Court Says Cities May Regulate Truck Safety

Sovereign Immunity Shields States From Agency Adjudication of Private Complaints

Employing a brand of reasoning reminiscent of the Fifth Amendment "penumbra" doctrine, a conservative 5-4 majority of the Court held in Federal Maritime Commission v. South Carolina State Ports Authority, ___ U.S. ___, 122 S. Ct. 1864 (2002), that state sovereign immunity bars private-party administrative complaints against nonconsenting States not because such proceedings constitute the exercise of judicial power barred by the 11^th Amend

ment but because such proceedings are "an impermissible affront to a State's dignity."
The South Carolina State Ports Authority (SCSPA) has a policy of denying berths in the Port of Charleston to vessels whose primary purpose is gambling.  The SCPSA enforced that policy against the M/V Tropic Sea, a vessel operated by South Carolina Maritime Services, Inc. (Maritime

(See Immunity on page 5)

When Congress decided to reform state and local regulation of the trucking industry in the mid-1990s, by first passing the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 108 Stat. 1606, and then the ICC Termination Act of 1995 (ICCTA), 109 Stat. 899, it amended Title 49 to include a blanket preemption provision and several savings clauses -- one of which has been generating substantial litigation over whether local governments may still regulate trucking safety.

A recent case before the Supreme Court, City of Columbus v. Ours Garage & Wrecker Serv., ___ U.S. ___, 122 S. Ct. 2226 (2002),  involved tow truck regulations in the City of Columbus, Ohio.  Columbus requires tow-truck operators to obtain city licenses, submit to city inspections, meet city standards for insurance and recordkeeping, and conform their vehicles to the City's detailed equipment requirements.
Ours Garage and Wrecker Service, Inc., and a trade association of tow-truck operators, the Towing and Recovery Association of Ohio, sued the City

(See Preemption on page 6)

Tire Pressure Monitor Rule Leaves Critics Flat

When Congress passed the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Pub. L. No. 106-414, 114 Stat. 1800 (Nov. 1, 2000), one of the chief concerns was reducing the number of passenger vehicle rollovers caused by underinflated tires.  Tire tread separation was a significant contributing factor in a substantial number of fatal rollovers in the 1990s involving Ford Explorers equipped with Firestone tires.  Firestone recalled the tires but also argued that Explorer owners had been underinflating their tires at Ford's advice, causing the tires to overheat and the tread to separate.

Section 13 of the TREAD Act provides: "Not later than 1 year after the

date of the enactment of this Act, the Secretary of Transportation shall complete a rulemaking for a regulation to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly under inflated.  Such requirement shall become effective not later than 2 years after the date of the completion of such rulemaking."

The National Highway Traffic Safety Administration (NHTSA) published notice of a proposed rulemaking to im

(See TREAD on page 4)