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[Federal Register: September 27, 2002 (Volume 67, Number 188)]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 392 and 393
[FMCSA Docket No. FMCSA-97-2289]
RIN 2126-AA27
Development of a North American Standard for Protection Against
Shifting and Falling Cargo
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA revises its regulations concerning protection
against shifting and falling cargo for commercial motor vehicles (CMVs)
engaged in interstate commerce. The new cargo securement standards are
based on the North American Cargo Securement Standard Model
Regulations, reflecting the results of a multi-year comprehensive
research program to evaluate current U.S. and Canadian cargo securement
regulations; the motor carrier industry's best practices; and
recommendations presented during a series of public meetings involving
U.S. and Canadian industry experts, Federal, State and Provincial
enforcement officials, and other interested parties. The new rules
require motor carriers to change the way they use cargo securement
devices to prevent articles from shifting on or within, or falling
from, CMVs. In some instances, the changes may require motor carriers
to increase the number of tiedowns used to secure certain types of
cargoes. However, the rule generally does not prohibit the use of
tiedowns or cargo securement devices currently in use. Therefore, motor
carriers are not required to purchase new cargo securement equipment to
comply with the rule. The intent of this rulemaking is to reduce the
number of accidents caused by cargo shifting on or within, or falling
from, CMVs operating in interstate commerce, and to harmonize to the
greatest extent practicable U.S., Canadian, and Mexican cargo
securement regulations.
DATES: The rule is effective December 26, 2002. Motor carriers must
ensure compliance with the final rule by January 1, 2004. The
publications incorporated by reference in this final rule are approved
by the Director of the Federal Register as of December 26, 2002.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and
Truck Standards and Operations, MC-PSV, (202) 366-1790; or Mr. Charles
E. Medalen, Office of the Chief Counsel, MC-CC, (202) 366-1354, Federal
Motor Carrier Safety Administration, 400 Seventh Street, SW.,
Washington, DC 20590-0001. 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 July 27, 1993, the House of Representatives held a hearing
concerning the adequacy of Federal regulations on cargo securement, as
well as the enforcement of those regulations ("Truck Cargo Securement
Regulations and Enforcement, 1993: Hearing Before the Subcommittee on
Investigations and Oversight of the House of Representatives' Committee
on Public Works and Transportation," 103rd Cong., 1st Sess. 32
(1993)). The report of the July 1993 hearing is included in the public
docket. The hearing was prompted by several cargo securement accidents
that occurred in New York between 1990 and 1993. During the hearing,
the Federal Highway Administrator stated that the Ontario Ministry of
Transportation had requested that the FHWA review a proposal prepared
on behalf of the Canadian Council of Motor Transport Administrators
(CCMTA)--a non-profit association of senior officials from Federal,
Provincial, and Territorial departments and agencies responsible for
the administration, regulation, and control of motor vehicle
transportation and highway safety--for a research program to evaluate
cargo securement regulations and industry practices. The Administrator
informed the subcommittee that the FHWA would participate in the
research effort and consider incorporating the results of the research
into the FMCSRs.
A cargo securement research working group was organized by the
CCMTA and the Ontario Ministry of Transportation to discuss the
research methodology with industry groups and Federal, State, and
Provincial governments from the United States and Canada. The working
group, which included representatives from the FHWA, Transport Canada
(the Federal department responsible for developing and enforcing the
regulatory aspects of motor vehicle and motor carrier safety in
Canada), the CCMTA, the Commercial Vehicle Safety Alliance (CVSA),
several States and Provinces, and U.S. and Canadian industry, held its
first meeting August 16-17, 1993. The cargo securement issues that were
to be examined through the research program and the selected research
methodology are described in a report published by the Ontario Ministry
of Transportation in November of 1993. A copy of the minutes of the
first meeting and a copy of the report entitled "A Proposal for
Research to Provide a Technical Basis for a Revised National Standard
on Load Security for Heavy Trucks" are included in the public docket.
The North American Load Security Research Project was initiated to
develop an understanding of the mechanics of cargo securement on heavy
trucks. The research was intended to provide a sound technical basis
for development of the North American Cargo Securement Standard Model
Regulations. Tests were conducted to examine the fundamental issues of
anchor points, tiedowns, blocking and friction, and issues related to
securement of dressed lumber (representative of cargoes that are loaded
lengthwise on a vehicle and secured with transverse tiedowns), large
metal coils, concrete pipe, intermodal containers, and other
commodities. A copy of the research reports is in the public docket.
Copies of these reports may be purchased from the CCMTA, 2323 St.
Laurent Boulevard, Ottawa, Ontario K1G 4J8. The telephone number for
the CCMTA is 613-736-1003; the Web site address is
http://www.ab.org/ccmta/ccmta.html.
As various portions of the research were completed, the results
were provided to the Standard Drafting Group which was responsible for
leading the effort at drafting the North American Model Regulations.
Almost all of the research was completed by late 1997, with a few
remaining items completed in 1998. The drafting group was responsible
for reviewing the draft research reports to determine how the
information could best be used to improve specific cargo securement
requirements in the U.S., Canada, and Mexico.
Process for Development of the North American Model Regulations
The Standard Drafting Group developed the outline for the model
regulations with most of the detailed performance criteria added as the
research reports were completed. Membership in the drafting group
included representatives from the FHWA, Transport Canada, CCMTA, the
Ontario Ministry of Transportation, Quebec Ministry of Transportation--
Ontario and Quebec conducted most of the research--and the CVSA. The
CVSA was included in the drafting group because it is an organization
of Federal, State, and Provincial government
agencies and representatives from private industry in the United
States, Canada, and Mexico dedicated to improvement of commercial
vehicle safety. The membership of the drafting group was limited
because there was an informal agreement among the interested parties
that it would have been impractical to draft a technical document with
a larger number of participants.
The process used for further developing this outline for the model
regulations involved the North American Cargo Securement Harmonization
Committee, a group that reviewed major portions of this outline as it
was completed by the drafting group. Membership in the harmonization
group was open to all interested parties in the U.S., Canada, and
Mexico. This process was intended to ensure that all interested parties
had an opportunity to participate in the development of the model
regulations, and to identify and consider the concerns of the Federal,
State, and Provincial governments, carriers, shippers, industry groups,
and associations, as well as safety advocacy groups and the general
public. The harmonization group held public meetings at locations in
the United States and Canada, during which drafts of the North American
Cargo Securement Standard were presented for review and comment.
Representatives of the CCMTA and the CVSA served as co-chairpersons for
the harmonization group and organized the public meetings. The meetings
held in the U.S. concerning the review of substantive material that
would be included in the model regulations were announced by the FHWA
in the Federal Register. There were nine meetings held in the U.S. and
Canada. Copies of the minutes from the meetings, including lists of the
agencies, organizations and companies represented at the meetings, are
in the public docket.
For individuals and groups unable to attend the meetings, the CCMTA
posted information on the Internet. The Internet address is
http://www.ab.org/ccmta/ccmta.html.
Individuals and organizations with
Internet electronic mail addresses were provided with the opportunity
to have their names added to an electronic mailing list to receive
information on the development of the standard.
After all interested parties were given the opportunity to comment
and their concerns had been considered, the final version of the North
American Cargo Securement Standard was published in May 1999 by the
CCMTA. A copy of the standard is in the public docket. Federal, State,
and Provincial governments throughout North America have now been
encouraged to adopt it through their respective rulemaking processes.
Publication of Advance Notice of Proposed Rulemaking
On October 17, 1996 (61 FR 54142), the FHWA published an advance
notice of proposed rulemaking (ANPRM) concerning the development of the
North American Cargo Securement Standard Model Regulations. The agency
requested comments on its consideration of a rulemaking to overhaul the
Federal cargo securement regulations based on the research program
described above and other published cargo-securement related research,
such as Southern Illinois University's March 1995 report entitled
"Analysis of Rules and Regulations for Steel Coil Truck Transport." A
copy of this report is included in the public docket. The agency also
requested comments on the process that would be used to develop the
North American Cargo Securement Standard Model Regulations.
Generally, the commenters agreed with the agency's plan to
participate in the research program to evaluate cargo securement
systems, and the approach the agency described for developing the North
American Cargo Securement Standard Model Regulations. However, some of
the commenters expressed concerns about specific issues they believe
were not discussed adequately in the research and standards development
program described in the ANPRM.
Publication of NPRM
On December 18, 2000, the agency published a notice of proposed
rulemaking (NPRM) to adopt rules based on the North American Cargo
Securement Standard Model Regulations (65 FR 79050). The NPRM requested
comments on all aspects of the rulemaking.
Discussion of Comments to the NPRM
The agency received 102 comments in response to the NPRM. The
commenters included individuals concerned about highway safety, truck
drivers, motor carriers, motor carrier associations, manufacturers and
shippers of products transported on trucks, truck trailer
manufacturers, manufacturers of devices used to secure articles of
cargo on commercial motor vehicles and several associations
representing such manufacturers, and safety advocacy groups.
Generally, the majority of the commenters supported the concept of
adopting the North American Cargo Securement Standard Model
Regulations. However, almost all of the commenters suggested revisions
of some of the requirements to make the proposed rule more consistent
with the model regulations, and to improve the clarity of the
requirements. A number of the commenters had objections to certain
provisions of the model regulations that were proposed for adoption,
suggesting that their concerns were not adequately addressed during the
public meeting process used for developing the model regulations. The
major issues are addressed below.
Applicability of Cargo Securement Rules
Several commenters expressed concerns about the applicability of
the cargo securement rules to commercial motor vehicles with a gross
vehicle weight less than 26,000 pounds. The National Association of
Trailer Manufacturers stated:
Our association is dedicated to promoting safety in trailers
under 26,000 lbs GVWR [gross vehicle weight rating]. We focus on
that segment of the trailer industry. We have observed repeatedly
that regulations are written based on experiences of tractor-trailer
rigs--the big ones--all over 26,000 lbs GVWR--and then are
automatically applied to the much smaller and much different
trailers.
We respectfully submit that the major differences of frame
structure, platform height, axle placements and towing methods are
significant and they do affect handling, loading, and safety
characteristics of these trailers.
Therefore, our general concern and fear is that regulations are
developed and applied to our segment of the industry without
considering their real needs, designs and ultimate impact on
manufacturing costs.
We suggest that the rulemaking in this case of cargo securement
be applied only to those trailers (over 26,000 lbs GVWR) where they
are needed.
United Parcel Service, Inc. (UPS ) also believes that there is
insufficient data concerning the securement of cargo transported in
vehicles with a GVWR greater than 10,001 pounds but substantially less
than 26,001 pounds, the weight typically associated with a heavy
vehicle. UPS does not believe that FMCSA has investigated the
mechanical differences between such vehicles and heavy trucks, and
argues that the agency has made no effort to determine the propriety of
applying performance criteria and other standards developed for flatbed
and other heavy trucks to UPS package cars, trailers, or other similar
vehicles designed for the
handling of smaller package-type cargo within completely contained
CMVs.
The Manufactured Housing Institute (MHI) expressed concern about
whether the rules would be applicable to the transportation of
manufactured homes. MHI stated that various types of materials and
supplies are shipped within the transportable sections of manufactured
homes from the point of manufacture to the retailer and/or home site,
where installation crews set up the homes. The materials and supplies
are used to complete the home and include carpeting, vinyl siding,
roofing materials, and interior wall and ceiling materials. MHI also
stated that the materials and supplies are spread out over several
rooms, and often placed within closets, utility rooms, and/or other
confined spaces within each transportable section of manufactured
housing. MHI requested that manufactured homes be excluded from the
applicability of the cargo securement rules.
FMCSA Response
The FMCSA believes the applicability of the new cargo securement
rules should be consistent with the applicability of the current cargo
securement regulations. The agency's cargo securement rules have
historically been applicable to the full range of cargo-carrying
commercial vehicles subject to the FMCSRs since the safety regulations
were first issued more than 60 years ago. The new rules should also be
applicable to all cargo-carrying, commercial motor vehicles (as defined
in 49 CFR 390.5). None of the commenters have presented information to
support making a distinction between the general applicability of the
FMCSRs, and the applicability of the cargo securement rules. There is
no readily apparent reason why any particular class or category of
cargo-carrying vehicle subject to the FMCSRs, should be excepted from
basic requirements to ensure that the cargo is secured to prevent it
from falling from the vehicle, or shifting to the extent that the
vehicle's stability or maneuverability is adversely affected.
We agree with commenters' assertions that there are differences in
frame structure, platform height, axle placements and towing methods.
However, there is no data to suggest that differences in the design of
the commercial motor vehicle, or the manner in which it is towed (e.g.,
a fifth wheel coupling device for truck trailers, versus a ball-and-
socket arrangement for small trailers) negate the need for ensuring
that cargo is properly secured to prevent accidents. The agency does
not believe that the rules being adopted represent a one-size-fits-all
approach to ensuring safety. The rules are performance-based to the
greatest extent practicable resulting in requirements that increase
with the size of the articles of cargo, or the complexity of the load
securement system necessary to ensure that the articles are properly
secured.
With regard to MHI's concerns about the rules being applicable to
manufactured homes, transporters of the homes would comply by ensuring
that materials and supplies used to complete the home, are positioned
so that they cannot shift around inside the home while it is being
towed to its installation site. Placing the items within closets and
utility rooms or other confined spaces generally would satisfy the new
requirements under § 393.102.
Relationship Between FMCSA's and RSPA's Cargo Securement Rules
The Georgia Public Service Commission (Georgia PSC) recommended
that FMCSA should reference provisions of the Research and Special
Programs Administration's (RSPA) load securement rules for hazardous
materials transported by highway [Subpart B of 49 CFR part 177].
Georgia PSC indicated that the hazardous materials regulations do not
contain load securement requirements for Class 9 materials and
combustible liquids. These materials may be transported in non-
specification packaging (i.e., packaging that is not required to meet
RSPA performance standards). In addition, the transportation of limited
quantities is not specifically covered by load securement provision of
the hazardous materials regulations.
FMCSA Response
The FMCSA does not believe it is necessary to include a reference
to the hazardous materials regulations. The cargo securement rules
being adopted are applicable to any articles of cargo being transported
in or on a commercial motor vehicle, regardless of whether the
transportation of the articles is subject to the hazardous materials
regulations. The agency has contacted RSPA to discuss this matter does
not believe the hazardous materials rules prevent motor carriers from
complying with the FMCSA's cargo securement rules, or vice versa. The
FMCSA's and RSPA's rules are complementary and motor carriers
transporting hazardous materials must ensure compliance with both
agencies' rules, whenever applicable.
Performance Criteria for Cargo Securement Systems
International Paper Company was among the numerous commenters that
expressed concerns about the proposed minimum performance criteria for
cargo securement devices and systems. International does not believe
the deceleration values can be achieved under actual test conditions
with loaded vehicles. They believe the values were based on
researchers' analysis rather than the results of actual vehicle tests.
International believes that minimum performance criteria of 0.6g
forward, 0.35g lateral and 0.25g rearward have been proven in real-
world testing and should be adopted.
The American Trucking Associations, Inc. (ATA), however, believes
the proposed performance criteria are appropriate. The ATA stated:
For many years a 0.6g deceleration was the best that could be
attained. However, today's truck tires and brakes are more capable
than ever before. In discussions with tire, brake and vehicle
manufacturers there was agreement that the g forces defined in the
proposal are now achievable. While these forces will rarely reach
the 0.8g forward, 0.5g rearward and 0.5g lateral values, they can be
achieved and so should be expected under certain non-crash
conditions. Therefore we accept the new values.
The Advocates for Highway and Auto Safety (Advocates) believes the
performance criteria are inadequate. Advocates stated:
These proposed limits accord with recognized commercial vehicle
operating tolerances for deceleration and acceleration generally
without a driver losing control of a truck and subsequently rolling
over, yawing, or jackknifing. However, they do not entail a severe
demand on cargo securement in severe maneuvers or in minor crashes
involving forces exceeding these ceilings.
The FMCSA states in this proposed rule that it will not adopt
performance standards ensuring that cargo is retained on or in the
commercial vehicle in collisions, rollovers, or trailer detachments.
Id. It is noteworthy that, although the agency asserts that
"shifting or falling cargo is a contributing factor in less than
one percent of the accidents self-reported by motor carriers," it
only states without corroborating figures that "there is no
evidence that a significant number of secondary injuries or
fatalities are caused by the impact of cargo thrown from a CMV as
the result of an accident, as opposed to the impact of the CMV
itself with the roadway, nearby objects or other vehicles." Id. At
79053, 79054. The FMCSA cannot fulfill its obligation to provide a
documented administrative record in this rulemaking by making this
kind of summary dismissal of the crash consequences of dislodged
cargo. Many anecdotal reports, including newspaper accounts, of
crashes involving deaths and injuries as a result of cargo
detachment have been made over the
years which verify that some of these losses occurred from the
separation of freight from commercial motor vehicles as the result
of severe maneuvers resulting in a collision with other vehicles,
impacts with fixed object hazards, or rollovers. Advocates continues
to believe that the agency has an obligation to establish standards
which ensure the crashworthiness of cargo securement methods in most
collisions or rollovers.
FMCSA Response
The FMCSA believes the proposed performance criteria are
appropriate for adoption in the final rule. The agency agrees with the
ATA that commercial motor vehicles are now capable of achieving the
types of accelerations and decelerations that are being adopted as
performance criteria. While it is true that not every commercial motor
vehicle on the road today is capable of achieving such levels of
performance, there is no practical way to ensure that all loads are
adequately secured unless the rule includes performance criteria that
reflect the latest developments in vehicle design. Neither motor
carriers nor enforcement officials will be able to determine vehicle
performance capabilities. Therefore, rather than adopt a rule with
multiple sets of performance standards to cover a variety of vehicle
types and configurations, the agency is adopting a single set of
performance standards that would ensure that all loads are properly
secured, regardless of the stopping capability or maneuverability of
the vehicle.
The FMCSA disagrees with the Advocates' argument about the need for
ensuring crashworthiness of cargo securement systems. FMCSA finds that
there is no evidence that a significant number of secondary injuries or
fatalities are caused by cargo thrown from a CMV after a collision. We
recognize that there are anecdotal reports and newspaper accounts of
crashes involving deaths and injuries as a result of cargo separating
from a commercial motor vehicle after a collision with fixed objects or
rollovers. However, a rulemaking to establish crashworthiness standards
requires much more justification than anecdotal reports and newspaper
articles.
The agency would have to identify the types of collisions or
rollovers the rulemaking would address, the forces most likely to act
on the articles of cargo during these collisions and rollovers, and the
type of cargo securement systems necessary to prevent the cargo from
separating from the vehicle. The effort required to undertake such a
rulemaking would be costly and require a substantial amount of time to
complete crash testing necessary to demonstrate the adequacy of the
securement systems for the various scenarios. To undertake such a
program with nothing more than anecdotal information as the
justification would be inappropriate.
We continue to believe that there is no practical way to ensure
that all loads are secured to prevent separation from the vehicle after
there is a collision or rollover. The more practical approach for
ensuring highway safety is to focus on crash avoidance-type cargo
securement rules, rather than crashworthiness cargo securement
standards.
Securement of Articles of Cargo in Van-Type Trailers
Numerous commenters expressed concerns about the applicability of
the proposed rules to articles of cargo transported in van-type
trailers. The American Forest and Paper Association stated:
The [preamble to the NPRM] states, "* * *. In the case of van
type trailers, the problem is that some motor carriers do not use
any securement devices to prevent loads from shifting." We believe
that this is a factual statement, however, it can be misleading.
There are many loads that can be safely transported in a van type
vehicle, using correct loading patterns, that require no additional
forms of securement that meet the G-force requirements, excepting
the rearward requirement which is overly restrictive. The loads that
can be loaded, such that they prevent movement to the extent that
affects the vehicle's stability and will not fall off of or out of
the vehicle, are safe.
Weyerhaeuser stated:
[T]he sections of the proposed standard that cover general cargo
(§ 393.100 through 393.120) are confusing and far removed from
the principles of the Model Regulation. These sections appear to
require tiedowns for cargo transported in sided vehicles at all
times. Cargo that will not fall from or out of a vehicle and cargo
that will not shift to the extent that the vehicle's stability is
adversely affected should not be subject to the requirements
concerning tiedowns or other additional securement. The confusion in
these proposed rules could lead to needless litigation based on the
confusion and misinterpretation of the rules by shippers, carriers
and enforcement agencies.
FMCSA Response
The FMCSA agrees with commenters that there are many loads that can
be safely transported in a van type vehicle, using correct loading
patterns, without any additional forms of securement. The agency never
intended that the cargo securement rules require tiedowns on all
articles of cargo transported in van-type trailers, regardless of the
type of cargo and loading arrangement. We have made revisions to the
proposed language in response to the commenters to improve the clarity
of the rule, and to make the final rule more consistent with the model
regulations. The new regulatory language in § 393.106 will ensure a
performance-based approach to securing articles of cargo in van-type
trailers.
Making a Distinction Between Direct and Indirect Tiedowns
Many of commenters indicated that the proposed distinction between
direct and indirect tiedowns would cause confusion if adopted in the
final rule. The Commercial Vehicle Safety Alliance stated:
It is evident to the [CVSA] that, while there is a sound
technical basis for drawing the distinction, there are grave
concerns with [the] prospect of introducing this concept in
regulation. There is a great deal of confusion with the distinction,
in spite of the definitions included in the NPRM. Of particular
concern is the prospect of ensuring that the calculation of
aggregate working load limit of securement systems is carried out
easily and consistently by carriers and enforcement officials.
Advocates stated:
[We] cannot conclusively distinguish between direct and indirect
tiedowns, nor between exactly which parts of a direct tiedown are
governed by one-half its working load or by its full working load.
Although we can envision an indirect tiedown whose character appears
to apply essentially constraining vertical forces on a piece of
cargo against the floor of the vehicle, it is far less clear when a
tiedown can or cannot be regarded as a "direct" tiedown or which
parts are governed by full working load limits and which by one-half
working load limits. Advocates is convinced that many carriers and
drivers will fail to understand the distinctions drawn by the agency
concerning tiedowns and will inappropriately judge a tiedown as
"direct" when in fact it is an indirect tiedown, or will misjudge
the working load limits applying to the different parts of a direct
tiedown, resulting in securement which does not meet the standard
and poses an unacceptable safety risk of dislodgement. As a result,
the calculations which the agency wants carriers to apply in judging
whether the requirements of the proposed regulation have been met,
will be uncertain and often mistaken. The FMCSA needs to evaluate
its descriptions of the different species of tiedowns and perhaps
provide clearer text accompanied by illustrative examples of the
most common ways in which tiedowns are direct and indirect, and
provide guidance on how carriers and drivers can distinguish between
the different parts of direct tiedowns with respect to working load
limits.
FMCSA Response
The FMCSA agrees with the commenters concerns about making the
distinction between direct and indirect tiedowns. While there may be
safety benefits to adopting a final rule that makes such a distinction,
there are also safety risks associated with motor carriers, drivers,
and enforcement officials not fully understanding the difference
between the two types of tiedowns, and underestimating the aggregate
working load limit necessary to prevent the shifting or falling of
cargo. The current requirement that the aggregate working load limit of
any securement systems used to restrain an article or group of articles
be at least one-half times the weight of the article will remain in
place. However, the new rule explains in greater detail how the working
load limits of the individual tiedown devices are added together to
determine the aggregate working load limit, and to account for each
associated connector or attachment mechanism, and for each section of a
tiedown that is attached to an anchor point.
Marking and Rating of Tiedowns and Anchor Points
Mr. John R. Billing, one of the members of the group that drafted
the model regulations, commented on the agency's decision not to
prohibit the use of unmarked tiedowns at this time. Mr. Billing stated:
One of the objectives of the standard is to ensure that
shippers, carriers and drivers use the proper tools and techniques
to secure cargo. When it comes to heavy specialized loads, like
logs, metal coils, billets or plate, concrete pipe, and others,
there should be no room for doubt about the capacity of the tools or
the reliability of the techniques. Most carriers who move such
commodities on a daily basis [use] marked tiedowns and trailers
designed for the loads they carry. Prohibiting use of unmarked
tiedowns will not affect them. It will affect the driver who tries
to take such a load, and has neither the experience nor the proper
equipment. An objective of the standard is to try to prevent the
inexperienced and under-equipped from doing things they should not
be attempting.
On the subject of trailer anchor points, Mr. Billing stated:
This issue is really the same issue as allowing use of unmarked
chain. If a trailer will carry a serious load, secured by marked
chain of serious capacity, then the anchor points need to be strong
enough to resist the loads that the chain will apply to them.
The ATA indicated that it agrees with the concept of having
unmarked tiedowns considered as having a working load limit equal to
the lowest rating for their type of material, as listed in the table of
working load limits included in the rule. The ATA stated:
Ultimately, when all manufacturers mark their products with
their working load limit it will be possible to prohibit unmarked
tiedown devices. The possibility of doing this will arise several
years after the proposed rule goes into effect and manufacturers and
consumers realize the benefits of making and using marked products.
Keen Transport, Inc. expressed concern about the potential impact
the rules would have on motor carriers if FMCSA prohibited the use of
unmarked tiedowns and required rating and marking of anchor points on CMVs.
FMCSA Response
We agree with the principle that it is important to ensure that
shippers, carriers and drivers use the proper tools and techniques to
secure cargo. However, safety-conscious motor carriers and drivers
could achieve compliance with the rules being adopted, and make wise
choices about cargo securement devices, without the mandatory marking
and labeling of tiedowns and anchor points.
We acknowledge that if unmarked tiedowns of varying grades are
readily available, motor carriers could unknowingly violate the current
rule and the new rule by failing to have an adequate number of
securement devices. The consequences for a load such as metal coils
could be fatal to other motorists. While the risks of such an accident
could be greatly minimized by prohibiting motor carriers from using
unmarked tiedowns, there is insufficient information to support such a
requirement at this time.
We continue to believe that before initiating a rulemaking to
prohibit the use of unmarked/unrated cargo securement devices, we would
have to quantify the potential economic burden on the motor carrier
industry and those involved with the manufacture, sale, and
distribution of unmarked securement devices. Since we have no reliable
information on the number of manufacturers, distributors, and retailers
of unmarked tiedowns, the quality or strength of such devices, or the
amount of these tiedowns currently in use by motor carriers and in
retailers' stock, it would be inappropriate to propose a prohibition at
this time. None of the commenters favoring a prohibition on unmarked
tiedowns provided information to support the need for such a
rulemaking.
With regard to the specific issue of anchor points on semitrailers
and trailers, we continue to believe that it is not appropriate to
establish such requirements at this time. Although the Truck Trailer
Manufacturers Association (TTMA) has established a recommended
practice, "RP 47-99, Testing, Rating, and Labeling Platform and Van
Trailers for Cargo Securement Capability" June 1, 1999, concerning
test procedures and general performance specifications for tiedown
anchor points, front-end structures, and sidewall structures, the FMCSA
still does not have any information on the extent to which trailer
manufacturers follow these recommendations. If we determine that a
significant percentage of manufacturers follow the recommended
practices, the agency will consider a rulemaking to incorporate by
reference the TTMA's recommended practice. The requirement would then
apply to trailers manufactured on or after the effective date of the
final rule. We are taking this cautious approach because we must be
certain that newly manufactured trailers satisfy the guidelines in the
recommended practice and that motor carriers would not be prohibited
from using suitable semitrailers and trailers solely on the basis that
the vehicle lacked a rating and marking of the anchor points.
Based on the anecdotal information available to date, the vast
majority of cargo-securement related accidents do not involve problems
with the anchor points. The majority of these accidents appear to
involve an inadequate number of tiedown devices, improper placement of
the tiedowns, or other factors unrelated to the design or performance
capability of the anchor points. Therefore, we continue to believe that
our focus should remain on the actual tiedowns and the way motor
carriers use such devices to secure articles of cargo, rather than on
vehicle-based anchor points.
Responsibilities for Securement of the Contents of Intermodal
Containers
A number of commenters discussed the difficulties that motor
carriers would have if the cargo securement rules required the motor
carrier to ensure that the contents of the intermodal container were
properly secured, regardless of the entity that loaded the container.
The ATA stated:
It is illegal for a motor carrier or driver to tamper with a
seal on an intermodal cargo container that has not been cleared by
the United States Customs [Service]. Many motor carriers are Customs
bonded to receive containers of cargo that have not yet been
approved by agents of the U.S. Customs [Service]. Customs-bonded
motor carriers are responsible for:
- Affixing the red Customs warning cards at the access points of conveyances
(typically vehicle, including intermodal container, doors) (the red cards are in
addition to the existing seal(s)); and
- Assuring the integrity of the seal and the "sanitary" condition of the cargo until
Customs clears its status for delivery to the consignee.
It is not uncommon for intermodal containers of Customs bonded
cargo to either travel hundreds of miles or be stored in the motor
carrier's secured facilities before being cleared by Customs. During
this period, any removal or tampering with the seal(s) or cards
violates U.S. Customs regulations and is punishable by two years
imprisonment and/or a $5,000 fine. Customs regulations do not permit
breaking seals to double-check the loading party's work. The only
regulatory exception is in the case of "* * * a real emergency."
The United States Maritime Alliance Limited and the Carriers
Container Council, Inc. jointly submitted comments. They stated:
While the proposed regulations recognize that commercial motor
vehicle ("CMV") drivers do not have the ability to inspect sealed
containers, it fails to recognize that similarly ocean carriers and
marine terminal operators are not able to inspect cargo transported
in sealed containers. This is a significant omission because it
indicates that the drafters are not considering a global view of
intermodal transportation but instead are taking a narrow view of
the system. Moreover, the exemption for CMV drivers provided under
§ 392.9(b)(4) could be viewed as placing a burden on ocean
carriers or marine terminal operators to perform these inspections
prior to tendering the container to a motor carrier. The proposed
regulations are deficient in providing the same type of unequivocal
exemption for ocean carriers and marine terminal operators.
Advocates believes it is inappropriate to exempt drivers from
inspecting the cargo securement of freight carried in sealed
containers, freight which the driver is not allowed to inspect, or
freight "loaded in a manner that makes inspection of the cargo
impracticable." 65 FR 79055. Advocates stated:
These exemptions will easily become major loopholes for
consignors, brokers, freight forwarders, and motor carriers which
will undoubtedly be exploited especially for legal defense of suits
resulting from crashes with deaths, injuries, and property damage
losses as the direct result of dislodged cargo. The provision
provides ample opportunities for the different parties in the supply
chain to attempt to shift burdens of responsibility for cargo
securement and any subsequent failures.
FMCSA Response
The FMCSA recognizes the concerns commenters have about the
inspection of cargo in intermodal containers. However, the new cargo
securement rules would place no greater responsibility on motor
carriers and drivers than the current rules. Neither the current rules
nor the rules being adopted today include a requirement that drivers
inspect all loads in intermodal containers. Drivers are only required
to inspect loads when practicable. If the driver has the opportunity to
check the securement of the load (for example, the driver is present
while the container is being loaded) then there is no readily apparent
reason why the motor carrier and driver should not be held accountable
for the securement of the load. On the other hand, if there was no
practicable opportunity to inspect the cargo securement system because
the container was sealed by the shipper with strict instructions to the
carrier not to open the container, then the exception under §
392.9(b)(4) would be applicable, and the driver would not be required
to inspect the cargo securement system.
The FMCSA encourages U.S-based motor carriers to work with domestic
and international shippers to ensure that loads are properly secured.
Regardless of whether the FMCSRs are applicable to shippers, they have
a role in ensuring highway safety when they load containers for
transport on the highway, and seal the containers, for whatever reason.
Periodic Inspection of Cargo Securement Systems by Driver
The California Trucking Association (CTA) recommends that the
requirement for drivers to stop and inspect the articles of cargo and
the securement devices be revised to be product-specific. The CTA
believes that each motor carrier should develop a policy to govern load
securement and inspection procedures based on their knowledge and
expertise in transporting various commodities. The written policy would
then be made available to enforcement personnel during a compliance
review.
The Maryland Department of Transportation (MDOT) opposed increasing
the mileage at which a driver must inspect the load after beginning a
trip from 25 miles to 50 miles. MDOT indicated that there have been a
number of incidents where the load came loose and caused traffic tie-
ups and in some cases collisions which have resulted in serious injury
or death.
Mr. Gary Volkman disagreed with the requirement for en route
inspections of the cargo securement system. Mr. Volkman stated:
Consider that currently the hazardous materials regulations
already have a rule that every 2 hours or 100 miles the driver of a
placarded load must stop and do a tire check. Why would we confuse
the issues in a different regulation that will require the driver to
stop in the first 50 miles and conduct a tie down inspection? As a
dry van carrier it is entirely feasible that we may have a situation
wherein we provide transportation for a partial load of metal coils
(eye vertical) and hazardous materials that require placards. Which
rule should we follow? Or, would we stop every 50 miles for the
entire trip?
FMCSA Response
The FMCSA disagrees with the commenters' views about the periodic
inspection of the cargo securement system. We continue to believe that
it is necessary for drivers to inspect cargo securement systems because
the amount of tension in the tiedowns assemblies may decrease
significantly after the driver begins operating the vehicle. Vibrations
may cause the articles of cargo to shift slightly such that the
tiedowns need to be readjusted to ensure that the articles do not fall
from the vehicle, or shift to the extent that the vehicle's stability
is adversely affected. We do not have sufficient information to develop
a periodic inspection standard that is commodity-specific as one
commenter suggested, but there is sufficient basis for retaining a
general rule for all drivers to periodically check the condition of the
cargo securement system.
With regard to comments about the frequency of periodic
inspections, we recognize the differences between the minimum
requirements for checking the condition of the cargo securement system,
and checking the tires in accordance with § 397.17. The
differences, however, do not prevent drivers and motor carriers from
complying with either the cargo securement rules, or the tire
inspection rule.
On July 16, 2002 (67 FR 46624), the agency proposed eliminating the
requirement for periodic tire checks. The agency proposed that tires be
checked at the beginning of each trip and each time the vehicle is
parked. If the proposal is adopted as a final rule, the differences
between the inspection intervals would be a moot issue.
With regard to checking the cargo securement system, we are
providing drivers with three options: whenever the driver makes a
change in the duty status; or after the vehicle has been driven for 3
hours; or after the vehicle has been driven for 150 miles, whichever
occurs first. Pending the completion of the rulemaking cited above,
§ 397.17 currently requires drivers of motor vehicles transporting
hazardous material, and equipped with dual tires on any axle, to stop
the vehicle at least once every 2 hours or 100 miles of travel,
whichever occurs first, to inspect the tires. It is clear that §
397.17 requires more frequent stops to ensure the proper operating
condition of
the tires. It is also clear that stopping more frequently than the
intervals prescribed by § 392.9 is not prohibited. Therefore, for
drivers transporting hazardous materials, compliance with § §
392.9 and 397.17 could be achieved by simply following the intervals
specified in § 397.17. We do not believe it is necessary that both
rules use the same intervals.
In response to MDOT, the proposal to change the initial en route
inspection from 25 miles to 50 miles is based on the model regulation
developed by the harmonization committee and discussed in the public
meetings described above. Given the extensive knowledge and experience
of the government and industry representatives, we believe it is
appropriate to adopt the 50-mile criterion. In doing so, we are
allowing drivers the flexibility to perform the initial en route
inspection within the first 25 miles after beginning a trip, or if the
driver believes it is more appropriate based on the nature of the
articles of cargo and the condition of the roads, to inspect the cargo
within the first 50 miles after beginning a trip. We are not aware of
any data or information that would suggest that allowing up to 25
additional miles for the first en route inspection would reduce the
level of safety of operation of commercial motor vehicles.
Special Rule for Special Purpose Vehicles
Silk Road Transport indicated that the current cargo securement
rules provide an option for achieving proper securement by means other
than those specified in the rules. Silk Road Transport believes
proposed rules should be revised to include the same level of
flexibility for unique cargo such as railcars, airplane wings, and
other unique cargo.
FMCSA Response
We agree with Silk Road Transport's comments. The final rule
retains what is currently codified under § 393.100(d), the special
rule for special-purpose vehicles, in § 393.110(e).
We have always understood that there are articles of cargo that
require special means of loading onto commercial motor vehicles and
recognized that the general cargo securement rules may not be
appropriate when applied to the securement systems used for these
articles. In many cases, if the general rules are applied to these
loads, the articles of cargo may be damaged during transport to the
extent that they could no longer be used for their intended purposes.
Motor carriers are capable of ensuring that specialty articles, such as
those described by Silk Road Transport, are adequately secured in a
manner consistent with the performance requirements of this rule,
without being subjected to detailed rules that could result in damage
to the cargo. The rules have allowed motor carriers flexibility for
special-purpose vehicles for many years and there is no readily
apparent reason to believe that the safety of operation of commercial
motor vehicles would be reduced if we continue to allow the flexibility
for special-purpose vehicles.
National Association of Chain Manufacturers' (NACM) Publication
The ATA believes the NACM is inconsistent in its use of safety
factors. The ATA indicated that grade 4 chain has a safety factor of 3
(the ratio of the breaking strength to the working load limit is 3) but
grades 7, 8, and 10 have a safety factor of 4. The ATA stated:
Past regulatory practice and industry experience show that,
employed in conjunction with the stipulations in the FMCSRs, a
safety factor of 3 is appropriate for chain that is used to secure
cargo. Currently Grade 4 chain and webbing both use a safety factor
of 3. So, the assumption made to ensure that changing from a rule
based on static breaking strength to one based on working load limit
would not require more tie-downs, succeeded for them. However, as
noted, NACM assigns chain grades 7, 8, and 10 a safety factor of 4.
Hence these products are now penalized in that they can not be
employed as they were prior to 1993, when all chain used for load
securement was selected on the basis of its static breaking
strength.
The ATA recommends that all load securement chain be assigned a
safety factor of three.
The ATA believes this would keep the rule from being overly
conservative and avoid penalizing motor carriers for using a superior
product.
The Specialized Carriers and Rigging Association (SC&RA) also
expressed concerns about the NACM's safety factors. SC&RA indicated
that it joined the ATA in requesting the NACM change to a cargo
securement safety factor of 3, but the NACM rejected the request for
fear of confusion caused by having one safety factor for loading and
another for lifting.
FMCSA Response
The FMCSA appreciates the concerns commenters expressed about
NACM's safety factors for determining working load limits for various
grades of chain. However, the agency does not believe this rulemaking
is the forum for resolving the issue.
The agency first adopted the use of working load limits on July 6,
1994 (59 FR 34712). The final rule incorporated by reference the NACM's
specifications. There appeared to be support for relying on the NACM's
expertise in establishing minimum working load limits for chain that
meets the association's manufacturing specifications. There is no
indication from the commenters that the technical expertise represented
by the association's publication is any less credible than it was in
1994.
We believe it is appropriate to defer judgment about working load
limits for chains to reputable chain manufacturers and their
association. While the NACM's rationale for using different safety
factors for different grades of chain is not entirely clear, the level
of knowledge and expertise represented by the association is such that
the agency would rather adopt their working load limits, even if they
may appear to be overly conservative. There is no indication that
adopting the NACM's most recent working load limits would have an
adverse impact on safety, or result in unnecessarily burdensome
requirements when incorporated by reference.
The agency encourages all interested parties to continue dialogue
with the NACM to achieve a common understanding of the working load
limits necessary for ensuring highway safety. If the dialogue results
in the NACM revising its safety factors, the FMCSA will consider
incorporating by reference the new NACM publication.
Logs
Several commenters specializing in the transportation of logs
expressed concern that the proposed applicability statement for the
rules concerning the securement of logs was inconsistent with the model
regulations. The commenters also identified regulatory language in the
applicability paragraph that was no longer necessary if the agency made
the requirements more consistent with the model regulation.
Specifically, the commenters indicated that the applicability paragraph
in the model regulations included an exception for logs that are
unitized by banding or other comparable means. However, the agency's
proposal would have imposed the requirements on banded loads rather
than to allow them to be transported under the general rules for
securement.
The commenters indicated that the statement about the rules
applying to "all other logs" and the sentence explaining that a load
comprised of shortwood and longwood must be treated as shortwood were
unnecessary.
FMCSA Response
The FMCSA agrees with the commenters. After carefully reviewing the
model regulations, the agency recognizes the inconsistency between its
NPRM and the model standards. The regulatory language for the final
rule has been revised accordingly.
Concrete Pipe
The SC&RA and the American Concrete Pipe Association (ACPA)
expressed concern about the proposed requirement that two longitudinal
cables (running from the front of the trailer to the rear of the
trailer) be used on certain loads of concrete pipe. The SCRA stated:
Current practices within the industry have proven to be safe and
effective for the last 45 years. These practices typically include a
single 2 speed winch mounted to a heavy duty stand in the front of
the trailer. On the winch a [\1/2\-inch] cable goes over the load
and attaches to the bed of the rear of the trailer. After the cable
is in place over the load and tightened, the low gear side of the
winch is engaged. This process not only forces downward pressure on
the bed but it also forces the pipe together. The end result is a
tighter bundle of product on the trailer bed. This method has been
demonstrated to the enforcement community and has been deemed to be
a safe and practical means of transporting pipe. SC&RA proposes
flexibility in this area that would either require two [\3/8\-inch]
cables or a single [\1/2\-inch] cable with a [two-speed] winch
mount.
FMCSA Response
We agree with the comments from ACPA and SC& RA. The most important
aspect of the requirement for the longitudinal tiedown is the working
load limit. Either one \1/2\-inch, or two \3/8\-inch cables or chains
with the appropriate working load limit(s) would ensure safety. We
believe it is possible to allow flexibility without reducing safety so
the final rule provides increased flexibility for longitudinal
tiedowns.
Flattened Cars
The Institute of Scrap Recycling Industries, Inc. (ISRI) expressed
concern about the proposed requirements for securing flattened cars.
ISRI stated:
Companies that process and load flattened and crushed cars for
transport to recycling facilities must follow stringent practices to
prevent loose material from falling from these loads. There are
several different ways by which junked cars are flattened or
crushed. Each of these practices includes processing controls and
numerous inspections of the car to detect and remove loose material
that could fall from the load during transport. A secured load of
property processed and loaded flattened or crushed cars can be
visually inspected by any law enforcement officer or transportation
official to ascertain that the load will not shed loose material
onto the roadway during transport.
Hugo Neu Corporation submitted comments in opposition to those of
ISRI. Hugo Neu stated:
We are aware of the fact that a trade association of which we
are a member, ISRI, along with the Steel Manufacturers Association
(SMA), has commented on the proposed rules and prepared a
presentation which purports to demonstrate that the proposed
containment barriers are not needed to prevent the shifting and
falling of cargo as it relates to flattened cars. Those comments are
directed at attempting to mitigate the proposed standards requiring
either four or three-sided trailers for transport of flattened cars
with other containment requirements. ISRI and SMA have taken the
position that these cars can be safety transported on a flatbed
without walls. We strongly disagree.
FMCSA Response
The FMCSA recognizes the concerns expressed by ISRI and the Steel
Manufacturers Association. However, we believe the proposed rules
concerning the securement of flattened cars should be adopted without
change. While the specific practices for flattening cars ISRI mentioned
may greatly reduce the likelihood that loose pieces will fall from the
commercial motor vehicle transporting the flattened cars, we are not
convinced that the flattening process alone would ensure transportation
safety.
This subject was debated extensively during the public meetings
concerning the development of the model regulations. None of the
information presented by ISRI or the transporters of flattened cars
during those public meetings was convincing to the Federal, State and
Provincial government representatives present, or the other industry
groups represented. Consequently the model regulations included the
language that FMCSA proposed.
We continue to doubt that the degree to which cars are compressed
ensures that none of the components will fall from the cars. The cars
are compressed to a fraction of their original height to make it easier
to transport them to recycling facilities. Most of the parts would be
pressed together but some items such as door handles and mirrors may
remain loosely attached to the vehicle. We believe that having loose
parts is inevitable given that the process of compressing the car will
undoubtedly do more damage to the car than the events that resulted in
the car being turned over for recycling.
A visual inspection, even by drivers or enforcement personnel, is
not sufficient for making a determination whether portions of the load
will vibrate or shake loose while the vehicle is traveling on public
roads. Flattened cars are usually transported on flatbed trailers, and
stacked in such a manner that neither a driver nor an inspector could
determine with any degree of certainty whether there are loose items
without climbing the stack of flattened cars to physically examine the
load. We believe such an exercise would not effectively ensure safety
because of the potential that a loose component could be missed during
the inspection, and because of the risks to drivers and enforcement
personnel associated with climbing stacks of flattened cars.
There is a need for practical requirements for ensuring that
commercial motor vehicles are properly equipped to prevent loose items
that separate from the flattened car during transport from falling onto
the roadway, without relying on risky inspection procedures for drivers
or enforcement personnel. The rules being adopted today provide
practical standards that would ensure that loose components on the
flattened cars do not fall from the transport vehicle.
Visibility Requirements for Drivers of Self-Steer Dollies
The ATA requested that § 392.9(a)(3) include an exception for
drivers of self-steer dollies. These dollies are typically a set of
axles at the rear of a very long load. The cargo being transported
between the truck tractor (or towing unit) and the dolly obscures the
dolly driver's view because the driver is positioned under the load.
The ATA argues that because the driver seated in the dolly is in
contact with the driver in the truck tractor, the safety of the
operation is not compromised by the fact that the load obscures the
view of the dolly operator.
FMCSA Response
FMCSA agrees with the ATA recommendation. Although it is important
for CMV drivers to be capable of seeing other vehicles in the vicinity
of the CMV, the agency does not believe safety would be adversely
affected by cargo obscuring the dolly driver's view directly in front
of him or her. Since the driver with primary control for the operation
of the combination vehicle is in the truck tractor, and the driver in
the truck tractor and dolly are able to communicate, there is no reason
to be that safety would compromised. This is especially the case given
that the commercial vehicle would most likely have escort vehicles.
Discussion of the Final Rule
The rules being adopted are based on the North American Cargo
Securement Standard Model Regulations. The agency is replacing its
current cargo securement-related regulations under § 392.9,
concerning driver inspection of cargo and cargo securement systems, and
§ § 393.100 through 393.106 concerning cargo securement methods.
The agency is also amending § 393.5 to adopt definitions of
aggregate working load limit; anchor point; article of cargo; bell pipe
concrete; blocking; bracing; frame vehicle; friction mat; hook-lift
container; integral securement system; longwood; rail vehicle;
shortwood; sided vehicle; tiedown; tractor-pole trailer; void filler;
well; and working load limit. The agency is adopting these definitions
to ensure a common understanding of the terminology used in the
regulations. The definitions are based on those in the model
regulations.
The FMCSA notes that there are numerous other definitions in the
model regulations. However, the agency continues to believe that it is
not necessary to adopt many of those definitions because the terms are
already defined in the FMCSRs, even though with slightly different
wording.
Inspection of Cargo and Securement Devices
The FMCSA is revising § 392.9 to require that drivers inspect
the cargo and the securement devices within the first 50 miles (80.4
kilometers). Currently, § 392.9 requires inspection within the
first 25 miles (40.2 kilometers). The FMCSA continues to believe that
the research concerning the effects of vibration on cargo securement
devices and changes in the tension of indirect tiedowns, suggests that
conditions of the securement system which would require the driver to
make readjustments are more likely to occur after the vehicle has been
driven between 25 and 50 miles, rather than 0 to 25 miles. This is
because traveling beyond 25 miles would subject the vehicle to more
vibration and forces over a longer period of time. However, the agency
believes the maximum distance the vehicle could be operated safely
prior to the inspection of the tiedowns should not exceed 50 miles. All
other requirements currently contained in § 392.9 would remain the
same.
Applicability of the Final Rule
Section 393.100 establishes the applicability of the cargo
securement rules under subpart I of part 393. The applicability of the
final rule is the same as the existing rule, covering all cargo-
carrying commercial motor vehicles (as defined in 49 CFR 390.5)
operated in interstate commerce.
Performance Criteria
The agency is adopting new performance requirements concerning the
longitudinal, lateral, and vertical accelerations that cargo securement
systems must withstand to satisfy the rules. Acceleration is the rate
at which the speed or velocity of an object increases and deceleration
is the rate at which the velocity decreases. Accelerations are commonly
reported as a proportion of the acceleration due to gravity (g). This
acceleration is 9.81 meters/second/second (32.3 feet/second/second),
which means that the velocity of an object dropped from a high
elevation increases by 9.81 meters/second (32.3 feet/second). The FMCSA
requires that cargo securement systems be capable of withstanding the
following three forces, applied separately:
(1) 0.8 g deceleration in the forward direction;
(2) 0.5 g acceleration in the rearward direction; and
(3) 0.5 g acceleration in a lateral direction.
The values chosen are based on the researchers' analysis of
previous studies concerning commercial motor vehicle performance. The
analysis indicated that the highest deceleration likely for an empty or
lightly loaded vehicle with an antilock brake system, all brakes
properly adjusted, and warmed to provide optimal braking performance,
is in the range of 0.8-0.85 g. However, a typical loaded vehicle would
not be expected to achieve a deceleration greater than 0.6 g on a dry
road.
The typical lateral acceleration while driving a curve or ramp at
the posted advisory speed is in the range 0.05-0.17 g. Loaded vehicles
with a high center of gravity roll over at a lateral acceleration above
0.35 g. Lightly loaded vehicles, or heavily loaded vehicles with a
lower center of gravity, may withstand lateral acceleration forces
greater than 0.50 g. We continue to believe that the information
presented by the researchers supports the use of the decelerations
listed above.
Generally, motor carriers are not required to conduct testing of
cargo securement systems to determine compliance with the performance
requirement. Section 393.102 explicitly states that cargo that is
immobilized or secured in accordance with general rules regarding cargo
securement systems, or the commodity-specific rules, are considered to
meet the performance criteria.
Safe and Proper Working Condition for Tiedowns
The final rule includes a requirement that all vehicle structures,
systems, parts, and components used to secure cargo must be in proper
working order when used to perform that function with no damaged or
weakened components that could adversely effect their performance. This
requirement differs from the proposed rule in that the defect or
deficiency must be capable of having an adverse effect on the
performance of the cargo securement system before the prohibition would
apply. The proposal would have prohibited the use of cargo securement
devices with any visible damage, including but not limited to, cracks,
cuts and deformation, regardless of whether there was any reason to
believe there would be a safety problem. We carefully considered the
numerous comments on the proposed language, and have made appropriate
revision to the rule.
Standards for Tiedowns
The current FMCSRs incorporate by reference manufacturing standards
for certain types of tiedowns including steel strapping, chain,
synthetic webbing, wire rope, and cordage. The FMCSA is updating its
reference to the National Association of Chain Manufacturers' (NACM)
Welded Steel Chain Specifications, June 15, 1990, edition to
incorporate by reference the November 15, 1999, version. The agency
notes that some of the working load limit values in the 1999 version
differ slightly from those in the 1990 version. Also, the 1999 version
includes working load limits for a new grade of alloy chain, grade 100.
The agency is also changing its reference for synthetic webbing
from the 1991 edition to the 1998 edition of the Web Sling and Tiedown
Association's publication. Generally, the working load limits are the
same as those in the 1991 publication.
Combining Requirements for Load Binders, Attachment Points and Winches
The agency had proposed that § § 393.112, 393.114, and
393.116 provide requirements for load binders and associated hardware,
attachment points on commercial motor vehicles for tiedowns, and
winches of fastening devices, respectively. Upon careful review of the
proposed requirements and in response to numerous comments about the
apparent redundancy with the general requirements under
§ § 393.104(c), and 393.106(d), the final rule does not include
the proposed wording that appeared in those sections. The remaining
sections of the final rule have been renumbered accordingly.
Securement of Intermodal Containers and the Contents of Such Containers
The FMCSA is adopting commodity-specific requirements which would
apply to intermodal cargo containers. The requirements being adopted
today includes a provision allowing motor carriers the option of
attaching tiedowns to the upper corners of loaded containers. The
proposal would have required that all tiedowns be attached to the lower
corners of the loaded containers. The agency agreed with commenters
concerns about the need for flexibility in securing the containers.
The agency is including in the final rule a provision concerning
the transportation of empty intermodal containers. Upon careful review
of the model regulations and previously issued regulatory guidance, the
agency determined that a less stringent provision concerning the
securement of empty containers should be included. Empty intermodal
containers have been transported safely on vehicles other than
container chassis for many years. Frequently, the container(s) may
overhand the front or rear of the trailer. However, as long the
containers are properly secured, motor carriers have been allowed to
transport them in this manner. Since the empty containers are a
fraction of the weight of fully laden containers, the securement
methods needed to ensure safety are not as extensive as with loaded
containers. The new language concerning empty containers is provided in
§ 393.126(d).
The agency is also adopting specific rules for metal coils
transported in intermodal cargo containers. The agency does not believe
the rules will create difficulties for motor carriers or shippers
offering loaded containers for transportation.
For example, § 392.9(a) requires drivers to assure themselves
that cargo is properly distributed and adequately secured before
operating a commercial motor vehicle. Section 392.9(b) requires drivers
to examine the cargo and load-securing devices during the trip and make
adjustments when necessary to maintain the security of the load.
Section 392.9(b) provides an exception for driver's of sealed
commercial motor vehicles who have been ordered not to open the vehicle
to inspect its cargo, or to drivers of vehicles loaded in a manner that
makes inspection of the cargo impracticable. The requirements of §
392.9 when combined with the explicit requirements concerning the
securement of the contents inside intermodal containers would make it
clear that each motor carrier and each driver must ensure that such
loads are properly secured, when it is practicable to inspect the
condition of loading.
Front End Structures on CMVs
Although the model regulations do not include a provision
concerning front end structures (i.e., headerboards) used as part of a
cargo securement system, the FMCSA is retaining its current front-end
structure rules for CMVs. The FMCSA is, however, revising its current
rule (§ 393.106) by changing the applicability to cover CMVs
transporting cargo that is in contact with the front-end structure of
the vehicle. By contrast, the current rule establishes requirements
for, and requires that vehicles be equipped with, front-end structures
irrespective of whether the device is being used as part of a cargo
securement system.
The current rules emphasize occupant protection rather than cargo
securement. They assume that cargo that is not braced against a front-
end structure could shift forward, and the structure would prevent the
load from penetrating the driver's compartment. While this concept may
have merit for certain types of cargo, we continue to believe that the
best way to ensure driver safety is to have tougher standards to
prevent the cargo from shifting forward. For example, if the vehicle is
transporting metal coils, once the load begins to move forward, it is
unlikely that a front-end structure would save the driver. However, by
establishing new rules to better ensure that the coils do not move
forward, we are more likely to accomplish the safety objective of
saving lives and preventing injuries.
Specific Securement Requirements by Commodity Type
The FMCSA is adopting detailed requirements for the securement of
the following commodities: logs; dressed lumber; metal coils; paper
rolls; concrete pipe; intermodal containers; automobiles, light trucks
and vans; heavy vehicles, equipment and machinery; flattened or crushed
vehicles; roll-on/roll-off containers; and large boulders. During
public meetings concerning the development of the model regulations,
participants said that these commodities cause the most disagreement
between industry and enforcement agencies as to what is required for
proper securement.
The FMCSA notes that each of these commodities must be properly
secured under the current performance-based cargo securement rules.
However, with the exception of metal coils, there is no detailed
guidance for motor carriers and enforcement officials. We continue to
believe that accidents may be prevented through the establishment of
much more detailed rules that clearly spell out what is required to
achieve the desired level of safety. The rules would eliminate most of
the confusion about what constitutes an acceptable cargo securement
system.
The FMCSA notes that the requirements for the securement of
concrete pipe being adopted today does not include the provision
requiring that ice be removed from pipe before it is loaded. The agency
no longer believes that provision is necessary because most shipments
of concrete pipe would not be covered with ice, and in those cases
where ice was present, there may be no practicable means of deicing the
pipe prior to it being loaded onto a CMV. Most shippers of concrete
pipe would ensure to the greatest extent practicable that the pipe is
not covered with ice immediately prior to transport. For those cases in
which exposure to ice could not be avoided, motor carriers are strongly
encouraged to take appropriate actions to ensure that load is properly
secured before transport. However, the agency does not believe it is
necessary to make the mere presence of any amount of ice on a concrete
pipe a violation of the FMCSRs.
Use of Unmarked Tiedowns
The final rule does not include a prohibition on the use of
unmarked tiedown devices. Although many of the participants in the
harmonization group meetings and numerous commenters to the NPRM argue
that the Federal cargo securement rules should include such a
prohibition, we do not believe it is appropriate to establish such a
rule at this time.
Before establishing a prohibition on the use of unmarked tiedowns,
the FMCSA would have to quantify the potential economic burden on the
motor carrier industry and those involved with the manufacture, sale,
and distribution of unmarked securement devices. Since the FMCSA has no
reliable information on the number of manufacturers, distributors, and
retailers of unmarked tiedowns, the quality or strength of such
devices, or the amount of these tiedowns currently in use by motor
carriers and in retailers' stock, it would be inappropriate to prohibit
these devices. However, in view of the potential safety hazards of
motor carriers misidentifying unmarked tiedowns, the final rule
includes a provision that unmarked welded steel
chain be considered to have a working load limit equal to that of grade
30 proof coil, and other types of unmarked tiedowns be considered to
have a working load limit equal to the lowest rating for that type in
the table of working load limits.
Rating and Marking of Anchor Points
The final rule does not include a requirement that anchor points be
rated and marked. While we continue to agree with the basic principle
of rating and marking of anchor points, there is insufficient data to
support establishing manufacturing standards at this time. As we
indicated above, we will continue to work with the TTMA and other
private sector groups to gather information about the extent to which
trailer manufacturers follow the TTMA's recommended practice concerning
rating and marking of anchor points. As we gather this information, we
will consider the need for any future standards development work in
this area.
Development of Training Program
The agencies and organizations participating in the North American
Cargo Securement Program have established a Training and Education
Committee responsible for developing a training package for motor
carriers and enforcement officials to ensure that the model regulations
now being considered for adoption throughout North America are
understood by all affected parties. The training package will cover all
of the requirements in the model regulations, and to some extent, best
practices for securing cargo. The training materials may be used to
help motor carriers better understand how to properly secure different
types of cargo and to ensure they are aware of what is required.
Enforcement officials could also use the training material to ensure
that they have an understanding of the new requirements. It is
anticipated that the training materials will be completed and available
to the public from the FMCSA before the deadline for compliance with
the final rule. The FMCSA will post publications on its website to
assist individuals with Internet access. The FMCSA will also consider
making copies of the training materials available through the U.S.
Department of Commerce's National Technical Information Service.
Compliance Date
The FMCSA has chosen January 1, 2004, as the deadline for motor
carriers to ensure compliance with the final rule. The FMCSA believes
this time frame is appropriate and will provide motor carriers and
enforcement officials sufficient time to prepare for the transition
from the current requirements to rules compatible with the model
regulations.
Rulemaking Analysis and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or within
the meaning of Department of Transportation regulatory policies and
procedures. Neither the level of public or Congressional interest, nor
the costs of implementing the final rule are such that the rule would
be considered significant. Based on the information currently
available, the cost to the motor carrier industry for compliance with
the rules, and the cost to the States for adopting and enforcing the
new requirements will be significantly less than the $100,000,000
threshold used as one of the factors in determining the significance of
a rulemaking.
This rule requires that motor carriers operating in interstate
commerce comply with improved cargo securement regulations based on the
following: (1) The results of a multi-year comprehensive research
program to evaluate current U.S. and Canadian cargo securement
regulations; (2) the motor carrier industry's best practices; and (3)
recommendations presented during a series of public meetings.
Generally, the revision requires motor carriers to change the way cargo
securement devices are used to prevent certain articles from shifting
on or within, or falling from, CMVs, and how calculations are done. In
some instances, the changes require motor carriers to increase the
number of tiedown devices used to secure certain types of cargoes.
The agency believes the vast majority of motor carriers have a
sufficient supply of tiedown devices on board their vehicles at all
times. The final rule allows motor carriers to continue using those
tiedowns provided the devices meet the applicable manufacturing
standards currently incorporated by reference in § 393.102(b).
Most of the costs associated with this rulemaking are believed to
be associated with the training of drivers, motor carrier employees
responsible for loading CMVs, and enforcement officials to ensure that
they understand the requirements being adopted. However, this cost
should be minimal because the commodity-specific rules have been
drafted to enable the reader to use the rules as step-by-step
instructions for securing the commodity being transported.
With regard to costs to the States to train inspectors, the agency
is working with its State and Provincial partners to develop training
materials that could be used to minimize the costs for the enforcement
community and the motor carrier industry. For States participating in
the Motor Carrier Safety Assistance Program (MCSAP), training costs are
considered an eligible expense. This means the States could receive
Federal funds to help cover the costs of training their roadside
inspectors. Therefore, based upon the information above, the agency
estimates that the economic impact associated with this rulemaking
action would be minimal and a full regulatory evaluation is not
necessary.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has considered the effects of this regulatory action on
small entities and determined that this rule would affect a substantial
number of small entities but would not have a significant impact on
them.
Generally, the final rule requires motor carriers to change the way
cargo securement devices are used to prevent certain articles from
shifting on or within, or falling from, CMVs. In some instances, the
rule requires motor carriers to increase the number of tiedown devices
used to secure certain types of cargoes. However, the rule does not
require motor carriers to purchase new equipment.
The FMCSA finds that the vast majority of motor carriers have a
sufficient supply of tiedown devices on board their vehicles at all
times.
The agency believes the number of tiedowns on board and the
strength of these devices are usually sufficient to secure whatever
types of loads the motor carrier is transporting, or intends to
transport. As we stated in the preamble to the notice of proposed
rulemaking, the cargo securement problems typically observed during
roadside inspections of flatbed trailers are ones in which motor
carriers do not use enough of the tiedowns that they already have on
board their vehicles. In the case of van type trailers, the problem is
that some motor carriers do not use any securement devices to prevent
loads from shifting. Therefore, FMCSA believes that motor carriers
already have all the hardware they need to comply with the proposed
changes. The challenge for motor carriers is to learn how to properly
use tiedown devices to
further reduce the occurrence of cargo securement-related accidents.
Motor carriers are currently required to use tiedown devices that
meet applicable manufacturing standards incorporated by reference in
§ 393.102(b). Under the final rule, the agency is continuing to
require motor carriers to use only tiedown devices that meet
manufacturing standards currently specified § 393.102(b). If the
tiedowns are in safe and proper condition, and meet the applicable
manufacturing standards, use of the devices is not prohibited by this
rule.
As indicated above, additional costs may be associated with
training of motor carrier employees responsible for loading CMVs,
drivers, and enforcement officials to ensure that they understand the
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