Federal Motor Carrier Safety Regulations; General; Intermodal Transportation

FEDERAL COMMUNICATIONS COMMISSION

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 390

[FHWA Docket No. MC-93-17]

RIN 2125-AD14

Federal Motor Carrier Safety Regulations; General; Intermodal

Transportation

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; petitions for reconsideration of effective date;

request for comments.

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SUMMARY: The FHWA published a document on May 16, 1995 at 60 FR 26001

which administratively extended until September 27, 1995, the effective

date of its final rule implementing the requirements of the Intermodal

Safe Container Transportation Act of 1992. The final rule was published

on December 29, 1994, and its original effective date was June 27,

1995. The only purpose of this three-month extension was to provide the

FHWA sufficient time to request, receive, and analyze comments, and to

publish a final determination, on whether a further extension is

warranted. This document requests comments on the major issues raised

by petitioners who have requested an extension of the effective date

of, and certain exemptions from, the final rule.

DATES: Replies to this request for comments must be received on or

before June 26, 1995. As indicated in the May 16, 1995 document, the

effective date of the final rule published on December 29, 1994 at 59

FR 67544 has been extended to September 27, 1995.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-93-17,

Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington, D.C. 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor

Carrier Research and Standards, HCS-10, (202) 366-5763; or Mr. Charles

E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,

Federal Highway Administration, 400 Seventh Street, SW., Washington,

D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

On December 29, 1994, the FHWA published a final rule which

implemented the requirements of 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 final rule requires any person who presents a container or

trailer with a gross cargo weight of more than 4,536 kilograms or

10,000 pounds to an initial carrier for intermodal transportation to

provide a certification to such carrier. Motor carriers are prohibited

from accepting a loaded container or trailer prior to receiving a

tangible certification. 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. The objective of the final rule was to reduce the number of

overweight motor vehicles transporting intermodal containers or

trailers by improving communication between shippers and motor

carriers.

Issues Raised by Industry Groups

The FHWA has received letters from several companies and industry

groups petitioning the FHWA to extend the effective date of the final

rule. Among those requesting an extension are APL Land Transport

Services, Inc. (APL); the European Shippers' Councils; ``K'' Line

America, Inc. (KLA); the Intermodal Safe Container Coalition

(Coalition); the National Industrial Transportation League; the

Steamship Association of Southern California; and, Warren & Associates,

a law firm representing two freight conferences. The APL, KLA, and the

Coalition were the parties who provided the most information in support

of an extension. Copies of these letters are available for review in

the docket.

For ease of presentation, the FHWA has grouped the issues raised by

the petitioners into four major categories: (1) Electronic data

interchange (EDI); (2) the widespread need for education and training,

especially for foreign shippers; (3) the cargo weight threshold used in

determining the applicability of the final rule; and, (4) the results

of the data collection needs study mandated by the Act. The FHWA

believes that some of the petitioners' assertions warrant public

discussion.

Electronic Data Interchange

The KLA wrote that ``the complexities of establishing a uniform

method for electronic transmission of data between very divergent

industries, each with their own unique data requirements, makes

compliance by all parties in the intermodal network by the June date

difficult to impossible.'' The KLA explained further that the

certification data should ideally be passed as part of an already

existing data transmission which would necessitate the various parties

sending and receiving the certification information to agree on the

data format and the meaning of each field. The development of these

specifications, the KLA continued, requires time to allow the users of

the [[Page 27701]] formats to develop the workable file layouts, to

agree on the meaning of each field, and to insure that the formats

selected would not create incompatibilities within the computers used

to send and receive these messages. The KLA also added that individual

companies must modify their in-house programs to utilize the data after

these formats are established.

The APL asserted that the changes needed to assure that the

necessary EDI takes place will require an extensive effort. The APL

wrote that full implementation through EDI would not be possible by

June 27, 1995, for its own operations, and it surmises the same would

be true for most of the industry. The Coalition asserted that the

forwarding of paper certifications, which would be necessary if the

final rule became effective on June 27, 1995, would be tremendously

cumbersome and burdensome because the intermodal transportation

industry increasingly communicates through EDI. The Coalition explained

further that there is no existing system for the forwarding of paper

certifications to a subsequent carrier and that such a system would

most certainly break down. The Coalition wrote that the development of

necessary EDI standards will take at least until November 1995, and

that even more time will be needed for programming, testing, training,

and coordination. Although the Coalition requested an extension of the

effective date until May 1, 1996, it asserted that compliance through

the use of EDI by such date is a most ambitious goal. Warren &

Associates stated that the June 27, 1995, effective date does not take

into consideration the advance time required to integrate and

standardize compliance through the use of EDI among the different

industry participants.

FHWA Response: The intermodal transportation industry relies

heavily on EDI. The FHWA recognizes that the development of EDI

standards could not have begun in any substantial way prior to

publication of the final rule on December 29, 1994, when all parties

were made aware of the specific regulatory requirements. The

development of standards, computer programming, and training are

necessary for the intermodal transportation industry to accomplish the

forwarding of certifications between carriers through the use of EDI.

The FHWA also recognizes that making the final rule effective before

the intermodal transportation industry has sufficient time to complete

the necessary tasks for compliance to be achieved through the use of

EDI would require the forwarding of paper certifications. This may

cause large disruptions in domestic and international trade and

commerce. The FHWA requests comments on the length of time that would

be needed for the intermodal transportation industry to complete the

tasks necessary for compliance with the final rule through the use of

EDI.

Education and Training

The KLA wrote that an extension of the effective date of the final

rule is also justified because of the need to educate numerous parties

on its requirements. The KLA asserted that education of affected

parties in the United States by June 27, 1995, would be a daunting task

and that advising overseas shippers would be ``impossible.'' The

European Shippers' Councils wrote that European exporters have not yet

received information on what the Act requires of them or instructions

on how a certification should be issued. The European Shippers'

Councils asserted that it would be impossible for all European shippers

to comply with the final rule by June 27, 1995. The Coalition wrote

that making shippers aware of their obligations will require a massive

educational effort, one that is far from completed.

FHWA Response: The FHWA recognizes that it has a responsibility to

inform participants in the intermodal transportation industry of their

responsibilities under the final rule. The FHWA has developed an

educational pamphlet which, unfortunately, is not yet available for

distribution. In addition to English, the pamphlet will be available in

German, French, Spanish, Japanese, and Mandarin Chinese. Pamphlets will

be provided to various associations for domestic and international

distribution upon its availability. In addition, the Department of

State will assist the FHWA with the international distribution of the

pamphlets. The FHWA will also request assistance from various embassies

with international distribution of the pamphlets. The FHWA requests

comments on what additional educational materials would be helpful and

how the pamphlets and other materials should be distributed.

Cargo Weight Threshold

The Coalition recommended that the jurisdictional weight threshold

of the Act and the final rule (more than 4,536 kilograms [10,000

pounds] gross cargo weight) should be raised. The Coalition stated that

``even though there is no possibility under the law of physics that

either international or domestic shipments weighing between 10,000 and

40,000 pounds could cause gross vehicle weight violations as defined in

the Act, the Act and Regulations nonetheless require each shipment to

be weighed and subject to the advance notification and certification

requirements.'' In a letter, however, the Steamship Operators

Intermodal Committee (SOIC) asserted that the Coalition's statement is

erroneous. The SOIC wrote that its tests show that a 20 foot container

which is loaded with 40,000 pounds of cargo exceeds the maximum gross

weight allowed by the bridge gross weight formula when it is mounted on

a 23 foot chassis.

FHWA Response: The Act specifically establishes a gross cargo

weight applicability threshold of more than 4,536 kilograms (10,000

pounds) for loaded containers and trailers. Accordingly, the

regulations issued by the FHWA are applicable to containers or trailers

in intermodal transportation with an actual gross cargo weight

(inclusive of packing material and pallets) of more than 4,536

kilograms (10,000 pounds). Although the gross cargo weight threshold of

more than 4,536 kilograms (10,000 pounds) mandated by Congress extends

the scope of the Act beyond the range of cargo weight typically

associated with overweight conditions, the FHWA cannot modify the gross

cargo weight threshold of the final rule without a congressional

amendment to the Act.

Data Collection Needs Study

The National Industrial Transportation League requested that the

study mandated by the Act be accelerated and that the effective date of

the final rule be extended pending the findings of the study.

FHWA Response: The Act requires the Secretary of Transportation to

conduct a study to assess existing data and data collection needs with

respect to the movement in intermodal transportation of loaded

containers and trailers in the violation of the Act and highway weight

laws. The Act requires that the final report from the study provide

legislative and other recommendations for improving the collection of

such data. The Congress did not intend the study to be a prerequisite

to the promulgation and enforcement of regulations which implement the

requirements of the Act, but rather a separate activity designed to

provide insight into the data needs that would assist Congress in

making future related legislative decisions. Completion of the study is

not by itself sufficient grounds to warrant an extension, and the

schedule for the study cannot be significantly accelerated.

[[Page 27702]]

Opposition to a Lengthy Extension of the Effective Date of the Final

Rule

In addition to letters requesting an extension of the effective

date of the final rule, the FHWA received two letters in opposition.

The American Trucking Associations, Inc. (ATA), opposed a lengthy

extension of the effective date, but indicated that it could support an

extension until January 1, 1996, to permit the FHWA to proceed with a

rulemaking on the various petitions that have been filed, including its

own. The ATA recognized that the EDI concerns of those requesting an

extension may have some validity. In addition, Mr. M. P. McLean wrote

that these regulations are necessary and long overdue and recommended

they be implemented without delay.

Petition for Exemptions by the American Trucking Associations, Inc.

On April 7, 1995, the ATA filed a petition to exempt three types of

motor carrier operations from the final rule:

1. A motor carrier which loads a container or trailer and provides

all highway portions of the intermodal transportation.

2. A motor carrier which loads a container or trailer, provides the

initial highway portion of the intermodal transportation, and assumes

responsibility for the violations of highway weight laws of other motor

carriers that transport the loaded container or trailer.

3. A motor carrier which is presented a loaded trailer for domestic

transportation with a bill of lading that includes the weight and a

reasonable description of the cargo, as well as the shipper's

signature, and which subsequently decides on its own initiative to ship

the loaded trailer by rail for a portion of the domestic

transportation.

For the first type of operation, the ATA asserts that the

certification serves no purpose because the motor carrier controls the

loading of the container or trailer and, therefore, always knows the

weight and identity of the cargo. In the second type, the ATA argues

that the certification serves no purpose because the initial motor

carrier knows the weight and identity of the cargo and has assumed

responsibility for any overweight citations issued to other motor

carriers. In the third type, the ATA contends that a certification

should not be required because the use of intermodal transportation

would be discouraged if a shipper that had to prepare a certification

for every trailer on the possibility that its motor carrier might have

the trailer transported by rail and because the motor carrier in this

situation has been provided all of the pertinent information that would

otherwise be included in a certification. The ATA asserts that all of

these requested exemptions will eliminate unnecessary paperwork burden

and have no adverse impact on highway safety. The ATA's petition is

available for review in the docket.

Request for Comments

The FHWA is not requesting comments on the content of the final

rule, but only on the ATA's petition for three exemptions and whether

an extension of the effective date of the final rule beyond September

27, 1995, is necessary to allow affected parties to become familiar

with their responsibilities and take necessary actions for compliance.

The FHWA requests comments regarding the appropriateness of the

following effective dates requested by the petitioners:

1. January 1, 1996, as mentioned by the ATA in its statements

regarding the various filed petitions.

2. May 1, 1996, as requested by the Coalition and Warren &

Associates based on their arguments related to: EDI; education; and

paperwork burdens and costs associated with compliance to the final

rule.

3. June 1, 1996, as requested by the KLA based on their arguments

related to EDI and education.

4. Any other date.

The FHWA requests commenters to provide information and data which

support their position. Commenters who support a specific effective

date are requested to provide a timetable of activities necessary for

compliance.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be

[[Page 27703]] considered and will be available for examination in the

docket room at the above address. The FHWA will not consider any

request for an extension of the comment period of this publication.

Comments received after the comment closing date will be filed in the

docket and will be considered to the extent practicable. In addition to

late comments, the FHWA will also continue to file in the docket

relevant information that becomes available after the comment closing

date, and interested persons should continue to examine the docket for

new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has previously determined that the final rule implementing

the Intermodal Safe Container Transportation Act of 1992 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. As such, the final rule was

reviewed by the Office of Management and Budget and the Office of the

Secretary of Transportation before being published. This present action

is intended only to allow comments on an appropriate effective date for

the December 29, 1994, final rule. Based on the information received in

response to this action, the FHWA will make a final determination on an

appropriate effective date. It is anticipated that the economic impact

of this action will be minimal; therefore, 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 action on small

entities. Based upon this evaluation, as well as for the reasons set

forth in the previous paragraph, the FHWA hereby certifies that this

action will not have a significant economic impact on a substantial

number of small entities.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient Federalism implications to

warrant the preparation of a Federalism assessment. Nothing in this

action directly preempts any State law or regulation.

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 on Federal programs and

activities apply to this program.

Paperwork Reduction Act

The information collection requirements contained in the December

29, 1994, final 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. This action does not affect

the recordkeeping requirements previously established.

National Environmental Policy Act

The agency has analyzed this rulemaking 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.

Authority: 49 U.S.C. 5901-5907, 31132, 31136, 31502 and 31504;

49 CFR 1.48.

Issued on: May 19, 1995.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 95-12814 Filed 5-24-95; 8:45 am]

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