Federal Register / Vol. 62, No. 6 / Thursday, January 9, 1997 / Rules and Regulations 1293

Stat. 847), EPA submitted a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives and the

Comptroller General of the General

Accounting Office prior to publication

of the rule in today’s Federal Register.

This rule is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2) of the APA

as amended.

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: January 2, 1997.

Daniel M. Barolo,

Director, Office of Pesticide Programs.

Therefore, 40 CFR Chapter I is

amended as follows:

PART 180— [AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 346a and 371.

2. In § 180.284, by adding a new

paragraph (c) to read as follows:

§ 180.284 Zinc phosphide; tolerances for

residues.

* * * * *

(c) Time-limited tolerances are

established for residues of the

phosphine resulting from the use of the

rodenticide zinc phosphide in

connection with use of the pesticide

under section 18 emergency exemptions

granted by EPA. The tolerances are

specified in the following table. The

tolerances expire and are automatically

revoked on the date specified in the

table without further action by EPA.

Commodity

Parts

per million

Expiration/

Revocation

Date

Potatoes ................ 0.05 October 15,

1997

Sugar beet (roots) 0.05 October 15,

1997

Sugar beet (tops) .. 0.1 October 15,

1997

[FR Doc. 97–512 Filed 1–8–97; 8:45 am]

BILLING CODE 6560–50–F

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.

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.
1294 Federal Register / Vol. 62, No. 6 / Thursday, January 9, 1997 / Rules and Regulations

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 weightrelated 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
Federal Register / Vol. 62, No. 6 / Thursday, January 9, 1997 / Rules and Regulations 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 owneroperator.

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
1296 Federal Register / Vol. 62, No. 6 / Thursday, January 9, 1997 / Rules and Regulations

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.

§382.103 [Amended]

2. Section 382.103 is amended by

revising paragraph (c) to read as follows:

§382.103 Applicability

* * * * *

(c) The exceptions contained in

§390.3(f) of this subchapter do not apply

to this part. The employers and drivers

identified in §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.

§383.3 [Amended]

4. Section 383.3 is amended by

revising paragraph (b) to read as follows:

§383.3 Applicability

* * * * *

(b) The exceptions contained in

§390.3(f) of this subchapter do not apply

to this part. The employers and drivers

identified in §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.

§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, (§§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 227

[Docket Number 950407093–6298–03; I.D.

012595A]

Endangered and Threatened Species;

Threatened Status for Central

California Coast Coho Salmon

Evolutionarily Significant Unit (ESU);

Correction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Correction to final rule.

SUMMARY: NMFS is making a technical

correction to the final rule (61 FR 56138,

October 31, 1996) determining that the

Central California Coast Coho Salmon

Evolutionarily Significant Unit (ESU) is

a threatened species. The correction

specifies that the ESU consists of all

coho salmon naturally reproduced in

streams between Punta Gorda in

Humboldt County, CA, and the San

Lorenzo River in Santa Cruz County,

CA.

EFFECTIVE DATE: December 2, 1996.

FOR FURTHER INFORMATION CONTACT: Mr.

Craig Wingert, NMFS, Southwest

Region, (310) 980–4021; or Marta