[Federal Register Volume 78, Number 43 (Tuesday, March 5, 2013)]
[Notices]
[Pages 14403-14405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05114]


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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: Order; Grant of Petition for Determination of Preemption.

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SUMMARY: FMCSA grants a petition submitted by the American Trucking 
Associations (ATA) requesting a determination that the State of 
Alabama's Metal Coil Securement Act (the Act) is preempted by Federal 
law. Federal law provides for preemption of State commercial motor 
vehicle (CMV) safety laws that are more stringent than Federal 
regulations and (1) Have no safety benefit; (2) are incompatible with 
Federal regulations; or (3) would cause an unreasonable burden on 
interstate commerce. FMCSA has determined that there is insufficient 
support for the claimed safety benefits and that the Act places an 
unreasonable burden on interstate commerce.

DATES: This decision is effective April 4, 2013.

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 
[email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov at time or Room W12-140 on 
the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. The FDMS is available 24 hours each day, 365 
days each year.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, etc.). 
You may review DOT's Privacy Act Statement for the Federal Docket 
Management System (FDMS) published in the Federal Register on December 
29, 2010 (75 FR 82132).

Background

The Metal Coil Securement Act

    The Act, adopted 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 
Sec.  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 Sec.  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 CMV in the State (Ala. Code Sec.  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 contended 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 demand is preempted by 49 U.S.C. 14506. The recent 
amendment to the

[[Page 14404]]

Act, however, removed this requirement, rendering this aspect of ATA's 
request moot.
    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 Sec.  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 determined to be additional to or more stringent than a 
regulation based on Sec.  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 Sec.  31141 is delegated to the FMCSA Administrator by 49 CFR 
1.87(f).

Comments

    FMCSA published a notice in the Federal Register on November 23, 
2011 (76 FR 72495) seeking comment on whether the Act is preempted by 
Federal law. Although preemption under Sec.  31141 is a legal 
determination reserved to the judgment of the Agency, FMCSA sought 
comment on what effect, if any, Alabama's metal coil load securement 
certification requirement has on interstate motor carrier operations. 
FMCSA received thirteen comments in response. The five comments 
opposing preemption included one each from an individual driver, a 
motor carrier, Advocates for Highway and Auto Safety (AHAS), the 
Alabama Trucking Association and the ADPS. The eight comments 
supporting the preemption petition included four from motor carriers, 
and one each from an owner-operator, ATA, an Alabama aluminum coil 
producer and the Owner-Operators Independent Drivers Association 
(OOIDA).
    Commenters opposing the petition stated that the Act is appropriate 
because there is a lack of Federal enforcement of training 
requirements; cargo load securement is a leading cause of crashes; and 
there have not been any metal coil spills in Alabama since the Act was 
enacted. Commenters supporting the petition stated that the Act should 
be preempted because it is simply an administrative requirement and 
does not have safety benefits; it imposes costs on the motor carrier 
and metal coil industries; it is likely to lead to a proliferation of 
other State requirements with burdensome cumulative effects; it 
unfairly affects less-than-truckload (LTL) carriers; and safety risks 
other than improper load securement (such as excessive speed at a 
crash-prone Interstate highway junction) are contributing factors to 
the coil spills cited as justification for the Act.

Decision

    The Agency concludes that the Act does not meet the standards set 
forth in 49 U.S.C. 31141 and may not be enforced. The Act imposes 
certification requirements on interstate CMV drivers that are not 
required under FMCSA's regulations. As a result, and as the ADPS has 
acknowledged, the Act imposes requirements more stringent than those 
imposed by Federal law. The only remaining issue, therefore, is whether 
the Act (1) Has a safety benefit; (2) is incompatible with FMCSA's 
regulations; or (3) would cause an unreasonable burden on interstate 
commerce. The Agency concludes that there is insufficient support for 
the claimed safety benefits and that the Act places an unreasonable 
burden on interstate commerce.
    Although several commenters argued that the Act's requirements have 
safety benefits, the only evidence presented--by ADPS--was a paper 
showing that there were eight metal coil spills in Jefferson County 
(i.e., the Birmingham area) in the three years prior to adoption of the 
Act and apparently none thereafter. ADPS implied that there was a 
correlation between reduced crashes and the adoption of the Act, but 
that is easier to assume than to demonstrate. For example, other 
commenters observed that the majority of the metal coil spills that 
occurred in Alabama were at ``Malfunction Junction,'' a particularly 
dangerous Interstate highway junction in Birmingham, and that speed was 
a factor in many of these spills. They also commented that in 2007, the 
State reduced the speed limit at this junction in an effort to reduce 
crashes. Crashes typically have multiple causes; determining the 
``basic'' cause is therefore difficult, if not impossible. Identifying 
the reason or reasons for a reduction in crashes is even more 
problematic, especially when the annual number of incidents--like those 
involving metal coils in Alabama--is small enough to be affected 
significantly by random variations. Given the variety of factors that 
may have contributed both to the occurrence of and reduction in metal 
coil spills, attributing the reduction to a single piece of legislation 
is unwarranted.
    In addition, the Act's requirements are largely administrative; 
Alabama does not test a driver's skills in securing a load. As one 
commenter observed, in the case of the on-line certification option, 
there is no way of determining whether the person taking the test is 
even the driver being certified. In the case of motor carrier 
certification option, individual drivers are not tested; the motor 
carrier simply certifies that its drivers have been trained in the 
Federal regulations. In either case, all the driver or motor carrier is 
required to do is demonstrate knowledge of Federal regulations--
knowledge the driver is required to have in any case. (See 49 CFR 
390.3(e)(1)-(2)). In short, the Act imposes costs on interstate 
carriers and drivers that are not commensurate with any readily 
identifiable safety benefits.
    Moreover, not preempting the Act could have wide-ranging 
implications. For example, an individual driver commented that he was 
required to obtain an Alabama Metal Coil Certificate before being hired 
by a Minnesota-based motor carrier. Although the carrier did not haul 
coils into or out of Alabama, it apparently wanted to be prepared to 
handle that kind of business should the opportunity arise. Similarly, 
two LTL motor carriers stated that, because of the nature of their 
business, they would require all drivers to obtain an Alabama Metal 
Coil Certificate to cover the

[[Page 14405]]

possibility that a driver would be asked to transport a load of metal 
coils in or out of Alabama at some point during their employment. The 
ripple effect of the Act in imposing both potential burdens and costs 
beyond dedicated metal-coil transporters is extensive.
    Finally, the cumulative effect of multiple States requiring their 
own metal-coil certifications, each with an associated fee, would 
create an even more unreasonable burden on interstate commerce. Several 
commenters noted that other States have metal coil certification 
requirements, but that they apply only to intrastate operations. If 
these and other States extended their metal coil certification 
requirements to interstate carriers, the effect would be a patchwork of 
requirements, with accompanying burdens and costs.

Conclusion

    Accordingly, FMCSA grants ATA's petition for preemption. Alabama 
may no longer enforce the Act on interstate motor carriers.

    Issued on: February 27, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-05114 Filed 3-4-13; 8:45 am]
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