Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Notices 13385 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

or to the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Tyneka Thomas ARM–105, (202) 267– 

7626, FAA, Office of Rulemaking, 800 

Independence Ave. SW., Washington, 

DC 20591. This notice is published 

pursuant to 14 CFR 11.85. 

Issued in Washington, DC, on February 29, 

2012. 

Brenda D. Courtney, 

Acting Deputy Director, Office of Rulemaking. 

Petition for Exemption 

Docket No.: FAA–2012–0075. 

Petitioner: American Aviation, Inc. 

Section of 14 CFR Affected: 14 CFR 

119.1(e)(6). 

Description of Relief Sought: The 

relief sought would allow American 

Aviation, Inc., to conduct parachute 

operations dropping test flares more 

than 25-statute-miles from the airport of 

takeoff. 

[FR Doc. 2012–5404 Filed 3–5–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

[Summary Notice No. PE–2012–08] 

Petition for Exemption; Summary of 

Petition Received 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of petition for exemption 

received. 

SUMMARY: This notice contains a 

summary of a petition seeking relief 

from specified requirements of 14 CFR. 

The purpose of this notice is to improve 

the public’s awareness of, and 

participation in, this aspect of FAA’s 

regulatory activities. Neither publication 

of this notice nor the inclusion or 

omission of information in the summary 

is intended to affect the legal status of 

the petition or its final disposition. 

DATES: Comments on this petition must 

identify the petition docket number and 

must be received on or before April 5, 

2012. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2012–0123 using any of the following 

methods: 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

your comments electronically. 

• Mail: Send comments to the Docket 

Management Facility; U.S. Department 

of Transportation, 1200 New Jersey 

Avenue SE., West Building Ground 

Floor, Room W12–140, Washington, DC 

20590. 

• Fax: Fax comments to the Docket 

Management Facility at 202–493–2251. 

• Hand Delivery: Bring comments to 

the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

comments received into any of our 

dockets, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

or to the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Frances Shaver, ARM–207, (202) 267– 

4059, FAA, Office of Rulemaking, 800 

Independence Ave. SW., Washington, 

DC 20591, or Ted Jones, ASW–111, 

(817) 222–5329, FAA Southwest 

Regional Office, 2601 Meacham Blvd., 

Fort Worth, TX 76137. 

This notice is published pursuant to 

14 CFR 11.85. 

Issued in Washington, DC, on February 29, 

2012. 

Brenda D. Courtney, 

Acting Deputy Director, Office of 

Rulemaking—Aviation Safety. 

PETITION FOR EXEMPTION 

Docket No.: FAA–2012–0123 

Petitioner: Bell Helicopter Textron 

Canada Limited 

Section of 14 CFR Affected: § 27.1 

Description of Relief Sought: The 

exemption would permit an increase in 

the maximum gross weight of the Bell 

429 from 7,000 pounds to 7,500 pounds 

to enable the aircraft to carry additional 

safety related equipment and fuel. The 

relief would result in an expanded 

radius of operation for Helicopter Air 

Ambulance operations, increased 

capability and availability for public 

safety operations and improved 

efficiency and safety for American 

petroleum and utility industry 

operations. 

[FR Doc. 2012–5406 Filed 3–5–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2009–0271] 

Identification of Interstate Motor 

Vehicles: New York City, Cook County, 

and New Jersey Tax Identification 

Requirements; Petition for 

Reconsideration. 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice; Grant of petition for 

reconsideration. 

SUMMARY: The FMCSA grants a petition 

for reconsideration submitted by the 

New York City Department of Finance 

(DOF) requesting reconsideration of the 

Agency’s previous determination that 

the credential display requirement of 

New York City’s Commercial Motor 

Vehicle Tax (CMV Tax) is preempted. 

Federal law 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. 

FMCSA has determined that the CMV 

Tax qualifies for one of the statutory 

exceptions. 

DATES: This decision is effective March 

6, 2012. 

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; email Genevieve.Sapir@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 25, 2008, the American 

Trucking Associations (ATA) petitioned 

FMCSA to preempt § 11–809 of New 

York City’s Administrative Code, which 

requires CMVs used principally in New 


pmangrum on DSK3VPTVN1PROD with NOTICES
13386 Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Notices 

York City or in connection with a 

business carried on within New York 

City to display a stamp evidencing 

payment of the city’s CMV Tax. ATA 

alleged that New York City’s credential 

display requirement was preempted 

under 49 U.S.C. 14506(a), which 

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. Section 14506(b), 

however, establishes several exceptions 

to this prohibition [all statutory 

references are to title 49, United States 

Code]: 

(b) Exception.—Notwithstanding 

subsection (a), a State may continue to 

require display of credentials that are 

required— 

(1) Under the International Registration 

Plan under section 31704; 

(2) Under the International Fuel Tax 

Agreement under section 31705 or under an 

applicable State law if, on October 1, 2006, 

the State has a form of highway use taxation 

not subject to collection through the 

International Fuel Tax Agreement; 

(3) Under a State law regarding motor 

vehicle license plates or other displays that 

the Secretary determines are appropriate; 

(4) In connection with Federal 

requirements for hazardous materials 

transportation under section 5103; or 

(5) In connection with the Federal vehicle 

inspection standards under section 31136. 

In response to this and other petitions 

ATA submitted seeking preemption of 

credential display requirements in New 

Jersey and Cook County, Illinois, 

FMCSA published a notice in the 

Federal Register seeking comment on 

whether the credential display 

requirements of New York City, the 

State of New Jersey, and Cook County, 

Illinois should be preempted (74 FR 

53578, Oct. 19, 2009). FMCSA 

specifically requested comment from 

the three jurisdictions, but neither New 

Jersey nor New York City responded 

with comments. After the close of the 

comment period, Cook County sent a 

letter conceding that its ordinance was 

preempted under § 14506. 

On October 20, 2010, FMCSA issued 

an order preempting all three credential 

requirements (75 FR 64779). FMCSA’s 

preemption analysis focused solely on 

whether the exception in § 14506(b)(3) 

applied. However, in reaching this 

determination, FMCSA concluded that 

all of the exceptions at § 14506(b) could 

apply to political subdivisions of States, 

including municipalities, if they 

otherwise meet the statutory criteria (75 

FR at 64780–81). 

On January 3, 2011, New York City’s 

Department of Finance (DOF) submitted 

a petition requesting reconsideration of 

FMCSA’s preemption determination. 

DOF’s petition contended that New 

York City’s credential display 

requirement was based on a form of 

highway use taxation excepted from 

preemption under § 14506(b)(2). For the 

reasons set forth below, FMCSA grants 

the DOF’s petition for reconsideration. 

Applicable Law 

New York City’s CMV Tax has been 

in effect since 1960. See Administrative 

Code of the City of New York, Title 11, 

Chapter 8. Subject to several 

exemptions, the tax applies to both 

‘‘commercial motor vehicle[s]’’ and 

‘‘motor vehicle[s] for the transportation 

of passengers’’ that operate on a public 

highway or public street and are 

‘‘propelled by any power other than 

muscular power.’’ §§ 11–801(2)–(4); 11– 

803. The tax applies to a ‘‘commercial 

motor vehicle’’ that is ‘‘used principally 

in the city or used principally in 

connection with a business carried on 

within the city.’’ § 11–801(3). According 

to the DOF Web site, the term 

‘‘principally used in the city’’ means 

that 50% or more of a CMV’s mileage 

during a year is within New York City 

limits. See http://www.nyc.gov/html/

dof/html/business/business_tax_cmvt.

shtml. The tax also applies to a ‘‘motor 

vehicle for transportation of passengers’’ 

that is ‘‘used regularly, even though not 

principally, in the city.’’ § 11–801(4). 

The tax rate varies based on the class of 

the vehicle; for example, the annual tax 

on a truck is based on maximum gross 

weight, in accordance with the 

following classes: 10,000 pounds or less, 

$40; 10,001–12,500 pounds, $200; 

12,501–15,000 pounds, $275; and 

15,000 pounds or over, $300, but the 

annual tax on passenger vehicles is a 

flat rate of $400. § 11–802.a.1.(C). 

Subject to certain exceptions, the tax is 

paid to the Commissioner of Finance on 

an annual basis. § 11–808. However, the 

tax on trucks registered in New York 

with a maximum gross weight not 

exceeding 10,000 pounds and certain 

passenger vehicles is collected by the 

Commissioner of Motor Vehicles when 

the vehicle registration is renewed. 

§ 11–809.1(a). The Commissioner of 

Finance is authorized to require that a 

tax decal or other indicia of payment be 

affixed to a vehicle. § 11–809(a); New 

York City Rules, Tit. 19, § 6–09. 

Section 14506(a) prohibits the States 

or their political subdivisions from 

requiring a motor carrier to display 

either in or on a CMV any form of 

identification other than a form required 

by the Secretary of Transportation. 

However, § 14506(b)(2) provides that: 

Notwithstanding [§ 14506(a)], a State may 

continue to require display of credentials that 

are required—(2) under the International 

Fuel Tax Agreement * * * or under an 

applicable State law if, on October 1, 2006, 

the State has a form of highway use taxation 

not subject to collection through the 

International Fuel Tax Agreement; 

(emphasis added). 

FMCSA Decision 

To qualify for the statutory exception 

at 49 U.S.C. 14506(b)(2), the credentials 

(in this case a decal) required by New 

York City’s CMV tax must be part of a 

highway use tax that was in effect prior 

to October 1, 2006. Because the tax has 

been in effect since 1960, the only 

question before the Agency is whether 

it is a highway use tax within the 

meaning of the statutory exception. 

In enacting § 14506(b)(2), Congress 

did not define a highway use tax. Nor 

is there any other statutory or regulatory 

definition of highway use tax applicable 

to this statutory provision. In the 

absence of controlling authority, the 

Agency looks to common usage of the 

term. In the broadest sense, a highway 

use tax could mean any type of tax to 

support highways or any kind of tax on 

highway business, vehicles, or 

commerce, or any combination of these. 

E.M. Cope, Trends in Highway Taxation 

in the United States, 49 American 

Highways 8, 9 (Oct. 1970). Perhaps a 

better focused definition is any ‘‘lev[y] 

that appl[ies] to motor vehicles because 

of their highway use.’’ Id. 

In the absence of statutory or 

regulatory guidance, the Agency 

examines the plain language of New 

York City’s CMV Tax. By definition, the 

tax is levied for use of a CMV on the 

public highways or streets of the city. 

See § 11–801 (definitions of 

‘‘commercial motor vehicle’’ and ‘‘use’’). 

Section 11–802(b) offers alternative 

interpretations of the tax, both of which 

characterize it as one based on use of 

highways: 

To the extent that the tax as imposed by 

subdivision a of this section may be invalid 

solely because it is based on the use in the 

city of the motor vehicles, the tax shall also 

be deemed to be based on the privilege of 

using the public highways or streets of the 

city by such motor vehicle. 

Accordingly, on its face, the CMV Tax 

is for use of the public highways. 

Proceeds from highway use taxes are 

often dedicated, at least in part, to a 

special fund for highway infrastructure; 

however the DOF’s petition does not 

state how revenue from the CMV Tax is 

used. Nonetheless, a highway use tax 

may be levied without demonstrating 

that the revenues are earmarked for 

highway infrastructure. See, e.g., MidStates Freight Lines, Inc. v. Bates, 200 

Misc. 885, 890 (N.Y. Sup. Ct.), aff’d, 279 

A.D. 451 (3d Dep’t.), aff’d, 304 N.Y. 700 


pmangrum on DSK3VPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 44 / Tuesday, March 6, 2012 / Notices 13387 

(1952). Stated otherwise, a highway use 

tax need not necessarily be dedicated to 

highway purposes. As a result, the 

DOF’s failure to demonstrate a 

connection between the CMV Tax and 

highway funding is not dispositive. 

FMCSA concludes, therefore, that 

New York City’s CMV Tax is a highway 

use tax within the meaning of 49 U.S.C. 

14506(b)(2). 

In consideration of the above, FMCSA 

grants the DOF’s petition for 

reconsideration and reverses its 

decision preempting New York City’s 

credential display requirement. Today’s 

decision is limited to the new 

arguments the DOF raised in its petition 

for reconsideration claiming exception 

from preemption under § 14506(b)(2). 

Under this analysis, New York City’s 

credential display requirement in § 11– 

809 is not preempted and New York 

City may resume enforcement. 

This decision does not affect the 

Agency’s previous determination 

preempting the credential display 

requirements in New Jersey and Cook 

County, Illinois. 

Issued on: February 29, 2012. 

Anne S. Ferro, 

Administrator, Federal Motor Carrier Safety 

Administration. 

[FR Doc. 2012–5319 Filed 3–5–12; 8:45 am] 

BILLING CODE; P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–2012–0044] 

Pipeline Safety: Notice to Operators of 

Driscopipe® 8000 High Density 

Polyethylene Pipe of the Potential for 

Material Degradation 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice; Issuance of Advisory 

Bulletin. 

SUMMARY: PHMSA is issuing this 

advisory bulletin to alert operators using 

Driscopipe® 8000 High Density 

Polyethylene Pipe (Drisco8000) of the 

potential for material degradation. 

Degradation has been identified on pipe 

between one-half inch to two inches in 

diameter that was installed between 

1978 and 1999 in desert-like 

environments in the southwestern 

United States. However, since root 

causes of the degradation have not been 

determined, PHMSA cannot say with 

certainty that this issue is isolated to 

these regions, operating environments, 

pipe sizes, or pipe installation dates. 

While the manufacturer has attempted 

to communicate with known or 

suspected users, PHMSA and the 

National Association of Pipeline Safety 

Representatives (NAPSR) have 

identified several operators currently 

using Drisco8000 pipe who had not 

received communications about the 

issue. PHMSA is issuing this advisory 

bulletin to all operators of Drisco8000 

pipe in an effort to ensure they are 

aware of the issue, communicating with 

the manufacturer and their respective 

regulatory authorities to determine if 

their systems are susceptible to similar 

degradation, and taking measures to 

address it. 

ADDRESSES: This document can be 

viewed on the PHMSA home page at: 

http://www.phmsa.dot.gov. 

FOR FURTHER INFORMATION CONTACT: Max 

Kieba by phone at 202–493–0595 or by 

email at max.kieba@dot.gov. Pipeline 

operators with potentially affected pipe 

or anyone with questions specific to 

actions in a certain state or region are 

encouraged to communicate with the 

appropriate pipeline safety authority 

directly. Operators of pipelines subject 

to regulation by PHMSA should contact 

the appropriate PHMSA Regional Office. 

A list of the PHMSA Regional Offices 

and their contact information is 

available at: http://www.phmsa.dot.gov/ 

pipeline/about/org. Pipeline operators 

subject to regulation by a state should 

contact the appropriate state pipeline 

safety authority. A list of state pipeline 

safety authorities and their contact is 

provided at: http://www.napsr.org/ 

managers/ 

napsr_state_program_managers2.htm. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Two operators of natural gas pipeline 

systems have identified locations of 

material degradation on Drisco8000 

pipe in Arizona and Nevada. The 

manufacturer of the pipe, Performance 

Pipe, a division of Chevron Phillips 

Chemical Company LP, confirmed that 

the pipe was degraded. 

In 1999, a one-inch Copper Tube Size 

(CTS) Drisco8000 pipe service line in 

Arizona experienced a gas leak and was 

found to be degraded. The operator of 

this pipeline found areas of 

delaminating and surface cracking on 

Drisco8000 pipe ranging from one-half 

inch CTS to two inches Iron Pipe Size 

pipe at various locations in Arizona 

beginning in 2004. To better track the 

instances of the phenomenon, the 

operator implemented a procedure for 

reporting, defining the degradation area, 

and conducting leak surveys on the 

affected pipe. Chemical contamination 

was considered a potential source for 

degradation, but after extensive testing 

by the manufacturer and various outside 

laboratories, no indications of chemical 

source could be verified as a root cause. 

In 2007, the operator experienced a 

gas ignition incident on a one-inch CTS 

Drisco8000 service line in Arizona. Due 

to the slit crack nature of the pipe 

failure, the investigation of this incident 

included checking for the possibility of 

nylon contamination in the pipe 

material. Nylon contamination was 

ruled out, but degradation of the 

internal pipe wall was noted. An 

additional incident occurred elsewhere 

in Arizona in 2007. As a result of these 

incidents, the operator implemented a 

replacement program and follow-up 

leak survey program. The operator 

continues its investigation and is 

working cooperatively with the 

manufacturer and regulators to 

determine the root causes and necessary 

mitigative actions. 

A second operator found two cases of 

degraded Drisco8000 pipe in Arizona in 

2006 and reported them to the Arizona 

Corporation Commission Office of 

Pipeline Safety. This operator is now 

looking at other areas of their service 

territory for potential degraded pipe 

issues. 

The affected pipes in the cases 

reported thus far have diameters from 

one-half inch to two inches and have 

installation dates that range from 1978 

to 1999. All reported cases have been on 

systems operating at or below 60 psig in 

desert regions in the southwestern 

United States. In those cases where 

print line codes are present on the pipe, 

the codes identify the pipe as being 

manufactured at a Watsonville, 

California, pipe plant which closed in 

2000. The manufacturer has indicated 

they do not have any evidence that the 

condition developed as a result of the 

manufacturing process. 

According to the manufacturer, the 

degraded pipe is fairly easy to identify 

when the pipe is exposed. Affected pipe 

displays delaminating or peeling of the 

outer diameter or a friable or crumbling 

appearance on the inner diameter 

surfaces of the pipe. In addition, an 

audible cracking sound or noise may be 

detected when flexing, cutting, or 

squeezing the pipe. 

Once installed and in service, 

degraded pipe is not easy to identify. 

The manufacturer is not aware of a 

current testing protocol that consistently 

identifies the affected material while it 

is in service. Existing leak survey 

technologies have proven to be the most 

effective tool in locating and identifying 

degraded pipe. 


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