[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Notices]
[Pages 54830-54833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22477]


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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.

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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 
[email protected].

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).
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    \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).
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    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]
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