[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]
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