INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 2785; EVERARDO LUNA, Petitioners, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent, WILLIAM B. TRESCOTT, Intervenor. INTERNATIONAL BROTHERHOOD OF TEAMSTERS; INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 848; CHARLES “LUCKY” LEPINS; JULIO GARCIA; JESUS MALDONADO; JOSE PAZ, Petitioners, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; U.S. DEPARTMENT OF TRANSPORTATION, Respondents. LABOR COMMISSIONER FOR THE STATE OF CALIFORNIA, Petitioner, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent. DUY NAM LY; PHILLIP MORGAN, Petitioners, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; U.S. DEPARTMENT OF TRANSPORTATION, Respondents.
No. 18-73488, 19-70323, 19-70329, 19-70413
United States Court of Appeals for the Ninth Circuit
January 15, 2021
FMCSA No. 2018-0304
Opinion by Judge Bress
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Federal Motor Carrier Safety Administration
Argued and Submitted November 16, 2020 San Francisco, California
Filed January 15, 2021
Before: Jacqueline H. Nguyen, Andrew D. Hurwitz, and Daniel A. Bress,
Opinion by Judge Bress
SUMMARY*
Federal Motor Carrier Safety Administration
The panel denied petitions for review of the Federal Motor Carrier Safety Administration (“FMCSA“)‘s determination that federal law preempted California‘s meal and rest break rules (the “MRB rules“), as applied to drivers of property-carrying commercial motor vehicles who are subject to the FMCSA‘s own rest break regulations.
The FMCSA only has the authority to review for preemption State laws and regulations “on commercial motor vehicle safety.”
The panel held the agency‘s interpretation of the statute and the phrase “on commercial motor vehicle safety” merited deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), where the FMCSA acknowledged that it was departing from its 2008 interpretation of
Turning to Chevron‘s two-step framework, the panel held that even assuming petitioners identified a potential ambiguity in the statute, the agency‘s reading was a permissible one. The FMCSA reasonably determined that a State law “on commercial motor vehicle safety” was one that “imposes requirements in an area of regulations that is already addressed by a regulation promulgated under [section] 31136.” 83 Fed. Reg. at 67,473 (Dec. 28, 2018). The FMCSA‘s 2018 preemption decision also reasonably relied on Congress‘s stated interest in uniformity of regulation. The fact that California regulated meal and rest breaks in a variety of industries did not compel the conclusion that the MRB rules were not “on commercial motor vehicle safety.” Finally, the panel held that the decision in Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014), did not foreclose the FMCSA‘s interpretation. The panel concluded that the FMCSA permissibly determined that California‘s MRB rules were State regulations “on commercial motor vehicle safety,” so that they were within the agency‘s preemption authority.
The panel held that the FMCSA‘s determination that the MRB rules were “additional to or more stringent than” the federal regulation was reasonable and supported.
The panel held that the FMCSA did not act arbitrarily or capriciously in finding that enforcement of the MRB rules “would cause an unreasonable burden on interstate commerce.”
COUNSEL
Deepak Gupta (argued), Jonathan E. Taylor, Gregory A. Beck, and Neil K. Sawhney, Gupta Wessler PLLC, Washington, D.C.; Stan Saltzman, Marlin & Saltzman, Agoura Hills, California; for Petitioners Duy Nam Ly and Phillip Morgan.
Miles E. Locker (argued), Attorney, Division of Labor Standards Enforcement, Department of Industrial Relations, San Francisco, California; Xavier Becerra, Attorney General; Satoshi Yanai, Supervising Deputy Attorney General; Marisa Hernàndez-Stern, Deputy Attorney General; Office of the Attorney General, Los Angeles, California; for Petitioner Labor Commissioner for the State of California.
Julie Gutman Dickinson, Ira L. Gottlieb, Kiel B. Ireland, and Hector De Haro, Bush Gottlieb, Glendale, California, for Petitioner International Brotherhood of Teamsters, International Brotherhood of Teamsters, Local 848; Charles “Lucky” Lepins; Julio Garcia; Jesus Maldonado; and Jose Paz.
David A. Rosenfeld and Caitlin Gray, Weinberg Roger & Rosenfeld, Alameda, California, for Petitioners International Brotherhood of Teamsters, Local 2785, and Everardo Luna.
William B. Trescott, Bay City, Texas, pro se Intervenor.
Jennifer L. Utrecht (argued) and Mark B. Stern, Appellate Staff; Joseph H. Hunt,
Adam Berger, Schroeter Goldmark & Bender, Seattle, Washington; Daniel F. Johnson, Breskin Johnson & Townsend PLLC, Seattle, Washington; Aaron Kaufmann, Leonard Carder LLP, Oakland, California; Ashley Westby, National Employment Lawyers Association/The Employee Rights Advocacy Institute for Law & Policy, Washington, D.C.; for Amici Curiae State and National Employment Lawyers Associations.
Robert W. Ferguson, Attorney General; Anastasia Sandstrom, Seattle, Washington; for Amicus Curiae Washington State.
David R. Krause-Leemon, Beaudoin & Krause-Leemon LLP, Sherman Oaks, California; Aaron Parker, PODS Enterprises LLC, Clearwater, Florida; Carl Bentzel, Bentzel Strategies LLC, Bowie, Maryland; Bob Fatovic, Ryder Systems Inc., Miami, Florida; for Amici Curiae Specialized Carriers & Rigging Association, PODS Enterprises LLC, Ryder System Inc., and Western States Trucking Association.
Richard Pianka, ATA Litigation Center, Arlington, Virginia, for Amici Curiae American Trucking Associations Inc., California Trucking Association, Washington Trucking Associations, Intermodal Association of North America, and American Moving and Storage Association.
Adam Smedstad, Scopelitis Garvin Light Hanson & Feary P.C., Seattle, Washington; James H. Hanson, Scopelitis Garvin Light Hanson & Feary P.C., Indianapolis, Indiana; for Amici Curiae CRST Expedited Inc., FAF Inc., Heartland Express Inc. of Iowa, John Christner Trucking LLC, Penske Logistics LLC, Penske Truck Leasing Co. L.P., Rail Delivery Services Inc., and U.S. Xpress Inc.
Malcolm A. Heinicke and Joseph D. Lee, Munger Tolles & Olson LLP, Los Angeles, California; Daryl Joseffer and Tara S. Morrissey, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States.
OPINION
BRESS, Circuit Judge:
The Federal Motor Carrier Safety Administration (FMCSA), an agency within the Department of Transportation, is tasked with issuing regulations on commercial motor vehicle safety. The FMCSA also has authority to determine that state laws on commercial motor vehicle safety are preempted, based on criteria Congress has specified. In this case, the FMCSA determined that federal law preempts California‘s meal and rest break rules, known as the “MRB rules,” as applied to drivers of property-carrying commercial motor vehicles who are subject to the FMCSA‘s own rest break regulations. Compared to federal safety regulations, California‘s MRB rules generally require that employers
California‘s Labor Commissioner, certain labor organizations, and others now petition for review of the FMCSA‘s preemption determination. Because the agency‘s decision reflects a permissible interpretation of the Motor Carrier Safety Act of 1984 and is not arbitrary or capricious, we deny the petitions for review.
I
A
Congress passed the Motor Carrier Safety Act of 1984 “to promote the safe operation of commercial motor vehicles, [and] to minimize dangers to the health of operators of commercial motor vehicles and other employees.” Pub. L. No. 98-554, tit. II, 98 Stat. 2832, § 202 (originally codified at 49 U.S.C. app. 2501). Under the Act, the Secretary of Transportation “shall prescribe regulations on commercial motor vehicle safety” that contain “minimum safety standards for commercial motor vehicles.”
The Act also gives the Secretary the express power to preempt State law: “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.”
The statute provides a multi-step process that the Secretary must follow in conducting this review. The Secretary must first compare the State law or regulation at issue to a regulation prescribed by the Secretary under
If the Secretary decides that a State law is “additional to or more stringent” than a federal regulation, another decision tree applies. At that point, the State law “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.”
The Secretary has delegated its rulemaking and preemption authority to the Administrator of the FMCSA.
B
Federal regulations impose limits on the driving time for commercial motor vehicle drivers. These are known as the hours-of-service regulations. Under federal law, a property-carrying commercial motor vehicle
In 2011, the FMCSA revised the federal hours-of-service regulations and adopted the rules on breaks for truck drivers that form the basis for the FMCSA‘s 2018 decision to preempt California‘s MRB rules. See Hours of Service of Drivers, 76 Fed. Reg. 81,134, 81,188 (Dec. 27, 2011) (codified at
The California rules are different. California‘s rules are contained in wage orders issued by the State‘s Industrial Welfare Commission (IWC), which is tasked with protecting workers’ “health, safety, and welfare.” Martinez v. Combs, 231 P.3d 259, 271 (Cal. 2010) (quoting
Wage Order 9-2001 applies to “all persons employed in the transportation industry,” which necessarily includes property-carrying commercial truck drivers.
The California Wage Order also entitles transportation industry employees to 10-minute rest breaks for every four hours worked throughout the day.
Under California law, an employer who fails to provide a meal or rest break must “pay the employee one additional hour of pay at the employee‘s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.”
C
In response to a petition from a group of motor carriers, the FMCSA in 2008 declined to preempt California‘s MRB rules as applied to commercial motor vehicle drivers subject to FMCSA‘s hours-of-service regulations. See Petition for Preemption of California Regulations on Meal Breaks and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for Failure to Meet Threshold Requirement, 73 Fed. Reg. 79,204, 79,204-06 (Dec. 24, 2008). The FMCSA ruled that it lacked the authority to preempt because the MRB rules applied far beyond the trucking industry and were thus not “on commercial motor vehicle safety.”
In 2018, two industry groups, the American Trucking Association and the Specialized Carriers and Rigging Association, asked the FMCSA to revisit its 2008 “no preemption” determination. After seeking public comment on the preemption question, see California Meal and Rest Break Rules, 83 Fed. Reg. 50,142 (Oct. 4, 2018), the FMCSA declared California‘s MRB rules preempted as applied to operators of property-carrying motor vehicles subject to the federal hours-of-service regulations.3 See California‘s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers, 83 Fed. Reg. 67,470 (Dec. 28, 2018). The FMCSA determined that the MRB rules were in fact “on commercial motor vehicle safety” and could not be enforced under
California‘s Labor Commissioner and three other sets of petitioners (labor organizations and affected individuals) filed timely petitions for review. See
II
We review the FMCSA‘s preemption determination under the Administrative Procedure Act (APA) framework for judicial review. The question is therefore whether the FMCSA‘s preemption decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
A
The FMCSA only has authority to review for preemption State laws and regulations “on commercial motor vehicle safety.”
In its preemption determination, the FMCSA concluded that a State law or regulation is “on commercial motor vehicle safety” if it “‘imposes requirements in an area of regulation that is already addressed by a regulation promulgated under [section] 31136.‘” 83 Fed. Reg. at 67,473. Under this interpretation, the MRB rules are “on commercial motor vehicle safety” because federal regulations promulgated under section 31136 govern breaks for commercial motor vehicle drivers.
The petitioners argue that laws “on commercial motor vehicle safety” are those specifically directed at commercial motor vehicle safety. They maintain that the MRB rules do not qualify because they apply to many workers other than truck drivers and regulate employee health and wellbeing generally. The FMCSA counters that at the very least, the statute is ambiguous and that the agency‘s interpretation merits deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
We reject, at the outset, petitioners’ arguments that Chevron deference is inapplicable. An agency usually receives Chevron deference in its construction of an ambiguous statute that it administers. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). Relying mainly on Wyeth v. Levine, 555 U.S. 555 (2009), petitioners argue that the FMCSA is entitled to no deference when it comes to preemption determinations. But Wyeth does not apply here.
In Wyeth, the Supreme Court declined to defer to the FDA‘s preemption decision because “Congress ha[d] not authorized the FDA to pre-empt state law directly.” 555 U.S. at 576. That is not the case here because Congress in
The petitioners also argue that the FMCSA should receive no deference because the 2018 preemption determination reversed the agency‘s 2008 determination that it lacked the power to preempt California‘s MRB rules. But we have explained that “[a]n initial agency interpretation is not instantly carved in stone” because “the agency . . . must consider varying interpretations and the wisdom of its policy on a continuing basis.” Resident Councils of Wash. v. Leavitt, 500 F.3d 1025, 1036 (9th Cir. 2007) (quoting Chevron, 467 U.S. at 863-64). As a result, “an agency‘s ‘new’ position is entitled to deference ‘so long as the agency acknowledges and explains the departure from its prior views.‘” Id. (quoting Seldovia Native Ass‘n v. Lujan, 904 F.2d 1335, 1346 (9th Cir. 1990)); see also Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 981, 1001 (2005) (explaining that an agency “is free within the limits of reasoned interpretation to change course if it adequately justifies the change” and that “[a]gency inconsistency is not a basis for declining to analyze the agency‘s interpretation under the Chevron framework“); Rust v. Sullivan, 500 U.S. 173, 186 (1991) (explaining that the Supreme Court “has rejected the argument that an agency‘s interpretation is not entitled to deference because it represents a sharp break with prior interpretations of the statute in question” (quotations omitted)).
These principles of administrative law recognize that democratic processes, improved understandings, or changed circumstances may prompt agencies to alter their own views over time. Petitioners have not articulated how a rule that precludes deference anytime an agency changes its mind could be justified under the basic delegation theory animating Chevron. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996) (“[C]hange is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.“). Nor have petitioners explained why the agency would be required to hew to a statutory interpretation that it no longer believes is correct. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (“The Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation.“).
In this case, the FMCSA acknowledged that it was departing from its 2008 interpretation of
Turning to Chevron‘s familiar two-step framework, we first ask whether the statutory text is unambiguous. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. But if the statute is ambiguous, “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. Here, even assuming petitioners have identified a potential ambiguity in the statute, we hold that the agency‘s reading is a permissible one.
Once again, the operative statutory language is the phrase “on commercial motor vehicle safety.”
The FMCSA‘s 2018 preemption decision also reasonably relied on Congress‘s stated interest in uniformity of regulation. See 83 Fed. Reg. at 67,473 (explaining that the 1984 Act “clearly expresses Congress‘s intent that ‘there be as much uniformity as practicable whenever a Federal standard and a State requirement cover the same subject matter‘“) (quoting S. Rep. No. 98-424, at 14 (1984)); see also Motor Carrier Safety Act of 1984 § 203(2), 98 Stat. at 2832 (originally codified at 49 U.S.C. app. 2502) (finding safety benefits from “improved, more uniform commercial motor vehicle safety measures“). The FMCSA could reasonably conclude that a State law disrupts regulatory uniformity even when the law was not specifically directed at commercial vehicle motor safety because a broader State law could still cover the same subject matter as FMCSA regulations.
Petitioners argue that the word “on” must be read narrowly, so that the FMCSA can only preempt State laws “specifically directed” at commercial motor vehicle safety. Petitioners thus maintain that the MRB rules cannot be “on commercial motor vehicle safety” because they also regulate working conditions and ensure employee health and wellbeing. But that the MRB rules may serve these other purposes cannot insulate them from preemption when, as here, the rules also promote commercial motor vehicle safety. See, e.g., 83 Fed. Reg. at 67,474 (“[I]n her comments on this petition, the California Labor Commissioner acknowledged that the MRB Rules improve driver and public safety stating, ‘It is beyond doubt that California‘s meal and rest period requirements promote driver and public safety.‘“).
Nor does the fact that California regulates meal and rest breaks in a variety of industries compel the conclusion that the
regulation “on commercial motor vehicle safety,” the MRB rules can be described as laws “on” commercial motor vehicle safety as well. Or at least the FMCSA could permissibly conclude that was so. See Brand X Internet Servs., 545 U.S. at 989 (“[W]here a statute’s plain terms admit of two or more reasonable ordinary usages, the [agency’s] choice of one of them is entitled to deference.”).
Petitioners nevertheless suggest that the word “on” is inherently narrow and at least narrower than the phrase “pertaining to,” which was the Motor Carrier Safety Act’s original language. See §§ 206–08, 98 Stat. at 2832–37. But we conclude that the statute does not unambiguously require petitioners’ reading. See Chevron, 467 U.S. at 842–43. The word “on” is not inevitably as narrow as petitioners claim. See On, prep., Oxford English Dictionary (2d ed. 1989) (“22. a. In regard to, in reference to, with respect to, as to.”), https://www.oed.com/oed2/00163302.
The history of the 1994 revision also counsels against petitioners’ more confined reading. Congress changed “pertaining to” to “on” or “related to” in several provisions in a 1994 recodification. See Pub. L. No. 103-272, sec. 1(d),
Given the language in the statute, the FMCSA could reasonably reject petitioners’ charge that its reading of “on” would give the FMCSA unlimited power to preempt any law that merely “affects” commercial motor vehicle safety in some tangential way. 83 Fed. Reg. at 67,473. Petitioners argue, for example, that the agency’s reading of “on” would allow the FMCSA to preempt state laws allowing for pregnancy disability leave or leave to serve on a jury. These concerns, however, are overstated. The agency has not ushered in an era of unbounded FMCSA authority through its interpretation of the preposition “on.”
The agency’s interpretation is more circumscribed than petitioners suggest: MRB rules are regulations “on commercial motor vehicle safety” because they are within FMCSA’s specific regulatory domain and the subject of existing federal regulation in the very same area. The agency has issued particularized regulations that govern break times for drivers of property-carrying commercial motor vehicles, and there is no dispute those are regulations “on commercial motor vehicle safety.” There is thus no reason to believe that the agency’s
Nor is the FMCSA’s interpretation rendered unreasonable in the face of a claimed presumption against preemption. The Supreme Court has instructed that the “inquiry into the scope of a [federal] statute’s pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case.” Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016) (alteration in original) (quoting Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008)). When, as here, “the statute ‘contains an express pre-emption clause,’ we do not invoke any presumption against pre-emption but instead ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) (quoting Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011)); see also Atay v. County of Maui, 842 F.3d 688, 699 (9th Cir. 2016) (same).
Petitioners maintain that the MRB rules are part of California’s traditional “police power” and that a presumption against preemption should therefore still apply. But a state’s traditional regulation in an area is not, standing alone, sufficient to defeat preemption in the face of an express preemption clause. As we have explained in the context of the MRB rules in particular, “[w]age and hour laws constitute areas of traditional state regulation, although that fact alone does not ‘immunize’ state employment laws from preemption if Congress in fact contemplated their preemption.” Dilts v. Penske Logistics, LLC, 769 F.3d 637, 643 (9th Cir. 2014). In this case, the issue is not the general preemptive force of
Finally, our decision in Dilts, 769 F.3d 637, does not foreclose the FMCSA’s interpretation. Dilts concerned the scope of an express preemption provision in the Federal Aviation Administration Authorization Act of 1994 (FAAAA) that prohibits state laws that are “related to” prices, routes, or services of commercial motor vehicles.
Similarly, although the United States filed an amicus brief in Dilts adhering to
We therefore hold that the FMCSA permissibly determined that California’s MRB rules were State regulations “on commercial motor vehicle safety,” so that they were within the agency’s preemption authority.
B
The FMCSA next was required to determine whether the MRB rules were “less stringent than,” had the “same effect” as, or were “additional to or more stringent than” the federal regulations.
The FMCSA concluded that the MRB rules were “additional to or more stringent than” federal regulations because California requires more breaks, more often, and with less flexibility as to timing. 83 Fed. Reg. at 67,474–75. Federal regulations generally require that a driver working more than eight hours must take a 30-minute break during the first eight hours, while providing flexibility as to when the break takes place. See
Petitioners make two main arguments in response. First, petitioners argue that California law has some flexibility in its design. For example, employees may agree to waive certain meal breaks.
Nonetheless, as compared to the federal regulations, the California rules still require more breaks, with greater frequency, and with lesser ability to adjust the break
Second, petitioners point out that, rather than provide the meal or rest breaks, an employer can “pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.”
As the FMCSA noted, California treats its MRB rules as requirements, providing that employers “shall not” deny the required breaks while creating a monetary remedy for their “fail[ure]” to do so.
And that is how the California Supreme Court has treated them, in a series of decisions on which the FMCSA relied. In Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160 (Cal. 2012), that court explained that “Section 226.7 is not aimed at protecting or providing employees’ wages. Instead, the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employers provide meal and rest periods as mandated by the IWC.” Id. at 1167. As a result, “the legal violation is nonprovision of meal or rest breaks.” Id. at 1168. The court was clear: “section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay” because “[t]he failure to provide required meal and rest breaks is what triggers a violation of section 226.7.” Id. at 1168.
Petitioners cite Augustus v. ABM Security Services, Inc., 385 P.3d 823 (Cal. 2016), and Murphy v. Kenneth Cole Productions, Inc., 155 P.3d 284 (Cal. 2007). But neither case suggests that the FMCSA’s decision was arbitrary or capricious. In Augustus, the California Supreme Court noted that if employers “find it especially burdensome to relieve their employees of all duties during rest periods,” they have the “option[]” to “pay the premium pay set forth in . . . section 226.7.” 385 P.3d at 834. But Augustus cautioned that the payment option does not “impl[y] that employers may pervasively interrupt scheduled rest periods, for any conceivable reason—or no reason at all.” Id. at 834 n.14. And Augustus
Murphy likewise does not undermine the FMCSA’s reasoning. In Murphy, a pre-Kirby decision, the California Supreme Court held that claims for additional wages for violating the MRB rules were governed by the statute of limitations period for wage claims, not the shorter limitations period for penalties. 155 P.3d at 297. But this does not change the overall characterization of the MRB rules as requiring meal and rest breaks, so that failing to provide them is a “legal violation.” Kirby, 274 P.3d at 1167. As Kirby explained in reconciling Murphy, “[t]o say that a section 226.7 remedy is a wage . . . is not to say that the legal violation triggering the remedy is nonpayment of wages.” Id. at 1168. The FMCSA in its preemption determination addressed petitioners’ reliance on Murphy and explained how (per the California Supreme Court) Murphy was consistent with Kirby. 83 Fed. Reg. at 67,475. That reasoning was not arbitrary or capricious.
In short, the FMCSA faithfully interpreted California law in finding that California’s rules were “additional to or more stringent than” federal regulations.
C
At this point in its analysis, the FMCSA could preempt the MRB rules as applied to drivers of property-carrying commercial vehicles if it decided that the State law (1) “has no safety benefit” or (2) “is incompatible with the regulation prescribed by the Secretary,” or (3) that “enforcement of the State law or regulation would cause an unreasonable burden on interstate commerce.”
Any one of the three enumerated grounds is enough to justify a preemption determination. See
In reaching that conclusion, the FMCSA found that the MRB rules “impose significant and substantial costs stemming from decreased productivity and administrative burden.” 83 Fed. Reg. at 67,479. The administrative record supports these conclusions. As to decreased productivity, the FMCSA could reasonably determine that the MRB rules cause an unreasonable burden on interstate commerce because they “decrease each driver’s available duty hours.” Id. The FMCSA examined the federal and California schemes and explained how the MRB rules required drivers to spend more time on breaks. See, e.g., id. at 67,478 & n.12.
The FMCSA also relied on public comments demonstrating how the MRB rules’ more demanding break requirements affected productivity and, in turn, the efficient operation of an interstate delivery system. Id. at 67,479. For example, FedEx Corporation explained that “to take off-duty breaks, the ‘drivers must slow down, exit the roadway, find a safe and suitable location to park and secure their vehicles, and then exit the vehicle’ and that the company has to build additional time, up to 90 minutes, into the drivers’ routes.” Id. Other public comments and studies showed
The FMCSA also reasonably relied on “the administrative burden associated with complying with the MRB rules.” Id. at 67,479. This burden included higher compliance costs, increases in administrative and operations headcount, changes to delivery and logistics programs, revision of routes, and changes to compensation plans. Id. The agency also properly considered “the effect on interstate commerce of implementation of [the MRB rules] with the implementation of all similar laws and regulations of other States.”
Petitioners’ counterarguments do not show that the agency acted arbitrarily or capriciously. Contrary to petitioners’ assertion, the agency did weigh costs and benefits in concluding that the MRB rules posed an unreasonable burden on interstate commerce. The FMCSA “acknowledge[d] that the State of California has a legitimate interest in promoting driver and public safety.” 83 Fed. Reg. at 67,479. It explained, however, that “the Federal [hour of service] rules and the provisions in the [federal motor carrier safety regulations] relating to fatigued driving and employer coercion serve to promote that interest.” Id. Properly understood, the FMCSA simply determined that, in its view, federal regulations adequately and more appropriately balanced the competing interests between safety and economic burden. Id.; see also id. at 67,476 (explaining how federal regulations “balanc[e] the need to prevent excessive hours of continuous driving with a driver’s need for flexibility in scheduling a rest break”). Petitioners have not shown that conclusion was unreasonable. Nor was the FMCSA required to conduct its preemption assessment in a manner identical to a dormant Commerce Clause undue burden analysis. See Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).4
We likewise reject petitioners’ assertion that the FMCSA’s cumulative burden analysis was flawed because industry must already comply with varying State laws in other areas, such as environmental and anti-discrimination laws. In petitioners’ view, the “marginal cost” of complying with “one more set” of varying State laws is “negligible.” But this argument does not show that the FMCSA’s preemption determination, made under a statute which gives it the express authority to do so, was arbitrary or capricious.
Finally, petitioners err in claiming that two of our decisions invalidate the FMCSA’s preemption determination. They do not. In Sullivan v. Oracle Corp., 662 F.3d 1265 (9th Cir. 2011), we held that California’s overtime rules did not violate the dormant Commerce Clause because “California applies its Labor Code equally to work performed in California, whether that work is performed by California residents or by out-of-state residents.” Id. at 1271. That holding has no apparent relevance to this case.
Nor did we resolve the cumulative burden question as a matter of law when we stated in Dilts that “applying California’s meal and rest break laws to motor carriers would not contribute to an impermissible ‘patchwork’ of state-specific laws, defeating Congress’ deregulatory objectives.” 769 F.3d at 647. As we have noted, Dilts did not concern the statute at issue here. And the above statement turned on Dilts’ determination that the meal and rest break laws were not “related to” prices, routes, and services under the FAAAA’s preemption provision. Id. Like Sullivan, Dilts does not foreclose the agency’s preemption determination.5
Petitioners Ly and Morgan also ask us to review an FMCSA legal memorandum issued months after the preemption determination. In that memorandum, an FMCSA lawyer opined that the agency’s preemption decision applied retroactively. This determination was not part of the preemption determination on review, see
Finally, pro se intervenor William Trescott asks the court to vacate various federal regulations. These issues are also not part of the FMCSA’s preemption determination and are thus not before us.
* * *
We appreciate petitioners’ arguments in favor of their preferred approach to governance in the area of commercial motor vehicle safety. But in this case, petitioners’ objections are ultimately as much to the statute Congress drafted as they are to the FMCSA’s preemption determination. Under the principles that govern our evaluation of the agency’s decision, the petitions for review must be
DENIED.