[Federal Register: March 6, 2007 (Volume 72, Number 43)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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.
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
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
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.
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
Denying ODOT's request could result in complications for
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,
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
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
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
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
\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.
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
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.
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,
[FR Doc. E7-3806 Filed 3-5-07; 8:45 am]
BILLING CODE 4910-EX-P