
[Federal Register: December 24, 2008 (Volume 73, Number 248)]
[Notices]               
[Page 79204-79206]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de08-142]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

 
Petition for Preemption of California Regulations on Meal Breaks 
and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for 
Failure To Meet Threshold Requirement

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), USDOT.

ACTION: Notice of rejection of petition for preemption.

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SUMMARY: FMCSA announces the rejection of a petition for preemption of 
California laws and regulations requiring employers to provide 
employees with meal and rest breaks. The petition does not satisfy the 
threshold requirement for preemption under 49 U.S.C. 31141(c) because 
the provisions at issue are not ``laws and regulations on commercial 
motor vehicle safety,'' but rather laws and regulations applied 
generally to California employers.

DATES: Effective Date: This decision is effective December 23, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Attorney-Advisor, 
FMCSA Office of Chief Counsel. Telephone (202) 493-0349.

Background

    On July 3, 2008, James H. Hanson, Esq., Scopelitis, Garvin, Light, 
Hanson & Feary, P.C., petitioned the Federal Motor Carrier Safety 
Administration (FMCSA) on behalf of a group of motor carriers \1\ to 
preempt the California statutes and rules requiring transportation 
industry employers to give their employees meal and rest breaks during 
the work day, as applied to drivers of commercial motor vehicles (CMVs) 
subject to the FMCSA hours-of-service (HOS) regulations. For the 
reasons set forth below, FMCSA rejects the petition.
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    \1\ Affinity Logistics Corp.; Cardinal Logistics Management 
Corp.; C.R. England, Inc.; Diakon Logistics (Delaware), Inc.; 
Estenson Logistics, LLC; McLane Company, Inc.; McLane/Suneast, Inc.; 
Penske Logistics, LLC; Penske Truck Leasing Co., L.P.; Trimac 
Transportation Services (Western), Inc.; and Velocity Express, Inc.
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California Law

    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 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 Sec.  11090,'' ``Section 
11090'', or ``Sec.  11090'' \2\].
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    \2\ California Industrial Welfare Commission Order No. 9-2001 is 
identical to 8 CCR Sec.  11090.
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    Section 11090(11). Meal Periods, reads as follows:

    ``(A) No employer shall employ any person for a work period of 
more than five (5) hours without a meal period of not less than 30 
minutes, except that when a work period of not more than six (6) 
hours will complete the day's work the meal period may be waived by 
mutual consent of the employer and 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 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 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.
    ``(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 hour worked daily at the rate of ten (10) minutes 
net rest time per four (4) hours or major fraction thereof. However, 
a rest period need not be authorized for employees whose total daily 
work time is less than three and one-half (3\1/2\) hours. Authorized 
rest period time shall be counted as hours worked for which there 
shall be no deduction from wages.
    ``(B) If an employer fails to provide an employee a rest period 
in accordance with the applicable provisions of this order, the 
employer shall pay the employee one (1) hours of pay at the 
employer's regular rate of compensation for each workday that the 
rest period is not provided.''


[[Page 79205]]


    Although Sec.  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 Sec.  11090(3), which regulates ``hours 
and days of work,'' not to all of Sec.  11090, including meal and rest 
breaks in Sec.  11090(11) and (12). Cicairos v. Summit Logistics, Inc., 
133 Cal App.4th 949 (2006).

Federal Law

    FMCSA is authorized by 49 U.S.C. 31141 to preempt State law. For 
purposes of this petition, the relevant portions of that statute read 
as follows:

    ``(a) Preemption after decision.--A State may not enforce a 
State law or regulation on commercial motor vehicle safety that the 
Secretary of Transportation decides under this section may not be 
enforced. * * *
    ``(c) Review and decisions by the secretary.--
    ``(1) Review.--The Secretary shall review State laws and 
regulations on commercial motor vehicle safety. The Secretary shall 
decide whether the State law or regulation--
    ``(A) Has the same effect as a regulation prescribed by the 
Secretary under section 31136;
    ``(B) Is less stringent than such regulation; or
    ``(C) Is additional to or more stringent than such regulation. * 
* *
    ``(4) Additional or more stringent regulations.--If the 
Secretary decides a State law or regulation is additional to or more 
stringent than a regulation prescribed by the Secretary under 
section 31136 of this title, the State law or regulation may be 
enforced unless the Secretary also decides that--
    ``(A) The State law or regulation has no safety benefit;
    ``(B) The State law or regulation is incompatible with the 
regulation prescribed by the Secretary; or
    ``(C) Enforcement of the State law or regulation would cause an 
unreasonable burden on interstate commerce.''

Petitioners' Argument

    Petitioners summarized the effect of the California meal and rest 
break rules as follows:

    ``Motor carrier operations are carefully timed to take advantage 
of the flexibility available under the HOS Regulations and, in some 
instances, to take advantage of the full complement of driving hours 
provided as well. Some carriers schedule driver meals to take place 
at carrier facilities once the driver has delivered a load so that 
unloading, sorting, and loading of outbound shipments can take place 
during the break. The Meal and Rest Break Rules, by mandating when 
meals breaks must be taken, interfere with such arrangements, 
meaning that the driver will miss the inbound appointment, which in 
turn has the domino effect of delaying outbound operations. * * * 
[A]s a practical matter, since the driver must be fully relieved of 
duty during the break, breaks will take much longer as the driver 
will be required to find a place to pull over and must actually park 
and shut down the equipment before the break can start. Of course, 
this will require that the driver return to the equipment, start it, 
and get back on the road as well. Thus, as a practical matter, the 
Meal and Rest Break Rules impose a much greater burden on the driver 
than a simple reading of the rules * * * would at first suggest, and 
the burden is exacerbated in congested areas'' [pages 10-11].
    ``In the absence of the Meal and Rest Break Rules, a driver 
could spend three non-driving hours engaged in [other] activities 
and could still drive for 11 hours under the HOS Regulations. In 
California, due to the Meal and Rest Break Rules, however, the 
driver loses 1\1/2\ hours (two 30-minute meal breaks and three 10-
minute rest breaks) over the course of the permitted 14-hour on-duty 
period in which the driver can neither drive nor perform on-duty 
driving tasks. The practical effect is that a driver in California 
has only 12\1/2\ hours of on-duty time after initially coming on 
duty during which he/she can accumulate his/her 11 hours of driving 
time, leaving only 1\1/2\ hours to perform any other duty non-
driving tasks that might naturally occur during the day'' [page 10].
    ``Applying the Meal and Rest Break Rules to drivers subject to 
the HOS Regulations imposes limitations on a driver's time that are 
different from and more stringent than the HOS Regulations because 
the Meal and Rest Break Rules limit the amount of hours available to 
a driver to complete driving duties after initially coming on-duty 
to less than the 14 hours permitted by the HOS Regulations. 
Moreover, the Meal and Rest Break Rules do not allow for the 
flexibility provided by the HOS Regulations, further exacerbating 
the effect of the limitations imposed by the Meal and Rest Break 
Rules. This lack of flexibility not only hinders operations from a 
scheduling standpoint, it also creates serious safety concerns. 
Specifically, by imposing meal and rest breaks at set times, the 
Meal and Rest Break Rules limit a driver's ability to take breaks 
when they are actually needed. A driver subject only to the HOS 
Regulations, on the other hand, is not subject to externally imposed 
limitations and is instead able to take breaks when he or she deems 
necessary'' [page 6].

    In a supplement filed with FMCSA on October 2, 2008, petitioners 
reiterated their position even more bluntly:

    ``Petitioners * * * argue * * * that they should be free to 
schedule drivers to work and that drivers should be free to choose 
to work as much as they desire in accordance with the HOS 
Regulations, without regard for individual state requirements, as 
long as the driver is otherwise able to operate the equipment 
safely. The Meal and Rest Break Rules are inconsistent with the HOS 
Regulations'' [page 4].

    The July petition states that:

    ``The threshold for review under 49 U.S.C. 31141 is that the 
state law or regulation be `on commercial motor vehicle safety.' * * 
* Thus, the only logical/consistent interpretation of `on commercial 
motor vehicle safety' under 49 U.S.C. 31141 is to interpret it as 
applying to state laws or regulations that regulate or affect 
subject matter within the FMCSA's authority under 49 U.S.C. 31136, 
i.e., any state law or regulation that regulates subject matter 
within the FMCSA's authority under 49 U.S.C. 31136 is `on commercial 
motor vehicle safety' for purposes of 49 U.S.C. 31141.
    ``Conceivably, it could be argued that the Meal and Rest Break 
rules are not `on commercial motor vehicle safety' because they are 
rules of general applicability and their application is not limited 
to CMVs. When considered from a practical perspective, however, 
there can be no question that the Meal and Rest Break Rules are 
exactly the type of rules that fall within the scope of 49 U.S.C. 
31141. As a practical matter, interpreting the statute to apply only 
to state laws or rules applicable solely to CMVs would open the door 
to state regulation of CMV safety under the guise of generally 
applicable state laws or rules'' [page 21].

Decision

    Petitioners themselves acknowledge the decisive argument against 
their own position. The California meal break statute [Cal. Labor Code 
Sec.  512] and the corresponding rules in Sec.  11090(11)-(12) are not 
regulations ``on commercial motor vehicle safety'' and thus do not meet 
the threshold requirement for consideration under 49 U.S.C. 31141.\3\ 
The State rules apply to the entire ``transportation industry,'' which 
Sec.  11090(2)(N) defines as ``any industry, business, or establishment 
operated for the purpose of conveying persons or property from one 
place to another whether by rail, highway, air, or water, and all 
operations and services in connection therewith; and also includes 
storing or warehousing of goods or property, and the repairing, 
parking, rental, maintenance, or cleaning of vehicles.'' The meal and 
rest break rules thus cover far more than the trucking industry.
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    \3\ Petitioners claim that by ``imposing meal and rest breaks at 
set times,'' the California rules create safety concerns by 
interfering with a driver's ability to take breaks when actually 
needed [page 6]. In fact, the State rules allow the first meal break 
at any point during the first five hours on duty, and the second 
within the next five hours. Five-hour windows hardly constitute 
``set times.'' Petitioners provide no evidence that these breaks 
undermine safety.
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    In fact, the meal and rest break rules are not even unique to 
transportation. California imposes virtually the same rules on the 
``manufacturing industry'' [8 CCR Sec.  11010(11)-(12)]; the ``personal 
service industry'' [8 CCR Sec.  11020(11)-(12)]; the ``canning, 
freezing and

[[Page 79206]]

preserving industry'' [8 CCR Sec.  11030(11)-(12)]; the ``professional, 
technical, clerical, and similar occupations'' [8 CCR Sec.  11040(11)-
(12)]; the ``public housekeeping industry'' [8 CCR Sec.  11050(11)-
(12)]; the ``laundry, linen supply, dry cleaning, and dyeing industry'' 
[8 CCR Sec.  11060(11)-(12)]; the ``mercantile industry'' [8 CCR Sec.  
11070(11)-(12)]; ``industries handling products after harvest'' [8 CCR 
Sec.  11080(11)-(12)]; the ``amusement and recreation industry'' [8 CCR 
Sec.  11100(11)-(12)]; the ``broadcasting industry'' [8 CCR Sec.  
11110(11)-(12)]; the ``motion picture industry'' [8 CCR Sec.  
11120(11)-(12)]; ``industries preparing agricultural products for 
market, on the farm'' [8 CCR Sec.  11130(11)-(12)]; ``agricultural 
occupations'' [8 CCR Sec.  11140(11)-(12)]; ``household occupations'' 
[8 CCR Sec.  11150(11)-(12)]; ``certain on-site occupations in the 
construction, drilling, logging and mining industries'' [8 CCR Sec.  
11160(10)-(11)]; and ``miscellaneous employees'' [8 CCR Sec.  
11170(9)]. The meal and rest break rules for CMV drivers are simply one 
part of California's comprehensive regulations governing wages, hours 
and working conditions. Because these rules are in no sense regulations 
``on commercial motor vehicle safety,'' they are not subject to 
preemption under 49 U.S.C. 31141.
    Recognizing this problem, petitioners expanded their argument to 
claim that ``the FMCSA has power to preempt any state law or regulation 
that regulates or affects any matters within the agency's broad 
Congressional grant of authority'' (page 22). There is nothing in the 
statutory language or legislative history of 49 U.S.C. 31141 that would 
justify reading into it the authority to preempt State laws 
``affecting'' CMV safety. Further, if the Agency were to take such a 
position, any number of State laws would be subject to challenge. For 
example, it is conceivable that high State taxes and emission controls 
could affect a motor carrier's financial ability to maintain compliance 
with the Federal Motor Carrier Safety Regulations (FMCSRs); however, it 
is doubtful that the Agency would be viewed as thus having the 
authority to preempt State tax or environmental laws.
    Yet petitioners make the equally far-reaching argument that FMCSA 
can and should preempt the California statutes and rules on wages, 
hours, and working conditions which prevent carriers from maximizing 
their employees' driving and on-duty time. In fact, the FMCSRs have for 
decades required carriers and drivers to comply with all of the laws, 
ordinances, and regulations of the jurisdiction where they operate [49 
CFR 392.2].
    FMCSA cannot entertain this petition. Because the California meal 
and rest break rules are not ``regulations on commercial motor vehicle 
safety,'' the Agency has no authority to preempt them under 49 U.S.C. 
31141. Furthermore, that statute does not allow the preemption of other 
State or local regulations merely because they have some effect on CMV 
operations.

    Issued on: December 18, 2008.
David A. Hugel,
Deputy Administrator.
[FR Doc. E8-30646 Filed 12-23-08; 8:45 am]

BILLING CODE 4910-EX-P
