Seyfarth Synopsis: On December 26, 2023, the Federal Motor Carrier Safety Administration (“FMCSA”) announced they would be accepting comments from the public in response to multiple petitions requesting waivers from the agency’s determinations preempting California and Washington’s meal and rest break rules. This includes the opportunity to respond to the California Attorney General’s recent petition submitted on behalf of California’s drivers.

Many Entities And Organizations Submitted Petitions For Waivers

As previously written, the FMCSA announced in August 2023 that it would start accepting petitions for waivers from its own preemption determinations. Although the FMCSA in 2018 had determined that federal regulations preempted California law, the agency’s announcement signaled a shift in the agency’s view of the preemption determination over more employee-friendly state rules, or at least a shift in the politics surrounding the issue after the exit of the prior administration. Nonetheless, the notice still left unclear important issues including the scope of the waivers the FMCSA may consider granting and whether the FMCSA is considering a wholesale elimination of its prior determinations in California.

The International Brotherhood of Teamsters, the Truck Safety Coalition Citizens for Reliable and Safe Highways and Parents Against Tired Truckers, William B. Trescott, and the State of California all submitted petitions requesting that the FMCSA waive its determination preempting California’s MRB rules for drivers of commercial motor vehicles subject to FMCSA’s hours of service (HOS) rules. The California Attorney General’s broad petition submitted in November 2023 was discussed here.

In response, the FMCSA recently announced on December 26, 2023, that it will accept comments on any issues raised in the submitted petitions for waiver or before February 26, 2024.

The FMCSA requests that comments address the following issues in response to the arguments advanced by the waiver petitions:

1. Whether and to what extent enforcement of a state’s meal and rest break laws with respect to intrastate commercial motor vehicle drivers has impacted the health and safety of drivers.
2. Whether enforcement of state meal and rest breaks as applied to interstate commercial motor vehicle drivers will exacerbate the existing truck parking shortages and result in more trucks parking on the side of the road and whether any such effect will burden interstate commerce or create additional dangers to drivers and the public; and
3. Whether enforcement of a state’s meal and rest break laws as applied to interstate commercial motor vehicle drivers will dissuade carriers from operating in that state; and
4. Whether enforcement of a state’s meal and rest break laws as applied to interstate property carrying or passenger carrying CMV drivers will weaken or otherwise impact the resiliency of the national supply chain.

Employers Should Remain Beware Of Looming Changes

As discussed previously, the issue of whether drivers are subject to state meal and rest break rules will remain in flux as a result of legal and political considerations. Employers should continue to keep their eye on these developments, including any action by the FMCSA on the petitions that were filed in response to the FMCSA’s unexpected invitation. This new public comment period also provides employers with an opportunity to provide their own valuable, unique insight into the issues raised by the waiver petitions that were submitted, which the FMCSA may use when determining whether to grant any of the waiver petitions that were submitted.