Washington's Meal and Rest Break Rules for Drivers of Commercial Motor Vehicles; Petition for Determination of Preemption, 73335-73348 [2020-25155]

Download as PDF Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices I. Public Participation A. Viewing Documents and Comments To view comments, as well as any documents mentioned in this notice as being available in the docket, go to https://www.regulations.gov. Insert the docket number, FMCSA–2013–0121, FMCSA–2014–0103, FMCSA–2014– 0385, FMCSA–2015–0329, FMCSA– 2016–0002, FMCSA–2017–0059, or FMCSA–2018–0135, in the keyword box, and click ‘‘Search.’’ Next, click the ‘‘Open Docket Folder’’ button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12–140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366–9317 or (202) 366–9826 before visiting Dockets Operations. B. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL– 14 FDMS), which can be reviewed at www.transportation.gov/privacy. II. Background On October 1, 2020, FMCSA published a notice announcing its decision to renew exemptions for 14 individuals from the hearing standard in 49 CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested comments from the public (85 FR 62009). The public comment period ended on November 2, 2020, and no comments were received. FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(11). The physical qualification standard for drivers regarding hearing found in § 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 73335 hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951. This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971). DEPARTMENT OF TRANSPORTATION III. Discussion of Comments AGENCY: FMCSA received no comments in this proceeding. IV. Conclusion Based upon its evaluation of the 14 renewal exemption applications, FMCSA announces its decision to exempt the following drivers from the hearing requirement in § 391.41(b)(11). As of October 13, 2020, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 14 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers (85 FR 62009): Cory Adkins (FL) David Alagna (TN) Matthew Albrecht (PA) Keith Bryd (TN) David Chappelear (TX) Ralph Domel (TX) Jacquelyn Hetherington (OK) Paul Mansfield (KS) Ervin Mitchell (TX) Jose Ramirez (IL) Fernando Ramirez-Savon (FL) Thomas Sneer (MN) Daniel Stroud (UT) Jason Wynne (TX) The drivers were included in docket number FMCSA–2013–0121, FMCSA– 2014–0103, FMCSA–2014–0385, FMCSA–2015–0329, FMCSA–2016– 0002, FMCSA–2017–0059, and FMCSA– 2018–0135. Their exemptions were applicable as of October 13, 2020, and will expire on October 13, 2022. In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b). Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2020–25340 Filed 11–16–20; 8:45 am] BILLING CODE 4910–EX–P PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 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 Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Order; grant of petition for determination of preemption. 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: SUMMARY: Electronic Access You may see all the comments online through the Federal Document Management System (FDMS) at https:// www.regulations.gov. Docket: For access to the docket FMCSA–2019–0128 to read background documents or comments, go to https:// 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 E:\FR\FM\17NON1.SGM 17NON1 73336 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 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 quasimunicipal 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 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 passengercarrying 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. VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 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 thirtyminute 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 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). PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 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 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. E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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. 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. 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 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. VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 inconsistent with Federal safety requirements.5 Id. at 79205–06. II. FMCSA’s 2018 Decision Granting Petitions to Preempt California’s MRB Rules, as applied to Drivers of PropertyCarrying 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 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. PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 73337 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 E:\FR\FM\17NON1.SGM 17NON1 73338 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 propertycarrying 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 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. PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 The comments are discussed more fully below. 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. E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 mealand-rest break standards to provide increased safety protections to all drivers.’’ They further explained, ‘‘By ensuring workers can take a rest break PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 73339 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 § 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 E:\FR\FM\17NON1.SGM 17NON1 73340 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 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). VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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. 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 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 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 §§ 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 §§ 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 propertycarrying 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 E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 73341 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. Industries, Administrative Policy ES.C.6.1, paragraph 8. 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 III. Washington’s MRB Rules Are Department of Labor and Industries, ‘‘Additional to or More Stringent Than’’ Administrative Policy ES.C.6.1, the Agency’s HOS Rules for Propertyparagraph 11. Employees may not waive Carrying Vehicles Within the Meaning of their right to a rest period. Id. at Section 31141 paragraph 9. Having concluded that Washington’s Quoting the Agency’s 2018 decision MRB rules, as applied to drivers of preempting California’s MRB rules, property-carrying CMVs, are laws ‘‘on WTA argued that because Washington’s commercial motor vehicle safety,’’ rules ‘‘‘require employers to provide under section 31141, the Agency next CMV drivers with more rest breaks than must decide whether they have the the Federal HOS rules, and they allow same effect as, are less stringent than, or a smaller window of driving time before are additional to or more stringent than a break is required’ . . . they are the Federal HOS rules for propertyadditional to, and more stringent than, carrying CMVs. 49 U.S.C. 31141(c)(1). the federal HOS rules.’’ In comparing As described above, the Federal HOS Washington’s and California’s MRB rules establish daily and weekly limits rules, WTA stated, ‘‘In certain respects, on driving time for all drivers of . . . Washington’s rules are more property-carrying CMVs operating in restrictive than California’s. For interstate commerce and additionally example, Washington requires a 30require long-haul truck drivers to take a minute break somewhere between the break from driving of at least 30 minutes second and fifth hour of each five-hour after 8 hours of driving time if they wish work period, while California’s to continue driving. 49 CFR 395.3(a)– requirement only requires such a break (b). Washington’s MRB rules require any time before the end of the fifth hour employers to provide a meal period of of work.’’ The Agency agrees. The HOS at least 30 minutes that commences after rules require long-haul truck drivers in the second hour and before the fifth interstate commerce to take a 30-minute hour after the shift commences. WAC break from driving within a specified period; however, drivers are not 296–126–092(1)–(2). To illustrate, the constrained as to when to take the break Department of Labor and Industries within that period. While the HOS rules explained, ‘‘[A]n employee who do not require short-haul truck drivers normally works a 12-hour shift shall be allowed to take a 30-minute meal period operating in interstate commerce to take a driving break during the duty window, no later than at the end of each five both long- and short-haul drivers may hours worked.’’ See Department of schedule rest periods as needed to avoid Labor and Industries, Administrative driving while too fatigued to do so Policy ES.C.6.1, paragraph 5 (Dec. 1, safely, as the Federal regulations 2017).9 The Washington MRB rules prohibit. See 49 CFR 392.3. further provide, ‘‘Employees working Washington’s MRB Rules require three or more hours longer than a employers to provide CMV drivers with normal work day shall be allowed at more rest breaks than the Federal HOS least one thirty-minute meal period rules, and they allow a smaller window prior to or during the overtime period.’’ of driving time before a break is WAC 296–126–092(3). While an employee may choose to waive the meal required. period requirement, the employee may 10 Employers are excepted from the requirement rescind the waiver agreement at any to provide a rest period ‘‘Where the nature of the time. See Department of Labor and work allows employees to take intermittent rest 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. PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 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. E:\FR\FM\17NON1.SGM 17NON1 73342 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 propertycarrying 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). VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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. § 390.6. Thus, with respect to mitigating driver fatigue, Washington’s rules provide federallyregulated 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 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 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 propertycarrying 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 shorthaul 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 14hour shifts, and prohibit them from exceeding certain caps on weekly onduty 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 E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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-tipsdriver-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 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 73343 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 propertycarrying 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 30minute 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 E:\FR\FM\17NON1.SGM 17NON1 73344 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices ‘‘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 30minute 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 30minutes 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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. 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 13 NTSB Safety Recommendation H–94–005 may be viewed at https://www.ntsb.gov/safety/safetyrecs/_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-94006. 14 NTSB Safety Recommendation H–95–005 may be viewed at https://www.ntsb.gov/safety/safetyrecs/_layouts/ntsb.recsearch/ Recommendation.aspx?Rec=H-95-005. 15 NTSB Safety Recommendation H–99–019 may be viewed at https://www.ntsb.gov/safety/safetyrecs/_layouts/ntsb.recsearch/ Recommendation.aspx?Rec=H-99-019. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 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 propertycarrying 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-ofdrivers-say-elds-make-finding-parkingharder. 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 E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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. 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-theroad] drivers’’ it does not pose a 16 The WSDOT Truck Parking Survey is available in the docket for this preemption matter and may also be downloaded at https://www.wsdot.wa.gov/ NR/rdonlyres/D2A7680F-ED90-47D9-AD134965D6D6BD84/114207/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’’). VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 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). PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 73345 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). 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 30minute 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 E:\FR\FM\17NON1.SGM 17NON1 73346 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices minimize disuniformity in the national safety regulatory regime. See Public Law 98–554, title II § 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 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 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. 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 VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 offduty 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 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 onduty work, toward the break. See 49 CFR 395.1(q). PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 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 E:\FR\FM\17NON1.SGM 17NON1 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices 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. 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 22 The 2018 Labor and Market Economic Report is available for download at https://esd.wa.gov/ labormarketinfo/annual-report. VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 73347 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 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, E:\FR\FM\17NON1.SGM Continued 17NON1 73348 Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices consistent. Oregon, for example, requires employers to provide a 30minute 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. § 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. 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 Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia. VerDate Sep<11>2014 19:46 Nov 16, 2020 Jkt 253001 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 propertycarrying 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; PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 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 DEPARTMENT OF TRANSPORTATION Office of the Secretary [Docket No. DOT–OST–2020–0232] Agency Information Collection Activities: Renewed Approval of Information Collection AGENCY: Office of the Secretary (OST), DOT. 60-Day notice and request for comments. ACTION: The Department of Transportation (DOT) invites public comments on our intention to request Office of Management and Budget (OMB) approval for an information collection in accordance with the requirements of the Paperwork Reduction Act of 1995. The collection is necessary for administration of the ‘‘Discretionary Grants for Nationally Significant Freight and Highway Projects (FASTLANE/INFRA) Program’’. FASTLANE/INFRA grants support surface transportation infrastructure projects that have a significant local or regional impact. DATES: Written comments should be submitted by January 19, 2021. ADDRESSES: To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means: • Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting comments. • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery: West Building Ground Floor, Room W–12–140, 1200 New Jersey Ave. SE, between 9 a.m. and 5 p.m., Monday through Friday, except SUMMARY: E:\FR\FM\17NON1.SGM 17NON1

Agencies

[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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; [email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at https://www.regulations.gov.
    Docket: For access to the docket FMCSA-2019-0128 to read background 
documents or comments, go to https://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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 https://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