Intl Brotherhood of Teamsters v. Fmcsa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

INTERNATIONAL BROTHERHOOD OF No. 18-73488
TEAMSTERS, LOCAL 2785;
EVERARDO LUNA, FMCSA No.
Petitioners, 2018-0304

v.

FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION,
Respondent,

WILLIAM B. TRESCOTT,
Intervenor.
2 IBT V. FMCSA

INTERNATIONAL BROTHERHOOD OF No. 19-70323
TEAMSTERS; INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, FMCSA No.
LOCAL 848; CHARLES “LUCKY” 2018-0304
LEPINS; JULIO GARCIA; JESUS
MALDONADO; JOSE PAZ,
Petitioners,

v.

FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION; U.S. DEPARTMENT
OF TRANSPORTATION,
Respondents.

LABOR COMMISSIONER FOR THE No. 19-70329
STATE OF CALIFORNIA,
Petitioner, FMCSA No.
2018-0304
v.

FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION,
Respondent.
 IBT V. FMCSA 3

DUY NAM LY; PHILLIP MORGAN, No. 19-70413
Petitioners,
FMCSA No.
v. 2018-0304

FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION; U.S. DEPARTMENT OPINION
OF TRANSPORTATION,
Respondents.

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, Circuit Judges.

Opinion by Judge Bress
4 IBT V. FMCSA

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.” 49 U.S.C. § 31141(c).

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 § 31141 and provided a reasoned
analysis why it was doing so. The panel rejected petitioners’
arguments that Chevron deference was inapplicable.

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

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 IBT V. FMCSA 5

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. 49 U.S.C.
§ 31141(c)(1). The FMCSA reached this conclusion
because California required more breaks, more often and
with less flexibility as to timing. The panel rejected
petitioners’ challenges to this determination.

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.” 49 U.S.C. § 31141(c)(4)(C). Petitioners’
counterarguments did not show that the agency acted
arbitrarily or capriciously.

COUNSEL

Deepak Gupta (argued), Jonathan E. Taylor, Gregory A.
Beck, and Neil K. Sawhney, Gupta Wessler PLLC,
6 IBT V. FMCSA

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, Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; Steven G. Bradbury, General Counsel; Paul M. Geier,
Assistant General Counsel; Charles E. Enloe, Trial Attorney;
United States Department of Transportation, Washington,
D.C.; Alan Hanson, Chief Counsel; Charles J. Fromm,
Deputy Chief Counsel; Sue Lawless, Assistant Chief
Counsel; Tracy M. White, Attorney-Advisor; Federal Motor
 IBT V. FMCSA 7

Carrier Safety Administration, Washington, D.C.; for
Respondents.

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
8 IBT V. FMCSA

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 allow commercial truck drivers to take more
rest breaks, at greater frequency, and with less flexibility as
to when breaks occur.

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
 IBT V. FMCSA 9

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.” 49 U.S.C.
§ 31136(a). Among other things, federal regulations “shall
ensure” that “the responsibilities imposed on operators of
commercial motor vehicles do not impair their ability to
operate the vehicles safely.” Id. § 31136(a)(2).

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.” Id. § 31141(a). To carry out this duty,
“[t]he Secretary shall review State laws and regulations on
commercial motor vehicle safety.” Id. § 31141(c)(1).

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
49 U.S.C. § 31136 and decide whether the State law “has the
same effect as,” “is less stringent than,” or “is additional to
or more stringent than” the federal regulation. Id.
10 IBT V. FMCSA

§ 31141(c)(1). If the Secretary decides a State law or
regulation has the “same effect” as the federal regulation,
“the State law or regulation may be enforced.” Id.
§ 31141(c)(2). If a State law is less stringent than the federal
regulation, “the State law or regulation may not be
enforced.” Id. § 31141(c)(3).

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.” Id. § 31141(c)(4). When considering the
burden on interstate commerce, “the Secretary may consider
the effect on interstate commerce of implementation of that
law or regulation with the implementation of all similar laws
and regulations of other States.” Id. § 31141(c)(5).

The Secretary has delegated its rulemaking and
preemption authority to the Administrator of the FMCSA.
49 C.F.R. § 1.87(f).

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 driver “may not drive
without first taking 10 consecutive hours off duty,”
 IBT V. FMCSA 11

49 C.F.R. § 395.3(a)(1) (2018), 1 and “may not drive after the
end of the 14-consecutive-hour period without first taking
10 consecutive hours off duty,” id. § 395.3(a)(2). Within
that 14-hour period, a driver may only drive 11 hours. Id.
§ 395.3(a)(3)(i). Federal regulations also impose weekly
driving limits. Id. § 395.3(b) (prohibiting a driver from
being on duty for more than 60 or 70 hours in seven or eight
consecutive days, respectively).

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 49 C.F.R. § 395.3). Except for certain “short-
haul” drivers, a property-carrying commercial motor vehicle
driver working more than eight hours must take at least one
30-minute break during the first eight hours, although the
driver has flexibility as to when the break occurs. 49 C.F.R.
§ 395.3(a)(3)(ii). That 30-minute break can be spent “off-
duty” or in a “sleeper berth.” Id. 2 The 2011 break
requirement supplemented longstanding federal regulations

1
The FMCSA revised 49 C.F.R. § 395.3 in 2019, and again in 2020.
See Hours of Service of Drivers—Restart Provision, 84 Fed. Reg. 48,077
(Sept. 12, 2019); Hours of Service of Drivers, 85 Fed. Reg. 33,396 (June
1, 2020). In this opinion, we cite the 2018 version of the regulation, the
rule in place at the time of the FMCSA’s preemption determination. But
the 2019 and 2020 changes do not affect the preemption analysis.
2
Under the 2020 revisions to the regulation, the 30-minute break
requirement now applies “only when a driver has driven (instead of
having been on-duty) for a period of 8 hours without at least a 30-minute
non-driving interruption.” 85 Fed. Reg. at 33,396. Additionally, a driver
can now satisfy the break requirement with “any non-driving period of
30 minutes, i.e., on-duty, off-duty, or sleeper berth time.” Id.; see also
49 C.F.R. § 395.3(a)(3)(ii) (2020).
12 IBT V. FMCSA

prohibiting a driver from operating a commercial motor
vehicle if too fatigued or unable to safely drive. 49 C.F.R.
§ 392.3. Employers may not coerce drivers to violate this
rule or the hours-of-service rules. Id. § 390.6. The federal
regulations do not require other breaks.

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 Cal. Lab. Code
§ 1173). To that end, the IWC has issued eighteen wage
orders, mostly on an industry-wide or occupation-wide
basis. Cal. Code Regs. tit. 8, §§ 11010–11170; Martinez,
231 P.3d at 272–73. These orders cover all employees in
California unless they are specifically exempted. See
Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 521 n.1
(Cal. 2012); Martinez, 231 P.3d at 273 & n.24; Cal. Code
Regs. tit. 8, § 11170(1)(A). Seventeen IWC orders contain
meal period requirements and sixteen contain rest period
requirements. See Cal. Code Regs. tit. 8, §§ 11010–11170.

Wage Order 9-2001 applies to “all persons employed in
the transportation industry,” which necessarily includes
property-carrying commercial truck drivers. Id. § 11090(1).
Under the order, an employee working more than five hours
a day is entitled to a “meal period of not less than
30 minutes.” Id. § 11090(11)(A). If, however, “a work
period of not more than six (6) hours will complete the day’s
work the meal period may be waived by mutual consent of
the employer and the employee.” Id. An employee is
entitled to “a second meal period of not less than 30 minutes”
when working more than 10 hours in a day. Id.
§ 11090(11)(B). The employee and employer can only agree
to waive the second meal break if the employee does not
 IBT V. FMCSA 13

work more than 12 hours in a day and did not waive the first
break. Id.; see also Cal. Lab. Code § 512(a) (imposing these
same meal break rules for all employees unless otherwise
exempted).

The California Wage Order also entitles transportation
industry employees to 10-minute rest breaks for every four
hours worked throughout the day. Cal. Code Regs. tit. 8,
§ 11090(12)(A). These rest breaks “insofar as practicable
shall be in the middle of each work period.” Id. California’s
Labor Commissioner can grant an employer an exemption
from the rest break requirement if it “would not materially
affect the welfare or comfort of employees and would work
an undue hardship on the employer.” Id. § 11090(17).

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.” Cal. Lab. Code § 226.7(c); see also Cal.
Code Regs. tit. 8, § 11090(11)(D), (12)(B). Employees can
bring a claim seeking such payment under California’s
Private Attorneys General Act of 2004 (PAGA), Cal. Lab.
Code §§ 2698–2699.6. See Cal. Lab. Code § 2699.3.
Employees can also seek civil penalties on behalf of
themselves and other employees; the State receives a portion
of any award. Id. § 2699.

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;
14 IBT V. FMCSA

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.” Id. at
79,205–06.

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 49 U.S.C. § 31141(c). 83 Fed. Reg. 67,472–80.

California’s Labor Commissioner and three other sets of
petitioners (labor organizations and affected individuals)
filed timely petitions for review. See 49 U.S.C.
§ 31141(f)(1). We have jurisdiction to review these
consolidated petitions under 49 U.S.C. § 31141(f)(2).
Although the petitioners place different weight on different
points, for ease of reference we generally refer to them
collectively as “petitioners.”

3
The preemption determination does not apply to drivers of
passenger-carrying commercial motor vehicles. 83 Fed. Reg. at 67,470
n.1.
 IBT V. FMCSA 15

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.” 5 U.S.C.
§ 706(2)(A), (C). Petitioners argue both that the FMCSA
lacks the statutory authority to preempt the MRB rules, and,
to the extent it could do so, that the agency’s preemption
decision was arbitrary and capricious. Based on our careful
review of the FMCSA’s decision and after applying the
deference that is due the agency, we conclude that
petitioners’ challenges lack merit.

A

The FMCSA only has authority to review for preemption
State laws and regulations “on commercial motor vehicle
safety.” 49 U.S.C. § 31141(c). The initial question we must
address is the meaning of this phrase.

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. Id.

The petitioners argue that laws “on commercial motor
vehicle safety” are those specifically directed at commercial
16 IBT V. FMCSA

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 49 U.S.C. § 31141(a) expressly gave the agency authority
to preempt “State law[s] and regulation[s] on commercial
motor vehicle safety” when the agency “decides” certain
criteria are met. Because the agency’s power to preempt is
part of the overall power Congress expressly delegated to it,
Wyeth does not diminish the deference due the agency’s
interpretation of a statute it is charged with administering.
See Wyeth, 555 U.S. at 576–77 (explaining that “agencies
have no special authority to pronounce on pre-emption
absent delegation by Congress” (emphasis added)); id.
at 576 & n.9 (contrasting the FDA’s lack of express
preemptive power with statutes that gave agencies the power
to preempt state laws); Durnford v. MusclePharm Corp.,
 IBT V. FMCSA 17

907 F.3d 595, 601 n.6 (9th Cir. 2018) (agencies do not
receive Chevron deference in interpreting a preemption
provision “[i]n the absence of a specific congressional
delegation of authority to interpret the scope of
preemption”); see also City of Arlington v. FCC, 569 U.S.
290, 297 (2013) (rejecting “[t]he misconception that there
are, for Chevron purposes, separate ‘jurisdictional’
questions on which no deference is due”).

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)).
18 IBT V. FMCSA

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 § 31141 and
provided a reasoned analysis for why it was doing so. See
Resident Councils of Wash., 500 F.3d at 1036. The FMCSA
explained that its earlier 2008 interpretation “was
unnecessarily restrictive” because “[t]here is nothing in the
statutory language or legislative history that supports” its
prior decision limiting the preemption provision to State
laws specifically directed at commercial motor vehicle
safety. 83 Fed. Reg. at 67,473. The FMCSA also explained
how circumstances had changed since 2008, because the
agency in 2011 had enacted specific break regulations for
commercial motor vehicle drivers. Id. at 67,474. These are
the types of explanations that an agency can offer to ensure
that Chevron deference is applied to its new interpretation.
See, e.g., Brand X Internet Servs., 545 U.S. at 981, 1001.
 IBT V. FMCSA 19

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.” 49 U.S.C.
§ 31141(a), (c). The FMCSA reasonably determined that a
State law “on commercial motor vehicle safety” is one that
“imposes requirements in an area of regulation that is
already addressed by a regulation promulgated under
[section] 31136.” 83 Fed. Reg. at 67,473. Section 31136(a)
allows the FMCSA to issue regulations “on commercial
motor vehicle safety.” Given the parallel language used in
sections 31136(a) and 31141(a), when the agency has issued
a regulation under its section 31136(a) authority, it is
reasonable for the agency to interpret section 31141(a)
analogously to allow preemption of State regulation in that
same area.

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
20 IBT V. FMCSA

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 MRB rules are not “on commercial motor vehicle
safety.” If California had specifically regulated the meal and
break times of commercial motor vehicle drivers and no one
else, that would of course be a regulation “on” commercial
motor vehicle safety. But those drivers remain subject to the
same regulations when California also applies its break laws
to other types of workers. Because California’s MRB rules
apply to drivers whose breaks are the subject of federal
 IBT V. FMCSA 21

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),
§ 31141(a)–(c), 108 Stat. 745, 1008–09 (1994). But
Congress made clear that these changes “may not be
construed as making a substantive change in the laws
replaced.” Id. sec. 6(a), 108 Stat. at 1378. And “no changes
in law or policy are to be presumed from changes of
language” in a statutory recodification “unless an intent to
make such changes is clearly expressed.” Finley v. United
States, 490 U.S. 545, 554 (1989) (quotations omitted),
superseded by statute on other grounds, as recognized in
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546
(2005). Given the circumstances of the 1994 amendments
and the ambiguity that otherwise exists between “on” and
22 IBT V. FMCSA

“pertaining to,” petitioners have not shown that the 1994
recodification compels their preferred interpretation of the
statutory text.

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 reading of “on” would
allow it to issue regulations and preempt State laws in areas
outside its delegated authority. Indeed, the agency expressly
disclaims that power. See 83 Fed. Reg. at 67,473 (“This
determination does not rely on a broad interpretation of
section 31141 as applicable to any State law that ‘affects’
[commercial motor vehicle] safety.”). The FMCSA’s
interpretation of “on” does not lead to such far-reaching
authority, either. While petitioners stress that the MRB rules
apply across many industries, the FMCSA has not
 IBT V. FMCSA 23

preempted those state laws generally, but only as applied to
drivers of property-carrying commercial motor vehicles
subject to federal regulation.

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 49 U.S.C. § 31141(a), but the agency’s
24 IBT V. FMCSA

decision to exercise its express statutory preemptive powers.
Petitioners have not explained how a case-dispositive
presumption against preemption could override an agency’s
textually permissible interpretation of an express preemption
provision it is charged with administering.

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.
49 U.S.C. § 14501(c)(1). Although Dilts held that this
provision did not preempt California’s MRB rules, see
769 F.3d at 647–50, we did not interpret the preemption
provision at issue here. Dilts therefore did not address
whether the MRB rules could fall within section 31141’s
scope. Indeed, the plaintiffs in Dilts worked exclusively in
California as short-haul drivers and were thus not even
“covered by . . . federal hours-of-service regulations.” Id. at
648 n.2.

Similarly, although the United States filed an amicus
brief in Dilts adhering to its 2008 determination that the
MRB rules were not preempted under 49 U.S.C. § 31141,
the government also noted that the agency had “broad
discretion” in interpreting that statute. See Brief for the
United States as Amicus Curiae, Dilts, 769 F.3d 637 (No.
12-55705), 2014 WL 809150, at *26–27. The Dilts amicus
brief did not maintain that the FMCSA’s 2008 interpretation
was unambiguously compelled. Instead, it insisted the
interpretation deserved Chevron deference. Id. Thus,
neither our decision in Dilts nor the United States’ position
in that case creates an impediment to the FMCSA’s current
preemption determination.
 IBT V. FMCSA 25

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.
49 U.S.C. § 31141(a).

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. 49 U.S.C. § 31141(c)(1). The FMCSA found
the third option correct. See 83 Fed. Reg. at 67,474–75.
Petitioners argue this determination was arbitrary and
capricious. Our review is “highly deferential, presuming the
agency action to be valid and affirming the agency action if
a reasonable basis exists for its decision.” Nat’l Mining
Ass’n v. Zinke, 877 F.3d 845, 866 (9th Cir. 2017) (quotations
omitted). We hold that the FMCSA’s determination on this
point was reasonable and supported.

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 49 C.F.R. § 395.3(a)(3)(ii). By
contrast, California generally requires a 30-minute meal
break within the first five hours of work, another 30-minute
meal break over the next five hours, and additional 10-
minute rest periods every four hours. Cal. Lab. Code
§ 512(a); Cal. Code Regs. tit. 8, § 11090(11)(A)–(B), (12).
The 10-minute rest breaks “insofar as practicable shall be in
the middle of each work period.” Cal. Code Regs. tit. 8,
26 IBT V. FMCSA

§ 11090(12). The differences between California and
federal law thus support the agency’s determination that the
MRB rules impose requirements “additional to or more
stringent than” federal law. 49 U.S.C. § 31141(c)(1)(C).
Indeed, California acknowledges that its rules result in
“more time off[] during the workday.”

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. Cal. Lab. Code § 512(a); Cal. Code
Regs. tit. 8, § 11090(11)(A)–(B). Employers can also seek
exemptions from the rest break requirements from
California’s Labor Commissioner. Cal. Code Regs. tit. 8,
§ 11090(17). And the California Supreme Court has noted
that rest breaks may take place at a time other than the
middle of the work period “where practical considerations
render [that] infeasible.” Brinker Rest. Corp., 273 P.3d at
530.

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 time.
See 83 Fed. Reg. at 67,474–75. The degree of flexibility that
California law affords thus does not undermine the agency’s
conclusion that California’s MRB rules are still “additional
to or more stringent than” federal requirements.

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.” Cal. Lab. Code § 226.7(c);
Cal. Code Regs. tit. 8, § 11090(11)(D), (12)(B). Petitioners
thus argue that California law does not really impose
additional or more stringent requirements than federal law
 IBT V. FMCSA 27

because an employer may simply pay to avoid complying
with the MRB rules. It is not apparent how petitioners’
characterization changes the analysis because employers
under California law would still either need to provide
breaks or make break-related payments that federal law does
not require. See 83 Fed. Reg. at 67,475 n.9. Regardless, the
agency’s decision was consistent with California law.

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. Cal. Lab. Code § 226.7(b), (c); see also
83 Fed. Reg. at 67,475. As California acknowledged at oral
argument, an employer’s failure to provide the required
breaks is also a misdemeanor under California law. See Cal.
Lab. Code § 1199; Ward v. United Airlines, Inc., 466 P.3d
309, 315 (Cal. 2020) (noting that California Labor Code
§ 1199(c) “mak[es] violation of an IWC wage order a
misdemeanor”). Although California represents that these
misdemeanor prosecutions have rarely, if ever, occurred, the
apparent availability of this remedy underscores that failure
to comply with the break requirements is a legal violation.

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
28 IBT V. FMCSA

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 clarified that payments instead of breaks
“should be the exception rather than the rule, to be used
when the employer—because of irregular or unexpected
circumstances such as emergencies—has to summon an
employee back to work.” Id.

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
 IBT V. FMCSA 29

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. 49 U.S.C.
§ 31141(c)(1)(C).

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.” Id. § 31141(c)(4)(A)–(C). The
agency found all three criteria met. 83 Fed. Reg. at 67,475–
80. Petitioners argue that each finding was arbitrary and
capricious.

Any one of the three enumerated grounds is enough to
justify a preemption determination. See 49 U.S.C.
§ 31141(c)(4). We do not address the agency’s first two
findings because we hold that the agency did not act
arbitrarily or capriciously in finding that enforcement of the
MRB rules “would cause an unreasonable burden on
interstate commerce.” Id. § 31141(c)(4)(C).

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,
30 IBT V. FMCSA

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 financial
impact of the lost productivity and its effect on distribution
systems. Id. These costs were exacerbated by “California’s
share of the national economy” and the fact that
“California’s three major container ports carry
approximately 50% of the nation’s total container cargo
volume.” Id. at 67,478–79. The evidence in the
administrative record thus supports the FMCSA’s
determination that lost driving time leads to lost productivity
and burdens interstate commerce.

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
 IBT V. FMCSA 31

implementation of all similar laws and regulations of other
States.” 49 U.S.C. § 31141(c)(5). The FMCSA noted that
twenty States had their own meal and rest break rules, and
this “patchwork of requirements,” increased the burden on
interstate commerce. 83 Fed. Reg. at 67,479–80. Among
other things, companies had to create “elaborate schedules”
to navigate the different State requirements. Id. Taken
together, all these findings support the agency’s
determination that the MRB rules “cause an unreasonable
burden on interstate commerce.” 49 U.S.C. 31141(c)(4)(C).

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
32 IBT V. FMCSA

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.

As the FMCSA noted, many of the state laws that
petitioners cite “are well outside the scope of the Agency’s
statutory authority.” 83 Fed. Reg. at 67,480. And because
motor carriers will always be subject to varying state laws to
some extent, petitioners’ argument, if accepted, would
significantly limit the FMCSA’s ability to determine that
divergent state laws “on commercial motor vehicle safety”
pose an unreasonable burden on interstate commerce.
Nothing in the statute suggests the agency’s preemptive
powers are so constrained. Indeed, the statute is directly to
the contrary: it allows the agency to consider the cumulative
“effect on interstate commerce of implementation” of the
state law in question “with the implementation of all similar
laws and regulations of other States.” 49 U.S.C.
§ 31141(c)(5). In any event, the FMCSA here had more than

4
One petitioner argues that the FMCSA did not consider the non-
safety benefits of the MRB rules, such as workplace dignity or higher
wages for drivers. But there is no indication that the statute requires the
FMCSA to consider such factors, which are likely outside its expertise.
 IBT V. FMCSA 33

sufficient basis to conclude that the MRB rules burden
interstate commerce in a way that is not merely “negligible.”

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

5
IBT Local 2785 briefly argues that the FMCSA also flouted
numerous statutes and executive orders, but fails to explain how the
agency violated these various laws. We do not address these arguments,
as IBT Local 2785 “failed to argue” these issues “with any specificity in
[its] briefing.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1161 n.2 (9th Cir. 2008).

Petitioners Ly and Morgan also ask us to review an FMCSA legal
memorandum issued months after the preemption determination. In that
34 IBT V. FMCSA

* * *

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.

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 49 U.S.C. § 31141(f), nor was
it final agency action, see 5 U.S.C. § 704. We thus do not consider the
retroactivity issue.

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.
49 U.S.C. § 31141(f). Trescott’s motion to expedite the appeal is
DENIED as moot.