November 22, 2016

Via Email to Gregory.Nadeau@dot.gov

Honorable Gregory G. Nadeau

Administrator, Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590

Re: Enforcement of 23 USC 111

Dear Administrator Nadeau:

I recently learned that the state of New York is violating federal law by selling food and drink at
newly-constructed welcome centers and rest areas along the Interstate Highway System right-of-way.
On behalf of NATSO member truckstops and travel plazas, I urge you to take action to ensure New
York complies with the law.

As you know, 23 USC 111 prohibits a state from selling commercial goods and services at interstate
welcome centers and rest areas built after 1960. 23 USC 111(b)(2) sets forth specific, narrow
exceptions to this broad prohibition: commercial advertising and media; books, DVDs and other
media that promote tourism; event or attraction tickets; maps and booklets; and lottery
machines. In addition, states are permitted to sell food and drink in vending machines, and such
machines generally must be operated by the blind pursuant to 23 USC 111(c) (cross-referencing
the Randolph-Sheppard Act).

I understand that New York state officials claim that certain food and drink sales promote tourism,
and thus are an exception to the general ban on commercial sales at rest areas. This claim is clearly
incorrect. 23 USC 111 only permits food and drink sales at rest areas along the right-of-way in limited
circumstances, and only via vending machines. Any other such sales violate the law. Further, New
Yorks position appears to be that food and drink sales fall under the exception for other media to
promote state tourism. This stretches the definition of media beyond the breaking point.

Any question of statutory interpretation should begin with a plain reading of the statutory language.
In this instance, the statute broadly bans commercial establishments at rest areas. The general or
default rule, therefore, prohibits states from selling goods and services to motor vehicle users.

NATSO, Inc. ~ 1330 Braddock Place, Suite 501 ~ Alexandria, Virginia 22314
(703) 549-2100 ~ FAX (703) 684-4525 ~ www.natso.com
In 23 USC 111(b), Congress carved out a few narrow exceptions to the general ban on commercial
establishments at rest areas built after 1960. One exception is a short list of items to promote
tourism within a state. Congress was specific about what types of items could be sold to promote
tourism: event tickets, coupon booklets, DVDs, books, maps and other media are included. If not
specified as an exception, the general rule banning the sale of goods and services applies.

It is absurd for New York to suggest that Congress would identify very specific items such as hotel
coupon books as permissible exceptions to the commercialization ban, while intending that food and
drink sales should fall under the exception for other media. If we are to accept a definition of
other media that includes food and drink, it could be argued that virtually anything could be sold as
long as it promoted tourism. Of course, if Congress had intended this result, those who drafted the
statute would not have gone to the trouble of listing specific items such as maps and coupon books.
Instead, Congress would have simply carved out a broad exception to the commercialization ban for
items designed to promote tourism.

Thus a plain reading of 23 USC 111(a) and (b) is all that is necessary to determine that New York
cannot sell food and drink as other media under the tourism exception. In fact, Congress did
specifically address the sale of food and drink at rest areas. 23 USC 111(c) specifically grants an
exception for food and drink sold in vending machines operated by the blind.

NATSO members and their facilities are an important part of the solution to other pressing concerns
facing FHWA and USDOT, including truck parking and fueling facilities for alternative fuels along
designated alternative fuel corridors. Should non-vending food sales be allowed along the Interstate
System, that will unfairly compete with and harm NATSO members businesses, weakening their
ability to invest in truck parking and their ability to provide alternative fuel facilities and other
initiatives that FHWA supports.

Further, we note that the legislative history of the media exception in 23 USC 111(b)(2) supports a
narrow interpretation of what is permitted. Early in the 112th Congress, the House Transportation
and Infrastructure Committee reported H.R. 7, H. Rep. 112-397. Section 1703 of that bill included
exceptions to 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 removed from the final legislation. In
addition, an amendment was offered in the Senate that would have permitted rest area
commercialization, and was rejected by a vote of 86-12. This vote served as a renewed commitment
by Congress to the principles behind the ban on rest area commercialization: that state-run rest areas
operating within the interstate right-of-way should not be permitted to unfairly compete against
businesses at the exits.

NATSO, Inc. ~ 1330 Braddock Place, Suite 501 ~ Alexandria, Virginia 22314
(703) 549-2100 ~ FAX (703) 684-4525 ~ www.natso.com
The final legislation provided very limited exceptions that cannot possibly be construed as extending
to food as a form of media. Congress twice rejected language that might have allowed such activity
within the Interstate ROW.

We also note that FHWA recently opened a docket seeking information (the notice opening the
docket did not make any proposal) regarding the exceptions in current law to the prohibition on
commercial activity within the Interstate System ROW.1 The comment period in that docket does not
close until late December. NATSO submits that the sale of food from within the Interstate ROW other
than through vending machines is clearly prohibited and not within any exception to 23 USC 111s
broad prohibition on commercial activity within the Interstate System ROW. However, should FHWA
choose not to promptly act to clearly prohibit the sale of non-vending machine food within the
Interstate System ROW, FHWA absolutely should not permit the state agency to sell any non-vending
machine food from within that ROW, and should at a minimum prohibit such sales pending further
review that would involve an opportunity for public comment, including but not limited to comments
that may be made to that docket.

Private businesses, such as NATSO members, are the essential stakeholders in this matter under the
rules established by Congress. Accordingly, we respectfully request a timely meeting with you to
ensure that FHWA fully appreciates our position on this matter.

Sincerely,

Lisa J. Mullings
President & CEO
NATSO

NATSO, Inc. ~ 1330 Braddock Place, Suite 501 ~ Alexandria, Virginia 22314
(703) 549-2100 ~ FAX (703) 684-4525 ~ www.natso.com

1 81 Federal Register 66324 (Sept. 27, 2016).