2020-00835. California's Meal and Rest Break Rules for Drivers of Passenger-Carrying 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:

The FMCSA grants the petition submitted by the American Bus Association (ABA) requesting a determination that the State of California's Meal and Rest Break rules (MRB rules) are preempted under 49 U.S.C. 31141 as applied to passenger-carrying commercial motor vehicle drivers subject to FMCSA's hours of service 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. The FMCSA has determined that California's MRB rules are laws on commercial motor vehicle (CMV) safety, that they are more stringent than the Agency's hours of service regulations, that they have no safety benefits that extend beyond those already provided by the Federal Motor Carrier Safety Regulations, that they are incompatible with the Federal hours of service regulations, and that they cause an unreasonable burden on interstate commerce. The California MRB rules, therefore, are preempted under 49 U.S.C. 31141(c).

FOR FURTHER INFORMATION CONTACT:

Charles J. Fromm, Deputy Chief Counsel, Office of the Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, [phone]; email [e-mail].

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 to read background documents or comments, go to http://www.regulations.gov or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The FDMS is available 24 hours each day, 365 days each year.

Privacy Act: Anyone may search the FDMS for all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's Privacy Act Statement for the FDMS published in the Federal Register on December 29, 2010. 75 FR 82132.

Background

On January 10, 2019, ABA petitioned FMCSA to preempt California statutes and rules requiring employers to give their employees meal and rest breaks during the work day, as applied to drivers of passenger-carrying CMVs subject to FMCSA's hours of service (HOS) regulations. For the reasons set forth below, FMCSA grants the petition.

California Meal and Rest Break Rules

Section 512, Meal periods, of the California Labor Code reads, in part, as follows:

“(a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”

“(b) Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.”

Section 516 of the California Labor Code reads, in relevant in part, as follows:

“(a) Except as provided in Section 512, the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers.”

Section 226.7 of the California Labor Code reads, in relevant part, as follows:

“(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission. . . .”

“(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, . . . the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided.”

Section 11090 of Article 9 (Transport Industry) of Group 2 (Industry and Occupation Orders) of Chapter 5 (Industrial Welfare Commission) of Division 1 (Department of Industrial Relations) of Title 8 (Industrial Relations) of the California Code of Regulations, is entitled “Order Regulating Wages, Hours, and Working Conditions in the Transportation Industry” hereafter: “8 CCR section 11090” or “section 11090.” ^[1] Section 11090(11). Meal Periods, reads as follows:

“(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee.”

“(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”

“(C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”

“(D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided.”

“(E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated.”

Section 11090(12). Rest Periods, reads as follows:

“(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”

“(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided.”

Although section 11090(3)(L) provides that “[t]he provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation, Code of Federal Regulations, Title 49, sections 395.1 to 395.13, Hours of Service of Drivers,” the California courts have interpreted the word “section” to refer only to section 11090(3), which regulates “hours and days of work,” not to all of section 11090, including meal and rest breaks in section 11090(11) and (12). See Cicairos v. Summit Logistics, Inc., 133 Cal App. 4th 949 (2006).

Federal Preemption Under the Motor Carrier Safety Act of 1984

Section 31141 of title 49, United States Code, a provision of the Motor Carrier Safety Act of 1984 (the 1984 Act), 49 U.S.C. Chap. 311, Subchap. III, prohibits States from enforcing a law or regulation on CMV safety that the Secretary of Transportation (Secretary) has determined to be preempted. To determine whether a State law or regulation is preempted, the Secretary must decide whether a State law or regulation: (1) Has the same effect as a regulation prescribed under 49 U.S.C. 31136, which is the authority for much of the Federal Motor Carrier Safety Regulations; (2) is less stringent than such a regulation; or (3) is additional to or more stringent than such a regulation. 49 U.S.C. 31141(c)(1). If the Secretary determines that a State law or regulation has the same effect as a regulation based on section 31136, it may be enforced. 49 U.S.C. 31141(c)(2). A State law or regulation that is less stringent may not be enforced. 49 U.S.C. 31141(c)(3). And a State law or regulation the Secretary determines to be additional to or more stringent than a regulation based on section 31136 may be enforced unless the Secretary decides that the State law or regulation (1) has no safety benefit; (2) is incompatible with the regulation prescribed by the Secretary; or (3) would cause an unreasonable burden on interstate commerce. 49 U.S.C. 31141(c)(4). To determine whether a State law or regulation will cause an unreasonable burden on interstate commerce, the Secretary may consider the cumulative effect that the State's law or regulation and all similar laws and regulations of other States will have on interstate commerce. 49 U.S.C. 31141(c)(5). The Secretary need only find that one of the conditions set forth at paragraph (c)(4) exists to preempt 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 FMCSA Administrator by 49 CFR 1.87(f).

Federal Motor Carrier Safety Regulations (FMCSRs) Concerning HOS for Drivers of Passenger-Carrying CMVs, Fatigue, and Coercion

For drivers operating a passenger-carrying CMV in interstate commerce, the Federal HOS rules allow up to 10 hours of driving time following 8 consecutive hours off duty, and driving is prohibited after the operator has accumulated 15 hours of on-duty time.^[2] 49 CFR 395.5(a). The 15-hour on-duty limit is non-consecutive; therefore, any time that a driver spends off-duty does not count against the 15-hour window.^[3] While the HOS rules for passenger-carrying CMVs impose limits after which driving is prohibited, they do not mandate a 30-minute rest period within the drive-time window, unlike the HOS rules for property-carrying CMVs. The HOS rules also impose weekly driving limits. In this regard, drivers are prohibited from operating a passenger-carrying CMV after having been on duty 60 hours in any 7 consecutive days, if the employing motor carrier does not operate CMVs every day of the week; or after having been on duty 70 hours in any period of 8 consecutive days, if the employing motor carrier operates CMVs every day of the week. 49 CFR 395.5(b).

Additionally, the FMCSRs prohibit a driver from operating a CMV, and a motor carrier from requiring a driver to operate a CMV, while the driver is impaired by illness, fatigue, or other cause, such that it is unsafe for the driver to begin or continue operating the CMV. 49 CFR 392.3. The FMCSRs also prohibit a motor carrier, shipper, receiver or transportation intermediary from coercing a driver to operate a CMV in violation of this and other provisions of the FMCSRs. 49 CFR 390.6.

The ABA Petition and Comments Received

As set forth more fully below, ABA argues that California's MRB rules are within the scope of the Secretary's preemption authority under section 31141 because they are laws “on commercial motor vehicle safety.” In this regard, ABA cites the Agency's 2018 Decision finding that the MRB rules are preempted under section 31141, as applied to drivers of property-carrying CMVs subject to the HOS rules. Additionally, ABA argues that the MRB rules “undermine existing Federal fatigue management rules” and “require drivers to take breaks that might be counterproductive to safety.” The ABA also contends that the MRB rules “conflict with driver attendance needs,” that they are “untenable” due to inadequate parking for CMVs, and that they make it difficult to comply with the Federal regulations governing passenger service responsibility and terminal facilities. Lastly, ABA argues that “compliance costs create an unreasonable burden on interstate commerce.” The ABA's petition seeks an FMCSA determination that California's MRB rules, as applied to passenger-carrying CMV drivers who are subject to the HOS rules, are preempted pursuant to 49 U.S.C. 31141 and, therefore, may not be enforced.

The FMCSA published a notice in the Federal Register on May 9, 2019, seeking public comment on whether California's MRB rules, as applied to drivers of passenger-carrying CMVs, are preempted by Federal law. 84 FR 20463. Although preemption under section 31141 is a legal determination reserved to the judgment of the Agency, FMCSA sought comment on issues raised in ABA's petition or otherwise relevant. While the public comment period ended on June 10, 2019, the Agency accepted all public comments submitted through November 7, 2019. The Agency received 28 comments, with 20 in support of the petition and 8 in opposition.^[4] The Agency considered all the comments received. They are discussed more fully below.

The Agency's Prior Decisions Regarding Preemption Under Section 31141

I. FMCSA's Decision Rejecting a Petition for a Preemption Determination

On July 3, 2008, a group of motor carriers ^[5] petitioned FMCSA for a determination under 49 U.S.C. 31141(c) that: (1) The California MRB rules are regulations on CMV safety, (2) the putative State regulation imposes limitations on a driver's time that are different from and more stringent than Federal “hours of service” regulations governing the time a driver may remain on duty, and (3) that the State law should therefore be preempted. 73 FR 79204.

On December 24, 2008, the Agency denied the petition for preemption, reasoning that the MRB rules are merely one part of California's comprehensive regulation of wages, hours, and working conditions, and that they apply to employers in many other industries in addition to motor carriers. 73 FR 79204. The FMCSA concluded that the MRB rules were not regulations “on commercial motor vehicle safety” within the meaning of 49 U.S.C. 31141 because they applied broadly to all employers and not just motor carriers, and that they therefore were not within the scope of the Secretary's statutory authority to declare unenforceable a State motor vehicle safety regulation that is inconsistent with Federal safety requirements.^[6] Ibid. at 79205-06.

II. FMCSA's 2018 Decision Granting Petitions To Preempt the MRB Rules

In 2018, the American Trucking Associations (ATA) and the Specialized Carriers and Rigging Association (SCRA) 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 already covered by a Federal regulation designed to ensure motor vehicle safety. The 2018 petitioners also provided evidence that California's meal and rest break laws were detrimental to the safe operation of CMVs.

The FMCSA published a notice in the Federal Register seeking public comment on whether the California MRB rules should be declared preempted. 83 FR 50142 (Oct. 4, 2018). The Agency sought public comments in order to make an informed decision on issues relevant to the determination, including what effect California's rules had on interstate motor carrier operations. Ibid. In total, FMCSA received more than 700 comments, and several letters from members of Congress.

On December 21, 2018, FMCSA issued a determination declaring the MRB rules preempted with respect to operators of property-carrying motor vehicles 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. Ibid. at 67473-74. The Agency explained that its 2008 Decision was “unnecessarily restrictive” and not supported by either the statutory language or legislative history. Ibid. The Agency considered the fact that 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.” Ibid. at 67473. The Agency further determined that because California's MRB rules plainly regulated the same conduct as the Federal HOS regulations, 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 regulations. 83 FR 67474-75. The FMCSA found that the MRB rules require employers to provide property-carrying CMV drivers with more rest breaks than the Federal HOS regulations; and allow a smaller window of driving time before a break is required. Ibid.

The Agency next explained that because the MRB rules are more stringent, they may be preempted if the Agency determined that that MRB rules have no safety benefit, that they are incompatible with HOS regulations, or that enforcement of the MRB rules would cause an unreasonable burden on interstate commerce. 83 FR 67475. The FMCSA found that the 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. Ibid. at 67475-77. The Agency also determined that the MRB rules were incompatible with the Federal HOS regulations because they required employers to provide CMV drivers with more breaks, at less flexible times, than the Federal HOS regulations. Ibid. at 67477-78.

Lastly, the Agency determined that enforcing the 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. Ibid. at 67478-79. The Agency also considered the cumulative effect on interstate commerce of similar laws and regulations in other States. Currently 20 other 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. Ibid. 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.

Decision

I. Section 31141 Expressly Preempts State Law Therefore the Presumption Against Preemption Does Not Apply

In their comments, the International Brotherhood of Teamsters (the Teamsters) and the American Association for Justice contend that California's MRB rules are subject to a presumption against preemption. Citing the Agency's amicus brief in Dilts v. Penske, the Teamsters argue that the MRB rules fall within an area of California's traditional police power and thus are subject to the presumption. The American Association of Justice argues that the presumption requires FMCSA to adopt “the reading that disfavors pre-emption” in interpreting section 31141.

The presumption against preemption is a canon of statutory interpretation employed by courts 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 FMCSA acknowledges that “in all preemption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, [there] is an assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (alterations omitted). 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 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.

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 preempts State laws on commercial motor vehicle safety. Thus, the MRB rules are not subject to a presumption against preemption, and the question that FMCSA must answer is whether the MRB rules, as applied to drivers of passenger-carrying CMVs, should be preempted under section 31141.

II. The California MRB Rules, as Applied to Drivers of Passenger-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 the 2008 Decision, the Agency narrowly construed section 31141 to conclude that because the MRB rules are “one part of California's comprehensive regulations governing wages, hours and working conditions,” and apply to employers in many other industries in addition to motor carriers, the provisions are not regulations “on commercial motor vehicle safety,” and, thus, were not within the scope of the Secretary's preemption authority. 73 FR 79204, 79206. The FMCSA reconsidered this conclusion and explained in its 2018 Decision 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 the FMCSA's HOS regulations, which were enacted pursuant to the Secretary's authority in section 31136, they are “regulations on commercial motor vehicle safety.” Thus, the MRB rules are “State law[s] or regulation[s] on commercial motor vehicle safety,” and are subject to review under section 31141. 83 FR 67470.

Consistent with the reasoning in the 2018 Decision, the Agency finds 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.

Regarding California's MRB rules, as applied to drivers of passenger-carrying CMVs, ABA argues that the MRB rules “require[ ] meal and rest breaks of fixed durations and at mandated intervals throughout the work day so as to prevent fatigue-related incidents.” The ABA further contends that, “The fact that the FMCSA has promulgated regulations for commercial truck and bus drivers in 49 CFR part 395 addressing the very hours of service and break issues encompassed in the California MRB Rules underscores that the State rules are requirements `on commercial motor vehicle safety.' ” The Agency agrees. As explained above, the Federal HOS rules for passenger-carrying CMVs have long imposed drive time limits for drivers. While the HOS rules do not include a mandated 30-minute rest period, they regulate how long a driver may operate a passenger-carrying CMV before an off-duty period is required. The Federal regulations also prohibit drivers from operating CMVs when fatigued, and thus 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 the HOS and MRB rules impose requirements for off-duty periods. Therefore, the Agency determines that, because the HOS and MRB rules cover the same subject matter, the MRB rules, as applied to drivers of passenger-carrying CMVs, are laws on CMV safety.

California's Labor Commissioner, California's Attorney General, the American Association for Justice, the Teamsters, and other commenters who oppose ABA's petition argue that the Agency's analysis and conclusions in the 2018 Decision were incorrect and that FMCSA should revert to the legal position articulated in the 2008 Decision and in the Government's amicus brief in Dilts v. Penske. California's Labor Commissioner and Attorney General further contend the Agency's 2018 Decision “improperly changed the agency's position and expanded the preemptive scope of the statute” and that the MRB rules are “are employment laws of general applicability rather than regulations on commercial motor vehicles” as the Agency determined in 2008 and in its Dilts amicus brief. The FMCSA disagrees with this argument. As the Agency explained in the 2018 Decision, its 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). The Agency's 2018 Decision acknowledged the 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 the MRB rules are laws on CMV safety, as applied to drivers of passenger-carrying CMVs. Irrespective of the whether the MRB rules have general applicability to employers and workers in the State, when they are applied to CMV drivers, they govern the same conduct as the Federal HOS rules. Therefore, they are laws on CMV safety.

FMCSA's 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) (1994). Congress made clear, however, that any changes made during their 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. California's MRB rules clearly “pertain to” CMV safety as applied to drivers of passenger-carrying CMVs subject to the HOS rules, and therefore fall within the scope of section 31141. See, e.g., “Pertain,” Dictionary.com, https://www.dictionary.com/​browse/​pertain (definition 1) (“to have reference or relation; relate.”).

The Agency's interpretation is also 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); ibid. 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 (1984). 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.

In their comments, the Labor Commissioner and Attorney General also argue that the Agency should not preempt the MRB rules because the “FMCSA specifically declined to regulate rest periods for drivers of passenger-carrying commercial motor vehicles and the Federal commercial motor vehicle safety regulations are only intended to be `minimum safety standards.' ” The Agency finds this argument unpersuasive. As explained above, both the MRB rules, as applied to drivers of passenger-carrying CMVs, and the Federal HOS rules limit the amount of time that a driver may work before an off-duty period is required. In comments on ABA's petition, the ATA correctly pointed out that the Agency made the affirmative decision in 2003 not to subject drivers of passenger-carrying CMVs to the same HOS rules as property-carriers because of operational considerations that distinguish bus drivers from truck drivers with respect to fatigue. See 68 FR 22456, 22462 (Apr. 28, 2003). Irrespective of the fact that the HOS rules for passenger-carrying CMVs do not include a provision requiring a 30-minute rest break, both the HOS and the MRB rules govern the same subject matter—how long a driver may drive before a required off-duty period. The absence of a 30-minute break provision in the HOS rules for passenger carriers does not mean that California's MRB rules are not laws on CMV safety.

As the Agency noted in the 2018 Decision, in response to the ATA and SCRA petitions regarding property-carrying CMVs, the California Labor Commissioner acknowledged that the MRB rules improve driver and public safety. Here, in response to ABA's petition, the Labor Commissioner and the Attorney General “reaffirm that California's meal and rest period requirements promote driver and public safety.” These statements further demonstrate that the MRB rules are rules “on CMV safety” and, therefore, fall squarely within the scope of the Secretary's preemption authority.

III. The MRB Rules Are “Additional to or More Stringent Than” the Agency's HOS Regulations for Passenger-Carrying Vehicles Within the Meaning of Section 31141

Having concluded that the MRB rules, as applied to drivers of passenger-carrying CMVs, are laws “on commercial motor vehicle safety,” under section 31141, the Agency next must decide whether the MRB rules have the same effect as, are less stringent than, or are additional to or more stringent than the Federal HOS regulations for passenger-carrying CMVs. 49 U.S.C. 31141(c)(1).

As explained above, the HOS rules prohibit a driver from operating a passenger-carrying CMV for more than 10 hours following 8 consecutive hours off duty, or for any period after having been on duty 15 hours following 8 consecutive hours off duty. 49 CFR 395.5(a). The 15-hour on-duty limit is non-consecutive; therefore, any time that a driver spends off-duty does not count against the 15-hour duty window. While the HOS regulations permit drivers of passenger-carrying CMVs to take time off duty in the middle of a duty period for a rest break and extend the 15-hour window in which they may drive, the rules do not require that they do so. Conversely, not only do the MRB rules require employers to provide passenger-carrying CMV drivers with meal and rest breaks, they are required to provide them at specified intervals. Therefore, California's MRB rules are additional to or more stringent than the HOS regulations.

California's Labor Commissioner and Attorney General do not deny that the MRB rules require employers to provide for breaks during the work day while the Federal HOS regulations for passenger-carrying CMVs do not. Citing Augustus v. ABM Security Services, Inc., 385 P.3d 823 (Cal. 2016), and Murphy v. Kenneth Cole Prods., Inc., 155 P.3d 284 (Cal. 2007), they argue in their comments that the MRB rules are not “additional to or more stringent than” the Agency's HOS regulations because under the MRB rules, employers may either provide the required meal and rest periods or pay additional wages. The Labor Commissioner and Attorney General assert that California law permits employers to pay higher wages as an alternative to complying with the MRB rules, and that the MRB rules therefore are not more stringent that the HOS regulations.

The Agency disagrees. As FMCSA explained in its December 2018 Decision, California law prohibits an employer from requiring an employee to work during a mandated meal or rest break, and provides for additional pay as a remedy for violating that prohibition. Cal. Labor Code 226.7(b)-(c). The California Supreme Court has held that section 226.7 “does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay,” and that “an employer's provision of an additional hour of pay does not excuse a section 226.7 violation.” Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160, 1168 (Cal. 2012) (emphasis in original).^[7] This ruling is not undercut by the two cases cited by the Labor Commissioner and Attorney General. While it is true that the California Supreme Court stated in Augustus v. ABM Security Services, Inc. that “employers who find it especially burdensome to relieve their employees of all duties during rest periods” could provide the extra hour of pay, it emphasized that this “option[ ] should be the exception rather than rule, to be used” only in the context of “irregular or unexpected circumstances such as emergencies.” 385 P.3d at 834 & n.14. And while the California Supreme Court in Murphy v. Kenneth Cole Prods., Inc. held that the extra hour of pay is “wages” for statute of limitations purposes, that ruling predated Kirby by six years, and is not inconsistent with Kirby's holding that an employer does not have a lawful choice to ignore the MRB rules. Indeed, the California Supreme Court in Kirby specifically noted that its decision was consistent with Murphy. See Kirby, 274 P.3d at 1168 (“[T]o say that a section 226.7 remedy is a wage . . . is not to say that the legal violation triggering the remedy is nonpayment of wages. As explained above, the legal violation is nonprovision of meal or rest breaks. . . .”). Accordingly, the MRB rules do not give employers the option of either complying with the requirements or providing the additional hour of pay.^[8]

Employers of passenger-carrying CMV drivers complying with the minimum requirements of the HOS regulations would nevertheless be 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.”). The MRB rules therefore are “additional to or more stringent than” the HOS regulations.

IV. The MRB Rules Have No Safety Benefits That Extend Beyond Those Provided by the FMCSRs

Because the MRB rules, as applied to drivers of passenger-carrying CMVs, are more stringent than the Federal HOS regulations, they may be enforced unless the Agency also decides either that the MRB rules have no safety benefit, that they are incompatible with the HOS regulations, or that enforcement of the MRB rules would cause an unreasonable burden on interstate commerce. 49 U.S.C. 31141(c)(4). The Agency need only find that one of the aforementioned conditions exists to preempt the MRB rules. Ibid.

Section 31141 authorizes the Secretary to preempt the MRB rules if they have “no safety benefit.” 49 U.S.C. 31141(c)(4)(A). Consistent with the 2018 Decision, FMCSA continues to interpret this language as applying to any State law or regulation that provides no safety benefit beyond the safety benefit already provided by the relevant FMCSA regulations. 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.

The ABA argues that California's MRB rules “undermine existing federal fatigue management rules.” In this regard, ABA contends:

Under the MRB rules, drivers are required to take periodic breaks at certain times regardless of whether the driver feels fatigued. At other times, when the driver might actually feel fatigued, the driver might feel obligated to continue the trip because of the delay already caused by taking the designated break under California law. FMCSA has determined that providing the driver with flexibility to determine when to take a break, based on the driver's own physiology, traffic congestion, weather and other factors, will encourage safer driving practices than simply mandating a break at designated intervals. The MRB Rules act counter to this FMCSA mandate and the flexibility the FMCSA rules allow.

In its comments on ABA's petition, ATA agreed, stating that “specifying multiple arbitrary breaks, even when a driver is not fatigued, makes it less likely that a driver will take a break when he or she is fatigued.” The Truckload Carriers Association also noted that “flexibility will empower drivers to rest when they are feeling fatigued, regardless of how long they have been in the driver's seat that day or how far they are from their final destination.” This sentiment was also echoed by other commenters, such as the Greater California Livery Association and the National Limousine Association. Additionally, the United Motorcoach Association stated, “The application of the California Meal and Rest Break rules clearly endangers passengers and the traveling public. Any suggestion that a bus or motorcoach driver can simply pull off to the side of the road and `rest' while 50+ passengers sit patiently behind the driver is wildly mistaken.”

Citing several National Transportation Safety Board (NTSB) studies, safety recommendations, and the NTSB 2019-2020 Most Wanted List addressing issues surrounding fatigue-related highway accidents, the California Labor Commissioner and Attorney General contend that the MRB rules support the public safety goal of reducing fatigue-related accidents. In addition, the Labor Commissioner and Attorney General point out that FMCSA commissioned an Evidence Report to assess and characterize the relationship between crash and fatigue in generally healthy motorcoach drivers.^[9] They contend that the Evidence Report described studies that showed “that a 30-minute rest break reduced the incidence of `safety critical events' while others showed that long-haul truck drivers who napped had a significantly lower incidence of crash or near-crash.” The Labor Commissioner and Attorney General added that “the timeframe for incidence of crash maps closely to the timeframe for California's meal and rest periods.” They argue that because the HOS rules for passenger-carrying CMVs do not require drivers to take the same 30-minute rest period applicable to property-carrying CMVs, “FMCSA cannot conclude, as it did in the December 2018 preemption determination regarding property-carrying commercial motor vehicles, that California's meal and rest period requirements `do not provide additional safety benefits.'” Accordingly, they conclude that “it defies logic to suggest that the safety of bus drivers and their precious human cargo is not enhanced by the State's break requirements.” The Amalgamated Transit Union, the Transportation Trades Department/AFL-CIO, the Teamsters, and the American Association for Justice make similar arguments and cite publications by the NTSB and others to show that CMV drivers' safety performance can easily deteriorate due to fatigue.

The Agency disagrees that the absence of a 30-minute break requirement in the HOS rules for drivers of passenger-carrying CMVs, unlike property-carriers, renders it impossible for the Agency to find that that the MRB rules provide no safety benefit beyond the Federal regulations. The FMCSA has long recognized that there are operational differences between commercial passenger carriers and commercial freight carriers and that those differences require different fatigue management measures. In this regard, the Agency's 2003 HOS final rule did not propose any changes to the Federal HOS rules for drivers of passenger-carrying CMVs because the Agency determined that the nature of passenger-carrier operations requires a different framework for fatigue management than the HOS rules for property-carrier operations which includes more flexibility to accommodate operational challenges presented in passenger carrier transportation. 68 FR 22456, 22461 (Apr. 28, 2003). In addition, when the Agency revised the HOS rules in 2011 to mandate a 30-minute off-duty rest period for drivers operating property-carrying CMVs, the Agency did not impose a similar requirement on drivers of passenger-carrying CMVs. 76 FR 81134, 81186. In response to a commenter who opposed different HOS rules for property- and passenger-carriers, the Agency explained, “[T]he HOS rules are not one-size-fits-all.” Ibid. at 81165. The Agency's decision in 2011 not to impose a 30-minute rest period requirement for passenger-carrying CMVs was appropriate given the nature of bus operations, where drivers may stop and rest at times that coincide with passenger rest stops.

The ABA and several commenters have described the operational differences. In this regard, ABA points out, “In looking at a bus driver's schedule in practice, a scheduled service driver often will take multiple breaks during intermediate stops along a schedule. These will occur whenever practical, such as when all passengers disembark for a food or restroom break.” Similarly, the United Motorcoach Association explains that “most charter drivers take their meals with the groups.” Coach USA notes that “charter/tour drivers are able to take breaks while their passengers are out sightseeing” and further explains that “buses operating on long trips take pre-scheduled breaks for the benefit of the drivers and passengers. . . .” Greyhound Lines (Greyhound) noted that a typical schedule would be “structured to provide the driver and passenger a safe and comfortable meal and rest stop at the approximate half-way point of the trip.”

The Federal regulations establish a fatigue management framework for drivers of passenger-carrying CMVs that prohibits a driver from operating a CMV if she feels too fatigued or is otherwise unable to safely drive and that prohibits employers from coercing a driver too fatigued to operate the CMV safely to remain behind the wheel. 49 CFR 392.3, 390.6. In addition, the Federal HOS rules provide for a nonconsecutive 15-hour duty window that gives drivers flexibility to schedule off-duty breaks at times that accord with the passenger itinerary or travel schedule and with the driver's actual level of fatigue. 49 CFR 395.5(a). The HOS rule in conjunction with FMCSRs prohibiting fatigued driving and coercion sufficiently mitigate the risk that fatigued driving would lead to crashes. Additionally, the Agency believes that this framework is appropriate because it provides the flexibility needed for passenger carrier operations while still prohibiting a driver from operating a CMV when too fatigued to safely do so. Interposing the MRB rules on top of the Agency's framework eliminates the regulatory flexibilities provided and requires the driver to stop the bus and log off duty at fixed intervals each day regardless of the driver's break schedule or actual level of fatigue. The Agency determines that the MRB rules provide no safety benefit beyond the safety benefit already provided by the Federal regulatory framework for passenger-carrying CMVs.

The Agency acknowledges the dangers of fatigued driving. However, the Labor Commissioner and the Attorney General mischaracterize one of the statements quoted from the Evidence Report. In evaluating the question “How much rest does a fatigued professional driver need to resume driving unimpaired,” the Evidence Report did, in fact, state that studies found that “a 30-minute rest break reduced the incidence of `safety critical events.'” However, that statement was made in relation to drivers of property-carrying CMVs. Evidence Report: Fatigue and Motorcoach/Bus Driver Safety at 84. With regard to passenger-carrying CMVs, the Evidence Report explained that, “No included studies assessed only motorcoach drivers or presented data in a manner that allowed us to specifically address this driver group.” Ibid. The Agency notes that the Labor Secretary has provided no data or research to show that California's MRB rules have led to a reduction in fatigue-related crashes among passenger-carrying CMVs.

The ABA further argues that a “lack of adequate parking also makes the MRB rules untenable.” In this regard, ABA cites the Agency's finding in the 2018 Decision that the increase in required stops to comply with the MRB Rules, when the driver may not be fatigued, will exacerbate the problem of property-carrying CMV drivers parking at unsafe locations. The ABA contends that “[b]us drivers face an even more difficult task than truck drivers to find a parking space and safely park the vehicle several times each day in order to comply with the California requirements while ensuring that the passengers are safely accommodated.” The United Motorcoach Association explained, “[A] bus or motorcoach parked on the side of the road while a driver `rests' poses a crash risk from traffic.” The Truckload Carrier's Association stated, “While the lack of safe truck parking is already an issue at the forefront of our industry, it is conceivably even worse for buses as they are more restricted than trucks as to where they can park given that they are transporting human cargo.” The National Limousine Association, Coach USA and other commenters also advanced similar arguments.

The Agency agrees that California'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 rules for drivers of property carrying CMVs. See 83 FR 67476-77. The Agency adopts that reasoning here. If a passenger-carrying CMV driver resorted to stopping at an unsafe location—such as a highway shoulder and ramp—to comply with the MRB rules, such an action would present a safety hazard to the passengers, the driver, and other highway users.

In sum, the MRB rules abrogate the flexibilities provided by the Federal HOS rules for passenger-carrying CMVs without an added safety benefit. Therefore, FMCSA determines that the MRB rules do not provide a safety benefit not already realized under the FMCSRs.

V. The MRB Rules Are Incompatible With the Federal HOS Regulations for Passenger-Carrying CMVs

The Agency has determined that the 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 1984 Act limits the scope of the Agency's inquiry in this regard to a State law's compatibility with a regulation prescribed under section 31136. The ABA argues that the MRB rules conflict with various regulatory provisions that were not prescribed pursuant to the authority of section 31136.^[10] Because the provisions cited were not prescribed pursuant to section 31136, they fall outside the scope of a section 31141 compatibility analysis. Therefore, the Agency has limited its compatibility analysis to the question of whether the MRB rules are incompatible with the HOS rules for passenger-carrying CMVs, which were prescribed pursuant to section 31136.

Regarding the MRB rules' compatibility with the HOS rules, ABA argues that “the timing requirements for meal and rest breaks under the MRB rules remove the flexibility allowed under the federal HOS regulations, thus making the MRB rules incompatible with the federal HOS regulations.” Similarly, Coach USA stated, “Under the federal HOS rules applicable to motor passenger carriers, bus drivers have the flexibility to take breaks when they need breaks, and when they can safely do so consistent with the need to monitor the bus and the passengers at all times. These federal rules have proven their worth in terms of bus safety; incompatible state regulations such as California's can only add confusion to the bus sector.”

The American Association for Justice argues that FMCSA erred in applying the regulatory definition for “compatibility,” found at 49 CFR 355.5, in the Agency's 2018 Decision preempting the MRB rules for drivers of property carrying CMVs.^[11] In this regard, the American Association for Justice states, “If only laws that are `identical' to federal rules could meet this standard, as ATA and ABA claim, then every state law that is `additional to or more stringent' than federal law would meet this requirement and be preempted.” The California Labor Commissioner and Attorney General make a similar argument.

The Agency finds that the MRB rules, as applied to drivers of passenger-carrying CMVs, are incompatible with the Federal HOS regulations. Assuming arguendo that the Agency's application of the regulatory definition of “compatible” is inconsistent with Congress's intent, FMCSA need not rely on the fact that the MRB rules are not “identical to” or “have the same effect” as the HOS rules to find them incompatible. Congress's clear intent for the 1984 Act was to minimize disuniformity in the national safety regulatory regime. See Pub. L. 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 ibid. 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.”). As described below, the MRB rules frustrate Congress's goal of uniformity because they abrogate the flexibility that the Agency allows under the HOS rules. This fact alone renders the MRB rules incompatible.

California's MRB rules require employers to provide passenger-carrying CMV drivers with meal and rest breaks of specified duration at specific intervals. With regard to meal break timing, the California Supreme Court clarified that, in the absence of a waiver, California law “requires a first meal period no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work. Brinker Restaurant Corp. v. Superior Court, 273 P.3d 513, 537 (Cal. 2012). As discussed infra, an employer must relieve the employee of all duty and employer control during the meal break. Ibid. at 533. On-duty meal breaks (breaks occurring on the jobsite) are permissible under California law “only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement” the employer and employee mutually agree to an “on-the-job paid meal period.” Ibid. California interprets the circumstances justifying on-duty meal periods very narrowly, and any agreement consenting to on-the-job breaks may be revoked by the employee at any time. See generally Abdullah v. U.S. Security Associates, Inc., 731 F.3d 952, 958-60 (9th Cir. 2013). While employers do not have an affirmative obligation to ensure that the employee stops working, they do have an obligation to make reasonable efforts to ensure that the employee can take a 30-minute uninterrupted break, free from all responsibilities. Ibid. at 535-37. With regard to rest period timing, the California Supreme Court explained, “Employees are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” Ibid. at 529. In contrast to the required meal breaks, employers may never require their employees to remain “on call” during these mandatory rest periods. Augustus v. ABM Sec. Servs., Inc., 385 P.3d at 832. In contrast, the HOS rules do not mandate breaks at specified intervals. Instead, the HOS rules allow, but do not require, drivers of passenger-carrying CMVs the flexibility to take off-duty breaks as necessary, and other provisions of the FMCSRs prohibit a driver from operating a CMV when too fatigued to safely do so.

The Labor Commissioner and the Attorney General contend that the MRB rules are not incompatible with the HOS rules because they “impose an obligation to provide required meal and rest periods or to simply provide an additional hour of pay for not providing the break (assuming an exemption has not been granted for the rest period requirement, and that there is no waiver of the meal period or agreement to an on-duty meal period).” This argument is also unavailing. As explained supra, in Kirby v. Immoos Fire Protection, Inc., the California Supreme Court held that section 226.7 “does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay,” and that “an employer's provision of an additional hour of pay does not excuse a section 226.7 violation.” 274 P.3d at 1168 (emphasis in original). In addition, while California's regulations authorize the Labor Commissioner to grant an employer an exemption from the 10-minute rest break requirement, such exemptions are granted at the Labor Commissioner's discretion, and there is no provision for an exemption from the 30-minute meal break requirement.^[12] See Cal. Code Regs. tit. 8, 11090 (IWC Order 9-2001), subd. 17. Lastly, while the Labor Commissioner and the Attorney General mention that the meal break may be waived, it may only be waived by the mutual consent of the employer and employee, and if the employee's shift is of sufficient length to require two 30-minute meal breaks, both may not be waived. See Cal. Code Regs. tit. 8, 11090 (IWC Order 9-2001), subd. 11(A)-(B).

The Teamsters contend that “California's rule in no way conflicts with Federal regulations.” This argument also fails. 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, California'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 Teamsters.

The FMCSA determines that the MRB rules, as applied to drivers of passenger-carrying CMVs, are incompatible with the Federal HOS regulations.

VI. Enforcement of the MRB Rules Would Cause an Unreasonable Burden on Interstate Commerce

The MRB rules may not be enforced if the Agency decides that enforcing them “would cause an unreasonable burden on interstate commerce.” 49 U.S.C. 31141(c)(4)(C). Section 31141 does not prohibit enforcement of a State requirement that places an incidental burden on interstate commerce, only burdens that are unreasonable.

A. Operational Burden and Costs

The ABA argues that complying with the MRB rules is operationally burdensome because the rules require that drivers be relieved of all duty during the mandated meal and rest breaks, which do not permit a driver to attend to passenger needs. The ABA also argues that complying with the MRB rules compromises operators' ability to meet passenger itinerary and scheduling requirements. The ABA further contends that the cost of complying with MRB rules unreasonably burdens interstate commerce.

In describing the operational burden caused by the MRB rules' requirement that drivers be relieved of all duty, ABA explains:

Under the California MRB rules, when the bus driver logs off duty to take the required meal or rest breaks, the driver must be “relieved of all duty” for the break period, unless the “nature of the work prevents an employee from being relieved of all duty,” and the employee enters into a revocable written agreement to remain on duty. Calif. Wage Order 9 11(C). This is simply not feasible for typical intercity bus operations. Drivers cannot leave the bus, the passengers and their baggage and other belongings for ten or 30 minutes several times each day, abdicating all responsibility for the safety or security of the passengers or property on the bus.

The ABA asserts that “during the MRB mandated `breaks' it is unreasonable to assume that the driver may simply disavow any responsibility for the passengers, their belongings or the coach.” The ABA states that while a driver may agree to waive a mandated break, the driver may rescind such an agreement at any time, thus such a waiver agreement affords no certainty to the carrier.

The ABA also argues that complying with the MRB rules compromises operators' ability to meet scheduling requirements. In this regard, ABA states, “[I]ntercity bus companies providing scheduled service typically offer interline connections with other motor carriers through the National Bus Traffic Association and also with Amtrak. They have designated and agreed times at which the services will meet, and passengers will transfer from one carrier to another.” The ABA further explains, “Charter and tour bus operators, while typically not interlining with other carriers, also have dedicated schedules and service obligations to their passengers. They frequently must meet time constraints to deliver their passengers to a scheduled athletic contest, an artistic performance, or other timed event.” The ABA concludes that requiring a driver to comply with the MRB rules “while accounting for traffic, weather, passenger rest stop needs and other disruptions, makes it inconceivable that a carrier could reliably meet the requirements of these service obligations.”

In addition, ABA further contends that the cost of complying with the MRB rules unreasonably burdens interstate commerce, stating, “The cost of compliance with the meal and rest break rules are staggering. Nor are these costs hypothetical.” The ABA states, “Requiring additional driving time and/or drivers would change the fundamental nature of bus service. Buses would no longer offer the most affordable source of intercity passenger transportation.”

Several commenting motor carriers also described the operational burdens imposed by the MRB rules. Greyhound expressed concern about the requirement that drivers be relieved of all duty during meal breaks under the MRB rules, stating, “During rest stops, Greyhound drivers are still responsible for the safety and security of the bus as well as passengers. The driver must ensure the safe de-boarding of passengers and their safe and timely re-boarding, ensure the bus remains secure, answer passenger questions, retrieve luggage if requested and respond to emergency situations.” Greyhound argues, “The nature of the job prohibits a completely duty-free break in the majority of locations where the driver may stop.” Greyhound states that a driver cannot be relieved of all duty during MRB rule mandated breaks without other Greyhound personnel present. Coach USA stated:

Even during scheduled meal and rest breaks, a driver cannot safely be relieved of all duty. During a scheduled meal stop, for example, all passengers exit the vehicle, and the driver secures the bus and then begins his or her meal break. During these breaks, Coach drivers sometimes are required to address emergency passenger situations that arise, such as a passenger who needs urgent access to her insulin or another who needs to access an EpiPen left on the bus to deal with an allergic reaction. Passengers also sometimes need bus access for any number of other reasons, such as having left money needed to purchase food on the bus. If the bus is locked and secured and the driver has left the area of the bus to take a California-rule mandated off-duty break, these passengers will face real problems. Further, passengers with mobility impairments may also need attention, including assistance in boarding and de-boarding the bus. In these situations, drivers cannot ignore a passenger's urgent needs, yet could not meet those needs to the extent they are required by California regulation to be relieved of all duty.

Transportation Charter Services commented that complying with the MRB rules interferes with operational schedules and service connections. The company explained that the driver's daily itinerary is determined by the group chartering the bus and that passenger meal, rest, and view point stops are scheduled based on travel times between destinations, which do not always coincide with the break time required by the MRB rules. Other commenters including H & L Charter Co., Pacific Coachways Charter Services, Best Limousines & Transportation, Royal Coach Tours, Sierra Pacific Tours, the California Bus Association, and Classic Charter made similar arguments.

In addition, several commenters described the ways in which complying with the MRB rules compromises operators' ability to meet scheduling requirements. Coach USA explained, “Such mandated stops make it difficult, if not impossible, for bus carriers to meet schedules that passengers expect them to meet.” Coach USA further stated, “Passengers depend on such schedules to make connections and timely arrive at their destinations. The California rules impair the ability of bus carriers to provide the timely and efficient service passengers expect and thus unduly burden commerce.” Coach USA also said that the unpredictability of driving conditions is already a burden that bus carriers need to deal with while maintaining schedules and that “[a]dding mandatory rest and meal breaks at given hours into the mix of factors that impact schedules will make keeping such schedules all the more difficult, burdening the ability of carriers to meet their interstate commerce obligations.”

Greyhound explained that its network “is an interlocking interstate system of schedules which connect with other buses of Greyhound, other intercity bus companies, local transit, Amtrak and other modes at hundreds of locations in California and across the country.” Greyhound argued that if a driver stops to take a required break, “that stop will jeopardize connections throughout the system that interstate passengers rely on.” Greyhound said that it carried 769,566 interstate passengers in the last fiscal year who either started or finished their journeys at a California location. The company contends, “All of these passengers face potential disruptions to their trips because of missed connections or delayed arrivals and departures caused by the inflexibility of the MRB Rules on the one hand and the vagaries of California traffic on the other.”

Mr. Thomas Miller, an airport shuttle and charter bus operator, also described administrative and operational burdens associated with complying with the MRB rules and how they affect scheduling. He explained, “California laws with respect to the 5-hour meal break rules do not work in the bus and charter operator business. Traffic is so unpredictable you cannot stay legal 100% of the time.” Mr. Miller further stated, “We require our drivers to take an unpaid rest break at the airport even if the total round trip is under 5 hours. They hate it, they would rather have it at home on their split shift.”

Several commenters discussed the need to have additional personnel present with the driver to attend to passenger needs or the need to undertake other measures in order to comply with the MRB rules. In this regard, the United Motorcoach Association commented that “The California MRB needlessly extends a driver's workday and . . . will periodically require a relief driver to avoid exceeding driving and/or on-duty limits to accommodate the California MRB.” Similarly, Greyhound stated that complying with the requirement that drivers be relieved of all duty is impracticable without other Greyhound personnel present. Coach USA stated, “Commerce would be further burdened if carriers were forced to meet the California rules by hiring two drivers. . . . Not only would this impose extraordinary cost burdens, but it would make much worse a driver shortage that already confronts the motor passenger carrier industry.” Mr. Miller explained that his attorney advised him to consider having his drivers report for work 40 minutes earlier to account for the MRB rules mandated breaks. Other commenters such as the Greater California Livery Association and the National Limousine Association stated that complying the with MRB rules would result in a “substantial increase in driver costs” due to decreased productivity and the need for additional drivers.

The California Labor Commissioner and Attorney General dispute that enforcing the MRB rules unreasonably burdens interstate commerce. They rely on Yoder v. Western Express, Inc., 181 F. Supp.3d 704 (C.D. Cal. 2015), in which a Federal district court held that application of California's wage and hour laws to a motor carrier did not violate the dormant Commerce Clause. The Labor Commissioner and the Attorney General argue that “California wage and hour laws at issue, including meal and rest break requirements, should be afforded, at minimum, significant weight in a Commerce Clause analysis.” They explain that the district court in Yoder applied the standard set forth in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), under which non-discriminatory State laws will generally not be found to violate the dormant Commerce Clause “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” See Yoder, 181 F. Supp. 3d at 718 (quoting Pike, 397 U.S. at 142). They note that the court in Yoder found that “California has an indisputably legitimate public interest in enforcing labor laws which protect its workers” and rejected the claim of the defendant, Western Express, that the burden on interstate commerce was clearly excessive in relation to California's legitimate public interest in regulating employment matters. See Yoder, 181 F. Supp. 3d at 720. The Labor Commissioner and the Attorney General conclude that ABA's assertions of an unreasonable burden on interstate commerce fails “in light of California's `legitimate interest in promoting driver and public safety' which FMCSA has recognized.”

The Amalgamated Transit Union contends that ABA's petition failed to “include any evidence of the costs of the MRB rules.” Similarly, the Transportation Trades Department/AFL-CIO argues that “while ABA makes the claim that `the cost of compliance with the meal and rest break rules are staggering' it provides absolutely no empirical evidence for this statement and relies entirely on conjecture.” The Teamsters state that ABA “provides no empirical evidence” to support its argument related to the costs associated with MRB rule compliance. The Teamsters continue, “For decades, the motor carrier industries have presumably found a way—one that is feasible—to comply with federal laws in conjunction with state laws. While and to the extent that compliance can result in increased expenditures, this does not outweigh the safety benefits that protect drivers and passengers.”

The FMCSA concludes that application of the MRB rules to passenger-carrying motor carriers unreasonably burdens interstate commerce. The Agency does not believe that the operational burdens described by ABA and the carriers are mere speculation. As ABA correctly states, the MRB rules provide that “[u]nless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked.” Cal. Code Regs. tit. 8, 11090 ((IWC Order 9-2001), subd. 11(C) (emphasis added). The California Supreme Court explained that the employee must be free to leave the premises, without any work-related responsibilities, during the entire 30-minute period. Brinker Restaurant Corp. v. Superior Court, 273 P.3d at 533. Further, “[a]n `on duty' meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties. . . . that the employee may, in writing, revoke the agreement at any time.” Ibid. Moreover, an employer may never require their employees to remain “on call” during a 10-minute rest break. Augustus v. ABM Sec. Servs., Inc., 385 P.3d at 832. The Agency agrees that the requirement that a driver be relieved of all duty for a meal break or rest break at specified intervals without regard to location or passenger needs would result in significant operational burden for the motor carrier. While the MRB rules provide that an employer and employee may agree to an “on duty” meal break or to waive the meal break altogether, the employee may unilaterally rescind that agreement at any time. As ABA and most commenters have described, it would be untenable for a motor carrier transporting passengers to have the driver become unavailable to attend to passenger needs at an inopportune time and location due to an MRB-mandated off-duty break. The Agency also agrees with ABA that complying with the MRB rules presents an operational burden regarding scheduling. Under the Federal HOS rules, motor carriers and drivers have the flexibility to schedule off-duty breaks in a way the best accommodates the driver's need for rest, passenger needs, and the travel schedule; the MRB rules offer much less flexibility.

The FMCSA also concludes that the California Labor Commissioner and Attorney General do not show that there is no unreasonable burden by relying on the district court opinion in Yoder v. Western Express. As noted above, Yoder analyzed whether California's wage and hour laws violated the dormant Commerce Clause, not whether those laws were preempted under 49 U.S.C. 31141. FMCSA acknowledges that it has suggested in the past 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. Upon further consideration, however, FMCSA concludes that nothing in the text of section 31141 or elsewhere suggests that only unconstitutional State laws can cause an unreasonable burden on interstate commerce. In any event, even if FMCSA could only find an unreasonable burden on interstate commerce 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 the MRB rules provide a safety benefit beyond the benefits already provided by the Federal HOS regulations. The significant burdens identified by ABA and the carriers 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. The FMCSA “may consider the effect on interstate commerce of implementation of that law or regulation with the implementation of all similar laws and regulations of other States.” 49 U.S.C. 31141(c)(5). To date, 20 States in addition to California regulate, in varying degrees, meal and rest break requirements, as the National Conference of State Legislators, the Center for Justice and Democracy, and the American Association for Justice have pointed out.^[13] The ABA argues that “[c]omplying with each of these regulatory schemes absolutely presents an unreasonable burden on interstate commerce.” Several other commenters have described the burden resulting from differing State meal and rest break laws. Greyhound explained, “20 other states have meal and rest break provisions. . . . [t]he potential applicability of these provisions could wreak havoc on Greyhound's carefully constructed interstate, interconnected route system and could pose a serious threat to the many small bus companies, who rely on their Greyhound connections to support their intercity services.” The National Limousine Association and the Greater California Livery Association explained, “The proliferation of rules like California's in at least 20 other states, applied to drivers of CMVs in interstate commerce, would increase the associated productivity loss enormously and represent an even greater burden on interstate commerce.” Coach USA stated that “confusion would become commonplace to meet all such break requirements as state borders are crossed.” The United Motorcoach Association commented, “As passenger carrier drivers cross multiple state lines, the result can be fluctuating start/stop times resulting in sleep truncation and disruption.” Other commenters, such as Transportation Charter Services, Pacific Coachways Charter Services, Best Limousine & Transportation, Royal Coach Tours, Sierra Pacific Tours, the California Bus Association, and Classic Charter stated that having to comply with the meal and rest break requirements of 20 states and the Federal HOS rules would make it impossible for them to meet planned schedules and itineraries.

In the 2018 Decision, FMCSA described the meal and rest break laws of Oregon, Nevada, and Washington and noted differences regarding when each State required a break to occur. See 83 FR 67470, 67479-80. 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. Ibid. The Agency adopts that reasoning here.

The American Association for Justice argues that ABA failed to provide “adequate justification for singling out the laws of one state when similar arguments can be made for the laws in the other 20 states.” Similarly, the Center for Justice and Democracy argues that ABA has provided “no adequate explanation for specifically singling out California law in this petition.” The Agency is not persuaded by this 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 the MRB rules impose significant operational burden and costs, the Agency further determines that the burden would be increased by the cumulative effect of other States' similar laws.

C. Summary

Consistent with the Agency's 2018 Decision, FMCSA acknowledges that the State of California has a legitimate interest in promoting driver and public safety. However, just as the Federal HOS rules and other provisions in the FMCSRs serve to promote that interest with respect to drivers of property-carrying CMVs, so do they serve to promote it for drivers of passenger-carrying CMVs. The Labor Commissioner and the Attorney General have stated that the local benefit of enforcing the MRB rules is driver and public safety. However, the Agency has determined that the MRB rules offer no safety benefit beyond the Federal regulations governing drive-time limits, fatigue, and coercion. The FMCSA also determines that enforcing the MRB rules results in increased operational burden and costs. In addition, the Agency finds that requiring motor carriers to comply with Federal HOS rules and also identify and adjust their operations in response to the many varying State requirements is an unreasonable burden on interstate commerce. Even where the differences between individual State regulations are slight, uniform national regulation is significantly less burdensome. The Agency finds that the burden on interstate commerce caused by the MRB rules is clearly excessive relative to any safety benefit. The Agency therefore concludes that the MRB rules place an unreasonable burden on interstate commerce.

Preemption Decision

As described above, FMCSA concludes that: (1) The MRB rules are State laws or regulations “on commercial motor vehicle safety,” to the extent they apply to drivers of passenger-carrying CMVs subject to FMCSA's HOS rules; (2) the MRB rules are additional to or more stringent than FMCSA's HOS rules; (3) the MRB rules have no safety benefit; (4) the MRB rules are incompatible with FMCSA's HOS rules; and (5) enforcement of the MRB rules would cause an unreasonable burden on interstate commerce. Accordingly, FMCSA grants ABA's petition for preemption and determines that the MRB rules are preempted pursuant to 49 U.S.C. 31141. Effective the date of this decision, California may no longer enforce the MRB rules with respect to drivers of passenger-carrying CMVs subject to FMCSA's HOS rules.

Issued under authority delegated in 49 CFR 1.87 and redelegated by Notice executed on January 7, 2020, on: January 13, 2020.

Alan Hanson,

Chief Counsel.

Footnotes

1.  California Industrial Welfare Commission Order No. 9-2001 is identical to 8 CCR Section 11090.

2.  Subject to certain conditions, a driver who is driving a passenger-carrying CMV that is equipped with a sleeper berth, may accumulate the equivalent of 8 consecutive hours of off-duty time by taking a combination of at least 8 consecutive hours off-duty and sleeper berth time; or by taking two periods of rest in the sleeper berth. 49 CFR 395.1(g)(3).

3.  “Off-duty” time is not specifically defined in the HOS rules; however, the Agency issued guidance stating that a driver may record time as off-duty provided: (1) The driver is relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo or passengers it may be carrying, and (2) during the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing. 78 FR 41852 (July 12, 2013).

4.  A comment letter submitted by the Center for Justice and Democracy, opposing ABA's petition, was joined by 23 organizations.

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

6.  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 California's MRB rules were not preempted by section 31141 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.

7.  In Kirby, the California Supreme Court addressed, inter alia, the question of whether a section 226.7 claim alleging an employer's failure to provide statutorily mandated meal and rest periods, constituted an action brought for the nonpayment of wages. See 274 P.3d at 1167. The Court held that it did not and explained that the premium pay “is the legal remedy for a violation . . . but whether or not it has been paid is irrelevant to whether section 226.7 was violated. In other words, section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay.” Ibid.

8.  Even if employers did have an option of either complying with the MRB Rules or paying additional wages, the MRB Rules would still be “additional to or more stringent than” the HOS regulations, since the MRB Rules would either: (1) Require that employers provide for breaks not required by the HOS regulations; or (2) provide the remedy of additional pay not required by the HOS regulations.

9.  Manila Consulting Group, Inc. Evidence Report, Fatigue and Motorcoach/Bus Driver Safety. McLean, VA: Manila Consulting Group, Inc; December 2012.

10.  The ABA cites the regulations implementing the transportation and related provisions of the Americans with Disabilities Act of 1990 at 49 CFR part 37, issued pursuant to 42 U.S.C. 12101-12213 and 49 U.S.C. 322; former Interstate Commerce Commission regulations at 49 CFR part 374, subpart C, issued under 49 U.S.C. 13301 and 14101; and California's regulations prohibiting idling, Cal. Code Regs., tit. 13, § 2485.

11.  Under 49 CFR 355.5, “Compatible or Compatibility means that State laws and regulations applicable to interstate commerce and to intrastate movement of hazardous materials are identical to the FMCSRs and the HMRs or have the same effect as the FMCSRs. . . .” See also 49 CFR 350.105.

12.  The Labor Commissioner may grant an employer's exemption request if, after due investigation, it is found that the enforcement of the rest period provision would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer. See Cal. Code Regs. tit. 8, 11090 (IWC Order 9-2001), subd. 17.

13.  According to the National Conference of State Legislators and the American Association for Justice, the following States have meal and rest break laws: California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia.