Comparison of the June 10, 2008 and October, 2008

Proposed Draft Regulations

Summary of Changes

The October Draft Regulation addresses a number of concerns and comments received on the original proposed draft regulation (June 10 version posted on web). Specifically, this latest version addresses the following:

·  Applicability of Highway Exclusions (Statewide/Finger Lakes): The June 10 version set up a series of highway priorities – trucks must first use “Qualifying Highways”, then State Access Highways, and finally other highways. The proposal required drivers to stay on the highest priority highways unless a specific exception could be shown. The October draft would specify the highways where the restrictions apply and use the tiered approach as a guide to allow drivers to evaluate route choice statewide. This is consistent with the state’s policy to keep trucks on the Interstates when possible and to establish a regulation that applies statewide, but is first implemented in the Finger Lakes region (where the seven highways are located.)

·  Vagueness/Enforcement: The original proposal left it up to the driver to determine whether a route was “reasonably necessary,” based on a series of 14 criteria, both engineering and non-engineering. Without a specific route with a specific set of rules applied, it would have been very difficult for an enforcement officer to have “reasonable cause” to pull a driver over (as route choice could vary by route and by driver). The revised proposal lists seven specific highways where “large trucks,” as defined in the regulation, would be excluded, unless the driver can show that they meet criteria for an exception. The highways specified in the October draft are to be posted clearly with signs, and penalties are specified in Vehicle & Traffic Law (note: both drafts relied on existing law for establishment of penalties). Further, the definition of a “reasonable alternative route” is added, providing clear criteria for evaluating route choices.

·  Commissioner Role: The June 10 proposal called for the Commissioner of Transportation to render opinions on the “reasonableness” of a route, based on a written request from a municipality, truck owner or operator, law-enforcement agency, shipper of property or an owner or operator of a terminal or facility. This left the Commissioner in the position of evaluating potentially hundreds of unique requests for route determinations. The current version provides seven specific highways on which exclusions apply. The Commissioner’s burden is greatly reduced.

·  14 Factors: The June 10 proposal includes a series of 14 criteria, some engineering and others quality of life, for drivers to use in determining whether it is “reasonably necessary” to use a route. The current proposal does not specifically list these criteria, although they were considered in the determination to place routes on the list of excluded highways. Highways were ultimately excluded, however, based on engineering and safety criteria.


Comparison of the June 10, 2008 and October, 2008

Proposed Draft Regulations

Provision / June 10 Draft / October Draft /
Definitions / Defines “truck”
“terminal”, “facility” / Redefines “truck” to include additional vehicles covered by the Federal Surface Transportation Assistance Act (STAA) of 1982.
“Terminal” now defined as “Freight Terminal” to remove possible conflict with Section 8000.6 which defines “terminal”.
Continues to define a “facility” as any location that is actually used to provide fuel or service for a truck or food or rest for a truck driver.
Adds a definition for “reasonable alternative route” – defining a route as a reasonable alternative if the preferred short-cut is at least 25 miles shorter than the shortest alternative route over Qualifying highways.
“Tiered” approach –
1.  Qualifying Highways
2.  State Access Highways
3.  Other State Highways / Defines strict hierarchy of highway usage – use highest level unless providing exclusive access to facilities or services or unless “reasonably necessary.” Applies statewide. / Defines hierarchy in terms of “should” rather than “shall” to be considered when choosing highways throughout the State.
Highways with specific exclusions are now listed.
How is use of the highway determined? / Leaves the determination of “reasonably necessary” up to the driver, based on a series of 14 factors, including both engineering and quality of life factors.
Upon written request, Commissioner of Transportation to provide an opinion as to whether the use of a specific highway is “reasonably necessary.” / General policy is laid out in Section 8000.12 (“should” as defined above) and applies statewide. Specific highways with exclusions are defined (Section 8000.13).
Criteria are no longer listed in the regulation.
The Reasonable Access Highways listed in the regulation consider the criteria in the original proposal, but have ultimately been selected based on engineering and safety criteria such as:
·  Facility Usage (Functional Class)
·  Traffic Congestion
·  Infrastructure Benefits (Pavement Thickness)
·  Accident Potential (Geometry & Roadside Development)
·  Accident History (Crash Rates & Severity)
Listing of specific highways on which exclusions apply / Left as a possibility – no highways defined. / Seven Reasonable Access Highways where exclusions apply are specified. These highways are to be identified by signs.
Enforcement / Not specified. Vague as difficult to determine where regulation applies, and to which trucks. / Signs are to be posted on highways where exclusions apply and penalties are tied to Section 1110 and 1800 of Vehicle & Traffic Law. Maximum penalties:
·  First Violation: $150 and up to 15 days in prison.
·  Second Violation: $300 and up to 45 days in prison.
·  Future Violations: $450 and 90 days in prison
Driver could prove an exception if stopped.
“Out Clause” if found in violation of federal laws, regulations or requirements / Yes / Yes

Additional Concerns

In its September 19, 2008 letter, the Federal Highway Administration lays out a number of concerns with the June 10 version of the proposed draft regulation. The concerns include:

·  Excluding some Federal Surface Transportation Assistance Act (STAA) of 1982 vehicles from access to highways (some, but not all of these vehicles were captured by our definition of “truck”). Federal rules require “reasonable access” for these vehicles, unless there is a specific engineering or safety reason for their exclusion.

·  The 14 factors used to determine “reasonably necessary” use of highways in the original proposed draft included a number of factors that were not safety and engineering based, and, as such, could not be used as the basis for limiting “reasonable access.”

The current proposal addresses these concerns:

·  The definition of “truck” to which the regulation applies has been broadened to capture all STAA vehicles, so it now treats all STAA vehicles equally. We believe the current regulation provides “reasonable access”, as it does not deny access for trucks that must reach a terminal or facilities for food, fuel or rest.

·  While we continue to consider quality of life in the identification of potential highways for truck restrictions, the seven specified Reasonable Access Highways are listed based on safety and engineering criteria, which include the highway functional classification, traffic congestion, pavement thickness, accident history, and accident potential based on geometry and roadside development.

November 6, 2008