[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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