State Commercial Motor Vehicle Safety Law Affecting Interstate Commerce; Notice of Review and Preliminary Preemption Determination

DEPARTMENT OF TRANSPORTATION

[FHWA Docket No. MC-94-14]

State Commercial Motor Vehicle Safety Law Affecting Interstate

Commerce; Notice of Review and Preliminary Preemption Determination

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of review of State of Mississippi commercial motor

vehicle safety law; notice of preliminary preemption determination;

request for comments.

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SUMMARY: The FHWA is reviewing a State of Mississippi commercial motor

vehicle safety law to determine whether the law may be in effect and

enforced with respect to commercial motor vehicles in interstate

commerce. This review is required by the Motor Carrier Safety Act of

1984. In a preliminary finding, the FHWA has determined that the State

law is incompatible with Federal regulations. Unless the preliminary

finding is refuted by evidence or arguments received in response to

this notice, a determination will be made that the law is preempted and

shall not have effect and be enforced.

DATES: Comments must be received on or before September 13, 1994.

ADDRESSES: All signed, written comments should refer to the docket

number that appears at the top of this document and must be submitted

to HCC-10, room 4232, Office of Chief Counsel, Federal Highway

Administration, 400 Seventh Street SW., Washington, DC 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Linda Taylor, Office of Motor

Carriers, HFO-30, (202) 366-0133; or Mr. David Sett, Office of the

Chief Counsel, HCC-20, (202) 366-0834; Federal Highway Administration,

400 Seventh Street SW., Washington, DC 20590. Office hours are from

7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION: The Motor Carrier Safety Act of 1984 (the

Act) directs the Secretary of Transportation to conduct rulemaking

proceedings to determine whether State laws may be in effect and

enforced with respect to commercial motor vehicles in interstate

commerce. The FHWA may, upon its own initiative or the petition of any

interested person, begin proceedings to determine the preemptive effect

of Federal regulations. 49 U.S.C. app. 2507.

Under the United States Constitution, the FHWA shares with the

States the power to regulate commercial motor vehicles in interstate

commerce. However, State laws which are incompatible with and do not

have the same effect as Federal regulations may be preempted.

The Commercial Motor Vehicle Safety Regulatory Review Panel, which

was established by the Act to analyze State commercial motor vehicle

safety laws and regulations, notified the FHWA in its final report in

August 1990 that a State of Mississippi law was incompatible with

Federal regulations. The law in question exempts vehicles engaged in

certain industries, such as lumber and gravel hauling and farming, from

compliance with State motor carrier safety laws and regulations.

The specific provisions which have preliminarily been found to be

preempted as they apply to interstate commerce are found in Section 77-

7-16(3)(g)-(i), Mississippi Code of 1972. Subsection (3) exempts

certain vehicles from the provision in the Code authorizing the State

Public Service Commission to inspect vehicles for safe operation and

safe use of equipment. Included in this exemption are:

(g) Motor vehicles owned and operated by any farmer who:

(i) Is using the vehicle to transport agricultural products from a

farm owned by the farmer, or to transport farm machinery or farm

supplies to or from a farm owned by the farmer;

(ii) Is not using the vehicle to transport hazardous materials of a

type and quantity that requires the vehicle to be placarded in

accordance with the Federal Hazardous Material Regulations in CFR 49

part 177.823; and

(iii) Is using the vehicle within one hundred fifty (150) air miles

of the farmer's farm, and the vehicle is a private motor carrier of

property.

(h) Motor vehicles engaged in the transportation of logs and

pulpwood between the point of harvest and the first point of processing

the harvested product;

(i) Motor vehicles engaged exclusively in hauling gravel or other

unmanufactured road building materials.

The FMCSRs do not contain compatible exemptions. Generally, the

Federal Motor Carrier Safety Regulations (FMCSRs) do not allow

industry-based exemptions. State laws which provide such exemptions for

vehicles in interstate commerce are deemed less stringent than the

FMCSRs.

Drivers of farm vehicles, such as defined in paragraph (g) of the

Mississippi Code, do have limited (49 CFR 391.67, articulated vehicles)

and full (49 CFR 391.2(c), nonarticulated vehicles) exemptions from

driver qualification requirements of Part 391 of the FMCSRs. Unlike the

Mississippi Code, however, the FMCSRs do not exempt farm vehicles or

their drivers from any other motor carrier safety requirements.

Paragraph (g) is, therefore, preliminarily determined to be preempted

insofar as it provides exemptions for farm vehicles not found in the

FMCSRs.

The exemptions in paragraphs (h) and (i) for gravel and log haulers

have no parallels in the FMCSRs. Each of these provisions in the

Mississippi Code are therefore incompatible with the FMCSRs and are

preliminarily determined to be preempted.

Insofar as these exemptions affect vehicles in interstate commerce,

they are contrary to the guideline for regulatory review in 49 CFR Part

355, app. A, which provides that the ``requirements must apply to all

segments of the motor carrier industry.'' If as a result of this

review, the FHWA finalizes this determination that the exemption is

less stringent than Federal regulations, the State law will be

preempted and shall not be in effect and enforced by the State of

Mississippi with respect to commercial motor vehicles in interstate

commerce. 49 U.S.C. app. 2507(c)(3).

The FHWA encourages all interested persons to submit comments on

this review and preemption determination. In addition, any person,

including the State of Mississippi, may petition the FHWA for a waiver

from a preemption determination. 49 U.S.C. app. 2507(d). A petitioner

is afforded the opportunity for a hearing on the record. A petition for

a waiver may be combined with this proceeding, if made within the 60-

day comment period. 49 CFR 355.25(e). A waiver may be granted if it is

demonstrated that the waiver is not contrary to the public interest and

is consistent with the safe operation of commercial motor vehicles.

It should be reemphasized that this preliminary preemption

determination is applicable only to certain State of Mississippi

commercial motor vehicle safety laws insofar as they apply to vehicles

in interstate commerce. State of Mississippi laws applicable only to

vehicles in intrastate commerce are not subject to preemption, and,

moreover, appear to be compatible for purposes of the Motor Carrier

Safety Assistance Program because they fall within the Tolerance

Guidelines. 49 CFR Part 350, app. C.

(49 U.S.C. App. Sec. 2507; 23 U.S.C. Sec. 315; 49 CFR 1.48)

Issued on: July 7, 1994.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 94-17176 Filed 7-14-94; 8:45 am]

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