[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-32026] [[Page Unknown]] [Federal Register: December 29, 1994] _______________________________________________________________________ Part V Department of Transportation _______________________________________________________________________ Federal Highway Administration _______________________________________________________________________ 49 CFR Part 390 Federal Motor Carrier Safety Regulations; General; Intermodal Transportation; Final Rule DEPARTMENT OF TRANSPORTATION Federal Highway Administration 49 CFR Part 390 [FHWA Docket No. MC-93-17] RIN 2125-AD14 Federal Motor Carrier Safety Regulations; General; Intermodal Transportation AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- 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