[Federal Register Volume 62, Number 6 (Thursday, January 9, 1997)]
[Rules and Regulations]
[Pages 1293-1296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-384]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382, 383, and 390

[FHWA Docket No. MC-93-17]
RIN 2125-AE13


Federal Motor Carrier Safety Regulations; Intermodal 
Transportation; Withdrawal of Final Rule

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; withdrawal.

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SUMMARY: On December 29, 1994, the FHWA published a final rule [59 FR 
67544] which implemented the Intermodal Safe Container Transportation 
Act of 1992 (the 1992 Act). On October 11, 1996, the President signed 
the Intermodal Safe Container Transportation Amendments Act of 1996 
(the 1996 Act) which substantially amended the 1992 Act and removed the 
requirement that the Secretary of Transportation promulgate 
implementing regulations. The FHWA, therefore, is withdrawing its 
December 29 final rule. The FHWA has determined that regulations are 
not necessary to implement the 1992 Act as amended by the 1996 Act. The 
1996 Act will become effective on April 9, 1997. The FHA is also 
amending the applicability provisions of the regulations on controlled 
substances and alcohol use and testing.

EFFECTIVE DATE: January 9, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor 
Carrier Research and Standards, (202) 366-5763; or Mr. Charles E. 
Medalen, Office of the Chief Counsel, (202) 366-1354, Federal Highway 
Administration, 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 Federal holidays.

SUPPLEMENTARY INFORMATION:

Background and Summary of the 1992 Act

    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.
    In the 1980s, motor carriers complained that they had little or no 
control over the loading of the containers or trailers, were forced to 
accept containers and trailers with an unknown cargo and weight by 
threat of economic retaliation, and yet were held responsible for 
compliance with weight laws. A motor carrier might suspect that a 
loaded container or trailer was too heavy for the equipment or illegal 
under State law, but would have no reasonable grounds for refusing to 
transport it without knowledge of the cargo weight.
    On October 28, 1992, the President signed the Intermodal Safe 
Container Transportation Act of 1992 (the 1992 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 1992 Act requires the person who loads an 
intermodal container or trailer to prepare a written certification that 
includes a reasonable description and the actual gross weight of the 
cargo, and to give the certification to the initial carrier. Each 
carrier is required to forward the certification to the next carrier 
transporting the container or trailer. The information will enable 
motor carriers, which are already familiar with the tare weights of 
containers, trailers, and chassis, to better estimate the axle weights 
and gross weight of a given combination. If the certified cargo weight 
is incorrect and the motor carrier is fined for operating an overweight 
vehicle as a result of that error, the motor carrier has a lien on the 
cargo until the shipper or owner of the cargo reimburses it for the 
fine and all costs associated with the incident. Coercing a person to 
transport a loaded container or trailer without a certification or with 
a weight that would make the vehicle combination illegally overweight 
under applicable State law was prohibited by the 1992 Act.

Summary of Events Between the Enactment of the 1992 Act and the 1996 
Act

    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 several 
requests, the FHWA reopened the comment period and extended it until 
October 28, 1993.

[[Page 1294]]

    On December 29, 1994, the FHWA published a final rule implementing 
the 1992 Act with an effective date of the rule was June 27, 1995. On 
April 7, 1995, the American Trucking Associations, Inc. (ATA) filed a 
petition to exempt three types of motor carrier operations from the 
final rule. During April and May, the FHWA received letters from 
several companies and industry groups petitioning for an extension of 
the effective date of the final rule. These petitioners explained that 
the intermodal transportation industry relies heavily on electronic 
data interchange (EDI) and that the time necessary to develop EDI 
standards and complete computer programming and training for electronic 
forwarding of certifications made it impossible to achieve compliance 
through the use of EDI by June 27, 1995. On May 16 [60 FR 26001], the 
FHWA administratively extended the June 27 effective date until 
September 27, 1995, to allow the agency sufficient time to consider 
public comment on whether a further extension was warranted. On May 25 
(60 FR 27700), the FHWA requested comments on whether an extension of 
the effective date of the final rule beyond September 27 was necessary. 
As a part of the May 25 publication, the FHWA requested comments on the 
April 7 petition filed by the ATA. In their comments to the May 25 
publication, the ATA and National Industrial Transportation League 
(NITL) informed the FHWA that the organizations would file a joint 
petition for amendments to the final rule. The FHWA, therefore, 
deferred discussion of the April 7 petition until after the agency had 
an opportunity to consider the forthcoming petition. The FHWA 
determined that a further extension was warranted and, therefore, on 
August 10 (60 FR 40761) extended the effective date of the final rule 
until September 1, 1996, to allow the intermodal transportation 
industry sufficient time to comply by means of EDI.
    On August 31, 1995, the NITL, ATA, and Interstate Truckload 
Carriers Conference filed a joint petition for amendments to the final 
rule. Between November 1995 and February 1996, the FHWA and the 
petitioners exchanged letters about the petitions. On March 29, the 
NITL, the Intermodal Conference of the ATA, and the Intermodal Safe 
Container Coalition asked the FHWA to delay its decision on both 
petitions until after April 30. The organizations explained that they 
were engaged in negotiations to reach agreement on amendments to the 
final rule which they believed were needed. On May 21, the three 
organizations notified the FHWA that they had reached consensus and 
would seek amendments to the 1992 Act. The organizations asked the FHWA 
to delay its decision on both petitions until July 1, 1996. The 
petitions and letters discussed above are available for review in the 
public docket.
    On July 16, 1996, a bill to amend the 1992 Act, S. 1957, was 
introduced by the Chairman of the Senate Committee on Commerce, 
Science, and Transportation with co-sponsorship of the Chairman and 
ranking minority member of the Subcommittee on Surface Transportation 
and Merchant Marine. On July 23, 1996, the sponsors of the bill wrote 
to the Secretary of Transportation requesting that the September 1, 
1996, effective date of the FHWA's rule be extended. The Senators 
expressed concern that implementation as currently planned could have 
devastating consequences for intermodal transportation, including 
delays and severe congestion at the nation's ports. On August 19 (61 FR 
42822), the FHWA administratively extended the September 1, 1996, 
effective date until January 2, 1997, because (1) the two petitions 
before the agency had not been resolved, (2) a significant number of 
foreign entities were not familiar with their responsibilities, and (3) 
implementation of the final rule prior to possible enactment of S. 1957 
could disrupt both interstate and foreign commerce. A revised version 
of S. 1957 was approved by both chambers of Congress as title II of 
H.R. 3159 which was signed by the President on October 11, 1996 [Pub. 
L. 104-291, 110 Stat. 3452].

Highlights of the 1996 Act

    The 1996 Act amends the 1992 Act in several significant ways. Among 
other things, the 1996 Act:
    1. Raises the jurisdictional weight threshold from 4,536 kilograms 
(10,000 pounds) to 13,154 kilograms (29,000 pounds);
    2. Creates a presumption that the cargo weight of an intermodal 
container or trailer is less than 13,154 kilograms (29,000 pounds) if 
no certification is provided to the motor carrier;
    3. Exempts highway/railroad intermodal movements where one motor 
carrier performs all of the highway transportation itself or assumes 
responsibility for overweight fines incurred by any other motor carrier 
that handles part of the highway transportation;
    4. Makes explicit the applicability of the 1992 Act to foreign 
persons who tender a loaded container or trailer for intermodal 
transportation within the United States;
    5. Treats a bill of lading or other shipping document prepared by 
the person who tenders a loaded container or trailer as a certification 
if it includes certain information specified by the 1996 Act;
    6. Prohibits the use of the term ``Freight All Kinds'' as a 
reasonable commodity description after December 31, 2000, if the weight 
of any single commodity is 20 percent or more of the total cargo 
weight;
    7. Makes any person--in most cases an intermediate carrier--who 
inaccurately converts a paper certification into an electronic format 
or fails to forward a certification, indirectly liable for any fine or 
other costs incurred by a motor carrier as a result of that incorrect 
information or missing certification;
    8. Provides that a copy of the certification is not required to 
accompany the loaded container or trailer during intermodal 
transportation;
    9. Removes language prohibiting a motor carrier from transporting 
an intermodal container or trailer for which a certification is 
required, before receiving a certification;
    10. Requires motor carriers to give leased operators written notice 
of the gross cargo weight of an intermodal container or trailer if they 
know that it would cause a vehicle combination to violate gross vehicle 
weight limits. If no such notice is given and the leased operator is 
fined for violating a gross vehicle weight law or regulation, the 
operator is entitled to reimbursement from the motor carrier; and
    11. Removes the requirement that the Secretary of Transportation 
promulgate implementing regulations.

Overview of the 1996 Act

General Applicability

    The certification requirements of the 1992 Act, as amended by the 
1996 Act, apply to any domestic or foreign person who first tenders a 
container or trailer for intermodal transportation in the United 
States. The notification and certification requirements do not apply to 
any intermodal container or trailer containing consolidated shipments 
loaded by a motor carrier if such motor carrier performs all highway 
portions of the intermodal transportation or assumes responsibility for 
any weight-related fine incurred by any other motor carrier that 
transports the loaded container or trailer.

Notification and Certification

    Any person within the United States who tenders a loaded container 
or

[[Page 1295]]

trailer having a projected gross cargo weight more than 29,000 pounds 
to a first carrier that is a motor carrier must provide written 
notification of the projected gross cargo weight and a reasonable 
description of the contents of the container or trailer to the first 
carrier before tendering. The notification may be communicated by 
electronic transmission, telephone, or paper copy. A person who tenders 
a loaded container or trailer with an actual gross cargo weight of more 
than 29,000 pounds to a first carrier for intermodal transportation, 
must provide a certification of its contents in writing or 
electronically, before or when the container or trailer is so tendered. 
A copy of the certification is not required to accompany the loaded 
container or trailer at any time during intermodal transportation.
    The elements of a certification are the following:
    (1) The actual gross cargo weight (including packing materials, 
pallets, and dunnage);
    (2) A reasonable description of the contents of the container or 
trailer;
    (3) The identity of the certifying party;
    (4) The container or trailer number; and
    (5) The date of certification, or transfer of data to another 
document for forwarding to the next carrier.
    Any shipping document which includes this information (though it 
need not be in the above order or even in a consecutive format) and is 
prepared by the person who tenders the container or trailer qualifies 
as a certification. If a separate document is used as a certification, 
it must be conspicuously marked ``INTERMODAL CERTIFICATION.'' The use 
of the term ``Freight All Kinds'' or ``FAK,'' as a reasonable 
description of the contents of the container or trailer, is prohibited 
after December 31, 2000, if the weight of any one commodity is 20 
percent or more of the total cargo weight.

Forwarding and Transfer of Certifications

    Carriers and intermediaries that receive a certification must 
forward it to the next carrier in the intermodal chain. A carrier or 
intermediary that receives a certification may transfer the information 
into a different document or convert a paper certification into an 
electronic format, for forwarding to a subsequent carrier. The party 
transferring or converting the information must identify itself on the 
forwarded document and give the date on which the information was 
converted or transferred.

Liens

    A motor carrier which is fined or required to post a bond for 
transporting an overweight container or trailer subject to the amended 
1992 Act has a lien against its contents equal to the fine (including 
costs) or bond if the penalty results from (1) failure to provide the 
initial certification, (2) erroneous information in the initial 
certification, (3) failure to forward the certification or (4) an error 
in the conversion of a paper certification to an electronic format or 
in the transfer of certification elements from one document to another. 
The lien remains in effect until the motor carrier is reimbursed by the 
party responsible for the error or failure that caused the overweight 
fine, or by the owner or beneficial owner of the cargo. If 
reimbursement is not made within a reasonable time, the motor carrier 
may sell the cargo to recover the amount of the fine or bond. Liens 
cannot be exercised against perishable agricultural commodities.
    The lien provisions of the amended 1992 Act are especially 
complicated when an intermediate carrier or party makes an inaccurate 
conversion or transfer, or fails to forward the certification to a 
subsequent carrier. If a motor carrier incurs a fine and costs for an 
overweight violation resulting from such error or failure, the amended 
1992 Act provides that the intermediate party is liable to the motor 
carrier for the fine and costs. The motor carrier, however, is expected 
to recover its costs by exercising its right to a lien by seizing the 
cargo. In this case, the owner of the cargo (usually the shipper or 
consignee) is not responsible for the error or failure that resulted in 
the fine. The amended 1992 Act, therefore, gives any person who 
reimburses the motor carrier for its fine and costs (usually the 
shipper or consignee who wants to get the cargo to its destination) a 
cause of action for that amount against the intermediate carrier or 
party whose error or failure caused the problem. The reimbursing party 
will then have to file suit against the intermediate carrier or party 
in the appropriate court to recover the amount it paid the motor 
carrier. The statutory scheme is complex and should be reviewed 
carefully by all intermodal shippers and carriers. This description is 
not intended to be an exhaustive analysis.

Notice to Leased Operators

    If a motor carrier knows, because of the certification it has 
received, that a loaded container or trailer would cause a vehicle 
combination to be in violation of gross vehicle weight laws, it must 
give written notice of the gross cargo weight to an owner-operator 
leased to the motor carrier. This amounts to a motor carrier 
certification within the broader shipper certification scheme of the 
statute. If no such notice is given and the owner-operator is fined for 
a violation of a gross vehicle weight law or regulation, the owner-
operator is entitled to reimbursement from the motor carrier in the 
amount of the fine and court costs. The motor carrier bears burden of 
proof to establish that it gave the required notice to its leased 
owner-operator.

Unlawful Coercion and State Enforcement

    The 1996 Act did not substantially amend 49 U.S.C. 5903(c) which 
contains prohibitions regarding coercion. Coercing a person to 
transport a loaded container or trailer subject to the amended 1992 Act 
without a certification (or a shipping document that qualifies as such) 
or with a weight that would make the combination vehicle illegally 
overweight under applicable State law, remains prohibited. However, if 
no certification is provided to a motor carrier when a loaded container 
or trailer is tendered to it, the motor carrier may presume that the 
gross cargo weight is less than 29,000 pounds. This should 
significantly reduce instances of alleged coercion.
    The 1996 Act did not amend 49 U.S.C. 5904 which addresses State 
enforcement. States retain the authority to fine the motor carrier for 
all overweight violations, but they may also impound the intermodal 
container or trailer and levy the fine on the shipper when the 
violation was caused by inaccurate information in the certification. 
The absence of certifications from commercial motor vehicles, however, 
will hinder the ability of State enforcement officials to determine at 
roadside whether an overweight violation was caused by incorrect 
information in a certification. This may influence their choice of 
enforcement options.

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 not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. Since this rulemaking action only 
withdraws a previously

[[Page 1296]]

issued rule, 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 and has determined that, since this action withdraws 
regulations previously issued, it will not place a significant economic 
burden 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. This withdrawal of 
a recently published final rule will not preempt any State law or State 
regulation and no additional costs or burdens will be imposed on the 
States. This action will not affect the States' ability to execute 
traditional State governmental functions.

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 do not apply to this program.

Paperwork Reduction Act

    The information collection requirements contained in the final rule 
previously issued on December 29, 1994, were approved by the OMB in 
accordance with the provisions of the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-3520 and assigned the control number of 2125-0557 which 
expires on June 30, 1997. This action reduces paperwork burdens 
previously established and results in the FHWA no longer conducting or 
sponsoring a collection of information to implement 49 U.S.C. chapter 
59. The FHWA, therefore, will not seek extension of the OMB's approval 
of the information collection assigned control number 2125-0557.

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. 4321-4347) 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, Motor carriers, Recordkeeping 
requirements.

    In consideration of the foregoing and under the authority of 49 
U.S.C. 31132, 31133, 31502, and 31504, the FHWA hereby amends title 
49, Code of Federal Regulations, parts 382, 383, and 390 as set 
forth below.

    Issued on: December 31, 1996.
Rodney E. Slater,
Federal Highway Administrator.

PART 382--[AMENDED]

    1. The authority citation for Part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., and 31502; and 
49 CFR 1.48.


Sec. 382.103  [Amended]

    2. Section 382.103 is amended by revising paragraph (c) to read as 
follows:


Sec. 382.103  Applicability

* * * * *
    (c) The exceptions contained in Sec. 390.3(f) of this subchapter do 
not apply to this part. The employers and drivers identified in 
Sec. 390.3(f) must comply with the requirements of this part, unless 
otherwise specifically provided in paragraph (d) of this section.
* * * * *

PART 383--[AMENDED]

    3. The authority citation for Part 383 is revised to read as 
follows:

    Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and
    49 CFR 1.48.


Sec. 383.3  [Amended]

    4. Section 383.3 is amended by revising paragraph (b) to read as 
follows:


Sec. 383.3  Applicability

* * * * *
    (b) The exceptions contained in Sec. 390.3(f) of this subchapter do 
not apply to this part. The employers and drivers identified in 
Sec. 390.3(f) must comply with the requirements of this part, unless 
otherwise provided in this section.
* * * * *

PART 390--[AMENDED]

    5. The authority citation for Part 390 is revised to read as 
follows:

    Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, 
31504, and Sec. 204, Pub.L. 104-88, 109 Stat. 803, 941; 49 U.S.C. 
701 note, and 49 CFR 1.48.


Sec. 390.3  [Amended]

    6. Section 390.3 is amended by removing paragraph (b), and 
redesignating paragraphs (c) through (g) as (b) through (f), 
respectively.

Subpart C [Removed]

    7. Subpart C of part 390, (Secs. 390.50-390.60) Intermodal 
Transportation, is removed and reserved.

Appendix H to Subchapter B [Removed]

    8. Subchapter B is amended by removing appendix H.

[FR Doc. 97-384 Filed 1-8-97; 8:45 am]
BILLING CODE 4910-22-P