California and Washington Meal and Rest Break Rules; Notice of Waiver Provision
| Court | Federal Motor Carrier Safety Administration |
| Citation | 88 FR 55111 |
| Published date | 14 August 2023 |
| Record Number | 2023-17463 |
| Section | Notices |
55111
Federal Register / Vol. 88, No. 155 / Monday, August 14, 2023 / Notices
information for the purpose of
establishing that a passport applicant
has adopted a new name without formal
court proceedings or by marriage and
has publicly and exclusively used the
adopted name over a period of time (at
least five years).
•1405–0146, DS–86, Statement of
Non-Receipt of a U.S. Passport: The
form is used by the U.S. Department of
State to collect information for the
purpose of issuing a replacement
passport to customers whose passports
have been issued but who have not
received their passport documents in
the mail. The information collected on
the Statement of Non-Receipt of a U.S.
Passport is used by the Department of
State to help ensure that no person bears
more than one valid or potentially valid
U.S. passport book of the same type
and/or passport card at any one time,
except as authorized by the Department.
The information on the form is also
used to address passport fraud and
misuse.
All three forms have been amended to
replace the term ‘‘sex’’ with ‘‘gender’’
and to be pronoun-inclusive of all
genders.
Methodology
When needed, the Birth Affidavit is
either provided by the Department or
downloaded from the Department’s
website and completed by the affiant. It
must be signed in the presence of a
passport agent, acceptance agent, or
notary.
When needed, the Affidavit Regarding
a Change of Name is either provided by
the Department or downloaded from the
Department’s website and completed by
the affiant. It must be signed in the
presence of a passport agent, passport
acceptance agent, or notary.
When needed, the Statement of Non-
Receipt of a U.S. Passport is either
provided by the Department or
downloaded from the Department’s
website and completed by the passport
applicant.
Rachel M. Arndt,
Deputy Assistant Secretary, Bureau of
Consular Affairs, Passport Services
Department of State.
[FR Doc. 2023–17368 Filed 8–11–23; 8:45 am]
BILLING CODE 4710–06–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2018–0304; FMCSA–
2019–0048; FMCSA–2019–0128]
California and Washington Meal and
Rest Break Rules; Notice of Waiver
Provision
AGENCY
: Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION
: Notice of waiver provision.
SUMMARY
: FMCSA provides notice that
the Agency will consider petitions for
waiver of its 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.
DATES
: While petitions for waiver may
be submitted at any time, FMCSA
requests that any petitions for waiver of
the above referenced preemption
determinations be submitted by
November 13, 2023. FMCSA will
publish any petitions for waiver that it
receives and will provide an
opportunity for public comment with
respect to the petitions.
ADDRESSES
: You may submit a petition
for waiver to the Federal Docket
Management System Docket No.
FMCSA–2018–0304, Docket No.
FMCSA–2019–0048, 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 petition for
waiver.
•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.
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
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 Association
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)–(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, 2021 WL 4507755 (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
VerDate Sep<11>2014 17:38 Aug 11, 2023 Jkt 259001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\14AUN1.SGM 14AUN1
ddrumheller on DSK120RN23PROD with NOTICES1
55112
Federal Register / Vol. 88, No. 155 / Monday, August 14, 2023 / Notices
1
Department of Labor and Industries,
Administrative Policy ES.C.6.1, paragraph 11,
https://lni.wa.gov/workers-rights/_docs/esc6.1.pdf.
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)–(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)–(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, United
States Code, 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. section
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. section
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. section
31141(d)(1).
III. Petitions for Waiver of California
and Washington Meal and Rest Break
Preemption Determinations
FMCSA provides notice that the
Agency will consider any petition
seeking waiver of the Agency’s
decisions preempting (1) California’s
MRB rules for drivers of property-
carrying CMVs (Docket No. FMCSA–
2018–0304; 83 FR 67470), (2)
California’s MRB rules for drivers of
passenger-carrying CMVs (Docket No.
FMCSA–2019–0048; 85 FR 3469), or (3)
Washington’s MRB rules for drivers of
property-carrying CMVs (Docket No.
FMCSA–2019–0128, 85 FR 73335).
Section 31141(d) requires that a petition
for waiver demonstrate to the Agency’s
satisfaction that a waiver from Federal
preemption is in the public interest and
is consistent with the safe operation of
CMVs. A petition for waiver need not
contend that the Agency erred in
determining that the California and
Washington MRB rules are laws on
CMV safety, that they are more stringent
than the Federal HOS regulations, or
that they meet any or all the criteria for
preemption under 31141(c)(4)–(5), and
the Agency encourages waiver
petitioners to include arguments that do
not depend on a conclusion that the
Agency’s preemption determinations
were erroneous.
The Agency requests that any waiver
petition address the following issues, in
addition to any other relevant 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, whether
any such effect will burden interstate
commerce or create additional dangers
to drivers and the public, and whether
the applicant intends to take any actions
to mitigate or address any such effect;
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, whether any such effect will
weaken the resiliency of the national
supply chain, and whether the applicant
intends to take any actions to mitigate
or address any such effect.
Any person may file a petition for
waiver in the appropriate docket
specified above or may send it to
FMCSA at the address provided in the
FOR FURTHER INFORMATION CONTACT
section of this notice.
Robin Hutcheson,
Administrator.
[FR Doc. 2023–17463 Filed 8–11–23; 8:45 am]
BILLING CODE 4910–EX–P
VerDate Sep<11>2014 17:38 Aug 11, 2023 Jkt 259001 PO 00000 Frm 00106 Fmt 4703 Sfmt 9990 E:\FR\FM\14AUN1.SGM 14AUN1
ddrumheller on DSK120RN23PROD with NOTICES1
