Article 19-A of the State of New York's Vehicle and Traffic Law

Anne S. Ferro
Federal Motor Carrier Safety Administration
September 12, 2013

[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Notices]
[Pages 56267-56268]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22162]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0353]


Article 19-A of the State of New York's Vehicle and Traffic Law

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

ACTION: Notice of petition for determination of preemption; request for 
comments.

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SUMMARY: FMCSA requests comments on petitions submitted by the American 
Bus Association (ABA) and Motor Coach Canada (MCC) seeking a 
determination that Article 19-A of the State of New York's Vehicle and 
Traffic Law governing drivers of passenger-carrying interstate motor 
vehicles is preempted by Federal law. FMCSA requests comments on 
whether Article 19-A has safety benefits, how it is being enforced 
against interstate passenger carriers and its effect, if any, on 
interstate commerce.

DATES: Comments are due on or before November 12, 2013.

ADDRESSES: You may submit comments identified by the Federal Docket 
Management System Number in the heading of this document by any of the 
following methods. To allow effective public participation before the 
comment deadlines, however, the Agency encourages use of the Web site 
that is listed first. It will provide the most efficient and timely 
method of receiving and processing your comments. Do not submit the 
same comments by more than one method.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590-0001.
     Hand Delivery: Ground floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number for this action. Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Refer to the Privacy Act heading on 
http://www.regulations.gov for further information.
    Public Participation: The regulations.gov system is generally 
available 24 hours each day, 365 days each year. You can find 
electronic submission and retrieval help and guidelines under the 
``help'' section of the Web site. For notification that FMCSA received 
the comments, please include a self-addressed, stamped envelope or 
postcard, or print the acknowledgement page that appears after 
submitting comments on line. Copies or abstracts of all documents 
referenced in this notice are in this docket. For access to the docket 
to read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays. All comments received before 
the close of business on the comment closing date indicated above will 
be considered and will be available for examination in the docket at 
the above address. FMCSA will continue to file in the public docket 
relevant information that becomes available after the comment closing 
date. Interested persons should monitor the public docket for new 
material.

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. If you have 
questions on viewing or submitting material to the docket, call U.S. 
DOT Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Background

    Provisions of Article 19-A of the State of New York's Vehicle and 
Traffic Law and its implementing regulations (15 CRR-NY ch. 6) 
establish a wide range of

[[Page 56268]]

requirements applicable to both interstate and intrastate passenger 
carriers operating in New York. Under this regulatory scheme, all 
interstate passenger carriers must file an annual compliance affidavit 
certifying that their drivers are not disqualified under State law and 
reporting the number of days and vehicle miles of bus service provided 
in New York during the previous year. An interstate carrier is 
generally exempt from the rest of Article 19-A, which includes 
requirements related to employment, driver medical qualifications, 
reporting, recordkeeping and other matters affecting both drivers and 
carriers, unless it operates certain types of school buses or operates 
in New York for more than 100 days or more than 10,000 vehicle miles 
annually. Interstate carriers that exceed the 100 day or 10,000 mile 
threshold can apply for a waiver for bus drivers who operate less than 
30 days per year in New York (N.Y. Veh. & Traf. Law, Sec.  509-n; 15 
CRR-NY Sec.  6.14). Otherwise, an interstate passenger carrier 
operating in New York is required to comply with Article 19-A. The New 
York Department of Motor Vehicles (NY DMV) makes information about 
compliance with Article 19-A available through the following web link: 
http://www.dmv.ny.gov/art19.htm.
    By letter dated June 28, 2011, MCC requested that FMCSA preempt 
Article 19-A, alleging that it creates a burden on interstate commerce 
by imposing requirements that are more stringent than Federal 
regulations. MCC stated that 49 CFR part 391 of the Federal Motor 
Carrier Safety Regulations (FMCSRs) contains comprehensive driver 
qualification and licensing requirements and that the requirements of 
Article 19-A impermissibly regulate interstate passenger carrier 
operations. MCC specifically identified New York's request for bus 
driver information (a two-page form for each driver), an Affidavit of 
Compliance and an annually-updated roster as unlawful burdens. On July 
18, 2011, the ABA wrote a similar letter, objecting to New York's 
enforcement of Article 19-A, but, at that time, specifically stated 
that it was not requesting preemption.
    In response, on March 29, 2012, FMCSA sent a letter giving the NY 
DMV an opportunity to respond to MCC's and the ABA's letters. The 
letter also asked whether the NY DMV applies Article 19-A to interstate 
carriers and how it uses the information it collects. By letter dated 
July 31, 2012, the DMV responded, stating that Article 19-A applies to 
interstate carriers and that it keeps the information it collects in 
its files, notifies carriers when a driver's CDL is revoked or 
suspended, and notifies school bus operators of the results of the 
mandatory criminal history checks.
    On September 7, 2012, the ABA sent another letter, this time 
requesting that FMCSA determine that Article 19-A is preempted because 
it has no demonstrated safety benefit, is not compatible with federal 
requirements and places an undue burden on interstate commerce. ABA 
stated that the requirements of Article 19-A exceed Federal driver 
qualification requirements, burdening interstate carriers. ABA 
specifically objected to those provisions of Article 19-A that require 
carriers to report information to the NY DMV about a driver's 
employment status, disqualification, pending criminal charges, out-of-
State driving record, miles driven and number of convictions and 
accidents. ABA also objected to the requirements that carriers 
participate in New York's Conviction and Accident Notification program, 
establish an escrow account in New York, administer tests and 
assessments of driving skills in excess of that required by the FMCSRs, 
and submit affidavits attesting to compliance with Article 19-A.
    The letters referenced above are available in the docket for this 
proceeding.

Applicable law

    Section 31141 of title 49, United States Code, prohibits States 
from enforcing a law or regulation on CMV safety that the Secretary of 
Transportation (Secretary) has determined to be preempted. To determine 
whether a State law or regulation is preempted, the Secretary must 
decide whether a State law or regulation: (1) Has the same effect as a 
regulation prescribed under 49 U.S.C. 31136, which is the authority for 
much of the Federal Motor Carrier Safety Regulations (FMCSRs); (2) is 
less stringent than such a regulation; or (3) is additional to or more 
stringent than such a regulation (49 U.S.C. 31141(c)(1)). If the 
Secretary determines that a State law or regulation has the same effect 
as a regulation based on Sec.  31136, it may be enforced (49 U.S.C. 
31141(c)(2)). A State law or regulation that is less stringent may not 
be enforced (49 U.S.C. 31141(c)(3)). And a State law or regulation the 
Secretary determines to be additional to or more stringent than a 
regulation based on Sec.  31136 may be enforced unless the Secretary 
decides that the State law or regulation (1) Has no safety benefit; (2) 
is incompatible with the regulation prescribed by the Secretary; or (3) 
would cause an unreasonable burden on interstate commerce (49 U.S.C. 
31141(c)(4)). To determine whether a State law or regulation will cause 
an unreasonable burden on interstate commerce, the Secretary may 
consider the cumulative effect that the State's law or regulation and 
all similar laws and regulations of other States will have on 
interstate commerce (49 U.S.C. 31141(c)(5)). The Secretary's authority 
under Sec.  31141 is delegated to the FMCSA Administrator by 49 CFR 
1.87(f).

Request for Comments

    Although preemption under Sec.  31141 is a legal determination 
reserved to the judgment of the Agency, FMCSA seeks comment on what 
effect, if any, Article 19-A and its accompanying regulations have on 
interstate motor carrier operations. Commenters are encouraged to 
provide information about the regulatory scheme's safety benefits, if 
any, and whether it constitutes a burden on interstate commerce or is 
incompatible with the FMCSRs. FMCSA is particularly interested in 
specific information on how New York enforces Article 19-A against 
interstate passenger carriers. In requesting comments, FMCSA does not 
seek legal conclusions, but requests commenters to submit data 
supporting their positions.

    Issued under the authority of delegation in 49 CFR 1.87.
    Dated: September 3, 2013.
Anne S. Ferro,
 Administrator.
[FR Doc. 2013-22162 Filed 9-11-13; 8:45 am]
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