Kristi Noem interrupted her Presidential campaign to do a little governing on Saturday. But interestingly, she used it to engage in a strange assertion of state authority over federal law.
Executive Order 2021-10 claims that South Dakota faces “extremely low inventories and outages of gasoline, diesel, jet fuel, and ethyl alcohol.” Strange—every gas station I’ve stopped at in the last few days let me fill my tank for the regular price, but then I haven’t driven West River lately, where Noem says the shortage is most prominent. Jet fuel inventories are at or above the five-year average, but delivery systems are having trouble snapping back from the depths of pandemic to keep up with recovering demand. To address this kinky supply chain, Governor Noem has declared a state of emergency and says that truckers hauling petroleum products in South Dakota are not subject to the federal motor carrier safety regulations codified in 49 CFR Parts 390 to 399. Petroleum truckers still have to have licenses and insurance and follow rules on size, weight, and drug/alcohol use, but, according to Noem’s press release summary, drivers don’t have to follow limits on their hours of service.
I would love to hear from my legally astute readers whether a state can declare an emergency and chuck federal laws and regulations out the window. But assuming Governor Noem has such emergency authority, her order appears to nix a lot more than drive-time limits:
- §390.6 prohibits trucking bosses from coercing drivers into violating motor carrier rules and provides a complaint process for drivers who feel so coerced.
- §390.36 prohibits carriers from harassing their drivers.
- §390.39 exempts covered farm vehicles from commercial driver’s license rules and controlled substance and alcohol use and testing requirements that EO 2021-10 does not suspend. By suspending this rule, EO 2021-10 subjects farm truck drivers to more federal regulations. So put down the beer, Farmer Joe….
- §390.201 requires motor carriers to register with the feds and display their US Department of Transportation Numbers on their vehicles.
- §391.11 requires drivers to be at least 21 years old, have a working knowledge of English, and hold a valid CDL.
- §391.15 disqualifies drivers from running big rigs if they lose their CDL, drive with a blood alcohol content of 0.04 or more, refuse a drug test, transport or possess or use any Schedule I controlled substance, leave the scene of an accident, or commit a felony with their trucks.
- §392.6 prohibits carriers from scheduling runs that would require drivers to break the speed limit.
- §392.7 requires every commercial motor vehicle to have working brakes, steering, lights, tires, horn, wipers, mirrors, coupling devices, and emergency gear.
- §392.63 says you can’t tow a bus with passengers on board.
- §392.64 prohibits hauling people in locked trailers (human trafficking, anyone?).
- §392.71 bans fuzzbusters.
- §392.80 bans texting while driving a semi.
- §392.82 bans using hand-held phones while driving a semi.
I’m not even a third of the way through the federal rules Noem just suspended, and already we can see that, at least until August 16, Noem has overturned all sorts of safety rules that, far from inhibiting the delivery of fuel, ensure that that gasoline and diesel get to their destination safely along with everyone else on the highway. Her effort to look like she’s taking “swift action” shows she actually didn’t take the time to read the rules and craft a narrowly targeted solution to the problem she alleges exists.