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