Washington's Meal and Rest Break Rules for Drivers of Commercial Motor Vehicles; Petition for Determination of Preemption

As Enacted ( Federal Register)

Cited authorities 28

Cited in

Published date	17 November 2020
Citation	85 FR 73335
Record Number	2020-25155
Section	Notices
Court	Federal Motor Carrier Safety Administration

73335

Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices

I. Public Participation

A. Viewing Documents and Comments

To view comments, as well as any

documents mentioned in this notice as

being available in the docket, go to

http://www.regulations.gov. Insert the

docket number, FMCSA–2013–0121,

FMCSA–2014–0103, FMCSA–2014–

0385, FMCSA–2015–0329, FMCSA–

2016–0002, FMCSA–2017–0059, or

FMCSA–2018–0135, in the keyword

box, and click ‘‘Search.’’ Next, click the

‘‘Open Docket Folder’’ button and

choose the document to review. If you

do not have access to the internet, you

may view the docket online by visiting

Dockets Operations in Room W12–140

on the ground floor of the DOT West

Building, 1200 New Jersey Avenue SE,

Washington, DC 20590, between 9 a.m.

and 5 p.m., ET, Monday through Friday,

except Federal holidays. To be sure

someone is there to help you, please call

(202) 366–9317 or (202) 366–9826

before visiting Dockets Operations.

B. Privacy Act

In accordance with 5 U.S.C. 553(c),

DOT solicits comments from the public

to better inform its rulemaking process.

DOT posts these comments, without

edit, including any personal information

the commenter provides, to

www.regulations.gov, as described in

the system of records notice (DOT/ALL–

14 FDMS), which can be reviewed at

www.transportation.gov/privacy.

II. Background

On October 1, 2020, FMCSA

published a notice announcing its

decision to renew exemptions for 14

individuals from the hearing standard in

49 CFR 391.41(b)(11) to operate a CMV

in interstate commerce and requested

comments from the public (85 FR

62009). The public comment period

ended on November 2, 2020, and no

comments were received.

FMCSA has evaluated the eligibility

of these applicants and determined that

renewing these exemptions would

achieve a level of safety equivalent to,

or greater than, the level that would be

achieved by complying with

§ 391.41(b)(11).

The physical qualification standard

for drivers regarding hearing found in

§ 391.41(b)(11) states that a person is

physically qualified to drive a CMV if

that person first perceives a forced

whispered voice in the better ear at not

less than 5 feet with or without the use

of a hearing aid or, if tested by use of

an audiometric device, does not have an

average hearing loss in the better ear

greater than 40 decibels at 500 Hz, 1,000

Hz, and 2,000 Hz with or without a

hearing aid when the audiometric

device is calibrated to American

National Standard (formerly ASA

Standard) Z24.5—1951.

This standard was adopted in 1970

and was revised in 1971 to allow drivers

to be qualified under this standard

while wearing a hearing aid, 35 FR

6458, 6463 (April 22, 1970) and 36 FR

12857 (July 3, 1971).

III. Discussion of Comments

FMCSA received no comments in this

proceeding.

IV. Conclusion

Based upon its evaluation of the 14

renewal exemption applications,

FMCSA announces its decision to

exempt the following drivers from the

hearing requirement in § 391.41(b)(11).

As of October 13, 2020, and in

accordance with 49 U.S.C. 31136(e) and

31315(b), the following 14 individuals

have satisfied the renewal conditions for

obtaining an exemption from the

hearing requirement in the FMCSRs for

interstate CMV drivers (85 FR 62009):

Cory Adkins (FL)

David Alagna (TN)

Matthew Albrecht (PA)

Keith Bryd (TN)

David Chappelear (TX)

Ralph Domel (TX)

Jacquelyn Hetherington (OK)

Paul Mansfield (KS)

Ervin Mitchell (TX)

Jose Ramirez (IL)

Fernando Ramirez-Savon (FL)

Thomas Sneer (MN)

Daniel Stroud (UT)

Jason Wynne (TX)

The drivers were included in docket

number FMCSA–2013–0121, FMCSA–

2014–0103, FMCSA–2014–0385,

FMCSA–2015–0329, FMCSA–2016–

0002, FMCSA–2017–0059, and FMCSA–

2018–0135. Their exemptions were

applicable as of October 13, 2020, and

will expire on October 13, 2022.

In accordance with 49 U.S.C.

31315(b), each exemption will be valid

for 2 years from the effective date unless

revoked earlier by FMCSA. The

exemption will be revoked if the

following occurs: (1) The person fails to

comply with the terms and conditions

of the exemption; (2) the exemption has

resulted in a lower level of safety than

was maintained prior to being granted;

or (3) continuation of the exemption

would not be consistent with the goals

and objectives of 49 U.S.C. 31136(e) and

31315(b).

Larry W. Minor,

Associate Administrator for Policy.

[FR Doc. 2020–25340 Filed 11–16–20; 8:45 am]

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety

Administration

[Docket No. FMCSA–2019–0128]

Washington’s Meal and Rest Break

Rules for Drivers of Commercial Motor

Vehicles; Petition for Determination of

Preemption

AGENCY

: Federal Motor Carrier Safety

Administration (FMCSA), DOT.

ACTION

: Order; grant of petition for

determination of preemption.

SUMMARY

: FMCSA grants the petition

submitted by the Washington Trucking

Associations (WTA) requesting a

determination that the State of

Washington’s Meal and Rest Break rules

(MRB rules) are preempted as applied to

property-carrying commercial motor

vehicle drivers subject to FMCSA’s

hours of service (HOS) regulations.

Federal law provides for preemption of

State laws on commercial motor vehicle

safety that are additional to or more

stringent than Federal regulations if

they (1) have no safety benefit; (2) are

incompatible with Federal regulations;

or (3) would cause an unreasonable

burden on interstate commerce. FMCSA

has determined that Washington’s MRB

rules are laws on commercial motor

vehicle (CMV) safety, that they are more

stringent than the Agency’s HOS

regulations, that they have no safety

benefits that extend beyond those that

the Federal Motor Carrier Safety

Regulations (FMCSRs) already provide,

that they are incompatible with the

Federal HOS regulations, and that they

cause an unreasonable burden on

interstate commerce. The Washington

MRB rules, therefore, are preempted.

FOR FURTHER INFORMATION CONTACT

: Mr.

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) 493–0349; Charles.Fromm@

dot.gov.

SUPPLEMENTARY INFORMATION

Electronic Access

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

FMCSA–2019–0128 to read background

documents or comments, go to http://

www.regulations.gov. The FDMS is

available 24 hours each day, 365 days

each year.

Privacy Act: Anyone may search the

FDMS for all comments received into

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While WTA seeks preemption of Washington’s

MRB rules ‘‘insofar as they are applied to

commercial motor vehicle drivers subject to the

hours-of-service regulations promulgated by

FMCSA,’’ the Agency’s 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 Washington’s MRB

rules are preempted with respect to such drivers.

The regulations do not apply to newspaper

vendors or carriers; domestic or casual labor in or

about private residences; agricultural labor as

defined in RCW 50.04.150; or sheltered workshops.

WAC 296–126–001(2).

On June 1, 2020, FMCSA published a final rule,

which went into effect on September 29, 2020,

revising the 30-minute break requirement. The

revised HOS rules require a ‘‘consecutive 30-minute

interruption in driving status’’ after 8 hours of

driving time, rather than a 30-minute off-duty break

after 8 hours of on-duty time. See Final Rule: Hours

of Service of Drivers, 85 FR 33396, 33452.

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 FDMS published in the Federal

82132.

Background

On April 8, 2019, WTA petitioned

FMCSA to preempt Washington statutes

and rules requiring employers to give

their employees meal and rest breaks

during the work day, as applied to

drivers of CMVs subject to FMCSA’s

HOS rules. For the reasons set forth

below, FMCSA grants the petition.

Washington’s Meal and Rest Break

Rules

Section 49.12.005 of Washington’s

Industrial Welfare Act, codified at

chapter 49.12, Revised Code of

Washington (RCW), defines ‘‘employer’’

as:

‘‘[A]ny person, firm, corporation,

partnership, business trust, legal

representative, or other business entity

which engages in any business,

industry, profession, or activity in this

state and employs one or more

employees, and includes the state, any

state institution, state agency, political

subdivisions of the state, and any

municipal corporation or quasi-

municipal corporation. However, this

chapter and the rules adopted

thereunder apply to these public

employers only to the extent that this

chapter and the rules adopted

thereunder do not conflict with: (i) Any

state statute or rule; and (ii) respect to

political subdivisions of the state and

any municipal or quasi-municipal

corporation, any local resolution,

ordinance, or rule adopted under the

authority of the local legislative

authority before April 1, 2003.’’

The Industrial Welfare Act defines

‘‘employee’’ as, ‘‘an employee who is

employed in the business of the

employee’s employer whether by way of

manual labor or otherwise.’’ RCW

49.12.005.

To implement the Industrial Welfare

Act, the Washington Department of

Labor and Industries promulgated

regulations at chapter 296–126 of the

Washington Administrative Code

(WAC), entitled ‘‘Standards of Labor for

the Protection of the Safety, Health and

Welfare of Employees for All

Occupations Subject to Chapter 49.12

RCW.’’ In accordance with WAC 296–

126–001(1), the regulations apply to all

employers and employees, as defined in

the Industrial Welfare Act, except as

specifically excluded.

The regulations at WAC 296–126–092

establish the required meal and rest

periods employers must provide

employees, and read as follows:

‘‘(1) Employees shall be allowed a

meal period of at least thirty minutes

which commences no less than two

hours nor more than five hours from the

beginning of the shift. Meal periods

shall be on the employer’s time when

the employee is required by the

employer to remain on duty on the

premises or at a prescribed work site in

the interest of the employer.

‘‘(2) No employee shall be required to

work more than five consecutive hours

without a meal period.’’

‘‘(3) Employees working three or more

hours longer than a normal work day

shall be allowed at least one thirty-

minute meal period prior to or during

the overtime period.’’

‘‘(4) Employees shall be allowed a rest

period of not less than ten minutes, on

the employer’s time, for each four hours

of working time. Rest periods shall be

scheduled as near as possible to the

midpoint of the work period. No

employee shall be required to work

more than three hours without a rest

period.’’

‘‘(5) Where the nature of the work

allows employees to take intermittent

rest periods equivalent to ten minutes

for each 4 hours worked, scheduled rest

periods are not required.’’

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 FMCSRs; (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 that 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 the

State 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. 49 CFR 1.87(f).

FMCSRs Concerning HOS for Drivers of

Property-Carrying CMVs, 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 this regard, a

driver may not drive after a period of 14

consecutive hours after coming on-duty

following 10 consecutive hours off-duty.

Id. at 395.3(a)(1)–(2). A driver may drive

a total of 11 hours during the 14-hour

duty window. Id. at 395.3(a)(3)(i). In

addition, after 8 hours of driving time,

the HOS rules require long-haul truck

drivers operating a CMV in interstate

commerce to take a break from driving

for at least 30 consecutive minutes, if

they wish to continue driving. Id. at

395.3(a)(3)(ii).

A driver may satisfy the

30-minute break requirement by

spending the time off-duty, on-duty not

driving, in the sleeper berth, or any

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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.

In a 2014 amicus brief in the matter of Dilts v.

Penske Logistics, LLC, United States Court of

Appeals for the Ninth Circuit, No. 12–55705 (2014),

the United States explained that FMCSA continued

to adhere to the view expressed in the 2008

decision that section 31141 did not preempt

California’s MRB rules because they were not laws

‘‘on commercial motor vehicle safety.’’ 2014 WL

809150, 26–27. 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. See 769 F.3d 637.

combination of these non-driving

statuses. Id. The HOS rules also impose

weekly limits after which driving is

prohibited. Id. at 395.3(b). There are

separate HOS rules, imposing different

limits on driving time, for drivers of

passenger-carrying CMVs. Id. at 395.5.

In addition, the FMCSRs also prohibit

a driver from operating a CMV, and a

motor carrier from requiring a driver to

operate a CMV, while the driver is so

impaired, or so likely to become

impaired by illness, fatigue, or other

cause 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 Agency’s Prior Decisions Regarding

Preemption of Meal and Rest Break

Rules Under Section 31141

I. FMCSA’s 2008 Decision Rejecting a

Petition to Preempt California’s MRB

Rules

On July 3, 2008, a group of motor

carriers

petitioned FMCSA for a

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

that: (1) California’s MRB rules were

regulations on CMV safety, (2) the

putative State regulation imposed

limitations on a driver’s time that were

different from and more stringent than

Federal ‘‘hours of service’’ regulations

governing the time a driver may remain

on duty, and (3) the State law should

therefore be preempted. 73 FR 79204.

On December 24, 2008, the Agency

denied the petition for preemption,

reasoning that California’s MRB rules

were merely one part of the State’s

comprehensive regulation of wages,

hours, and working conditions, and that

they applied to employers in many

other industries in addition to motor

carriers. 73 FR 79204. FMCSA

concluded that California’s 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 as a State motor

vehicle safety regulation that is

inconsistent with Federal safety

requirements.

Id. at 79205–06.

II. FMCSA’s 2018 Decision Granting

Petitions to Preempt California’s MRB

Rules, as applied to Drivers of Property-

Carrying CMVs

In 2018, the American Trucking

Associations (ATA) and the Specialized

Carriers and Rigging Association

petitioned FMCSA to reconsider its

2008 decision and declare California’s

MRB rules preempted under section

31141 insofar as they apply to drivers of

CMVs subject to the Federal HOS rules.

The ATA acknowledged that FMCSA

had previously determined that it could

not declare the California MRB rules

preempted under section 31141 because

they were not regulations ‘‘on

commercial motor vehicle safety.’’ The

2018 petitioners urged the Agency to

revisit that determination, noting that,

by its terms, the statute did not limit the

Agency’s preemption authority to those

State laws that directly targeted the

transportation industry. Rather, the

appropriate question was whether the

State law targeted conduct that a

Federal regulation designed to ensure

motor vehicle safety already covered.

The 2018 petitioners also provided

evidence that California’s meal and rest

break laws were detrimental to the safe

operation of CMVs.

On December 21, 2018, FMCSA

issued a determination declaring

California’s MRB rules preempted with

respect to drivers of property-carrying

CMVs subject to the Federal HOS rules.

83 FR 67470. The Agency first

acknowledged that it was departing

from its 2008 decision finding that the

MRB rules were not laws ‘‘on

commercial motor vehicle safety’’

because they were laws of broad

applicability and not specifically

directed to motor vehicle safety. Id. at

67473–74. The Agency explained that

its 2008 decision was ‘‘unnecessarily

restrictive’’ and not supported by either

the statutory language or legislative

history. Id. The Agency considered the

fact 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). The

Agency explained that Congress, by

tying the scope of the Secretary’s

preemption authority directly to the

scope of the Secretary’s authority to

regulate the CMV industry, provided a

framework for determining whether a

State law or regulation is subject to

section 31141. The Agency concluded

that ‘‘[I]f 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.’’ Id. at 67473. The

Agency further determined that because

California’s MRB rules plainly regulated

the same conduct as the Federal HOS

rules, they were laws ‘‘on commercial

motor vehicle safety.’’

Having concluded that the California

MRB rules were laws ‘‘on commercial

motor vehicle safety,’’ under section

31141, the Agency next determined that

they are additional to or more stringent

than the Federal HOS rules. 83 FR

67474–75. FMCSA found that

California’s MRB rules require

employers to provide property-carrying

CMV drivers with more rest breaks than

the Federal HOS rules; and allow a

smaller window of driving time before

a break is required. Id.

The Agency next explained that

because California’s MRB rules are more

stringent, they may be preempted if the

Agency determined that the MRB rules

have no safety benefit, that they are

incompatible with HOS rules, or that

enforcement of the MRB rules would

cause an unreasonable burden on

interstate commerce. 83 FR 67475.

FMCSA found that California’s MRB

rules provided no safety benefit beyond

the Federal regulations, and that, given

the current shortage of available parking

for CMVs, the required additional

breaks adversely impacted safety

because they exacerbated the problem of

CMVs parking at unsafe locations. Id. at

67475–77. The Agency also determined

that the MRB rules were incompatible

with the Federal HOS rules because

they required employers to provide

CMV drivers with more breaks, at less

flexible times, than the Federal HOS

rules. Id. at 67477–78.

Lastly, the Agency determined that

enforcing California’s MRB rules would

impose an unreasonable burden on

interstate commerce. 83 FR 67478–80.

In this regard, the 2018 petitioners and

other commenters provided information

demonstrating that the MRB rules

imposed significant and substantial

costs stemming from decreased

productivity and administrative burden.

Id. at 67478–79. The Agency also

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Thirty-five comments were submitted to the

docket; however, two comments raised unrelated

issues.

The Center for Justice and Democracy submitted

a comment letter, opposing WTA’s petition, that 30

organizations joined. Senator Patty Murray and

Representative Peter DeFazio submitted a comment

letter, opposing WTA’s petition, that 12 members of

Congress joined.

considered the cumulative effect on

interstate commerce of similar laws and

regulations in other States. Currently 21

States have varying applicable break

rules. The Agency determined that the

diversity of State regulation of meal and

rest breaks for CMV drivers has resulted

in a patchwork of requirements that the

Agency found to be an unreasonable

burden on interstate commerce. Id. at

67479–80.

Accordingly, FMCSA granted the

petitions for preemption and

determined that California ‘‘may no

longer enforce’’ its meal and rest break

rules with respect to drivers of property-

carrying commercial motor vehicles

subject to the HOS rules.

III. FMCSA’s 2020 Decision Granting a

Petition to Preempt California’s MRB

Rules, as Applied to Drivers of

Passenger-Carrying CMVs

In 2019, the American Bus

Association (ABA) submitted a petition

to FMCSA requesting a determination

that California’s MRB rules are

preempted under 49 U.S.C. 31141, as

applied to passenger-carrying CMV

drivers subject to the Agency’s HOS

regulations. Citing the Agency’s 2018

decision, ABA argued that California’s

MRB rules are within the scope of the

Secretary’s preemption authority under

section 31141 because they are laws on

CMV safety. In addition, ABA argued

that California’s MRB rules undermine

existing Federal fatigue management

rules, that they are untenable due to

inadequate parking for CMVs, and that

compliance costs create an unreasonable

burden on interstate commerce.

On January 13, 2020, FMCSA issued

a determination declaring California’s

MRB rules preempted with respect to

drivers of passenger-carrying CMVs

subject to the Federal HOS rules; the

decision was published in the Federal

3469. The Agency determined that both

California’s MRB rules and the Federal

HOS rules govern fatigue management

for drivers of passenger-carrying CMVs;

therefore, they are laws ‘‘on commercial

motor vehicle safety.’’ See id. at 3472–

74. FMCSA next determined that

California’s MRB rules are additional to

or more stringent than the Federal HOS

rules for passenger carriers because they

require employers to provide CMV

drivers with meal and rest breaks at

specified intervals. See id. at 3474–75.

The Agency found that California’s MRB

rules provide no safety benefit beyond

the Federal regulations and that they are

incompatible with the Federal HOS

rules. See id. at 3475–77. The Agency

also determined that enforcing

California’s MRB rules would impose an

unreasonable burden on interstate

commerce due to the increased

operational burden and costs associated

with compliance. See id. at 3478–80. In

addition, the Agency considered the

cumulative effect on interstate

commerce of similar meal and rest break

laws and regulations in other States and

determined that the diversity of State

regulation of meal and rest breaks for

CMV drivers has resulted in a

patchwork of requirements that is an

unreasonable burden on interstate

commerce. See id. at 3480.

The WTA Petition and Comments

Received

As set forth more fully below, WTA

argued in its 2019 petition that

‘‘FMCSA’s recent determination that

California’s meal and rest break rules

are preempted under section 31141

compels the same conclusion with

respect to Washington’s rules.’’ In this

regard, WTA contended that

Washington’s MRB rules are like

California’s and therefore are also laws

‘‘on commercial motor vehicle safety’’

within the scope of the Secretary’s

preemption authority under section

31141. WTA further argued that

Washington’s MRB rules are additional

to or more stringent than the Federal

HOS rules, that they provide no safety

benefits beyond the Federal HOS rules,

that they are incompatible with the

Federal HOS rules, and that they impose

an unreasonable burden on interstate

commerce. WTA’s petition seeks an

FMCSA determination that

Washington’s MRB rules, as applied to

CMV drivers who are subject to the HOS

rules, are preempted pursuant to section

31141 and, therefore, may not be

enforced.

FMCSA published a notice in the

Federal Register on October 9, 2019

seeking public comment on whether

Federal law preempts Washington’s

MRB rules. 84 FR 54266. Although

preemption under section 31141 is a

legal determination reserved to the

judgment of the Agency, FMCSA sought

comment on the issues raised in WTA’s

petition or those that were otherwise

relevant. Id. The Agency received and

considered 33 comments on the

petition,

with 24 commenters

supporting preemption and 9 opposing.

The comments are discussed more fully

below.

Decision

I. Section 31141 Expressly Preempts

State Law, Therefore the Presumption

Against Preemption Does Not Apply

In joint comments opposing WTA’s

petition, the American Association for

Justice and the Washington State

Association for Justice (collectively ‘‘the

Associations for Justice’’) contended

that Washington’s MRB rules are subject

to a presumption against preemption

that requires FMCSA to adopt ‘‘the

reading that disfavors pre-emption’’ in

interpreting section 31141. Quoting

Bates v. Dow Agrosciences LLC, 544

U.S. 431, 449 (2005), the Associations

for Justice argued, ‘‘Only if Congress has

made its preemptive intent ‘clear and

manifest’ will state law be forced to give

way ‘[i]n areas of traditional state

regulation.’’’

The presumption against preemption

is a canon of statutory interpretation

that courts employ that favors reading

ambiguous Federal statutes in a manner

that avoids preempting State law absent

clear congressional intent to do so. See,

e.g., Association des Eleveurs de

Canards et d’Oies du Quebec v. Becerra,

870 F.3d 1140, 1146 (9th Cir. 2017). The

Agency acknowledges that ‘‘in all

preemption cases, and particularly in

those in which Congress has legislated

in a field which the States have

traditionally occupied, [courts] start

with the 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) (quoting Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485 (1996)).

Where, however, a provision at issue

constitutes an area of traditional State

regulation, ‘‘that fact alone does not

‘immunize’ state employment laws from

preemption if Congress in fact

contemplated their preemption.’’ Dilts v.

Penske Logistics, LLC, 769 F.3d 637, 643

(9th Cir. 2014). And here there is no

dispute that Congress has given FMCSA

the authority to review and preempt

State laws; the only questions concern

the application of that authority to

specific State laws. The Associations for

Justice’s reliance on Bates v. Dow

Agrosciences LLC is misplaced because

section 31141 is an express preemption

clause that makes ‘‘clear and manifest’’

Congress’s preemptive intent. FMCSA is

aware of no authority suggesting that the

presumption against preemption limits

an agency’s ability to interpret a statute

authorizing it to preempt State laws.

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In any event, 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); see also Atay v.

County of Maui, 842 F.3d 688, 699 (9th

Cir. 2016). Section 31141 expressly

authorizes the Secretary to preempt

State laws on commercial motor vehicle

safety. Thus, Washington’s MRB rules

are not subject to a presumption against

preemption, and the question that

FMCSA must answer is whether they

should be preempted under section

31141.

II. Washington’s MRB Rules, as Applied

to Drivers of Property-Carrying CMVs,

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 State provisions at issue are laws or

regulations ‘‘on commercial motor

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

FMCSA’s 2008 decision declining to

preempt California’s MRB rules, which

are similar to Washington’s rules, the

Agency narrowly construed section

31141. In this regard, the Agency

concluded that because the MRB rules

are ‘‘one part of California’s

comprehensive regulations governing

wages, hours and working conditions,’’

and apply to many industries, the

provisions are not regulations ‘‘on CMV

safety,’’ and, thus, were not within the

scope of the Secretary’s preemption

authority. 73 FR 79204, 79206. FMCSA

reconsidered this conclusion and

explained in its 2018 decision

preempting California’s MRB rules, as

applied to driver of property-carrying

CMVs, 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. In this regard, the

Agency explained:

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 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. 83 FR 67470.

The Agency adopted this reasoning in

its January 2020 decision preempting

California’s MRB rules, as applied to

drivers of passenger-carrying CMVs. 85

FR 3473. Consistent with the Agency’s

decisions preempting California’s MRB

rules, FMCSA reiterated that if the State

law or regulation at issue imposes

requirements in an area of regulation

that is within FMCSA’s section 31136

regulatory authority, then the State law

or regulation is a regulation ‘‘on

commercial motor vehicle safety.’’

With regard to Washington’s MRB

rules, WTA argued that, ‘‘Washington’s

meal and rest break rules . . . are

subject to review under section 31141’’

in accordance with the Agency’s

framework established in the 2018

decision preempting California’s MRB

rules. Quoting FMCSA’s 2018 decision,

WTA further contended that

Washington’s MRB rules are laws on

CMV safety because they ‘‘impose the

same types of restrictions on CMV

driver duty and driving times as

FMCSA’s HOS rules, which were

enacted pursuant to the Secretary’s

authority in section 31136.’’ The Agency

agrees. The Federal HOS rules have long

imposed drive time limits for drivers. In

addition, the Federal regulations also

prohibit drivers from operating CMVs

when fatigued, require drivers to take

any additional breaks necessary to

prohibit fatigued driving, and prohibit

employers from coercing drivers into

operating a CMV during these required

breaks. Thus, both Washington’s MRB

rules and FMCSA’s regulations cover

the same subject matter concerning

CMV driver duty and driving times.

Therefore, the Agency determines that

Washington’s MRB rules, as applied to

drivers of property-carrying CMVs, are

laws on CMV safety.

Joint comments from Washington’s

Governor and Attorney General

opposing WTA’s petition further

illustrate that Washington’s MRB rules

are laws on CMV safety. In this regard,

the Governor and Attorney General

stated, ‘‘Washington enacted our meal-

and-rest break standards to provide

increased safety protections to all

drivers.’’ They further explained, ‘‘By

ensuring workers can take a rest break

after every four hours worked and a

meal break within the first five hours of

their shift, Washington’s rules are a

critical tool to prevent drivers from

reaching the levels of fatigue that could

result in significant increased risk of

accidents on our roadways . . . .’’ The

Governor and Attorney General

characterized the Washington MRB and

Federal HOS rules as having ‘‘the

common purpose of preventing fatigue

and decreasing the likelihood of

dangerous accidents.’’ These statements

support FMCSA’s conclusion that

Washington’s MRB rules are laws ‘‘on

CMV safety’’ and, therefore, fall

squarely within the scope of the

Secretary’s preemption authority.

In comments opposing WTA’s

petition, the Washington Department of

Labor and Industries argued that the

State’s MRB rules are not laws ‘‘on CMV

safety’’ but, rather, are ‘‘laws of general

applicability, governing rest breaks

across multiple industries.’’ Citing

Merriam-Webster Dictionary, the

Department of Labor and Industries

further contended that ‘‘on’’ is defined

as ‘‘with respect to’’ and that

Washington’s MRB rules are not laws

‘‘‘with respect to’ commercial motor

vehicle safety where [their] topic is not

commercial motor vehicle safety but

employee meal and rest breaks

generally.’’ The Washington

Employment Lawyers Association

(WELA) and the International

Brotherhood of Teamsters (Teamsters),

made similar arguments concerning the

generally applicable nature of

Washington’s MRB rules in their

comments opposing WTA’s petition.

The Agency disagrees. While a State

law specifically directed only at CMV

safety would unquestionably be within

the scope of section 31141, the Federal

statute does not limit preemption to

State laws enacted only to cover CMV

safety. Instead, section 31141 asks the

Agency to review ‘‘state law[s] or

regulation[s] on commercial motor

vehicle safety,’’ and compare them to

Federal regulations ‘‘on commercial

motor vehicle safety’’ promulgated

under 49 U.S.C. 31136 in order to

promote a more uniform nationwide

regulatory regime. As explained below,

a State regulation of broad applicability

might, as applied to commercial

trucking, raise precisely the concerns

that Congress required the Secretary to

address in order to avoid unnecessary

disuniformity and undue burdens on

interstate commerce. See Public Law

98–554, title II § 202, 203; S. Rep. 98–

424, at 14 (1984). Therefore, it is

immaterial that Washington’s MRB rules

have general applicability to employers

and workers in the State. When the

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Congress enacted the 1984 Act 10 years before

the FAAAA. See Motor Carrier Safety Act of 1984,

Public Law 98–554, title II, sec. 208, 98 Stat. 2829,

2836–37 (Oct. 30, 1984); Federal Aviation

Administration Authorization Act of 1994, Public

Law 103–305, title VI, sec. 601(c), 108 Stat. 1569,

1606 (Aug. 23, 1994); see also ICC Termination Act

of 1995, Public Law 104–88, title I, sec. 103, 109

Stat. 803, 899 (Dec. 29, 2995).

MRB rules are applied to CMV drivers,

they govern the same conduct as the

Federal HOS rules; they are therefore

laws on CMV safety.

The Associations for Justice and

WELA argued that section 31141 should

be read in line with the safety exception

to the express preemption provision of

the Federal Aviation Administration

Authorization Act of 1994 (FAAAA),

which preempts State laws that are

related to a price, route, or service of a

motor carrier of property. See 49 U.S.C.

14501(c). The FAAAA exempts from

preemption ‘‘the safety regulatory

authority of a State with respect to

motor vehicles.’’ See 49 U.S.C.

14501(c)(2)(A). Quoting City of

Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424, 441 (2002), the

Associations for Justice stated that laws

directed at safety are exempt from

section 14501(c) because section 31141

‘‘ ‘affords the Secretary . . . a means to

prevent the safety exception from

overwhelming [Congress’s] deregulatory

purpose.’ ’’ WELA notes that several

district courts have held that

California’s MRB rules do not fall

within the FAAAA’s safety exception,

and argues that the rules therefore

cannot be covered by section 31141.

The Agency finds this argument

unavailing. Nothing in the FAAAA’s

safety exception in section

14501(c)(2)(A) or in the Supreme

Court’s decision in Ours Garage serves

to limit the scope of the Secretary’s

preemption authority under section

31141 to just those State laws enacted

with the specific intent to cover only

CMV safety. Congress enacted sections

14501(c)(2)(A) and 31141 to achieve

different purposes; therefore, the scope

of one section does not necessarily

correlate to the other. In this regard,

section 14501(c)(2)(A) serves to ensure

that the preemption of a State’s

economic authority over motor carriers

of property does not infringe upon a

State’s exercise of its traditional police

power over safety. See Ours Garage, 536

U.S. at 426. However, as explained

above, Congress enacted the earlier 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.

The Supreme

Court’s decision in Ours Garage merely

noted that a State law that falls within

the FAAAA’s safety exception—and

therefore is not preempted by the

FAAAA—may nevertheless be

preempted under section 31141. That

decision did not suggest that the two

provisions are necessarily coextensive.

The Agency is not here called upon to

decide whether the FAAAA’s safety

exception would apply to California’s

MRB rules, and need not decide that

question in order to determine that

section 31141 applies.

The Associations for Justice also

argued that the Agency should adhere to

the legal position articulated in the 2008

decision regarding California’s rules and

stated, ‘‘FMCSA’s previous longstanding

position is correct—it lacks statutory

authority to preempt generally

applicable state labor laws that are not

specifically directed at safety.’’ FMCSA

disagrees. As the Agency explained in

the 2018 and 2020 decisions preempting

California’s MRB rules, FMCSA’s prior

position articulated in 2008 need not

forever remain static. 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). FMCSA’s

decisions preempting California’s MRB

rules acknowledged the Agency’s

changed interpretation of section 31141

and provided a reasoned explanation for

the new interpretation. See FCC v. Fox

Television Stations, Inc., 556 U.S. 502,

514–16 (2009). Similarly, this decision

explains the basis for the Agency’s

conclusion that Washington’s MRB

rules are laws on CMV safety, as applied

to drivers of property-carrying CMVs.

WELA argued that section 31141 gives

no indication that Congress intended

that the Agency’s preemption authority

extend to a State law that imposes

requirements in an area of regulation

that is within FMCSA’s section 31136

regulatory authority. WELA stated, ‘‘If

Congress had intended such a result, it

could (and would) have said so

explicitly.’’ The Agency disagrees. As

FMCSA explained in its decisions

preempting California’s MRB rules, the

Agency’s interpretation of section 31141

is consistent with congressional

purposes. Congress was concerned that

a lack of uniformity between Federal

and State laws on the same subject

matter could impose substantial

burdens on interstate truck and bus

operations, and potentially hamper

safety. See, e.g., 1984 Cong. Rec. 28215

(Oct. 2, 1984) (statement of Sen.

Packwood); id. at 28219 (statement of

Sen. Danforth). Accordingly, as the

Senate Report on the bill that became

the 1984 Act explained, the preemption

review provision was designed to

ensure ‘‘as much uniformity as

practicable whenever a Federal standard

and a state requirement cover the same

subject matter.’’ S. Rep. 98–424 at 14.

The Agency believes that the fact that a

State regulation may be broader than a

Federal safety regulation and impose

requirements outside the area of CMV

safety does not eliminate Congress’s

concerns. Such laws may still be

incompatible with Federal safety

standards or unduly burden interstate

commerce when applied to the

operation of a CMV.

Furthermore, the Agency continues to

find that its interpretation of section

31141 is consistent with the legislative

history of the 1984 Act. As originally

enacted, the 1984 Act granted the

Agency authority to promulgate

regulations ‘‘pertaining to’’ CMV safety,

and likewise to review State laws

‘‘pertaining to’’ CMV safety. Public Law

98–554 §§ 206(a), 208(a) (originally

codified at 49 U.S.C. App. 2505, 2507).

Congress amended these provisions

during the 1994 recodification of Title

49 of the United States Code. See Public

Law 103–272 (July 5, 1994), 108 Stat.

1008. As recodified, the law allows the

Agency to promulgate regulations and

review State laws ‘‘on commercial

motor vehicle safety,’’ rather than

‘‘pertaining to commercial motor

vehicle safety.’’ Compare 49 U.S.C. app.

2505 and 49 U.S.C. app. 2507 (1984)

with 49 U.S.C. 31136 and 49 U.S.C.

31141(c)(1). Congress made clear,

however, that any changes made during

its comprehensive effort to restructure

and simplify Title 49 ‘‘may not be

construed as making a substantive

change in the laws replaced.’’ Public

Law 103–272 §§ 1(e), 6(a). The change

in wording therefore did not narrow the

Agency’s rulemaking authority or the

scope of the State laws subject to

preemption review. Washington’s MRB

rules, as applied to drivers of property-

carrying CMVs subject to the HOS rules,

clearly ‘‘pertain to’’ CMV safety, as

Washington’s Governor and Attorney

General confirmed, and therefore fall

within the scope of section 31141. See,

e.g., ‘‘Pertain,’’ Black’s Law Dictionary

(11th ed. 2019) (‘‘To relate directly to;

to concern or have to do with.’’)

The Associations for Justice argued

that, ‘‘Congress and the Supreme Court

declined to preempt the rules, largely

because these laws are viewed as

important state employment protections

applicable across industries.’’ In this

regard, the Associations stated:

In the last two years, the motor carrier

industries have unsuccessfully tried to

preempt state meal and rest laws through the

legislative branch by amendments to the

recently passed Federal Aviation

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The Department of Labor and Industries further

explained that while meal periods may be unpaid

as long as employees are completely relieved from

duty, employees who are not relieved of all work

duties during the meal break must be paid. See

Department of Labor and Industries, Administrative

Policy ES.C.6.1, paragraph 6.

Employers are excepted from the requirement

to provide a rest period ‘‘Where the nature of the

work allows employees to take intermittent rest

periods equivalent to ten minutes for each 4 hours

worked.’’ WAC 296–126–092(5). The Department of

Labor and Industries defines an ‘‘intermittent rest

period’’ as ‘‘an interval of short duration in which

employees are allowed to rest, relax, and engage in

brief personal activities while relieved of all work

duties.’’ Department of Labor and Industries,

Administrative Policy ES.C.6.1, paragraph 12.

Administration Reauthorization Act of 2018.

See H.R.302 FAA Reauthorization Act of

2018, Public Law 115–254 (2018). Congress

decided not to include these amendments in

the final passage of the bill. Additionally, the

trucking industry also unsuccessfully tried to

preempt state meal-and-rest-break rules by

asking the U.S. Supreme Court to overturn

yet another court of appeals decision

upholding state meal and rest break laws.

Ortega v. J. B. Hunt Transport, Inc., 694 Fed.

Appx. 589 (9th Cir. 2017) (unpublished), cert.

denied, 138 S. Ct. 2601 (2018). The Supreme

Court declined the invitation, allowing the

rules to continue to be enforced.

The Agency finds this argument

unpersuasive. 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 Associations have presented

no evidence that Congress considered

the ‘‘precise issue’’ of whether State

meal and rest break laws are within the

Secretary’s preemption authority under

section 31141. Thus, what the

Associations portray as congressional

recognition that the MRB rules are

‘‘important state employment

protections applicable across

industries’’ should more appropriately

be called Congress’s failure to express

any opinion. See id. The Associations’

argument that the Supreme Court

declined to preempt meal and rest break

laws is equally flawed. In the matter of

Ortega v. J. B. Hunt Transport, Inc., the

question before the Ninth Circuit was

whether California’s MRB rules were

‘‘related to’’ prices, routes, or services,

and therefore as a matter of law

preempted by the FAAAA. See 694 Fed.

Appx. at 590. The Supreme Court

declined to review preemption of

California’s MRB rules under the

FAAAA, not under section 31141. And

even with respect to the FAAAA issue,

the Supreme Court’s ‘‘denial of a writ of

certiorari import[ed] no expression of

opinion upon the merits of the

case. . .’’ Missouri v. Jenkins, 515 U.S.

70, 85 (1995) (quoting United States v.

Carver, 260 U.S. 482, 490 (1923)).

The Associations for Justice also

argued that the Agency’s interpretation

of the scope of the phrase ‘‘on

commercial motor vehicle safety’’ in

section 31141 would ‘‘impose on the

Secretary an implausible, impractical

burden of reviewing many thousands of

background state rules and then

determining how their effect on safety

compares with federal requirements.’’

The Agency finds this argument without

merit. Title 49 CFR parts 350 and 355

set forth the process for FMCSA’s

continuous review of State laws and

regulations.

III. Washington’s MRB Rules Are

‘‘Additional to or More Stringent Than’’

the Agency’s HOS Rules for Property-

Carrying Vehicles Within the Meaning of

Section 31141

Having concluded that Washington’s

MRB rules, as applied to drivers of

property-carrying CMVs, are laws ‘‘on

commercial motor vehicle safety,’’

under section 31141, the Agency next

must decide whether they have the

same effect as, are less stringent than, or

are additional to or more stringent than

the Federal HOS rules for property-

carrying CMVs. 49 U.S.C. 31141(c)(1).

As described above, the Federal HOS

rules establish daily and weekly limits

on driving time for all drivers of

property-carrying CMVs operating in

interstate commerce and additionally

require long-haul truck drivers to take a

break from driving of at least 30 minutes

after 8 hours of driving time if they wish

to continue driving. 49 CFR 395.3(a)–

(b). Washington’s MRB rules require

employers to provide 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). To illustrate, the

Department of Labor and Industries

explained, ‘‘[A]n employee who

normally works a 12-hour shift shall be

allowed to take a 30-minute meal period

no later than at the end of each five

hours worked.’’ See Department of

Labor and Industries, Administrative

Policy ES.C.6.1, paragraph 5 (Dec. 1,

2017).

The Washington MRB rules

further provide, ‘‘Employees working

three or more hours longer than a

normal work day shall be allowed at

least one thirty-minute meal period

prior to or during the overtime period.’’

WAC 296–126–092(3). While an

employee may choose to waive the meal

period requirement, the employee may

rescind the waiver agreement at any

time. See Department of Labor and

Industries, Administrative Policy

ES.C.6.1, paragraph 8.

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 four hours of working

time, and no employee may be required

to work more than three consecutive

hours without a rest period. See

Department of Labor and Industries,

Administrative Policy ES.C.6.1,

paragraph 11. Employees may not waive

their right to a rest period. Id. at

paragraph 9.

Quoting the Agency’s 2018 decision

preempting California’s MRB rules,

WTA argued that because Washington’s

rules ‘‘‘require employers to provide

CMV drivers with more rest breaks than

the Federal HOS rules, and they allow

a smaller window of driving time before

a break is required’ . . . they are

additional to, and more stringent than,

the federal HOS rules.’’ In comparing

Washington’s and California’s MRB

rules, WTA stated, ‘‘In certain respects,

. . . Washington’s rules are more

restrictive than California’s. For

example, Washington requires a 30-

minute break somewhere between the

second and fifth hour of each five-hour

work period, while California’s

requirement only requires such a break

any time before the end of the fifth hour

of work.’’ The Agency agrees. The HOS

rules require long-haul truck drivers in

interstate commerce to take a 30-minute

break from driving within a specified

period; however, drivers are not

constrained as to when to take the break

within that period. While the HOS rules

do not require short-haul truck drivers

operating in interstate commerce to take

a driving break during the duty window,

both long- and short-haul drivers may

schedule rest periods as needed to avoid

driving while too fatigued to do so

safely, as the Federal regulations

prohibit. See 49 CFR 392.3.

Washington’s MRB Rules require

employers to provide CMV drivers with

more rest breaks than the Federal HOS

rules, and they allow a smaller window

of driving time before a break is

required.

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Under Washington law, ‘‘An employer may

apply to the director for an order for a variance from

any rule or regulation establishing a standard for

wages, hours, or conditions of labor adopted by the

director under this chapter. The director shall issue

an order granting a variance if the director

determines or decides that the applicant for the

variance has shown good cause for the lack of

compliance.’’ RCW 49.12.105.

‘‘‘Good cause’ means, but is not limited to,

those situations where the employer can justify the

variance and can prove that the variance does not

have a harmful effect on the health, safety, and

welfare of the employees involved.’’ WAC 296–

126–130(4).

The Department of Labor and

Industries did not deny that

Washington’s MRB rules require more

breaks than the HOS rules. The

Department of Labor and Industries

argued that the MRB rules are not more

stringent than the HOS rules because

employers can seek a variance to allow

for alternative scheduling of breaks. The

Agency disagrees with this argument.

Washington plainly requires more

breaks at more frequent intervals than

the HOS rules. Because of this,

employers of drivers of property-

carrying CMVs could not meet just the

minimum requirements of the Federal

HOS rules without violating the MRB

rules on their face. That alone is

dispositive of the relevant inquiry. See,

e.g., S. Rep. No. 98–424, at 14 (‘‘It is the

Committee’s intention that there be as

much uniformity as practicable

whenever a Federal standard and a State

requirement cover the same subject

matter. However, a State requirement

and a Federal standard cover the same

subject matter only when meeting the

minimum criteria of the less stringent

provision causes one to violate the other

provision on its face.’’)

In addition, while Washington law

provides that employers may receive a

variance from the MRB rules if the

employer can show ‘‘good cause,’’ the

Department of Labor and Industries

would determine if the employer met

the burden of showing that ‘‘good

cause’’ exists.

Thus, a variance is not

a matter of right for employers, and the

Department of Labor and Industries may

deny a variance request if it determines,

in its judgment, that the employer failed

to establish good cause. In addition, the

Department of Labor and Industries

‘‘may terminate and revoke the variance

at any time, as long as the employer is

given 30 days notice.’’ Department of

Labor and Industries, Administrative

Policy ES.C.9 (Jan. 2, 2002).

Washington’s MRB rules therefore are

‘‘additional to or more stringent than’’

the HOS rules.

IV. Washington’s MRB Rules Have No

Safety Benefits That Extend Beyond

Those That the FMCSRs Provide

Because Washington’s MRB rules, as

applied to drivers of property-carrying

CMVs, are more stringent than the

Federal HOS rules, they may be

enforced unless the Agency also decides

either that they have no safety benefit,

that they are incompatible with the HOS

rules, 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 three

conditions in paragraph (c)(4) exists to

preempt the MRB rules. Id.

Section 31141 authorizes the

Secretary to preempt Washington’s MRB

rules if they have ‘‘no safety benefit.’’ 49

U.S.C. 31141(c)(4)(A). Consistent with

the Agency’s decisions preempting

California’s MRB rules, FMCSA

continues to interpret this language as

applying to any State law or regulation

that provides no safety benefit beyond

the safety benefit that the relevant

FMCSA regulations already provide.

The statute tasks FMCSA with

determining whether a State law that is

more stringent than Federal law, which

would otherwise undermine the Federal

goal of uniformity, is nevertheless

justified. There would be no point to the

‘‘safety benefit’’ provision if it were

sufficient that the more stringent State

law provides the same safety benefit as

Federal law. 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

could be preempted.

A. Fatigue

WTA argued that Washington’s MRB

rules offer no safety benefits beyond

those already realized under Federal

regulations and that they ‘‘interfere with

the flexibility that is an important

component of the federal HOS rules.’’ In

its comments, ATA agreed, stating:

Washington’s break rules offer no prospect

of a safety benefit. The federal rules

themselves give drivers the absolute right to

take a break whenever they believe fatigue or

anything else renders them unable to drive

safely, 49 CFR 392.3, with stiff penalties for

motor carriers or customers who coerce them

not to exercise that right, id. § 390.6. Thus,

with respect to mitigating driver fatigue,

Washington’s rules provide federally-

regulated commercial drivers with nothing

they do not already enjoy under the federal

rules.

In joint comments, the National Propane

Gas Association and the Pacific Propane

Gas Association (collectively, ‘‘the

Propane Gas Associations’’) stated that

Washington’s MRB rules ‘‘do not

present [a] reasonable safety benefit for

the transportation of hazardous

materials.’’ Oak Harbor Freight Lines, a

company that employs more than 1,700

people in five western states,

commented that the company focuses

on its safety data, and, ‘‘ha[s] not seen

a difference in accident rates or other

safety concerns between [the

company’s] drivers who operate under

Washington’s rules and those operating

under DOT rules.’’

Other commenters discussed the lack

of flexibility under Washington’s MRB

rules. The National Industrial

Transportation League stated,

‘‘imposing the Washington standards

without any flexibility disincentivizes

drivers from taking breaks when they

truly are fatigued, as they are forced to

take the prescribed breaks when they

may not need them. This approach

increases rather than reduces the safety

risks associated with fatigued driving.’’

Similarly, Uline, an interstate property

carrier, commented that FMCSA’s HOS

rules ‘‘provide drivers with the

flexibility to take breaks when they

actually need them in order to reduce

accidents caused by fatigue or

exhaustion.’’

The Agency agrees with WTA. The

HOS rules and other provisions of the

FMCSRs establish a fatigue management

framework for drivers of property-

carrying CMVs that requires drivers to

take a 30-minute break from driving

after eight hours of drive time, prohibits

a driver from operating a CMV if she

feels too fatigued or is otherwise unable

to drive safely, and prohibits employers

from coercing a driver too fatigued to

operate the CMV safely to remain

behind the wheel. See 49 CFR

395.3(a)(3)(ii), 392.3, 390.6. For short-

haul drivers who are exempt from

FMCSA’s 30-minute break requirement,

the Federal regulations sufficiently

mitigate the risk of crashes by

prohibiting fatigued driving and

coercion. The HOS rules, moreover,

prohibit drivers of property-carrying

CMVs 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. The Agency

believes that this framework is

appropriate because it provides some

level of flexibility while still prohibiting

a driver from operating a CMV when too

fatigued to do so safely. Washington’s

additional requirements that breaks be

of specific durations, and occur within

specific intervals, do not provide

additional safety benefits. In addition,

interposing the MRB rules on top of the

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Agency’s framework eliminates the

regulatory flexibilities provided and

requires the driver to stop the CMV and

log off duty at fixed intervals each day

regardless of the driver’s break schedule

or actual level of fatigue. FMCSA notes,

moreover, that the HOS rules are the

product of multiple rounds of thorough

consideration of the best ways to ensure

CMV safety, extending through the

issuance of the recent final rule. See 85

FR 33396 (June 1, 2020). Washington’s

generally-applicable requirements, in

contrast, are not tailored to the specific

circumstances of the motor carrier

industry, and do nothing to enhance the

safety benefits that FMCSA’s

comprehensive, tailored regulations

already provide.

The Department of Labor and

Industries contended that Washington’s

MRB rules have safety benefits and

attached the following studies, reports,

and other documents, totaling more

than 350 pages, to its comments:

1. Susan A. Soccolich, et al., An Analysis of

Driving and Working Hour on

Commercial Motor Vehicle Driver Safety

Using Naturalistic Data Collection, 58

Accident Analysis and Prevention 249

(2013);

2. Kun-Feng Wu, Paul Jovanis, Effect of

Driving Breaks and 34-hour Recovery

Period on Motor Carrier Crash Odds, In:

Proceedings of the Sixth International

Driving Symposium on Human Factors

in Driver Assessment, Training and

Vehicle Design, Lake Tahoe, California

(2011);

3. Paul P. Jovanis, et al., Effects of Hours of

Service and Driving Patterns on Motor

Carrier Crashes, Transportation Research

Board, Journal of the Transportation

Research Board, No. 2231, p 119–127

(2012);

4. Myra Blanco, et al., The Impact of Driving,

Non-Driving Work, and Rest Breaks on

Driving Performance in Commercial

Motor Vehicle Operations, Federal Motor

Carrier Safety Administration, FMCSA–

RRR–11–017 (2011);

5. Lianzhen Wang, Yulong Pei, The Impact

of Continuous Driving Time and Rest

Time on Commercial Drivers’ Driving

Performance and Recovery, 50 Journal of

Safety Research 11 (2014);

6. Sergio Garbarino, et al., Sleep Apnea,

Sleep Debt and Daytime Sleepiness Are

Independently Associated with Road

Accidents. A Cross-Sectional Study on

Truck Drivers, PLoS ONE, e0166262

(2016);

7. Lynn Meuleners, et al., Determinants of

The Occupational Environment and

Heavy Vehicle Crashes in Western

Australia: A Case–Control Study, 99

Accident Analysis and Prevention 452

(2017);

8. Wash. State Emp’t Security Dep’t, 2018

Labor Market and Economic Report;

9. Wash. State Dep’t of Licensing, 2018

Statistics At-a-Glance;

10. Guang X. Chen, et al., NIOSH National

Survey of Long-Haul Truck Drivers:

Injury and Safety, 85 Accident Analysis

& Prevention 66 (2015);

11. Federal Motor Carrier Safety

Administration, CMV Driving Tips—

Driver Fatigue;

12. Department of Labor and Industries,

Administrative Policy ES.C.6.1 (2017);

13. Chen and Yuanchang Xie, Modeling the

Safety Impacts of Driving Hours and Rest

Breaks on Truck Drivers Considering the

Dependent Covariates, 51 J. Safety

Research 57 (Dec. 2014);

14. Chen and Yuanchang Xie, The Impacts of

Multiple Rest Break Periods on

Commercial Truck Drivers’ Crash Risk,

48 J. Safety Research 87 (2014);

15. National Transportation Safety Board,

2017–2018 Most Wanted List, Reduce

Fatigue Related Accidents (2017);

16. National Transportation Safety Board,

Safety Recommendation, H–94–005, H–

94–006 (1994);

17. National Transportation Safety Board,

Safety Recommendation, H–95–005

(1995);

18. Ping-Huang Ting, et al., Driver Fatigue

and Highway Driving: A Simulator

Study, 94 Physiology & Behavior 448

(2008).

While the Department of Labor and

Industries did not make a specific

argument about most of the documents

appended to its comments, it made

reference to a few of them. In this

regard, the Department of Labor and

Industries quoted the Agency’s CMV

Driving Tips on driver fatigue, which

state, ‘‘[Thirteen] percent of commercial

motor vehicle (CMV) drivers were

considered to have been fatigued at the

time of their crash.’’ See FMCSA, CMV

Driving Tips—Driver Fatigue, also

available at https://www.fmcsa.dot.gov/

safety/driver-safety/cmv-driving-tips-

driver-fatigue. The Driving Tips further

advise drivers to take a nap of at least

10 minutes when feeling drowsy. Id.

The Department of Labor and Industries

also cited two studies published in the

Journal of Safety Research and argued

that ‘‘commercial truck drivers’ safety

performance can deteriorate easily due

to fatigue caused by long driving hours

and irregular work schedules [and] that

increasing the number of rest breaks or

their duration helps to reduce crash

risk.’’ See The Impacts of Multiple Rest

Break Periods on Commercial Truck

Drivers’ Crash Risk and Modeling the

Safety Impacts of Driving Hours and

Rest Breaks on Truck Drivers

Considering the Dependent Covariates.

The Department of Labor and Industries

further argued that a study by the

National Institute of Occupational

Safety and Health (NIOSH) ‘‘found that

35% of long-haul truck drivers reported

at least one crash in the course of their

work as commercial drivers.’’ See

NIOSH National Survey of Long-Haul

Truck Drivers: Injury and Safety. The

Department of Labor and Industries also

cited the National Transportation Safety

Board’s (NTSB) Most Wanted List

concerning reducing fatigue-related

accidents. See NTSB 2017–2018 Most

Wanted List, Reduce Fatigue-Related

Accidents. In addition, the Associations

for Justice cited the NTSB Report,

Evaluation of U.S. Department of

Transportation Efforts in the 1990s to

Address Operator Fatigue and argued

that ‘‘the relevant safety issue is driver

fatigue and not inadequate truck

parking.’’ See NTSB Report SR–99/01

(1999).

FMCSA agrees with the Department of

Labor and Industries and the

Associations for Justice that drowsy

driving may cause crashes. The Agency

has reached the same conclusion and

has established a fatigue management

framework for drivers of property-

carrying CMVs that mitigates the risks

associated with drowsy driving. The

FMCSRs establish driving-time limits

and prohibit a driver from operating a

CMV when too fatigued to do so safely.

Washington’s MRB rules do not improve

upon the Federal regulatory framework.

The two Journal of Safety Research

studies the Department of Labor and

Industries cite found that ‘‘trips with

one or two rest breaks had significantly

lower odds’’ of a crash ‘‘compared to

trips without any breaks,’’ and that

‘‘having a third rest break did not have

a significant effect,’’ ‘‘indicating the

third rest break had very limited

impacts on reducing crash risk.’’

Modeling the Safety Impacts of Driving

hours and Rest breaks on Truck Drivers

Considering the Dependent Covarities at

62; see also The Impacts of Multiple

Rest Break Periods on Commercial

Truck Drivers’ Crash Risk at 88. In other

words, the studies support the Agency’s

conclusion that layering additional

break requirements over the Federal

HOS regulations—which require a 30-

minute break from driving and any

additional breaks that a driver finds

necessary to avoid unsafe fatigued

driving—does not provide additional

protection against the risks of fatigued

driving. The Jovanis study, Effects of

Hours of Service and Driving Patterns

on Motor Carrier Crashes, further

supports this conclusion. Journal of the

Transportation Research Board, No.

2231 at 126. Similarly, the NIOSH

National Survey of Long-Haul Truck

Drivers the Department of Labor and

Industries cites does not show that MRB

rules, such as Washington’s, provide an

additional safety benefit over the

Federal HOS regulations. Rather, the

purpose of the NIOSH survey was to

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NTSB Safety Recommendation H–94–005 may

be viewed at https://www.ntsb.gov/safety/safety-

recs/_layouts/ntsb.recsearch/

Recommendation.aspx?Rec=H-94-005. Safety

Recommendation H–94–006 may be viewed at

https://www.ntsb.gov/safety/safety-recs/_layouts/

ntsb.recsearch/Recommendation.aspx?Rec=H-94-

006.

NTSB Safety Recommendation H–95–005 may

be viewed at https://www.ntsb.gov/safety/safety-

recs/_layouts/ntsb.recsearch/

Recommendation.aspx?Rec=H-95-005.

NTSB Safety Recommendation H–99–019 may

be viewed at https://www.ntsb.gov/safety/safety-

recs/_layouts/ntsb.recsearch/

Recommendation.aspx?Rec=H-99-019.

‘‘bring to light a number of important

safety issues for further research and

interventions, e.g., high prevalence of

truck crashes, injury underreporting,

unrealistically tight delivery schedules,

noncompliance with hours-of-service

rules, and inadequate entry-level

training.’’ See NIOSH National Survey

of Long-Haul Truck Drivers: Injury and

Safety at 2.

With regard to the other materials that

the Department of Labor and Industries

appended but did not discuss, FMCSA

considered and discussed at length the

implications of the Blanco study, The

Impact of Driving, Non-Driving Work,

and Rest Breaks on Driving Performance

in Commercial Motor Vehicle

Operations, both in promulgating the

recent 2020 HOS final rule and in the

2011 HOS final rule. See 85 FR 33412,

33416–17, 33420, 33445; 76 FR 81147–

48, 54. In the 2011 HOS final rule,

which instituted the original Federal 30-

minute break requirement, FMCSA

explained that the ‘‘Blanco [study] also

showed that when non-driving activities

(both work- and rest-related) were

introduced during the driver’s shift—

creating a break from the driving task—

these breaks significantly reduced the

risk of being involved in a [safety

critical event] during the one-hour

window after the break.’’ See 76 FR

81148. The Agency again discussed the

Blanco study at length in issuing the

2020 final rule and noted that,

consistent with the changes to the

Federal 30-minute break requirement,

the study found that any type of break

(both off-duty, and on-duty not driving)

was beneficial to the driver. See 85 FR

33416–17, 33420. FMCSA applied the

findings of the Blanco study to the

Agency’s HOS rules and determined

that requiring drivers to take a 30-

minutes break from driving after 8 hours

of driving time provides safety benefits.

Id. Moreover, FMCSA’s prohibition

against fatigued driving requires drivers

to take additional rest as needed.

Nothing in the Blanco study supports

the conclusion that Washington’s MRB

rules provide additional safety benefits

not already realized under the HOS

rules and FMCSA’s regulatory

prohibitions on fatigued driving and

coercion.

With regard to the NTSB safety

recommendations the Department of

Labor and Industries cite,

recommendations H–94–005 and H–94–

006, addressed to FMCSA’s predecessor

agency, the Federal Highway

Administration (FHWA), pertained to

evaluating which bridges are vulnerable

to high-speed heavy-vehicle collision

and subsequent collapse.

That issue is

not relevant to the instant matter. NTSB

safety recommendation H–95–005,

addressed to FHWA, ATA, the

Professional Truck Driver Institute of

America, the Commercial Vehicle Safety

Alliance, and the National Private Truck

Council, asked the organizations to

develop a training and education

module to inform truck drivers of the

hazards of driving while fatigued. The

NTSB closed safety recommendation H–

95–005 and noted that FMCSA took

acceptable action on the

recommendation.

Safety

recommendation H–95–005 pertains to

fatigue management training for truck

drivers and in no way suggests that

Washington’s MRB rules provide

additional safety benefits. The

remaining studies that the Department

of Labor and Industries appended, two

of which examined CMV operations

under the rules of China and Australia,

do not demonstrate that Washington’s

MRB rules provide additional safety

benefits beyond those provided by the

HOS rules.

Citing the NTSB report, Evaluation of

U.S. Department of Transportation

Efforts in the 1990s to Address Operator

Fatigue, the Associations for Justice

argued that ‘‘the relevant safety issue is

driver fatigue and not inadequate truck

parking.’’ The Associations’ argument

fails. FMCSA believes that the issues of

fatigue and truck parking are relevant to

the Agency’s consideration of WTA’s

petition. In addition, the Agency notes

that as part of the report, the NTSB

addressed safety recommendation H–

99–019 to FHWA asking the Agency to,

‘‘Establish within 2 years scientifically

based hours-of-service regulations that

set limits on hours of service, provide

predictable work and rest schedules,

and consider circadian rhythms and

human sleep and rest requirements.’’

See Evaluation of U.S. Department of

Transportation Efforts in the 1990s to

Address Operator Fatigue at 26. The

NTSB closed safety recommendation H–

99–019 and noted that FMCSA took

acceptable alternate action on the

recommendation.

The Teamsters argued that

Washington’s MRB rules ‘‘ensure

drivers have alternative legal

protections in place helping to guard

them against predatory companies who

would rather pressure drivers into not

taking a break, even when the driver

feels it is physically necessary to do so.’’

The Agency is unpersuaded by the

Teamsters’ argument. As explained

above, the FMCSRs contain a

prohibition against coercion, and the

Teamsters point to no evidence showing

that the Federal prohibition is any less

effective than Washington’s MRB rules

in preventing coercion.

FMCSA determines that Washington’s

MRB Rules do not provide a safety

benefit not already provided by the

Federal regulations for property-

carrying CMV drivers.

B. Parking

WTA argued that Washington’s MRB

rules undermine safety ‘‘by artificially

exacerbating the shortage of safe truck

parking’’ and making it ‘‘more likely

that drivers will have to spend

additional time looking for parking

when they need rest, or resort to unsafe

places to park.’’ Several commenters

agreed. In this regard, ATA stated,

‘‘[T]he predictable effect of

Washington’s arbitrary break rules is to

exacerbate the shortage of safe and legal

truck parking, in Washington and

elsewhere . . . .’’ C.R. England

commented, ‘‘[I]t may be unsafe or

simply impossible for a driver to safely

stop a truck, find adequate or safe

parking, and leave the truck in order to

comply with Washington’s rest break

requirements. Other commenters, such

as Uline, Hoovestol, and the National

Industrial Transportation League also

echoed this sentiment. Uline stated,

‘‘The limited parking spots should be

used by workers actually in need of rest

and should not be occupied by drivers

that are merely complying with arbitrary

rest break laws.’’ The Truckload Carriers

Association cited a 2018 survey where

95 percent 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 Agency agrees that Washington’s

enforcement of the MRB rules could

exacerbate the problem of CMV drivers

parking at unsafe locations. The

shortage of safe, authorized parking

spaces for CMVs and the negative safety

implication of enforcing the MRB rules

is well-documented in FMCSA’s 2018

decision preempting California’s MRB

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The WSDOT Truck Parking Survey is available

in the docket for this preemption matter and may

also be downloaded at http://www.wsdot.wa.gov/

NR/rdonlyres/D2A7680F-ED90-47D9-AD13-

4965D6D6BD84/114207/TruckParkingSurvey2016_

web2.pdf.

The WSDOT Truck Parking Study is available

in the docket for this preemption matter and may

also be downloaded at https://www.wsdot.wa.gov/

Freight/truckparking.htm.

The WSDOT Truck Parking Study states that

drivers not engaging in interstate commerce are

required to follow only Washington’s MRB rules;

however, even drivers operating wholly within the

State of Washington may be operating in ‘‘interstate

commerce’’ as defined in the FMCSRs and thus

subject to both the Washington MRB rules and the

HOS rules. See 49 CFR 390.5T (definition of

‘‘interstate commerce’’).

Under 49 CFR 355.5, in effect in 2018,

‘‘Compatible or Compatibility’’ meant that State

laws and regulations applicable to interstate

commerce were ‘‘identical to the FMCSRs and the

HMRs’’ or had ‘‘the same effect as the

FMCSRs. . . .’’ See also 49 CFR 350.105 (2018).

rules for drivers of property carrying

CMVs. See 83 FR 67476–77. Among the

parking studies cited by the Agency in

the 2018 decision was a 2016 survey of

drivers by the Washington State

Department of Transportation (WSDOT)

showing that more than 60 percent 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).

WSDOT conducted the survey during

the development of a more

comprehensive Truck Parking Study,

also published in 2016.

WSDOT’s

Truck Parking Study cited the Federal

HOS rules and Washington’s MRB rules

as factors that drive a higher demand for

truck parking.

See WSDOT Truck

Parking Study at 13, 17–20. While

WSDOT recognized that ‘‘long-haul

drivers largely have different parking

needs than short-haul drivers,’’ the

Study included local delivery parking

among the types of truck parking

considered. See id. at 4, 9. The Study

found that, ‘‘The truck parking shortage

in Washington is likely getting worse,

with demand increasing and supply

potentially decreasing,’’ and that

highway exit and entrance ramps are the

third most used parking option for truck

drivers. Id. at 6. WSDOT’s Truck

Parking Study demonstrates that

Washington’s MRB rules contribute to

the demand for the State’s inadequate

truck parking.

Noting that there are 47 rest areas in

Washington, the Department of Labor

and Industries argued, ‘‘Washington has

not seen that the timing of rest breaks

cause problems with drivers finding

places to park.’’ The Department of

Labor and Industries further contended

that the Agency should consider that an

employer may seek a variance from the

MRB rules ‘‘to allow for alternative

scheduling of breaks.’’ The Teamsters

argued that while ‘‘parking is a serious

issue faced by some, mainly [over-the-

road] drivers’’ it does not pose a

problem for many other drivers. The

Teamsters continued:

The fact that there may be a shortage of

truck parking does not excuse a motor carrier

or driver from complying with either federal

or state laws. Meal and rest break protections

should not be thrown out for every driver in

Washington state because a small segment of

WTAs members claim they have issues with

truck parking.

The Agency is not persuaded by the

Department of Labor and Industries’

arguments. As described above, the

WSDOT Truck Parking Study showed

that the truck parking shortage in

Washington State is worsening, and it

cited Washington’s MRB rules as one of

the factors contributing to demand for

truck parking. The Agency is also

unpersuaded by the Department’s

argument that employers may seek a

variance to deal with the parking

problem. As explained above, the

Department of Labor and Industries

would determine if the employer met

the burden of showing that ‘‘good

cause’’ exists for a variance. The

Teamsters’ argument that the parking

shortage poses a problem only for

certain over-the-road drivers is also

unavailing. WSDOT’s Truck Parking

Study included local delivery parking in

evaluating truck parking supply and

demand factors. The Agency believes

that, due to the shortage of truck parking

in Washington, the increase in required

stops to comply with the MRB Rules

will exacerbate the problem of truck

drivers parking at unsafe locations—

such as ramps and shoulders—where

they present a serious hazard to other

highway users.

V. Washington’s MRB Rules Are

Incompatible With the Federal HOS

Rules for Property-Carrying CMVs

The Agency has determined that

Washington’s MRB rules are ‘‘additional

to or more stringent than a regulation

prescribed by the Secretary under

section 31136’’; therefore, they must be

preempted if the Agency also

determines that the MRB rules are

‘‘incompatible with the regulation

prescribed by the Secretary.’’ 49 U.S.C.

31141(c)(4)(B).

The Agency’s 2018 decision, which

applied the regulatory definition for

‘‘compatibility’’ that was in effect at that

time, 49 CFR 355.5 (2018),

determined

that California’s MRB rules are

incompatible with the HOS rules. Citing

that decision, WTA argued that

Washington’s MRB rules are similarly

incompatible. WTA contended that the

fact that Washington’s MRB rules

‘‘require more breaks than the federal

rules, with narrower constraints as to

timing, means that they are neither

identical to nor have the same effect as

the FMCSRs’’ and thus they are

incompatible. WTA continued,

‘‘Washington’s rules ‘significantly

reduce the flexibilities the Agency built

into the Federal HOS rules, and they

graft onto the Federal HOS rules

additional required rest breaks that the

Agency did not see fit to include.’’’

(Internal alterations omitted).

On June 24, 2020, FMCSA published

a final rule that amended the regulatory

definition for ‘‘compatible’’ as that term

is applied to a State law or regulation on

CMV safety that is in addition to or

more stringent than the FMCSRs. See 85

FR 37785 (Jun. 24, 2020). Under the

revised definition, codified at 49 CFR

350.105, ‘‘compatible’’ means State

laws, regulations, standards, and orders

on CMV safety that ‘‘if in addition to or

more stringent than the FMCSRs, have

a safety benefit, do not unreasonably

frustrate the Federal goal of uniformity,

and do not cause an unreasonable

burden on interstate commerce when

enforced.’’ (Emphasis added). The final

rule explained that the Agency amended

the definition of ‘‘compatibility’’ ‘‘to

align with and incorporate the standard

in 49 U.S.C. 31141(c) regarding when a

State may enforce a law, regulation,

standard, or order on CMV safety that is

in addition to or more stringent than the

FMCSRs.’’ 85 FR 37791. Thus, FMCSA

must decide whether Washington’s

MRB rules unreasonably frustrate the

Federal goal of uniformity and therefore

are incompatible with the Federal HOS

rules for property-carrying CMV drivers.

The Agency agrees with WTA and

finds that Washington’s MRB rules, as

applied to drivers of property-carrying

CMVs, are incompatible with the

Federal HOS rules because they

unreasonably frustrate the Federal goal

of uniformity. As described above,

Washington’s generally applicable MRB

rules require employers to provide

property-carrying CMV drivers with

meal and rest breaks of specified

duration at specific intervals. In

contrast, the HOS rules which are

tailored specifically to the CMV

industry, provide drivers flexibility in

deciding when to take the required 30-

minute break from driving. Short-haul

drivers are not required to take a rest

period under the HOS rules; however,

other provisions of the FMCSRs prohibit

all drivers from operating a CMV when

too fatigued to do so safely. Congress’s

clear intent for the 1984 Act was to

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The Associations for Justice argued that

FMCSA’s 2018 decision preempting California’s

MRB rules for drivers of property carrying CMVs

erroneously applied the regulatory definition for

‘‘compatible,’’ in effect in 2018 and further

contended that the Agency should not apply that

compatibility standard to this preemption

determination. As explained above, the Agency

applies the recently amended definition of

‘‘compatible;’’ therefore, this argument is moot.

The Agency notes that under Washington’s

MRB rules, a 10-minute rest period ‘‘means to stop

work duties, exertions, or activities for personal rest

and relaxation.’’ Department of Labor and

Industries, Administrative Policy ES.C.6.1 at

paragraph 10. This is an area of potential conflict

with the attendance and surveillance requirements

for drivers of CMVs transporting Division 1.1, 1.2,

or 1.3 explosives. See 49 CFR 397.5. Such a vehicle

‘‘must be attended at all times by its driver or a

qualified representative of the motor carrier that

operates it.’’ Id. The Federal HOS requirement for

drivers to take a 30-minute break from driving

provides an exception for drivers of CMVs carrying

Division 1.1, 1.2, or 1.3 explosives to allow them

to count on-duty time spent attending the CMV as

required by section 397.5 but doing no other on-

duty work, toward the break. See 49 CFR 395.1(q).

minimize disuniformity in the national

safety regulatory regime. See Public Law

98–554, title II § 202, 203 (‘‘The

Congress finds that . . . improved, more

uniform commercial motor vehicle

safety measures and strengthened

enforcement would reduce the number

of fatalities and injuries and the level of

property damage related to commercial

motor vehicle operations.’’); S. Rep. No.

98–424, at 14 (‘‘It is the Committee’s

intention that there be as much

uniformity as practicable whenever a

federal standard and a state requirement

cover the same subject matter.’’); see

also id. at 15 (‘‘In adopting this section,

the Committee does not intend that

States with innovative safety

requirements that are not identical to

the national norm be discouraged from

seeking better ways to protect their

citizens, so long as a strong safety need

exists that outweighs this goal of

uniformity.’’) Washington’s MRB rules

frustrate Congress’s goal of uniformity

because they abrogate the flexibility that

the Agency allows under the HOS rules.

This fact renders Washington’s MRB

rules incompatible.

The Department of Labor and

Industries argued that Washington’s

MRB rules are not incompatible with

the HOS rules because it is possible for

drivers to comply with both the MRB

and HOS rules. This argument is

unpersuasive. The Agency’s

compatibility determination 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.

The express preemption provision in

section 31141 does not require such a

stringent test. In any event,

Washington’s MRB rules actively

undermine Congress’s goal of

uniformity, as well as FMCSA’s

affirmative policy objectives by

abrogating the flexibility that the

Agency built into the HOS rules. That

would be sufficient to support a finding

of incompatibility even under the

conflict preemption test urged by the

Department of Labor and Industries.

FMCSA determines that Washington’s

MRB rules, as applied to drivers of

property-carrying CMVs, are

incompatible with the Federal HOS

rules.

VI. Enforcement of Washington’s MRB

Rules Would Cause an Unreasonable

Burden on Interstate Commerce

Washington’s 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 that

are unreasonable.

A. Decreased Productivity,

Administrative Burden, and Costs

WTA argued that, ‘‘Washington’s

break rules represent an unreasonable

burden on interstate commerce for

much the same reasons FMCSA recently

concluded California’s do.’’ In this

regard, WTA contended that the MRB

rules decrease each driver’s available

duty hours ‘‘by requiring additional off-

duty time, and additional ‘dead time’

associated with extra trips off the

highway to find places to take breaks

that do not coincide with otherwise

scheduled stops.’’ WTA further asserted

that ‘‘compliance with Washington’s

break rules further burdens interstate

commerce by imposing the same kinds

of administrative burdens the Agency

noted were imposed by California

law. . . .’’

Uline also described the decreased

productivity that results from

complying with Washington’s MRB

rules. In this regard, Uline stated,

‘‘Unnecessary burdens, like forcing

drivers to comply with both federal and

state laws which require more breaks,

slows down operations and restricts

drivers’ productivity.’’ Uline continued,

‘‘If our drivers are tired, we want them

to take a break. If our drivers are not

tired and it has not been 8 hours, we

should not force them to stop driving

and try to find a parking spot just to

[comply with] Washington law.’’

In addition to decreased productivity

resulting from complying with

Washington’s MRB rules, some

commenters also provided information

about the associated administrative

burden and costs. Oak Harbor Freight

Lines explained that complying with the

MRB rules adds time to the drivers’

workday and stated, ‘‘Washington’s

rules add a substantial burden to

delivery of freight.’’ The Propane Gas

Associations stated:

[C]ompliance with Washington Meal and

Rest Break rules cause a decrease in

transportation movement and, potentially, a

decrease in the number of end-users served

in a given work period. Thus, end-users may

suffer delays in the deliveries. To overcome

potential delays to end-users, employers may

seek to hire additional drivers along with

significant additional expenses for more

commercial vehicles, equipment, training,

etc. These are considerable capital

investments strictly to maintain timely

deliveries to current end-users in order to

comply with the Washington rules.

C.R. England explained, ‘‘Compliance

with the MRB rules requires a reworking

of freight lanes and transit times, in

addition to increased non-driver

personnel time and resources in order to

evaluate the impact of the requirements,

rework freight lanes and transit times,

and ensure compliance.’’ The National

Industrial Transportation League

commented that the increased

administrative burden and costs

associated with complying with

Washington’s MRB rules impact not

only carriers but also shippers and

receivers. In this regard, the League

stated, ‘‘shippers and receivers . . . are

forced to juggle their own workforce and

production planning as drivers must

stop work to meet the arbitrarily

mandated breaks as required by the

Washington rule.’’

The Agency agrees with WTA that

complying with Washington’s MRB

rules unreasonably burdens interstate

commerce. It is indisputable that

Washington’s MRB rules, like

California’s, decrease each driver’s

available duty hours as compared to the

Federal HOS rules. The Agency

acknowledges that even without

Washington’s MRB rules, many drivers

would sometimes take breaks beyond

those required by the HOS rules. It is

nevertheless clear that Washington’s

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, the comments demonstrate

that complying with Washington’s MRB

rules also imposes significant

administrative burdens.

The Department of Labor and

Industries disputed that complying with

the MRB rules is an unreasonable

burden on interstate commerce. In this

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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices

The 2018 Labor and Market Economic Report

is available for download at https://esd.wa.gov/

labormarketinfo/annual-report.

According to the National Conference of State

Legislatures and the Associations for Justice, the

following States have meal and rest break laws:

California, Colorado, Connecticut, Delaware,

Illinois, Kentucky, Maine, Maryland,

Continued

regard, the Department of Labor and

Industries cited Washington’s annual

Labor and Economic Report, which

showed that the ‘‘transportation,

warehousing, utilities’’ industry

experienced more than 2 percent annual

growth in employment and ranking it

third on the list of private sector

industries. See Wash. State Emp’t

Security Dep’t, 2018 Labor and Market

Economic Report, at 17.

The

Department of Labor and Industries

argued, ‘‘It is simply incorrect to posit

that requiring employers to continue to

follow longstanding break laws will

cause economic breakdown.’’ The

Department of Labor and Industries

mischaracterizes FMCSA’s conclusion.

The Agency does not find that

Washington’s MRB rules will ‘‘cause

economic breakdown;’’ rather, FMCSA

finds that the MRB rules unreasonably

burden interstate commerce. Moreover,

it is not appropriate for the Department

of Labor and Industries to rely on the

employment growth in the

transportation, warehousing, and

utilities sector to argue that enforcing

Washington’s MRB rules does not

unreasonably burden interstate

commerce. While FMCSA believes that

Washington’s employment growth is

commendable, it is not evidence that

Washington’s MRB rules do not

unreasonably burden commerce among

the States.

Citing the Agency’s 2018 decision

applying the standard set forth in Pike

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

(1970), the Department of Labor and

Industries also contended that ‘‘The

standard to determine an unreasonable

burden is taken from the dormant

Commerce Clause case law: Whether

there is an unreasonable burden is

whether the burden imposed is clearly

excessive in relation to the putative

local benefits derived from the State

law.’’ The Department of Labor and

Industries quoted Exxon Corp. v.

Governor of Maryland, 437 U.S. 117,

128 (1978), to argue further that, ‘‘Under

this test, to have a burden on interstate

commerce, the state regulation must

substantially burden the ‘the flow of

interstate goods.’ Operational challenges

do not stop the free flow of interstate

goods.’’ Citing Nat’l Ass’n of

Optometrists & Opticians v. Harris, 682

F.3d 1144, 1152 (9th Cir. 2012), the

Department of Labor and Industries

stated, ‘‘Operational challenges do not

stop the free flow of interstate goods.

Nor does loss of profit or market share.’’

The Agency disagrees that the standard

for determining if a State law

unreasonably burdens interstate

commerce under section 31141 is taken

from dormant Commerce Clause case

law and finds it inappropriate to rely on

Exxon Corp. v. Governor of Maryland

and Nat’l Ass’n of Optometrists &

Opticians v. Harris. In Exxon Corp., the

Supreme Court considered whether a

Maryland statute that, among other

things, prohibited producers or refiners

of petroleum products from operating

retail service stations within the State,

violated the Commerce Clause.

Similarly, in Nat’l Ass’n of Optometrists

& Opticians, the U.S. Court of Appeals

for the Ninth Circuit considered

whether California laws prohibiting

opticians and optical companies from

offering prescription eyewear at the

same location in which eye

examinations were provided, and from

advertising that eyewear and eye

examinations were available in the same

location, violated the dormant

Commerce Clause. FMCSA

acknowledges that it suggested in the

2018 decision preempting California’s

MRB rules for property-carriers that the

test for determining whether a State law

unreasonably burdens interstate

commerce under section 31141 is the

same as or similar to the test for

determining whether a State law

violates the dormant Commerce Clause.

See 83 FR 67478. Upon further

consideration, however, FMCSA has

since concluded that nothing in the text

of section 31141 or elsewhere suggests

that only unconstitutional State laws

can cause an unreasonable burden on

interstate commerce. See 86 FR 3479–

80. Congress chose not to preempt the

field governing CMV safety, but it also

sought to create a regulatory regime

with considerable uniformity. It tasked

the Secretary with ensuring that State

laws that disrupt an otherwise uniform

Federal scheme do not pose an undue

burden on interstate commerce, but

nothing suggests that Congress was

concerned only with burdens of

constitutional dimension. In any event,

even if FMCSA could find an

unreasonable burden on interstate

commerce only by finding that the

burdens on commerce are clearly

excessive in relation to putative local

benefits, that standard would easily be

met here. As discussed above, there is

no evidence that Washington’s MRB

rules provide a safety benefit beyond the

benefits already provided by the Federal

HOS rules. The significant burdens

identified by WTA and the commenters

thus are clearly excessive. Based on the

foregoing, FMCSA concludes that the

MRB rules cause an unreasonable

burden on interstate commerce.

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. 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).

Citing the Agency’s 2018 decision, WTA

argued that, like California’s MRB rules,

Washington’s rules contribute to a

patchwork of differing State meal and

rest break rules that constitute an

unreasonable burden on interstate

commerce. Several commenters also

described the burden resulting from

differing State meal and rest break laws.

Oak Harbor Freight Lines explained that

the company operates terminals in

different States and employs drivers

who may live in one State and have

their home terminal in another. The

carrier explained, ‘‘Attempting to

decipher which meal-and-rest break

rules applies to each of those drivers is

a challenge only a lawyer could love,

and none of our terminal managers or

local supervisors are attorneys.’’

Hoovestol stated, ‘‘The varying meal

and rest break rules from state to state

have harmed our ability to reliably set

rates, operate safely, and subjected us to

opportunistic efforts to extract

significant legal settlements.’’ The

carrier continued, ‘‘Individual state

rules work to the detriment of the level

of safety provided by the federal HOS

rules by forcing multiple breaks at

arbitrary intervals when they are not

needed.’’ The National Industrial

Transportation League commented,

‘‘[A]llowing different commercial driver

break rules in various States would

exacerbate confusion among shippers,

drivers and carriers, create unnecessary

complexity, and undermine compliance.

A patchwork quilt of meal and rest

break rules would translate into

substantial additional decreases in

efficiency and productivity.’’

The Agency agrees. To date, 20 States

in addition to Washington regulate, in

varying degrees, meal and rest break

requirements, as the National

Conference of State Legislatures and the

Associations for Justice have pointed

out.

However, these laws are not

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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices

Massachusetts, Minnesota, Nebraska, Nevada, New

Hampshire, New York, North Dakota, Oregon,

Rhode Island, Tennessee, Vermont, Washington,

and West Virginia.

consistent. Oregon, for example,

requires employers to provide a 30-

minute break to employees who work 6

hours or more. See Or. Admin. R. 839–

020–0050(2). No meal period is required

if the shift is less than 6 hours; if the

shift is less than 7 hours, the meal

period must commence between 2 and

5 hours from the beginning of the shift;

and if the shift is longer than seven

hours, the meal period must begin

between 3 and 6 hours from the

beginning of the shift. Id. Nevada, by

contrast, requires employers to provide

a 30-minute break to employees who

work a continuous 8 hours at any point

during that period. See Nev. Rev. Stat.

Ann. § 608.019. And, as described

above, Washington’s MRB rules require

that employers provide a 30-minute

meal break for every 5 hours worked,

which must commence between 2 and

5 hours from the beginning of the shift.

See WAC 296–126–092. In preempting

California’s MRB rules under section

31141, the Agency determined that the

diversity of State regulation of required

meal and rest breaks for CMV drivers

has resulted in a patchwork of

requirements. See 83 FR 67479–80. The

Agency finds that the same holds true

for Washington’s MRB rules. As

described by the commenters, this

diversity of State regulation has

significantly decreased productivity and

increased administrative burdens and

costs.

The Department of Labor and

Industries contended that Washington’s

MRB rules do not contribute to the

multiplicity of varying State meal and

rest break laws. In this regard, it argues

that ‘‘Washington’s break laws do not

apply just because someone drives a

truck through Washington.’’ Citing

Bostain v. Food Exp., Inc., 153 P.3d 846

(Wash. 2007), the Department of Labor

and Industries further asserted, ‘‘The

break laws apply only to Washington

employers of Washington-based

employees.’’ The Teamsters argued 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 Teamsters also

argued that, ‘‘Truck size and weight

restrictions are different on state and

local roads than on the federal highway

system.... Yet no one is calling for

the preemption of state size and weight

rules.’’ The Associations for Justice

argued, ‘‘The trucking and bus

industries have engaged in a strategy of

targeting specific state laws one at a

time for FMCSA preemption.’’

The Agency finds the Department of

Labor and Industries’ argument on the

narrow application of Washington’s

rules unavailing. It is immaterial

whether Washington’s MRB rules apply

only to those drivers based in

Washington. The fact remains that the

disparity in State regulation has resulted

in a multiplicity of requirements that

are burdensome to apply. It may be

difficult to determine whether a

particular driver is ‘‘based in

Washington,’’ and other States’ rules

may purport to regulate even those

drivers that Washington deems

‘‘Washington-based.’’ The Agency is

also unpersuaded by the Teamsters’

traffic regulation analogy. 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 tolling are well

outside the scope of the Agency’s

statutory authority, and CMV size and

weight restrictions on portions of the

Federal-aid highway system are within

the purview of FHWA. See 23 U.S.C.

127, 145; 49 U.S.C. 31111; 49 CFR 1.85.

Therefore, the extent to which the

‘‘assortment of state or local

regulations’’ the International

Brotherhood of Teamsters cite

unreasonably burden interstate

commerce, if at all, as compared to the

MRB Rules is not relevant to the

Agency’s determination. The Agency

also rejects the Associations for Justice’s

argument. Nothing in section 31141

prohibits a petitioner from seeking a

preemption determination concerning

the laws of one State, even where other

States have similar laws.

Having concluded that Washington’s

MRB rules unreasonably burden

interstate commerce, the Agency further

determines that the cumulative effect of

other States’ similar laws would

increase the burden.

Preemption Decision

As described above, FMCSA

concludes that: (1) Washington’s 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 FMCSA’s HOS

rules; (2) Washington’s MRB rules are

additional to or more stringent than

FMCSA’s HOS rules; (3) Washington’s

MRB rules have no safety benefit; (4)

Washington’s MRB rules are

incompatible with FMCSA’s HOS rules;

and (5) enforcement of Washington’s

MRB rules would cause an unreasonable

burden on interstate commerce.

Accordingly, FMCSA grants WTA’s

petition for preemption and determines

that Washington’s MRB rules are

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

Effective the date of this decision,

Washington may no longer enforce the

MRB rules with respect to drivers of

property-carrying CMVs subject to

FMCSA’s HOS rules.

James W. Deck,

Deputy Administrator.

[FR Doc. 2020–25155 Filed 11–16–20; 8:45 am]

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No. DOT–OST–2020–0232]

Agency Information Collection

Activities: Renewed Approval of

Information Collection

AGENCY

: Office of the Secretary (OST),

DOT.

ACTION

: 60-Day notice and request for

comments.

SUMMARY

: The Department of

Transportation (DOT) invites public

comments on our intention to request

Office of Management and Budget

(OMB) approval for an information

collection in accordance with the

requirements of the Paperwork

Reduction Act of 1995. The collection is

necessary for administration of the

‘‘Discretionary Grants for Nationally

Significant Freight and Highway

Projects (FASTLANE/INFRA) Program’’.

FASTLANE/INFRA grants support

surface transportation infrastructure

projects that have a significant local or

regional impact.

DATES

: Written comments should be

submitted by January 19, 2021.

ADDRESSES

: To ensure that you do not

duplicate your docket submissions,

please submit them by only one of the

following means:

•Federal eRulemaking Portal: Go to

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the online instructions for submitting

comments.

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Washington's Meal and Rest Break Rules for Drivers of Commercial Motor Vehicles; Petition for Determination of Preemption

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