[Federal Register Volume 75, Number 202 (Wednesday, October 20, 2010)]
[Notices]
[Pages 64779-64781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26202]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2009-0271]


Identification of Interstate Motor Vehicles: New York City, Cook 
County, and New Jersey Tax Identification Requirements; Petition for 
Determination

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

ACTION: Notice; Grant of petition for determination.

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SUMMARY: The FMCSA grants three petitions submitted by the American 
Trucking Associations (ATA) requesting determinations that the 
commercial motor vehicle (CMV) identification requirements imposed by 
the State of New Jersey, New York City, and Cook County, Illinois are 
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 CMVs any form of identification other than forms 
required by the Secretary of Transportation, with certain exceptions. 
FMCSA grants ATA's requests because the three credential display 
requirements do not qualify for the relevant statutory exception for 
State display of credentials and are preempted by Federal statute.

DATES: This decision is effective October 20, 2010.

[[Page 64780]]


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 
<a href="/cdn-cgi/l/email-protection#e4a3818a81928d819281cab785948d96a4808b90ca838b92"><span class="__cf_email__" data-cfemail="0c4b6962697a65697a69225f6d7c657e4c686378226b637a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Background

    New Jersey's tax code requires all motor carriers hauling, 
transporting, or delivering fuel to display a Motor Fuel Transport 
License Plate and annual Transport License Certificate. This 
requirement applies to all motor carriers hauling, transporting, or 
delivering fuel in New Jersey regardless of their State of domicile or 
registration. New Jersey Statutes Annotated Sec.  54:39-41 and Sec.  
54:39-53. New York City's Administrative Code, Sec.  11-809, requires 
CMVs used principally in New York City or in connection with a business 
carried on within New York City to pay a tax and display a stamp. The 
requirement appears to apply whether or not the CMV is registered to an 
address in New York City. Cook County's Code of Ordinances requires 
motor vehicle owners residing within the unincorporated area of Cook 
County to: (a) Display a window sticker showing payment of fees; and 
(b) paint business vehicle identification information on their 
vehicles. Article XIV of chapter 74 of the Cook County Code of 
Ordinances is referred to as the ``Cook County Wheel Tax on Motor 
Vehicles Ordinance.''
    Section 4306(a) of SAFETEA-LU, codified at 49 U.S.C. 14506(a), 
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. Section 14506(b), 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];
    (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 ATA's petitions 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.'' The Secretary's authority is delegated to FMCSA by 
49 CFR 1.73(a)(7).
    ATA's petitions seeking determinations, along with the applicable 
statutes, regulations, and ordinances, are available for inspection in 
the docket established for this notice.

Public Comments

    On October 19, 2009, FMCSA published a notice in the Federal 
Register, ``Identification of Interstate Motor Vehicles: New York City, 
Cook County and New Jersey Tax Identification Requirements; Petition 
for Determination'' (74 FR 53578), requesting public comment on ATA's 
petitions. In formulating its decision, FMCSA considered all of the 
comments received in response to the Agency's notice.
    FMCSA received 11 comments, of which 7 were from trade 
associations, 3 from motor carriers, and 1 from an individual. All 
commenters supported preemption.
    ATA and the Distribution and LTL Carriers Association commented 
that the credential display requirements are related to revenue raising 
and that they do not fall under any of the Sec.  14506(b) exceptions. 
Con-way Inc. commented that the credential display requirements are 
impediments to interstate commerce. United Parcel Service, Inc. (UPS) 
commented that, as an interstate carrier operating in many States, it 
finds credential display requirements to be burdensome. UPS further 
commented that, although the vehicles in its fleet may be in compliance 
with State or local tax, fee, or permit requirements, if its drivers 
cannot display the appropriate credential on demand, the company can 
nonetheless receive a citation. Martin Storage Co. also commented that 
the paperwork associated with State and local credential display 
requirements is burdensome. The Truckload Carriers Association and the 
Truck Renting and Leasing Association commented that the credential 
display requirements are not eligible for the Sec.  14506(b)(3) 
exception because they are not related to vehicle registration. The 
National Private Truck Council observed that none of the affected 
jurisdictions submitted comments to justify the credential display 
requirements.
    In addition, FMCSA received a letter from the Office of the State's 
Attorney of Cook County acknowledging that its credential display 
requirement is preempted. This letter is also available for review in 
the docket.

FMCSA Decision

    New Jersey's tax credential display requirement is a State-mandated 
form of identification preempted by 49 U.S.C. 14506(a) and does not 
qualify for the exception at Sec.  14506(b)(3). First, it is not an 
identification requirement related to motor vehicle license plates. 
Even though the credential itself is in the form of a license plate, 
its purpose does not relate to State licensing of vehicles. Rather, it 
appears to identify those motor carriers, registered in New Jersey or 
elsewhere, that have paid State taxes for hauling, transporting, or 
delivering motor fuel. Second, New Jersey failed to articulate any 
justification for FMCSA to exercise its delegated discretion to approve 
the display.
    New York City's and Cook County's display requirements are also 
preempted by 49 U.S.C. 14506(a) because they are identification 
requirements mandated by political subdivisions of a State. However, 
the assessment of whether a Sec.  14506(b) exception applies to these 
display requirements requires a slightly different analysis. The 
prohibition in Sec.  14506(a) specifically applies to States, political 
subdivisions of States, interstate agencies and other political 
agencies of two or more States, whereas the exceptions in Sec.  
14506(b) apply to States without mention of political subdivisions or 
agencies. Consequently, the first question the Agency must answer is 
whether a Sec.  14506(b) exception can apply to a political subdivision 
of a State.
    Two possible interpretations exist. One is that Congress intended 
for States, political subdivisions of States, interstate agencies and 
other political agencies of two or more States to be subject to the 
general prohibition on display of identification requirements, but only 
intended for States (and not the other subdivisions and agencies) to be 
eligible for the exceptions in Sec.  14506(b). The second is that 
Congress intended the States, as well as political subdivisions and 
agencies, to be eligible for the exceptions and that its omission of 
these other entities from Sec.  14506(b) is not evidence of its intent 
to exclude them from being eligible for the exception. FMCSA believes 
that the latter is the correct interpretation.
    In City of Columbus v. Ours Garage & Wrecker Service, 536 U.S. 424 
(2002), the Supreme Court considered a provision with nearly identical 
language to Sec.  14506 and determined that Congress' exclusion of 
political

[[Page 64781]]

subdivisions in the exception was not a sufficiently clear and manifest 
indication of its intent to preempt local regulation. In reaching this 
conclusion, the Court made two points that guide our analysis and 
conclusions here. First, consistent with existing precedent, a 
political subdivision may exercise whatever portion of State power the 
State chooses to delegate under its own constitution and laws. Id. at 
428. Second, if the exception were interpreted to apply only to States, 
political subdivisions would be preempted from enforcing laws 
legitimately enacted by the State pursuant to the exception. The Court 
found it unlikely that Congress would preserve State power to enact 
rules but bar routine enforcement through local instrumentalities. Id. 
at 435.
    The Agency concludes that the exceptions in Sec.  14506(b) can 
apply to New York City's and Cook County's credential display 
requirements, if they meet the statutory criteria. The only exception 
relevant to ATA's petition is found in Sec.  14506(b)(3); however, no 
evidence supports the application of this exception to New York City's 
and Cook County's credential display requirements. These display 
requirements are unrelated to State vehicle licensing requirements, and 
neither jurisdiction articulated any justification for the Agency to 
exercise its delegated discretion to approve the display. In fact, the 
only jurisdiction to respond to the Agency, Cook County, conceded that 
its credential display requirements are preempted by Federal law.
    In consideration of the above, FMCSA grants the petitions submitted 
by ATA. New York City, New Jersey, and Cook County are preempted from 
imposing and may no longer enforce their credential display 
requirements.

    Issued on: October 4, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-26202 Filed 10-19-10; 8:45 am]
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