Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2006-25004]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

      ( print page 9997)    

# ACTION:

Notice; Denial of petition for determination.

# SUMMARY:

FMCSA denies a petition from the Oregon Department of Transportation (ODOT) for a determination that the State may continue to require interstate motor carriers to display weight-mile tax credentials (WMTCs) in commercial motor vehicles (CMVs) in Oregon. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) prohibits States from requiring motor carriers to display in, or on, CMVs any form of identification other than forms required by the Secretary of Transportation. However, SAFETEA-LU also provides that a State may continue to require display of credentials that the Secretary determines are appropriate. ODOT requested that FMCSA determine that its WMTCs are appropriate under SAFETEA-LU. FMCSA denies ODOT's request because it could find no evidence to support a determination that the display of the WMTCs is appropriate. Therefore, the State of Oregon may no longer require interstate motor carriers to display WMTCs.

# DATES:

This decision is effective March 6, 2007.

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Telephone: 202-366-4009. E-mail:                         *MCPSD@dot.gov.*

# SUPPLEMENTARY INFORMATION:

## Background

Section 4306 of SAFETEA-LU prohibits States from requiring motor carriers to display in or on commercial motor vehicles any form of identification other than forms required by the Secretary of Transportation [49 U.S.C. 14506(a)]. However,  § 14506(b)(3) provides, in part, 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.”

ODOT requested that FMCSA determine that the State's WMTCs are appropriate in the context of 49 U.S.C. 14506(a). Oregon has been requiring motor carriers to obtain weight-mile tax credentials since 1947.

Oregon Revised Statutes (ORS) 825.454 authorizes ODOT to require the use of identification devices, such as cab cards, stamps or carrier identification numbers, to identify, and be carried in or placed upon, each motor vehicle authorized to be operated in Oregon. ODOT may require annual application for identification devices and it may charge a fee not to exceed $8 for each device issued on an annual basis. ORS 825.450 requires ODOT to issue a permanent credential and ORS 825.470 authorizes issuance of temporary credentials. Until 2001, ODOT required out-of-state carriers to display a special Oregon license plate on each truck registered to operate in the State. State legislation passed in 2001 eliminated the need for out-of-state based vehicles to display the Oregon license plate and substituted the simpler requirement to carry a permanent or temporary paper credential.

ODOT states the current WMTCs identify a motor carrier's Oregon account, facilitate reporting and payment of the tax, and assist in tracking vehicle-miles traveled over Oregon highways. ODOT also believes truck drivers want to have the credential at hand when fueling in Oregon, because fuel providers use it to verify that a vehicle is exempt from Oregon fuel tax. ODOT advises that approximately 15,000 out-of-state based carriers operate 283,000 trucks that carry a permanent Oregon tax credential. It also advises that approximately 10,000 trucks with a 10-day temporary credential operate within the State at any given time. A copy of ODOT's petition for determination is available for review in the docket for this notice.

## Public Comments

                    On June 13, 2006, FMCSA published a notice in the                     **Federal Register**                     requesting public comment on the ODOT request to be allowed to continue requiring motor carriers to display weight-mile tax credentials. [“Identification of Vehicles: Oregon Department of Transportation Tax Credentials; Petition for Determination;” Docket No. FMCSA-2006-25004, June 13, 2006, 71 FR 34188]. In formulating its position, FMCSA considered all of the comments received in response to the Agency's                     **Federal Register**                     notice.                

Eleven comments were submitted to the docket. The comments were almost evenly divided between supporters and opponents of Oregon's request for exception. Six commenters supported ODOT's request; this includes a comment filed by ODOT. Five commenters opposed the request and urged FMCSA to deny it.

The commenters' discussions, both for and against granting the exemption request, centered on the following issues:
    - Intended versus unintended consequences of denying ODOT's request;
    - Denying ODOT's request could result in complications for motor carriers;
    - Denying ODOT's request could result in complications for Oregon;
    - Benefits associated with the weight-mile tax credential;
    - Ease of obtaining the credential; and
    - Consideration of grandfather privileges.

### Intended Versus Unintended Consequences of Denying ODOT's Request

The ODOT suggests, in its July 6, 2006, filing to the docket, that Congress may have unintentionally included Oregon's weight-tax credential when enacting the provisions of 49 U.S.C. 14506. However, ODOT admits there is no specific discussion of its weight-tax credential in the Congressional record. ODOT suggests that the only evidence of legislative intent may be found in a March 8, 2006, bipartisan letter, filed in the docket on June 13, 2006, from Oregon's Congressional delegation to the Secretary of Transportation expressing concern about the preemption and support for the State's request. ODOT goes on to suggest that its weight-tax credentialing program may have been confused with the International Fuel Tax Agreement and International Registration Plan. This argument is supported by the Oregon Concrete & Aggregate Producers Association, Inc., the American Automobile Association (AAA) of Oregon/Idaho, and AAA of Washington, DC.

The Owner-Operator Independent Drivers Association, Inc. (OOIDA) states that ODOT provides no compelling information in its argument which would suggest Congressional intent. The OOIDA suggests that ODOT's weight-mile tax credential is precisely the type of document Congress had in mind when it was considering section 4306. The OOIDA states, “There is nothing in SAFETEA-LU that singles out Oregon for either attention or a special exemption.”

In comments to the docket, the American Trucking Associations cite legislation that it suggests shows Congress's intent to lessen the paperwork requirements on interstate motor carriers by individual States.

*FMCSA Response:*                     No information was presented to support ODOT's assertion that Congress                           ( print page 9998)                        “unintentionally” included Oregon's weight-tax credential when it adopted the provisions of 49 U.S.C. 14506(b). To the contrary, ODOT's weight-mile tax credential is likely the type of paper credential intended to be prohibited. Absent clear evidence of Congressional intent, the Agency must follow the plain language of the statute.                

### Denying ODOT's Request Could Result in Complications for Motor Carriers

The ODOT suggests in its comments that many interstate motor carriers use the credential to obtain the benefit of not having to pay a fuel-tax when purchasing diesel fuel in the State. The ODOT suggests that not having the credential to present to suppliers at the time of purchase will result in an unnecessary administrative burden when reclaiming the fuel tax. Other commenters did not address this issue.

The OOIDA states in its comments that over the past two decades, Congress and the Department of Transportation have simplified multiple-licensing, registration, and reporting requirements that States imposed on interstate commerce. Also, OOIDA states that it and other industry associations have concluded that there is no net benefit to requiring display of the ODOT weight-mile tax credential.

The United Parcel Service (UPS) states that Federal and State regulatory agencies, in conjunction with the motor carrier industry, have worked to reduce vehicle paperwork requirements to only those which are truly safety-related (hazardous materials, emergency, vehicle inspection, etc.). Furthermore, UPS argues that Oregon already verifies electronically the compliance of motor carriers with its financial responsibility requirements and is well positioned to expand that system to weight-distance tax compliance.

The Oregon Concrete & Aggregate Producers Association, Inc. advises that it and its members do not find that being required to maintain the weight-mile tax credential is burdensome. The AAA organizations also suggest the weight-mile tax credential requirement is not burdensome, primarily because of the ease of obtaining the credential electronically.

*FMCSA Response:*                     No motor carriers commented directly upon ODOT's claim that display of the weight-mile tax credential has benefits for carriers, such as providing them documentation for fuel-tax relief. FMCSA recognizes that the elimination of paperwork is a goal included in most Federal programs, and believes that such paper-based credentials should be authorized only when absolutely necessary.                

### Denying ODOT's Request Could Result in Complications for Oregon

The ODOT states that if not granted the exception, enforcing the weight-mile tax will be more challenging and opportunities for tax evasion will increase. It suggests that evasion by motor carriers in purchasing the weight-mile tax credential will result in a loss of funding for the State.

Opponents of the exception all suggest that ODOT can develop technological means that would allow for immediate verification by enforcement officials as to whether or not a motor carrier has complied with Oregon's weight-mile tax laws.

*FMCSA Response:*                     ODOT acknowledged that by accessing State data systems, police officers may be able to verify payment of the weight-mile tax without having the paper credential on the vehicle. The fact that enforcement could be “more challenging” does not outweigh the burden that the additional paperwork places on carriers engaged in interstate commerce.                

### Benefits Associated With the Weight-Mile Tax Credential

The ODOT and all of the commenters that support the weight-mile tax credential suggest that one of its benefits is to ensure that motor carriers meet their cost responsibility for road use in Oregon.

                    The ODOT also contends that the weight-mile tax credential has a safety-related benefit, resulting in Oregon's Motor Carrier Management Information System non-match rate [1]                                          being one of the lowest in the country.                

The OOIDA and UPS both contend that ODOT could and should rely solely on the U.S. DOT number, as required by 49 CFR 390.21, to accurately identify motor carriers operating in its State, and that the weight-mile tax credential does not significantly add any value to this process. The OOIDA argues that Oregon wants to maintain the “easy revenue” derived from fining drivers who misplace the paper credentials.

*FMCSA Response:*                     The value of the Oregon weight-mile tax credential as an enforcement tool was previously addressed. Although the existence of a weight-mile tax credential on the vehicle might assist an officer in determining the correct identification of the motor carrier, there are many other factors having a greater value, such as vehicle markings, shipping documents, and lease agreements. Considering the use of owner-operators and leased vehicles, the weight-mile tax credential would not necessarily be a determinative factor in identifying the responsible motor carrier.                

### Ease of Obtaining the Credential

The ODOT and the commenters who support the weight-mile tax credential advise that it can be obtained electronically without elaborate administrative processes. However, ODOT states that only those motor carriers registered to use its Trucking Online Internet-based service can obtain the weight-mile tax credential online.

No commenter that opposes the credential contradicted the assertion of the ease of electronic filing. Several, however, including OOIDA, ATA, and UPS, contend that the overall process of applying for and obtaining the paper credential is an administrative burden and serves no purpose other than to generate revenue for the State. Each contends that motor carriers that fail to produce the weight-mile tax credential at time of inspection are issued citations even though the carrier may be registered with the State.

*FMCSA Response:*                     Although it may be relatively easy for a motor carrier to obtain the Oregon weight-mile tax credentials, ensuring that the paper documents are distributed to and carried on each vehicle, and that the driver has ready access to the document, could add considerably to the paperwork burden of the carrier and driver, especially if similar documents were to be required by other States.                

### Consideration of Grandfather Privileges

ODOT contends that it should be granted grandfather privileges for requiring the weight-mile tax credential because it has been requiring the road user taxes since 1947. However, it offers no evidence that Congress intended to grant such privileges regarding section 4306, as pointed out by OOIDA in its comments.

*FMCSA Response:*                     Section 4306 does not provide any authority for, or indication of Congressional intent supporting, the grandfathering of existing credentials that would otherwise be prohibited.                

## FMCSA Decision

                    The FMCSA has decided to deny ODOT's request that the Agency determine that the State's WMTCs are appropriate in the context of 49 U.S.C. 14506(a). The Agency considered all comments submitted to the docket, including the ODOT's assertion that                           ( print page 9999)                        preemption of the WMTCs is an “unintended consequence” of Section 4306. The Agency found no evidence to support that position. In fact, one could just as easily conclude that the WMTCs are exactly the type of display Section 4306 was enacted to prohibit. Furthermore, there is no indication in the legislative history of SAFETEA-LU that Congress intended to “grandfather” existing display requirements, other than those specifically listed in 49 U.S.C. 14506(b). In consideration of the above, the State of Oregon may no longer require interstate motor carriers to display weight-mile tax credentials on CMVs.                

Issued on: February 26, 2007.

John H. Hill,

Administrator.

# Footnotes

1.                             “Non-match rate” refers to the matching of driver-vehicle inspections conducted by State officials with the appropriate motor carrier record in the FMCSA Motor Carrier Management Information System. A valid “match” enables use of the State data in determining safety status of an interstate motor carrier.                    
        Back to Citation      

 [FR Doc. E7-3806 Filed 3-5-07; 8:45 am]

BILLING CODE 4910-EX-P