[Federal Register Volume 83, Number 248 (Friday, December 28, 2018)]
[Notices]
[Pages 67470-67480]
[FR Doc No: 2018-28325]

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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.

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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 property-carrying 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<EMAIL_ADDRESS>
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\
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    \1\ While 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.
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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

Regulations, is entitled ``Order Regulating Wages, Hours, and Working
Conditions in the Transportation Industry'' (hereafter: ``8 CCR 11090''
or ``section 11090'').\2\
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    \2\ California Industrial Welfare Commission Order No. 9-2001 is
identical to 8 CCR 11090.
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    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 (3\1/2\)
hours. Authorized rest period time shall be counted as hours worked
for which there shall be no deduction from wages.
    ``(B) If an employer fails to provide an employee a rest period
in accordance with the applicable provisions of this order, the
employer shall pay the employee one (1) 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.
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    \3\ The 30-minute rest break requirement does not apply to
drivers operating under either of the short-haul exemptions in 49
CFR 395.1(e)(1) or (2).
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    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

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.
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    \4\ Some 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.
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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.
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    \5\ Affinity Logistics Corp.; Cardinal Logistics Management
Corp.; C.R. England, Inc.; Diakon Logistics (Delaware), Inc.;
Estenson Logistics, LLC; McLane Company, Inc.; McLane/Suneast, Inc.;
Penske Logistics, LLC; Penske Truck Leasing Co., L.P.; Trimac
Transportation Services (Western), Inc.; and Velocity Express, Inc.
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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
short-haul 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

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 pre-
emption clause, [courts] do not invoke any presumption against pre-
emption but instead focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress' pre-emptive
intent.'' Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct.
1938, 1946 (2016) (quotations omitted). 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\
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    \6\ The 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.
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    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

basis for reconsidering its previous position.\7\
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    \7\ An 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.
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    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 property-carrying 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\
---------------------------------------------------------------------------

    \8\ Sections 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.
---------------------------------------------------------------------------

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

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

    \9\ Even 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.
---------------------------------------------------------------------------

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

    \10\ To 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.
---------------------------------------------------------------------------

    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

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 sleeper-berth 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.<PHONE_NUMBER>(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-Parking-Case-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/D2A7680F-ED90-47D9-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

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-of-drivers-say-elds-make-finding-parking-harder.
    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:
---------------------------------------------------------------------------

    \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).

    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

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 Sec.  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.
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    \12\ Citing 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 one-half 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.
---------------------------------------------------------------------------

    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

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.<PHONE_NUMBER>. In
the State of Washington, employers are required to provide non-exempt,
nonagricultural employees a meal break of 30 minutes

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

    \13\ According 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.
    \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
    \16\ Nevada requires one 10-minute break if the employee works
between 3\1/2\ 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).
---------------------------------------------------------------------------

    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 Wholesaler-Distributors
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 property-carrying 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