Identification of Interstate Motor Vehicles: The Port Authority of New York and New Jersey's Drayage Truck Registry Sticker Display Requirements; Petition for Determination |
|---|
Topics: Federal Motor Carrier Safety Administration
|
Anne S. Ferro
Federal Register
September 2, 2011
[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Notices]
[Pages 54830-54833]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22477]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2010-0387]
Identification of Interstate Motor Vehicles: The Port Authority
of New York and New Jersey's Drayage Truck Registry Sticker Display
Requirements; Petition for Determination
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; Denial of petition for determination.
-----------------------------------------------------------------------
SUMMARY: FMCSA denies the New Jersey Motor Truck Association's (NJMTA)
petition requesting that FMCSA determine the Port Authority of New York
and New Jersey's (Port Authority) Drayage Truck Registry (DTR) sticker
display program is preempted by Federal law. The Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) prohibits States and their political subdivisions from
requiring motor carriers to display in or on commercial motor vehicles
(CMVs) any form of identification other than forms required by the
Secretary of Transportation (Secretary), with certain exceptions. FMCSA
determines that the Port Authority's sticker display program is not
preempted.
DATES: This decision is effective September 2, 2011.
FOR FURTHER INFORMATION CONTACT: Genevieve D. Sapir, Office of the
Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New
Jersey Avenue, SE., Washington, DC 20590, (202) 366-7056; e-mail
Genevieve.Sapir@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
The Port Authority amended its marine tariff (PAMT FMC No. 10) to
require trucks entering marine terminal facilities to display a sticker
showing compliance with its new DTR. In response, by letter dated
September 2, 2010, NJMTA petitioned the Secretary for a determination
that the Port Authority's sticker display requirement is preempted by
Federal law. Effective October 15, 2010, and in response to the NJMTA's
petition, the Port Authority amended its tariff to clarify that the
compliance stickers are a voluntary way to demonstrate compliance with
the DTR and that no truck will be denied access to marine terminal
facilities for failure to display a sticker.
The NJMTA is a non-profit trade association that represents over
500 trucking companies with operations in New Jersey. NJMTA states that
its mission is to foster and promote sound, economical, and efficient
service by motor carrier transportation; to promote safety and courtesy
in highway transportation; to foster and support beneficial laws and
regulations affecting the motor carrier industry and highway
transportation; to promote and encourage the construction and
maintenance of an adequate system of safely engineered highways; to
foster and promote sound and reasonable taxation at the State and
Federal levels on highway users; and to engage in any and all
activities that will advance the interests of highway transportation
and highway users generally.
The Port Authority is a bi-State entity established by interstate
compact with the consent of Congress (42 Stat. 174, Aug. 23, 1921). It
conceives, builds, operates, and maintains infrastructure critical to
the New York/New Jersey region's trade and transportation network.
These facilities include the New York/New Jersey airport system, marine
terminals and ports, the PATH rail transit system, six tunnels and
bridges between New York and New Jersey, the Port Authority Bus
Terminal in Manhattan, and the World Trade Center.
In an effort to reduce port-related diesel and greenhouse gas
emissions, the Port Authority is implementing a truck phase-out plan
that will deny old drayage trucks access to its marine terminal
facilities. Under this plan, the Port Authority began denying drayage
trucks with pre-1994 model year engines access to Port Authority marine
terminal facilities effective January 1, 2011. Effective January 1,
2017, the Port Authority will deny drayage trucks equipped with engines
that fail to meet or exceed 2007 model year Federal heavy-duty, diesel-
fueled, on-road engine emission standards access to marine terminal
facilities. In order to implement the truck phase-out plan, the Port
Authority will require drayage trucks accessing Port Authority marine
terminal facilities to be registered in the DTR. The Port Authority
will issue compliance stickers to drayage trucks that are compliant
with the phase-out plan to facilitate and expedite transit of those
trucks onto, through, and out of marine terminal facilities. As noted
above, the Port Authority has amended its tariff to clarify that the
compliance stickers are a voluntary way to demonstrate compliance with
the DTR, that no truck is required to display a compliance sticker, and
that no truck
[[Page 54831]]
will be denied access to marine terminal facilities for failure to
display a sticker.
Section 4306(a) of SAFETEA-LU, codified at 49 U.S.C. 14506(a),
prohibits States, political subdivisions of States, interstate
agencies, or other political agencies of two or more States from
requiring motor carriers to display in or on CMVs any form of
identification other than forms required by the Secretary. Section
14506(b), as amended, however, establishes several exceptions to this
prohibition:
(b) Exception.--Notwithstanding subsection (a), a State may
continue to require display of credentials that are required--
(1) under the International Registration Plan under section
31704 [of title 49, United States Code];
(2) under the International Fuel Tax Agreement under section
31705 [of title 49, United States Code] or under an applicable State
law if, on October 1, 2006, the State has a form of highway use
taxation not subject to collection through the International Fuel
Tax Agreement;
(3) under a State law regarding motor vehicle license plates or
other displays that the Secretary determines are appropriate;
(4) in connection with Federal requirements for hazardous
materials transportation under section 5103 [of title 49, United
States Code]; or
(5) in connection with the Federal vehicle inspection standards
under section 31136 [of title 49, United States Code].
The exception relevant to NJMTA's petition is Sec. 14506(b)(3),
which provides that ``a State may continue to require display of
credentials that are required * * * under a State law regarding motor
vehicle license plates or other displays that the Secretary determines
are appropriate.'' \1\ The Secretary's authority under Sec. 14506 is
delegated to FMCSA by 49 CFR 1.73(a)(7).
---------------------------------------------------------------------------
\1\ FMCSA previously concluded that for the purposes of the
exceptions at 49 U.S.C. 14506(b), ``State'' means a State, political
subdivision of a State, interstate agency, or other political agency
of two or more States (75 FR 64779, Oct. 20, 2010). Because it is a
political agency of two or more States, the Port Authority is a
``State'' for the purposes of Sec. 14506(b).
---------------------------------------------------------------------------
Through a notice published in the Federal Register on December 3,
2010 (75 FR 75540), FMCSA sought comment on whether the Port
Authority's sticker display requirement is preempted by Federal law.
Specifically, the Agency sought comment on whether the Port Authority's
sticker display requirement should qualify for the exception in 49
U.S.C. 14506(b)(3).
Discussion of Comments
In response to the December 3, 2010 notice, FMCSA received ten
comments, of which five were from trade associations, two were from
individuals, one was from a motor carrier, one was from a coalition,
one was from the Commercial Vehicle Safety Alliance (CVSA), and one was
from the Port Authority. All commenters except for the coalition and
the Port Authority supported preemption.
The American Trucking Associations (ATA) commented that the Port
Authority's credential display requirement does not differ
significantly from other displays FMCSA recently preempted
(Identification of Interstate Motor Vehicles: New York City, Cook
County, and New Jersey Tax Identification Requirements; Petition for
Determination, (75 FR 64779, Oct. 20, 2010)). ATA also commented that,
based on FMCSA's previous decision on tax credential displays in Oregon
(72 FR 9996, Mar. 6, 2007), the Port Authority's display should not be
eligible for the exception at 49 U.S.C. 14506(b)(3). ATA further
commented that it is not determinative that the requirement is
voluntary.
The National Solid Wastes Management Association (NSWMA) commented
that the exception at 49 U.S.C. 14506(b)(3) should be interpreted
narrowly so as not to interfere with Congress's intent to preempt
credential display requirements. NSWMA also commented that if FMCSA
does not grant NJMTA's petition, numerous State and local governments
will enact similar, burdensome requirements. Finally, NSWMA commented
that if Congress had intended for there to be an exception for displays
designed to reduce emissions, then it would have written one in 49
U.S.C. 14506(b).
The Owner-Operator Independent Drivers Association (OOIDA)
commented in support of NJMTA's petition. OOIDA does not believe that
the Port Authority's requirement is voluntary because trucks that opt
out would be subject to additional delays in the port. OOIDA also
commented that, following the canon of statutory construction ejusdem
generis, FMCSA should interpret the exception at 49 U.S.C. 14506(b)(3)
to be limited to matters related to motor vehicle licensing.
The Truck Renting and Leasing Association (TRALA) commented in
support of NJMTA's petition, strongly objecting to the Port Authority's
credential display requirement. The TRALA also commented that many
carriers lease CMVs and trailers and that the requirement would be
burdensome not only to carriers, but to lessors whose equipment may be
used in several multi-modal operations during their lifetimes. Finally,
TRALA disagreed that it would be appropriate for FMCSA to exercise its
delegated discretion under 49 U.S.C. 14506(b)(3) in this matter.
In support of its own petition, NJMTA commented that it is not
relevant whether the Port Authority's requirement is voluntary because
49 U.S.C. 14506(b) does not contain an exception for voluntariness. In
addition, NJMTA disputed that the Port Authority's display requirement
is voluntary because trucks that do not display the sticker will be
subjected to lengthy stops and inspection. NJMTA further commented that
this lengthy stop and inspection process will cause delays and traffic
jams, inhibit operators' ability to make multiple trips, and increase
pollution.
One individual commented that the Port Authority's credential
display requirement should be preempted because it is similar to other
credential displays that FMCSA recently preempted. Another individual
commented that ports currently have too many credential requirements.
United Parcel Service (UPS) stated that it agreed with the comments
NJMTA and ATA filed in this docket. UPS specifically agreed that
characterizing the requirement as voluntary does not make it any less
mandatory because carriers that do not participate will be subjected to
inspections and delays at the port.
The Coalition for Healthy Ports (Coalition) commented that NJMTA's
and ATA's comments are inconsistent with the positions they have taken
with respect to other programs including the Port of Los Angeles's
drayage truck program, which is currently the subject of litigation.
The Coalition also commented that without the sticker program, the Port
Authority would be unable to enforce the DTR. Finally, the Coalition
commented that invalidating the Port Authority's program would place
other ports' programs in jeopardy.
CVSA commented that it believes that the Port Authority's
credential display requirement is preempted and not eligible for any of
the exceptions in 49 U.S.C. 14506(b). CVSA commented that instead of
stickers, the Port Authority should use existing identifiers to meet
its needs as well as build technological capabilities and ``back office
infrastructure'' to manage the DTR program.
The Port Authority commented that its credential display
requirement does not violate 49 U.S.C. 14506 because it is voluntary.
Alternatively, the Port Authority commented that the requirement is not
preempted because it promotes public health and safety.
[[Page 54832]]
FMCSA Decision
Section 14506(a) Does Not Preempt the Port Authority's Sticker Display
Program
Section 14506(a) preempts State requirements that mandate motor
carriers to display in or on CMVs any form of identification other than
forms required by the Secretary. The Port Authority's DTR sticker
display program is not preempted because it does not require trucks to
display the compliance sticker. Accordingly, FMCSA denies the NJMTA's
petition for preemption.
According to the Port Authority, all vehicles servicing the marine
terminal must register with the DTR. Vehicles that do not meet the
DTR's requirements are denied registration. The Port Authority issues
all registered vehicles a set of stickers, at no cost to the
registrant, that demonstrate compliance with the registration
requirements. Trucks are briefly stopped so the Port Authority can
determine whether they are displaying a compliance sticker. Motor
carriers that choose not to display the sticker are subject to a short
wait while a Port Authority Police officer checks the truck's license
plate against the DTR database.
Section 14506(a) states that:
No State, political subdivision of a State, interstate agency,
or other political agency of two or more States may enact or enforce
any law, rule, regulation standard, or other provision having the
force and effect of law that requires a motor carrier, motor private
carrier, freight forwarder, or leasing company to display any form
of identification on or in a commercial motor vehicle (as defined in
section 14504a [of title 49, United States Code]), other than forms
of identification required by the Secretary of Transportation under
section 390.21 of title 49, Code of Federal Regulations. (emphasis
added).
The preemption language of this provision turns on a State's
requirement that a motor carrier display some kind of identification,
such as a compliance sticker. In this case, however, the Port Authority
does not require motor carriers to display the compliance sticker.
Instead, motor carriers have the option of either displaying the
sticker or having Port Authority officers verify compliance with the
DTR through a license plate check. No vehicle will be issued a citation
if it is properly registered, but not displaying a compliance sticker.
Several commenters correctly noted that given the choice between
displaying a no-cost compliance sticker or being subjected to delays
during a license plate check, most carriers would choose to display the
sticker. That does not change the fact that the Port Authority does not
mandate their display. Nor is the alternative option (license plate
check) so onerous that it acts as a penalty to drivers choosing not to
display the sticker. While it might take more time to run the license
plate check than verify the existence of a sticker, the few extra
minutes the Port Authority asserts this would take is a reasonable and
minimally-burdensome alternative for motor carriers who object to using
the stickers. Accordingly, FMCSA finds that the Port Authority's
sticker display program is not preempted.
The Port Authority's Sticker Display Program Is Appropriate
Even if the Port Authority's display program were mandatory, FMCSA
would nonetheless determine that the program is appropriate, in
accordance with FMCSA's delegated discretion to make such a
determination pursuant to 49 U.S.C. 14506(b)(3). The U.S. Department of
Transportation generally supports initiatives designed to reduce
emissions at port facilities. The sticker display aspect of the DTR is
a minimally-burdensome method of achieving the goals of the DTR without
causing undue burden on interstate commerce at the Port Authority's
marine terminals.
Even though the burden of stopping trucks to verify registration
with a license plate check is minimal, it requires both motor carriers
and the Port Authority to expend additional resources. Each stop would
require trucks to spend more time at the marine terminal, delaying
motor carriers, however briefly, and increasing emissions from a
potentially long line of idling trucks. The Port Authority's
alternative, a no-cost sticker, would help reduce emissions and
expedite traffic through marine terminal. FMCSA does not agree with the
NJMTA that the sticker program would have the opposite effect:
Increasing pollution and delays at the port. To the contrary, in this
particular case, FMCSA believes that not using the stickers would
increase pollution due to idling and would create a greater burden on
commerce moving in and out of the port.
FMCSA does not agree with commenters that believe the sticker
display requirement would create a burden on carriers by making them
responsible for maintaining a patchwork of stickers from multiple
jurisdictions. First, this determination applies only to the Port
Authority's DTR program. FMCSA does not extend this determination to
any other jurisdiction's credential display requirement. Second, there
is a discrete population of trucks entering the marine terminals on a
daily basis. The vast majority of drayage trucks coming through a port
are dedicated to serving that particular port. While some trucks
service other ports as well, the effect on these motor carriers would
be minimal. The nominal burden of placing a sticker on a truck that
visits the same port over and over again is greatly outweighed by the
benefits of expedited access through the port.
FMCSA disagrees with NSWMA's assertions that Congress did not
intend for FMCSA to exercise its authority in this manner. The statute
grants FMCSA the authority to except those requirements it deems
appropriate. There is no additional language limiting this authority.
The more reasonable interpretation is that Congress granted this broad
discretion so that FMCSA could have the flexibility to except those
requirements, such as the Port Authority's, that serve important
national policy objectives.
NSWMA also contends that FMCSA's analysis should be governed by the
principle of statutory construction that exceptions to general rules
should be construed narrowly. FMCSA does not believe that this
principle prohibits it from determining that the Port Authority's
sticker program is appropriate. FMCSA's decision not to preempt the
Port Authority's sticker program does not grant a sweeping exception
for State credential displays. To the contrary, FMCSA's decision is
limited to the specific circumstances presented by the Port Authority's
program and is based on having balanced important policy objectives
with the minimal effect the sticker program will have on interstate
commerce. Notably, the discretion Congress granted at Sec. 14506(b)(3)
does not mandate FMCSA except State displays; nor does it entitle
States to enact requirements that otherwise conflict with Sec. 14506.
It simply grants FMCSA the discretion to determine whether display
requirements are appropriate. In the absence of such a determination,
display requirements are presumed to be preempted.
FMCSA also disagrees with OOIDA's assertion that application of
ejusdem generis precludes FMCSA from determining that the Port
Authority's program is not preempted. Ejusdem generis is a ``canon of
construction holding that when a general word or phrase follows a list
of specifics, the general word or phrase will be interpreted to include
only items of the same class as those listed.'' [Black's Law Dictionary
9th ed. 2009]. The concept, however, is only used to ascertain the
[[Page 54833]]
correct meaning of words when there is uncertainty, Garcia v. United
States, 469 U.S. 70, 74-75 (1985), and the Agency finds no uncertainty
warranting its application. If the meaning is clear from the language
of the statute, there is no need to resort to legislative history or
other extraneous source. Robinson v. Shell Oil Co., 519 U.S. 337, 340-
41 (1997). The plain language of Sec. 14506(b)(3) excepts ``other
displays that the Secretary determines are appropriate.'' FMCSA rejects
any attempt to insert ambiguity into this straightforward provision.
Even if the provision were ambiguous, moreover, it would
nonetheless be inappropriate to apply the rule of ejusdem generis.
Ejusdem generis is relevant when there is a list of specific terms with
a particular attribute or character followed by a more general or
catchall phrase or term. CSX Transp., Inc. v. Ala. Dep't of Revenue,
131 S. Ct. 1101, 1113 (2011). ``The absence of a list of specific items
undercuts the inference embodied in ejusdem generis that Congress
remained focused on the common attribute when it used the catchall
phrase.'' Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008). More
important, without a list of specific items, it is not apparent what
common attribute connects the specific and general categories. Id.
Section 14506(b)(3) contains only two categories of exceptions
under State law: Motor vehicle license plates and other displays that
the Secretary determines are appropriate. Although the phrase ``other
displays that the Secretary determines are appropriate'' is something
of a catchall, no list of specific items precedes it. Without a list of
specific items, ejusdem generis does not apply because it would not be
possible to determine what common attribute, if any, Congress may have
intended to ascribe to the catchall phrase.
This matter is distinguished from FMCSA's previous decisions
regarding credential displays in Oregon (72 FR 9996, Mar. 6, 2007), and
Cook County, New York City, and New Jersey (75 FR 64779, Oct. 20,
2010). In those cases, motor carriers were subject to penalty for
failure to display certain credentials, regardless of whether they had
complied with the substance of the law requiring registration or
payment of a fee. Here, the Port Authority assesses no penalty on motor
carriers for failure to display the sticker credential. It uses the
sticker as a tool for expediting verification of compliance with the
DTR and offers an alternative method for demonstrating compliance. No
carrier is cited for failing to display credentials; the Port Authority
only issues citations for failing to comply with the substantive
requirements of the DTR.
Furthermore, in FMCSA's previous decisions, the entities enforcing
the credential display requirements failed to identify important policy
reasons that would support FMCSA's determination that their
requirements were appropriate. In the most recent decision involving
credential displays in Cook County, IL, New York City, and New Jersey,
FMCSA specifically requested that these jurisdictions justify or
present reasons that could support a determination that the display
requirement would be appropriate under the exception at 49 U.S.C.
14506(b)(3). Cook County responded, conceding preemption, but neither
of the other jurisdictions made any effort to justify their
requirements.
In a previous credential display decision, Oregon petitioned the
FMCSA for a declaration that its weight-mile tax credentials were
appropriate. Oregon's principal argument in support of its display
requirement was that eliminating it would increase its enforcement
burden. However, the increased burden on enforcement efforts did not
present a compelling policy reason, especially in the absence of
exploring other solutions to enforcement.
In this case, the Port Authority identified two important policy
reasons to support use of credential display stickers: Facilitating
movement through the port and reducing emissions. In addition, the
stickers present a less burdensome method for motor carriers (as
opposed to the Port Authority) for proving compliance with the DTR.
These factors present compelling policy reasons justifying FMCSA's
determination that the Port Authority's sticker program is appropriate.
Conclusion
In consideration of the above, FMCSA denies the petition submitted
by the NJMTA. The Port Authority is not preempted from implementing its
credential display program.
Issued on: August 29, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-22477 Filed 9-1-11; 8:45 am]
BILLING CODE 4910-EX-P