83 FR 50142 - California Meal and Rest Break Rules; Petition for Determination of Preemption
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 83, Issue 193 (October 4, 2018)
Federal Motor Carrier Safety Administration
Federal Register Volume 83, Issue 193 (October 4, 2018)
| Page Range | 50142-50143 | |
| FR Document | 2018-21624 |
[Federal Register Volume 83, Number 193 (Thursday, October 4, 2018)] [Notices] [Pages 50142-50143] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21624] [[Page 50142]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2018-0304] California Meal and Rest Break Rules; Petition for Determination of Preemption AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of petition for determination of preemption; request for comments. ----------------------------------------------------------------------- SUMMARY: FMCSA requests comments on a petition submitted by the American Trucking Associations, Inc. (ATA) requesting a determination that the State of California's meal and rest break rules are preempted by Federal law. Among other things, FMCSA requests comments on what effect, if any, California's meal and rest break requirements may have on interstate commerce. DATES: Comments must be received on or before October 29, 2018. ADDRESSES: You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA-2018-0304 by any of the following methods:Federal eRulemaking Portal: www.regulations.gov. See the Public Participation and Request for Comments section below for further information. Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001. Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays. Fax: 1-202-493-2251. Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below. FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Regulatory Affairs Division; FMCSA Chief Counsel; Telephone: (202) 366-1354; Email: Charles.Medalen@dot.gov. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments FMCSA encourages you to participate by submitting comments and related materials. Submitting Comments If you submit a comment, please include the docket number for this notice (FMCSA-2018-0304), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission. To submit your comment online, go to www.regulations.gov and put the docket number, ``FMCSA-2018-0304'' in the ``Keyword'' box, and click ``Search.'' When the new screen appears, click on ``Comment Now!'' button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period. Docket. For access to the docket to read background documents or comments, go to www.regulations.gov at any time or visit 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., ET, Monday through Friday, except Federal holidays. The on-line FDMS is available 24 hours each day, 365 days each year. Privacy Act. In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its determination. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. Background On September 24, 2018, ATA submitted a petition to FMCSA requesting a determination under 49 U.S.C. 31141 that the State of California's Meal and Rest Break rules are preempted by Federal law (Petition). The petition stated that, under California law, within the transportation industry, 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. Petition at 1-2 (citing Cal. Lab. Code Sec. 512(a)). The petition stated that 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. Id. Ordinarily, the employee must be ``relieved of all duty'' for the period, unless ``the nature of the work prevents an employee from being relieved of all duty,'' and the employee enters into a written agreement to remain on duty, which he or she may revoke at any time. Id. at 2 (citing Cal. Industrial Wage Commission Wage Order No. 9 Sec. 11(C)). The petition also stated that California law provides that, within the transportation industry, 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. Id. (citing Wage Order No. 9 Sec. 12(a)). The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 \1/2\) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. Id. In short, California generally requires employers in the transportation industry to provide employees with an off-duty 30-minute break for every five hours worked, before the end of each five-hour period; and a ten-minute off-duty break for every four hour period (or ``major fraction thereof,'' i.e., period greater than two hours), in the middle of each such period if possible. Commercial drivers covered by collective bargaining agreements that meet certain statutorily enumerated criteria, however, are not [[Page 50143]] subject to the meal period requirement. See id. (citing Cal. Lab. Code Sec. 512(e), (f)(2)). Applicable Law Section 31141 of title 49, United States Code, prohibits States from enforcing a law or regulation on commercial motor vehicle 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 (FMCSRs); (2) is less stringent than such a regulation; or (3) is additional to or more stringent than such a regulation. 49 U.S.C. 31141(c)(1). If the Secretary decides that a State law or regulation has the same effect as a regulation prescribed under 49 U.S.C. 31136, the State law or regulation may be enforced. Id. Sec. 31141(c)(2). If the Secretary decides that a State law or egulation is less stringent than a regulation prescribed under 49 U.S.C. 31136, the State law or regulation may not be enforced. Id. Sec. 31141(c)(3). If the Secretary decides that a State law or regulation is additional to or more stringent than a regulation prescribed by the Secretary under 49 U.S.C. 31136, the State law or regulation may be enforced unless the Secretary decides that the State law or regulation (1) Has no safety benefit; (2) is incompatible with the regulation prescribed by the Secretary; or (3) would cause an unreasonable burden on interstate commerce. Id. Sec. 31141(c)(4). In deciding whether a State law or regulation will cause an unreasonable burden on interstate commerce, the Secretary may consider the cumulative effect on implementation of the State law or regulation and all similar laws and regulations of other States. Id. Sec. 31141(c)(5). The Secretary's authority under 49 U.S.C. 31141 is delegated to the FMCSA Administrator by 49 CFR 1.87(f). Request for Comments Although preemption under 31141 is a legal determination reserved to the judgment of the Agency, FMCSA seeks comment on any issues raised in ATA's petition or otherwise relevant. The Agency has placed ATA's petition in the docket. Issued on: September 28, 2018. Raymond P. Martinez, Administrator. [FR Doc. 2018-21624 Filed 10-3-18; 8:45 am] BILLING CODE 4910-EX-P
![50142 Federal Register / Vol. 83, No. 193 / Thursday, October 4, 2018 / Notices
DEPARTMENT OF TRANSPORTATION Public Participation and Request for requesting a determination under 49
Comments U.S.C. 31141 that the State of
Federal Motor Carrier Safety California’s Meal and Rest Break rules
FMCSA encourages you to participate
Administration are preempted by Federal law (Petition).
by submitting comments and related
materials. The petition stated that, under
[Docket No. FMCSA–2018–0304] California law, within the transportation
Submitting Comments industry, an employer may not employ
California Meal and Rest Break Rules; If you submit a comment, please an employee for a work period of more
Petition for Determination of include the docket number for this than five hours per day without
Preemption notice (FMCSA–2018–0304), indicate providing the employee with a meal
the specific section of this document to period of not less than 30 minutes,
AGENCY: Federal Motor Carrier Safety except that if the total work period per
Administration (FMCSA), DOT. which the comment applies, and
provide a reason for suggestions or day of the employee is no more than six
ACTION: Notice of petition for hours, the meal period may be waived
recommendations. You may submit
determination of preemption; request by mutual consent of both the employer
your comments and material online or
for comments. and employee. Petition at 1–2 (citing
by fax, mail, or hand delivery, but
Cal. Lab. Code § 512(a)). The petition
SUMMARY: FMCSA requests comments please use only one of these means.
stated that an employer may not employ
on a petition submitted by the American FMCSA recommends that you include
an employee for a work period of more
Trucking Associations, Inc. (ATA) your name and a mailing address, an
than 10 hours per day without
requesting a determination that the State email address, or a phone number in the
providing the employee with a second
of California’s meal and rest break rules body of your document so the Agency
meal period of not less than 30 minutes,
are preempted by Federal law. Among can contact you if it has questions
except that if the total hours worked is
other things, FMCSA requests regarding your submission.
no more than 12 hours, the second meal
comments on what effect, if any, To submit your comment online, go to
period may be waived by mutual
California’s meal and rest break www.regulations.gov and put the docket consent of the employer and the
requirements may have on interstate number, ‘‘FMCSA–2018–0304’’ in the employee only if the first meal period
commerce. ‘‘Keyword’’ box, and click ‘‘Search.’’ was not waived. Id. Ordinarily, the
When the new screen appears, click on employee must be ‘‘relieved of all duty’’
DATES: Comments must be received on ‘‘Comment Now!’’ button and type your
or before October 29, 2018. for the period, unless ‘‘the nature of the
comment into the text box in the work prevents an employee from being
ADDRESSES: You may submit comments following screen. Choose whether you relieved of all duty,’’ and the employee
identified by Federal Docket are submitting your comment as an enters into a written agreement to
Management System (FDMS) Number individual or on behalf of a third party remain on duty, which he or she may
FMCSA–2018–0304 by any of the and then submit. If you submit your revoke at any time. Id. at 2 (citing Cal.
following methods: comments by mail or hand delivery, Industrial Wage Commission Wage
• Federal eRulemaking Portal: submit them in an unbound format, no Order No. 9 § 11(C)).
www.regulations.gov. See the Public larger than 81⁄2 by 11 inches, suitable for The petition also stated that California
Participation and Request for Comments copying and electronic filing. If you law provides that, within the
section below for further information. submit comments by mail and would transportation industry, every employer
• Mail: Docket Management Facility, like to know that they reached the shall authorize and permit all
U.S. Department of Transportation, 1200 facility, please enclose a stamped, self- employees to take rest periods, which
New Jersey Avenue SE, West Building, addressed postcard or envelope. FMCSA insofar as practicable shall be in the
Ground Floor, Room W12–140, will consider all comments and material middle of each work period. Id. (citing
Washington, DC 20590–0001. received during the comment period. Wage Order No. 9 § 12(a)). The
• Hand Delivery or Courier: West Docket. For access to the docket to authorized rest period time shall be
Building, Ground Floor, Room W12– read background documents or based on the total hours worked daily at
140, 1200 New Jersey Avenue SE, comments, go to www.regulations.gov at the rate of ten (10) minutes net rest time
between 9 a.m. and 5 p.m. E.T., Monday any time or visit Room W12–140 on the per four (4) hours or major fraction
through Friday, except Federal holidays. ground level of the West Building, 1200 thereof. However, a rest period need not
• Fax: 1–202–493–2251. New Jersey Avenue SE, Washington, be authorized for employees whose total
Each submission must include the DC, between 9 a.m. and 5 p.m., ET, daily work time is less than three and
Agency name and the docket number for Monday through Friday, except Federal one-half (3 1⁄2) hours. Authorized rest
this notice. Note that DOT posts all holidays. The on-line FDMS is available period time shall be counted as hours
comments received without change to 24 hours each day, 365 days each year. worked for which there shall be no
www.regulations.gov, including any Privacy Act. In accordance with 5 deduction from wages. Id.
personal information included in a U.S.C. 553(c), DOT solicits comments In short, California generally requires
comment. Please see the Privacy Act from the public to better inform its employers in the transportation industry
heading below. determination. DOT posts these to provide employees with an off-duty
comments, without edit, including any 30-minute break for every five hours
FOR FURTHER INFORMATION CONTACT: Mr. personal information the commenter worked, before the end of each five-hour
Charles Medalen, Regulatory Affairs provides, to www.regulations.gov, as period; and a ten-minute off-duty break
daltland on DSKBBV9HB2PROD with NOTICES
Division; FMCSA Chief Counsel; described in the system of records for every four hour period (or ‘‘major
Telephone: (202) 366–1354; Email: notice (DOT/ALL–14 FDMS), which can fraction thereof,’’ i.e., period greater
Charles.Medalen@dot.gov. If you have be reviewed at www.dot.gov/privacy. than two hours), in the middle of each
questions on viewing or submitting such period if possible. Commercial
material to the docket, contact Docket Background drivers covered by collective bargaining
Services, telephone (202) 366–9826. On September 24, 2018, ATA agreements that meet certain statutorily
SUPPLEMENTARY INFORMATION: submitted a petition to FMCSA enumerated criteria, however, are not
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![Federal Register / Vol. 83, No. 193 / Thursday, October 4, 2018 / Notices 50143
subject to the meal period requirement. Issued on: September 28, 2018. Title: Drug Use Characteristics of
See id. (citing Cal. Lab. Code § 512(e), Raymond P. Martinez, Drivers Arrested for Driving Under the
(f)(2)). Administrator. Influence (DUI) or Driving Under the
[FR Doc. 2018–21624 Filed 10–3–18; 8:45 am] Influence of Drugs (DUID).
Applicable Law Form Numbers: NHTSA Form 1468,
BILLING CODE 4910–EX–P
1469.
Section 31141 of title 49, United Type of Review: New information
States Code, prohibits States from collection.
enforcing a law or regulation on DEPARTMENT OF TRANSPORTATION
Abstract:
commercial motor vehicle safety that National Highway Traffic Safety NHTSA proposes to conduct a study
the Secretary of Transportation Administration to estimate the prevalence of drugs in
(Secretary) has determined to be drivers arrested for driving under the
preempted. To determine whether a [Docket Number: NHTSA–2017–0057] influence or driving under the influence
State law or regulation is preempted, the of a drug. Approximately 1,000 drivers
Reports, Forms, and Record Keeping arrested for DUI or DUID at two or three
Secretary must decide whether a State
Requirements Agency Information locations across the country will be
law or regulation: (1) Has the same Collection Activity Under OMB Review
effect as a regulation prescribed under interviewed and administered an oral
49 U.S.C. 31136, which is the authority AGENCY: National Highway Traffic fluid drug test. The primary aim of this
for much of the Federal Motor Carrier Safety Administration (NHTSA), DOT. project is to better understand the
Safety Regulations (FMCSRs); (2) is less ACTION: Notice and request for frequency of alcohol, prescription, over-
stringent than such a regulation; or (3) comments. the-counter (OTC), and illicit drugs in
impaired driving arrests. Trained
is additional to or more stringent than
SUMMARY: In compliance with the researchers will ask participants
such a regulation. 49 U.S.C. 31141(c)(1).
Paperwork Reduction Act of 1995, this questions regarding demographics,
If the Secretary decides that a State notice announces that the Information driving, alcohol, and drug use.
law or regulation has the same effect as Collection Request (ICR) abstracted Participants will then be asked to
a regulation prescribed under 49 U.S.C. below is being forwarded to the Office provide an oral fluid sample using a
31136, the State law or regulation may of Management and Budget (OMB) for collection device which will be used to
be enforced. Id. § 31141(c)(2). If the review and comments. The ICR test for alcohol and approximately 50
Secretary decides that a State law or describes the nature of the information other specific drugs.
egulation is less stringent than a collection and its expected burden. A Data collection will take place over a
regulation prescribed under 49 U.S.C. Federal Register Notice with a 60-day six-month period at two to three sites
31136, the State law or regulation may comment period soliciting public across the country. The research team
not be enforced. Id. § 31141(c)(3). If the comments on the following information will coordinate with the local police
Secretary decides that a State law or collection was published on September departments and officials at these sites.
regulation is additional to or more 6, 2017. This notice addresses The sites will have a private room at the
comments received. booking facility for use by the research
stringent than a regulation prescribed by
DATES: Written comments should be team. Each site will have at least 1,250
the Secretary under 49 U.S.C. 31136, the
submitted on or before November 5, impaired driving arrests per year and be
State law or regulation may be enforced willing to enter into a Memorandum of
unless the Secretary decides that the 2018.
Understanding with the research team
State law or regulation (1) Has no safety ADDRESSES: Send comments to the regarding the study.
benefit; (2) is incompatible with the Office of Information and Regulatory Data for the study will primarily be
regulation prescribed by the Secretary; Affairs, Office of Management and collected at a central booking facility for
or (3) would cause an unreasonable Budget, 725 17th Street NW, the site’s police department. Upon
burden on interstate commerce. Id. Washington, DC 20503, Attention: arriving at the booking facility, the
§ 31141(c)(4). In deciding whether a NHTSA Desk Officer. arresting officer or other approved
State law or regulation will cause an FOR FURTHER INFORMATION CONTACT: For police staff will briefly inform the
unreasonable burden on interstate additional information or access to potential participants that they have the
commerce, the Secretary may consider background documents, contact Amy opportunity to participate in a research
the cumulative effect on Berning, Office of Behavioral Safety, study sponsored by NHTSA. Police staff
implementation of the State law or National Highway Traffic Safety will ask the participants if they would
regulation and all similar laws and Administration, 1200 New Jersey be interested in learning more about the
regulations of other States. Id. Avenue SE, W46–497, Washington, DC study. If they respond yes, then they
§ 31141(c)(5). The Secretary’s authority 20590; telephone: (202) 366–5587; will be introduced to the trained
under 49 U.S.C. 31141 is delegated to email: amy.berning@dot.gov. research staff in the private study room.
the FMCSA Administrator by 49 CFR SUPPLEMENTARY INFORMATION: The research staff will further
1.87(f). describe the study to the potential
I. Information Collection Request participant. The researcher will explain
Request for Comments Before a Federal agency can collect to the potential participant that study
certain information from the public, it data is anonymous, s/he must be 18
Although preemption under 31141 is must receive approval from the Office of years of age or older to participate, s/he
daltland on DSKBBV9HB2PROD with NOTICES
a legal determination reserved to the Management and Budget (OMB). In is free to withdraw from the study at
judgment of the Agency, FMCSA seeks compliance with these requirements, any time, the results of the drug test and
comment on any issues raised in ATA’s this notice announces that the following questionnaire will not be provided to
petition or otherwise relevant. The information collection request has been anyone outside of the research team
Agency has placed ATA’s petition in the forwarded to OMB. (including to the participant), and
docket. OMB Control Number: To be issued at participation in the study will not be
time of approval. used to help or hurt the individual in
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Document Created: 2018-10-04 02:02:55
Document Modified: 2018-10-04 02:02:55
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of petition for determination of preemption; request for comments. | |
| Dates | Comments must be received on or before October 29, 2018. | |
| Contact | Mr. Charles Medalen, Regulatory Affairs Division; FMCSA Chief Counsel; Telephone: (202) 366-1354; Email: [email protected] If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826. | |
| FR Citation | 83 FR 50142 |
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