[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Notices] 
[Page 23794-23797]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-122] 
 
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DEPARTMENT OF TRANSPORTATION
 
Office of the Secretary
 
[FMCSA Docket FMCSA-2002-13295]
 
 
Oregon Department of Transportation Application for Exemptions 
for Farmers
 
AGENCY: Office of the Secretary (OST), DOT.
 
ACTION: Notice of Secretarial Decision.
 
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SUMMARY: The Secretary of Transportation (Secretary) is denying the 
Oregon Department of Transportation's (ODOT) application for exemptions 
from all the requirements of 49 CFR part 393, concerning parts and 
accessories necessary for the safe operation of commercial motor 
vehicles (CMVs), and 49 CFR part 396, concerning the inspection, repair 
and maintenance of CMVs, on behalf of motor carriers certified by and 
registered with ODOT as farmers. ODOT
 
[[Page 23795]]
 
and the vast majority of persons responding to the December 26, 2002, 
notice published by the Federal Motor Carrier Safety Administration 
(FMCSA) believe the exemptions would have little if any impact on 
highway safety. The Department of Transportation (DOT) finds that 
granting the exemptions would not achieve a level of safety equivalent 
to, or greater than, the level of safety that would be achieved by 
complying with the Federal regulations. Neither ODOT nor the persons 
submitting comments in support of the exemptions application presented 
specific alternatives to the Federal requirements concerning safety 
equipment on CMVs, and the inspection, repair and maintenance of such 
vehicles, which the agency could consider likely to achieve the 
requisite level of safety.
 
DATES: The decision is effective on May 5, 2003.
 
ADDRESSES: You can review the docket comments discussed in this 
document by visiting the U.S. Department of Transportation, Dockets 
Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, 
DC 20590-0001. You can also see the comments at http://dmses.dot.gov. 
Please use the docket number that appears in the heading of this 
document to locate the comments. You can examine and copy this document 
and all comments received at the same Internet address or at the 
Dockets Management Facility from 9 a.m. to 5 p.m., e.t., Monday through 
Friday, except Federal holidays.
 
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and 
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-
0001. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through 
Friday, except Federal holidays.
 
SUPPLEMENTARY INFORMATION:
 
Background
 
 Sections 31315 and 31136 of title 49 of the United States Code 
(U.S.C.) provide the authority to grant exemptions from certain 
portions of the Federal Motor Carrier Safety Regulations (FMCSRs). An 
exemption provides time-limited regulatory relief from one or more 
FMCSRs given to a person or class of persons subject to the 
regulations, or who intend to engage in an activity that would make 
them subject to the regulations. An exemption provides the person or 
class of persons with relief from the regulations for up to two years, 
and may be renewed. These sections also require the agency to consider 
whether the terms and conditions for the exemption would achieve a 
level of safety that is equivalent to, or greater than, the level of 
safety that would be obtained by complying with the regulations when 
evaluating applications for exemptions.
 An interim final rule implementing section 4007 of the 
Transportation Equity Act for the 21st Century (TEA-21) (codified at 49 
U.S.C. 31315) was published on December 8, 1998 (63 FR 67600). These 
regulations at 49 CFR part 381 establish the procedures to be followed 
by persons requesting waivers, or applying for exemptions from the 
FMCSRs, and the procedures used to process them.
 A notice must be published in the Federal Register for each 
exemption requested, explaining the request that has been filed; 
providing the public with an opportunity to inspect the safety analysis 
and any other relevant information; and requesting public comment on 
the exemption (49 U.S.C. 31315(b)(4)(A)) and 49 CFR 381.315).
 In granting a request for an exemption, a notice must be published 
in the Federal Register identifying: (1) The person or class of persons 
who will receive the exemption; (2) what regulation is covered by the 
exemption; (3) how long the exemption is in effect; and (4) all terms 
and conditions of the exemption. The terms and conditions established 
by the agency must ensure that the exemption will likely achieve a 
level of safety that is equivalent to, or greater than, the level that 
would be achieved by complying with the regulation.
 
ODOT Application for Exemptions
 
 ODOT applied for exemptions from all the requirements of 49 CFR 
parts 393 and 396 on behalf of all motor carriers certified and 
registered with ODOT as farmers. A copy of the application is included 
in the docket referenced at the beginning of this notice. The 
exemptions would be applicable only when these carriers are engaged in 
transportation related to farm operations and the commercial motor 
vehicle (CMV) is registered with ODOT as a farm vehicle. The exemptions 
would not be applicable when these carriers operate as for-hire 
carriers.
 ODOT indicated that it was requesting the exemptions primarily 
because the State could lose Motor Carrier Safety Assistance Program 
(MCSAP) funding from FMCSA for having laws and regulations, applicable 
to interstate operations, that are less stringent than the Federal 
requirements. ODOT believed that, based on discussions with legislators 
and public meetings with farm groups, it was unlikely that the Oregon 
legislature would revise the law.
 ODOT believed the level of safety for farmers operating under the 
exemptions would be equivalent to the level of safety that would be 
provided by the Federal safety regulations because the State would 
continue to enforce its rules of the road and equipment regulations 
applicable to all motorists and motor vehicles. Farm vehicles in Oregon 
are currently required to comply with State requirements related to 
parts and accessories, including brakes, lights, mudguards and fenders, 
emissions and exhaust, windows, horns, mirrors, etc. Furthermore, ODOT 
has the authority to inspect any vehicle to verify compliance.
 
Request for Comments
 
 On December 26, 2002 (67 FR 78855), the agency requested public 
comment from all interested parties on ODOT's application for 
exemptions in accordance with 49 U.S.C. 31315(b)(4) and 31136(e). 
Interested persons were requested to consider each exemption 
separately, to the greatest extent practicable. The notice indicated 
that a decision could grant or deny either or both portions of the 
application based on the comments received, and any other relevant 
information.
 
Discussion of Comments
 
 One hundred and fourteen comments were received in response to the 
December 26 notice. The comments included those from: Advocates for 
Highway and Auto Safety (Advocates); Commercial Vehicle Safety Alliance 
(CVSA); farmers and other agricultural-related businesses, 
associations, or groups in Oregon (101 comments); the Oregon Trucking 
Associations, Inc.; and four State motor carrier enforcement agencies 
(Georgia Department of Motor Vehicle Safety; Idaho State Police; 
Indiana State Police; ODOT, Motor Carrier Transportation Division). 
Comments were also received from Michael Millard, an individual who did 
not identify his occupational interest. In addition, comments were 
received from two members of the U.S. House of Representatives (Darlene 
Hooley and Greg Walden) and three members of the Oregon State House of 
Representatives (Alan Brown, Chairman of the House Transportation 
Committee; Jeff Kropf, Chairman of the House Agriculture and Natural 
Resources Committee; and Karen Minnis, Speaker of the House).
 The overwhelming majority (109 out of 114) of the commenters were 
in favor of granting the exemption application. The Idaho State Police 
and Indiana State Police believe an exemption should be
 
[[Page 23796]]
 
granted but only for the purpose of providing ODOT with sufficient time 
to adopt compatible safety regulations for the interstate operation of 
farm vehicles. Advocates, the Georgia Department of Motor Vehicle 
Safety, and Michael Millard believe the ODOT's exemptions application 
should be denied.
 
Commenters in Favor of Granting the Exemptions
 
 Generally, most of the commenters in favor of granting the 
exemptions believe that Oregon Revised Statutes (ORS) provide 
sufficient safety requirements for farm vehicles. They believe that the 
State's requirements concerning vehicle safety equipment and motor 
carrier operations would ensure safety. Most of the commenters also 
considered the Federal requirements to be redundant of the State 
regulations.
 The commenters believe that denying the ODOT exemptions application 
would result in ODOT being required to adopt regulations that are 
compatible with agency rules applicable to interstate motor carriers, 
and to increase the State's enforcement activities concerning farm 
vehicle operations, such as conducting more roadside inspections of 
these vehicles. Commenters indicated that accident involvement of farm 
vehicles is low compared to other types of commercial vehicle 
operations in the State and that limited enforcement resources should 
not be focused on farm vehicles. They indicated that most of the farm 
trucks are small trucks operated short distances at low speeds, and 
that the safety record for the operation of such vehicles suggests that 
it is unnecessary to apply the Federal safety rules to them.
 Commenters in favor of granting the exemptions also emphasized that 
a significant portion of Oregon's truck safety program is funded 
through the Federal Motor Carrier Safety Administration's Motor Carrier 
Safety Assistance Program (MCSAP). They argued that ODOT's program 
would be greatly reduced if the State lost MCSAP funding.
 
Commenters Opposed to Granting the Exemptions
 
 Advocates argued that (1) exemption authority cannot be used to 
evade compliance with Federal regulations; (2) procedurally, ODOT 
cannot apply for exemptions on behalf of entities who are not a part of 
ODOT, (3) there is insufficient information to support granting the 
exemptions, and (4) granting the exemptions would not make Oregon 
eligible for MCSAP grants. Advocates consider the exemptions to be an 
effort to avoid the consequences of Oregon's failure to comply with the 
MCSAP requirements, and believe that the statute authorizing the 
exemptions does not indicate that a State governmental entity may apply 
for exemptions.
 The Indiana State Police (Indiana) believe that granting the 
exemptions would be inconsistent with MCSAP goals of achieving 
uniformity and compatibility of State regulations with Federal rules. 
However, Indiana believes ODOT should be provided a temporary exemption 
to enable the Oregon legislature to amend the ORS. The Idaho State 
Police (Idaho) echoed those views. Idaho does not believe the public 
interest would be served by withholding MCSAP funds from Oregon.
 
DOT Response to Comments
 
 The DOT does not believe there is sufficient information to support 
a determination that the exemptions are likely to achieve a level of 
safety equivalent to, or greater than, the level of safety obtained by 
complying with the applicable Federal safety rules.
 Although ODOT and most of the commenters argued that the State 
rules provide sufficient safety requirements, there are too few details 
in the ORS and Oregon Administrative Rules (OARs) to ensure that all 
parts and accessories on CMVs operated by motor carriers certified by, 
and registered with, ODOT as farmers are maintained at the same level 
required of CMVs subject to 49 CFR parts 393 and 396. This is 
especially true given that OAR section 740-100-0010 adopts by reference 
the Federal Motor Carrier Safety Regulations, including parts 393 and 
396. There is no clear indication what safety rules would remain in 
force if all of the requirements as presented in 49 CFR parts 393 and 
396, and adopted by reference in OAR section 740-100-0010, are deemed 
unnecessary. Therefore, there is no readily apparent means to compare 
the safety requirements that ODOT would enforce under the terms and 
conditions of the exemptions, with the specific rules under 49 CFR 
parts 393 and 396. These requirements include whether motor carriers 
certified by and registered with ODOT as farmers, would be required to 
ensure that their vehicles have retroreflective sheeting and reflex 
reflectors to reduce the incidence of passenger vehicles crashing into 
CMVs at nighttime; automatic brake adjusters, and brake adjustment 
indicators (for air braked vehicles manufactured on or after October 
20, 1994); antilock braking systems; rear impact guards and rear impact 
protection; safe fuel systems and fuel tanks; and, adequate means of 
protection against shifting and falling cargo. While it may be possible 
to establish and enforce safety rules concerning these issues with less 
specificity than the current Federal regulations, doing so would 
certainly involve a lower standard of safety by failing to describe in 
meaningful detail minimum standards that would ensure an appropriate 
level of motor carrier safety.
 Although the ODOT application cited ORS chapter 811, 815, and 816 
as providing rules to ensure safety, the references are nothing more 
than statutory authority for the ODOT to develop detailed regulations. 
The statutes, in and of themselves, do not establish requirements 
applicable to motor carriers. A discussion of statutory authority, 
without describing in detail how that authority was exercised in the 
regulations promulgated, is not sufficient basis for concluding that 
the exemptions would not have an adverse impact on safety.
 As for commenters who believe that the adoption of compatible 
regulations would necessitate increased inspections of farm-plated 
vehicles, there is no requirement for States participating in MCSAP to 
shift their enforcement focus from motor carriers with well-documented 
safety problems, to populations of motor carriers with better safety 
performance records, simply because the rules are applicable to the 
latter group. The MCSAP is a Federal grant program that provides 
financial assistance to States to reduce the number and severity of 
accidents and hazardous materials incidents involving CMVs. The goal of 
the MCSAP is to reduce CMV-involved accidents, fatalities, and injuries 
through consistent, uniform, and effective CMV safety programs. 
Investing grant monies in appropriate safety programs will increase the 
likelihood that safety defects, driver deficiencies, and unsafe motor 
carriers practices will be detected and corrected before they become 
contributing factors to accidents. The MCSAP also establishes, under 49 
CFR part 350, the conditions for participation by States and local 
jurisdictions and promotes the adoption and uniform enforcement of 
safety rules, regulations, and standards compatible with the FMCSRs and 
Federal Hazardous Materials Regulations (HMRs) for both interstate and 
intrastate motor carriers and drivers. While part 350 has the effect of 
requiring that States be aware of motor carrier safety problems within 
their jurisdiction and develop appropriate strategies for
 
[[Page 23797]]
 
improving safety, States have the flexibility and discretion to 
determine the level of enforcement warranted for a given segment of the 
motor carrier population operating in the State. The State would 
identify its planned activities in its annual Commercial Vehicle Safety 
Plan (CVSP) that must be submitted to the FMCSA. Therefore, ODOT would 
submit its CVSP identifying CMV enforcement activities, based on ODOT's 
analysis of safety data. The FMCSA would then review the plan to ensure 
compliance with the requirements of 49 CFR part 350.
 The DOT is committed to working with ODOT to ensure compliance with 
the MCSAP requirements. This action does not take exception to ODOT's 
CVSP, but to the State's failure to rescind an incompatible statute 
applicable to CMVs operating in interstate commerce. Therefore, 
adopting compatible laws and regulations should not be considered a 
Federal mandate to include an expanded enforcement program for motor 
carriers certified by and registered with ODOT as farmers. Requiring 
compatible laws and regulations does not negate the State's flexibility 
in managing its enforcement program. The DOT will continue to work with 
ODOT officials to achieve full compliance with 49 CFR part 350.
 With regard to the comments from Advocates, the Department agrees 
that exemptions must not be used to evade compliance with part 350. 
However, the Department does not consider ODOT's request to represent 
such an effort. ODOT presented an application in which the State 
proposed that its requirements, while significantly less specific than 
the applicable Federal rules, would achieve the requisite level of 
safety. After reviewing the public comments and the application for 
exemptions, the DOT concluded--as did Advocates--that there is 
insufficient information to support such a determination, and that the 
Department must therefore deny the application. The fact that the 
application had shortcomings should not be construed as an attempt by 
ODOT to evade compliance with the MCSAP requirements.
 In response to Advocates comment about procedural requirements 
concerning exemptions applications, and the impact the exemptions would 
have on ODOT's MCSAP eligibility, the DOT disagrees. Neither the 
statutes authorizing the granting of exemptions (49 U.S.C. 31315 and 
31136(e)), nor the implementing regulations under 49 CFR part 381 
explicitly prohibit a State or other entity from submitting 
applications for exemptions on behalf of motor carriers subject to the 
FMCSRs. Although it is unusual for a non-motor carrier entity to submit 
such a request, it is not prohibited and it is not unique. Exemptions 
have been granted in the past concerning fuel tank fill rates and 
certification markings on fuel tanks in response to applications from 
Ford Motor Company and General Motors Corporation submitted on behalf 
of motor carriers operating vehicles manufactured by those 
companies.\1\
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 \1\ On March 27, 2002, an exemption renewal was granted to the 
Ford Motor Company (Ford) (67 FR 14765) and General Motors 
Corporation (GM) (67 FR 14764) submitted on behalf of motor carriers 
operating certain vehicles built by these manufacturers. These 
exemptions enable motor carriers to continue operating commercial 
motor vehicles (CMVs) manufactured by Ford and GM which are equipped 
with fuel tanks that do not meet the FMCSA's requirements that fuel 
tanks be capable of receiving fuel at a rate of at least 20 gallons 
per minute and be labeled or marked by the manufacturer to certify 
compliance with the design criteria.
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 In regard to MCSAP eligibility, the granting of the exemptions 
would only temporarily, and indirectly, resolve ODOT's incompatible 
regulation. Exemptions granted pursuant to 49 U.S.C. 31315 or 31136(e) 
preempt incompatible State rules. During the time period that 
exemptions are in effect, States are prohibited from enforcing any law 
or regulation that conflicts with or is inconsistent with the 
exemptions with respect to a person operating under the exemptions. 
This means that if the exemptions from 49 CFR parts 393 and 396 had 
been granted for motor carriers certified by and registered with ODOT 
as farmers, without limiting the applicability of the exemptions to 
interstate motor carrier operations within the State boundaries of 
Oregon, all States would have been prohibited from enforcing parts 393 
and 396 against farm-plated vehicles from Oregon that traveled through 
their jurisdiction. The only vehicle-related safety requirements would 
have been provided through the terms and conditions of the exemptions 
itself rather then the current safety regulations applicable to other 
motor carriers operating CMVs in interstate commerce. Given that the 
exemptions would have automatically preempted any Oregon laws or 
regulations that were incompatible with its own terms, it is difficult 
to see how the exemption application could be granted and still 
withhold Oregon's MCSAP funds as punishment for failure to adopt parts 
393 and 396, which ODOT would be prohibited from enforcing during the 
period of the exemptions. Furthermore, if there were sufficient 
information to support granting the exemptions, the State would have 
been considered to have effectively demonstrated that the terms and 
conditions of the exemptions ensure a level of safety equivalent to or 
greater than the level of safety obtained by compliance with parts 393 
and 396, which would suggest that the State requirements, while 
significantly less specific than the Federal requirements, are indeed 
compatible in terms of safety outcomes, and would therefore satisfy 
MCSAP requirements.
 
DOT Decision
 
 In consideration of the comments submitted in response to the 
agency's December 26, 2002, notice and for the reasons stated above, 
the Secretary denies ODOT's application for exemptions from the 
requirements of 49 CFR parts 393 and 396, on behalf of motor carriers 
certified by and registered with ODOT as farmers. The exemption 
application does not demonstrate that the exemptions would achieve a 
level of safety equivalent to or greater than the level of safety that 
would be achieved by complying with the Federal regulations. The State 
of Oregon must adopt State laws or regulations compatible with 49 CFR 
parts 393 and 396, applicable to motor carriers certified by and 
registered with ODOT as farmers, that are operating in interstate 
commerce, in a timely manner, to fulfill its obligations under 49 CFR 
part 350. The DOT will work with ODOT to ensure to the greatest extent 
practicable, the continued funding of their CVSP while compatible laws 
or regulations are being developed.
 
 Issued on: April 30, 2003.
Norman Y. Mineta,
Secretary of Transportation.
[FR Doc. 03-11080 Filed 5-2-03; 8:45 am]