[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32026]
[[Page Unknown]]
[Federal Register: December 29, 1994]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 390
Federal Motor Carrier Safety Regulations; General; Intermodal
Transportation; Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 390
[FHWA Docket No. MC-93-17]
RIN 2125-AD14
Federal Motor Carrier Safety Regulations; General; Intermodal
Transportation
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This rulemaking action implements the requirements of the
Intermodal Safe Container Transportation Act of 1992. Before any person
tenders an intermodal container or trailer having a projected gross
cargo weight of more than 10,000 pounds or 4,536 kilograms, such person
shall notify the initial carrier of its projected gross cargo weight
and a reasonable description of its contents, if the initial carrier is
a motor carrier. At or before tendering, such person shall also provide
a certification to the initial carrier. Motor carriers are prohibited
from accepting a loaded container or trailer prior to receiving a
tangible certification. This final rule is intended to reduce the
number of overweight vehicles illegally operating on United States
highways by requiring persons tendering a loaded container or trailer
to provide motor carriers accurate information about the weight and
nature of the cargo.
EFFECTIVE DATE: June 27, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor
Carrier Standards, (202) 366-5763, or Mr. Charles E. Medalen, Office of
the Chief Counsel, (202) 366-1354, Federal Highway Administration,
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday, except legal Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Almost every intermodal container and trailer travels over the
highway at least once during shipment. Motor carriers are usually at
the beginning or end of the intermodal transportation chain. It is
difficult for motor carriers to comply with highway weight limitations
without knowledge of the weight and transportation characteristics of
the contents of a container or trailer. The purpose of highway weight
laws is to minimize highway and bridge wear and protect the motoring
public. Currently, virtually all States hold motor carriers solely
responsible for operating overweight vehicles. The only exception is
Minnesota, where the shipper may also be liable for overweight
penalties in appropriate cases.
Motor carriers assert they have little or no control over the
loading of the containers or trailers, are forced to accept containers
and trailers with an unknown cargo and weight by threat of economic
retaliation, and yet are held responsible for compliance with weight
laws. A motor carrier may suspect a loaded container or trailer is too
heavy for the equipment or illegal under State law, but has no
reasonable grounds for refusing to transport it without knowledge of
the cargo weight.
Summary of the Act
On October 28, 1992, the President signed the Intermodal Safe
Container Transportation Act of 1992 (the Act) [Pub. L. 102-548, 106
Stat. 3646, partly codified at 49 U.S.C. 5901-5907 (formerly 49 U.S.C.
501 and 508)]. The Act requires the Secretary to issue implementing
regulations. The Act is intended to reduce the number of overweight
motor vehicles illegally operating on the highway by requiring shippers
to give motor carriers accurate information about the nature and weight
of the cargo. The Congress determined that the person who loads an
intermodal container or trailer should be responsible for knowing its
cargo weight and should be required to provide a reasonable description
and the weight of the cargo. Motor carriers are already familiar with
the tare weights of containers and trailers, and this information will
enable them to better estimate the axle weights and gross weight of a
given vehicle combination.
Before the time any person tenders a loaded container or trailer,
the Act requires such person to give the initial carrier written
notification of the projected gross cargo weight and a reasonable
description of the contents of the container or trailer. At or before
the time of tendering, the Act also requires such person to certify in
writing the actual gross cargo weight and a reasonable description of
the contents of the container or trailer. The Act prohibits the
coercion of a person to transport a loaded container or trailer without
a certification or with a weight that would make the combination
vehicle illegally overweight under applicable State law. The Act makes
shippers liable for overweight citations issued to motor carriers if
the certified cargo weight is incorrect.
Summary of the Final Rule
The objective of this final rule is to reduce the number of
overweight motor vehicles transporting intermodal containers or
trailers by improving communication between shippers and motor
carriers. This rule is in no way intended to lessen the responsibility
of motor carriers for compliance with highway weight laws.
If the initial carrier is a motor carrier, the tendering party must
notify the initial carrier of the projected gross cargo weight and a
reasonable description of the contents of the container or trailer
before tendering. The notification may be communicated by electronic
transmission or telephone. For reasons which are discussed later in
this preamble, the notification requirements are inapplicable when the
initial carrier is not a motor carrier.
At or before tendering, the tendering party must provide a
certification to the initial carrier. A certification must include
seven elements which must be legible and in the English language. It is
prohibited to provide false or erroneous information in a
certification.
Motor carriers are prohibited from transporting a loaded container
or trailer prior to receiving a tangible certification. It is a
violation of this final rule to coerce a motor carrier or driver to
transport a loaded container or trailer without a certification or with
a weight that would cause the tractor-trailer combination to exceed
highway weight limitations. The tangible certification must accompany
the loaded container or trailer during transportation by a motor
carrier. Motor carriers, rail carriers, water carriers, ocean common
carriers, and intermediaries that receive a certification in the course
of intermodal transportation must forward the certification to a
subsequent carrier transporting the loaded container or trailer.
A certification may be forwarded by electronic transmission
provided that all subsequent motor carriers receive the certification
in a tangible form. If received in a tangible form, the certification
may be converted to an electronic format. If received as a separate
document, the certification may be incorporated into a shipping
document corresponding to the loaded container or trailer. The person
who converts a certification into an electronic format and/or
incorporates a certification into a shipping document corresponding to
the loaded container or trailer must state in writing that the
conversion and/or incorporation was performed accurately.
Tendering parties and each motor carrier transporting a loaded
container or trailer must maintain a copy of the certification for a
period of one year from the date of the tendering. Certifications may
be maintained electronically if the certification can be reproduced in
a tangible form.
Several requirements of the final rule do not apply to some parties
in the intermodal chain (i.e., those provisions involving notification,
certification, coercion, and recordkeeping). These exclusions, and the
reasons for them, are discussed later in this preamble.
General Discussion of the NPRM
The FHWA published a notice of proposed rulemaking (NPRM) on July
14, 1993 (58 FR 37895). The NPRM proposed to amend part 390 of the
Federal Motor Carrier Safety Regulations (FMCSRs) by adding a new
Subpart C, Intermodal Transportation. Most of the proposed regulations
simply codified the statutory requirements. The comment period for the
NPRM originally closed on September 13, 1993. In response to requests
for an extension of the comment period, the FHWA reopened the comment
period and extended it until October 28, 1993.
General Discussion of the Comments
Seventy-nine comments to the docket were received. Of these,
twenty-eight were from companies connected with intermodal
transportation, thirty-five from trade associations, eight from State
agencies, four from safety organizations (three public, one private),
two from individuals, and one each from a maritime rate agreement and a
port. The following is a discussion of the comments to the docket,
along with the FHWA's response, arranged by topic area.
Notification and Certification Combination
Eight commenters questioned whether the notification and
certification requirements could be satisfied with a single document
being provided at one time.
FHWA Response: The notification and certification requirements can
both be satisfied at the same time if the person tendering the loaded
container or trailer provides a certification to the initial carrier
when the notification would otherwise be provided. The person tendering
the loaded container or trailer may transmit the certification
electronically.
Timely Notification Requirement
Two commenters recommended that the final rule require the
tendering party to give the written notification a minimum number of
hours before tendering the loaded container or trailer. The Shell Oil
Company recommended that persons tendering loaded containers or
trailers be required to provide written notification to the initial
carrier 24 hours before tendering.
FHWA Response: These proposals are excessively prescriptive and not
clearly authorized by the Act. The purpose of the notification
requirement is to help motor carriers make informed equipment choices
in order to transport the loaded container or trailer within highway
weight limitations. The shippers and carriers involved can best make
decisions about the timing of the notification themselves.
The FHWA has reevaluated the notification requirement and has
determined that a written document would serve no essential purpose and
has decided to remove the requirement that the notification be in
writing. This reduces the paperwork burden of the rule and is
consistent with the purposes of the Act. Notifications may be
communicated by electronic transmission or telephone.
Since the notification is intended to give a motor carrier enough
information about the cargo to select equipment that will not violate
highway weight limitations, it serves no purpose if the initial carrier
is not a motor carrier. Therefore, the rule requires a notification to
be provided only when the initial carrier is a motor carrier. The
notification requirement is also inapplicable to a loaded container or
trailer tendered to a motor carrier outside the United States, unless
the motor carrier has to transport it into the United States. The
United States does not have jurisdiction to oversee compliance with the
highway weight limits of other countries.
The NPRM proposed to require any tendering party to give the
initial carrier written notification of the cargo weight and a
reasonable description of the contents of the container or trailer
before the time of tendering. This notification requirement is amended
by replacing the term ``actual gross cargo weight'' with the term
``projected gross cargo weight'' in order to more closely reflect the
language and intent of the Act. The term ``projected gross cargo
weight'' allows the tendering party greater flexibility as to when the
notification could be provided before the time of tendering. The term
``actual gross cargo weight'' would require the tendering party to
weigh the cargo and packing material before the time of tendering in
order for the tendering party to provide the initial carrier with the
``actual gross cargo weight'' within the notification. In short, the
notification could only be provided after the cargo and packing
materials are weighed. The term ``projected gross cargo weight'' does
not require that the cargo and packing material be weighed for the
purposes of the notification, but rather allows the tendering party to
provide the notification after such party can make a close estimate of
the weight of the cargo and packing materials. If the person who will
tender the loaded container or trailer expects or estimates that the
cargo and packing materials will weigh more than 10,000 pounds, such
person is required to notify the initial carrier of the projected gross
cargo weight and a reasonable description of the contents of the
container or trailer.
Applicability to Government
A question was received about whether the final rule will be
applicable to Federal, State, or local government agencies.
FHWA Response: There is an exception to the Federal Motor Carrier
Safety Regulations for transportation performed by Federal, State, or
local government agencies [49 CFR 390.3(f)(2)]. The rule does not apply
to a Federal, State, or local government agency that loads and
transports a container or trailer from origin to destination with its
own vehicles and employees. This exception does not apply to a Federal,
State, or local government agency tendering a loaded container or
trailer when there is a commercial motor carrier in the intermodal
chain.
Comments From State Agencies
Motor Carrier Safety Assistance Program
The Maine State Police commented that States should not be required
to adopt compatible laws as a requirement of participation in the Motor
Carrier Safety Assistance Program (MCSAP) because of expected political
difficulties with adopting restrictive regulations on intermodal
transportation. The Wisconsin Department of Transportation commented
that the President and Congress intended State enforcement to be
voluntary and that requiring State enforcement as a condition of MCSAP
participation is inconsistent with the Act. Given the intention of the
FHWA to require States participating in the MCSAP to adopt regulations
compatible with Sec. 390.56, Duty of Motor Carrier, the Department of
California Highway Patrol asked how intermodal commerce would be
affected by States that do enact legislation authorized by 49 U.S.C.
5904 and 5905 [formerly 49 U.S.C. 508(f) and (g)], but do not adopt
regulations compatible with Sec. 390.56.
FHWA Response: A condition for MCSAP implementation grant approval
in 49 CFR 350.11 is that States agree to adopt and enforce the FMCSRs.
Nothing in the Act changes that. The enforcement activities resulting
from this rule will focus primarily on the requirement that a copy of
the certification accompany the loaded container or trailer during
transportation by a motor carrier, and on the enforcement of highway
weight limitations which is already a State responsibility. States
participating in the MCSAP will be provided three years from the
effective date of this final rule to adopt compatible regulations. The
burden of enforcing these regulations should be minimal.
State Enforcement
The California Department of Transportation asked whether the State
authority to enact legislation under 49 U.S.C. 5904 and 5905 [formerly
49 U.S.C. 508(f) and (g)] is permissive or mandatory. The Washington
State Patrol and the Washington State Department of Transportation
commented that States may not have the resources such as personnel,
funding, and facilities to secure and care for impounded intermodal
containers and trailers. The Washington State Department of
Transportation commented that the penalty of impounding the loaded
container or trailer until assessed fines have been paid may have a
very difficult time passing the legislature.
FHWA Response: The States may, but are not required to, enact
legislation and undertake the enforcement options specified by the Act.
The impoundment provision in 49 U.S.C. 5904(a)(2) [formerly 49 U.S.C.
508(f)(2)] is optional and will not be considered a condition for
participation in the MCSAP.
Removal of Containers
The Washington State Patrol commented that enforcement might
require intermodal containers to be removed from their chassis to be
weighed because an accurate weight of the container must be obtained to
convict a person tendering a loaded container for an improper
certification or, conversely, to prove that the motor carrier is
responsible for the overweight violation.
FHWA Response: The person tendering a loaded container must certify
its gross cargo weight, but not the gross weight of the loaded
container. If an agency implementing the State enforcement provisions
of 49 U.S.C. 5904 and 5905 [formerly 49 U.S.C. 508(f) and (g)]
questions the accuracy of the tare weights listed on intermodal
containers and chassis, it may have to weigh the loaded container and
the cargo separately for evidential purposes. Each State will have to
determine the extent of its due process requirements in this situation.
Recordkeeping
The California Department of Transportation and the Department of
California Highway Patrol requested more information on the purpose of
the one-year recordkeeping requirement for certifications.
FHWA Response: As discussed in the NPRM, the FHWA and the States
maintain information on the results of roadside inspections through an
automated information system known as SAFETYNET. The FHWA and the
States will be able to use these data to identify chronic violators.
Once identified, motor carriers or other violators can be reviewed at
their places of business to determine the extent of their
noncompliance.
Handling of Certification
Four commenters expressed opposition to a requirement that a
tangible copy of the certification move through the intermodal chain or
accompany a loaded container or trailer during transportation. Two
comments stated that such a requirement would require industry to use
inefficient and outmoded methods of communication rather than
electronic data interchange (EDI). The American President Companies,
Ltd. (APC) commented that such a requirement would entail the creation
of systems that do not presently exist. One commenter wrote that
paperwork rarely accompanies an intermodal container or trailer, but
another wrote the certification should be attached to the intermodal
container or trailer itself. However, a third commenter wrote that
intermodal containers and trailers usually have no receptacles to
transport paperwork.
FHWA Response: The NPRM proposed to require that a certification in
tangible form accompany the loaded container or trailer during
transportation by a motor carrier, but not by carriers of other modes.
The NPRM also proposed to require a carrier or intermediary who
receives a certification in the course of intermodal transportation to
forward it to a subsequent carrier transporting the loaded container or
trailer.
The final rule retains all of these provisions, but explicitly
permits certifications to be forwarded by electronic transmission.
However, persons tendering a loaded container or trailer to a motor
carrier, and carriers and intermediaries who forward a certification to
a motor carrier must provide the motor carrier with the certification
in a tangible form. Roadside inspectors must be able to determine
whether a motor carrier transporting a loaded container or trailer has
received the certification and a tangible copy is the only practical
alternative at roadside. Several commenters wrote that an
electronically transmitted certification could be printed out when a
motor carrier picks up the loaded container or trailer.
Incorporation of Certification
Eleven commenters urged that the final rule not require a separate
certification document, but rather allow the certification to be
incorporated into existing shipping or transportation documents, such
as bills of lading or equipment interchange documents. The American
Trucking Associations, Inc. (ATA) recommended that the certification be
identified with a title. Four commenters suggested that a party in the
intermodal chain be allowed to incorporate a certification into other
shipping documents after the time of tendering. Two commenters
recommended that the rule allow the information from the certification,
but not the certification itself, to be forwarded through the
intermodal chain along with other shipping documents. One commenter
wrote that carriers should be permitted to forward certifications to
the subsequent carriers electronically or in paper copy regardless of
the form received.
FHWA Response: The discussion of Sec. 390.58, Forwarding and
Retention of Certification, in the section-by-section analysis of the
NPRM implied that the incorporation of the certification into other
shipping documents was permissible. This final rule explicitly permits
such incorporation.
The NPRM would have required the certification to appear on the
first page of the shipping document or on a separate document that
directly relates to the shipping document corresponding to the
container or trailer. This proposed requirement has been removed.
However, the FHWA agrees with the ATA's recommendation; the rule
requires the certification to be identified with the title ``INTERMODAL
CERTIFICATION.'' A title will make it easier to identify a
certification incorporated into a multiple-page shipping document.
If the person tendering a loaded container or trailer provides the
initial carrier with a paper certification, any carrier or intermediary
with electronic transmission capability may convert the tangible
certification into an electronic format. Similarly, a carrier or
intermediary which receives a certification as a separate document may
incorporate it into a shipping document corresponding to the loaded
container or trailer. However, a person who converts a certification
into an electronic format and/or incorporates a certification into a
shipping document corresponding to the loaded container or trailer must
state in writing that the conversion and/or incorporation was performed
accurately. This provision is necessary to enable the certification to
be forwarded by electronic transmission, even if the tendering party or
initial carrier does not have electronic transmission capability.
Correction or Late Creation of Certification
Three commenters wrote that the NPRM provided no way for a carrier
to create a certification if none was provided, or to correct an
erroneous certification.
FHWA Response: An initial or intermediate carrier would need to
know the cargo weight and a reasonable description of the contents of
the container or trailer in order to provide a certification. If the
initial or intermediate carrier were able to obtain this information
from the tendering party, there is no obvious reason why this party
could not provide a complete certification by facsimile.
An initial or intermediate carrier would not be liable for
forwarding a false or erroneous certification provided by another
person. If a carrier did not receive a certification, it may want to
create a certification in order to avoid subsequent delays in the
transportation of the loaded container or trailer. If the carrier
prepares a certification in its own name (use of the name of the
tendering party would be forgery), the carrier would be liable for any
false or erroneous information it contains.
Electronic Transmission
Two commenters recommended that regulations permit the electronic
transmission of the certification to the initial carrier only. One
commenter wrote that it will be impossible to match faxed
certifications to equipment.
FHWA Response: The final rule allows the intermodal industry to use
modern technologies to the greatest extent possible. However, the FHWA
agrees that it may be difficult to match a certification to the
appropriate container or trailer. In order to make this link, the final
rule requires the identification number of the container or trailer to
be included in the certification.
Certification in English
One commenter recommended a requirement that the certification be
in English.
FHWA Response: The FHWA agrees. The final rule requires a
certification in English. An elementary use of English will comply with
this requirement.
Certification Form
One commenter recommended that the FHWA prescribe a certification
form and another suggested a non-mandatory form that could be used by
both English and non-English speaking persons. A third commenter
opposed a mandatory certification form.
FHWA Response: The certification must include six elements of
information and a signature. A non-mandatory certification form is
being included in the regulations to aid compliance.
Certification Signature
Twelve commenters addressed the proposed requirement that the
certification include a signature. Three opposed the requirement
because it would inhibit electronic transmission. Two wrote that the
technology to store, reproduce, and transmit signatures electronically
is not currently used in the intermodal industry. Five wrote that the
requirement would restrict electronic transmission to facsimiles. One
commenter noted that the Interstate Commerce Commission and the Federal
Maritime Commission have approved the transmission of documents through
EDI that would otherwise require signatures. One commenter wrote that
compliance would be greatly facilitated if electronic transmission of
certifications through EDI was allowed. Four wrote that the Act does
not require the certification to include a signature. Two recommended
that mechanical signatures be allowed. Two recommended that the term
signature be defined. The Wisconsin Department of Transportation noted
that any mark or symbol can suffice as a signature under the Uniform
Commercial Code. P & O Containers Ltd. suggested adopting the signature
requirements included in the hazardous material shipper's certification
in 49 CFR 172.204(d).
FHWA Response: The FHWA agrees that the proposed requirement for a
longhand signature would have been an obstacle to electronic
transmission of certifications and that there is no clear legal reason
for requiring it. The final rule permits signatures to be legibly
signed manually, by typewriter, or by other mechanical means consistent
with the shipper's certification requirements of the hazardous
materials regulations in 49 CFR 172.204(d)(2). That certification as
well as all certifications in various forms, records, and reports
required by the FMCSRs demand a signature of one or more authorized or
appropriate individuals. The final rule requires only the name of the
entity tendering the loaded container or trailer, usually a
corporation, partnership, or individual.
Tare Weight of Container, Trailer, or Chassis
The NPRM asked whether information about the tare weight of the
container, trailer, or chassis would help motor carriers to comply with
State weight laws and whether the certification would be more useful if
it included the gross loaded container or trailer weight rather than or
in addition to the gross cargo weight. There were five comments for and
three against including the gross container or trailer weight on
certifications. There were also two comments for and six against
including tare weight information on certifications. However, eight
wrote that persons tendering loaded containers or trailers could not
provide such information or that it would be impractical for them to do
so.
Sher and Blackwell, on behalf of ten conferences of ocean common
carriers and the Inter-American Discussion Agreement, noted that the
FHWA had no statutory authority to require certifications to include
different or additional weight information. The Matson Navigation
Company wrote that containers are permanently marked with the maximum
weight the container is designed to carry. The Hoechst Celanese
Corporation urged the FHWA to consider establishing maximum weights per
type of container.
FHWA Response: The FHWA agrees that the gross container or trailer
weight would often be useful to motor carriers. However, it is not
reasonable or practical to require the person tendering the loaded
container or trailer to provide such weight information. Furthermore,
the FHWA has no statutory authority to require persons tendering loaded
containers or trailers to provide the tare weight or the gross loaded
weight of the container or trailer. Therefore, the gross cargo weight
is the only weight information that this final rule requires the person
tendering the loaded container or trailer to provide.
While some containers are marked with the maximum weight that they
are designed to carry, that weight might result in violations of
highway weight limitations. Furthermore, containers can be loaded
beyond their design capacity.
Clarification of the Person Tendering a Container or Trailer
The definition of the term tender a loaded container or trailer in
the NPRM stated that ``[t]he person who assumes legal responsibility
for the loading of the contents of the container or trailer is
considered to be the person who tendered the loaded container or
trailer including the consolidation of multiple shipments.'' Several
commenters expressed confusion about this standard and asked how it
would apply in specific cases. The examples discussed below should
clarify these questions: 1. A freight forwarder (FF) is listed on the
shipping papers as the exporter of record although the FF is acting as
an agent of the shipper. The customs broker (CB) is listed on the
shipping papers as the importer of record although the CB is acting as
an agent of the importer. Both the FF and the CB have no knowledge or
control of the cargo weight. If the FF or the CB are considered to be
the person tendering the loaded container or trailer, neither would be
able to provide information about the cargo weight.
FHWA Response: The terms importer of record and exporter of record
are irrelevant for the purposes of this rule. The person who physically
controls the loading of the container or trailer is in the best
position to know the weight and nature of the contents, and would
normally be the person who tenders the loaded container or trailer. The
person tendering the loaded container or trailer must provide the
initial carrier with a notification and certification. A FF or CB who
has no control over the cargo weight is not the person tendering the
loaded container or trailer.
2. Household goods FFs assume responsibility for their shipments
from origin to destination and arrange for the loading of their
shipments into containers through their port agents. Port agents
control the loading of the containers and know the weight of the
shipments they load into containers. Frequently, the port agent loads
shipments from three or four FFs into a single container. The household
goods FF has no knowledge of the weight of shipments it arranges. Is
the FF or the port agent the person tendering the loaded container?
FHWA Response: The port agent is the person tendering the loaded
container because the port agent has control over the loading of the
container. That is particularly obvious for a port agent who
consolidates shipments from two or more FFs into a single container.
3. Some container operations involve so-called ``port to port''
movements, but the container is subsequently transported by a motor
carrier after the container reaches the port of destination.
FHWA Response: A container which is transported from one port to
another port by an ocean or water carrier is not subject to this final
rule because the container is not in intermodal transportation and the
container is never transported by a motor carrier. If the loaded
container is subsequently presented to a motor carrier for highway
transportation after reaching the United States port of destination,
the motor carrier is prohibited from transporting it prior to receiving
a certification in a tangible form. The person who tendered the loaded
container must now provide the certification required by this rule.
4. A Non-Vessel Operating Common Carrier (NVOCC) presents a loaded
container to an ocean carrier on behalf of a shipper who loaded the
container. The NVOCC never takes physical possession of the loaded
container.
FHWA Response: The shipper would be the person tendering the loaded
container because the shipper controls its loading.
5. A NVOCC presents a loaded container to an ocean carrier after
consolidating shipments from two or more shippers and loading the
container under strict instructions from the shippers.
FHWA Response: The NVOCC would be the person tendering the loaded
container because it controlled the loading process and is the only
party with knowledge of weight and nature of the cargo.
Additional Examples
The following questions were not raised by the commenters, but are
presented for clarification purposes:
1. A loaded container originating in a foreign country is
transported to a port in the United States by an ocean or water
carrier. After the container is taken off the vessel, the container is
unloaded at the port and the cargo is loaded into a trailer which is
transported by a motor carrier. What requirements would apply in this
example? What if the contents of the container were unloaded, divided,
and loaded into two trailers?
FHWA Response: This final rule would not be applicable regardless
of whether the cargo is divided after unloading because the container
itself is not in intermodal transportation within the jurisdiction of
the United States.
2. A loaded container or trailer is initially transported by a rail
carrier within the United States to a port. The loaded container or
trailer is then transported by an ocean or water carrier to a
destination in a foreign country. What requirements would apply in this
example?
FHWA Response: The loaded container or trailer is never transported
by a motor carrier. Therefore, this final rule would not be applicable.
3. A loaded container or trailer is initially transported by a
motor carrier within the United States to a port. The loaded container
or trailer is then transported by an ocean or water carrier to a
destination in a foreign country. What requirements would apply in this
example?
FHWA Response: This is intermodal transportation because the
outbound vessel is within the jurisdiction of the United States in
coastal waters. The person tendering the loaded container or trailer
must provide the motor carrier with a notification and certification.
The motor carrier is required to forward the certification to the ocean
or water carrier, but the latter need not take any further action,
since the loaded container or trailer has left the jurisdiction of the
United States.
Clarification of Initial Carrier
Two commenters asked which person would be the initial carrier in
the following situations:
1. A company buys container service directly from steamship lines
and often does not know which motor carrier the steamship line will
send to pick up the loaded container. Would the steamship line or the
motor carrier be the initial carrier? If the motor carrier is the
initial carrier, how would the company give the unknown motor carrier a
notification?
FHWA Response: Both questions imply that the steamship line and the
motor carrier are separate entities. If this is the case, the steamship
line should identify the motor carrier it intends to use so that its
customer (the person who contracted for container service) can provide
the notification to the motor carrier before tendering the loaded
container. If the steamship line is also a motor carrier and its
trucking division is the initial carrier, the person tendering the
loaded container must provide the steamship line with a notification
and a certification.
2. A loaded container is tendered overseas and is transferred
between carriers of different modes before arriving in the United
States. The initial carrier does not issue an intermodal bill of
lading, but a subsequent ocean carrier does.
FHWA Response: It is irrelevant for the purposes of this final rule
whether the initial carrier or a subsequent carrier issues an
intermodal bill of lading. The certification may, but is not required
to, be incorporated into a bill of lading. However, a motor carrier may
not transport the loaded container in the United States unless it
receives a certification in a tangible form.
Reasonable Description and Cargo Security
Twelve commenters asserted that the proposed reasonable description
requirement would increase the vulnerability of the cargo to theft and
pilferage. These commenters argued that a specific description of a
precious cargo would serve the purposes of thieves and hijackers. On
the other hand, one commenter wrote that some general cargo information
may be necessary in order for the motor carrier to assess the accuracy
of the weight on the certificate.
A single commenter claimed that a specific description does not
help motor carriers comply with highway weight limitations. One
commenter wrote that a specific description will not warn of the
presence of hazardous materials. Another wrote that hazardous materials
already have identification and reporting requirements under the
hazardous materials regulations.
The APC commented that a shipment's weight and its value are
inversely related and, therefore, exempting containers and trailers
having a gross cargo weight less than 40,000 pounds from the reasonable
description requirement would minimize the security risk. The National
Maritime Safety Association commented that a reasonable description
should be sufficient if it gave only a general description of the
packages, such as drums, crates, cartons, etc. The Steamship
Association of Southern California and the APC recommended an
elimination of the reasonable description requirement. The Universal
Maritime Safety Corporation recommended that the FHWA consider coding
commodities or classifications with density values. The Owner-Operator
Independent Drivers Association and the Allen Freight Trailer Bridge,
Inc. urged the FHWA to require a more specific reasonable description
than that proposed in the NPRM.
The ATA commented that generic descriptions, such as freight all
kinds (FAK), are generally insufficient because such terms are used in
rating freight, but provide no information as to the nature of the
cargo or its density. Eight commenters wrote that reasonable
descriptions should not include information more specific than is
needed for customs or tariff purposes or that generic descriptions,
such as FAK, are generally accepted transportation terms. Two
commenters wrote that the proposed 20 percent threshold for allowing a
generic description is arbitrary. However, the ATA commented that the
proposed 20 percent threshold was acceptable.
FHWA Response: The reasonable description requirement was not
intended to govern or influence the applicability of tariff
classifications or rates. The FHWA agrees with the ATA's comment that
the purpose of the reasonable description is to provide the motor
carrier with sufficient information to determine the transportation
characteristics of the cargo, such as the likelihood of shifting and
causing an axle weight violation during highway transportation. The
purpose of the reasonable description is to help motor carriers comply
with highway weight limitations. However, a specific reasonable
description of a precious cargo could make the cargo vulnerable to
theft and pilferage.
Therefore, the definition of reasonable description proposed in the
NPRM has been changed to permit the use of generic descriptions, such
as FAK, provided certain additional information is given. This rule
allows generic descriptions because they offer the least information to
potential thieves. However, a container or trailer loaded with
``perishable agricultural commodities'' must use that term as the
reasonable description. This is necessary because the impoundment and
lien provisions of the Act are not applicable to a container or trailer
loaded with perishable agricultural commodities. For informational
purposes, the lien section of the Act [49 U.S.C. 5905, formerly 49
U.S.C. 508(g)] is printed in appendix H to subchapter B along with the
statutory definition of a ``beneficial owner.'' In addition, the
reasonable description must identify a container or trailer whose
contents are likely to shift causing an uneven or concentrated weight
distribution which may result in an axle weight violation during
highway transportation. The description of hazardous material required
on shipping papers by 49 CFR part 172, subpart C is not affected by the
reasonable description and must be shown as specified.
Reasonable Description and Divisibility
Three commenters recommended that the reasonable description
provide sufficient information to determine the divisibility or non-
divisibility of the cargo.
FHWA Response: The Act was not intended to deal with issues of
divisible and non-divisible loads. However, the FHWA's final rule which
implemented the weight and length ``freeze'' required by the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240,
105 Stat. 1914) includes a definition of nondivisible load or vehicle
[59 FR 30392, at 30419, June 13, 1994]. The document also announced
that the FHWA would undertake rulemaking to determine whether the
agency's current policy of allowing States to treat containers moving
in international commerce as nondivisible loads is consistent with the
Intermodal Safe Container Transportation Act of 1992 (see 59 FR 30406).
Recordkeeping
Three commenters recommended that only the initial carrier be
required to maintain certifications. One commenter claimed that the
NPRM required all carriers to maintain certifications. Another wrote
that a one-year record retention period for certifications is excessive
and recommended a period of four months.
FHWA Response: Motor carriers are usually at the beginning or end
of the intermodal transportation chain. However, the initial carrier is
not always a motor carrier. The FHWA does not intend to impose a
recordkeeping requirement upon a water carrier, rail carrier, or ocean
carrier unless such carrier is also the person tendering the loaded
container or trailer. The final rule requires a person who tenders a
loaded container or trailer and a motor carrier who transports a loaded
container or trailer to maintain a copy of the certification for a
period of one year from the date of the tendering. This will enable
enforcement personnel readily to ascertain whether the tendering party
actually provided the certification and whether the motor carrier
transported a loaded container or trailer without having received a
certification.
There are no recordkeeping requirements for any other persons in
the intermodal chain because their only obligation is to forward or
transmit the certification to the next carrier. The FHWA does not
believe the minor value of being able to trace each such forwarding or
transmission from carrier to carrier would justify the expense and
administrative burden such a requirement would entail.
A certification can be incorporated easily into existing shipping
documents. The Interstate Commerce Commission requires that documents,
such as, bills of lading and releases, freight waybills, and freight
bills and settlements be preserved for one year. This final rule also
requires certifications to be maintained for a period of one year.
Weight Gain of Some Cargoes
The American Cotton Shippers Association commented that the weight
of cotton shipped in intermodal containers can change by as much as 4
percent due to heat and humidity.
FHWA Response: Containers and trailers loaded with cargo
susceptible to weight gain must comply with highway weight limitations
when transported by a motor carrier. Shippers of cargo susceptible to
weight gain may have to reduce the load a container or trailer could
otherwise carry in order to account for moisture absorbed in transit.
The gross cargo weight listed on the certification should be higher
than the actual weight at the time of tendering to cover any
anticipated weight gain. This does not constitute general approval to
use estimated weights in certifications, but there is no reasonable
alternative when transporting cotton and other commodities that readily
absorb water.
Foreign Shippers
Two commenters claimed that persons tendering loaded containers and
trailers in foreign countries are outside the jurisdiction of the FHWA.
Another commenter wrote that the importer should be responsible for the
certification when the loaded container or trailer is tendered in a
foreign country. The Intermodal Association of North America suggested
that a foreign shipper be required to provide the certification either
directly or through an agent at the place of entry in the United
States, as required for the import of hazardous materials in 49 CFR
171.12.
One commenter complained that the NPRM provided no way to fine a
foreign shipper for axle weight violations. The Mauritius Sugar
Syndicate commented that it would be inequitable for foreign entities
to be fined if a motor carrier transporting containers originating
abroad fails to comply with highway weight limitations in the United
States. The Canadian Industrial Transportation League commented that
Canadian shippers should have no liability if the container is placed
in intermodal transportation on the initiative of the carrier and
without knowledge of the shipper.
FHWA Response: Congress has the authority to require compliance
with United States laws beyond the territorial boundaries of this
country. The Act involves such an expression of extraterritorial
jurisdiction over persons who tender or transport intermodal containers
or trailers that will eventually travel on a United States highway. The
rationale for this step is that the weight of cargo loaded into these
containers or trailers originating abroad has a direct and foreseeable
effect on highway wear and safety within the United States.
This final rule is not intended to lessen the responsibility of
motor carriers for compliance with weight laws. In most cases, shippers
in the United States and foreign countries are not primarily
responsible for compliance with highway weight limitations. A foreign
shipper which provides an accurate weight and reasonable description of
the cargo has no legal liability if the vehicle transporting the
container in the United States is overweight. If the motor carrier
agrees to transport a loaded container or trailer that might reasonably
be expected to cause axle or gross weight violations, it is solely
responsible for any penalties that might be assessed. The person
tendering the loaded container or trailer would not be liable unless
the certified cargo weight was false or inaccurate. It is true that
shippers are not liable for axle violations, which are usually caused
by shifting cargo, but the reasonable description requirement should
alert motor carriers to cargos that may cause problems.
It is also true that a shipper may not always know whether
intermodal transportation will occur. If there is any likelihood that a
loaded container or trailer will be placed in intermodal
transportation, the person presenting it to the initial carrier should
provide a certification to avoid the possibility of violating this rule
and incurring unnecessary delays in the delivery of the container or
trailer.
Metric Measure of Weight
The National Industrial Transportation League (NITL) suggested that
the final rule allow cargo weight to be listed either in metric or
English units.
FHWA Response: The FHWA agrees. The rule allows cargo weight to be
listed in kilograms or pounds.
Inexact Weight Figures
Two comments recommended that persons tendering a loaded container
or trailer be allowed to certify that the cargo does not exceed a
specific weight rather than provide an exact gross cargo weight because
some shippers do not have access to scales. Another wrote that
estimated gross cargo weight calculated by multiplying the number of
units by the average unit weight should be allowed. One commenter wrote
that the use of computer-generated weights approved by weighing and
inspection bureaus should be allowed because it is sometimes infeasible
to weigh each piece. One commenter recommended that the FHWA allow the
use of standard weights to determine the gross cargo weight. One
commenter wrote that it would be impossible for a small shipper without
a scale to provide the gross cargo weight.
On the other hand, the ATA commented that allowing an approximate
gross cargo weight in certifications would defeat the purpose of the
Act and prevent a motor carrier from determining if the loaded
container or trailer could be legally transported.
FHWA Response: The Act requires that the ``actual gross cargo
weight'' be listed in the certification. The FHWA has no authority to
modify this fundamental provision of the legislation. This final rule
does not specify how the shipper is to determine that weight. It is
possible, as the comments imply, that some shippers may have to obtain
scales. If an inaccurate weight listed in the certification causes a
motor carrier in the United States unwittingly to violate highway
weight limitations, the person tendering the loaded container or
trailer is subject to civil penalties assessed by the FHWA, and to
seizure of the overweight container or trailer by the State, or
imposition of a lien by the carrier or other person.
Commercial practice may tolerate a margin of error for cargo
weights, and water and rail carriers are probably able to accommodate
these variations without difficulty. However, Federal law [23 U.S.C.
127(a)] prohibits weight tolerances on Interstate highways. This means
that the States may not allow, for example, a 2 percent tolerance on
the 34,000-pound tandem axle limit or the 80,000-pound gross weight
limit. A motor carrier confronted with an approximate certified cargo
weight could not know whether the loaded container or trailer would
actually be overweight. Since one purpose of the Act is to reduce the
number of overweight vehicles on United States highways, this final
rule does not weaken the requirement for the ``actual gross cargo
weight.'' However, shippers of commodities that absorb water during
transportation may have to make certain estimates.
Uniform Loading of Containers
One commenter wrote that the NPRM did not address axle overloading
because it would not require the contents of a container or trailer to
be loaded uniformly. Another wrote that container combinations can
easily exceed axle weight limitations while having a legal gross
weight.
FHWA Response: The uniform loading of contents into a container or
trailer is outside the scope of the Act.
Exemption of Lighter Cargos
The Union Pacific System and the APC claimed that combination
vehicles carrying containers or trailers having a gross cargo weight
less than 40,000 pounds (18,144 kilograms) are unlikely to exceed
highway weight limitations in any jurisdiction and, therefore,
recommended that such containers and trailers be exempted from the rule
permanently or not less than two years. The APC commented that a two-
year enforcement delay on such containers and trailers would allow the
FHWA to seek guidance from Congress on a more appropriate cargo weight
threshold. Sher & Blackwell, on behalf of nine ocean carrier
conferences, recommended that containers and trailers having a gross
cargo weight less than 34,000 pounds (15,422 kilograms) be exempted
from the final rule. The Matson Navigation Company agreed that a higher
jurisdictional threshold was advisable, but acknowledged that the
problem could be addressed only by legislation, not regulation.
FHWA Response: Congress was aware of the arguments for a
jurisdictional weight threshold higher than 10,000 pounds when it
drafted this legislation. The Act incorporates that figure, and the
FHWA cannot modify it.
Certification Exemption for Certain Carriers
The APC commented that an initial carrier becomes the person
tendering the loaded container or trailer when the initial carrier
assumes legal responsibility for the loading of the container or
trailer. The APC questioned whether the Act creates the odd result of
the initial carrier providing the notification and certification to
itself. The ATA recommended that motor carriers who tender loaded
containers or trailers and perform all highway portions of the
intermodal transportation be exempted from this final rule. The ATA
commented that there is no need or purpose for the motor carrier to
provide the notification and certification to itself.
FHWA Response: A person tendering a loaded container or trailer
that is also the initial carrier will indeed have to provide the
notification and certification to itself. However, the notification
requirement would be satisfied by the shipping department asking the
transportation department to have a container or trailer available for
loading a certain cargo with a projected cargo weight on a specific
date; normal internal procedures need not change at all. The subsequent
certification is needed because its information must be forwarded to
other carriers in the intermodal chain.
An exemption for motor carriers which tender loaded containers or
trailers and perform all highway portions of the intermodal
transportation would exempt some of the largest less-than-truckload
motor carriers in the United States, while leaving smaller motor
carriers subject to the certification requirements. It is unlikely that
Congress intended to allow disparate impacts based on the size of the
carrier. Furthermore, participants in public outreach sessions of the
FHWA's ``Zero-Base Regulatory Review'' project were strongly opposed to
industry-specific exemptions.
The meaning of assumption of legal responsibility for loading is
discussed below.
Foreign-to-Foreign Commerce
Birdsall, Inc., and Tropical Shipping & Construction Co., Ltd.,
claimed that ``the regulations do not apply to containerized cargo
which is moving through the United States in foreign-to-foreign
commerce rather than the U.S. interstate and foreign commerce.'' These
commenters argued that the Act, by adopting the definition of an
``ocean common carrier'' [49 U.S.C. 5901(3)(B), formerly 49 U.S.C.
501(a)(5)(B)] used in the Shipping Act of 1984 [46 U.S.C. app. 1702(6)
and (18)], prohibits ``regulation of foreign-to-foreign cargo
movements, even though there may be, e.g., a motor carrier movement
between West Palm Beach and Miami, Florida, as part of the through
movement.'' Birdsall and Tropical Shipping relied upon a decision by
the Federal Maritime Commission (FMC) [Foreign-to-Foreign Agreements--
Exemptions, 24 Shipping Regulation Reports (S.R.R.) 1448 (1988),
reconsideration denied, 25 S.R.R. 455 (1989)] and on a Ninth Circuit
case upholding that decision [Transpacific Westbound Rate Agreement v.
Federal Maritime Commission, 951 F.2d 950 (1991)].
FHWA Response: The Act incorporates the definition of an ``ocean
common carrier'' used by the Shipping Act of 1984, but not the
jurisdictional implications of that statute.
According to the FMC, the policy of the Shipping Act of 1984 is
``regulation in exchange for antitrust immunity'' [25 S.R.R. 461]. The
antitrust laws do not apply to agreements among ocean common carriers
which have been filed with the FMC, even though they may be anti-
competitive or in restraint of trade [46 U.S.C. app. 1706(a)(1)]. Since
agreements covering foreign-to-foreign movements generally are not
within the jurisdiction of the United States, they cannot be filed with
the FMC; however, they remain subject to the antitrust laws if they
have ``a direct, substantial and reasonably foreseeable effect on the
commerce of the United States'' [46 U.S.C. app. 1706(a)(3)]. In
essence, Birdsall and Tropical Shipping contend that because some
foreign-to-foreign container movements may be exempt from the
jurisdiction of the FMC (though subject to the Sherman Anti-Trust Act
of 1890, as amended), all such movements via a landbridge in the United
States are exempt from the Act. The conclusion does not follow from the
premise. The antitrust laws and exemptions serve entirely different
purposes from the certification requirements of this final rule, and
Congress did not intend the former to govern the latter.
A common carrier (including an ocean common carrier) is:
(6) * * * a person holding itself out to the general public to
provide transportation by water of passengers or cargo between the
United States and a foreign country for compensation that--
(A) assumes responsibility for the transportation from the port
or point of receipt to the port or point of destination, and
(B) utilizes, for all or part of that transportation, a vessel
operating on the high seas or the Great Lakes between a port in the
United States and a port in a foreign country * * *.
46 U.S.C. app. 1702(6).
A carrier offering foreign-to-foreign transportation via a
landbridge in the United States meets this definition. It holds itself
out to the general public to provide, for compensation, transportation
by water between a foreign country and the United States; assumes
responsibility for the transportation at least from port to port; and
utilizes for that transportation a vessel operating on the high seas
between a foreign port and a port in the United States. Landbridge
operations are therefore subject to this final rule to the extent they
involve movements over a United States highway.
This interpretation also avoids a conflict with 49 U.S.C. 5903(b),
formerly 49 U.S.C. 508(d). That section, which does not mention ocean
common carriers, prohibits a motor carrier from transporting a loaded
container or trailer before receiving the required certification. It
therefore makes no difference whether the transportation of the loaded
container or trailer is foreign-to-foreign by the standards of the
Shipping Act of 1984. If an ocean carrier fails to forward the
certification for an inbound container or trailer, a motor carrier in
the United States may not transport the container between West Palm
Beach and Miami or anywhere else.
Tendering and Legal Responsibility for Loading
The NPRM refers to a person who assumes legal responsibility for
loading a container or trailer [Sec. 390.52 (Tender a loaded container
or trailer), Sec. 390.54(b)(2)]. A commenter asked, in essence, how one
assumes legal responsibility for loading.
FHWA Response: Section 5902(d)(2) [formerly section 508(a)(4)] of
title 49, U.S.C., provides:
(2) A carrier, agent of a carrier, broker, customs broker,
freight forwarder, warehouser, or terminal operator is deemed not to
be a person tendering a loaded container or trailer to a first
carrier under this section, unless the carrier, agent, broker,
customs broker, freight forwarder, warehouser, or terminal operator
assumes legal responsibility for loading property into the container
or trailer.
The FHWA interprets this to mean that a carrier, etc., is not the
tendering party unless it loads the container or trailer; conversely,
the party which loads the container or trailer usually is the tendering
party. Only the loading party is in a position to know the actual cargo
weight and contents of the container or trailer and, therefore, to
comply with the certification requirement. The Act creates a
presumption that the party which loads the container or trailer is the
tendering party responsible for the certification, although some other
party could use the information supplied by the loader to issue the
certification. The references to assumption of legal responsibility in
the final rule have been rewritten to clarify this point.
Coercion and Economic Harm
Five parties commented at some length on the proposed definition of
coercion. The NITL noted that the definition includes the concept of
economic harm, but emphasized that ``economic harm, standing alone, is
not the equivalent of coercion.'' The NITL stated:
The League's specific concern is that shippers not be penalized
for declining to tender a shipment to a carrier where the shipper
knows or reasonably suspects that such tender would result in an
overweight shipment. A shipper might, for example, provide timely
and accurate notice and certification to a carrier as to the
description of cargo in and weight of a container. If that carrier
arrives at the point of tender with equipment that is not sufficient
to handle the duly noticed and certified container, a shipper should
not be penalized or otherwise considered to be in the act of
``coercing'' the carrier by informing the carrier that the load will
not be tendered to it. * * * Stated succinctly, if a carrier
receives due notice but arrives with inadequate equipment, the
financial consequence of losing the shipment is not economic
coercion on the part of the shipper.
FHWA Response: The NITL is correct that the notification provision
of Sec. 390.54 is intended to give an initial motor carrier enough
information about the loaded container or trailer to choose a chassis
or chassis/container combination that will ensure compliance with
applicable weight laws. For example, depending on the projected weight
of the cargo, the carrier might use a single or tandem axle chassis, or
even an extender chassis with a split tandem that allowed a weight of
20,000 pounds on each of its axles. There can be no coercion under the
definition unless someone tries to ``induce'' a trucker to ``transport
a loaded container or trailer in violation of the provisions of
Sec. 390.56 or 390.60.'' The hypothetical situation the NITL described
is not an inducement to violate this rule, but an inducement to comply
with weight laws, and therefore is not coercion.
Coercion and Substantial Harm
The California Department of Transportation commented that ``[t]he
term `substantial harm' [in the definition of coercion] may carry a
significant burden of proof. It is suggested that terms such as
`persons who are subjected to economic duress' be included in the
definition. This would ensure that individual truck drivers hauling one
container would be protected.''
The ATA made a similar comment:
The proposed provisions appear to only apply when there is a
long term threat of retaliation by a party against a carrier, e.g. a
boycott. Often the retaliation is an immediate one--the loss of the
shipment in question. Upon a carrier's refusal to accept an
overweight container or one on which there is no certification, the
tendering party will call or will threaten to call another carrier
that will be willing to accept the shipment (i.e. the ``next-in-
line'' punishment). The tendering party may also inform the refusing
carrier that once the defect has been corrected (excess freight
removed or a certification prepared), the shipment will be tendered
to a different carrier unless the initial carrier agrees to accept
the shipment as is. For an owner-operator or smaller carrier, the
threatened loss of even a single load can be very detrimental and
coercive.
The ATA recommends that use or threat of violence also be
included in the FHWA definition of coercion. Violence is
unquestionably coercive. While the use or threat of violence may be
a violation of various state laws, a purpose of the Act is to
provide protection for carriers under federal law. Therefore we urge
the inclusion of the term in both the definition and the
description.
FHWA Response: The FHWA agrees with the California Department of
Transportation and the ATA. This final rule removes the reference to
``substantial harm,'' redefines financial injury to give more
protection to individual drivers and owner-operators, and includes the
phrase ``threat to inflict physical harm.'' The rule defines coercion
as follows:
Coerce or attempt to coerce means a threat to inflict physical
harm or to withhold business from a person participating in
intermodal transportation in order to induce that person to
transport a loaded container or trailer in violation of the
provisions of Secs. 390.56 or 390.60.
Actual threats and physical violence are crimes, but harsh words
are not always meant or taken literally. The FHWA does not intend to
prosecute allegations of physical threats unless the victim first
reports the incident to police in the State where it occurs and
attempts to press charges. If State officials prosecute, the FHWA will
not do so. If the victim does not consider the matter serious enough to
report to the police, it is more likely to involve hyperbole than a
real threat. If the incident is reported but State officials do not
pursue it, the FHWA would then consider civil action. A threat that
could not be proved beyond a reasonable doubt, the standard in criminal
cases, might be proved by a preponderance of the evidence, the civil
standard.
Exception to Coercion
The Owner-Operator Independent Drivers Association (OOIDA) was
especially concerned about the proposed exception to the coercion
provision in Sec. 390.60(c) which read in the NPRM as follows:
(c) Exception. This section does not apply to a carrier during
the transfer of a loaded container or trailer to another carrier in
the course of intermodal transportation. This exception does not
apply if the carrier is also the person tendering the loaded
container or trailer.
The OOIDA commented that ``owner-operators frequently find
themselves coerced into hauling overweight containers both by ocean
shipping companies and by the motor carriers to whom they are leased.''
The OOIDA also noted that, ``[i]n certain port facilities, motor
carriers perform a `bridge' transportation function between the port
facility and the railhead. * * * Often, these containers move from the
port to the railhead on public highways, which could subject the driver
and/or the motor carrier to penalties for overweight containers. * * *
As the exception is currently written, one could interpret it as
permitting an ocean shipping company (or motor carrier) to coerce an
owner-operator to transport a clearly overweight container without fear
of penalty if the operation is merely a `bridge' movement. * * *
Further, the exception could be interpreted in a way that would exempt
transportation movements from railheads to the ultimate destination of
the cargo.''
FHWA Response: The proposed exception closely followed the language
in the Act [49 U.S.C. 5902(d), formerly 49 U.S.C. 508(e)]. An ocean
common carrier or rail carrier that coerces a driver or motor carrier
to accept a loaded container or trailer which is uncertified or has a
certified weight so heavy that the highway vehicle would be overweight,
is statutorily exempt from prosecution by the FHWA. The exception would
apply whether the coerced transportation were a bridge movement or a
longer trip from a railhead to the ultimate destination. In general,
the parties subject to prosecution for coercion are non-carriers
involved in intermodal transportation, e.g., tendering parties,
consignees, port and terminal operators, stevedores, brokers, etc.
However, while the statute exempts carriers ``transferring'' a loaded
container or trailer, there is nothing to suggest that a motor carrier
may coerce its own employees (including owner-operators) to accept a
container or trailer received from another carrier. Section 390.60(c)
has therefore been amended to read as follows:
(c) Exception. This section does not apply to a carrier
transferring a loaded container or trailer to another carrier in the
course of intermodal transportation. This exception does not apply
if the transferring carrier is also the person tendering the loaded
container or trailer.
Education
Two commenters recommended that the FHWA launch a campaign to
educate affected parties about the requirements of the Act and the
final rule.
FHWA Response: The FHWA will make specific efforts to alert
affected parties of these regulations. The FHWA intends to implement
this final rule with a minimum of inconvenience to international trade.
Implementation Strategy
Many commenters suggested that the final rule not be made effective
until some time after publication on the ground that affected parties
would have to translate this final rule into foreign languages, educate
employees and customers, and adjust administrative procedures. The
recommended delays in the effective date of this final rule ranged from
four months to one year. Commenters also recommended that no penalties
be imposed for time periods ranging from four to nine months after the
effective date. One commenter recommended that there be no enforcement
for two years on containers and trailers having a gross cargo weight
less than 40,000 pounds (18,144 kilograms). One commenter recommended
that the final rule have an educational transition period, but did not
recommend a time length for this period. Another commenter recommended
a two-phase implementation with only warnings in the first phase. The
variety of proposals was broad, but there was nearly unanimous
agreement that the final rule should not become effective 30 days after
publication, like most other final rules. However, one commenter argued
against a grace period.
FHWA Response: The final rule will become effective 180 days after
publication in the Federal Register, on June 27, 1995. Immediately
after publication, educational efforts will commence with distribution
of educational/training materials and an international outreach program
involving industry associations, intermodal ports and terminals, and
trade journals. These efforts will continue up to the effective date
and will extend further if needed.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and
significant under Department of Transportation regulatory policies and
procedures because it affects intermodal transportation and attracts
substantial public interest. The regulations adopted here require all
modal carriers to forward certifications from persons tendering loaded
intermodal containers and trailers to subsequent carriers, but require
retention of records only by persons that tender loaded containers or
trailers and by the motor carriers that transport them. The FHWA
anticipates that the economic impact of this rulemaking will be minimal
since the certification could easily be incorporated into documents
required by other Federal agencies. For these reasons, a full
regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based upon this evaluation, the FHWA hereby certifies that
this action will not have a significant economic impact on a
substantial number of small entities.
This regulatory action requires the person who tenders a loaded
container or trailer for intermodal transportation to certify to the
initial carrier the weight and a reasonable description of the cargo.
The FHWA estimates the rule will apply to about 8,000,000 intermodal
shipments per year, each of which will require a separate
certification.
As a result of comments to the docket, the final rule has been
changed to permit greatly enhanced use of electronic data interchange
(EDI). For example, the rule permits certifications to be signed with a
printed name and forwarded and stored electronically. In addition,
carriers or intermediaries are now allowed to convert a paper
certification into electronic format and/or incorporate a certification
into a shipping document corresponding to the loaded container or
trailer. Because most transactions are already handled by EDI, this
should substantially reduce processing time and costs, and eliminate
much of the expense of generating and storing paper documents.
The NPRM stated that the FHWA intended to further evaluate the
economic consequences of the proposed regulations for small entities in
light of comments to the docket. In fact, very few comments discussed
the impact of the proposed regulations on small entities, and none
provided quantitative information.
The rule is unlikely to have any significant impact on a
substantial number of small entities. Scales to weigh cargo are
probably the largest single expense associated with this rule, but
their incremental cost should be modest. Most of the businesses
utilizing intermodal containers or trailers are quite large, and the
majority of them are likely to have scales or even automated systems
that palletize and weigh cargos. These automated systems could easily
be modified to generate a certification with all required information.
The smallest entities, which typically ship products in less than
container- or trailer-load volume, will notice almost no change, since
the freight forwarder or consolidator that handles their shipments will
also be responsible for determining the total cargo weight and
preparing the certification. Some consolidators may have to purchase
scales. The added cost to the shipper of performing these services
should be minimal. Somewhat larger enterprises that tender full
intermodal containers or trailers, but not in large volume, may also
have to obtain scales to determine the gross weight of their shipments.
The FHWA is unable to estimate the number or percentage of shippers
that fall into each of these categories. However, the marginal cost of
scales should not be significant when spread over a number of years and
a large number of containers or trailers.
The NPRM estimated that about one minute would be required to
complete each certification. Because the final rule has been revised to
be compatible with the EDI systems widely used to track and document
transportation movements, certification times will often be less than a
minute once the programming to handle this requirement is completed.
The FHWA maintains that one minute is a reasonable estimate even for
the preparation of a paper certification. The regulation imposes no
significant additional costs on the motor carrier industry because
other shipping documents are also required to be maintained for a year
under other Federal requirements.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. The Intermodal Safe
Container Transportation Act requires the Secretary to issue
regulations to implement the provisions of the Act. The regulations
adopted here recognize the role of State governments in implementing
the enforcement provisions of the Act including the authorization of
legislation to enable a State to assess fines and penalties and impound
containers and trailers. Therefore, the FHWA has determined that this
action does not have sufficient Federalism implications to warrant the
preparation of a Federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation in Federal programs and
activities apply to this program.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget in accordance with
the provisions of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
et seq. and assigned the control number of 2125-0557 which expires on
June 30, 1997.
National Environmental Policy Act
The FHWA has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 390
Highway safety, Highways and roads, Intermodal transportation,
Motor carriers, Recordkeeping requirements.
Issued on: December 22, 1994.
Rodney E. Slater
Federal Highway Administrator.
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
1. The authority citation for Part 390 is revised to read as
follows:
Authority: 49 U.S.C. 5901-5907, 31132, 31136, 31502, and 31504;
49 CFR 1.48.
Sec. 390.3 [AMENDED]
2. Section 390.3 is amended by redesignating paragraphs (b) through
(f) to read as (c) through (g), respectively, and by adding a new
paragraph (b) to read as follows:
Sec. 390.3 General applicability.
* * * * *
(b) The rules in subpart C of this part are applicable to persons
tendering loaded containers or trailers, to carriers used to transport
such loaded containers or trailers, and to persons who coerce or
attempt to coerce a motor carrier to transport a loaded container or
trailer in violation of that subpart.
* * * * *
Subpart C--[Added]
3. Part 390 is amended by adding subpart C to read as follows:
Subpart C--Intermodal Transportation
Sec.
390.50 Applicability.
390.52 Definitions.
390.54 Notification and certification.
390.56 Duty of motor carrier.
390.58 Forwarding and retention of certification.
390.60 Coercion.
Subpart C--Intermodal Transportation
Sec. 390.50 Applicability.
The provisions of this subpart apply to any person tendering a
loaded container or trailer which is transported by a motor carrier on
a public highway in the United States and to carriers used to transport
such containers or trailers. This subpart also applies to any person
who coerces or attempts to coerce a motor carrier to transport a loaded
container or trailer in violation of this subpart.
Sec. 390.52 Definitions.
In this subpart:
Applicable State law means the vehicle weight laws, including
overweight operating permit regulations, of each State in which
intermodal transportation occurs or where an act of coercion allegedly
occurs.
Carrier means:
(1) A motor carrier, water carrier, and rail carrier (as such terms
are defined in 49 U.S.C. 10102), and
(2) An ocean common carrier (as such term is defined in 46 U.S.C.
app. 1702), providing transportation of property in commerce.
Coerce or attempt to coerce means a threat to inflict physical harm
or to withhold business from a person participating in intermodal
transportation in order to induce that person to transport a loaded
container or trailer in violation of the provisions of Secs. 390.56 or
390.60.
Container means an article of transport equipment:
(1) Of a permanent character and accordingly strong enough to be
suitable for repeated use;
(2) Specially designed to facilitate the carriage of goods by one
or more modes of transport, without intermediate reloading;
(3) Fitted with devices permitting its ready handling, particular
its transfer from one mode of transport to another;
(4) So designed as to be easy to fill and empty; and
(5) Having an internal volume of one cubic meter (35.3 cubic feet)
or more.
Initial carrier means the first carrier transporting in intermodal
transportation a loaded container or trailer.
Intermodal transportation means successive carriage of a loaded
container or trailer from an origin point to a destination point by
more than one type of carrier in interstate or foreign commerce. Such
term shall include carriage by more than one mode of transportation in
interstate or foreign commerce both under a single bill of lading and
under separate bills of lading.
Loaded container or trailer means a container or trailer in
intermodal transportation with an actual gross cargo weight (inclusive
of packing material and pallets) of more than 10,000 pounds or 4,536
kilograms.
Reasonable description means a representative statement that
characterizes the cargo transported, such as, but not limited to, the
term freight all kinds and other similar generic descriptions. A
reasonable description shall identify a container or trailer loaded
with perishable agricultural commodities. A reasonable description
shall identify a container or trailer whose contents are likely to
shift during intermodal transportation causing an uneven or
concentrated weight distribution which may result in an axle weight
violation during highway transportation. For the purposes of reasonable
description, likely to shift means the contents of a container or
trailer by the nature of its transportation characteristics has a high
probability of moving within the container or trailer. Hazardous
material shipping paper requirements (49 CFR part 172, subpart C) are
not affected by this definition, and shipping papers must be prepared
as required.
Tender a loaded container or trailer means to present a loaded
container or trailer to an initial carrier for intermodal
transportation. A person who loads the container or trailer, including
a person who consolidates multiple shipments, shall be considered to be
the person tendering a loaded container or trailer unless some other
appropriate party assumes that responsibility.
Trailer means a nonpower, cargo carrying, trailing unit which is
designed for use in combination with a truck tractor.
Sec. 390.54 Notification and certification.
(a) If the initial carrier is a motor carrier, before any person
tenders a container or trailer subject to this subpart having a
projected gross cargo weight (inclusive of packing material and
pallets) of more than 10,000 pounds or 4,536 kilograms, such person
shall notify the initial carrier of the projected gross cargo weight
and a reasonable description of the contents of the container or
trailer. The notification may be communicated by electronic
transmission or telephone.
(b) At or before the time any person tenders a loaded container or
trailer subject to this subpart, such person shall provide a
certification to the initial carrier.
(1) If the initial carrier is a motor carrier, the certification
shall be provided in a tangible form.
(2) The certification may be transmitted electronically, provided
that the certification can be reproduced in a tangible form.
(3) A carrier, agent of a carrier, broker, customs broker, freight
forwarder, warehouseman, and terminal operator shall not be considered
to be tendering a loaded container or trailer unless such person loads
the container or trailer or issues the certification on the basis of
information available from the person who loads the container or
trailer.
(c) The certification shall include:
(1) The title ``INTERMODAL CERTIFICATION'';
(2) The identification number of the container or trailer;
(3) The actual gross cargo weight, including the unit of
measurement, of the contents of the container or trailer, including
packing material and pallets;
(4) A reasonable description of the contents;
(5) The name and company of the person tendering the loaded
container or trailer; and
(6) The date.
(d) Signature. The certification required by paragraph (c) of this
section:
(1) Must be legibly signed by the person or representative
tendering the loaded container or trailer; and
(2) May be legibly signed manually, by typewriter, or other
mechanical means.
(e) The required elements of a certification shall be legible and
in the English language.
(f) No person may provide false or erroneous information in a
certification.
(g) The following form may be used to comply with this section:
Intermodal Certification
Identification number:
Gross cargo weight:
Reasonable description:
(Name and company of the person tendering the loaded container or
trailer)
(Signature of the person tendering the loaded container or trailer)
(Date)
Sec. 390.56 Duty of motor carrier.
(a) No motor carrier may provide transportation of a loaded
container or trailer subject to this subpart prior to receiving the
certification required by Sec. 390.54 in a tangible form.
(b) The certification in a tangible form shall accompany the loaded
container or trailer during transportation by a motor carrier.
Sec. 390.58 Forwarding and retention of certification.
(a) A carrier, agent of a carrier, broker, customs broker, freight
forwarder, warehouseman, or terminal operator that receives the
certification required by Sec. 390.54 in the course of intermodal
transportation shall forward the certification to a subsequent carrier
transporting the loaded container or trailer.
(1) If received in a tangible form, the certification may be
converted into an electronic format.
(2) If received as a separate document, the certification may be
incorporated into a shipping document corresponding to the loaded
container or trailer.
(3) The person who converts a certification into an electronic
format and/or incorporates a certification into a shipping document
corresponding to the loaded container or trailer shall state in writing
that the conversion and/or incorporation was performed accurately. Such
statement shall take the following form: ``Electronic Format and/or
Incorporation by John Doe, X Company, Month/Day/Year.'' Such statement
shall appear immediately after the certification of the person
tendering the loaded container or trailer.
(b) The certification may be forwarded by electronic transmission
provided that all subsequent motor carriers receive the certification
in a tangible form.
(c) The forwarding of any certification required or statement
authorized by this section does not constitute a verification or
affirmation of the accuracy or completeness of the certification or
statement.
(d) Any person who tenders a loaded container or trailer that is
transported by a motor carrier, and each motor carrier transporting a
loaded container or trailer shall maintain a copy of the certification
for a period of one year from the date of the tendering. Certifications
may be maintained electronically if the certification can be reproduced
in a tangible form.
Sec. 390.60 Coercion.
(a) No person may coerce or attempt to coerce a person to transport
a loaded container or trailer subject to this subpart without the
certification required by Sec. 390.54.
(b) No person, knowing that the weight of a tractor-trailer
combination which includes a loaded container or trailer is in excess
of that permitted by applicable State law, may coerce or attempt to
coerce a motor carrier or driver in violation of such law--
(1) To transport the loaded container or trailer; or
(2) To operate the tractor-trailer combination.
(c) Exception. This section does not apply to a carrier
transferring a loaded container or trailer to another carrier in the
course of intermodal transportation. This exception does not apply if
the transferring carrier is also the person tendering the loaded
container or trailer.
Appendix H to Subchapter B--[Added]
4. Subchapter B of 49 CFR Chapter III is amended by adding appendix
H to read as follows:
Appendix H to Subchapter B--State Enforcement and Liens
This appendix reprints for informational purposes those portions
of sec. 2 of the Intermodal Safe Container Transportation Act of
1992 (Pub. L. 102-548, 106 Stat. 3646) which enacted 49 U.S.C. 5904,
5905, and 5906, concerning State enforcement and liens, and amended
49 U.S.C. 5901 by adding the definition of beneficial owner.
The text of 49 U.S.C. 5901(2) reads:
(2) ``beneficial owner'' means a person not having title to
property but having ownership rights in the property, including a
trustee of property in transit from an overseas place of origin that
is domiciled or doing business in the United States, except that a
carrier, agent of a carrier, broker, customs broker, freight
forwarder, warehouser, or terminal operator is not a beneficial
owner only because of providing or arranging for any part of the
intermodal transportation of property.
The text of 49 U.S.C. 5904, State enforcement, reads:
(a) GENERAL.--A State may enact a law to permit the State or a
political subdivision of the State--
(1) to impose a fine or penalty, for a violation of a State
highway weight law or regulation by a tractor-trailer combination
carrying a loaded container or trailer for which a certification is
required by section 5902(b) of this title, against the person
tendering the loaded container or trailer to the first carrier if
the violation results from the person's having provided erroneous
information in the certification in violation of section 5903(a) of
this title; and
(2) to impound the container or trailer until the fine or
penalty has been paid by the owner or beneficial owner of the
contents of the container or trailer or the person tendering the
loaded container or trailer to the first carrier.
(b) LIMITATION.--This chapter does not require a person
tendering a loaded container or trailer to the first carrier to
ensure that the first carrier or any other carrier involved in the
intermodal transportation will comply with any State highway weight
law or regulation, other than as required by this chapter.
The text of 49 U.S.C. 5905, Liens, reads:
(a) GENERAL.--If a person involved in the intermodal
transportation of a loaded container or trailer for which a
certification is required by section 5902(b) of this title is
required under State law to post a bond or pay any fine, penalty,
cost, or interest resulting from providing erroneous information in
the certification to the first carrier in violation of section
5903(a) of this title, the person has a lien against the contents
equal to the amount of the bond, fine, penalty, cost, or interest
incurred, until the person receives a payment of that amount from
the owner or beneficial owner of the contents or from the person
responsible for making the certification.
(b) LIMITATIONS.--(1) A lien under this section does not
authorize a person to dispose of the contents of a loaded container
or trailer until the person who tendered the container or trailer to
the first carrier is given a reasonable opportunity to establish
responsibility for the bond, fine, penalty, cost, or interest.
(2) In this section, an owner or beneficial owner of the
contents of a container or trailer or a person tendering a container
or trailer to the first carrier is deemed not to be a person
involved in the intermodal transportation of the container or
trailer.
The text of 49 U.S.C. 5906, Perishable agricultural commodities,
reads:
Sections 5904(a)(2) and 5905 of this title do not apply to a
container or trailer the contents of which are perishable
agricultural commodities (as defined in the Perishable Agricultural
Commodities Act, 1930 (7 U.S.C. 499a et seq.)).
[FR Doc. 94-32026 Filed 12-28-94; 8:45 am]
BILLING CODE 4910-22-P
