regulatory review sample.pdf

Example of Regulatory Findings – MCSAP State Review conducted in FY2009

GA/FL-1. 49 CFR 350.201(a) – Compatible Adoption and Enforcement – The

State does not appropriately adopt and enforce State safety laws and regulations that are fully compatible with the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs) as specified below. The definition section of Title 46 of the State Code (O.C.G.A. § 46-1-1) effectively excludes certain intrastate motor carrier operations from Chapter 1 of the Rulebook, i.e., Motor Carrier Safety Regulations (see O.C.G.A. § 46-1-1(9)(c)). Most of these exclusions either are consistent with exclusions contained in 49 CFR Part 390 or are specific industry exceptions, which, according to the State, have been in effect continuously since well before 1988. Therefore, they fall within the tolerance guidelines in 49 CFR 350.341(c). However, there are other exclusions that are incompatible with the FMCSRs for the reasons discussed below.

a. 49 CFR Part 390 – Exclusion from FMCSRs – The State’s exclusion from the definitions of “motor common carrier” and “motor contract carrier” in O.C.G.A. § 46-1-1(C)(ii), and referred to in DPS Rule 1-390 of “taxi cabs, drays, trucks, buses, and other motor vehicles which operate within the corporate limits of municipalities and are subject to regulation by the governing authorities of such municipalities” is not compatible with the FMCSRs.

Being excluded from the definition of common and contract motor carriers means that the excluded vehicles are not subject to regulations of the DPS applicable to intrastate commerce. The State refers to this exclusion in its self-evaluation (Inventory, Appendix A, Item A-1), and contends that it has been in effect since before 1988, and consequently, falls within the tolerance in 49 CFR 350.341(c).

However, 49 CFR 350.341(c) is relevant only if the exclusion applies to specific industries operating in intrastate commerce. The State exclusion in O.C.G.A. § 46-1-1(9)(C)(ii) does not specify an industry and is therefore not within the tolerable exception in 49 CFR 350.341(c).

The further limitation in the State law that the exclusion only applies to motor vehicles that are subject to regulation by the municipalities in which they operate is similar to the Federal definition “exempt intracity zones” in 49 CFR 390.5. The Federal definition serves only to equate operations within exempt intracity zones with intrastate commerce and hence not subject to Federal jurisdiction. (Compare State definition at DPS Rule 1-390.5.) For the purpose of MCSAP funding, it is assumed that the State has authority to regulate motor carrier safety in intrastate commerce throughout the State. Excluding motor carrier operations from State regulations is a variance from that basic assumption, and is not included in the tolerance guidelines in 49 CFR 350.341. Consequently, the exclusion is incompatible. (Per Regulatory Review)

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b. 49 CFR 390.3(f) and 390.5 – Applicability and Definitions – The State’s definition of “commercial motor vehicle” in DPS Rule 1-390.5 is incompatible with the FMCSRs.

DPS Rule 1-390.3(f)(6) provides exceptions for “commercial motor vehicles designed or used to transport between 9 and 16 passengers (including the driver).” The exceptions are identical to those provided in 49 CFR 390.3(f) in the FMCSRs. The identical sets of exceptions are limited so as to require motor carriers operating “such vehicles” to comply with §§ 390.15, 390.19, and 390.21(a) and (b). The DPS Rule 1-390.5 definition of “commercial motor vehicle” does not include vehicles designed or used to transport between 9 and 16 passengers (including the driver), but rather limits the category of passenger-carrying vehicles in the commercial motor vehicle (CMV) definition to vehicles “designed or used to transport 16 or more (sic), including the driver.” Consequently, vehicles “designed or used to transport between 9 and 16 passengers” are not “commercial motor vehicles” for purposes of applying the DPS regulations, and to this extent, the definition of “commercial motor vehicle” in DPS Rule 1-390.5 is incompatible. (NOTE: The State’s statutory definition of “commercial motor vehicle” at O.C.G.A. § 40-1-1(8.3) is identical to the Federal definition in 49 CFR 390.5.) (Per Regulatory Review)

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c. 49 CFR 393.42 – Brakes required on all wheels – The State’s DPS Rule 1-393.42(c) requiring operating brakes on at least half of the axles on equipment used to transport houses or buildings is not compatible with 49 CFR 393.42(b)(6), which does not have the same requirement.

DPS Rule 1-393.42(c) requires manufactured houses, other portable buildings, trailers and dollies used in the transport of the houses or buildings to be equipped with operating brakes on at least half of the axles. The requirement in DPS Rule 1-393.42(c) is more stringent than the comparable Federal rule at 49 CFR 393.42(b)(6), which does not require the axles on specialized trailers or dollies used in house-moving or similar operations to be equipped with brakes, provided the speed and stopping capacity of the combination of vehicles used in the transportation meets the specified standard. The State rule is not limited to intrastate movements and requires the brakes regardless of speed and stopping capacity of the combination of vehicles in use.

The State rule creates a potential burden on interstate commerce and is, therefore, incompatible. (Per Regulatory Review)

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d. 49 CFR 393.52 – Brake performance – State law at O.C.G.A. § 40- 8-53, which sets the standard for brake performance, is incompatible with 49 CFR 393.52.

The DPS has adopted 49 CFR 393.52 into its Rulebook as 1-393.52, but State law at O.C.G.A. § 40-8-53 contains a less inclusive standard for required braking capacity. The State law has only two standards:

one for vehicles or combination vehicles with brakes on all wheels, and one for vehicles or combination vehicles not having brakes on all wheels. The performance standards in the State law are based on the distance required to stop a vehicle after application of brakes while the vehicle is traveling at 20 miles per hour (mph) (i.e., 30 feet for the first category [brakes on all wheels] and 40 feet for the second [brakes not on all wheels]) and deceleration capacity in feet per second (fps) (i.e., 14 fps in the first category and 10.5 fps in the second category).

DPS Rule 1-393.52 and 49 CFR 393.52 separate standards into five categories of vehicles: two standards for passenger-carrying vehicles depending on seating capacity and three standards for property-carrying vehicles depending on weight and number of units.

The standard for the passenger-carrying vehicles in both categories ranges from 20 to 25 feet in stopping distance at 20 mph, and 17 to 21 fps in deceleration capacity.

The first two standards in the property-carrying categories are for lighter weight vehicles. For single unit vehicles less than 10,000 pounds gross vehicle weight rating (GVWR), the Federal standard is stopping within 25 feet from a speed of 20 mph and deceleration capacity of 17 fps. For single unit vehicles over 10,000 pounds

GVWR, except truck tractors, the standard is stopping within 35 feet from a speed of 20 mph and deceleration capacity of 14 fps. The third standard is for all other property-carrying vehicles or combination vehicles. The third standard category, which includes all property-carrying vehicles in combinations over 10,000 pounds GVWR, is 40 feet of stopping distance when brakes are applied at 20 mph and 14 fps in deceleration capacity.

The Federal standards also include a third performance standard, which is based on braking force as a percentage of GVWR or gross combination weight rating (GCWR), which is absent from the State law at O.C.G.A. § 40-8-53. Although there is relatively little difference in the State’s statutory standard, when considering only the “all-other” category of the Federal standard, it is the absence of more representative categories and a braking force standard in the State statute that is incompatible. See Recommendation 2 below. (Per Regulatory Review)

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e. 49 CFR 393.60 – Glazing in specified openings – State law at O.C.G.A. § 40-8-73.1(b) regarding tinting standards, is incompatible with 49 CFR 393.60.

While DPS rule 1-393.60 is identical to 49 CFR 393.60, O.C.G.A. § 40-8-73.1(b), which applies to all motor vehicles in The State, is incompatible with 49 CFR 393.60 in the standard for tinting the windshield and side windows. The State law allows no diminution in the parallel luminous transmission through the windshield from coloring or tinting, while the Federal rules allow tinting so long as luminous transmission remains at no less than 70 percent of normal.

The application of the standard is not limited to intrastate commerce so it could have an adverse effect on interstate commerce, and it is, therefore, incompatible.

The statutory standard in the State allows tinting of side windows so long as the luminous transmission through the window is no less than 32 percent of normal. The limit of the Federal standard is no less than 70 percent of normal. In this case, the State statutory standard is less stringent than the Federal, does not fall within the tolerance guidelines in 49 CFR 350.341, and is, therefore, incompatible. (Per Regulatory Review)

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f. 49 CFR 393.75 – Tires – State law at O.C.G.A. § 40-8-74, which sets the standard for tire treads, is incompatible with 49 CFR 393.75.

DPS Rule 1-393.75 and 49 CFR 393.75 both set the standard for minimum tread depth of the tires on the front wheels of a bus, truck, or truck tractor at 4/32 of an inch and 2/32 of an inch on other tires. State law at O.C.G.A. § 40-8-74 sets the standard for all tire treads at 2/32 of an inch, except for school buses. (Per Regulatory Review)

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g. 49 CFR 393.80 – Rear-vision mirrors – State law at O.C.G.A. §40-8- 72, which only requires one rear-view mirror, is incompatible with 49

CFR 393.80.

Although DPS Rule 1-393.80 is identical to 49 CFR 393.80 in the FMCSRs, requiring all trucks, truck tractors, and buses to be equipped with two rear-vision mirrors, one at each side, State law at O.C.G.A. §40-8-72 only requires one rear-vision mirror. (Per Regulatory Review)

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h. 49 CFR 393.87 – Warning flags on projecting loads – State law at O.C.G.A. § 40-8-27(a), which only requires one 12-inch square flag, is incompatible with 49 CFR 393.87.

Although DPS Rule 1-393.87 is identical to 49 CFR 393.87 regarding the number, size, and location of warning flags on projecting loads, State law at O.C.G.A. § 40-8-27(a) is incompatible because it requires only one 12-inch square flag, where 49 CFR 393.87 requires two 18-inch square flags. (Per Regulatory Review)

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