certain respects, . . . Washington's rules are
more restrictive than California's. For example, Washington requires a
30-minute break somewhere between the second and fifth hour of each
five-hour work period, while California's requirement only requires
such a break any time before the end of the fifth hour of work.'' The
Agency agrees. The HOS rules require long-haul truck drivers in
interstate commerce to take a 30-minute break from driving within a
specified period; however, drivers are not constrained as to when to
take the break within that period. While the HOS rules do not require
short-haul truck drivers operating in interstate commerce to take a
driving break during the duty window, both long- and short-haul drivers
may schedule rest periods as needed to avoid driving while too fatigued
to do so safely, as the Federal regulations prohibit. See 49 CFR 392.3.
Washington's MRB Rules require employers to provide CMV drivers with
more rest breaks than the Federal HOS rules, and they allow a smaller
window of driving time before a break is required.

[[Page 73342]]

The Department of Labor and Industries did not deny that
Washington's MRB rules require more breaks than the HOS rules. The
Department of Labor and Industries argued that the MRB rules are not
more stringent than the HOS rules because employers can seek a variance
to allow for alternative scheduling of breaks. The Agency disagrees
with this argument. Washington plainly requires more breaks at more
frequent intervals than the HOS rules. Because of this, employers of
drivers of property-carrying CMVs could not meet just the minimum
requirements of the Federal HOS rules without 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 subject matter only
when meeting the minimum criteria of the less stringent provision
causes one to violate the other provision on its face.'')
In addition, while Washington law \11\ provides that employers may
receive a variance from the MRB rules if the employer can show ``good
cause,'' the Department of Labor and Industries would determine if the
employer met the burden of showing that ``good cause'' exists.\12\
Thus, a variance is not a matter of right for employers, and the
Department of Labor and Industries may deny a variance request if it
determines, in its judgment, that the employer failed to establish good
cause. In addition, the Department of Labor and Industries ``may
terminate and revoke the variance at any time, as long as the employer
is given 30 days notice.'' Department of Labor and Industries,
Administrative Policy ES.C.9 (Jan. 2, 2002). Washington's MRB rules
therefore are ``additional to or more stringent than'' the HOS rules.
---------------------------------------------------------------------------

\11\ Under Washington law, ``An employer may apply to the
director for an order for a variance from any rule or regulation
establishing a standard for wages, hours, or conditions of labor
adopted by the director under this chapter. The director shall issue
an order granting a variance if the director determines or decides
that the applicant for the variance has shown good cause for the
lack of compliance.'' RCW 49.12.105.
\12\ `` `Good cause' means, but is not limited to, those
situations where the employer can justify the variance and can prove
that the variance does not have a harmful effect on the health,
safety, and welfare of the employees involved.'' WAC 296-126-130(4).
---------------------------------------------------------------------------

IV. Washington's MRB Rules Have No Safety Benefits That Extend Beyond
Those That the FMCSRs Provide

Because Washington's MRB rules, as applied to drivers of property-
carrying CMVs, are more stringent than the Federal HOS rules, they may
be enforced unless the Agency also decides either that they have no
safety benefit, that they are incompatible with the HOS rules, 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 three conditions in paragraph (c)(4) exists to preempt
the MRB rules. Id.
Section 31141 authorizes the Secretary to preempt Washington's MRB
rules if they have ``no safety benefit.'' 49 U.S.C. 31141(c)(4)(A).
Consistent with the Agency's decisions preempting California's MRB
rules, FMCSA continues to interpret this language as applying to any
State law or regulation that provides no safety benefit beyond the
safety benefit that the relevant FMCSA regulations already provide. 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.
A. Fatigue
WTA argued that Washington's MRB rules offer no safety benefits
beyond those already realized under Federal regulations and that they
``interfere with the flexibility that is an important component of the
federal HOS rules.'' In its comments, ATA agreed, stating:

Washington's break rules offer no prospect of a safety benefit.
The federal rules themselves give drivers the absolute right to take
a break whenever they believe fatigue or anything else renders them
unable to drive safely, 49 CFR 392.3, with stiff penalties for motor
carriers or customers who coerce them not to exercise that right,
id. Sec. 390.6. Thus, with respect to mitigating driver fatigue,
Washington's rules provide federally-regulated commercial drivers
with nothing they do not already enjoy under the federal rules.

In joint comments, the National Propane Gas Association and the Pacific
Propane Gas Association (collectively, ``the Propane Gas
Associations'') stated that Washington's MRB rules ``do not present [a]
reasonable safety benefit for the transportation of hazardous
materials.'' Oak Harbor Freight Lines, a company that employs more than
1,700 people in five western states, commented that the company focuses
on its safety data, and, ``ha[s] not seen a difference in accident
rates or other safety concerns between [the company's] drivers who
operate under Washington's rules and those operating under DOT rules.''
Other commenters discussed the lack of flexibility under
Washington's MRB rules. The National Industrial Transportation League
stated, ``imposing the Washington standards without any flexibility
disincentivizes drivers from taking breaks when they truly are
fatigued, as they are forced to take the prescribed breaks when they
may not need them. This approach increases rather than reduces the
safety risks associated with fatigued driving.'' Similarly, Uline, an
interstate property carrier, commented that FMCSA's HOS rules ``provide
drivers with the flexibility to take breaks when they actually need
them in order to reduce accidents caused by fatigue or exhaustion.''
The Agency agrees with WTA. The HOS rules and other provisions of
the FMCSRs establish a fatigue management framework for drivers of
property-carrying CMVs that requires drivers to take a 30-minute break
from driving after eight hours of drive time, prohibits a driver from
operating a CMV if she feels too fatigued or is otherwise unable to
drive safely, and prohibits employers from coercing a driver too
fatigued to operate the CMV safely to remain behind the wheel. See 49
CFR 395.3(a)(3)(ii), 392.3, 390.6. For short-haul drivers who are
exempt from FMCSA's 30-minute break requirement, the Federal
regulations sufficiently mitigate the risk of crashes by prohibiting
fatigued driving and coercion. The HOS rules, moreover, prohibit
drivers of property-carrying CMVs from driving more than 11 hours
during a 14-hour shift, require them to take at least 10 hours off
between 14-hour shifts, and prohibit them from exceeding certain caps
on weekly on-duty time. 49 CFR 395.3. The Agency believes that this
framework is appropriate because it provides some level of flexibility
while still prohibiting a driver from operating a CMV when too fatigued
to do so safely. Washington's additional requirements that breaks be of
specific durations, and occur within specific intervals, do not provide
additional safety benefits. In addition, interposing the MRB rules on
top of the

[[Page 73343]]

Agency's framework eliminates the regulatory flexibilities provided and
requires the driver to stop the CMV and log off duty at fixed intervals
each day regardless of the driver's break schedule or actual level of
fatigue. FMCSA notes, moreover, that the HOS rules are the product of
multiple rounds of thorough consideration of the best ways to ensure
CMV safety, extending through the issuance of the recent final rule.
See 85 FR 33396 (June 1, 2020). Washington's generally-applicable
requirements, in contrast, are not tailored to the specific
circumstances of the motor carrier industry, and do nothing to enhance
the safety benefits that FMCSA's comprehensive, tailored regulations
already provide.
The Department of Labor and Industries contended that Washington's
MRB rules have safety benefits and attached the following studies,
reports, and other documents, totaling more than 350 pages, to its
comments:

1. Susan A. Soccolich, et al., An Analysis of Driving and Working
Hour on Commercial Motor Vehicle Driver Safety Using Naturalistic
Data Collection, 58 Accident Analysis and Prevention 249 (2013);
2. Kun-Feng Wu, Paul Jovanis, Effect of Driving Breaks and 34-hour
Recovery Period on Motor Carrier Crash Odds, In: Proceedings of the
Sixth International Driving Symposium on Human Factors in Driver
Assessment, Training and Vehicle Design, Lake Tahoe, California
(2011);
3. Paul P. Jovanis, et al., Effects of Hours of Service and Driving
Patterns on Motor Carrier Crashes, Transportation Research Board,
Journal of the Transportation Research Board, No. 2231, p 119-127
(2012);
4. Myra Blanco, et al., The Impact of Driving, Non-Driving Work, and
Rest Breaks on Driving Performance in Commercial Motor Vehicle
Operations, Federal Motor Carrier Safety Administration, FMCSA-RRR-
11-017 (2011);
5. Lianzhen Wang, Yulong Pei, The Impact of Continuous Driving Time
and Rest Time on Commercial Drivers' Driving Performance and
Recovery, 50 Journal of Safety Research 11 (2014);
6. Sergio Garbarino, et al., Sleep Apnea, Sleep Debt and Daytime
Sleepiness Are Independently Associated with Road Accidents. A
Cross-Sectional Study on Truck Drivers, PLoS ONE, e0166262 (2016);
7. Lynn Meuleners, et al., Determinants of The Occupational
Environment and Heavy Vehicle Crashes in Western Australia: A Case-
Control Study, 99 Accident Analysis and Prevention 452 (2017);
8. Wash. State Emp't Security Dep't, 2018 Labor Market and Economic
Report;
9. Wash. State Dep't of Licensing, 2018 Statistics At-a-Glance;
10. Guang X. Chen, et al., NIOSH National Survey of Long-Haul Truck
Drivers: Injury and Safety, 85 Accident Analysis & Prevention 66
(2015);
11. Federal Motor Carrier Safety Administration, CMV Driving Tips--
Driver Fatigue;
12. Department of Labor and Industries, Administrative Policy
ES.C.6.1 (2017);
13. Chen and Yuanchang Xie, Modeling the Safety Impacts of Driving
Hours and Rest Breaks on Truck Drivers Considering the Dependent
Covariates, 51 J. Safety Research 57 (Dec. 2014);
14. Chen and Yuanchang Xie, The Impacts of Multiple Rest Break
Periods on Commercial Truck Drivers' Crash Risk, 48 J. Safety
Research 87 (2014);
15. National Transportation Safety Board, 2017-2018 Most Wanted
List, Reduce Fatigue Related Accidents (2017);
16. National Transportation Safety Board, Safety Recommendation, H-
94-005, H-94-006 (1994);
17. National Transportation Safety Board, Safety Recommendation, H-
95-005 (1995);
18. Ping-Huang Ting, et al., Driver Fatigue and Highway Driving: A
Simulator Study, 94 Physiology & Behavior 448 (2008).

While the Department of Labor and Industries did not make a
specific argument about most of the documents appended to its comments,
it made reference to a few of them. In this regard, the Department of
Labor and Industries quoted the Agency's CMV Driving Tips on driver
fatigue, which state, ``[Thirteen] percent of commercial motor vehicle
(CMV) drivers were considered to have been fatigued at the time of
their crash.'' See FMCSA, CMV Driving Tips--Driver Fatigue, also
available at https://www.fmcsa.dot.gov/safety/driver-safety/cmv-driving-tips-driver-fatigue. The Driving Tips further advise drivers to
take a nap of at least 10 minutes when feeling drowsy. Id. The
Department of Labor and Industries also cited two studies published in
the Journal of Safety Research and argued that ``commercial truck
drivers' safety performance can deteriorate easily due to fatigue
caused by long driving hours and irregular work schedules [and] that
increasing the number of rest breaks or their duration helps to reduce
crash risk.'' See The Impacts of Multiple Rest Break Periods on
Commercial Truck Drivers' Crash Risk and Modeling the Safety Impacts of
Driving Hours and Rest Breaks on Truck Drivers Considering the
Dependent Covariates. The Department of Labor and Industries further
argued that a study by the National Institute of Occupational Safety
and Health (NIOSH) ``found that 35% of long-haul truck drivers reported
at least one crash in the course of their work as commercial drivers.''
See NIOSH National Survey of Long-Haul Truck Drivers: Injury and
Safety. The Department of Labor and Industries also cited the National
Transportation Safety Board's (NTSB) Most Wanted List concerning
reducing fatigue-related accidents. See NTSB 2017-2018 Most Wanted
List, Reduce Fatigue-Related Accidents. In addition, the Associations
for Justice cited the NTSB Report, Evaluation of U.S. Department of
Transportation Efforts in the 1990s to Address Operator Fatigue and
argued that ``the relevant safety issue is driver fatigue and not
inadequate truck parking.'' See NTSB Report SR-99/01 (1999).
FMCSA agrees with the Department of Labor and Industries and the
Associations for Justice that drowsy driving may cause crashes. The
Agency has reached the same conclusion and has established a fatigue
management framework for drivers of property-carrying CMVs that
mitigates the risks associated with drowsy driving. The FMCSRs
establish driving-time limits and prohibit a driver from operating a
CMV when too fatigued to do so safely. Washington's MRB rules do not
improve upon the Federal regulatory framework. The two Journal of
Safety Research studies the Department of Labor and Industries cite
found that ``trips with one or two rest breaks had significantly lower
odds'' of a crash ``compared to trips without any breaks,'' and that
``having a third rest break did not have a significant effect,''
``indicating the third rest break had very limited impacts on reducing
crash risk.'' Modeling the Safety Impacts of Driving hours and Rest
breaks on Truck Drivers Considering the Dependent Covarities at 62; see
also The Impacts of Multiple Rest Break Periods on Commercial Truck
Drivers' Crash Risk at 88. In other words, the studies support the
Agency's conclusion that layering additional break requirements over
the Federal HOS regulations--which require a 30-minute break from
driving and any additional breaks that a driver finds necessary to
avoid unsafe fatigued driving--does not provide additional protection
against the risks of fatigued driving. The Jovanis study, Effects of
Hours of Service and Driving Patterns on Motor Carrier Crashes, further
supports this conclusion. Journal of the Transportation Research Board,
No. 2231 at 126. Similarly, the NIOSH National Survey of Long-Haul
Truck Drivers the Department of Labor and Industries cites does not
show that MRB rules, such as Washington's, provide an additional safety
benefit over the Federal HOS regulations. Rather, the purpose of the
NIOSH survey was to

[[Page 73344]]

``bring to light a number of important safety issues for further
research and interventions, e.g., high prevalence of truck crashes,
injury underreporting, unrealistically tight delivery schedules,
noncompliance with hours-of-service rules, and inadequate entry-level
training.'' See NIOSH National Survey of Long-Haul Truck Drivers:
Injury and Safety at 2.
With regard to the other materials that the Department of Labor and
Industries appended but did not discuss, FMCSA considered and discussed
at length the implications of the Blanco study, The Impact of Driving,
Non-Driving Work, and Rest Breaks on Driving Performance in Commercial
Motor Vehicle Operations, both in promulgating the recent 2020 HOS
final rule and in the 2011 HOS final rule. See 85 FR 33412, 33416-17,
33420, 33445; 76 FR 81147-48, 54. In the 2011 HOS final rule, which
instituted the original Federal 30-minute break requirement, FMCSA
explained that the ``Blanco [study] also showed that when non-driving
activities (both work- and rest-related) were introduced during the
driver's shift--creating a break from the driving task--these breaks
significantly reduced the risk of being involved in a [safety critical
event] during the one-hour window after the break.'' See 76 FR 81148.
The Agency again discussed the Blanco study at length in issuing the
2020 final rule and noted that, consistent with the changes to the
Federal 30-minute break requirement, the study found that any type of
break (both off-duty, and on-duty not driving) was beneficial to the
driver. See 85 FR 33416-17, 33420. FMCSA applied the findings of the
Blanco study to the Agency's HOS rules and determined that requiring
drivers to take a 30-minutes break from driving after 8 hours of
driving time provides safety benefits. Id. Moreover, FMCSA's
prohibition against fatigued driving requires drivers to take
additional rest as needed. Nothing in the Blanco study supports the
conclusion that Washington's MRB rules provide additional safety
benefits not already realized under the HOS rules and FMCSA's
regulatory prohibitions on fatigued driving and coercion.
With regard to the NTSB safety recommendations the Department of
Labor and Industries cite, recommendations H-94-005 and H-94-006,
addressed to FMCSA's predecessor agency, the Federal Highway
Administration (FHWA), pertained to evaluating which bridges are
vulnerable to high-speed heavy-vehicle collision and subsequent
collapse.\13\ That issue is not relevant to the instant matter. NTSB
safety recommendation H-95-005, addressed to FHWA, ATA, the
Professional Truck Driver Institute of America, the Commercial Vehicle
Safety Alliance, and the National Private Truck Council, asked the
organizations to develop a training and education module to inform
truck drivers of the hazards of driving while fatigued. The NTSB closed
safety recommendation H-95-005 and noted that FMCSA took acceptable
action on the recommendation.\14\ Safety recommendation H-95-005
pertains to fatigue management training for truck drivers and in no way
suggests that Washington's MRB rules provide additional safety
benefits. The remaining studies that the Department of Labor and
Industries appended, two of which examined CMV operations under the
rules of China and Australia, do not demonstrate that Washington's MRB
rules provide additional safety benefits beyond those provided by the
HOS rules.
---------------------------------------------------------------------------

\13\ NTSB Safety Recommendation H-94-005 may be viewed at
https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-94-005. Safety Recommendation H-94-006 may
be viewed at https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-94-006.
\14\ NTSB Safety Recommendation H-95-005 may be viewed at
https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-95-005.
---------------------------------------------------------------------------

Citing the NTSB report, Evaluation of U.S. Department of
Transportation Efforts in the 1990s to Address Operator Fatigue, the
Associations for Justice argued that ``the relevant safety issue is
driver fatigue and not inadequate truck parking.'' The Associations'
argument fails. FMCSA believes that the issues of fatigue and truck
parking are relevant to the Agency's consideration of WTA's petition.
In addition, the Agency notes that as part of the report, the NTSB
addressed safety recommendation H-99-019 to FHWA asking the Agency to,
``Establish within 2 years scientifically based hours-of-service
regulations that set limits on hours of service, provide predictable
work and rest schedules, and consider circadian rhythms and human sleep
and rest requirements.'' See Evaluation of U.S. Department of
Transportation Efforts in the 1990s to Address Operator Fatigue at 26.
The NTSB closed safety recommendation H-99-019 and noted that FMCSA
took acceptable alternate action on the recommendation.\15\
---------------------------------------------------------------------------

\15\ NTSB Safety Recommendation H-99-019 may be viewed at
https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-99-019.
---------------------------------------------------------------------------

The Teamsters argued that Washington's MRB rules ``ensure drivers
have alternative legal protections in place helping to guard them
against predatory companies who would rather pressure drivers into not
taking a break, even when the driver feels it is physically necessary
to do so.'' The Agency is unpersuaded by the Teamsters' argument. As
explained above, the FMCSRs contain a prohibition against coercion, and
the Teamsters point to no evidence showing that the Federal prohibition
is any less effective than Washington's MRB rules in preventing
coercion.
FMCSA determines that Washington's MRB Rules do not provide a
safety benefit not already provided by the Federal regulations for
property-carrying CMV drivers.
B. Parking
WTA argued that Washington's MRB rules undermine safety ``by
artificially exacerbating the shortage of safe truck parking'' and
making it ``more likely that drivers will have to spend additional time
looking for parking when they need rest, or resort to unsafe places to
park.'' Several commenters agreed. In this regard, ATA stated, ``[T]he
predictable effect of Washington's arbitrary break rules is to
exacerbate the shortage of safe and legal truck parking, in Washington
and elsewhere . . . .'' C.R. England commented, ``[I]t may be unsafe or
simply impossible for a driver to safely stop a truck, find adequate or
safe parking, and leave the truck in order to comply with Washington's
rest break requirements. Other commenters, such as Uline, Hoovestol,
and the National Industrial Transportation League also echoed this
sentiment. Uline stated, ``The limited parking spots should be used by
workers actually in need of rest and should not be occupied by drivers
that are merely complying with arbitrary rest break laws.'' The
Truckload Carriers Association cited a 2018 survey where 95 percent of
5,400 surveyed drivers stated that they park in unauthorized areas when
legal parking is not available. See Heavy Duty Trucking, August 29,
2018, https://www.truckinginfo.com/312029/80-of-drivers-say-elds-make-finding-parking-harder.
The Agency agrees that Washington'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

[[Page 73345]]

rules for drivers of property carrying CMVs. See 83 FR 67476-77. Among
the parking studies cited by the Agency in the 2018 decision was a 2016
survey of drivers by the Washington State Department of Transportation
(WSDOT) showing that more than 60 percent of drivers reported that at
least three times per week they drive while fatigued because they are
unable to find adequate parking when they need to rest. WSDOT Truck
Parking Survey (Aug. 2016).\16\ WSDOT conducted the survey during the
development of a more comprehensive Truck Parking Study, also published
in 2016.\17\ WSDOT's Truck Parking Study cited the Federal HOS rules
and Washington's MRB rules as factors that drive a higher demand for
truck parking.\18\ See WSDOT Truck Parking Study at 13, 17-20. While
WSDOT recognized that ``long-haul drivers largely have different
parking needs than short-haul drivers,'' the Study included local
delivery parking among the types of truck parking considered. See id.
at 4, 9. The Study found that, ``The truck parking shortage in
Washington is likely getting worse, with demand increasing and supply
potentially decreasing,'' and that highway exit and entrance ramps are
the third most used parking option for truck drivers. Id. at 6. WSDOT's
Truck Parking Study demonstrates that Washington's MRB rules contribute
to the demand for the State's inadequate truck parking.
---------------------------------------------------------------------------

\16\ The WSDOT Truck Parking Survey is available in the docket
for this preemption matter and may also be downloaded at http://www.wsdot.wa.gov/NR/rdonlyres/D2A7680F-ED90-47D9-AD13-4965D6D6BD84/114207/TruckParkingSurvey2016_web2.pdf.
\17\ The WSDOT Truck Parking Study is available in the docket
for this preemption matter and may also be downloaded at https://www.wsdot.wa.gov/Freight/truckparking.htm.
\18\ The WSDOT Truck Parking Study states that drivers not
engaging in interstate commerce are required to follow only
Washington's MRB rules; however, even drivers operating wholly
within the State of Washington may be operating in ``interstate
commerce'' as defined in the FMCSRs and thus subject to both the
Washington MRB rules and the HOS rules. See 49 CFR 390.5T
(definition of ``interstate commerce'').
---------------------------------------------------------------------------

Noting that there are 47 rest areas in Washington, the Department
of Labor and Industries argued, ``Washington has not seen that the
timing of rest breaks cause problems with drivers finding places to
park.'' The Department of Labor and Industries further contended that
the Agency should consider that an employer may seek a variance from
the MRB rules ``to allow for alternative scheduling of breaks.'' The
Teamsters argued that while ``parking is a serious issue faced by some,
mainly [over-the-road] drivers'' it does not pose a problem for many
other drivers. The Teamsters continued:

The fact that there may be a shortage of truck parking does not
excuse a motor carrier or driver from complying with either federal
or state laws. Meal and rest break protections should not be thrown
out for every driver in Washington state because a small segment of
WTAs members claim they have issues with truck parking.

The Agency is not persuaded by the Department of Labor and
Industries' arguments. As described above, the WSDOT Truck Parking
Study showed that the truck parking shortage in Washington State is
worsening, and it cited Washington's MRB rules as one of the factors
contributing to demand for truck parking. The Agency is also
unpersuaded by the Department's argument that employers may seek a
variance to deal with the parking problem. As explained above, the
Department of Labor and Industries would determine if the employer met
the burden of showing that ``good cause'' exists for a variance. The
Teamsters' argument that the parking shortage poses a problem only for
certain over-the-road drivers is also unavailing. WSDOT's Truck Parking
Study included local delivery parking in evaluating truck parking
supply and demand factors. The Agency believes that, due to the
shortage of truck parking in Washington, the increase in required stops
to comply with the MRB Rules will exacerbate the problem of truck
drivers parking at unsafe locations--such as ramps and shoulders--where
they present a serious hazard to other highway users.

V. Washington's MRB Rules Are Incompatible With the Federal HOS Rules
for Property-Carrying CMVs

The Agency has determined that Washington's 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 Agency's 2018 decision, which applied the regulatory definition
for ``compatibility'' that was in effect at that time, 49 CFR 355.5
(2018),\19\ determined that California's MRB rules are incompatible
with the HOS rules. Citing that decision, WTA argued that Washington's
MRB rules are similarly incompatible. WTA contended that the fact that
Washington's MRB rules ``require more breaks than the federal rules,
with narrower constraints as to timing, means that they are neither
identical to nor have the same effect as the FMCSRs'' and thus they are
incompatible. WTA continued, ``Washington's rules `significantly reduce
the flexibilities the Agency built into the Federal HOS rules, and they
graft onto the Federal HOS rules additional required rest breaks that
the Agency did not see fit to include.''' (Internal alterations
omitted).
---------------------------------------------------------------------------

\19\ Under 49 CFR 355.5, in effect in 2018, ``Compatible or
Compatibility'' meant that State laws and regulations applicable to
interstate commerce were ``identical to the FMCSRs and the HMRs'' or
had ``the same effect as the FMCSRs. . . .'' See also 49 CFR 350.105
(2018).
---------------------------------------------------------------------------

On June 24, 2020, FMCSA published a final rule that amended the
regulatory definition for ``compatible'' as that term is applied to a
State law or regulation on CMV safety that is in addition to or more
stringent than the FMCSRs. See 85 FR 37785 (Jun. 24, 2020). Under the
revised definition, codified at 49 CFR 350.105, ``compatible'' means
State laws, regulations, standards, and orders on CMV safety that ``if
in addition to or more stringent than the FMCSRs, have a safety
benefit, do not unreasonably frustrate the Federal goal of uniformity,
and do not cause an unreasonable burden on interstate commerce when
enforced.'' (Emphasis added). The final rule explained that the Agency
amended the definition of ``compatibility'' ``to align with and
incorporate the standard in 49 U.S.C. 31141(c) regarding when a State
may enforce a law, regulation, standard, or order on CMV safety that is
in addition to or more stringent than the FMCSRs.'' 85 FR 37791. Thus,
FMCSA must decide whether Washington's MRB rules unreasonably frustrate
the Federal goal of uniformity and therefore are incompatible with the
Federal HOS rules for property-carrying CMV drivers.
The Agency agrees with WTA and finds that Washington's MRB rules,
as applied to drivers of property-carrying CMVs, are incompatible with
the Federal HOS rules because they unreasonably frustrate the Federal
goal of uniformity. As described above, Washington's generally
applicable MRB rules require employers to provide property-carrying CMV
drivers with meal and rest breaks of specified duration at specific
intervals. In contrast, the HOS rules which are tailored specifically
to the CMV industry, provide drivers flexibility in deciding when to
take the required 30-minute break from driving. Short-haul drivers are
not required to take a rest period under the HOS rules; however, other
provisions of the FMCSRs prohibit all drivers from operating a CMV when
too fatigued to do so safely. Congress's clear intent for the 1984 Act
was to

[[Page 73346]]

minimize disuniformity in the national safety regulatory regime. See
Public Law 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 id. 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.'')
Washington's MRB rules frustrate Congress's goal of uniformity because
they abrogate the flexibility that the Agency allows under the HOS
rules. This fact renders Washington's MRB rules incompatible.\20\
---------------------------------------------------------------------------

\20\ The Associations for Justice argued that FMCSA's 2018
decision preempting California's MRB rules for drivers of property
carrying CMVs erroneously applied the regulatory definition for
``compatible,'' in effect in 2018 and further contended that the
Agency should not apply that compatibility standard to this
preemption determination. As explained above, the Agency applies the
recently amended definition of ``compatible;'' therefore, this
argument is moot.
---------------------------------------------------------------------------

The Department of Labor and Industries argued that Washington's MRB
rules are not incompatible with the HOS rules because it is possible
for drivers to comply with both the MRB and HOS rules. This argument is
unpersuasive. 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, Washington'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 Department of Labor and Industries.\21\
---------------------------------------------------------------------------

\21\ The Agency notes that under Washington's MRB rules, a 10-
minute rest period ``means to stop work duties, exertions, or
activities for personal rest and relaxation.'' Department of Labor
and Industries, Administrative Policy ES.C.6.1 at paragraph 10. This
is an area of potential conflict with the attendance and
surveillance requirements for drivers of CMVs transporting Division
1.1, 1.2, or 1.3 explosives. See 49 CFR 397.5. Such a vehicle ``must
be attended at all times by its driver or a qualified representative
of the motor carrier that operates it.'' Id. The Federal HOS
requirement for drivers to take a 30-minute break from driving
provides an exception for drivers of CMVs carrying Division 1.1,
1.2, or 1.3 explosives to allow them to count on-duty time spent
attending the CMV as required by section 397.5 but doing no other
on-duty work, toward the break. See 49 CFR 395.1(q).
---------------------------------------------------------------------------

FMCSA determines that Washington's MRB rules, as applied to drivers
of property-carrying CMVs, are incompatible with the Federal HOS rules.

VI. Enforcement of Washington's MRB Rules Would Cause an Unreasonable
Burden on Interstate Commerce

Washington's MRB rules may not be enforced if the Agency decides
that enforcing them ``would cause an unreasonable burden on interstate
commerce.'' 49 U.S.C. 31141(c)(4)(C). Section 31141 does not prohibit
enforcement of a State requirement that places an incidental burden on
interstate commerce, only burdens that are unreasonable.
A. Decreased Productivity, Administrative Burden, and Costs
WTA argued that, ``Washington's break rules represent an
unreasonable burden on interstate commerce for much the same reasons
FMCSA recently concluded California's do.'' In this regard, WTA
contended that the MRB rules decrease each driver's available duty
hours ``by requiring additional off-duty time, and additional `dead
time' associated with extra trips off the highway to find places to
take breaks that do not coincide with otherwise scheduled stops.'' WTA
further asserted that ``compliance with Washington's break rules
further burdens interstate commerce by imposing the same kinds of
administrative burdens the Agency noted were imposed by California law.
. . .''
Uline also described the decreased productivity that results from
complying with Washington's MRB rules. In this regard, Uline stated,
``Unnecessary burdens, like forcing drivers to comply with both federal
and state laws which require more breaks, slows down operations and
restricts drivers' productivity.'' Uline continued, ``If our drivers
are tired, we want them to take a break. If our drivers are not tired
and it has not been 8 hours, we should not force them to stop driving
and try to find a parking spot just to [comply with] Washington law.''
In addition to decreased productivity resulting from complying with
Washington's MRB rules, some commenters also provided information about
the associated administrative burden and costs. Oak Harbor Freight
Lines explained that complying with the MRB rules adds time to the
drivers' workday and stated, ``Washington's rules add a substantial
burden to delivery of freight.'' The Propane Gas Associations stated:

[C]ompliance with Washington Meal and Rest Break rules cause a
decrease in transportation movement and, potentially, a decrease in
the number of end-users served in a given work period. Thus, end-
users may suffer delays in the deliveries. To overcome potential
delays to end-users, employers may seek to hire additional drivers
along with significant additional expenses for more commercial
vehicles, equipment, training, etc. These are considerable capital
investments strictly to maintain timely deliveries to current end-
users in order to comply with the Washington rules.

C.R. England explained, ``Compliance with the MRB rules requires a
reworking of freight lanes and transit times, in addition to increased
non-driver personnel time and resources in order to evaluate the impact
of the requirements, rework freight lanes and transit times, and ensure
compliance.'' The National Industrial Transportation League commented
that the increased administrative burden and costs associated with
complying with Washington's MRB rules impact not only carriers but also
shippers and receivers. In this regard, the League stated, ``shippers
and receivers . . . are forced to juggle their own workforce and
production planning as drivers must stop work to meet the arbitrarily
mandated breaks as required by the Washington rule.''
The Agency agrees with WTA that complying with Washington's MRB
rules unreasonably burdens interstate commerce. It is indisputable that
Washington's MRB rules, like California's, decrease each driver's
available duty hours as compared to the Federal HOS rules. The Agency
acknowledges that even without Washington's MRB rules, many drivers
would sometimes take breaks beyond those required by the HOS rules. It
is nevertheless clear that Washington's MRB rules require drivers to
take more breaks than they otherwise would, and may require those
breaks to occur at times they otherwise would not occur. In addition,
the comments demonstrate that complying with Washington's MRB rules
also imposes significant administrative burdens.
The Department of Labor and Industries disputed that complying with
the MRB rules is an unreasonable burden on interstate commerce. In this

[[Page 73347]]

regard, the Department of Labor and Industries cited Washington's
annual Labor and Economic Report, which showed that the
``transportation, warehousing, utilities'' industry experienced more
than 2 percent annual growth in employment and ranking it third on the
list of private sector industries. See Wash. State Emp't Security
Dep't, 2018 Labor and Market Economic Report, at 17.\22\ The Department
of Labor and Industries argued, ``It is simply incorrect to posit that
requiring employers to continue to follow longstanding break laws will
cause economic breakdown.'' The Department of Labor and Industries
mischaracterizes FMCSA's conclusion. The Agency does not find that
Washington's MRB rules will ``cause economic breakdown;'' rather, FMCSA
finds that the MRB rules unreasonably burden interstate commerce.
Moreover, it is not appropriate for the Department of Labor and
Industries to rely on the employment growth in the transportation,
warehousing, and utilities sector to argue that enforcing Washington's
MRB rules does not unreasonably burden interstate commerce. While FMCSA
believes that Washington's employment growth is commendable, it is not
evidence that Washington's MRB rules do not unreasonably burden
commerce among the States.
---------------------------------------------------------------------------

\22\ The 2018 Labor and Market Economic Report is available for
download at https://esd.wa.gov/labormarketinfo/annual-report.
---------------------------------------------------------------------------

Citing the Agency's 2018 decision applying the standard set forth
in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the Department of
Labor and Industries also contended that ``The standard to determine an
unreasonable burden is taken from the dormant Commerce Clause case law:
Whether there is an unreasonable burden is whether the burden imposed
is clearly excessive in relation to the putative local benefits derived
from the State law.'' The Department of Labor and Industries quoted
Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978), to argue
further that, ``Under this test, to have a burden on interstate
commerce, the state regulation must substantially burden the `the flow
of interstate goods.' Operational challenges do not stop the free flow
of interstate goods.'' Citing Nat'l Ass'n of Optometrists & Opticians
v. Harris, 682 F.3d 1144, 1152 (9th Cir. 2012), the Department of Labor
and Industries stated, ``Operational challenges do not stop the free
flow of interstate goods. Nor does loss of profit or market share.''
The Agency disagrees that the standard for determining if a State law
unreasonably burdens interstate commerce under section 31141 is taken
from dormant Commerce Clause case law and finds it inappropriate to
rely on Exxon Corp. v. Governor of Maryland and Nat'l Ass'n of
Optometrists & Opticians v. Harris. In Exxon Corp., the Supreme Court
considered whether a Maryland statute that, among other things,
prohibited producers or refiners of petroleum products from operating
retail service stations within the State, violated the Commerce Clause.
Similarly, in Nat'l Ass'n of Optometrists & Opticians, the U.S. Court
of Appeals for the Ninth Circuit considered whether California laws
prohibiting opticians and optical companies from offering prescription
eyewear at the same location in which eye examinations were provided,
and from advertising that eyewear and eye examinations were available
in the same location, violated the dormant Commerce Clause. FMCSA
acknowledges that it suggested in the 2018 decision preempting
California's MRB rules for property-carriers 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 violates the dormant Commerce Clause.
See 83 FR 67478. Upon further consideration, however, FMCSA has since
concluded that nothing in the text of section 31141 or elsewhere
suggests that only unconstitutional State laws can cause an
unreasonable burden on interstate commerce. See 86 FR 3479-80. Congress
chose not to preempt the field governing CMV safety, but it also sought
to create a regulatory regime with considerable uniformity. It tasked
the Secretary with ensuring that State laws that disrupt an otherwise
uniform Federal scheme do not pose an undue burden on interstate
commerce, but nothing suggests that Congress was concerned only with
burdens of constitutional dimension. In any event, even if FMCSA could
find an unreasonable burden on interstate commerce only 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 Washington's MRB rules provide a
safety benefit beyond the benefits already provided by the Federal HOS
rules. The significant burdens identified by WTA and the commenters
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. 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). Citing the
Agency's 2018 decision, WTA argued that, like California's MRB rules,
Washington's rules contribute to a patchwork of differing State meal
and rest break rules that constitute an unreasonable burden on
interstate commerce. Several commenters also described the burden
resulting from differing State meal and rest break laws. Oak Harbor
Freight Lines explained that the company operates terminals in
different States and employs drivers who may live in one State and have
their home terminal in another. The carrier explained, ``Attempting to
decipher which meal-and-rest break rules applies to each of those
drivers is a challenge only a lawyer could love, and none of our
terminal managers or local supervisors are attorneys.'' Hoovestol
stated, ``The varying meal and rest break rules from state to state
have harmed our ability to reliably set rates, operate safely, and
subjected us to opportunistic efforts to extract significant legal
settlements.'' The carrier continued, ``Individual state rules work to
the detriment of the level of safety provided by the federal HOS rules
by forcing multiple breaks at arbitrary intervals when they are not
needed.'' The National Industrial Transportation League commented,
``[A]llowing different commercial driver break rules in various States
would exacerbate confusion among shippers, drivers and carriers, create
unnecessary complexity, and undermine compliance. A patchwork quilt of
meal and rest break rules would translate into substantial additional
decreases in efficiency and productivity.''
The Agency agrees. To date, 20 States in addition to Washington
regulate, in varying degrees, meal and rest break requirements, as the
National Conference of State Legislatures and the Associations for
Justice have pointed out.\23\ However, these laws are not

[[Page 73348]]

consistent. Oregon, for example, requires employers to provide a 30-
minute break to employees who work 6 hours or more. See Or. Admin. R.
839-020-0050(2). No meal period is required if the shift is less than 6
hours; if the shift is less than 7 hours, the meal period must commence
between 2 and 5 hours from the beginning of the shift; and if the shift
is longer than seven hours, the meal period must begin between 3 and 6
hours from the beginning of the shift. Id. Nevada, by contrast,
requires employers to provide a 30-minute break to employees who work a
continuous 8 hours at any point during that period. See Nev. Rev. Stat.
Ann. Sec. 608.019. And, as described above, Washington's MRB rules
require that employers provide a 30-minute meal break for every 5 hours
worked, which must commence between 2 and 5 hours from the beginning of
the shift. See WAC 296-126-092. In preempting California's MRB rules
under section 31141, 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. See 83 FR 67479-80. The Agency
finds that the same holds true for Washington's MRB rules. As described
by the commenters, this diversity of State regulation has significantly
decreased productivity and increased administrative burdens and costs.
---------------------------------------------------------------------------

\23\ According to the National Conference of State Legislatures
and the Associations 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.
---------------------------------------------------------------------------

The Department of Labor and Industries contended that Washington's
MRB rules do not contribute to the multiplicity of varying State meal
and rest break laws. In this regard, it argues that ``Washington's
break laws do not apply just because someone drives a truck through
Washington.'' Citing Bostain v. Food Exp., Inc., 153 P.3d 846 (Wash.
2007), the Department of Labor and Industries further asserted, ``The
break laws apply only to Washington employers of Washington-based
employees.'' The Teamsters argued that drivers pass through an
assortment of State or local regulations throughout their workday,
including varying speed limits, tolling facilities, and enforcement
zones for distracted driving and DUI; yet those rules do not constitute
an unreasonable burden on interstate commerce. The Teamsters also
argued that, ``Truck size and weight restrictions are different on
state and local roads than on the federal highway system. . . . Yet no
one is calling for the preemption of state size and weight rules.'' The
Associations for Justice argued, ``The trucking and bus industries have
engaged in a strategy of targeting specific state laws one at a time
for FMCSA preemption.''
The Agency finds the Department of Labor and Industries' argument
on the narrow application of Washington's rules unavailing. It is
immaterial whether Washington's MRB rules apply only to those drivers
based in Washington. The fact remains that the disparity in State
regulation has resulted in a multiplicity of requirements that are
burdensome to apply. It may be difficult to determine whether a
particular driver is ``based in Washington,'' and other States' rules
may purport to regulate even those drivers that Washington deems
``Washington-based.'' The Agency is also unpersuaded by the Teamsters'
traffic regulation analogy. The 1984 Act explicitly prohibits the
Agency from ``prescrib[ing] traffic safety regulations or preempt[ing]
state traffic regulations'' such as those described. 49 U.S.C.
31147(a). In addition, issues surrounding State tolling are well
outside the scope of the Agency's statutory authority, and CMV size and
weight restrictions on portions of the Federal-aid highway system are
within the purview of FHWA. See 23 U.S.C. 127, 145; 49 U.S.C. 31111; 49
CFR 1.85. Therefore, the extent to which the ``assortment of state or
local regulations'' the International Brotherhood of Teamsters cite
unreasonably burden interstate commerce, if at all, as compared to the
MRB Rules is not relevant to the Agency's determination. The Agency
also rejects the Associations for Justice's 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 Washington's MRB rules unreasonably burden
interstate commerce, the Agency further determines that the cumulative
effect of other States' similar laws would increase the burden.

Preemption Decision

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

James W. Deck,
Deputy Administrator.
[FR Doc. 2020-25155 Filed 11-16-20; 8:45 am]
BILLING CODE 4910-EX-P