Honorable Gregory G.

Nadeau
Administrator
Federal Highway Administration
U.S. Department of Transportation
1200 New Jersey Avenue SE Washington, D.C. 20590
RE:

December 27, 2016

Commercial Activities on Interstate Rest Areas; Notice / Request for Comments

FHWA Docket No. FHWA20160021

Dear Administrator Nadeau:

NATSO, the trade association representing Americas travel plazas and truckstops, provides these
comments in response to the Federal Highway Administrations (FHWAs or the Agencys) September
27, 2016 Federal Register Notice soliciting public input on how the current law regarding commercial
activities in rest areas should be interpreted and applied in consideration of advancements in technology
(the Notice).1 Approximately 80 percent of NATSO members are located within one-quarter mile of the
U.S. Interstate Highway System. NATSO therefore takes seriously the fact that FHWA is exploring aspects
of the long-standing prohibition on offering commercial services on the Interstate System right-of-way.2
While vending machine technology may have evolved in recent years, the underlying purpose behind 23
U.S.C. 111s general ban on offering automotive and other commercial services on the Interstate right-ofway has not indeed, the policy rationale for this prohibition remains as strong today as it was when the
legislation was first enacted in the 1950s.
NATSO urges FHWA to ensure that the vending machine exception continues to preserve the important
goals of the commercialization ban, and that any proposed definition of vending machine does not
undercut the purpose of this law. FHWA must keep the law and longstanding policy foremost in its mind
as it reviews the issues raised in this docket.
I.

Summary of Comments

1
2

Congress enacted the ban on rest area commercialization to avoid state-approved monopolies on
the Interstate System that harm off-interstate businesses, and consequently, local governments
that depend on these property taxpayers. Over the years, Congress has never expressed a desire
to undercut this original objective. Quite the opposite Congress has repeatedly reaffirmed this
original, underlying purpose of the rest area commercialization ban.
Expansion of commercial services including vending at rest areas would hurt consumers, small
businesses, and localities, and contradict congressional intent. It would also undercut other
FHWA policy objectives, including goals of increasing truck parking and alternative fuel
infrastructure options, both of which would be aided by participation from a travel plaza and

81 Fed. Reg. 66324 (Sept. 27, 2016) (FHWA Notice).

See 23 U.S.C. 111.

truckstop industry that is not financially battered by unfair competition from not-for-profit
agencies.
The vending machine exception in 23 U.S.C. 111 was not designed to undercut the original intent
of protecting off-highway businesses and localities from unfair competition.
The exception for certain types of media that promote tourism was not designed to, and does not
permit food sales.
Notwithstanding technological advancements, FHWA should not permit any sales at Interstate
rest areas whatsoever that undercuts off-highway businesses and localities. The best metric for
analyzing this issue is whether or not vending machines at rest areas are utilized for ancillary
purchases, i.e., whether the public stops at rest areas with the express purpose of buying
products from vending machines. Ancillary purchases do not compete with off-highway
businesses. In establishing the vending machine exception in 23 U.S.C. 111, Congress was
enabling the public to make small, ancillary food purchases at rest areas. Any broader exception
would undercut the rest area commercialization bans underlying purpose.
FHWA has had in place in its Federal Aid Policy Guide nonregulatory supplement since 1992 a
definition of vending machine that remains appropriate today:
DEFINITION (23 CFR 752). A vending machine is a coin or currency operated machine
capable of automatically dispensing an article or product.

II.

For reasons of both statutory construction as well as sound public policy, FHWA should analyze
the scope of the vending machine exception by looking not simply to whether a human being
employee is necessary to consummate the transaction, but to whether the machine in question (a)
automatically dispenses products, and (b) precludes customers from obtaining products until
after payment is made.
The Ban on Rest Area Commercialization Is Designed To Protect Off-Highway Businesses
and Localities

When Congress created the Interstate Highway System in 1956, Congress and community leaders feared
that local businesses, jobs, and tax bases would shrink as motorists and truck drivers bypassed their cities
and towns. For this reason, Congress enacted 23 U.S.C. 111, which prohibits Interstate System rest areas
from offering commercial services such as food and fuel.3 Since then, businesses have clustered near the
Interstates at the interchanges along the Interstate System to provide services to interstate travelers.4

A later clause provides that commercial establishments in existence within an Interstate System right-of-way
before 1960 may continue to provide services under certain conditions. Pub. Law No. 95-599, sec. 114, 92 Stat.
2697.
4 See 102 Congressional Record, Senate, May 29, 1956, at page 9207, where the Senate adopted Senator Cottons
amendment prohibiting automotive service stations or other commercial establishments for serving motor vehicle
users to be constructed or located on the rights-of-way of the Interstate System. As the Senator explained: The
purpose of the [ban on rest area commercialization] was to prevent the granting of monopolies along the highways,
particularly with respect to oil companies [i.e., fuel retailers] and restaurants, to the exclusion of everyone else. . . .
[I]f [such facilities] are not on the highway, they will be built on private property, and it is rather obvious that even
though the State will control the ingress and egress, it will not be possible to grant monopolies. See also Federal
Highway Administration, Interstate Frequently Asked Questions, available at:
http://www.fhwa.dot.gov/interstate/faq.cfm#question31 (Noting that the intent of the rest area commercialization
ban in 23 U.S.C. 111 was to avoid State approved or supported monopolies for traveler services . . . .During the
debate, Representative Charles A. Vanik (D-OH) explained what Congress had in mind: Let the highway traveler
turn off the Interstate system if he requires food, motor-vehicle service, lodging or Stuckeys pecans.)

Today, a drive along the nations Interstate highways demonstrates the wisdom of Congresss decision.
There are approximately 100,000 businesses located less than a quarter-mile from the Interstate at exit
interchanges, directly marketing to highway travelers. These businesses employ more than two million
people and contribute more than $20 billion annually in state and local taxes.
Congress has repeatedly reaffirmed its original intent to protect off-highway businesses and localities
from unfair competition on the Interstate right-of-way. As discussed further below, when it crafted
exceptions for vending machines and tourism-promoting media, it did so with the clear intent of not
creating unfair competition for off-highway businesses. Most recently, the Senate in 2012 resoundingly
rejected an amendment to repeal the ban by a vote of 12-86.5 Since then, Congress has not expressed a
desire to roll back the longstanding prohibition on commercial rest areas.
There are many reasons why the statutory exceptions to the ban on commercial activity on the Interstate
right-of-way should be narrowly construed, including the following.
A.

Commercial Services at Rest Areas Hurts Local Communities

At first glance, offering more robust services at Interstate rest areas seems like an easy way for state
departments of transportation to acquire additional revenue. As a practical, matter, it amounts to simply
robbing Peter to pay Paul. Commercial services at rest areas including food service via vending
machines will not increase the amount of commercial transactions that take place; it will simply transfer
the point of sale away from the competitive off-highway environment to the one business entity that pays
the state the largest amount of money to rent space that is on the shoulder of the highway.
This will hurt the local governments and communities that depend on off-highway businesses as a vital part
of their tax and employment base. Commercial services at rest areas effectively displace property tax
payers located at the interchange with a business entity at rest areas that pays no local government
property or sales tax; the entity simply pays rent to the state transportation department.
B.

Commercial Services at Rest Areas Hurts Small Businesses

Travelers on the Interstate System are typically in a hurry to reach their destination. If they can have their
food service needs met by simply pulling to the side of the road, as opposed to exiting the highway, they
will likely do so. It is simply impossible for off-highway businesses to compete in such an environment.
NATSO members are not seeking to avoid competition, but rather to engage in fair competition pursuant
to the clear rules set down by Congress. Were one to stop at nearly any Interstate exit one would find
businesses competing next door and across the street from one another. The notion of a competitor
having such an advantageous on-highway location, however, is not fair competition but in fact
monopolization.
C.

Commercial Services at Rest Areas Hurts Consumers

Consumers who purchase products at Interstate rest areas will inevitably be overcharged for such
products. The added cost is the result of the monopolistic market within which the commercial entity
selling such products operates. Indeed, consumers will not simply cover the costs of operating the rest
area they will also provide a profit for the business entity offering commercial services. Given that these

Roll call vote available at:

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=112&session=2&vote=0004
5.

profit-seeking businesses have no competitors located on the right-of-way, they will be free to gouge
consumers.
D.

Authorizing Commercial Services at Rest Areas Will Undercut Other FHWA Policy Objectives,
Including Increasing Truck Parking and Alternative Fuel Investments

NATSO members and their facilities are an important part of the solution to other pressing concerns
facing FHWA and the Department of Transportation. These concerns include efforts to expand truck
parking6 and increase investments in alternative fuel infrastructure at retail fuel outlets along the
Interstate System.7 In order to achieve its objectives in these areas, FHWA must recognize both the
important role NATSO members will play truckstops and travel plazas provide more than 80% of truck
parking capacity in the United States, and are the primary venues for vehicles traveling on the Interstate
to refuel as well as the business environment within which NATSO members operate.
Traditional sources of profit for travel plazas such as fuel sales are contracting. Indeed, as vehicle fuel
efficiencies improve, the motoring public needs less fuel to travel the same distances. Moreover, truck
driver salaries have not kept up with inflation over the past thirty-five years. According to one analyst,
truckers wages have been slashed by nearly a third since 1980, accounting for inflation.8 As a practical
matter, this means that NATSO members primary customers have far less money to spend in travel
plazas stores and restaurants. These stores and restaurants are a critical component to a truckstops
success. Their importance to the industrys bottom line will only grow in future years, as vehicles become
even more efficient.
The industry is especially vulnerable, therefore, to unfair competition from foodservice and other
commercial establishments that can be located conveniently on the right-of-way. If such options were to
be made available through unwise government action, motorists would begin to gravitate toward these
types of establishments. That would make it more difficult for the travel plaza industry to make
expensive investments in truck parking and alternative fuel infrastructure.
Attesting to this point, an examination of independent third-party data from the 14 states permitted to
conduct commercial activities at right-of-way rest areas revealed in 2010 that truck parking capacity is
substantially greater on the stretches of the Interstate System where commercial rest areas are
prohibited. Specifically, this study found that sections of the highway in states operating commercial rest
areas have two fewer parking spaces per mile, confirming that there is a significant negative
relationship between commercialization [of rest areas] and truck parking spaces, taking into account all
spaces at rest areas and private sector businesses near the Interstate.9 FHWAs Truck Parking Survey
conducted pursuant to Jasons Law confirms that those areas with commercialized rest areas
specifically the I-95 Corridor in the Northeast have among the least number of truck parking spaces
relative to vehicle miles traveled.10

See http://ops.fhwa.dot.gov/Freight/infrastructure/truck_parking/index.htm.
See http://www.fhwa.dot.gov/environment/alternative_fuel_corridors/maps/.
8 See Jaillet, James. Trucker pay has plummeted in the last 30 years, analyst says. Overdrive Magazine, March 4,
2016. Available at: http://www.overdriveonline.com/trucker-pay-has-plummeted-in-the-last-30-years-analyst-stays/.
9 Rest Area Commercialization and Truck Parking Capacity: Commercialization is Not the Answer to Truck Parking
Needs, NATSO, February 2010, available at: www.jobsnextexist.com/resources/view/73/file.
10 FHWA, Jasons Law Truck Parking Survey Results and Comparative Analysis, @ Section III.
7

E.

FHWA Should Consider the Interests of Localities, Businesses, and Consumers

It is troublesome that FHWA framed the Notice as requesting how 23 U.S.C. 111 should be interpreted and
applied in consideration of advancements of technology and the interests of the states.11 NATSO hopes
this wording was inadvertent insofar as it did not expressly recognize the broader public interest,
particularly including the localities, consumers, and businesses that 23 U.S.C. 111 is intended to protect.
Indeed, though allowing more robust commercial services at Interstate rest areas could result in more
revenue for state DOTs, that would be at the expense of off-highway businesses and their employees, as
well as the towns and counties that depend on the property taxes paid by these businesses. So, FHWA
must not consider only the interests of the states but give greater weight in this docket to the far
stronger policy and legal considerations in support of off-highway businesses and localities that Congress
intended to protect through 23 U.S.C. 111.
III.

The Exceptions in 23 U.S.C. 111 are Consistent with 23 U.S.C. 111s Underlying Purpose to
Protect Off-Highway Businesses and Localities and Should be Interpreted in This Manner

Over the years 23 U.S.C. 111s ban on rest area commercialization has been amended to provide for
certain narrow exceptions that do not undercut the provisions underlying purpose of protecting offhighway communities and businesses. For example, the statute permits the installation of certain
commercial advertising and media displays; permits the sale of tourism-promoting media such as books
and DVDs; allows for the sale of tickets for certain events or attractions in the state; permits operation of
lottery machines and distribution of travel-related information such as maps. Additionally, the 1982
highway bill (signed into law in January 1983) included an exception for vending machines, with a
priority given for such machines operated by the blind pursuant to the Randolph-Sheppard Act of 1936.
A.

The Vending Machine Exception Was Not Designed to Undercut 23 U.S.C. 111s Underlying
Purpose of Protecting Off-Highway Businesses and Localities

When Congress approved the vending machine exception in the early 1980s, it had no intention of in
any way undercutting the general prohibition on offering commercial services at rest areas codified in 23
U.S.C. 111. The types of food and beverage products sold out of vending machines in the early 1980s were
limited to snack foods (such as candy bars and potato chips) and canned or bottled beverages. These
types of products are what those in the convenience retailing industry refer to as ancillary purchases,
i.e., the public would not stop at rest areas with the express purpose of buying such products from
vending machines; rather the public would stop for a different purpose (i.e., using the restroom,
stretching, obtaining a map, etc.) and then purchase something out of a vending machine simply upon
noticing the presence of a machine.
Such transactions do not compete with off-highway food retailers and restaurants. Highway travelers
frequent these businesses with the express purpose of buying food (and/or fuel). Meals are not ancillary
purchases at travel plazas; they are the reason that travelers exit the Interstate and stop at a travel plaza.
Thus, in establishing the vending machine exception in 23 U.S.C. 111, Congress was enabling the public to
make small, ancillary food purchases at Interstate rest areas. Any broader exception, such as one that
would have encouraged customers to stop at rest areas with the primary purpose of buying food, would
11

81 Fed. Reg. 66324

have functionally swallowed 23 U.S.C. 111s ban on commercializing rest areas. It would have undercut
off-highway businesses and towns, which Congress has never expressed any intention of doing. The
vending machine exception within 23 U.S.C. 111 has to be interpreted in that light and not misconstrued
so that the exception swallows the general rule against commercializing the Interstate right-of-way.
B.

The Tourism-Promoting Media Exception Was Not Designed to Undercut 23 U.S.C. 111s
Underlying Purpose of Protecting Off-Highway Businesses and Localities, and in any Event
Does Not Permit Food Sales

It is clear that some state departments of transportation are claiming that they have the right to sell food
products other than through a vending machine at highway rest areas by claiming that certain food is
a type of media, like books or DVDs or a tourist promotion. These states apparently have the chutzpah
to argue that within the books, DVDs, and other media exception to the prohibition on commercial
activity in an Interstate rest area, they can sell food products that are grown or have some other
connection to the respective states.
These claims are wholly without merit. To find otherwise would mean that McDonalds might be
considered a media company and CNN a food network.
Allowing food to be sold pursuant to this media exception would devastate off-highway businesses and
towns not to mention eliminate an important financial benefit for the blind community, which has
effectively and by Congresss conscious choice enjoyed a monopoly on those limited food sales that are
permitted at rest areas.
Although NATSO maintains that this food is media position is baseless and should be rejected on its face,
it is nonetheless worth noting that the legislative history of the media exception in 23 U.S.C. 111(b)(2)
supports a narrow interpretation of what is permitted. Early in the 112th Congress the House
Transportation and Infrastructure Committee favorably reported H.R. 7, with the accompanying H. Rep.
112-397. Section 1703 of that bill included exceptions from the ban on commercial activity in the right of
way beyond media, including authorization for State promotional or tourism items and tourism related
merchandise and products.
While the House went to conference with the Senate in 2012 based on an extension bill, it was well
understood that H.R. 7 as reported was a point of reference for conferees in the development of the final
legislation. Accordingly, it is noteworthy that H.R. 7s broadly worded authorizations for promotional
items and merchandise and products were not included in the final legislation. The final legislation
provided far more limited exceptions that cannot possibly be construed as extending to food as a form of
media. Congress clearly dropped language that might have allowed such activity in the Interstate right of
way. It is not for FHWA to insert administratively authority for activity in the right-of-way that Congress
clearly excluded from the statutes list of authorized activities.
There apparently is interest by some state DOTs in selling a states agricultural products at rest stops. As
explained above, this is unlawful and Congress chose not to include authority to sell products at rest
areas. However, NATSO notes that states have the ability to reference or illustrate agricultural products
in brochures, videos or other true media. Also, a rest area could include a not-for-sale display of a states
agricultural products, noting that such products could be purchased at off-Interstate right-of-way
businesses.
Thus states have many ways to promote tourism. As to sale of food or other products, that would include
by working with private businesses such as NATSO members that serve the traveling public from
6

locations just outside of the Interstate System right-of-way. The state, therefore, has options that do not
involve prohibited commercial activity within the Interstate right-of-way. But NATSO members and other
private sector exit-based businesses do not have good options for competing with prohibited activity
within the Interstate System right-of-way (particularly when supported by a governmental entity that
does not have to make a profit).
IV.

Notwithstanding Technological Advancements, FHWA Should Not Permit Any Food Sales at
Interstate Rest Areas Whatsoever that Undercuts Off-Highway Businesses and Localities

Although there have been substantial technological advancements in the vending machine space since the
early 1980s when the vending machine exception was first enacted, there has been no evolution in
Congresss intent with respect to that exceptions scope. That restriction, as explained below, does not
just prohibit over the counter sales of merchandise and food (a phrase used in the Notice in this docket);
rather it broadly prohibits non-vending machine sales. Congress has repeatedly reaffirmed its original
intent to limit any exceptions in 23 U.S.C. 111 so the exceptions do not undercut the off-highway
businesses and localities that the underlying provision was designed to protect.
A.

FHWAs Definition of Vending Machine Set Forth in Longstanding Guidance Is Appropriate

Today

Although FHWA has never defined the term vending machine in the Code of Federal Regulations, it has
done so in policy guidance. In 1992, FHWA defined vending machine in policy guidance in a manner
that no less appropriate nearly 25 years later:
A vending machine is a coin or currency operated machine capable of
automatically dispending an article or product.12
This definition is appropriate today. This definition accommodates technological advancements in the
vending machine space while at the same time maintaining the limited scope of the vending machine
exception so as not to undercut off-highway businesses and localities.
This definition accommodates technological advancements in several ways. First, although vending
machines in existence in the early 1980s when the vending machine exception was enacted only accepted
coins or paper currency, todays vending machines can accept electronic means of payment. With the use
of the words or currency, this definition captures machines even if they accept electronic means of
payment, including debit or credit cards or other financial payment methods.
Second, this definition accommodates the broader range of food products that vending machines offer
today. Although in the early 1980s vending machines primarily offered simply snack food and beverages,
today vending machines can vend a continually evolving and broad range of products.13 This definition
does not constrict the types of products that vending machines can dispense.
However, should vending machines begin offering products that ultimately compete with and thus
undercut off-highway businesses, it would be appropriate for FHWA to reexamine this definition to
Federal Highway Administration, Federal Aid Policy Guide Non-Regulatory Supplement. Transmittal 6: Vending
Machines in Interstate Rest Areas and Abandonment of Interstate Rest Areas. October 5, 1992. Available at:
http://www.fhwa.dot.gov/real_estate/right-of-way/policy_and_guidance/0752sup.cfm. This definition is virtually
identical to the Department of Educations definition of vending machine under the Randolph Sheppard Act. See
34 C.F.R. 395.1(y).
13 FHWA Notice, 81 Fed. Reg. 66325.
12

ensure that it comports with Congresss original intent, which was to allow for only machines that do not
compete with off-highway businesses.
B.

Self-Serve Kiosks are not Vending Machines Simply Because They Facilitate Transactions
Without Employee Assistance

As FHWA notes, [T]here is now technology that is similar to vending machines, but not in existence at the
time the statute was enacted. For example, self-serve kiosks at which the customer scans the goods for
sale and then pays by cash or electronic method and which requires no assistance from either the kiosk
owner or employee have become readily available.14
Such kiosks and related technology should not be considered vending machines for purposes of the
vending machine exception in 23 U.S.C. 111. To treat these kiosks as vending machines would both
contradict the plain text of 23 U.S.C. 111 as well as plainly undercut the statutes purpose of protecting offhighway businesses and localities.
1) To treat self-serve kiosks as vending machines would contradict 23 U.S.C. 111s plain text
To treat self-serve kiosks as vending machines would contradict the plain text of 23 U.S.C. 111. As FHWA
acknowledges in its notice, such technology is similar to vending machines (in that it enables customers
to purchase food without the aid of a human being vendor), but they are not vending machines. As FHWAs
1992 definition of vending machine15 makes clear, vending machines automatically dispense articles or
products. Technologies where customers grab and scan goods do not automatically dispense such items.
The dictionary definition of vending machine clearly states that a vending machine is a self-service
machine that dispenses merchandise after payment is made.16 Self-serve kiosks do not meet this definition
for two reasons. First, such kiosks do not dispense merchandise (but rather enable customers to grab
merchandise). Second, such kiosks enable customers to obtain the merchandise before payment is made,
not after. Moreover, a vending machine is a machine that does the vending (selling); a kiosk is not a
machine that does the vending.
2) To treat self-serve kiosks as vending machines plainly undercuts 23 U.S.C. 111s purpose of
protecting off-highway businesses and localities.
Retail payment technology is evolving rapidly. One need not look any further than most chain pharmacies
and grocery stores to recognize that self-service kiosks are replacing the need for human cashiers.17
Whats more, this technology is expanding beyond traditional retail outlets into the restaurant space.18 As
this technology continues to grow, it is not unreasonable to expect a continued reduction in the need for
human beings to facilitate foodservice transactions.

14

Id.
See supra n.12 and accompanying text.
16 Vending Machine, The American Heritage Dictionary of the English Language (5 ed. 2016) (emphasis added).
17 See, e.g., USA Today, Amazon just opened a grocery store without a checkout line, December 9, 2016, available
at: http://www.usatoday.com/story/tech/news/2016/12/05/amazon-go-supermarket-no-checkout-no-cashiersartificial-intelligence-sensors/94991612/ (Amazon is testing a grocery store in downtown Seattle that lets
customers walk in, grab food from the shelves and walk out again, without ever having to stand in a checkout line.
When the customer leaves, the app adds up everything the customer has taken and charges their Amazon account.)
18 See, e.g., Business Insider, Fast Food Workers are Becoming Obsolete, May 16, 2016, available at:
http://www.businessinsider.com/self-service-kiosks-are-replacing-workers-2016-5. (The age of restaurant selfservice kiosks has dawned, and its the end of fast food as we know it.)
15

It is critical, therefore, that FHWA not consider self-serve kiosks or any technology to be vending
machines simply because there is not a need for human beings to facilitate the transactions. There will
come a time in the not-too-distant future when such technology could well become the default standard
operating procedure for convenience retailing and quick-service restaurants. Allowing self-service kiosks
to fall under the vending machine loophole will inevitably lead to a scenario where the exception
swallows up the rule. Rest areas on the Interstate right of way will become a destination for food,
grocery, and retail-type purchases, rather than a location where occasional ancillary food purchases are
made.
In addition, it is likely in the near future that unmanned, self-service kiosks (known in the industry as
micromarkets) will be rendered illegal in public areas such as Interstate rest areas. The U.S. Food and
Drug Administration (FDA) is currently working on guidelines that are expected to restrict
micromarkets locations in this manner. The Council of Conference for Food Protection has formed the
Unattended Food Establishment Committee to develop recommendations on whether or how the Food
Code should be applied to unmanned foodservice establishments such as micro-markets. This Committee
has found that, as a matter of food safety, such establishments shall only be located in the interior of a
building that is not accessible by the general public. Access to the unattended food establishment shall be
limited to a defined population (e.g., employees or occupants of the building where the establishment is
located).19 This guideline is designed to minimize food contamination and/or tampering.
Thus, for reasons of both statutory construction as well as sound public policy, FHWA should analyze the
vending machine exceptions scope by looking not simply to whether a human being employee is
necessary to consummate the transaction, but to whether the machine in question (a) automatically
dispenses products (i.e., the machine does the vending), and (b) precludes customers from obtaining
products until after payment is made.
V.

Charging Facilities for Electric Powered Vehicles are Not Permitted in the Right-of-Way

Comment to this docket may suggest that it is possible for a state DOT to install charging facilities for
electric powered vehicles within an Interstate System rest area. That is flatly counter to 23 U.S.C. 111s
prohibition on the installation of motor vehicle service stations or other commercial establishments for
serving motor vehicle users in the right-of-way. Further, to the extent that, in the past, FHWA may have
permitted a state to install such facilities in an Interstate System right-of-way using Congestion Mitigation
and Air Quality (CMAQ) program funds, provided that the charging was available for free, Congress
clarified in MAP-21 that such action was not permissible using CMAQ funds.20 This was a clear signal by
Congress to states to not provide the commercial service of fueling an electric vehicle in the Interstate
System right-of-way.21
From a policy perspective, placing electric vehicle charging infrastructure in Interstate rest areas will in
fact disincentivize private sector investment in such infrastructure. Indeed, if electric vehicle

19

Unattended Food Establishment Committee. Guidance for Unattended Food Establishments. Available at:
http://www.foodprotect.org/issues/packets/2016Packet/attachments/I_013_content_c.pdf.
20

See 23 U.S.C. 149(c)(2), added by section 1113(b) of MAP-21.

21

NATSO would urge FHWA to adopt a narrow definition of what it means to offer electric vehicle charging access
for free. Specifically, if a vehicle manufacturer were to with State government permission install branded
refueling infrastructure in Interstate rest areas and purport to offer such infrastructure free of charge to vehicles
of that brand, such refueling is not in fact offered for free. Rather, the charge was baked into the price the customer
paid for the vehicle when the customer purchased the vehicle. This is, in fact, a commercial transaction,
notwithstanding the fact that the currency to consummate it changed hands at a previous point in time.

infrastructure is placed at highway rest areas, no off-highway travel plaza will invest in such
infrastructure, for doing so would place it in competition with government-supported locations at rest
areas that many highway travelers will consider to be more conveniently located.
VI.

23 U.S.C. 502 Does Not Authorize FHWA to Waive or Alter the Restrictions in 23 U.S.C. 111.

NATSO notes that FHWA may consider 23 U.S.C. 502 to be a basis for the Notice in this docket.22 23 U.S.C.
502 is a research provision. It authorizes the Agency to undertake certain research but includes no
language referencing FHWAs ability to waive statutory requirements or alter the meaning of statutory
terms. NATSO is concerned based on prior policy debates that the reference to 23 U.S.C. 502(b) as
authority for the Notice may indicate that the Agency is considering going beyond the restrictions that are
in 23 U.S.C. 111 in terms of what activities are permitted in the right-of-way. NATSO simply wishes to note
that to do so would be unlawful.
VII.

Any Change in Policy with Respect to the Vending Machine Exception Should Go Through a
Notice-and-Comment Process

FHWAs Notice in this docket is in the nature of an inquiry; it is not a proposal. Whether the Agency
views a new definition of the term vending machine in light of technological progress to be an
interpretative rule (not requiring notice-and-comment rulemaking) or a legislative rule (requiring
notice-and-comment rulemaking),23 sound policy dictates that FHWA first issue a specific notice
requesting public comment before implementing any such revised definition. Such notice should include
precisely how FHWA would propose to define vending machine so that the public has the opportunity to
comment on that specific proposal, and FHWA has the opportunity to fully understand the implications of
such a definition.
VIII.

Conclusion

NATSO is appreciative of this opportunity to file comments in response to the Notice, and looks forward to
continuing to work with the Department of Transportation on these important issues. Please do not
hesitate to contact us if we may be helpful in any way.
Sincerely,

David H. Fialkov
Vice President, Government Affairs
Legislative and Regulatory Counsel
NATSO

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23

See 81 Fed. Reg. 66325

NATSO expresses no view on this issue at this time.

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