[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