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Truck Safety Coalition Statement on Preemption of California Meal and Rest Break Rules

The Federal Motor Carrier Safety Administration’s (FMCSA) and Department of Transportation’s (DOT) should immediately rescind their determination that the State of California’s meal and rest break (MRB) rules are preempted by Federal law. This unsafe action will not reduce driver fatigue, increase highway safety, or protect driver health.

The FMCSA reasoning was riddled with faulty logic and is contingent upon an arbitrary about-face from a previous determination the Agency made on this very issue in 2008.

In 2008, the FMCSA correctly concluded that California’s meal and rest break rules were not regulations “on commercial motor vehicle safety” within the meaning of 49 U.S.C. 31141 “because the 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.” 73 FR 79204. We agree with the FMCSA’s 2008 conclusion.

The Agency’s agreement with the ATA that “State laws and regulations covering the same ground as Federal regulations promulgated under section 31136 are precisely what Congress had in mind when it enacted section 31141” is particularly problematic. The Agency’s decision essentially creates a new legal doctrine wherein any State law that, in part, affects commercial motor vehicle safety is subject to preemption by the Secretary of Transportation and categorized as a law “on commercial motor vehicle safety.” Opponents of the ATA petition cited the 2008 FMCSA decision that considered the effect this could have as it relates to state tax, environmental, and other laws that affect CMV safety.

In response to being called out on their flip-flop, the FMCSA capriciously stated that “it can determine the MRB Rules are subject to section 31141 preemption without deciding whether section 31141 covers State tax laws, environmental laws, and other laws that “affect” CMV safety.” Yet, not even a page after stating that it can make a determination without considering the effects such a change would have on other laws not being reviewed at the time, the FMCSA explains that federal agencies have to explain changes in their positions and denote why “the new decision is better than the old.” The Agency fails to do this while simultaneously establishing a precedent to which future petitioners can point to in asking the FMCSA to preempt state laws using section 31141.

The FMCSA goes onto make several weak and troubling arguments to justify why preempting California’s MRB rules satisfies the requirements of section 31141:

FMCSA: The MRB Rules Have No Safety Benefits that Extend Beyond Those Provided by the FMCSRs

The FMCSA dedicates several paragraphs detailing why their feelings about the ATA’s “back of the napkin” math (in the form of a hypothetical example (see footnote 10)) are more persuasive than a plethora of studies showing that CMV drivers’ safety performance can easily deteriorate due to fatigue. Yet, rather than acknowledge that there is far more data to demonstrate the benefits of meal and rest breaks, the FMCSA proclaims that it does not need to evaluate the ATA’s ridiculous claim that California’s MRB rules exacerbate truck driver fatigue. Instead, the Agency declares – without citing a single study – that “California’s additional requirements… do not provide additional benefits.”

The FMCSA then argues that because the Federal HOS regulations were crafted to prevent against fatigue, the California MRB rules, which impose even greater restrictions on a driver’s work time, “do not provide a safety benefit not already realized under the FMCSRs.” Yet, the FMCSA does not show any analysis or cite any evidence submitted by commenters to show that the additional 10-minute rest breaks do not offer any additional safety benefit above and beyond the safety benefit provided by the federal HOS rules.

The Agency acknowledges that there is a truck parking shortage, but then use it to advance seriously dangerous arguments in pursuit of acquiescing to the ATA’s petition. The FMCSA states, “The Agency believes that the increase in required stops to comply with the MRB Rules, when the driver may not be fatigued, will exacerbate the problem of drivers parking at unsafe locations. (emphasis added)” This is the same bogus argument that has been used time and again to try and remove, rollback, or get exempted from the federal HOS rules just applied to California’s MRB rules. In fact, go back and reread the above quote but instead of “MRB” replace it with “HOS.” The Agency should be ashamed that they have attached their name to such an unsafe and unsettling “belief.”

FMCSA: The MRB Rules are Incompatible with the Federal HOS Regulations

The Agency’s reading of the relevant regulations is incorrect. We agree that 49 CFR 355.5 sets forth the appropriate test for determining whether a State law or regulation is compatible with Federal laws, but that is where the agreements end. The FMCSA states that “under the Motor Carrier Safety Assistance Program (MCSAP) ‘Compatible or Compatibility means that State laws and regulations applicable to interstate commerce… are identical to the FMCSRs and the HMRs or have the same effect as the FMCSRs…’ 49 CFR 355.5.” But rather than determining the meaning of “have the same effect as the FMCSRs” as it relates to the State law in question – i.e. does the regulation mean “effect” on CMV safety or the overall effect on safety as well as productivity – the Agency simply declares the MRB rules incompatible because they are not identical to the HOS rules and because they include additional requirements that the Agency did not include. Yet, we contend that the regulation should be understood to mean effect as it relates to commercial motor vehicle safety considering the Agency’s mission as well as the aims of FMCSRs in general.

FMCSA: Enforcement of the MRB Rules Would Cause an Unreasonable Burden on Interstate Commerce

Joined by several other multi-million dollar companies in decrying the cost of the California MRB rules, the ATA offered no evidence that interstate commerce had been unreasonably burdened by the MRB – just that it could be. FedEx, which employs thousands of drivers and operates billions of miles each year, likewise failed to actually quantify the adverse effects it purportedly experienced as a result of the MRB rules. CRST International, whose comments the Agency referenced in their decision, also failed to quantify the suppose burden their company experienced because of the MRB rules. In fact, the only commenter that came close to quantifying the alleged adverse effect of the MRB rules on their operations was the National Retail Federation, who quoted an anonymous member-company. The problem with this comment, and the Agency’s acceptance of it, is that it focuses exclusively on the effects the MRB rules had on the anonymous company’s bottom line without any discussion of whether the rules also affected the company’s safety record.

In short, it is preposterous that of the more than 700 comments received, the FMCSA could not cite actual figures and costs to any of the companies that allege to be adversely impacted by California’s MRB rules. Worse, the FMCSA showed that it is willing to accept conjecture and the specter of increased administrative costs as sufficient means to justify rollbacks and removal of important safety rules. This should give the public pause.

Conclusion

Removing state-mandated meal and rest breaks will not address issues of truck driver fatigue or inattention. By preempting California’s MRB rules, the FMCSA has effectively claimed that state laws and regulations on commercial motor vehicle drivers that extend beyond federal requirements run counter to the Agency’s mission. This is wrong and the FMCSA’s decision will adversely affect truck safety.