67470 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Notices 

1While the Agency received comments in 

support of the ATA’s petition from the American 

Bus Association, Coach USA, Greyhound Lines, and 

the United Motorcoach Association, this 

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 the MRB Rules are preempted with respect 

to such drivers. 

through www.regulations.gov. You must 

make any alternative arrangements 

before transmitting a document and in 

advance of the relevant deadline by 

contacting USTR at Special301@

ustr.eop.gov. 

USTR will place comments in the 

docket and they will be open to public 

inspection, except business confidential 

information. You can view comments 

on the www.regulations.gov website by 

entering Docket Number USTR–2018– 

0037 in the ‘Search’ field on the home 

page. 

Daniel Lee, 

Assistant U.S. Trade Representative for 

Innovation and Intellectual Property (Acting), 

Office of the United States Trade 

Representative. 

[FR Doc. 2018–28319 Filed 12–27–18; 8:45 am] 

BILLING CODE 3290–F9–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2018–0304] 

California’s Meal and Rest Break Rules 

for Commercial Motor Vehicle Drivers; 

Petition for Determination of 

Preemption 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Order; grant of petition for 

determination of preemption. 

SUMMARY: The FMCSA grants petitions 

submitted by the American Trucking 

Associations and the Specialized 

Carriers and Rigging Association 

requesting a determination that the State 

of California’s Meal and Rest Break rules 

(MRB Rules) are preempted under 49 

U.S.C. 31141 as applied to propertycarrying commercial motor vehicle 

(CMV) drivers covered by the FMCSA’s 

hours of service regulations. Federal law 

provides for preemption of State laws 

on CMV safety that are additional to or 

more stringent than Federal regulations 

if they have no safety benefit; are 

incompatible with Federal regulations; 

or would cause an unreasonable burden 

on interstate commerce. The FMCSA 

has determined that the MRB Rules are 

laws on CMV safety, that they are more 

stringent than the Agency’s hours of 

service regulations, that they have no 

safety benefits that extend beyond those 

already provided by the Federal Motor 

Carrier Safety Regulations, that they are 

incompatible with the Federal hours of 

service regulations, and that they cause 

an unreasonable burden on interstate 

commerce. The California MRB Rules, 

therefore, are preempted under 49 

U.S.C. 31141(c). 

ADDRESSES: You may see all the 

comments online through the Federal 

Document Management System (FDMS) 

at http://www.regulations.gov. 

Docket: For access to the docket to 

read background documents or 

comments, go to http://

www.regulations.gov or Room W12–140 

on the ground level of the West 

Building, 1200 New Jersey Avenue SE, 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The FDMS is available 

24 hours each day, 365 days each year. 

Privacy Act: Anyone may search the 

electronic form of all comments 

received into 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 Federal Docket 

Management System (FDMS) published 

in the Federal Register on December 29, 

2010. 75 FR 82132. 

FOR FURTHER INFORMATION CONTACT: 

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) 366–3551; email Charles.Fromm@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 24, 2018, the American 

Trucking Associations (ATA) petitioned 

the Federal Motor Carrier Safety 

Administration (FMCSA) to preempt 

California statutes and rules requiring 

employers to give their employees meal 

and rest breaks during the work day, as 

applied to drivers of commercial motor 

vehicles (CMVs) subject to the FMCSA’s 

hours of service (HOS) regulations. On 

October 29, 2018, the Specialized 

Carriers and Rigging Association (SCRA) 

also filed a petition seeking a 

preemption determination concerning 

the same meal and rest break 

requirements. The SCRA opted to 

submit a petition in lieu of comments as 

part of Docket No. FMCSA–2018–0304; 

therefore, the Agency will not open a 

separate docket for the SCRA’s petition. 

For the reasons set forth below, the 

FMCSA grants the petitions insofar as 

the provisions at issue apply to drivers 

of property-carrying CMVs subject to the 

FMCSA’s hours of service regulations.1

California Meal and Rest Break Rules 

(MRB Rules) 

Section 512, Meal periods, of the 

California Labor Code reads, in part, as 

follows: 

‘‘(a) An employer may not employ an 

employee for a work period of more than five 

hours per day without providing the 

employee with a meal period of not less than 

30 minutes, except that if the total work 

period per day of the employee is no more 

than six hours, the meal period may be 

waived by mutual consent of both the 

employer and employee. An employer may 

not employ an employee for a work period 

of more than 10 hours per day without 

providing the employee with a second meal 

period of not less than 30 minutes, except 

that if the total hours worked is no more than 

12 hours, the second meal period may be 

waived by mutual consent of the employer 

and the employee only if the first meal 

period was not waived. 

‘‘(b) Notwithstanding subdivision (a), the 

Industrial Welfare Commission may adopt a 

working condition order permitting a meal 

period to commence after six hours of work 

if the commission determines that the order 

is consistent with the health and welfare of 

the affected employees.’’ 

Section 516 of the California Labor 

Code reads, in relevant in part, as 

follows: 

‘‘(a) Except as provided in Section 512, the 

Industrial Welfare Commission may adopt or 

amend working condition orders with respect 

to break periods, meal periods, and days of 

rest for any workers in California consistent 

with the health and welfare of those 

workers.’’ 

Section 226.7 of the California Labor Code 

reads, in relevant part, as follows: 

‘‘(b) An employer shall not require an 

employee to work during a meal or rest or 

recovery period mandated pursuant to an 

applicable statute, or applicable regulation, 

standard, or order of the Industrial Welfare 

Commission . . . . 

‘‘(c) If an employer fails to provide an 

employee a meal or rest or recovery period 

in accordance with a state law, including, but 

not limited to, an applicable statute or 

applicable regulation, standard, or order of 

the Industrial Welfare Commission, . . . the 

employer shall pay the employee one 

additional hour of pay at the employee’s 

regular rate of compensation for each 

workday that the meal or rest or recovery 

period is not provided.’’ 

Section 11090 of Article 9 (Transport 

Industry) of Group 2 (Industry and 

Occupation Orders) of Chapter 5 

(Industrial Welfare Commission) of 

Division 1 (Department of Industrial 

Relations) of Title 8 (Industrial 

Relations) of the California Code of 


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2California Industrial Welfare Commission Order 

No. 9–2001 is identical to 8 CCR 11090. 

3The 30-minute rest break requirement does not 

apply to drivers operating under either of the shorthaul exemptions in 49 CFR 395.1(e)(1) or (2). 

Regulations, is entitled ‘‘Order 

Regulating Wages, Hours, and Working 

Conditions in the Transportation 

Industry’’ (hereafter: ‘‘8 CCR 11090’’ or 

‘‘section 11090’’).2

Section 11090(11). Meal Periods, 

reads as follows: 

‘‘(A) No employer shall employ any person 

for a work period of more than five (5) hours 

without a meal period of not less than 30 

minutes, except that when a work period of 

not more than six (6) hours will complete the 

day’s work the meal period may be waived 

by mutual consent of the employer and the 

employee. 

‘‘(B) An employer may not employ an 

employee for a work period of more than ten 

(10) hours per day without providing the 

employee with a second meal period of not 

less than 30 minutes, except that if the total 

hours worked is no more than 12 hours, the 

second meal period may be waived by 

mutual consent of the employer and the 

employee only if the first meal period was 

not waived. 

‘‘(C) Unless the employee is relieved of all 

duty during a 30 minute meal period, the 

meal period shall be considered an ‘on duty’ 

meal period and counted as time worked. An 

‘on duty’ meal period shall be permitted only 

when the nature of the work prevents an 

employee from being relieved of all duty and 

when by written agreement between the 

parties an on-the-job paid meal period is 

agreed to. The written agreement shall state 

that the employee may, in writing, revoke the 

agreement at any time. 

‘‘(D) If an employer fails to provide an 

employee a meal period in accordance with 

the applicable provisions of this order, the 

employer shall pay the employee one (1) 

hour of pay at the employee’s regular rate of 

compensation for each workday that the meal 

period is not provided. 

‘‘(E) In all places of employment where 

employees are required to eat on the 

premises, a suitable place for that purpose 

shall be designated.’’ 

Section 11090(12). Rest Periods, reads 

as follows: 

‘‘(A) Every employer shall authorize and 

permit all employees to take rest periods, 

which insofar as practicable shall be in the 

middle of each work period. The authorized 

rest period time shall be based on the total 

hours worked daily at the rate of ten (10) 

minutes net rest time per four (4) hours or 

major fraction thereof. However, a rest period 

need not be authorized for employees whose 

total daily work time is less than three and 

one-half (31⁄2) hours. Authorized rest period 

time shall be counted as hours worked for 

which there shall be no deduction from 

wages. 

‘‘(B) If an employer fails to provide an 

employee a rest period in accordance with 

the applicable provisions of this order, the 

employer shall pay the employee one (1) 

hour of pay at the employee’s regular rate of 

compensation for each workday that the rest 

period is not provided.’’ 

Although section 11090(3)(L) 

provides that ‘‘[t]he provisions of this 

section are not applicable to employees 

whose hours of service are regulated by: 

(1) The United States Department of 

Transportation, Code of Federal 

Regulations, Title 49, sections 395.1 to 

395.13, Hours of Service of Drivers,’’ the 

California courts have interpreted the 

word ‘‘section’’ to refer only to section 

11090(3), which regulates ‘‘hours and 

days of work,’’ not to all of section 

11090, including meal and rest breaks in 

section 11090(11) and (12). See Cicairos 

v. Summit Logistics, Inc., 133 Cal 

App.4th 949 (2006). 

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 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 

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 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 

State the 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 

by 49 CFR 1.87(f). 

Federal Motor Carrier Safety 

Regulations (FMCSRs) Concerning 

Breaks, 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 addition, the 

HOS rules require long-haul truck 

drivers operating a CMV in interstate 

commerce to take at least 30 minutes off 

duty no later than 8 hours after coming 

on duty if they wish to continue driving 

after the 8th hour.3 49 CFR 

395.3(a)(3)(ii). The HOS regulations also 

impose both daily and weekly limits 

after which driving is prohibited. There 

are separate HOS regulations, imposing 

different limits on driving time, for 

drivers of passenger-carrying CMVs. 49 

CFR 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 

impaired by illness, fatigue, or other 

cause, such 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 ATA and SCRA Petitions and 

Comments Received 

As set forth more fully below, the 

ATA argues that California’s MRB 

Rules, as applied to CMV drivers 

working in interstate commerce, are 

within the scope of the Secretary’s 

preemption authority under section 

31141 because they are laws ‘‘on 

commercial motor vehicle safety.’’ In 

this regard, the ATA acknowledges that 

the Agency took the position in 2008 

that the MRB Rules at issue cannot be 

regulations ‘‘on commercial motor 

vehicle safety’’ because they ‘‘cover far 

more than the trucking industry.’’ The 

ATA contends, however, that the 

Agency’s conclusions in the 2008 

Decision do not compel the same result 

here because the Agency’s interpretation 

of section 31141 was wrong as a matter 

of statutory interpretation. Additionally, 

the ATA provides evidence purporting 

to show that the MRB Rules undermine 

safety. The ATA also contends that the 


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4Some comment letters were joined by multiple 

organizations, including one letter from the Center 

for Justice and Democracy opposing the ATA’s 

petition, which was joined by 39 organizations. 

5Affinity 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. 

MRB Rules are incompatible with 

Federal HOS regulations and impose an 

unreasonable burden on interstate 

commerce. The ATA’s petition seeks an 

order declaring that California’s MRB 

Rules, as applied to CMV drivers who 

are subject to DOT’s jurisdiction to 

regulate hours of service, should be 

preempted pursuant to 49 U.S.C. 

31141(c)(4) and, therefore, may not be 

enforced. 

The SCRA explained that it filed a 

separate petition, rather than submit 

comments in support of the ATA’s 

petition, to underscore their 

organization’s concern that FMCSA ‘‘be 

the final arbiter of whether a state has 

enacted a standard or regulation that is 

not identical to the federal standard’’ 

and that the Agency should preempt 

State laws and regulations that are not 

compatible with the FMCSRs. The 

SCRA stated that the organization 

supports the ATA’s arguments, and 

much of the SCRA’s petition advanced 

the argument that the MRB Rules are 

more stringent than the FMCSRs and are 

incompatible. The petition requests that 

the Agency: 

[D]eclar[e] California’s Meal and Rest Break 

requirements are preempted from being 

applied to drivers subject to the HOS 

regulations on rest breaks, and order that 

California, or any representative authorized 

under the Labor Code Private Attorneys 

General Act of 2004, is not authorized to 

legally enforce any conflicting provisions 

related to California’s Meal and Rest Break 

requirements. 

The SCRA also contends that the 

Agency ‘‘should also be willing to 

initiate a proceeding under 49 CFR 

350.215’’ to withhold Motor Carrier 

Safety Assistance Program grant funds 

from ‘‘states with non-compatible state 

motor carrier safety laws.’’ 

The FMCSA published a notice in the 

Federal Register on October 4, 2018 

seeking public comment on whether the 

MRB Rules are preempted by Federal 

law. 83 FR 50142. Although preemption 

under section 31141 is a legal 

determination reserved to the judgment 

of the Agency, the FMCSA voluntarily 

sought comment on issues relevant to 

the preemption determination, 

including what effect, if any, 

California’s MRB Rules have on 

interstate motor carrier operations. The 

public comment period closed on 

October 29, 2018. 

The Agency received more than 700 

comments, including submissions from 

more than 120 organizations.4 While the 

public comment period ended on 

October 29, the Agency continued to 

accept public comments until November 

5. Approximately half of the 

organizations that commented support 

preemption of the MRB Rules and half 

opposed. Of the individuals who 

commented, approximately 94% 

support preemption while 6% 

expressed opposition. In addition, the 

Agency received 9 letters from 68 

members of Congress. 

The Agency’s Prior Position Regarding 

Preemption Under Section 31141 

I. The FMCSA’s December 24, 2008 

Decision Rejecting a Petition for a 

Preemption Determination 

On July 3, 2008, a group of motor 

carriers 5 petitioned the FMCSA for a 

determination under 49 U.S.C. 31141(c) 

that: (1) The California MRB Rules are 

regulations on CMV safety, (2) the 

putative State regulation imposes 

limitations on a driver’s time that are 

different from and more stringent than 

Federal ‘‘hours of service’’ regulations 

governing the time a driver may remain 

on duty, and (3) that the State law 

should therefore be preempted. 73 FR 

79204. The Agency denied the petition 

for preemption, reasoning that the MRB 

Rules are merely one part of California’s 

comprehensive regulation of wages, 

hours, and working conditions, and that 

they apply to employers in many other 

industries in addition to motor carriers. 

The FMCSA concluded that the 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 a 

State motor vehicle safety regulation 

that is inconsistent with Federal safety 

requirements. 73 FR 79204. 

II. Dilts v. Penske Logistics, LLC, United 

States Court of Appeals for the Ninth 

Circuit, No. 12–55705 (2014) 

In Dilts v. Penske Logistics, the 

plaintiffs, 349 delivery drivers and 

installers, filed a class action lawsuit 

against the defendants, Penske Logistics, 

LLC, and Penske Truck Leasing Co. 

alleging that they routinely violate the 

MRB Rules. The defendants argued that 

the MRB Rules as applied to motor 

carriers were preempted under the 

Federal Aviation Administration 

Authorization Act of 1994 (FAAAA), 49 

U.S.C. 14501(c), because the provisions 

at issue were related to prices, routes, or 

services. The United States Court of 

Appeals for the Ninth Circuit invited 

the United States to file a brief as 

amicus curiae (Dilts amicus brief). 

In the Dilts amicus brief, the United 

States argued that: (1) State laws like 

California’s, which do not directly 

regulate prices, routes, or services, are 

not preempted by the FAAAA unless 

they have a ‘‘significant effect’’ on 

prices, routes, or services; (2) in the 

absence of explicit instructions from 

Congress, there is a presumption against 

preemption in areas of traditional State 

police power, including employment; 

(3) there was no showing of an actual or 

likely significant effect on prices, routes, 

or services with respect to the shorthaul drivers at issue in the case, and so 

the California laws at issue were not 

preempted by the FAAAA; and (4) the 

preemption analysis might be different 

with respect to long-haul or interstate 

drivers. 

The United States also explained that 

the FMCSA continued to adhere to the 

view expressed in the 2008 Decision 

that the MRB Rules were not preempted 

by section 31141 of the 1984 Act 

because they were not laws ‘‘on 

commercial motor vehicle safety.’’ In 

addition, the United States stated that 

the MRB provisions, as applied to the 

plaintiffs in Dilts, did not run afoul of 

general Supremacy Clause principles of 

conflict preemption because the drivers 

in question were not subject to the 

Agency’s HOS regulations, as they were 

either short-haul or intrastate long-haul 

drivers. Therefore, the Dilts amicus brief 

explained that the application of the 

MRB Rules had little if any effect on the 

ability of the Dilts plaintiffs to comply 

with Federal regulatory standards. 

The Ninth Circuit concluded that the 

FAAAA did not preempt California’s 

MRB Rules, as applied to the plaintiff 

drivers, because those State laws were 

not ‘‘related to’’ the defendants’ prices, 

routes, or services. 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. 

Decision 

At the outset, the FMCSA notes that 

several commenters contend that the 

MRB Rules are subject to a presumption 

against preemption. The FMCSA 

acknowledges that ‘‘in all preemption 

cases, and particularly in those in which 

Congress has legislated in a field which 

the States have traditionally occupied, 

[there] is an assumption that the historic 


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6The 2008 Decision also rejected the petitioners’ 

claims that the California MRB Rules undermined 

safety, and that the rules were subject to 

preemption because they ‘‘prevent carriers from 

maximizing their employees’ driving and on-duty 

time.’’ 73 FR 79204, 79205 n.3, 79206. It does not 

appear that the Agency relied on these points when 

determining that the MRB Rules were not 

regulations ‘‘on commercial motor vehicle safety.’’ 

To the extent the points are relevant to the other 

portions of this analysis, they are discussed below. 

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) (alterations omitted). 

That presumption does not apply here, 

however, because section 31141 is an 

express preemption provision. When a 

‘‘statute contains an express preemption 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). Thus, the question that the 

FMCSA must answer is whether the 

MRB Rules are subject to preemption 

under section 31141. 

I. The California Meal and Rest Break 

Provisions 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 provisions at issue are laws or 

regulations ‘‘on commercial motor 

vehicle safety.’’ 49 U.S.C. 31141(c)(1). 

The ATA argues that California’s MRB 

Rules, as applied to CMV drivers subject 

to the FMCSA’s HOS regulations, are 

rules on commercial motor vehicle 

safety subject to review under section 

31141. In this regard, the ATA contends 

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. The ATA points out 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). Thus, the ATA 

contends that State laws and regulations 

covering the same ground as Federal 

regulations promulgated under section 

31136 are precisely what Congress had 

in mind when it enacted section 31141. 

The FMCSA agrees. 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 the 

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. 

In the 2008 Decision, the Agency 

narrowly construed section 31141 to 

conclude that because the MRB Rules 

are ‘‘one part of California’s 

comprehensive regulations governing 

wages, hours and working conditions,’’ 

and apply to employers in many other 

industries in addition to motor carriers, 

the provisions are not regulations ‘‘on 

commercial motor vehicle safety,’’ and, 

thus, were not within the scope of the 

Secretary’s preemption authority. The 

FMCSA has reconsidered this 

conclusion. There is nothing in the 

statutory language or legislative history 

that supports such a limitation. To the 

contrary, the statutory language refers 

only to a ‘‘State law or regulation on 

commercial motor vehicle safety,’’ and, 

the legislative history of the 1984 Act 

clearly expresses Congress’s intent that 

‘‘there be as much uniformity as 

practicable whenever a Federal standard 

and a State requirement cover the same 

subject matter.’’ See S. Rep. No. 98–424, 

at 14 (1984). 

The 2008 Decision rejected the claim, 

made by the petitioners in that case, that 

‘‘the FMCSA has power to preempt any 

state law or regulation that regulates or 

affects any matters within the agency’s 

broad Congressional grant of authority.’’ 

73 FR at 79206. The FMCSA stated that 

if it ‘‘were to take such a position, any 

number of State laws would be subject 

to challenge.’’ The Agency observed, for 

example, that ‘‘it is conceivable that 

high State taxes and emission controls 

could affect a motor carrier’s financial 

ability to maintain compliance with the 

. . . FMCSRs,’’ and doubted that the 

FMCSA has ‘‘the authority to preempt 

State tax or environmental laws.’’ 73 FR 

at 79206. The FMCSA, however, has 

determined that its prior position was 

unnecessarily restrictive and that it can 

determine that the MRB Rules are 

subject to section 31141 preemption 

without deciding whether section 31141 

covers State tax laws, environmental 

laws, or other laws that ‘‘affect’’ CMV 

safety. As explained above, the MRB 

Rules impose the same types of work 

limitation requirements as the FMCSA’s 

HOS regulations; thus, just as the HOS 

regulations are ‘‘regulations on 

commercial motor vehicle safety’’ 

prescribed under section 31136, the 

California MRB Rules are ‘‘law[s] or 

regulation[s] on commercial motor 

vehicle safety’’ covered by section 

31141. This determination does not rely 

on a broad interpretation of section 

31141 as applicable to any State law 

that ‘‘affects’’ CMV safety.6

California’s Labor Commissioner, 

California’s Attorney General, the 

American Association for Justice (AAJ), 

the International Brotherhood of 

Teamsters, and other commenters who 

oppose the ATA’s petition argue that the 

Agency’s analysis and conclusions in 

the 2008 Decision and in the Dilts 

amicus brief were correct, and that 

FMCSA should not deviate from its 

legal position therein regarding the 

scope of the Secretary’s preemption 

authority under section 31141. 

Although the commenters opposing 

preemption accurately summarize the 

Agency’s prior position on whether 

California’s MRB Rules are preempted, 

the Agency’s position need not forever 

remain static. It is well-settled that ‘‘[a]n 

initial agency interpretation is not 

instantly carved in stone’’; on the 

contrary, an agency must consider 

varying interpretations and the wisdom 

of its policy on a continuing basis. See 

Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 

U.S. 837, 863–64 (1984). 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). The 

Supreme Court has rejected the idea that 

an agency interpretation requires greater 

justification, or is subject to more 

searching review, merely because it 

represents a change from the agency’s 

prior view. FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 514–16 

(2009). Instead, an agency advancing a 

changed interpretation must 

acknowledge the change, and provide a 

reasoned explanation of why the agency 

believes the new interpretation is better 

than the old. Ibid. Here, the FMCSA has 

reconsidered its interpretation of section 

31141 as applied to California’s MRB 

Rules, and this decision explains the 


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7An agency may also be required to consider 

whether ‘‘its prior policy has engendered serious 

reliance interests that must be taken into account.’’ 

Fox, 556 U.S. at 515. Here, no commenter has 

argued that the FMCSA’s prior position has 

‘‘engendered serious reliance interests,’’ and the 

FMCSA is aware of no such interests. In any event, 

the existence of reliance interests would not change 

the FMCSA’s view that California’s MRB Rules are 

covered by section 31141. 

8Sections 14501(c)(2)(A) and 31141 do not 

necessarily have the same scope because the two 

provisions were enacted to achieve different 

purposes. Section 14501(c)(2)(A) serves to ensure 

that the preemption of States’ economic authority 

over motor carriers of property not infringe upon a 

State’s exercise of its traditional police power over 

safety. See City of Columbus v. Ours Garage & 

Wrecker Serv., Inc., 536 U.S. 424, 426 (2002). As 

explained above, however, Congress enacted the 

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. 

basis for reconsidering its previous 

position.7

In her comments opposing the ATA’s 

petition, the California Labor 

Commissioner argues: 

In the decade that the FMCSA has adhered 

to this position, Congress has failed to amend 

49 U.S.C. 31141 to give the FMCSA the 

power to declare a wider range of State laws 

and regulations unenforceable. This 

Congressional inaction suggests the 

conclusion that FMCSA’s views on the 

limited extent of its authority, as announced 

in 2008 and again in 2014, has the support 

of Congress. 

The Agency is unpersuaded by this 

argument. 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 California Labor 

Commissioner presents no evidence that 

Congress has considered the 

appropriateness of the 2008 Decision’s 

determination that the California MRB 

Rules were not covered by section 

31141. Thus, what the California Labor 

Commissioner portrays as the ‘‘support 

of Congress’’ ‘‘should more 

appropriately be called Congress’ failure 

to express any opinion.’’ Ibid. 

The FMCSA’s departure from the 

2008 Decision is also supported by 

intervening events. In December 2011, 

approximately 3 years after issuing the 

2008 Decision, the FMCSA revised the 

Federal HOS regulations. Among other 

changes, the 2011 final rule generally 

prohibits CMV drivers from operating 

property-carrying commercial motor 

vehicles if more than eight hours have 

passed since the end of the driver’s last 

off-duty or sleeper-berth period of at 

least 30-minutes, commonly referred to 

as a ‘‘rest period.’’ 76 FR 81134, 81186; 

49 CFR 395.3(a)(3)(ii). Prior to the 2011 

revisions, the Federal HOS regulations 

contained no provisions requiring a 

mandatory rest period. The Agency 

cited the Secretary’s regulatory 

authority under section 31136 and 49 

U.S.C. 31502 as the legal basis for 

implementing the Federal HOS 30- 

minute off-duty or sleeper berth rest 

period. The Federal HOS regulations, 

including the required 30-minute rest 

period provision, are unquestionably 

rules ‘‘on commercial motor vehicle 

safety’’ under section 31136, and are 

part of the baseline against which 

Congress instructed the Agency to 

compare State rules under section 

31141. Because the MRB Rules govern 

the same subject matter as the Federal 

HOS regulations, the FMCSA considers 

them to be rules ‘‘on commercial motor 

vehicle safety’’ as applied to propertycarrying CMV drivers that are within the 

Agency’s HOS jurisdiction and, thus, 

they are subject to preemption review 

under section 31141. 

As the California Employment 

Lawyers Association pointed out, the 

Federal HOS regulations are within the 

Secretary’s authority because they 

‘‘would improve highway safety and the 

health of CMV drivers.’’ The Agency 

notes that in her comments on this 

petition, the California Labor 

Commissioner acknowledged that the 

MRB Rules improve driver and public 

safety stating, ‘‘It is beyond doubt that 

California’s meal and rest period 

requirements promote driver and public 

safety.’’ In addition, the ATA argues in 

a supplemental submission, that the 

Labor Commissioner made a similar 

statement in a preemption proceeding 

concerning the MRB Rules before the 

Pipeline and Hazardous Materials 

Administration. 83 FR 47961. There, she 

stated that the MRB Rules are ‘‘designed 

to ensure that workers have sufficient 

rest and break-time in order to perform 

their jobs safely.’’ The Agency applauds 

California’s commitment to driver and 

public safety; however, the Labor 

Commissioner admits that the MRB 

Rules are, in fact, laws on CMV safety. 

Thus, the Labor Commissioner’s 

statements are new information, 

received well after the 2008 Decision, 

that further demonstrate that the MRB 

Rules are rules ‘‘on motor carrier safety’’ 

and therefore fall squarely within the 

scope of the Secretary’s preemption 

authority. 

Finally, the AAJ commented that the 

ATA’s petition is inconsistent with its 

previous position in the ATA’s own 

amicus brief in Dilts. Specifically, the 

AAJ contends that the ATA took the 

position in Dilts that there was no 

evidence that the break requirements at 

issue were intended to address motor 

vehicle safety, and that the break 

requirements are not responsive to any 

such concerns. But the question of 

whether the ATA is taking inconsistent 

positions is not relevant to the FMCSA’s 

analysis. While the FMCSA is 

considering this matter upon a petition, 

it is not adjudicating a dispute between 

private parties; instead, it is exercising 

its own statutory responsibility to 

review State laws or regulations. Thus, 

the FMCSA must reach what it believes 

to be the correct legal conclusion in the 

matter presently before it, regardless of 

the ATA’s prior positions. The FMCSA 

notes, moreover, that the prior ATA 

argument cited by the AAJ related to 49 

U.S.C. 14501(c)(2)(A), which provides 

that the FAAAA’s preemption provision 

‘‘shall not restrict the safety regulatory 

authority of a State with respect to 

motor vehicles’’; this language does not 

necessarily have the same scope as 

section 31141.8

II. The MRB Rules Are ‘‘Additional to or 

More Stringent Than’’ the Agency’s HOS 

Regulations Within the Meaning of 

Section 31141 

Having concluded that the California 

MRB Rules are rules ‘‘on commercial 

motor vehicle safety,’’ under section 

31141, the Agency next must decide 

whether the MRB Rules have the same 

effect as, are less stringent than, or are 

additional to or more stringent than the 

Federal HOS regulations. 49 U.S.C. 

31141(c)(1). The ATA and the SCRA 

argue that the MRB Rules are 

‘‘additional to or more stringent than’’ 

the Agency’s HOS regulations because 

they impose additional obligations. As 

discussed more fully below, the FMCSA 

agrees. The MRB Rules require 

employers to provide CMV drivers with 

more rest breaks than the Federal HOS 

regulations, and they allow a smaller 

window of driving time before a break 

is required. For these reasons, the MRB 

Rules do not have the same effect and 

are not less stringent than the Federal 

HOS regulations, and instead are 

additional to or more stringent than the 

HOS regulations. 

Although the California Labor 

Commissioner contends that the ATA 


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9Even if employers did have an option of either 

complying with the MRB Rules or paying a penalty, 

the MRB Rules would still be ‘‘additional to or more 

stringent than’’ the HOS regulations, since the MRB 

Rules would either: (1) Require that employers 

provide breaks not required by the HOS regulations; 

or (2) pay a penalty not required by the HOS 

regulations. 

10To illustrate this point, the ATA cites the 

example of a driver who starts her day at 7 a.m. 

Operating solely under the MRB Rules, the driver 

would have a required 10-minute break as close as 

practicable to 9 a.m., a 30-minute break some time 

before noon, a second 10-minute break as close as 

practicable to 1 p.m., and another 30-minute break 

some time before 5 p.m., for a total of 80 minutes. 

The ATA estimated that a driver would also spend 

an additional 5 minutes on either side of a break 

to find parking and return to the highway for an 

additional 30 minutes. Considering the amount of 

break time required by the MRB Rules, the ATA 

estimates that a driver’s work day would have to be 

extended by 80 minutes to accomplish the same 

amount of work. 

exaggerates the requirements imposed 

by the MRB Rules, she does not deny 

that the MRB Rules provide for more 

breaks than the HOS regulations. She 

argues, however, that the MRB Rules are 

not ‘‘additional to or more stringent 

than’’ the Agency’s HOS regulations, 

within the meaning of 49 U.S.C. 

31141(c), because under the MRB Rules, 

employers are obligated to either 

provide required meal and rest periods, 

or pay higher wages. She further 

explains that while California permits 

employers to pay higher wages as an 

alternative to complying with the MRB 

Rules, FMCSA’s HOS regulations 

contain a flat prohibition on driving 

after more than 8 hours on duty without 

a 30-minute rest period, and thus the 

MRB Rules are not more stringent that 

the HOS regulations. Some 

organizations and drivers who oppose 

the ATA’s petition echo this argument. 

The Agency disagrees with this 

position. 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)–(c) (emphasis added). The 

California Supreme Court has held—in 

a decision not mentioned by the Labor 

Commissioner—that section 226.7 ‘‘does 

not give employers a lawful choice 

between providing either meal and rest 

breaks or an additional hour of pay,’’ 

and that ‘‘an employer’s provision of an 

additional hour of pay does not excuse 

a section 226.7 violation.’’ Kirby v. 

Immoos Fire Protection, Inc., 274 P.3d 

1160, 1168 (Cal. 2012) (emphasis in 

original). This ruling is not undercut by 

the two cases cited by the Labor 

Commissioner. While it is true that the 

California Supreme Court stated in 

Augustus v. ABM Security Services, Inc. 

that ‘‘employers who find it especially 

burdensome to relieve their employees 

of all duties during rest periods’’ could 

provide the extra hour of pay, it 

emphasized that this ‘‘option[ ] should 

be the exception rather than rule, to be 

used’’ only in the context of ‘‘irregular 

or unexpected circumstances such as 

emergencies.’’ 385 P.3d 823, 834 & n.14 

(Cal. 2016). And while the California 

Supreme Court in Murphy v. Kenneth 

Cole Prods., Inc. held that the extra hour 

of pay is ‘‘wages’’ for statute of 

limitations purposes, that ruling 

predated Kirby by six years, and is not 

inconsistent with Kirby’s holding that 

an employer does not have a lawful 

choice to ignore the MRB Rules. Indeed, 

the California Supreme Court in Kirby 

specifically noted that its decision was 

consistent with Murphy. See Kirby, 274 

P.3d at 1168 (‘‘[T]o say that a section 

226.7 remedy is a wage . . . is not to 

stay that the legal violation triggering 

the remedy is nonpayment of wages. As 

explained above, the legal violation is 

nonprovision of meal or rest breaks 

. . . .’’). Accordingly, the MRB Rules 

do not give employers the option of 

either complying with the requirements 

or providing penalty pay. The MRB 

Rules therefore are ‘‘additional to or 

more stringent than’’ the HOS 

regulations.9

III. The MRB Rules Have No Safety 

Benefits That Extend Beyond Those 

Provided by the FMCSRs 

Because the MRB Rules are more 

stringent than the Federal HOS 

regulations, they may be enforced 

unless the Agency also decides either 

that the MRB Rules have no safety 

benefit, that they are incompatible with 

the HOS regulations, 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 aforementioned 

conditions exists to preempt the MRB 

Rules. 49 U.S.C. 31141(c)(4). 

Section 31141 authorizes the 

Secretary to preempt the MRB Rules if 

they have ‘‘no safety benefit.’’ 49 U.S.C. 

31141(c)(4)(A). The FMCSA interprets 

this language as applying to any State 

law or regulation that provides no safety 

benefit beyond the safety benefit already 

provided by the relevant FMCSA 

regulations. While the plain statutory 

language could be read as applying only 

to State laws or regulations with no 

safety benefit at all, such a reading 

would render section 31141(c)(4)(A) a 

nullity, since every State law or 

regulation that is ‘‘additional to or more 

stringent’’ than an FMCSA regulation 

necessarily provides at least the safety 

benefits of the FMCSA regulation. 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 would be preempted. 

A. Fatigue 

The ATA and the SCRA argue that 

imposition of California’s MRB Rules on 

CMV drivers constitutes a threat to 

highway safety by specifying breaks at 

arbitrary times rather than when they 

are most needed. In this regard, the ATA 

contends that having to take multiple 

breaks at arbitrary intervals when they 

are not needed is a strong disincentive 

for a CMV driver to take breaks when 

they are needed. In addition, the ATA 

argues that ‘‘by consuming significant 

amounts of what would otherwise be 

productive time permitted under the 

federal HOS rules, the California rules 

extend a driver’s day significantly. ’’ 10

The Labor Commissioner, the AAJ, 

the Transportation Trades Department/ 

AFL–CIO (TTD), and other commenters 

dispute the ATA’s argument that the 

MRB Rules provide no safety benefit. 

Commenters in opposition to the 

petition overwhelmingly argue that the 

MRB Rules benefit highway safety 

because they combat driver fatigue. The 

Labor Commissioner, Worksafe, and the 

AAJ cite studies by the National 

Transportation Safety Board, academia, 

and others to show that CMV drivers’ 

safety performance can easily 

deteriorate due to fatigue. 

The FMCSA need not resolve the 

arguments by the ATA and the SCRA 

that the MRB Rules pose a threat to 

highway safety with regard to fatigued 

driving, because the Agency determines 

that the MRB Rules provide no safety 

benefit beyond the safety benefit already 

provided by the Federal HOS 

regulations and other provisions of the 

FMCSRs. Here, the MRB Rules generally 

require that drivers be given a 30- 

minute meal break every five hours, as 

well as an additional 10-minute rest 

break every four hours. The FMCSRs 

require drivers to take a 30-minute rest 

break within 8 hours of coming on duty, 

49 CFR 395.3(a)(3)(ii), and they provide 

for rest by prohibiting a driver from 

operating a CMV if she feels too fatigued 

or is otherwise unable to safely drive. 49 

CFR 392.3. Additionally, employers are 

prohibited from coercing a driver too 

fatigued to operate the CMV safely to 

remain behind the wheel or otherwise 

violate the FMCSRs. 49 CFR 390.6. The 

Agency appreciates the dangers of 

fatigued driving. As the ATA pointed 

out, the FMCSRs allow the driver a 30- 

minute rest when needed at any time 


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during an 8-hour driving interval, as 

well as other breaks, of no set time limit. 

The FMCSRs, moreover, prohibit drivers 

of property-carrying vehicles 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. California’s additional 

requirements that breaks be of specific 

durations, and occur within specific 

intervals, do not provide additional 

safety benefits. 

In establishing the Federal rest break 

requirement in 2011, the Agency 

adjusted its initial proposal from 

requiring the rest break to occur within 

the first 7 hours of a work shift in 

response to ‘‘numerous comments about 

the breaks, primarily from team 

drivers.’’ 76 FR 81134, 81145. After 

balancing the need to prevent excessive 

hours of continuous driving with a 

driver’s need for flexibility in 

scheduling a rest break, the Agency 

ultimately determined that an 8-hour 

driving window was appropriate to 

provide ‘‘drivers [with] great flexibility 

in deciding when to take the break . . . 

[and to] make it significantly easier for 

team drivers to coordinate their sleeperberth periods and . . . enable drivers 

who do not drive late into their work 

shift to dispense with a break 

altogether.’’ 76 FR 81134, 81146. Here, 

the MRB Rules abrogate the flexibilities 

the Agency purposefully built into the 

Federal HOS Rules regarding when a 

driver is required to take a 30-minute 

rest period, and they graft onto the 

Federal HOS regulations a requirement 

for additional 10-minute rest breaks. 

While the Labor Commissioner cites 

studies, statistics and recommendations 

from the NTSB, academia, and the 

FMCSA tending to show that drowsy 

driving causes crashes, the Agency has 

reached the same conclusion, hence the 

off-duty break requirement in the HOS 

regulations and the explicit prohibition 

against fatigued driving. Therefore, 

FMCSA determines that the MRB Rules 

do not provide a safety benefit not 

already realized under the FMCSRs. 

B. Parking 

The ATA argues the MRB Rules also 

negatively impact safety by arbitrarily 

forcing trucks off the road more 

frequently, thus contributing to a critical 

shortage of safe truck parking. In 

support, the ATA cites of number recent 

of studies that were published after the 

Agency’s 2008 Decision and the 2014 

Dilts amicus brief. In this regard, 

Congress enacted ‘‘Jason’s Law’’ in 2012 

as part of the Moving Ahead for Progress 

in the 21st Century Act, Public. Law. 

112–141 1401(c), which required the 

DOT to ‘‘evaluate the capability of 

[each] State to provide adequate parking 

and rest facilities for commercial motor 

vehicles engaged in interstate 

transportation.’’ The Federal Highway 

Administration (FHWA) issued the 

report in 2015, which stated: 

Truck parking shortages are a national 

safety concern. An inadequate supply of 

truck parking spaces can result in two 

negative consequences: First, tired truck 

drivers may continue to drive because they 

have difficulty finding a place to park for rest 

and, second, truck drivers may choose to 

park at unsafe locations, such as on the 

shoulder of the road, exit ramps, or vacant 

lots, if they are unable to locate official, 

available parking. 

See Federal Highway Administration, 

Jason’s Law Truck Parking Survey 

Results and Comparative Analysis 1–2 

(Aug. 2015) (Jason’s Law Report), 

available at https://ops.fhwa.dot.gov/ 

freight/infrastructure/truck_parking/ 

jasons_law/truckparkingsurvey/jasons_

law.pdf. 

The FHWA’s Jason’s Law Report also 

found that ‘‘[m]ore than 75 percent of 

truck drivers . . . reported regularly 

experiencing problems with finding safe 

parking locations when rest was 

needed,’’ and that ‘‘[n]inety percent 

reported struggling to find safe and 

available parking during night hours.’’ 

Ibid. at viii. The report further noted 

that nearly 80% of drivers reported that 

they have difficulty finding parking at 

least once per week. Ibid. at 66. 

Additionally, the Jason’s Law Report 

showed that as many as 94% of State 

motor carrier safety officials surveyed 

identified locations used by commercial 

drivers for unofficial or illegal parking. 

Ibid. at 60. Of those locations, over three 

quarters were highway ramps or 

shoulders, Ibid. at 61, and the vast 

majority of unofficial parking happened 

at night or in the early morning hours, 

Ibid. at 62. 

The ATA also cited other recent 

studies and statistics showing the 

negative safety impacts associated with 

inadequate parking for CMVs: 

• A 2016 report finding that 83.9% of 

surveyed drivers park in an 

unauthorized location at least once each 

week, and nearly half—48.7%—three or 

more times per week. C. Boris et al., 

Managing Critical Truck Parking Case 

Study—Real World Insights from Truck 

Parking Diaries (2016), available at 

http://atri-online.org/wp-content/ 

uploads/2016/12/ATRI-Truck-ParkingCase-Study-Insights-12-2016.pdf. 

• A 2016 survey of drivers by the 

Washington State Department of 

Transportation showing that more than 

60% 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), available at http://www.

wsdot.wa.gov/NR/rdonlyres/D2A7680FED90-47D9-AD13-4965D6D6BD84/ 

114207/TruckParkingSurvey2016_

web2.pdf. 

• A 2017 report prepared for the 

FHWA and the Oregon Department of 

Transportation that noted that the safety 

hazard of the truck parking shortage in 

Oregon ‘‘increases closer to the 

California border,’’ where ‘‘more crashes 

are occurring,’’ likely as ‘‘a result of 

encountering troubles finding safe and 

adequate parking in Southern Oregon.’’ 

S. Hernandez & J. Anderson, Truck 

Parking: An Emerging Safety Hazard to 

Highway Users (July 2017). 

In the 2014 Dilts amicus brief, the 

Agency opined that long haul CMV 

drivers would be using interstates or 

other major highways where periodic 

rest stops capable of accommodating a 

large truck are available. However, the 

studies cited by the ATA, of which the 

Agency did not have the benefit in 2014, 

show that the shortage of parking for 

CMVs continues to be a pressing 

highway safety issue. The studies cited 

by the ATA demonstrate that inadequate 

truck parking will often mean that 

drivers face a choice between driving 

while fatigued or parking where their 

vehicles will present a hazard for other 

motorists. Indeed, as the Washington 

State Department of Transportation 

Study shows, of those sampled, most 

drivers reported spending more time 

behind the wheel driving fatigued due 

to a lack of safe parking. The Jason’s 

Law Report also demonstrates that 

drivers will have to resort to unsafe, 

unauthorized locations—such as 

shoulders and ramps—where they 

present a serious hazard to other 

highway users due to the shortage of 

safe, authorized parking spaces. The 

report explained that ‘‘[v]ehicles parked 

on the shoulders . . . are a serious 

potential hazard to other motorists 

because they are fixed objects within the 

roadway cross-section that are 

unprotected by a barrier or horizontal 

buffer area.’’ See Jason’s Law Report at 

7. In addition, ‘‘[w]hen trucks park on 

shoulders or ramps . . . , maneuvering 

in and out of traffic . . . poses safety 

risks to the truck driver and other 

vehicles due to the mix of higher speed 

traffic and the slower speeds of the 

trucks in and out of these areas.’’ Ibid. 

Further illustrating this point, some 

commenters have also described how 

the shortage of available parking for 

CMVs has resulted in drivers having to 

park in locations that pose a potential 


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11 Drivers working shifts of more than six hours 

up to ten hours are entitled to two 10-minute rest 

periods and one 30-minute meal break. See 8 CCR 

11090 (11) and (12); Brinker Rest. Corp. v. Superior 

Court, 273 P.3d 513, 529–30, 536–38 (Cal. 2012). 

safety hazard. In this regard, the 

Arkansas Trucking Association, 

Covenant Transport, Hercules 

Forwarding, International Foodservice 

Distributors Association, National 

Restaurant Association, and the Sysco 

Corporation commented that their 

drivers have to park at roadside 

increasing the risk of motorist accidents 

and injuries when safer parking options 

are unavailable due to the CMV parking 

shortage. In addition, Dealer’s Choice 

Truckaway System, the International 

Warehouse Logistics Association, Tiger 

Lines, CRST International, and United 

Road specifically state that the shortage 

of available CMV parking in California 

results in their drivers having to park at 

unsafe locations. The International 

Warehouse Logistics Association 

explained that a member driver was 

killed when his CMV was struck by 

another vehicle after he parked on the 

shoulder of a roadway to take a 

mandatory rest break. The National 

Fraternal Order of Police (NFOP) also 

commented that ‘‘because of a scattered 

patchwork of State rules on rest breaks 

and hours of service, some truck drivers 

have to take breaks in places that are not 

optimal for the public or highway.’’ The 

NFOP continued, ‘‘Having one clear and 

enforceable Federal standard in place 

for commercial drivers engaged in 

interstate commerce is important from 

any safety standpoint, especially on our 

nation’s highways.’’ The Truckload 

Carriers Association cited a recent 

survey where 95% 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 California Employment Lawyers 

Association commented that the studies 

the ATA relies upon fail to show 

causation, stating, ‘‘Despite the fact that 

truckers taking rest breaks contribute to 

the demand for parking, the studies are 

clear that the cause of the problem is a 

lack of parking, not State meal and rest 

break regulations.’’ This argument is 

unpersuasive. Under the Federal HOS 

regulations, a CMV driver would be 

required to stop and park once during 

an 8-hour driving period; however, 

during a shift of more than 6 and up to 

10 hours, the MRB Rules would, at a 

minimum, require drivers to stop and 

park 3 times, even though they may not 

be fatigued.11 Because there is a current 

shortage of available parking for CMVs, 

in order to comply with the MRB Rules 

drivers may resort to parking at roadside 

or at an unauthorized location if the 

break does not coincide with a 

scheduled stop, and the Jason’s Law 

Report illustrates the inherent dangers 

to the general public and the driver 

associated with CMV roadside parking. 

In fact, the FMCSA discussed the safety 

impacts associated with the parking 

shortage for CMVs in a 2015 decision 

granting the SCRA an exemption from 

the HOS rest break requirement for 

oversized loads, stating: 

It is also true that parking shortages affect 

drivers of many types of vehicle . . . . No 

matter how well marked, trucks parked at 

roadside, especially at night, are too often 

mistaken for moving vehicles and struck, 

frequently with fatal consequences, before an 

inattentive driver can correct his mistake. 80 

FR 34957. 

The Agency reiterated this point in a 

2016 decision granting the SCRA a 

second exemption from the HOS rest 

break requirements. 81 FR 75727. The 

cited studies need not show that the 

CMV parking shortage is a result of the 

MRB Rules. Irrespective of the cause, 

the fact remains that there is a shortage 

of safe parking for CMVs, and the 

Agency believes that requiring CMV 

drivers to make triple the number of 

stops during a 10-hour shift under the 

MRB Rules compared to the Federal 

HOS rules, when there is a 

demonstrated inability for some drivers 

to safely park, has negative safety 

implications. 

The California Labor Commissioner 

commented, ‘‘If parking is a problem, 

surely keeping fatigued drivers on the 

road because there is nowhere to park 

is not the answer.’’ The Agency agrees 

with the Labor Commissioner’s general 

premise; in fact, the FMCSRs prohibit a 

driver from operating a CMV when too 

fatigued to drive safely. However, as 

explained above, the Agency believes 

that the increase in required stops to 

comply with the MRB Rules, when the 

driver may not be fatigued, will 

exacerbate the problem of drivers 

parking at unsafe locations. 

IV. The MRB Rules Are Incompatible 

With the Federal HOS Regulations 

As described above, the MRB Rules 

must be preempted if the Agency 

decides that they are ‘‘incompatible 

with the regulation prescribed by the 

Secretary.’’ 49 U.S.C. 31141(c)(4)(B). 

Here, the Agency determines that the 

MRB Rules are incompatible with the 

Federal HOS regulations. 

The legislative history of the 1984 Act 

clearly expresses Congress’s intent that 

‘‘there be as much uniformity as 

practicable whenever a Federal standard 

and a State requirement cover the same 

subject matter.’’ See S. Rep. No. 98–424, 

at 14 (1984). To that end, in determining 

whether a State law or regulation is 

compatible, the Agency applies the 

definition of ‘‘compatible or 

compatibility’’ in accordance with the 

Agency’s regulations implementing the 

Motor Carrier Safety Assistance Program 

(MCSAP), which state, ‘‘Compatible or 

Compatibility means that State laws and 

regulations applicable to interstate 

commerce and to intrastate movement 

of hazardous materials are identical to 

the FMCSRs and the HMRs or have the 

same effect as the FMCSRs . . . .’’ 49 

CFR 355.5. 

The MCSAP was first authorized in 

sections 401–404 of the Surface 

Transportation Assistance Act of 1982 

(STAA). Public Law 97–424, 96 Stat. 

2097, 2154. Section 402 of the STAA 

authorized the Secretary to make grants 

to States for the development or 

implementation of programs for the 

enforcement of State rules, regulations, 

standards, and orders applicable to 

commercial motor vehicle safety that 

were compatible with Federal 

requirements. The 1984 Act 

subsequently authorized the Secretary 

to preempt incompatible State laws and 

regulations on commercial motor 

vehicle safety under section 31141. The 

Intermodal Surface Transportation 

Efficiency Act of 1991 (ISTEA), Public 

Law 102–240, 105 Stat. 1914, 

reauthorized the MCSAP, and in 1992, 

the FHWA, the FMCSA’s predecessor 

agency, issued a final rule to implement 

revisions to the MCSAP as required by 

the ISTEA, including adopting a 

definition for ‘‘compatible or 

compatibility.’’ 57 FR 40946. The final 

rule stated that not only did it serve to 

implement the requirements of the 

ISTEA, it also explained: 

This rule does implement express 

preemption provisions contained in the 

MCSA of 1984. The preemptive authority 

therein furthers the goal of national 

uniformity of commercial motor vehicle 

safety regulations and their enforcement, as 

intended by Congress. This intention was 

evidenced in the STAA of 1982, creating the 

MCSAP; the review of State commercial 

motor vehicle safety laws and regulations 

and determinations of compatibility required 

by the MCSA of 1984; and the intrastate 

compatibility provision in section 4002 of the 

ISTEA. 

Because the FHWA promulgated the 

MCSAP regulations at 49 CFR part 355 

to implement the compatibility 

provision in section 4002 of the ISTEA 


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12Citing Brinker, the Labor Commissioner 

explains that the MRB Rules require a first meal 

period no later than the end of an employee’s fifth 

hour of work, and a second meal period no later 

than the end of the employee’s 10th hour of work. 

Thus, in the ATA’s example, the employer would 

only be required to provide one meal period no 

later than noon and two 10-minute rest breaks. 

While the ATA and the Labor Commissioner 

disagree about the specific hypothetical at issue, 

there are many hypotheticals where the California 

rules require significantly more break time than the 

Federal HOS regulations. In Brinker, the California 

Supreme Court explained, ‘‘Employees are entitled 

to 10 minutes’ rest for shifts from three and onehalf to six hours in length, 20 minutes for shifts of 

more than six hours up to 10 hours, 30 minutes for 

shifts of more than 10 hours up to 14 hours, and 

so on.’’ 273 P.3d at 529. Regarding meal breaks, the 

court explained, ‘‘[S]ection 512 requires a first meal 

period no later than the end of an employee’s fifth 

hour of work, and a second meal period no later 

than the end of an employee’s 10th hour of work.’’ 

Ibid. at 537. Thus, the MRB Rules would require an 

employer to provide an employee working 12 hours 

with three 10 minute breaks and two 30-minute 

meal breaks while the Federal HOS regulations 

would require one 30 minute off-duty break to be 

taken within the first 8 hours of driving time. 

and the preemption provisions of the 

1984 Act, the Agency believes that 49 

CFR 355.5 sets forth the appropriate test 

for determining whether a State law or 

regulation is compatible under section 

31141. The Agency notes that the 

compatibility test under section 355.5 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. Under the MCSAP 

regulations, the ability to comply with 

both the State law and the FMCSRs does 

not make the State law compatible. 

Here, both the ATA and the SCRA 

argue that the MRB Rules are not 

compatible with the HOS regulations; 

therefore, they may be preempted. In 

this regard, the ATA argues: 

The California rules are also incompatible 

with federal HOS rules. In the regulations it 

adopted ‘‘[t]o provide guidelines for a 

continuous regulatory review of State laws 

and regulations,’’ 49 CFR 355.1(b), the 

Agency has defined ‘‘[c]ompatible or 

compatibility’’ to mean, in relevant part, 

‘‘that State laws and regulations applicable to 

interstate commerce . . . are identical to the 

FMCSRs . . . or have the same effect as the 

FMCSRs,’’ Ibid. at § 355.5 (emphases added). 

The California break rules cannot meet this 

standard: They are indisputably not 

‘‘identical to’’ the federal break rule, and 

their effect, as discussed above, is far 

different. 

The SCRA explains, ‘‘The petitioners 

contend that [compatibility] should be 

interpreted to require [the provision at 

issue] not exactly to be identical, but 

almost identical in every meaningful 

way, so the state standard could be 

worded differently as long as it achieved 

identical requirements.’’ The SCRA goes 

on to argue that while California has 

taken steps to ensure its other 

regulations on motor carrier safety are 

compatible with the FMCSRs, it has 

failed to bring the MRB Rules into 

compatibility. 

The Agency agrees with the ATA and 

with the SCRA that the MRB Rules are 

incompatible with the Federal HOS 

regulations. As described above, the 

MRB Rules are more stringent than the 

Federal HOS regulations; therefore, the 

requirements are not identical. Not only 

do the MRB Rules require employers to 

provide CMV drivers with more rest 

breaks than the Federal HOS 

regulations, the timing requirements for 

rest periods under the MRB Rules 

provide less flexibility than the Federal 

HOS regulations. As described more 

fully above, the Agency determined 8 

hours was an appropriate window to 

require driver to take a 30-minute rest 

while providing great flexibility to do 

so. The MRB Rule’s requirement that 

drivers be provided a 30-minute break 

every five hours, as well as an 

additional 10-minute rest break every 

four hours, significantly reduces the 

flexibilities the Agency built into the 

Federal HOS regulations, and they graft 

onto the Federal HOS rules additional 

required rest breaks that the Agency did 

not see fit to include. The MRB Rules 

therefore are not compatible with the 

Federal HOS regulations. 

V. Enforcement of the MRB Rules Would 

Cause an Unreasonable Burden on 

Interstate Commerce 

The 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 which are unreasonable. In 

determining whether a State law poses 

an unreasonable burden on interstate 

commerce, it is well settled that the 

Agency should consider whether the 

burden imposed is clearly excessive in 

relation to the putative local benefits 

derived from the State law. See e.g., Pike 

v. Bruce Church, Inc., 397 U.S. 137, 142 

(1970). 

A. Decreased Productivity, 

Administrative Burden, and Costs 

The ATA contends that California’s 

rules impose an unreasonable burden on 

interstate commerce because they 

‘‘entail an enormous loss in driver 

productivity by requiring carriers to 

provide far more off-duty time within a 

driver’s duty window than the Agency 

has deemed necessary under the federal 

rules.’’ According to its example 

described above, the ATA calculates 

that the MRB Rules would add 80 

minutes of additional non-productive 

time to a driver’s ten-hour shift beyond 

the required 30-minute rest period 

under the Federal HOS rules, thus 

reducing a driver’s productivity by more 

than 13%. Citing its 2017 American 

Trucking Trends statistics, the ATA 

contends that such a productivity 

reduction is a massive burden on 

interstate commerce because in 2016 

trucks carried 70.6% of primary 

shipment domestic tonnage, accounting 

for 79.8% of the nation’s primary 

shipment freight bill. See American 

Trucking Associations, American 

Trucking Trends 2017. The ATA further 

cites statistics compiled by the Port of 

Oakland Seaport showing that 

California’s three major container ports 

carry approximately 50% of the nation’s 

total container cargo volume. See Port of 

Oakland Seaport, Facts and Figures, 

available at http://

www.oaklandseaport.com/performance/ 

facts-figures/ (‘‘California’s three major 

container ports carry approximately 

50% of the nation’s total container cargo 

volume’’). Given California’s share of 

the national economy and the role of its 

ports in interstate commerce, the ATA 

argues that the estimated loss of 

productivity due to the MRB Rules 

‘‘would be more than enough to 

represent an unreasonable burden on 

interstate commerce.’’ 

The California Labor Commissioner 

argues that the ATA overstates the loss 

of productivity and that the ATA’s 

example incorrectly calculated the 

amount of break time the MRB Rules 

would require and employer to provide 

a driver working a 10-hour shift. In this 

regard, the Labor Commissioner 

explained that, rather than the 4 breaks 

totaling 80 minutes calculated by the 

ATA, an employer would only be 

required to provide a driver working a 

10-hour shift with 3 breaks totaling 50 

minutes.12 The Labor Commissioner 

further argues that using the ATA’s 

example, an employer would only have 

to provide two 10-minute breaks beyond 

the 30 minute off-duty rest period 

already required by the Federal HOS 

regulations. 

Other commenters opposing the 

petition, including the TTD and the 

California Employment Lawyers 

Association, argue that the ATA’s 

arguments concerning lost productivity 

are speculative and unsupported. In this 

regard, the TTD states that the ATA’s 

argument is nothing more than a ‘‘ ‘back 

of the napkin’ speculation on lost 

productivity . . . [that] invokes the 

theoretical specter of damage to 


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13According to the National Conference of State 

Legislators, the following States have meal and rest 

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. 

14 In Oregon, no meal period is required if the 

shift is less than 6 hours, additional meal periods 

are required to be provided to employees who work 

14 hours or more. If the shift is less than seven 

hours, the meal period must commence between 

two and five hours from the beginning of the shift. 

If the work period is more than seven hours, the 

meal period between three and six hours from the 

beginning of the shift. These rest and meal period 

requirements apply to employees 18 years of age 

and older, and Oregon’s rest and meal period 

requirements specific to minors are found at OAR 

839–021–0072. 

interstate shipping without evidence.’’ 

The California Employment Lawyers 

Association commented that the ATA’s 

petition ‘‘cannot cite any actual 

evidence of any burden they have 

caused on interstate commerce’’ and 

that ‘‘[u]nsupported conjecture is not a 

basis for finding preemption pursuant to 

section 31141(c)(4)–(5).’’ 

At the outset, the Agency 

acknowledges that the State of 

California has a legitimate interest in 

promoting driver and public safety, as 

the Labor Commissioner explained. 

However, the Federal HOS rules and the 

provisions in the FMCSRs relating to 

fatigued driving and employer coercion 

serve to promote that interest. The 

Agency does not dismiss as mere 

speculation the ATA’s argument that the 

MRB Rules will result in decreased 

productivity. It is indisputable that the 

MRB Rules decrease each driver’s 

available duty hours, as the Agency 

recognized in the Dilts amicus brief, as 

compared to the Federal HOS 

regulations. See Dilts Amicus Brief at 

19. In addition, some commenters have 

provided information describing 

decreased productivity caused by the 

MRB Rules, thus bolstering the ATA’s 

argument in this regard. For example, 

CRST International explained that its 

carriers move time sensitive freight from 

ports in California across the nation 

and, by forcing its drivers to shut down 

for breaks beyond those required by the 

Federal HOS regulations, the MRB Rules 

result in decreased productivity, greater 

fuel consumption, and increased 

emissions. In the same vein, The FedEx 

Corporation stated: 

The California rules have resulted in a 

costly loss to driver productivity by requiring 

more off-duty time for drivers than what is 

deemed necessary by federal rules. Though 

FedEx networks are carefully engineered to 

ensure the safe and efficient movement of 

customers’ goods, the state-required breaks 

prevent Fed Ex companies from using 

efficient network designs to their full 

potential. 

The FedEx Corporation further 

explained that in order to take off-duty 

breaks, the ‘‘drivers must slow down, 

exit the roadway, find a safe and 

suitable location to park and secure 

their vehicles, and then exit the 

vehicle’’ and that the company has to 

build additional time, up to 90 minutes, 

into the drivers’ routes. Similarly, the 

National Retail Federation explained 

that a member company reported that 

due to the MRB Rules, the company’s 

drivers in California had a 3% reduction 

in productivity compared to drivers in 

the balance of the country, which cost 

the company $1.5 million annually. 

Citing a recent study by the American 

Transportation Research Institute 

(ATRI) to determine the impact of 

California’s MRB Rules on trucking 

productivity, New Prime commented: 

Under the ATRI study’s methodology, GPS 

data was used to quantify the unproductive 

time associated with securing parking during 

prescribed meal and rest break periods. See 

ATRI, California Truck Parking Analysis 

(Oct. 2018). The ATRI study employed a 

sample of eleven truck parking areas in 

California. By tracking ten trucks with each 

of these truck stop areas, ATRI determined 

that, on average, it required 12.5 minutes of 

additional time to locate a spot and then to 

return to the highway for continued driving. 

Ibid. at 3. Applying ATRI’s $66.65 average 

cost per hour to operate a commercial 

vehicle, each required stop comes at a price 

tag of $13.84 in direct costs. 

New Prime further explained that 

applying ATRI’s findings to its business, 

complying with the MRB Rules it could 

equate to an annual cost of more than 

$1.8 million, assuming 180 of the 

company’s trucks had an average of two 

break stops per day, to be borne by New 

Prime and its independent contractor 

drivers. The FMCSA acknowledges that 

even without the MRB Rules, many 

drivers would take breaks beyond those 

required by the HOS regulations. It is 

nevertheless clear that the 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 to decreased productivity 

resulting from the MRB Rules, some 

commenters have also provided 

information about the costs and the 

administrative burden associated with 

complying with the MRB Rules. In this 

regard, C.R. England explained that the 

company regularly considers whether 

market forces justify the costs associated 

with conducting interstate commercial 

business in California, and explained 

that the MRB Rules have: 

[R]esulted in additional compliance costs 

such as additional administrative head count, 

additional operations headcount, 

adjustments to the timing and costs of freight 

delivery and logistics, and costs associated 

with outside vendors and internal 

programming and product development, 

among other things. In addition, the ever 

complicated and onerous regulatory and legal 

framework in California, including these 

break rules, results in significant legal fees 

and costly litigation. 

Similarly, Joval Transportation claims 

to have stopped conducting business in 

California due to the excessive 

regulations. The FedEx Corporation 

commented, ‘‘California rules on meal 

periods and rest breaks have required 

FedEx companies to revise routes, as 

well as compensation plans and 

policies, at a great operational cost . . . 

We have been forced to lengthen routes 

and driver workdays to accommodate 

compliant break times and locations.’’ 

Based on the numerous comments 

received, the FMCSA concludes that the 

MRB Rules impose significant and 

substantial costs stemming from 

decreased productivity and 

administrative burden. 

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. The 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). 

Here, the ATA argues that the Agency 

should consider what the cumulative 

effect would be if all States 

implemented rules similar to 

California’s MRB Rules. In this regard, 

the ATA states, ‘‘[T]he proliferation of 

rules like California’s in other states, 

applied to commercial drivers working 

in interstate commerce, would increase 

the associated freight productivity loss 

enormously, and would represent an 

even larger burden on interstate 

commerce.’’ 

To date, 20 States in addition to 

California regulate, in varying degrees, 

meal and rest break requirements, as the 

National Conference of State Legislators, 

the Center for Justice and Democracy, 

and other commenters have pointed 

out.13 For example, Oregon requires 

employers to provide meal periods of 

not less than 30 minutes to non-exempt 

employees who work 6 or more hours in 

one shift and a 10-minute rest period for 

every 4 hours worked.14 See Or. Admin. 

R. 839–020–0050. In the State of 

Washington, employers are required to 

provide non-exempt, nonagricultural 

employees a meal break of 30 minutes 


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15 In Washington, the meal period must 

commence between two and five hours from the 

beginning of the shift. The rest break must 

commence no later than the end of the third hour 

of the shift. WAC 296–126–092 

16Nevada requires one 10-minute break if the 

employee works between 31⁄2 and 7 hours; two 10- 

minute breaks if the employee works between 7 and 

11 hours; three 10-minute breaks if the employee 

works between 11 and 15 hours; or four 10-minute 

breaks if the employee works between 15 and 19 

hours. See NAC 608.145(a)–(d). 

or more for every 5 hours worked and 

a rest break of 10 minutes or more for 

every 4 hours worked.15 See WAC 296– 

126–092. The State of Nevada requires 

employers to provide nonexempt 

employees a 30-minute meal period 

when working a continuous eight hours 

and a 10-minute break for each four (4) 

hours worked or major fraction 

thereof.16 See NRS 608.019; NAC 

608.145. 

Here, the diversity of State regulation 

of required meal and rest breaks for 

CMV drivers has resulted in a 

patchwork of requirements, and several 

commenters have described the 

difficulty navigating them. In this 

regard, the American Association of 

Bakers stated that its member 

companies and drivers who are part of 

regional distribution networks have had 

to create ‘‘elaborate schedules to remain 

in compliance with separate meal and 

rest break rules that are far less flexible’’ 

than the Federal HOS regulations. C.R. 

England provided a map showing the 

patchwork of State-mandated break laws 

that a driver could encounter on one or 

more long-haul trips that span the 

country, and stated that complying with 

disparate State laws in this regard was 

costly and time consuming. The 

National Association of WholesalerDistributors commented that one of its 

member companies that operates in six 

States must spend ‘‘several thousand 

dollars annually simply to track the 

differences in [rest break] rules for the 

states in which they operate.’’ Other 

commenters, such as the Association of 

American Railroads, Motor Carriers of 

Montana, New Prime, and the National 

Association of Small Trucking 

Companies, also discussed operating 

procedure adjustments and other 

administrative burdens that result from 

varying State requirements which serve 

to disrupt the flow of interstate 

commerce. 

The International Brotherhood of 

Teamsters argues 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 

Agency is not persuaded by this 

argument. 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 taxation and tolling 

are well outside the scope of the 

Agency’s statutory authority. Therefore, 

the extent to which the ‘‘assortment of 

state or local regulations’’ cited by the 

International Brotherhood of Teamsters 

unreasonably burden interstate 

commerce, if at all, as compared to the 

MRB Rules is not part of the Agency’s 

deliberative process. 

The Agency determines that enforcing 

the MRB Rules decreases productivity 

and results in increased administrative 

burden and costs. In addition, the 

Agency believes it to be an unreasonable 

burden on interstate commerce for 

motor carriers to have to cull through 

the varying State requirements, in 

addition to Federal HOS rules, to 

remain in compliance, as commenters 

have described. As explained above, 

uniform national regulation is less 

burdensome than individual State 

regulations, which are often conflicting. 

Therefore, the Agency concludes that 

the MRB Rules place an unreasonable 

burden on interstate commerce. 

Preemption Decision 

As described above, the FMCSA 

concludes that: (1) The MRB Rules are 

State laws or regulations ‘‘on 

commercial motor vehicle safety,’’ to the 

extent they apply to drivers of propertycarrying CMVs subject to the FMCSA’s 

HOS rules; (2) the MRB Rules are 

additional to or more stringent than the 

FMCSA’s HOS rules; (3) the MRB Rules 

have no safety benefit; (4) the MRB 

Rules are incompatible with the 

FMCSA’s HOS rules; and (5) 

enforcement of the MRB Rules would 

cause an unreasonable burden on 

interstate commerce. Accordingly, the 

FMCSA grants the petitions for 

preemption of the ATA and the SCRA, 

and determines that the MRB Rules are 

preempted pursuant to 49 U.S.C. 31141. 

California may no longer enforce the 

MRB Rules with respect to drivers of 

property-carrying CMVs subject to 

FMCSA’s HOS rules. 

Dated: December 21, 2018. 

Raymond P. Martinez, 

Administrator. 

[FR Doc. 2018–28325 Filed 12–21–18; 4:15 pm] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

[Docket No. FRA–2001–11213, Notice No. 

23] 

Drug and Alcohol Testing: 

Determination of Minimum Random 

Testing Rates for 2019 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notification of determination. 

SUMMARY: This notification of 

determination announces FRA’s 

minimum annual random drug and 

minimum annual random alcohol 

testing rates for covered employees and 

for maintenance-of-way (MOW) 

employees for calendar year 2019. 

DATES: This determination takes effect 

December 28, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Gerald Powers, FRA Drug and Alcohol 

Program Manager, W33–310, Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE, Washington, DC 

20590 (telephone 202–493–6313); or 

Sam Noe, FRA Drug and Alcohol 

Program Specialist, Federal Railroad 

Administration (telephone 615–719– 

2951). 

SUPPLEMENTARY INFORMATION: FRA is 

announcing the 2019 minimum annual 

random drug and alcohol testing rates 

for covered service employees, and the 

2019 minimum annual random drug 

and alcohol testing rates for MOW 

employees. For calendar year 2019, the 

minimum annual random testing rates 

for covered service employees will 

continue to be 25 percent for drugs and 

10 percent for alcohol, while the 

minimum annual random testing rates 

for MOW employees will continue to be 

50 percent for drugs and 25 percent for 

alcohol. 

To set its minimum annual random 

testing rates for each year, FRA 

examines the last two complete calendar 

years of railroad industry drug and 

alcohol program data submitted to its 

Management Information System (MIS). 

The rail industry’s random drug testing 

positive rate for covered service 

employees (employees subject to the 

hours of service laws and regulations) 

remained below 1.0 percent for 2016 

and 2017. The Administrator has 

therefore determined the minimum 

annual random drug testing rate for the 

period January 1, 2019, through 

December 31, 2019, will remain at 25 

percent for covered service employees. 

The industry-wide random alcohol 

testing violation rate for covered service 


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