Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2018-0304; FMCSA-2019-0048; FMCSA-2019-0128]

# 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.                              ( print 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;                         *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:

## 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] 

### 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                           ( print 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:                

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.

# Footnotes

1.                             Department of Labor and Industries, Administrative Policy ES.C.6.1, paragraph 11,                         *https://lni.wa.gov/​workers-rights/​_docs/​esc6.1.pdf.*
        Back to Citation      

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.                    
        Back to Citation      

[FR Doc. 2023-28399 Filed 12-22-23; 8:45 am]

BILLING CODE 4910-EX-P