[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Notices]
[Pages 72495-72496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30237]



[[Page 72495]]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2011-0318]


Alabama Metal Coil Securement Act; Petition for Determination of 
Preemption

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

ACTION: Notice of petition for determination of preemption; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: FMCSA requests comments on a petition submitted by the 
American Trucking Associations (ATA) requesting a determination that 
the State of Alabama's Metal Coil Securement Act is preempted by 
Federal law. FMCSA requests comments on what effect, if any, Alabama's 
metal coil load securement certification requirements may have on 
interstate commerce.

DATES: Comments are due on or before January 23, 2012.

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 deadlines, 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 comment closing date indicated above will 
be considered and will be available for examination in the docket at 
the above address. 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. If you have 
questions on viewing or submitting material to the docket, call Renee 
V. Wright, Program Manager, Docket Operations, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION: 

Background

The Metal Coil Securement Act

    Alabama's Metal Coil Securement Act (the Act), enacted in 2009, 
prohibits a motor carrier from transporting metal coils in a movement 
that originates or terminates in Alabama unless the driver is certified 
in load securement (Ala. Code 32-9A-2(a)(4)a.). The law, as originally 
enacted, also required the driver to carry a copy of the certification 
in the vehicle and produce it upon demand (Ala. Code 32-9A-2(a)(4)b.). 
Maximum penalties for violating these requirements include fines of 
between $5,000 and $10,000, jail time and/or a court order prohibiting 
the driver from operating a commercial motor vehicle (CMV) in the State 
(Ala. Code 32-9A-4(d)--(g)). Alabama Promulgated Rule No. 760-X-1-.16, 
adopted on April 5, 2011, offers CMV drivers three options to become 
certified in load securement: (1) Obtain a Metal Coil Certificate by 
taking and passing the ``Securing Metal Coils Course'' available for 
$25.00 on the web site, www.metalcoiltraining.com; (2) obtain a 
commercial driver's license (CDL) endorsement that allows the driver to 
haul metal coils in the issuing State; or (3) obtain a Metal Coil 
Certificate from a motor carrier authorized by the Alabama Department 
of Public Safety (ADPS) to issue the Certificate, which would require 
the carrier's safety compliance officer to submit a notarized affidavit 
that he/she has personal knowledge that the carrier requires every 
driver to be trained in the requirements of 49 CFR 393.120 before 
hauling metal coils. Federal regulations for securing metal coil loads, 
codified in 49 CFR 393.120, do not require any such driver 
certification.
    In June 2011, Alabama amended the Act, rescinding the requirement 
that drivers carry copies of their metal coil load securement 
certification in their vehicles. Currently, the Act continues to 
require drivers to obtain certification, as specified in Alabama 
Promulgated Rule No. 760-X-1-.16, but drivers are no longer required to 
produce the certification upon demand.

FMCSA and ATA responses

    On June 26, 2009, FMCSA sent a letter to then-Governor Bob Riley of 
Alabama stating that the Act appeared to be incompatible with the 
requirements of FMCSA's Motor Carrier Safety Assistance Program. FMCSA 
also drew attention to two Federal laws authorizing preemption of State 
legislation (49 U.S.C. 14506 and 31141) and indicated that they might 
be applicable. The Agency urged State officials to work together with 
FMCSA officials to resolve any conflict between State and Federal law. 
Governor Riley responded on August 26, 2009, explaining that the Act 
was adopted in response to a number of accidents in Alabama involving 
the transport of metal coils. Governor Riley took the position that 
Alabama's metal coil load securement certification requirements were 
not preempted by Federal law.
    On December 22, 2010, ATA petitioned FMCSA for a determination that 
Alabama's metal coil load securement certification requirements and 
penalties create an unreasonable burden on interstate commerce and are 
preempted under 49 U.S.C. 31141. ATA contends that Alabama's 
requirement that drivers obtain certification in metal coil load 
securement is more stringent than and incompatible with Federal metal 
coil safety regulations.
    In its December 22, 2010 letter, ATA also requested a determination 
that the requirement that the driver carry the certification and 
display it upon

[[Page 72496]]

demand is preempted by 49 U.S.C. 14506. The recent amendment to the 
Act, however, removed this requirement, rendering ATA's request moot. 
As a result, FMCSA does not address this issue.
    By letter dated January 25, 2011, the ADPS responded to ATA's 
petition. ADPS acknowledged that the requirements of the Act are more 
stringent than Federal regulations, but stated that the requirements 
should not be preempted because they have safety benefits and do not 
place an unreasonable burden on interstate commerce.

Applicable law

    Section 31141 of title 49, United States Code, prohibits States 
from enforcing a law or regulation on CMV safety that the Secretary of 
Transportation (Secretary) has determined to be preempted. To determine 
whether a State law or regulation is preempted, the Secretary must 
decide whether a State law or regulation: (1) Has the same effect as a 
regulation prescribed under 49 U.S.C. 31136, which is the authority for 
much of the Federal Motor Carrier Safety Regulations (FMCSRs); (2) is 
less stringent than such a regulation; or (3) is additional to or more 
stringent than such a regulation (49 U.S.C. 31141(c)(1)). If the 
Secretary determines that a State law or regulation has the same effect 
as a regulation based on 31136, it may be enforced (49 U.S.C. 
31141(c)(2)). A State law or regulation that is less stringent may not 
be enforced (49 U.S.C. 31141(c)(3)). And a State law or regulation the 
Secretary determines to be additional to or more stringent than a 
regulation based on 31136 may be enforced unless the Secretary decides 
that the State law or regulation (1) Has no safety benefit; (2) is 
incompatible with the regulation prescribed by the Secretary; or (3) 
would cause an unreasonable burden on interstate commerce (49 U.S.C. 
31141(c)(4)). To determine whether a State law or regulation will cause 
an unreasonable burden on interstate commerce, the Secretary may 
consider the cumulative effect that the State's law or regulation and 
all similar laws and regulations of other States will have on 
interstate commerce (49 U.S.C. 31141(c)(5)). The Secretary's authority 
under 31141 is delegated to the FMCSA Administrator by 49 CFR 1.73(g).

Request for Comments

    Although preemption under 31141 is a legal determination reserved 
to the judgment of the Agency, FMCSA seeks comment on what effect, if 
any, Alabama's metal coil load securement certification requirement has 
on interstate motor carrier operations. Commenters are also encouraged 
to submit information on similar requirements imposed by States other 
than Alabama. In requesting comments, FMCSA does not seek legal 
conclusions. FMCSA also seeks information on the safety, economic, and 
operational effects, including cumulative effects, of Alabama's and 
other States' requirements. FMCSA requests commenters to limit their 
submissions to these issues and to submit data supporting their 
positions. The Agency has placed in the docket for inspection: FMCSA's 
June 26, 2009 letter, Governor Riley's August 26, 2009 reply, ATA's 
December 22, 2010 petition, ADPS's January 25, 2011 response, the 
Alabama Metal Securement Act, the ADPS April 5, 2011 rule implementing 
the Metal Coil Securement Act, and the June 2011 amendments to the 
Metal Coil Securement Act.

    Issued on: November 2, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-30237 Filed 11-22-11; 8:45 am]
BILLING CODE 4910-EX-P