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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2010-0387]

# AGENCY:

Federal Motor Carrier Safety Administration, Department of Transportation.

# ACTION:

Notice of petition for determination; request for comments.

# SUMMARY:

                        FMCSA invites all interested persons to comment on a petition that the New Jersey Motor Truck Association (NJMTA) submitted requesting that FMCSA declare the Port Authority of New York and New Jersey's (Port Authority) Drayage Truck Registry                               ( print page 75541)                            (DTR) sticker display requirement preempted by Federal law. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) prohibits States and their political subdivisions from requiring motor carriers to display in or on commercial motor vehicles (CMVs) any form of identification other than forms required by the Secretary of Transportation, with certain exceptions. NJMTA requests that FMCSA determine that the Port Authority's DTR sticker display requirement is preempted by SAFETEA-LU. FMCSA seeks comment on whether the Port Authority's display requirement described below is preempted or whether it qualifies for the relevant exception codified at 49 U.S.C. 14506(b)(3).                    

# DATES:

Initial comments are due on or before January 3, 2011. In order to allow adequate time and notice for commenters to prepare reply comments, initial comments received after the deadline will not be considered. Reply comments are due on or before January 18, 2011. The Agency will only consider reply comments responding directly to issues raised in the initial round of comments. Commenters may not use reply comments to raise new issues.

# 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 deadline, 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 initial comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the closing date will not be considered. 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.

# SUPPLEMENTARY INFORMATION:

## Background

Effective October 1, 2010, the Port Authority amended its marine tariff (PAMT FMC No. 10) to require trucks entering marine terminal facilities to display a sticker showing compliance with its new Drayage Truck Registry (DTR). In response, the NJMTA has petitioned the Secretary of Transportation (Secretary) for a determination that the Port Authority's sticker display requirement is preempted by Federal law. Effective October 15, 2010, and in response to the NJMTA's petition, the Port Authority amended its tariff to clarify that the compliance stickers are a voluntary way to demonstrate compliance with the DTR and that no truck will be denied access to marine terminal facilities for failure to display a sticker. In a letter to the Secretary dated November 2, 2010, the NJMTA disagreed that the compliance sticker would be voluntary and amended its petition to request the Secretary to determine that the substantive provisions of the DTR are preempted under 49 U.S.C. 14501(c). FMCSA will consider the NJMTA's request for a preemption determination on the substantive provisions of the DTR as a separate matter, but will make its decision available in this docket for inspection.

The NJMTA is a non-profit trade association that represents over 500 trucking companies with operations in New Jersey. NJMTA states that its mission is to foster and promote sound economical and efficient service by motor carrier transportation; to promote safety and courtesy in highway transportation; to foster and support beneficial laws and regulations affecting the motor carrier industry and highway transportation; to promote and encourage the construction and maintenance of an adequate system of safely engineered highways; to foster and promote sound and reasonable taxation at the State and Federal levels on highway users; and to engage in any and all activities that will advance the interests of highway transportation and highway users generally.

The Port Authority conceives, builds, operates and maintains infrastructure critical to the New York/New Jersey region's trade and transportation network. These facilities include the New York/New Jersey airport system, marine terminals and ports, the PATH rail transit system, six tunnels and bridges between New York and New Jersey, the Port Authority Bus Terminal in Manhattan, and the World Trade Center.

                    In an effort to reduce Port-related diesel and greenhouse gas emissions, the Port Authority is implementing a truck phase-out plan that will deny old drayage trucks access to its marine terminal facilities. Under this plan, the Port Authority will deny drayage trucks with pre-1994 model year engines access to Port Authority marine terminal facilities effective January 1, 2011. Effective January 1, 2017, the Port Authority will deny drayage trucks equipped with engines that fail to meet or exceed 2007 model year Federal heavy-duty, diesel-fueled, on-road emission standards access to marine terminal facilities. In order to implement the truck phase-out plan, the Port Authority will require drayage trucks accessing Port Authority marine terminal facilities to be registered in the DTR. The Port Authority will issue compliance stickers to drayage trucks that are compliant with the elements of the phase-out plan to facilitate and expedite transit of those trucks onto,                           ( print page 75542)                        through and out of marine terminal facilities. As noted above, the Port Authority has amended its tariff to clarify that the compliance stickers are a voluntary way to demonstrate compliance with the DTR and that no truck will be denied access to marine terminal facilities for failure to display a sticker.                

Section 4306(a) of SAFETEA-LU, codified at 49 U.S.C. 14506, prohibits States from requiring motor carriers to display in or on commercial motor vehicles any form of identification other than forms required by the Secretary of Transportation. Section 14506(b)(3) authorizes the Secretary to make an exception for display requirements that he “determines are appropriate.”

FMCSA seeks comment on whether the Port Authority's sticker display requirement is preempted by Federal law. Specifically, the Agency seeks comment on whether the Port Authority's sticker display requirement should qualify for the Secretary's exception in 49 U.S.C. 14506(b)(3). NJMTA's petition, the Port Authority's October 21, 2010 submission to FMCSA in response to the petition, NJMTA's November 2, 2010 amended petition and the relevant portions of the Port Authority's October 1 and October 15, 2010 marine terminal tariffs are available in the docket for inspection.

## Request for Comments

FMCSA invites the Port Authority, as well as any other interested party, to comment on the limited issue of whether the Port Authority's sticker display requirement is preempted by 49 U.S.C. 15406. Interested parties are requested to limit their comments to this issue. FMCSA will not consider NJMTA's request to preempt substantive provisions of the DTR as a part of this docket. FMCSA encourages commenters to submit data or legal authorities supporting their positions.

Issued on: November 19, 2010.

Anne S. Ferro,

Administrator.

[FR Doc. 2010-30315 Filed 12-2-10; 8:45 am]

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