California and Washington Meal and Rest Break Rules; Petitions for Waiver of Preemption Determinations, 89010-89012 [2023-28399]
Download as PDF
<![CDATA[
89010
Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices
number (FMCSA–2023–0040) in the
keyword box, and click ‘‘Search.’’ Next,
choose the only notice listed, and click
‘‘Browse Comments.’’ If you do not have
access to the internet, you may view the
docket online by visiting Dockets
Operations on the ground floor of the
DOT West Building, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001, 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 49 U.S.C.
31315(b)(6), DOT solicits comments
from the public on the exemption
request. 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 (Federal Docket Management
System), which can be reviewed at
https://www.transportation.gov/
individuals/privacy/privacy-act-systemrecords-notices, the comments are
searchable by the name of the submitter.
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II. Background
FMCSA received applications from 26
individuals who requested an
exemption from the FMCSRs
prohibiting persons with a clinical
diagnosis of epilepsy or any other
condition that is likely to cause a loss
of consciousness or any loss of ability to
operate a CMV from operating CMVs in
interstate commerce.
FMCSA has evaluated the eligibility
of these applicants and concluded that
granting these exemptions would not
provide a level of safety that would be
equivalent to, or greater than, the level
of safety that would be obtained by
complying with § 391.41(b)(8).
III. Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and
31315(b), FMCSA may grant an
exemption from the FMCSRs for no
longer than a 5-year period if it finds
such exemption would likely achieve a
level of safety that is equivalent to, or
greater than, the level that would be
achieved absent such exemption. The
statute also allows the Agency to renew
exemptions at the end of the 5-year
period. FMCSA grants medical
exemptions from the FMCSRs for a 2year period to align with the maximum
duration of a driver’s medical
certification. The Agency’s decision
regarding these exemption applications
is based on the eligibility criteria, the
terms and conditions for Federal
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20:25 Dec 22, 2023
Jkt 262001
exemptions, and an individualized
assessment of each applicant’s medical
information provided by the applicant.
IV. Conclusion
The Agency has determined that these
applicants do not satisfy the eligibility
criteria or meet the terms and
conditions of the Federal exemption and
granting these exemptions would not
provide a level of safety that would be
equivalent to, or greater than, the level
of safety that would be obtained by
complying with § 391.41(b)(8).
Therefore, the 26 applicants in this
notice have been denied exemptions
from the physical qualification
standards in § 391.41(b)(8).
Each applicant has, prior to this
notice, received a letter of final
disposition regarding his/her exemption
request. Those decision letters fully
outlined the basis for the denial and
constitute final action by the Agency.
This notice summarizes the Agency’s
recent denials as required under 49
U.S.C. 31315(b)(4) by periodically
publishing names and reasons for
denial.
The following 26 applicants do not
meet the minimum time requirement for
being seizure-free, either on or off of
anti-seizure medication:
Daniel Ashley (MD)
Joseph Bodle (CA)
Milverton Burton (FL)
Joe Celedonia (MD)
Cannon Fowler (AL)
Brian Hagen (MN)
Tomrone Harris (PA)
Andre Hartig (ME)
Dylan Hill (KS)
Jacob Johnstone (WI)
Regan Keller (NH)
Richard Kelley (IL)
Jeramie Kozlowski (PA)
Adam Martin (IN)
Dawn McGann (WA)
Jaysen Meidell (IL)
Douglas Pelton (OH)
Kevin Pustelak (PA)
Nicholas Quairoli (FL)
Jesus Reyna (IL)
Jennifer Roberts (NM)
Quac’era Schaffer (NC)
Paritpal Singh (CA)
Kristina Walters (IN)
Trevor Ward (CO)
Penny Witteman (OH)
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2023–28397 Filed 12–22–23; 8:45 am]
BILLING CODE 4910–EX–P
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2018–0304; FMCSA–
2019–0048; FMCSA–2019–0128]
California and Washington Meal and
Rest Break Rules; Petitions for Waiver
of Preemption Determinations
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of petitions for waiver of
preemption determinations; request for
comments.
AGENCY:
FMCSA requests comments
on petitions requesting waivers of the
Agency’s December 21, 2018 and
January 13, 2020 decisions preempting
the State of California’s Meal and Rest
Break (MRB) rules for certain drivers of
property- and passenger-carrying
commercial motor vehicles (CMVs) and
its November 17, 2020 decision
preempting the State of Washington’s
MRB rules for certain drivers of
property-carrying CMVs. Waiver
petitions were filed by the International
Brotherhood of Teamsters; the Truck
Safety Coalition, Citizens for Reliable
and Safe Highways and Parents Against
Tired Truckers; William B. Trescott; and
the State of California.
DATES: Comments must be received on
or before February 26, 2024.
ADDRESSES: You may submit comments
to the Federal Docket Management
System Docket No. FMCSA–2018–0304,
Docket No. FMCSA–2019–0048, and/or
Docket FMCSA–2019–0128 using any of
the following methods:
• Federal eRulemaking Portal: Go to
www.regulations.gov/, insert the docket
number, FMCSA–2018–0304, docket
number FMCSA–2019–0048, or docket
FMCSA–2019–0128 in the keyword box,
and click ‘‘Search.’’ Follow the online
instructions for submitting a comment.
• Mail: Dockets Operations, U.S.
Department of Transportation, 1200
New Jersey Avenue SE, West Building
Ground Floor, Washington, DC 20590–
0001.
• Hand Delivery or Courier: Dockets
Operations, West Building, Ground
Floor, 1200 New Jersey Avenue SE,
Washington, DC, 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.
• Fax: (202) 493–2251.
To avoid duplication, please use only
one of these four methods.
SUMMARY:
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Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices
Privacy Act: DOT solicits comments
from the public to better inform its
decisions regarding preemption of State
laws. 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.
FOR FURTHER INFORMATION CONTACT:
Tracy M. White, Enforcement and
Litigation Division; FMCSA Office of
Chief Counsel; 1200 New Jersey Avenue
SE, Washington, DC 20590; (202) 493–
0349; Tracy.White@dot.gov. If you have
questions on viewing or submitting
material to the docket, contact Dockets
Operations, (202) 366–9317 or (202)
366–9826.
SUPPLEMENTARY INFORMATION:
khammond on DSKJM1Z7X2PROD with NOTICES
I. Background
On December 21, 2018, FMCSA
granted petitions filed by the American
Trucking Associations and the
Specialized Carriers and Rigging
Association, and determined that
California’s MRB rules, as applied to
property-carrying CMV drivers subject
to FMCSA’s hours of service (HOS)
regulations, are preempted under 49
United States Code (U.S.C.) 31141
(Docket No. FMCSA–2018–0304; 83 FR
67470 (Dec. 28, 2018)). On January 13,
2020, FMCSA granted a petition filed by
the American Bus Association and
determined that California’s MRB rules,
as applied to passenger-carrying CMV
drivers subject to FMCSA’s HOS
regulations, are also preempted under
49 U.S.C. 31141 (Docket No. FMCSA–
2019–0048; 85 FR 3469 (Jan. 21, 2020)).
On November 27, 2020, FMCSA granted
a petition filed by the Washington
Trucking Associations and determined
that Washington’s MRB rules, as applied
to property-carrying CMV drivers
subject to FMCSA’s HOS regulations,
are preempted under 49 U.S.C. 31141
(Docket No. FMCSA–2019–0128, 85 FR
73335 (Nov. 17, 2020)). In each
decision, FMCSA determined that the
MRB rules are laws on CMV safety, that
they are more stringent than the Federal
regulations, and that they meet each of
the three potential criteria for
preemption under 49 U.S.C. 31141(c)(4)
and (5) (see 83 FR 67470, 85 FR 3469;
85 FR 7333). On January 15, 2021, the
U.S. Court of Appeals for the Ninth
Circuit denied petitions for review
challenging the first preemption
decision. Int’l Bhd. of Teamsters, Local
2785 v. FMCSA, 986 F.3d 841 (9th Cir.
2021), cert. denied sub nom. Trescott v.
Fed. Motor Carrier, No. 20–1662, 142 S.
Ct. 93 (Oct. 4, 2021). The State of
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20:25 Dec 22, 2023
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California filed a petition for review in
the Ninth Circuit in March 2020
challenging the second preemption
decision, and the court has held that
case in abeyance. People of the State of
Cal. ex rel. Bonta v. FMCSA, No. 20–
70706 (9th Cir.). The State of
Washington filed a petition for review
in the Ninth Circuit challenging the
third preemption decision but
voluntarily dismissed the case in
August 2022. State of Washington v.
FMCSA, No. 20–73730 (9th Cir.).
II. Applicable Law
A. California’s MRB Rules
Under section 512 of the California
Labor Code, employers must provide
non-exempt employees a 30-minute
meal break if they work more than 5
hours in a day, and employees who
work a shift of 10 hours or more are
entitled to a second 30-minute meal
break. Under the California Code of
Regulations (CCR) section 11090(12),
employers are required to provide rest
periods for non-exempt employees who
work 31⁄2 or more hours in a day.
Employees are entitled to a 10-minute
rest period for each 4 hours, or a
substantial fraction thereof, that they
work in a day. To the extent possible,
these breaks are to be taken in the
middle of each 4-hour period (8 CCR
section 11090(12)); California Industrial
Welfare Commission Order No. 9–2001.
California law provides that an
employer shall not require an employee
to work during a mandated meal or rest
break and provides for additional pay as
a remedy for violating that prohibition
(Cal. Labor Code 226.7(b) and (c)).
B. Washington’s MRB Rules
Under the Washington Department of
Labor and Industries’ regulations in
section 296–126–092 of Washington’s
Administrative Code (WAC), employers
must provide employees 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) and (2)). 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)). The rest period must be
scheduled as near as possible to the
midpoint of the 4 hours of working
time, and no employee may be required
to work more than 3 consecutive hours
without a rest period.1
1 Department of Labor and Industries,
Administrative Policy ES.C.6.1, paragraph 11,
https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf.
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89011
C. Federal Preemption Under the Motor
Carrier Safety Act of 1984
Section 31141 of title 49, U.S.C.,
prohibits States from enforcing a law or
regulation on CMV safety that the
Secretary of Transportation (Secretary)
has determined to be preempted. To
determine whether a State law or
regulation is preempted, the Secretary
must decide whether a State law or
regulation: (1) has the same effect as a
regulation prescribed under 49 U.S.C.
31136, which is the authority for much
of the Federal Motor Carrier Safety
Regulations; (2) is less stringent than
such a regulation; or (3) is additional to
or more stringent than such a regulation
(49 U.S.C. 31141(c)(1)).
If the Secretary decides that a State
law or regulation is additional to or
more stringent than a regulation
prescribed by the Secretary under 49
U.S.C. 31136, the State law or regulation
may be enforced unless the Secretary
decides that the State law or regulation
(1) has no safety benefit; (2) is
incompatible with the regulation
prescribed by the Secretary; or (3)
would cause an unreasonable burden on
interstate commerce (Id. 31141(c)(4)). In
deciding whether a State law or
regulation will cause an unreasonable
burden on interstate commerce, the
Secretary may consider the cumulative
effect that the State’s law or regulation
and all similar laws and regulations of
other States will have on interstate
commerce (Id. 31141(c)(5)). The
Secretary’s authority under 49 U.S.C.
31141 is delegated to the FMCSA
Administrator by 49 U.S.C. 113(f) and
49 CFR 1.87(f).
Pursuant to 49 U.S.C. 31141(d),
FMCSA may grant a waiver of an
FMCSA preemption decision. Under
this provision, ‘‘[a] person (including a
State) may petition the Secretary for a
waiver of a decision of the Secretary
that a State law or regulation may not
be enforced under this section.’’
Further, ‘‘[t]he Secretary shall grant the
waiver, as expeditiously as possible, if
the person demonstrates to the
satisfaction of the Secretary that the
waiver is consistent with the public
interest and the safe operation of
commercial motor vehicles’’ (Id.
§ 31141(d)(1)).
III. Request for Comment on Petitions
for Waiver of California and
Washington Meal and Rest Break
Preemption Determinations
The International Brotherhood of
Teamsters; the Truck Safety Coalition,
Citizens for Reliable and Safe Highways,
and Parents Against Tired Truckers; and
William B. Trescott have submitted
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89012
Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices
petitions requesting the FMCSA waive
all three determinations preempting
California’s MRB rules for drivers of
property- and passenger-carrying CMVs
subject to FMCSA’s HOS rules and
Washington’s MRB rules for propertycarrying CMVs subject to FMCSA’s HOS
rules.
The State of California has petitioned
for waiver of the decisions preempting
California’s MRB rules. FMCSA has
placed each petition for waiver in the
‘‘Documents’’ section of the appropriate
docket.2 Although waiver of a
preemption determination under 49
U.S.C. 31141(d) is a legal determination
reserved to the judgment of the Agency,
FMCSA seeks comments on any issues
raised in the above referenced petitions
for waiver or otherwise relevant. In
addition, FMCSA requests that
commenters address the following
issues:
1. Whether and to what extent
enforcement of a State’s meal and rest
break laws with respect to intrastate
property-carrying and passengercarrying CMV drivers has impacted the
health and safety of drivers.
2. Whether enforcement of State meal
and rest break laws as applied to
interstate property-carrying or
passenger-carrying CMV drivers will
exacerbate the existing truck parking
shortages and result in more trucks
parking on the side of the road and
whether any such effect will burden
interstate commerce or create additional
dangers to drivers and the public; and
3. Whether enforcement of a State’s
meal and rest break laws as applied to
interstate property-carrying or
passenger-carrying CMV drivers will
dissuade carriers from operating in that
State; and
4. Whether enforcement of a State’s
meal and rest break laws as applied to
interstate property-carrying or
passenger-carrying CMV drivers will
weaken or otherwise impact the
resiliency of the national supply chain.
Robin Hutcheson,
Administrator.
[FR Doc. 2023–28399 Filed 12–22–23; 8:45 am]
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BILLING CODE 4910–EX–P
2 FMCSA also received a submission from
Teamsters Locals 70, 87, 150, 386, 439, 948 and
2785 requesting that FMCSA reverse its preemption
decisions, as well as a comment from the OwnerOperator Independent Drivers Association. These
documents may be viewed in the ‘‘Comments’’
section of the appropriate docket.
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Jkt 262001
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2023–0267]
RIN 2126–AB56
FMCSA Registration System
Modernization
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of public meeting.
AGENCY:
FMCSA announces a public
meeting to engage stakeholders, which
includes motor carriers, brokers, freight
forwarders, insurance companies,
financial institutions, process agents,
blanket companies, and third-party
service providers; to get their
perspective on improving the
registration experience with FMCSA.
DATES: The meeting will be held on
January 17, 2024, from 8 a.m. to 4 p.m.
A copy of the agenda, will be available
in advance of the meeting at https://
www.fmcsa.dot.gov/registration/fmcsaregistration-modernization-stakeholderday.
ADDRESSES: The meeting will be held at
the DOT Headquarters Building, 1200
New Jersey Avenue SE, Washington, DC
20590–0001. Those interested in
attending this public meeting must
register at https://www.fmcsa.dot.gov/
registration/fmcsa-registrationmodernization-stakeholder-day by 11:59
p.m. eastern standard time (EST), on
January 8, 2024. Attendance is limited
to 90 people. Attendees should arrive by
8:00 a.m. to allow sufficient time to
clear security. A virtual attendance
option is not available for this meeting
however, FMCSA will be affording
additional engagement opportunities in
the future which may include virtual
attendance options.
FOR FURTHER INFORMATION CONTACT:
Alex Vanjani, Director, Office of the
Chief Technology Officer (CTO),
FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001; (202) 510–
7826; Alex.Vanjani@dot.gov.
Supreet Kaur, Project Manager, Office
of the CTO, FMCSA, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001; (202) 748–1204; Supreet.Kaur@
dot.gov.
Services for individuals with
disabilities: For information on facilities
or services for individuals with
disabilities or to request special
assistance at the meeting, contact Alex
Vanjani or Supreet Kaur using one of
the above means by 11:59 p.m. EST, on
January 8, 2024.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
Background
FMCSA is developing a new online
registration system, to improve the
transparency and efficiency of FMCSA’s
registration procedures as well as
implement statutory requirements
related to the registration program.
FMCSA seeks user perspectives on
improving the registration experience
when engaging with FMCSA’s
registration system. During this meeting,
FMCSA will invite attendees to
participate in breakout sessions that will
align with different groups of users the
Agency expects will use the new online
registration system. FMCSA moderators
will facilitate discussions on what
potential users would like to see, as well
as what would not be helpful from a
user experience perspective. The day
will end with a general listening
session, where FMCSA representatives
will receive comments and concerns
about a new online registration system.
Meeting Information
This meeting is intended for current
and potential users of a new online
registration system. Breakout sessions
will focus on the following categories of
registration IT system users:
• Motor carriers;
• Brokers and freight forwarders;
• Insurance companies/financial
institutions and process agents/blanket
companies; and
• Third party service providers.
The full meeting agenda will be
available on the registration site (see
ADDRESSES above for instructions on
meeting registration) in advance of the
meeting.
Robin Hutcheson,
Administrator.
[FR Doc. 2023–28362 Filed 12–22–23; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2023–0039]
Qualification of Drivers; Exemption
Applications; Epilepsy and Seizure
Disorders
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of applications for
exemption; request for comments.
AGENCY:
FMCSA announces receipt of
applications from 12 individuals for an
exemption from the prohibition in the
SUMMARY:
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]]>Agencies
[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89010-89012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28399]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2018-0304; FMCSA-2019-0048; FMCSA-2019-0128]
California and Washington Meal and Rest Break Rules; Petitions
for Waiver of Preemption Determinations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of petitions for waiver of preemption determinations;
request for comments.
-----------------------------------------------------------------------
SUMMARY: FMCSA requests comments on petitions requesting waivers of the
Agency's December 21, 2018 and January 13, 2020 decisions preempting
the State of California's Meal and Rest Break (MRB) rules for certain
drivers of property- and passenger-carrying commercial motor vehicles
(CMVs) and its November 17, 2020 decision preempting the State of
Washington's MRB rules for certain drivers of property-carrying CMVs.
Waiver petitions were filed by the International Brotherhood of
Teamsters; the Truck Safety Coalition, Citizens for Reliable and Safe
Highways and Parents Against Tired Truckers; William B. Trescott; and
the State of California.
DATES: Comments must be received on or before February 26, 2024.
ADDRESSES: You may submit comments to the Federal Docket Management
System Docket No. FMCSA-2018-0304, Docket No. FMCSA-2019-0048, and/or
Docket FMCSA-2019-0128 using any of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov/,
insert the docket number, FMCSA-2018-0304, docket number FMCSA-2019-
0048, or docket FMCSA-2019-0128 in the keyword box, and click
``Search.'' Follow the online instructions for submitting a comment.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Washington, DC 20590-0001.
Hand Delivery or Courier: Dockets Operations, West
Building, Ground Floor, 1200 New Jersey Avenue SE, Washington, DC,
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.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
[[Page 89011]]
Privacy Act: DOT solicits comments from the public to better inform
its decisions regarding preemption of State laws. 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.
FOR FURTHER INFORMATION CONTACT: Tracy M. White, Enforcement and
Litigation Division; FMCSA Office of Chief Counsel; 1200 New Jersey
Avenue SE, Washington, DC 20590; (202) 493-0349; [email protected].
If you have questions on viewing or submitting material to the docket,
contact Dockets Operations, (202) 366-9317 or (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Background
On December 21, 2018, FMCSA granted petitions filed by the American
Trucking Associations and the Specialized Carriers and Rigging
Association, and determined that California's MRB rules, as applied to
property-carrying CMV drivers subject to FMCSA's hours of service (HOS)
regulations, are preempted under 49 United States Code (U.S.C.) 31141
(Docket No. FMCSA-2018-0304; 83 FR 67470 (Dec. 28, 2018)). On January
13, 2020, FMCSA granted a petition filed by the American Bus
Association and determined that California's MRB rules, as applied to
passenger-carrying CMV drivers subject to FMCSA's HOS regulations, are
also preempted under 49 U.S.C. 31141 (Docket No. FMCSA-2019-0048; 85 FR
3469 (Jan. 21, 2020)). On November 27, 2020, FMCSA granted a petition
filed by the Washington Trucking Associations and determined that
Washington's MRB rules, as applied to property-carrying CMV drivers
subject to FMCSA's HOS regulations, are preempted under 49 U.S.C. 31141
(Docket No. FMCSA-2019-0128, 85 FR 73335 (Nov. 17, 2020)). In each
decision, FMCSA determined that the MRB rules are laws on CMV safety,
that they are more stringent than the Federal regulations, and that
they meet each of the three potential criteria for preemption under 49
U.S.C. 31141(c)(4) and (5) (see 83 FR 67470, 85 FR 3469; 85 FR 7333).
On January 15, 2021, the U.S. Court of Appeals for the Ninth Circuit
denied petitions for review challenging the first preemption decision.
Int'l Bhd. of Teamsters, Local 2785 v. FMCSA, 986 F.3d 841 (9th Cir.
2021), cert. denied sub nom. Trescott v. Fed. Motor Carrier, No. 20-
1662, 142 S. Ct. 93 (Oct. 4, 2021). The State of California filed a
petition for review in the Ninth Circuit in March 2020 challenging the
second preemption decision, and the court has held that case in
abeyance. People of the State of Cal. ex rel. Bonta v. FMCSA, No. 20-
70706 (9th Cir.). The State of Washington filed a petition for review
in the Ninth Circuit challenging the third preemption decision but
voluntarily dismissed the case in August 2022. State of Washington v.
FMCSA, No. 20-73730 (9th Cir.).
II. Applicable Law
A. California's MRB Rules
Under section 512 of the California Labor Code, employers must
provide non-exempt employees a 30-minute meal break if they work more
than 5 hours in a day, and employees who work a shift of 10 hours or
more are entitled to a second 30-minute meal break. Under the
California Code of Regulations (CCR) section 11090(12), employers are
required to provide rest periods for non-exempt employees who work 3\1/
2\ or more hours in a day. Employees are entitled to a 10-minute rest
period for each 4 hours, or a substantial fraction thereof, that they
work in a day. To the extent possible, these breaks are to be taken in
the middle of each 4-hour period (8 CCR section 11090(12)); California
Industrial Welfare Commission Order No. 9-2001. California law provides
that an employer shall not require an employee to work during a
mandated meal or rest break and provides for additional pay as a remedy
for violating that prohibition (Cal. Labor Code 226.7(b) and (c)).
B. Washington's MRB Rules
Under the Washington Department of Labor and Industries'
regulations in section 296-126-092 of Washington's Administrative Code
(WAC), employers must provide employees 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) and (2)). 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)). The rest period must be
scheduled as near as possible to the midpoint of the 4 hours of working
time, and no employee may be required to work more than 3 consecutive
hours without a rest period.\1\
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\1\ Department of Labor and Industries, Administrative Policy
ES.C.6.1, paragraph 11, https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf.
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C. Federal Preemption Under the Motor Carrier Safety Act of 1984
Section 31141 of title 49, U.S.C., prohibits States from enforcing
a law or regulation on CMV safety that the Secretary of Transportation
(Secretary) has determined to be preempted. To determine whether a
State law or regulation is preempted, the Secretary must decide whether
a State law or regulation: (1) has the same effect as a regulation
prescribed under 49 U.S.C. 31136, which is the authority for much of
the Federal Motor Carrier Safety Regulations; (2) is less stringent
than such a regulation; or (3) is additional to or more stringent than
such a regulation (49 U.S.C. 31141(c)(1)).
If the Secretary decides that a State law or regulation is
additional to or more stringent than a regulation prescribed by the
Secretary under 49 U.S.C. 31136, the State law or regulation may be
enforced unless the Secretary decides that the State law or regulation
(1) has no safety benefit; (2) is incompatible with the regulation
prescribed by the Secretary; or (3) would cause an unreasonable burden
on interstate commerce (Id. 31141(c)(4)). In deciding whether a State
law or regulation will cause an unreasonable burden on interstate
commerce, the Secretary may consider the cumulative effect that the
State's law or regulation and all similar laws and regulations of other
States will have on interstate commerce (Id. 31141(c)(5)). The
Secretary's authority under 49 U.S.C. 31141 is delegated to the FMCSA
Administrator by 49 U.S.C. 113(f) and 49 CFR 1.87(f).
Pursuant to 49 U.S.C. 31141(d), FMCSA may grant a waiver of an
FMCSA preemption decision. Under this provision, ``[a] person
(including a State) may petition the Secretary for a waiver of a
decision of the Secretary that a State law or regulation may not be
enforced under this section.'' Further, ``[t]he Secretary shall grant
the waiver, as expeditiously as possible, if the person demonstrates to
the satisfaction of the Secretary that the waiver is consistent with
the public interest and the safe operation of commercial motor
vehicles'' (Id. Sec. 31141(d)(1)).
III. Request for Comment on Petitions for Waiver of California and
Washington Meal and Rest Break Preemption Determinations
The International Brotherhood of Teamsters; the Truck Safety
Coalition, Citizens for Reliable and Safe Highways, and Parents Against
Tired Truckers; and William B. Trescott have submitted
[[Page 89012]]
petitions requesting the FMCSA waive all three determinations
preempting California's MRB rules for drivers of property- and
passenger-carrying CMVs subject to FMCSA's HOS rules and Washington's
MRB rules for property-carrying CMVs subject to FMCSA's HOS rules.
The State of California has petitioned for waiver of the decisions
preempting California's MRB rules. FMCSA has placed each petition for
waiver in the ``Documents'' section of the appropriate docket.\2\
Although waiver of a preemption determination under 49 U.S.C. 31141(d)
is a legal determination reserved to the judgment of the Agency, FMCSA
seeks comments on any issues raised in the above referenced petitions
for waiver or otherwise relevant. In addition, FMCSA requests that
commenters address the following issues:
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\2\ FMCSA also received a submission from Teamsters Locals 70,
87, 150, 386, 439, 948 and 2785 requesting that FMCSA reverse its
preemption decisions, as well as a comment from the Owner-Operator
Independent Drivers Association. These documents may be viewed in
the ``Comments'' section of the appropriate docket.
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1. Whether and to what extent enforcement of a State's meal and
rest break laws with respect to intrastate property-carrying and
passenger-carrying CMV drivers has impacted the health and safety of
drivers.
2. Whether enforcement of State meal and rest break laws as applied
to interstate property-carrying or passenger-carrying CMV drivers will
exacerbate the existing truck parking shortages and result in more
trucks parking on the side of the road and whether any such effect will
burden interstate commerce or create additional dangers to drivers and
the public; and
3. Whether enforcement of a State's meal and rest break laws as
applied to interstate property-carrying or passenger-carrying CMV
drivers will dissuade carriers from operating in that State; and
4. Whether enforcement of a State's meal and rest break laws as
applied to interstate property-carrying or passenger-carrying CMV
drivers will weaken or otherwise impact the resiliency of the national
supply chain.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-28399 Filed 12-22-23; 8:45 am]
BILLING CODE 4910-EX-P
