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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2009-0271]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

# ACTION:

Notice of Petition for Determination; request for comments.

# SUMMARY:

FMCSA is inviting all interested persons to comment on three petitions submitted by the American Trucking Associations (ATA) requesting determinations that the Commercial Motor Vehicle (CMV) identification requirements imposed by the State of New Jersey, New York City, and Cook County, Illinois are 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 CMVs any form of identification other than forms required by the Secretary of Transportation, with certain exceptions. FMCSA seeks comment on whether the credential display requirements described below are preempted or whether they qualify for the relevant exception codified at 49 U.S.C. 14506(b)(3).

# DATES:

Comments are due on or before November 18, 2009.

# 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. Do not submit the same comments by more than one method. However, to allow effective public participation before the comment period deadline, 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.
      -  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 the docket: FMCSA-2009-0271. 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 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 be considered to the extent practicable. FMCSA may, however, issue a final determination at any time after the close of the comment period. In addition to late comments, FMCSA will also 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; e-mail                         *Genevieve.Sapir@dot.gov*.                    

# SUPPLEMENTARY INFORMATION:

## Background

New Jersey's Tax Code requires all motor carriers hauling, transporting, or delivering fuel to display a Motor Fuel Transport License Plate and annual Transport License Certificate. This requirement applies to all motor carriers hauling, transporting, or delivering fuel in New Jersey regardless of their State of domicile or registration. New Jersey Statutes Annotated § 54:39-41 and § 54:39-53.

                    New York City's Administrative Code requires CMVs used principally in the city or used principally in connection with a business carried on within the city to pay a tax and display a stamp. The requirement appears to apply whether or not the CMV is registered to an address in New York City.[1] 

Cook County's Code of Ordinances requires motor vehicle owners residing within the unincorporated area of Cook County to: (a) Display a window sticker showing payment of fees; and (b) paint business vehicle identification information on their vehicles. Article XIV of chapter 74 of the Cook County Code of Ordinances is referred to as the “Cook County Wheel Tax on Motor Vehicles Ordinance,” and was amended most recently on March 4, 2009.

Section 4306 of SAFETEA-LU, codified at 49 U.S.C. 14506(a), prohibits States from requiring motor carriers to display in or on CMVs any form of identification other than forms required by the Secretary of Transportation. However, § 14506(b)(3) provides, in part, that “a State may continue to require display of credentials that are required * * * under a State law regarding motor vehicle license plates or other displays that the Secretary determines are appropriate.” This authority has been delegated to FMCSA by 49 CFR 1.73 (a)(7). FMCSA believes that Congress intended to limit the exception at § 14506(b)(3) to two categories of requirements. The first includes identification requirements related to motor vehicle license plates. The second includes any other identification displays that the Secretary of Transportation approves.

                    FMCSA seeks comment on whether the referenced identification display requirements are preempted by Federal law. Specifically, the Agency seeks comment on: (1) Whether New Jersey's, New York City's, and/or Cook County's credential display requirements qualify as identification requirements related to motor vehicle license plates; and/or (2) whether there is any other reason FMCSA should consider approving these requirements under 49 U.S.C.                           ( print page 53579)                        14506(b)(3). ATA's petitions seeking determinations, along with the applicable statutes, regulations and ordinances, are available in the docket established for this Notice for inspection.                

## Request for Comments

FMCSA invites the three affected jurisdictions, as well as any other interested party, to comment on the limited issue of whether New Jersey's, New York City's, and/or Cook County's credential display requirements are preempted in accordance with 49 U.S.C. 14506. Interested parties are requested to limit their comments to this issue. FMCSA has no authority to review the imposition, amounts, or collection of any taxes for which the credentials are issued. FMCSA encourages commenters to submit data or legal authorities supporting their position.

Issued on: September 25, 2009.

Rose A. McMurray,

Acting Deputy Administrator.

# Footnotes

1.                             Chapter 8 of Title 11 of the New York City Administrative Code Tax on Commercial Motor Vehicles and Motor Vehicles for Transportation of Passengers.                    
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[FR Doc. E9-25093 Filed 10-16-09; 8:45 am]

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