PURPOSE: This rule sets forth the division’s interpretation of the effects of federal preemption on its regulation of intrastate motor carriers of property (except household goods) in Missouri intrastate commerce.

Editor’s Note: The following material is incorporated into this rule by reference: 1) Federal Aviation Administration Authorization Act of 1994 (H.R. 2739, 103d Congress, 2d Session) (49 U.S. Code sections 11501(h) and 41713(B)); 2) 49 Code of Federal Regulations section 172.101; and 3) 49 Code of Federal Regulations parts 100—177. In accordance with section 536.031(4), RSMo, the full text of material incorporated by reference will be made available to any interested person at the Office of the Secretary of State and the headquarters of the adopting state agency.

1. (1) Effective January 1, 1995, under Section 601 of the Federal Aviation Administration Authorization Act of 1994 (H.R. 2739, 103d Congress, 2d Session) (49 U.S.C. sections 11501(h) and 41713(b)), the states generally can no longer enact or enforce any law, regulation or other provision having the force and effect of law relating to the prices, routes, or services of any motor carrier with respect to the transportation of property (except household goods). This preemption does not restrict the regulatory authority of the state with respect to motor vehicle safety, which the division interprets as including the safe transportation of hazardous materials by motor vehicle, or the authority of a state to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and selfinsurance authorization. This section sets forth the division’s interpretation of the effects of this preemptive federal law.
2. (2) The federal preemption does not relieve any person who engages in the business of a motor carrier of property on the public highways, and whose vehicles are not exempted under section 390.030, RSMo, from the requirement of having in force a certificate under section 390.051.1., RSMo, or a permit under section 390.061.1., RSMo. But, the division interprets the preemption as modifying the standards and procedures applicable to issuing such certificates and permits. Until receiving further legislative direction from the Missouri general assembly as provided by law, the division shall issue new certificates and permits authorizing the transportation of property (except household goods) under the standards and procedures prescribed by law which are not preempted by Section 601 of the Federal Aviation Administration Authorization Act of 1994, as interpreted by this rule and any other applicable division rules.
3. (3) Certificates or permits issued by the division and in force on December 31, 1994, and which authorize a person to transport any property as a common carrier or contract carrier by motor vehicle, shall remain in force (unless suspended or revoked by order of the division as provided by law), and shall be interpreted after December 31, 1994, as certificates and permits authorizing that person to transport property (except household goods) as a common carrier and as a contract carrier by motor vehicle on the public highways between all points within Missouri; except that no certificate or permit issued by the division shall be interpreted as authorizing the intrastate transportation of any hazardous material as designated in 49 CFR section 172.101, in any quantity or manner which is subject to regulation under 49 CFR parts 100—177, except hazardous materials expressly authorized in that certificate or permit.
4. (4) The statutory difference between “common carrier” and “contract carrier”, as those terms are defined in section 390.020, RSMo, is directly related to the service provided by the motor carrier, in that a common carrier serves the general public, but a contract carrier is restricted to serving contracting shippers only, under individual transportation contracts. The division concludes that under the federal preemption no meaningful distinction between common carriers and contract carriers can be enforced by the state with respect to the transportation of property (except household goods). After December 31, 1994, every applicant who demonstrates that it is qualified to engage in the business of a motor carrier of property (except household goods) in intrastate commerce, as required by this rule, shall be granted a certificate and permit to operate in intrastate commerce both as a common carrier and as a contract carrier. Contract carriers of property (except household goods) in Missouri intrastate commerce after December 31, 1994, shall no longer be required to file transportation contracts with the division. After December 31, 1994, contract carrier permits issued by the division shall be interpreted as not limiting Railroad Safety

the transportation of property (except household goods) for any specific contracting parties, and shall not name specific contracting shippers with respect to the transportation of property (except household goods).

1. (5) Section 601 of the Federal Aviation Administration Authorization Act of 1994 expressly states that its general rule of preemption shall not restrict the safety regulatory authority of a state with respect to motor vehicles. All applicants for intrastate certificates and permits under this rule shall be carefully examined to determine their safety fitness to transport property by motor vehicle upon the public highways. Under the division's safety regulatory authority, it has previously authorized and will continue to authorize the transportation of hazardous materials (as defined in 49 CFR part 172) by motor vehicle upon the public highways to the extent that applicants demonstrate their qualifications to transport those commodities safely, and their satisfactory compliance with all applicable laws and regulations governing the transportation of hazardous materials by motor vehicle.

2. (6) Whenever a motor carrier which holds an intrastate certificate or permit or both requests from this division a copy of its certificate or permit or both, or the division reissues a motor carrier’s intrastate certificate or permit or both for any other lawful reason, except as otherwise provided in 4 CSR 265- 2.060(8) and 4 CSR 265-2.065(7)(C), the division staff may file a pleading proposing a restatement of the carrier’s operating authority, as modified by the federal preemption and interpreted in the division’s rules. A motor carrier may also request the division to restate its intrastate certificate or permit or both, by a pleading filed with the division at any time in accordance with the requirements of division rule 4 CSR 265-2.080.

   1. (A) The division shall serve the proposed, restated certificate or permit or both on the motor carrier, with an order of an administrative law judge directing that the carrier may object to the proposed restatement of the certificate or permit or both, by filing a written pleading to be received by the division within twenty (20) days after the date of service of the division staff’s proposed, restated certificate or permit or both. The motor carrier may informally discuss the proposed restatement of the certificate or permit or both, and any objections, with the division’s counsel, but absent an appropriate order from the administrative law judge, that shall not extend the time for pleading any objections.
   2. (B) If no objection is timely received, then the division shall issue a restated certificate or permit or both in conformity with the proposed, restated certificate or permit or both, without further proceedings.
   3. (C) If a written objection is timely received, the division’s general counsel shall consider the basis for the objection, and may direct the reissuance of a proposed certificate or permit or both, as amended in response to the motor carrier’s objection. If the general counsel concludes that the objection is not well-founded, s/he shall serve notice of this conclusion on the carrier, which shall also notify the carrier that it may request a hearing on the objection before an administrative law judge, by the filing of a written request for a hearing, to be filed within twenty (20) days after service of the notice.
   4. (D) If the carrier timely files a request for hearing on the carrier’s objection to the proposed, restated certificate or permit or both, then the division shall set the matter for hearing and decision by an administrative law judge.

AUTHORITY: section 622.027, RSMo 1994. Emergency rule filed Dec. 1, 1994, effective Dec. 11, 1994, expired Dec. 19, 1994. Emergency rule filed Dec. 20, 1994, effective Jan. 1, 1995, expired April 30, 1995. Emergency rule filed April 20, 1995, effective May 1, 1995, expired Aug. 28, 1995. Emergency rule filed Aug. 18, 1995, effective Aug. 29, 1995, expired Feb. 24, 1996. Original rule filed Aug. 3, 1995, effective Feb. 25, 1996. Emergency rescission and rule filed Aug. 16, 1996, effective Aug. 28, 1996, expired Feb. 23, 1997.

*Original authority: 622.027, RSMo 1985, 1993, 1995.