Petition for Preemption of California Regulations on Meal Breaks and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for Failure To Meet Threshold Requirement, 79204-79206 [E8-30646]
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79204
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
The proposed project called for
improving North Second Street and
North Third Street to form a one-way
pair from Interstate 40 to Chelsea
Avenue and constructing a six-lane
facility from Chelsea Avenue to the U.S.
51/State Route 300 Interchange in
Memphis, Shelby County, Tennessee.
An EIS has not been completed for
this proposal since the original NOI to
prepare an EIS was published in the
Federal Register on November 7, 2002.
An EIS will be prepared and will
evaluate all reasonable alternatives. The
original NOI is being rescinded and a
new NOI will be published subsequent
to this NOI.
To ensure that the full range of issues
related to this proposed action are
identified and taken into account,
comments and suggestions are invited
from all interested parties. Comments
and questions concerning the proposed
action should be directed to the FHWA
contact person identified above at the
address provided above.
(Catalog of Federal Domestic Assistance
Program Number 20.205, Highway Planning
and Construction. The regulations
implementing Executive Order 12372
regarding intergovernmental consultation on
Federal programs and activities apply to this
proposed program.)
Issued on: December 17, 2008.
Charles J. O’Neill,
Planning and Program Mgmt. Team Leader,
Nashville, TN.
[FR Doc. E8–30570 Filed 12–23–08; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
Petition for Preemption of California
Regulations on Meal Breaks and Rest
Breaks for Commercial Motor Vehicle
Drivers; Rejection for Failure To Meet
Threshold Requirement
mstockstill on PROD1PC66 with NOTICES
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), USDOT.
ACTION: Notice of rejection of petition
for preemption.
SUMMARY: FMCSA announces the
rejection of a petition for preemption of
California laws and regulations
requiring employers to provide
employees with meal and rest breaks.
The petition does not satisfy the
threshold requirement for preemption
under 49 U.S.C. 31141(c) because the
provisions at issue are not ‘‘laws and
regulations on commercial motor
vehicle safety,’’ but rather laws and
regulations applied generally to
California employers.
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18:45 Dec 23, 2008
Jkt 217001
DATES: Effective Date: This decision is
effective December 23, 2008.
FOR FURTHER INFORMATION CONTACT: Mr.
Charles Medalen, Attorney-Advisor,
FMCSA Office of Chief Counsel.
Telephone (202) 493–0349.
Background
On July 3, 2008, James H. Hanson,
Esq., Scopelitis, Garvin, Light, Hanson &
Feary, P.C., petitioned the Federal
Motor Carrier Safety Administration
(FMCSA) on behalf of a group of motor
carriers 1 to preempt the California
statutes and rules requiring
transportation industry employers to
give their employees meal and rest
breaks during the work day, as applied
to drivers of commercial motor vehicles
(CMVs) subject to the FMCSA hours-ofservice (HOS) regulations. For the
reasons set forth below, FMCSA rejects
the petition.
California Law
Section 512, Meal periods, of the
California Labor Code reads in part as
follows:
‘‘(a) An employer may not employ an
employee for a work period of more than five
hours per day without providing the
employee with a meal period of not less than
30 minutes, except that if the total work
period per day of the employee is no more
than six hours, the meal period may be
waived by mutual consent of both the
employer and employee. An employer may
not employ an employee for a work period
of more than 10 hours per day without
providing the employee with a second meal
period of not less than 30 minutes, except
that if the total hours worked is no more than
12 hours, the second meal period may be
waived by mutual consent of the employer
and the employee only if the first meal
period was not waived.
‘‘(b) Notwithstanding subdivision (a), the
Industrial Welfare Commission may adopt a
working condition order permitting a meal
period to commence after six hours of work
if the commission determines that the order
is consistent with the health and welfare of
the affected employees.’’
Section 11090 of Article 9 (Transport
Industry) of Group 2 (Industry and
Occupation Orders) of Chapter 5
(Industrial Welfare Commission) of
Division 1 (Department of Industrial
Relations) of Title 8 (Industrial
Relations) of the California Code of
Regulations, is entitled ‘‘Order
Regulating Wages, Hours, and Working
Conditions in the Transportation
1 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.
PO 00000
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Fmt 4703
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Industry’’ [hereafter: ‘‘8 CCR § 11090,’’
‘‘Section 11090’’, or ‘‘§ 11090’’ 2].
Section 11090(11). Meal Periods,
reads as follows:
‘‘(A) No employer shall employ any person
for a work period of more than five (5) hours
without a meal period of not less than 30
minutes, except that when a work period of
not more than six (6) hours will complete the
day’s work the meal period may be waived
by mutual consent of the employer and
employee.
‘‘(B) An employer may not employ an
employee for a work period of more than ten
(10) hours per day without providing the
employee with a second meal period of not
less than 30 minutes, except that if the total
hours worked is no more than 12 hours, the
second meal period may be waived by
mutual consent of the employer and
employee only if the first meal period was
not waived.
‘‘(C) Unless the employee is relieved of all
duty during a 30 minute meal period, the
meal period shall be considered an ‘on duty’
meal period and counted as time worked. An
‘on duty’ meal period shall be permitted only
when the nature of the work prevents an
employee from being relieved of all duty and
when by written agreement between the
parties an on-the-job paid meal period is
agreed to. The written agreement shall pay
the employee one (1) hour of pay at the
employee’s regular rate of compensation for
each workday that the meal period is not
provided.
‘‘(D) If an employer fails to provide an
employee a meal period in accordance with
the applicable provisions of this order, the
employer shall pay the employee one (1)
hour of pay at the employee’s regular rate of
compensation for each workday that the meal
period is not provided.
‘‘(E) In all places of employment where
employees are required to eat on the
premises, a suitable place for that purpose
shall be designated.’’
Section 11090(12). Rest Periods, reads
as follows:
‘‘(A) Every employer shall authorize and
permit all employees to take rest periods,
which insofar as practicable shall be in the
middle of each work period. The authorized
rest period time shall be based on the total
hour worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or
major fraction thereof. However, a rest period
need not be authorized for employees whose
total daily work time is less than three and
one-half (31⁄2) hours. Authorized rest period
time shall be counted as hours worked for
which there shall be no deduction from
wages.
‘‘(B) If an employer fails to provide an
employee a rest period in accordance with
the applicable provisions of this order, the
employer shall pay the employee one (1)
hours of pay at the employer’s regular rate of
compensation for each workday that the rest
period is not provided.’’
2 California Industrial Welfare Commission Order
No. 9–2001 is identical to 8 CCR § 11090.
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Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
Although § 11090(3)(L) provides that
‘‘[t]he provisions of this section are not
applicable to employees whose hours of
service are regulated by: (1) The United
States Department of Transportation,
Code of Federal Regulations, Title 49,
sections 395.1 to 395.13, Hours of
Service of Drivers,’’ the California courts
have interpreted the word ‘‘section’’ to
refer only to § 11090(3), which regulates
‘‘hours and days of work,’’ not to all of
§ 11090, including meal and rest breaks
in § 11090(11) and (12). Cicairos v.
Summit Logistics, Inc., 133 Cal App.4th
949 (2006).
Federal Law
FMCSA is authorized by 49 U.S.C.
31141 to preempt State law. For
purposes of this petition, the relevant
portions of that statute read as follows:
‘‘(a) Preemption after decision.—A State
may not enforce a State law or regulation on
commercial motor vehicle safety that the
Secretary of Transportation decides under
this section may not be enforced. * * *
‘‘(c) Review and decisions by the
secretary.—
‘‘(1) Review.—The Secretary shall review
State laws and regulations on commercial
motor vehicle safety. The Secretary shall
decide whether the State law or regulation—
‘‘(A) Has the same effect as a regulation
prescribed by the Secretary under section
31136;
‘‘(B) Is less stringent than such regulation;
or
‘‘(C) Is additional to or more stringent than
such regulation. * * *
‘‘(4) Additional or more stringent
regulations.—If the Secretary decides a State
law or regulation is additional to or more
stringent than a regulation prescribed by the
Secretary under section 31136 of this title,
the State law or regulation may be enforced
unless the Secretary also decides that—
‘‘(A) The State law or regulation has no
safety benefit;
‘‘(B) The State law or regulation is
incompatible with the regulation prescribed
by the Secretary; or
‘‘(C) Enforcement of the State law or
regulation would cause an unreasonable
burden on interstate commerce.’’
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Petitioners’ Argument
Petitioners summarized the effect of
the California meal and rest break rules
as follows:
‘‘Motor carrier operations are carefully
timed to take advantage of the flexibility
available under the HOS Regulations and, in
some instances, to take advantage of the full
complement of driving hours provided as
well. Some carriers schedule driver meals to
take place at carrier facilities once the driver
has delivered a load so that unloading,
sorting, and loading of outbound shipments
can take place during the break. The Meal
and Rest Break Rules, by mandating when
meals breaks must be taken, interfere with
such arrangements, meaning that the driver
will miss the inbound appointment, which in
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18:45 Dec 23, 2008
Jkt 217001
turn has the domino effect of delaying
outbound operations. * * * [A]s a practical
matter, since the driver must be fully relieved
of duty during the break, breaks will take
much longer as the driver will be required to
find a place to pull over and must actually
park and shut down the equipment before the
break can start. Of course, this will require
that the driver return to the equipment, start
it, and get back on the road as well. Thus,
as a practical matter, the Meal and Rest Break
Rules impose a much greater burden on the
driver than a simple reading of the rules
* * * would at first suggest, and the burden
is exacerbated in congested areas’’ [pages 10–
11].
‘‘In the absence of the Meal and Rest Break
Rules, a driver could spend three non-driving
hours engaged in [other] activities and could
still drive for 11 hours under the HOS
Regulations. In California, due to the Meal
and Rest Break Rules, however, the driver
loses 11⁄2 hours (two 30-minute meal breaks
and three 10-minute rest breaks) over the
course of the permitted 14-hour on-duty
period in which the driver can neither drive
nor perform on-duty driving tasks. The
practical effect is that a driver in California
has only 121⁄2 hours of on-duty time after
initially coming on duty during which he/she
can accumulate his/her 11 hours of driving
time, leaving only 11⁄2 hours to perform any
other duty non-driving tasks that might
naturally occur during the day’’ [page 10].
‘‘Applying the Meal and Rest Break Rules
to drivers subject to the HOS Regulations
imposes limitations on a driver’s time that
are different from and more stringent than
the HOS Regulations because the Meal and
Rest Break Rules limit the amount of hours
available to a driver to complete driving
duties after initially coming on-duty to less
than the 14 hours permitted by the HOS
Regulations. Moreover, the Meal and Rest
Break Rules do not allow for the flexibility
provided by the HOS Regulations, further
exacerbating the effect of the limitations
imposed by the Meal and Rest Break Rules.
This lack of flexibility not only hinders
operations from a scheduling standpoint, it
also creates serious safety concerns.
Specifically, by imposing meal and rest
breaks at set times, the Meal and Rest Break
Rules limit a driver’s ability to take breaks
when they are actually needed. A driver
subject only to the HOS Regulations, on the
other hand, is not subject to externally
imposed limitations and is instead able to
take breaks when he or she deems necessary’’
[page 6].
In a supplement filed with FMCSA on
October 2, 2008, petitioners reiterated
their position even more bluntly:
‘‘Petitioners * * * argue * * * that they
should be free to schedule drivers to work
and that drivers should be free to choose to
work as much as they desire in accordance
with the HOS Regulations, without regard for
individual state requirements, as long as the
driver is otherwise able to operate the
equipment safely. The Meal and Rest Break
Rules are inconsistent with the HOS
Regulations’’ [page 4].
The July petition states that:
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79205
‘‘The threshold for review under 49 U.S.C.
31141 is that the state law or regulation be
‘on commercial motor vehicle safety.’ * * *
Thus, the only logical/consistent
interpretation of ‘on commercial motor
vehicle safety’ under 49 U.S.C. 31141 is to
interpret it as applying to state laws or
regulations that regulate or affect subject
matter within the FMCSA’s authority under
49 U.S.C. 31136, i.e., any state law or
regulation that regulates subject matter
within the FMCSA’s authority under 49
U.S.C. 31136 is ‘on commercial motor vehicle
safety’ for purposes of 49 U.S.C. 31141.
‘‘Conceivably, it could be argued that the
Meal and Rest Break rules are not ‘on
commercial motor vehicle safety’ because
they are rules of general applicability and
their application is not limited to CMVs.
When considered from a practical
perspective, however, there can be no
question that the Meal and Rest Break Rules
are exactly the type of rules that fall within
the scope of 49 U.S.C. 31141. As a practical
matter, interpreting the statute to apply only
to state laws or rules applicable solely to
CMVs would open the door to state
regulation of CMV safety under the guise of
generally applicable state laws or rules’’
[page 21].
Decision
Petitioners themselves acknowledge
the decisive argument against their own
position. The California meal break
statute [Cal. Labor Code § 512] and the
corresponding rules in § 11090(11)–(12)
are not regulations ‘‘on commercial
motor vehicle safety’’ and thus do not
meet the threshold requirement for
consideration under 49 U.S.C. 31141.3
The State rules apply to the entire
‘‘transportation industry,’’ which
§ 11090(2)(N) defines as ‘‘any industry,
business, or establishment operated for
the purpose of conveying persons or
property from one place to another
whether by rail, highway, air, or water,
and all operations and services in
connection therewith; and also includes
storing or warehousing of goods or
property, and the repairing, parking,
rental, maintenance, or cleaning of
vehicles.’’ The meal and rest break rules
thus cover far more than the trucking
industry.
In fact, the meal and rest break rules
are not even unique to transportation.
California imposes virtually the same
rules on the ‘‘manufacturing industry’’
[8 CCR § 11010(11)–(12)]; the ‘‘personal
service industry’’ [8 CCR § 11020(11)–
(12)]; the ‘‘canning, freezing and
3 Petitioners claim that by ‘‘imposing meal and
rest breaks at set times,’’ the California rules create
safety concerns by interfering with a driver’s ability
to take breaks when actually needed [page 6]. In
fact, the State rules allow the first meal break at any
point during the first five hours on duty, and the
second within the next five hours. Five-hour
windows hardly constitute ‘‘set times.’’ Petitioners
provide no evidence that these breaks undermine
safety.
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mstockstill on PROD1PC66 with NOTICES
79206
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
preserving industry’’ [8 CCR
§ 11030(11)–(12)]; the ‘‘professional,
technical, clerical, and similar
occupations’’ [8 CCR § 11040(11)–(12)];
the ‘‘public housekeeping industry’’ [8
CCR § 11050(11)–(12)]; the ‘‘laundry,
linen supply, dry cleaning, and dyeing
industry’’ [8 CCR § 11060(11)–(12)]; the
‘‘mercantile industry’’ [8 CCR
§ 11070(11)–(12)]; ‘‘industries handling
products after harvest’’ [8 CCR
§ 11080(11)–(12)]; the ‘‘amusement and
recreation industry’’ [8 CCR
§ 11100(11)–(12)]; the ‘‘broadcasting
industry’’ [8 CCR § 11110(11)–(12)]; the
‘‘motion picture industry’’ [8 CCR
§ 11120(11)–(12)]; ‘‘industries preparing
agricultural products for market, on the
farm’’ [8 CCR § 11130(11)–(12)];
‘‘agricultural occupations’’ [8 CCR
§ 11140(11)–(12)]; ‘‘household
occupations’’ [8 CCR § 11150(11)–(12)];
‘‘certain on-site occupations in the
construction, drilling, logging and
mining industries’’ [8 CCR § 11160(10)–
(11)]; and ‘‘miscellaneous employees’’ [8
CCR § 11170(9)]. The meal and rest
break rules for CMV drivers are simply
one part of California’s comprehensive
regulations governing wages, hours and
working conditions. Because these rules
are in no sense regulations ‘‘on
commercial motor vehicle safety,’’ they
are not subject to preemption under 49
U.S.C. 31141.
Recognizing this problem, petitioners
expanded their argument to claim that
‘‘the FMCSA has power to preempt any
state law or regulation that regulates or
affects any matters within the agency’s
broad Congressional grant of authority’’
(page 22). There is nothing in the
statutory language or legislative history
of 49 U.S.C. 31141 that would justify
reading into it the authority to preempt
State laws ‘‘affecting’’ CMV safety.
Further, if the Agency were to take such
a position, any number of State laws
would be subject to challenge. For
example, it is conceivable that high
State taxes and emission controls could
affect a motor carrier’s financial ability
to maintain compliance with the
Federal Motor Carrier Safety
Regulations (FMCSRs); however, it is
doubtful that the Agency would be
viewed as thus having the authority to
preempt State tax or environmental
laws.
Yet petitioners make the equally farreaching argument that FMCSA can and
should preempt the California statutes
and rules on wages, hours, and working
conditions which prevent carriers from
maximizing their employees’ driving
and on-duty time. In fact, the FMCSRs
have for decades required carriers and
drivers to comply with all of the laws,
ordinances, and regulations of the
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18:45 Dec 23, 2008
Jkt 217001
jurisdiction where they operate [49 CFR
392.2].
FMCSA cannot entertain this petition.
Because the California meal and rest
break rules are not ‘‘regulations on
commercial motor vehicle safety,’’ the
Agency has no authority to preempt
them under 49 U.S.C. 31141.
Furthermore, that statute does not allow
the preemption of other State or local
regulations merely because they have
some effect on CMV operations.
Issued on: December 18, 2008.
David A. Hugel,
Deputy Administrator.
[FR Doc. E8–30646 Filed 12–23–08; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2006–26555]
Consumer Information; New Car
Assessment Program (NCAP)
AGENCY: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of postponement of the
implementation of enhancements to the
New Car Assessment Program (NCAP).
SUMMARY: On July 11, 2008, NHTSA
published in the Federal Register (73
FR 40016) a notice announcing changes
to the agency’s New Car Assessment
Program (NCAP) and stated that these
changes would be implemented
beginning with model year 2010
vehicles tested as part of the NCAP.
This notice announces that
implementation of the changes
discussed in the July 2008 notice is
postponed for one model year. The
agency will begin applying the new
NCAP testing and safety rating criteria
to model year 2011 vehicles, not model
year 2010 vehicles as indicated in the
July 2008 notice. The agency will
continue to utilize the existing NCAP
testing and safety rating criteria for the
2010 model year.
DATES: The new NCAP testing and
safety rating criteria described in the
July 11, 2008 notice will be used for
vehicles tested as part of the NCAP
beginning with model year 2011
vehicles.
FOR FURTHER INFORMATION CONTACT: For
non-legal issues, you may contact Ms.
Jennifer N. Dang, Office of
Crashworthiness Standards (Telephone:
202-493–0598). For legal issues, you
may contact Mr. Ed Glancy, Office of the
Chief Counsel (Telephone: 202–366–
PO 00000
Frm 00168
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2992). You may send mail to both of
these officials at the National Highway
Traffic Safety Administration, 1200 New
Jersey Avenue SE., West Building,
Washington, DC 20590–0001.
SUPPLEMENTARY INFORMATION:
I. Background
The National Highway Traffic Safety
Administration (NHTSA) established
the New Car Assessment Program
(NCAP) in 1978 in response to Title II
of the Motor Vehicle Information and
Cost Savings Act of 1972. Beginning
with the 1979 model year, NCAP began
rating passenger vehicles for frontal
impact safety. Ratings for side impact
safety were added beginning with the
1997 model year and for rollover
resistance beginning with the 2001
model year. None of the testing or safety
rating criteria for frontal crash, side
crash, and rollover resistance have been
substantially revised since they were
first established. On January 25, 2007,
NHTSA published a notice announcing
a public hearing and requesting
comments on an agency report titled,
‘‘The New Car Assessment Program
(NCAP) Suggested Approaches for
Future Enhancements.’’ Following the
receipt of written comments and
testimony at a March 7, 2007 public
hearing, on July 11, 2008 NHTSA
published in the Federal Register (73
FR 40016) a notice announcing its final
decision as to the specific changes the
agency is making in the NCAP testing
and safety rating criteria, and stating
that these changes would be
implemented beginning with model
year 2010 vehicles tested as part of
NCAP.
II. Rationale for Postponing NCAP
Enhancements for One Model Year
NHTSA has decided to postpone
implementation of the Department’s
new 5-star Government safety rating
program for one year to begin with
Model Year 2011. This delay will give
manufacturers another year to prepare
for what are the most significant
changes since the rating program began
in 1979 and provide consumers with an
additional year to become familiar with
the new rating system.
The agency will, at a later date, issue
a notice of proposed rulemaking
concerning changes to the vehicle safety
rating portion of the Monroney label
that will need to be made to reflect the
changes to the NCAP announced on July
11, 2008.
Authority: 49 U.S.C. 32302, 30111, 30115,
30117, 30166, and 30168, and Pub. L. 106–
414, 114 Stat. 1800; delegation of authority
at 49 CFR 1.50.
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Agencies
[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Notices]
[Pages 79204-79206]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30646]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
Petition for Preemption of California Regulations on Meal Breaks
and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for
Failure To Meet Threshold Requirement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), USDOT.
ACTION: Notice of rejection of petition for preemption.
-----------------------------------------------------------------------
SUMMARY: FMCSA announces the rejection of a petition for preemption of
California laws and regulations requiring employers to provide
employees with meal and rest breaks. The petition does not satisfy the
threshold requirement for preemption under 49 U.S.C. 31141(c) because
the provisions at issue are not ``laws and regulations on commercial
motor vehicle safety,'' but rather laws and regulations applied
generally to California employers.
DATES: Effective Date: This decision is effective December 23, 2008.
FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Attorney-Advisor,
FMCSA Office of Chief Counsel. Telephone (202) 493-0349.
Background
On July 3, 2008, James H. Hanson, Esq., Scopelitis, Garvin, Light,
Hanson & Feary, P.C., petitioned the Federal Motor Carrier Safety
Administration (FMCSA) on behalf of a group of motor carriers \1\ to
preempt the California statutes and rules requiring transportation
industry employers to give their employees meal and rest breaks during
the work day, as applied to drivers of commercial motor vehicles (CMVs)
subject to the FMCSA hours-of-service (HOS) regulations. For the
reasons set forth below, FMCSA rejects the petition.
---------------------------------------------------------------------------
\1\ 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.
---------------------------------------------------------------------------
California Law
Section 512, Meal periods, of the California Labor Code reads in
part as follows:
``(a) An employer may not employ an employee for a work period
of more than five hours per day without providing the employee with
a meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee. An employer may not employ an employee for a work period
of more than 10 hours per day without providing the employee with a
second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee
only if the first meal period was not waived.
``(b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.''
Section 11090 of Article 9 (Transport Industry) of Group 2
(Industry and Occupation Orders) of Chapter 5 (Industrial Welfare
Commission) of Division 1 (Department of Industrial Relations) of Title
8 (Industrial Relations) of the California Code of Regulations, is
entitled ``Order Regulating Wages, Hours, and Working Conditions in the
Transportation Industry'' [hereafter: ``8 CCR Sec. 11090,'' ``Section
11090'', or ``Sec. 11090'' \2\].
---------------------------------------------------------------------------
\2\ California Industrial Welfare Commission Order No. 9-2001 is
identical to 8 CCR Sec. 11090.
---------------------------------------------------------------------------
Section 11090(11). Meal Periods, reads as follows:
``(A) No employer shall employ any person for a work period of
more than five (5) hours without a meal period of not less than 30
minutes, except that when a work period of not more than six (6)
hours will complete the day's work the meal period may be waived by
mutual consent of the employer and employee.
``(B) An employer may not employ an employee for a work period
of more than ten (10) hours per day without providing the employee
with a second meal period of not less than 30 minutes, except that
if the total hours worked is no more than 12 hours, the second meal
period may be waived by mutual consent of the employer and employee
only if the first meal period was not waived.
``(C) Unless the employee is relieved of all duty during a 30
minute meal period, the meal period shall be considered an `on duty'
meal period and counted as time worked. An `on duty' meal period
shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is
agreed to. The written agreement shall pay the employee one (1) hour
of pay at the employee's regular rate of compensation for each
workday that the meal period is not provided.
``(D) If an employer fails to provide an employee a meal period
in accordance with the applicable provisions of this order, the
employer shall pay the employee one (1) hour of pay at the
employee's regular rate of compensation for each workday that the
meal period is not provided.
``(E) In all places of employment where employees are required
to eat on the premises, a suitable place for that purpose shall be
designated.''
Section 11090(12). Rest Periods, reads as follows:
``(A) Every employer shall authorize and permit all employees to
take rest periods, which insofar as practicable shall be in the
middle of each work period. The authorized rest period time shall be
based on the total hour worked daily at the rate of ten (10) minutes
net rest time per four (4) hours or major fraction thereof. However,
a rest period need not be authorized for employees whose total daily
work time is less than three and one-half (3\1/2\) hours. Authorized
rest period time shall be counted as hours worked for which there
shall be no deduction from wages.
``(B) If an employer fails to provide an employee a rest period
in accordance with the applicable provisions of this order, the
employer shall pay the employee one (1) hours of pay at the
employer's regular rate of compensation for each workday that the
rest period is not provided.''
[[Page 79205]]
Although Sec. 11090(3)(L) provides that ``[t]he provisions of this
section are not applicable to employees whose hours of service are
regulated by: (1) The United States Department of Transportation, Code
of Federal Regulations, Title 49, sections 395.1 to 395.13, Hours of
Service of Drivers,'' the California courts have interpreted the word
``section'' to refer only to Sec. 11090(3), which regulates ``hours
and days of work,'' not to all of Sec. 11090, including meal and rest
breaks in Sec. 11090(11) and (12). Cicairos v. Summit Logistics, Inc.,
133 Cal App.4th 949 (2006).
Federal Law
FMCSA is authorized by 49 U.S.C. 31141 to preempt State law. For
purposes of this petition, the relevant portions of that statute read
as follows:
``(a) Preemption after decision.--A State may not enforce a
State law or regulation on commercial motor vehicle safety that the
Secretary of Transportation decides under this section may not be
enforced. * * *
``(c) Review and decisions by the secretary.--
``(1) Review.--The Secretary shall review State laws and
regulations on commercial motor vehicle safety. The Secretary shall
decide whether the State law or regulation--
``(A) Has the same effect as a regulation prescribed by the
Secretary under section 31136;
``(B) Is less stringent than such regulation; or
``(C) Is additional to or more stringent than such regulation. *
* *
``(4) Additional or more stringent regulations.--If the
Secretary decides a State law or regulation is additional to or more
stringent than a regulation prescribed by the Secretary under
section 31136 of this title, the State law or regulation may be
enforced unless the Secretary also decides that--
``(A) The State law or regulation has no safety benefit;
``(B) The State law or regulation is incompatible with the
regulation prescribed by the Secretary; or
``(C) Enforcement of the State law or regulation would cause an
unreasonable burden on interstate commerce.''
Petitioners' Argument
Petitioners summarized the effect of the California meal and rest
break rules as follows:
``Motor carrier operations are carefully timed to take advantage
of the flexibility available under the HOS Regulations and, in some
instances, to take advantage of the full complement of driving hours
provided as well. Some carriers schedule driver meals to take place
at carrier facilities once the driver has delivered a load so that
unloading, sorting, and loading of outbound shipments can take place
during the break. The Meal and Rest Break Rules, by mandating when
meals breaks must be taken, interfere with such arrangements,
meaning that the driver will miss the inbound appointment, which in
turn has the domino effect of delaying outbound operations. * * *
[A]s a practical matter, since the driver must be fully relieved of
duty during the break, breaks will take much longer as the driver
will be required to find a place to pull over and must actually park
and shut down the equipment before the break can start. Of course,
this will require that the driver return to the equipment, start it,
and get back on the road as well. Thus, as a practical matter, the
Meal and Rest Break Rules impose a much greater burden on the driver
than a simple reading of the rules * * * would at first suggest, and
the burden is exacerbated in congested areas'' [pages 10-11].
``In the absence of the Meal and Rest Break Rules, a driver
could spend three non-driving hours engaged in [other] activities
and could still drive for 11 hours under the HOS Regulations. In
California, due to the Meal and Rest Break Rules, however, the
driver loses 1\1/2\ hours (two 30-minute meal breaks and three 10-
minute rest breaks) over the course of the permitted 14-hour on-duty
period in which the driver can neither drive nor perform on-duty
driving tasks. The practical effect is that a driver in California
has only 12\1/2\ hours of on-duty time after initially coming on
duty during which he/she can accumulate his/her 11 hours of driving
time, leaving only 1\1/2\ hours to perform any other duty non-
driving tasks that might naturally occur during the day'' [page 10].
``Applying the Meal and Rest Break Rules to drivers subject to
the HOS Regulations imposes limitations on a driver's time that are
different from and more stringent than the HOS Regulations because
the Meal and Rest Break Rules limit the amount of hours available to
a driver to complete driving duties after initially coming on-duty
to less than the 14 hours permitted by the HOS Regulations.
Moreover, the Meal and Rest Break Rules do not allow for the
flexibility provided by the HOS Regulations, further exacerbating
the effect of the limitations imposed by the Meal and Rest Break
Rules. This lack of flexibility not only hinders operations from a
scheduling standpoint, it also creates serious safety concerns.
Specifically, by imposing meal and rest breaks at set times, the
Meal and Rest Break Rules limit a driver's ability to take breaks
when they are actually needed. A driver subject only to the HOS
Regulations, on the other hand, is not subject to externally imposed
limitations and is instead able to take breaks when he or she deems
necessary'' [page 6].
In a supplement filed with FMCSA on October 2, 2008, petitioners
reiterated their position even more bluntly:
``Petitioners * * * argue * * * that they should be free to
schedule drivers to work and that drivers should be free to choose
to work as much as they desire in accordance with the HOS
Regulations, without regard for individual state requirements, as
long as the driver is otherwise able to operate the equipment
safely. The Meal and Rest Break Rules are inconsistent with the HOS
Regulations'' [page 4].
The July petition states that:
``The threshold for review under 49 U.S.C. 31141 is that the
state law or regulation be `on commercial motor vehicle safety.' * *
* Thus, the only logical/consistent interpretation of `on commercial
motor vehicle safety' under 49 U.S.C. 31141 is to interpret it as
applying to state laws or regulations that regulate or affect
subject matter within the FMCSA's authority under 49 U.S.C. 31136,
i.e., any state law or regulation that regulates subject matter
within the FMCSA's authority under 49 U.S.C. 31136 is `on commercial
motor vehicle safety' for purposes of 49 U.S.C. 31141.
``Conceivably, it could be argued that the Meal and Rest Break
rules are not `on commercial motor vehicle safety' because they are
rules of general applicability and their application is not limited
to CMVs. When considered from a practical perspective, however,
there can be no question that the Meal and Rest Break Rules are
exactly the type of rules that fall within the scope of 49 U.S.C.
31141. As a practical matter, interpreting the statute to apply only
to state laws or rules applicable solely to CMVs would open the door
to state regulation of CMV safety under the guise of generally
applicable state laws or rules'' [page 21].
Decision
Petitioners themselves acknowledge the decisive argument against
their own position. The California meal break statute [Cal. Labor Code
Sec. 512] and the corresponding rules in Sec. 11090(11)-(12) are not
regulations ``on commercial motor vehicle safety'' and thus do not meet
the threshold requirement for consideration under 49 U.S.C. 31141.\3\
The State rules apply to the entire ``transportation industry,'' which
Sec. 11090(2)(N) defines as ``any industry, business, or establishment
operated for the purpose of conveying persons or property from one
place to another whether by rail, highway, air, or water, and all
operations and services in connection therewith; and also includes
storing or warehousing of goods or property, and the repairing,
parking, rental, maintenance, or cleaning of vehicles.'' The meal and
rest break rules thus cover far more than the trucking industry.
---------------------------------------------------------------------------
\3\ Petitioners claim that by ``imposing meal and rest breaks at
set times,'' the California rules create safety concerns by
interfering with a driver's ability to take breaks when actually
needed [page 6]. In fact, the State rules allow the first meal break
at any point during the first five hours on duty, and the second
within the next five hours. Five-hour windows hardly constitute
``set times.'' Petitioners provide no evidence that these breaks
undermine safety.
---------------------------------------------------------------------------
In fact, the meal and rest break rules are not even unique to
transportation. California imposes virtually the same rules on the
``manufacturing industry'' [8 CCR Sec. 11010(11)-(12)]; the ``personal
service industry'' [8 CCR Sec. 11020(11)-(12)]; the ``canning,
freezing and
[[Page 79206]]
preserving industry'' [8 CCR Sec. 11030(11)-(12)]; the ``professional,
technical, clerical, and similar occupations'' [8 CCR Sec. 11040(11)-
(12)]; the ``public housekeeping industry'' [8 CCR Sec. 11050(11)-
(12)]; the ``laundry, linen supply, dry cleaning, and dyeing industry''
[8 CCR Sec. 11060(11)-(12)]; the ``mercantile industry'' [8 CCR Sec.
11070(11)-(12)]; ``industries handling products after harvest'' [8 CCR
Sec. 11080(11)-(12)]; the ``amusement and recreation industry'' [8 CCR
Sec. 11100(11)-(12)]; the ``broadcasting industry'' [8 CCR Sec.
11110(11)-(12)]; the ``motion picture industry'' [8 CCR Sec.
11120(11)-(12)]; ``industries preparing agricultural products for
market, on the farm'' [8 CCR Sec. 11130(11)-(12)]; ``agricultural
occupations'' [8 CCR Sec. 11140(11)-(12)]; ``household occupations''
[8 CCR Sec. 11150(11)-(12)]; ``certain on-site occupations in the
construction, drilling, logging and mining industries'' [8 CCR Sec.
11160(10)-(11)]; and ``miscellaneous employees'' [8 CCR Sec.
11170(9)]. The meal and rest break rules for CMV drivers are simply one
part of California's comprehensive regulations governing wages, hours
and working conditions. Because these rules are in no sense regulations
``on commercial motor vehicle safety,'' they are not subject to
preemption under 49 U.S.C. 31141.
Recognizing this problem, petitioners expanded their argument to
claim that ``the FMCSA has power to preempt any state law or regulation
that regulates or affects any matters within the agency's broad
Congressional grant of authority'' (page 22). There is nothing in the
statutory language or legislative history of 49 U.S.C. 31141 that would
justify reading into it the authority to preempt State laws
``affecting'' CMV safety. Further, if the Agency were to take such a
position, any number of State laws would be subject to challenge. For
example, it is conceivable that high State taxes and emission controls
could affect a motor carrier's financial ability to maintain compliance
with the Federal Motor Carrier Safety Regulations (FMCSRs); however, it
is doubtful that the Agency would be viewed as thus having the
authority to preempt State tax or environmental laws.
Yet petitioners make the equally far-reaching argument that FMCSA
can and should preempt the California statutes and rules on wages,
hours, and working conditions which prevent carriers from maximizing
their employees' driving and on-duty time. In fact, the FMCSRs have for
decades required carriers and drivers to comply with all of the laws,
ordinances, and regulations of the jurisdiction where they operate [49
CFR 392.2].
FMCSA cannot entertain this petition. Because the California meal
and rest break rules are not ``regulations on commercial motor vehicle
safety,'' the Agency has no authority to preempt them under 49 U.S.C.
31141. Furthermore, that statute does not allow the preemption of other
State or local regulations merely because they have some effect on CMV
operations.
Issued on: December 18, 2008.
David A. Hugel,
Deputy Administrator.
[FR Doc. E8-30646 Filed 12-23-08; 8:45 am]
BILLING CODE 4910-EX-P