[Federal Register Volume 60, Number 101 (Thursday, May 25, 1995)]
[Rules and Regulations]
[Pages 27700-27703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12814]
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FEDERAL COMMUNICATIONS COMMISSION
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 390
[FHWA Docket No. MC-93-17]
RIN 2125-AD14
Federal Motor Carrier Safety Regulations; General; Intermodal
Transportation
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; petitions for reconsideration of effective date;
request for comments.
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SUMMARY: The FHWA published a document on May 16, 1995 at 60 FR 26001
which administratively extended until September 27, 1995, the effective
date of its final rule implementing the requirements of the Intermodal
Safe Container Transportation Act of 1992. The final rule was published
on December 29, 1994, and its original effective date was June 27,
1995. The only purpose of this three-month extension was to provide the
FHWA sufficient time to request, receive, and analyze comments, and to
publish a final determination, on whether a further extension is
warranted. This document requests comments on the major issues raised
by petitioners who have requested an extension of the effective date
of, and certain exemptions from, the final rule.
DATES: Replies to this request for comments must be received on or
before June 26, 1995. As indicated in the May 16, 1995 document, the
effective date of the final rule published on December 29, 1994 at 59
FR 67544 has been extended to September 27, 1995.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-93-17,
Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. All
comments received will be available for examination at the above
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor
Carrier Research and Standards, HCS-10, (202) 366-5763; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400 Seventh Street, SW., Washington,
D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
On December 29, 1994, the FHWA published a final rule which
implemented the requirements of the Intermodal Safe Container
Transportation Act of 1992 (the Act) [Pub.L. 102-548, 106 Stat. 3646,
partly codified at 49 U.S.C. 5901-5907 (formerly 49 U.S.C. 501 and
508)]. The final rule requires any person who presents a container or
trailer with a gross cargo weight of more than 4,536 kilograms or
10,000 pounds to an initial carrier for intermodal transportation to
provide a certification to such carrier. Motor carriers are prohibited
from accepting a loaded container or trailer prior to receiving a
tangible certification. Motor carriers, rail carriers, water carriers,
ocean common carriers, and intermediaries that receive a certification
in the course of intermodal transportation must forward the
certification to a subsequent carrier transporting the loaded container
or trailer. The objective of the final rule was to reduce the number of
overweight motor vehicles transporting intermodal containers or
trailers by improving communication between shippers and motor
carriers.
Issues Raised by Industry Groups
The FHWA has received letters from several companies and industry
groups petitioning the FHWA to extend the effective date of the final
rule. Among those requesting an extension are APL Land Transport
Services, Inc. (APL); the European Shippers' Councils; ``K'' Line
America, Inc. (KLA); the Intermodal Safe Container Coalition
(Coalition); the National Industrial Transportation League; the
Steamship Association of Southern California; and, Warren & Associates,
a law firm representing two freight conferences. The APL, KLA, and the
Coalition were the parties who provided the most information in support
of an extension. Copies of these letters are available for review in
the docket.
For ease of presentation, the FHWA has grouped the issues raised by
the petitioners into four major categories: (1) Electronic data
interchange (EDI); (2) the widespread need for education and training,
especially for foreign shippers; (3) the cargo weight threshold used in
determining the applicability of the final rule; and, (4) the results
of the data collection needs study mandated by the Act. The FHWA
believes that some of the petitioners' assertions warrant public
discussion.
Electronic Data Interchange
The KLA wrote that ``the complexities of establishing a uniform
method for electronic transmission of data between very divergent
industries, each with their own unique data requirements, makes
compliance by all parties in the intermodal network by the June date
difficult to impossible.'' The KLA explained further that the
certification data should ideally be passed as part of an already
existing data transmission which would necessitate the various parties
sending and receiving the certification information to agree on the
data format and the meaning of each field. The development of these
specifications, the KLA continued, requires time to allow the users of
the [[Page 27701]] formats to develop the workable file layouts, to
agree on the meaning of each field, and to insure that the formats
selected would not create incompatibilities within the computers used
to send and receive these messages. The KLA also added that individual
companies must modify their in-house programs to utilize the data after
these formats are established.
The APL asserted that the changes needed to assure that the
necessary EDI takes place will require an extensive effort. The APL
wrote that full implementation through EDI would not be possible by
June 27, 1995, for its own operations, and it surmises the same would
be true for most of the industry. The Coalition asserted that the
forwarding of paper certifications, which would be necessary if the
final rule became effective on June 27, 1995, would be tremendously
cumbersome and burdensome because the intermodal transportation
industry increasingly communicates through EDI. The Coalition explained
further that there is no existing system for the forwarding of paper
certifications to a subsequent carrier and that such a system would
most certainly break down. The Coalition wrote that the development of
necessary EDI standards will take at least until November 1995, and
that even more time will be needed for programming, testing, training,
and coordination. Although the Coalition requested an extension of the
effective date until May 1, 1996, it asserted that compliance through
the use of EDI by such date is a most ambitious goal. Warren &
Associates stated that the June 27, 1995, effective date does not take
into consideration the advance time required to integrate and
standardize compliance through the use of EDI among the different
industry participants.
FHWA Response: The intermodal transportation industry relies
heavily on EDI. The FHWA recognizes that the development of EDI
standards could not have begun in any substantial way prior to
publication of the final rule on December 29, 1994, when all parties
were made aware of the specific regulatory requirements. The
development of standards, computer programming, and training are
necessary for the intermodal transportation industry to accomplish the
forwarding of certifications between carriers through the use of EDI.
The FHWA also recognizes that making the final rule effective before
the intermodal transportation industry has sufficient time to complete
the necessary tasks for compliance to be achieved through the use of
EDI would require the forwarding of paper certifications. This may
cause large disruptions in domestic and international trade and
commerce. The FHWA requests comments on the length of time that would
be needed for the intermodal transportation industry to complete the
tasks necessary for compliance with the final rule through the use of
EDI.
Education and Training
The KLA wrote that an extension of the effective date of the final
rule is also justified because of the need to educate numerous parties
on its requirements. The KLA asserted that education of affected
parties in the United States by June 27, 1995, would be a daunting task
and that advising overseas shippers would be ``impossible.'' The
European Shippers' Councils wrote that European exporters have not yet
received information on what the Act requires of them or instructions
on how a certification should be issued. The European Shippers'
Councils asserted that it would be impossible for all European shippers
to comply with the final rule by June 27, 1995. The Coalition wrote
that making shippers aware of their obligations will require a massive
educational effort, one that is far from completed.
FHWA Response: The FHWA recognizes that it has a responsibility to
inform participants in the intermodal transportation industry of their
responsibilities under the final rule. The FHWA has developed an
educational pamphlet which, unfortunately, is not yet available for
distribution. In addition to English, the pamphlet will be available in
German, French, Spanish, Japanese, and Mandarin Chinese. Pamphlets will
be provided to various associations for domestic and international
distribution upon its availability. In addition, the Department of
State will assist the FHWA with the international distribution of the
pamphlets. The FHWA will also request assistance from various embassies
with international distribution of the pamphlets. The FHWA requests
comments on what additional educational materials would be helpful and
how the pamphlets and other materials should be distributed.
Cargo Weight Threshold
The Coalition recommended that the jurisdictional weight threshold
of the Act and the final rule (more than 4,536 kilograms [10,000
pounds] gross cargo weight) should be raised. The Coalition stated that
``even though there is no possibility under the law of physics that
either international or domestic shipments weighing between 10,000 and
40,000 pounds could cause gross vehicle weight violations as defined in
the Act, the Act and Regulations nonetheless require each shipment to
be weighed and subject to the advance notification and certification
requirements.'' In a letter, however, the Steamship Operators
Intermodal Committee (SOIC) asserted that the Coalition's statement is
erroneous. The SOIC wrote that its tests show that a 20 foot container
which is loaded with 40,000 pounds of cargo exceeds the maximum gross
weight allowed by the bridge gross weight formula when it is mounted on
a 23 foot chassis.
FHWA Response: The Act specifically establishes a gross cargo
weight applicability threshold of more than 4,536 kilograms (10,000
pounds) for loaded containers and trailers. Accordingly, the
regulations issued by the FHWA are applicable to containers or trailers
in intermodal transportation with an actual gross cargo weight
(inclusive of packing material and pallets) of more than 4,536
kilograms (10,000 pounds). Although the gross cargo weight threshold of
more than 4,536 kilograms (10,000 pounds) mandated by Congress extends
the scope of the Act beyond the range of cargo weight typically
associated with overweight conditions, the FHWA cannot modify the gross
cargo weight threshold of the final rule without a congressional
amendment to the Act.
Data Collection Needs Study
The National Industrial Transportation League requested that the
study mandated by the Act be accelerated and that the effective date of
the final rule be extended pending the findings of the study.
FHWA Response: The Act requires the Secretary of Transportation to
conduct a study to assess existing data and data collection needs with
respect to the movement in intermodal transportation of loaded
containers and trailers in the violation of the Act and highway weight
laws. The Act requires that the final report from the study provide
legislative and other recommendations for improving the collection of
such data. The Congress did not intend the study to be a prerequisite
to the promulgation and enforcement of regulations which implement the
requirements of the Act, but rather a separate activity designed to
provide insight into the data needs that would assist Congress in
making future related legislative decisions. Completion of the study is
not by itself sufficient grounds to warrant an extension, and the
schedule for the study cannot be significantly accelerated.
[[Page 27702]]
Opposition to a Lengthy Extension of the Effective Date of the Final
Rule
In addition to letters requesting an extension of the effective
date of the final rule, the FHWA received two letters in opposition.
The American Trucking Associations, Inc. (ATA), opposed a lengthy
extension of the effective date, but indicated that it could support an
extension until January 1, 1996, to permit the FHWA to proceed with a
rulemaking on the various petitions that have been filed, including its
own. The ATA recognized that the EDI concerns of those requesting an
extension may have some validity. In addition, Mr. M. P. McLean wrote
that these regulations are necessary and long overdue and recommended
they be implemented without delay.
Petition for Exemptions by the American Trucking Associations, Inc.
On April 7, 1995, the ATA filed a petition to exempt three types of
motor carrier operations from the final rule:
1. A motor carrier which loads a container or trailer and provides
all highway portions of the intermodal transportation.
2. A motor carrier which loads a container or trailer, provides the
initial highway portion of the intermodal transportation, and assumes
responsibility for the violations of highway weight laws of other motor
carriers that transport the loaded container or trailer.
3. A motor carrier which is presented a loaded trailer for domestic
transportation with a bill of lading that includes the weight and a
reasonable description of the cargo, as well as the shipper's
signature, and which subsequently decides on its own initiative to ship
the loaded trailer by rail for a portion of the domestic
transportation.
For the first type of operation, the ATA asserts that the
certification serves no purpose because the motor carrier controls the
loading of the container or trailer and, therefore, always knows the
weight and identity of the cargo. In the second type, the ATA argues
that the certification serves no purpose because the initial motor
carrier knows the weight and identity of the cargo and has assumed
responsibility for any overweight citations issued to other motor
carriers. In the third type, the ATA contends that a certification
should not be required because the use of intermodal transportation
would be discouraged if a shipper that had to prepare a certification
for every trailer on the possibility that its motor carrier might have
the trailer transported by rail and because the motor carrier in this
situation has been provided all of the pertinent information that would
otherwise be included in a certification. The ATA asserts that all of
these requested exemptions will eliminate unnecessary paperwork burden
and have no adverse impact on highway safety. The ATA's petition is
available for review in the docket.
Request for Comments
The FHWA is not requesting comments on the content of the final
rule, but only on the ATA's petition for three exemptions and whether
an extension of the effective date of the final rule beyond September
27, 1995, is necessary to allow affected parties to become familiar
with their responsibilities and take necessary actions for compliance.
The FHWA requests comments regarding the appropriateness of the
following effective dates requested by the petitioners:
1. January 1, 1996, as mentioned by the ATA in its statements
regarding the various filed petitions.
2. May 1, 1996, as requested by the Coalition and Warren &
Associates based on their arguments related to: EDI; education; and
paperwork burdens and costs associated with compliance to the final
rule.
3. June 1, 1996, as requested by the KLA based on their arguments
related to EDI and education.
4. Any other date.
The FHWA requests commenters to provide information and data which
support their position. Commenters who support a specific effective
date are requested to provide a timetable of activities necessary for
compliance.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be
[[Page 27703]] considered and will be available for examination in the
docket room at the above address. The FHWA will not consider any
request for an extension of the comment period of this publication.
Comments received after the comment closing date will be filed in the
docket and will be considered to the extent practicable. In addition to
late comments, the FHWA will also continue to file in the docket
relevant information that becomes available after the comment closing
date, and interested persons should continue to examine the docket for
new material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has previously determined that the final rule implementing
the Intermodal Safe Container Transportation Act of 1992 is a
significant regulatory action within the meaning of Executive Order
12866 and significant under Department of Transportation regulatory
policies and procedures because it affects intermodal transportation
and attracts substantial public interest. As such, the final rule was
reviewed by the Office of Management and Budget and the Office of the
Secretary of Transportation before being published. This present action
is intended only to allow comments on an appropriate effective date for
the December 29, 1994, final rule. Based on the information received in
response to this action, the FHWA will make a final determination on an
appropriate effective date. It is anticipated that the economic impact
of this action will be minimal; therefore, a full regulatory evaluation
is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this action on small
entities. Based upon this evaluation, as well as for the reasons set
forth in the previous paragraph, the FHWA hereby certifies that this
action will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient Federalism implications to
warrant the preparation of a Federalism assessment. Nothing in this
action directly preempts any State law or regulation.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
The information collection requirements contained in the December
29, 1994, final rule have been approved by the Office of Management and
Budget in accordance with the provisions of the Paperwork Reduction Act
of 1980, 44 U.S.C. 3501 et seq. and assigned the control number of
2125-0557 which expires on June 30, 1997. This action does not affect
the recordkeeping requirements previously established.
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action would not have any effect on the
quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 390
Highway safety, Highways and roads, Intermodal transportation,
Motor carriers, Recordkeeping requirements.
Authority: 49 U.S.C. 5901-5907, 31132, 31136, 31502 and 31504;
49 CFR 1.48.
Issued on: May 19, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-12814 Filed 5-24-95; 8:45 am]
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