[Federal Register Volume 72, Number 43 (Tuesday, March 6, 2007)]
[Notices]
[Pages 9996-9999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3806]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2006-25004]


Identification of Vehicles: Oregon Department of Transportation 
Tax Credentials Petition for Determination

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

[[Page 9997]]


ACTION: Notice; Denial of petition for determination.

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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: <a href="/cdn-cgi/l/email-protection#81ccc2d1d2c5c1e5eef5afe6eef7"><span class="__cf_email__" data-cfemail="9bd6d8cbc8dfdbfff4efb5fcf4ed">[email protected]</span></a>.

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, Sec.  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:
    <bullet> Intended versus unintended consequences of denying ODOT's 
request;
    <bullet> Denying ODOT's request could result in complications for 
motor carriers;
    <bullet> Denying ODOT's request could result in complications for 
Oregon;
    <bullet> Benefits associated with the weight-mile tax credential;
    <bullet> Ease of obtaining the credential; and
    <bullet> 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

[[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.
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    \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.
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    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

[[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.
 [FR Doc. E7-3806 Filed 3-5-07; 8:45 am]
BILLING CODE 4910-EX-P


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