Petition Review FMCSA - California

CASE NO. _ _ _ _ __

IN 'IHE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUrr

LABOR COMMISSIONER FOR THE STATE OF CALIFORNIA, Petitioner,

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.

ON APPEAL FROM FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, DOCKET NO. FMCSA-2018-0304

PETITION FOR REVIEW

Miles E. Locker, Attorney for the Labor Commissioner (SBN 103510) Division of Labor Standards Enforcement

Department of Industrial Relations, State of California 455 Golden Gate Avenue, 9th Floor San Francisco, California 94102 Telephone: (415) 703-4863 Fax: (415) 703-4807 E-mail: mlocker@dir.

Xavier Becerra, Attorney General of California Satoshi Yanai, Supervising Deputy Attorney General Marisa Hernandez-Stern, Deputy Attorney General (SBN 282477)

300 South Spring Street, Suite 1702 Los Angeles, California 90013 Telephone: (213) 269-6641 Fax: (213) 897-2801

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Attorneys for the Labor Commissioner

Petitioner LABOR COMMISSIONER FOR THE STATE OF CALIFORNIA hereby petitions this Court for review of the Order and Determination of Preemption issued by the Federal Motor Carrier Safety Administration ("FMCSA''), Docket No. FMCSA-2018-0304, on December 21, 2018, a copy of which is attached hereto as Exhibit A. This petition is filed pursuant to 49 U.S .C. section 31141 (f). Petitioner asks that the Court review and reverse the Determination in its entirety.

Petitioner is adversely affected by this Determination, and has a substantial interest in securing its reversal. Petitioner is the state official statutorily authorized to enforce California's minimum labor standards, including meal and rest break laws and regulations. In carrying out this responsibility, Petitioner filed Comments with the

FMCSA, attached hereto as Exhibit B, opposing a determination of preemption.

Similarly, the California Attorney General filed separate Comments with the FMCSA, attached hereto as Exhibit C. Absent the relief sought by this Petition, California's meal and rest period requirements will be unenforceable as to those motor carriers subject to the FMCSA Determination.

Dated: February 6, 2019

Respectfully submitted,

By: /s/ Miles E. Locker Miles E. Locker

Attorneys for Petitioner LABOR COMMISSIONER

EXHIBIT A

DEPARTMENT OF TRANSPORTATION

[4910-EX-P]

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0304]

California's Meal and Rest Break Rules for Commercial Motor Vehicle Drivers; Petition

for Determination of Preemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA).

ACTION: Order; Grant of Petition for Determination of Preemption.

SUMMARY: The FMCSA grants petitions submitted by the American Trucking Associations

and the Specialized Carriers and Rigging Association 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 property-carrying commercial motor vehicle (CMV) drivers covered by the FMCSA's

hours of service regulations, Federal law provides for preemption of State laws on CMV safety

that are additional to or more stringent than Federal regulations if they (l) 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 the MRB Rules are laws on 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, (202) 366-3551; email Chades.Fromm({g,dotgov. Elcctnmic Access

You may see all the comments online through the Federal Document Management System (FDMS) at .

Docket: For access to the docket to read backgrnund documents or comments, go to or Room W 12-140 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 electronic form of 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 Federal Docket Management System (FDMS) published in the Federal Register on Decen1ber 29, 2010. 75 FR 82132. Background

On September 24, 2018, the American Trucking Associations (ATA) petitioned the Federal Motor Carrier Safety Administration (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 commercial motor vehicles (CMVs) subject to the FMCSA's hours of service (HOS) regulations. On October 29, 2018, the Specialized Carriers and Rigging Association (SCRA) also filed a petition seeking a preemption determination concerning the same meal and rest break requirements. The SCRA opted to submit a petition in lieu of comments as part of

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