Federal Motor Carrier Safety Regulations; General; Intermodal Transportation; Final Rule DEPARTMENT OF TRANSPORTATION

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