[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17176]
[[Page Unknown]]
[Federal Register: July 15, 1994]
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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]
BILLING CODE 4910-22-P
