[Federal Register Volume 60, Number 176 (Tuesday, September 12, 1995)]
[Notices]
[Pages 47421-47422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22564]
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DEPARTMENT OF TRANSPORTATION
[FHWA Docket No. MC-94-14]
State Commercial Motor Vehicle Safety Law Affecting Interstate
Commerce; Notice of Preemption Determination
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of determination of preemption of State of Mississippi
commercial motor vehicle safety law.
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SUMMARY: The FHWA has reviewed a State of Mississippi commercial motor
vehicle safety law and determined that it is incompatible with Federal
regulations. This review is required by the Motor Carrier Safety Act of
1984 (Pub. L. 98-554, 98 Stat. 2832). The FHWA has determined that the
State law is preempted by Federal law and may not be in effect and
enforced with respect to commercial motor vehicles in interstate
commerce.
EFFECTIVE DATE: This preemption determination is effective September
12, 1995.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Taylor, Office of Motor
Carriers, HFO-30, (202) 366-9579; 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: Under the United States Constitution, the
Congress is granted the power to regulate interstate commerce. In the
Motor Carrier Safety Act of 1984 (the Act), the Congress authorized the
Secretary of Transportation to issue regulations pertaining to the
safety of commercial motor vehicles in interstate commerce. 49 U.S.C.
31136. The Congress did not choose to wholly occupy the field, however,
and States are not precluded from such regulation insofar as the State
laws are compatible with and have the same effect as Federal
regulations.
State laws which are incompatible with and do not have the same
effect as Federal regulations may not be in effect and enforced with
respect to commercial motor vehicles in interstate commerce and are
subject to Federal preemption. The Act directs the Secretary of
Transportation to conduct rulemaking proceedings to determine whether
State laws may be preempted. The proceedings may be pursuant to the
Secretary's own initiative or the petition of any interested person. 49
U.S.C. 31141.
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.
On July 15, 1994, the FHWA initiated a rulemaking proceeding to
review the State of Mississippi law. 59 FR 36252. All interested
persons were invited to submit comments to the rulemaking docket. The
only comment received was from the Advocates for Highway Safety, which
agreed with the preliminary determination of preemption on the grounds
that the exemptions in the State of Mississippi law are not provided in
Federal regulations.
The specific provisions which were reviewed, and preliminarily
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 and operations from the provision in the Code
requiring the State Public Service Commission to ``promulgate as its
own and enforce the rules, regulations, requirements and
classifications of the United States Department of transportation or
any successor federal agency charged with regulation of motor vehicle
safety.'' Included in the 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.
[[Page 47422]]
(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 Federal Motor Carrier Safety Regulations (FMCSRs) do not
contain compatible exemptions. Generally, the 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, 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
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.'' Because the exemptions are
less stringent than Federal regulations, the State law is 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.
31141.
Any person, including the State of Mississippi, may petition the
FHWA for a waiver from a preemption determination. 49 U.S.C. 31141(d).
A petitioner is afforded the opportunity for a hearing on the record. 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.
Any person adversely affected by this determination may also file a
petition for judicial review of the determination in the United States
Court of Appeals.
It should be reemphasized that this 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. 31141; 23 U.S.C. 315; 49 CFR 1.48)
Issued on: August 31, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-22564 Filed 9-11-95; 8:45 am]
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