[Federal Register: December 31, 2003 (Volume 68, Number 250)]
[Proposed Rules]
[Page 75478-75482]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de03-38]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 390 and 396
[Docket No. FMCSA-98-3656]
RIN 2126-AA38
General Requirements; Inspection, Repair, and Maintenance;
Intermodal Container Chassis and Trailers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Withdrawal of advance notice of proposed rulemaking (ANPRM).
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SUMMARY: FMCSA withdraws its February 17, 1999, ANPRM relating to
responsibilities for the inspection, repair, and maintenance of
intermodal container chassis and trailers. After reviewing the public
comments received in response to the ANPRM, transcripts from three
listening sessions held in November 1999, comments submitted in
response to the agency's November 29, 2002, notice of intent to
consider a negotiated rulemaking, and the neutral convenor's final
report, the agency has determined that it would be inappropriate to
move forward with a Notice of Proposed Rulemaking at this time. FMCSA
believes there is insufficient data concerning the relationship between
the mechanical condition of intermodal container chassis and trailers,
and commercial motor vehicle accidents to quantify the extent to which
the condition of container chassis or trailers contributed, in whole or
in part, to accidents. Furthermore, the neutral convenor hired by the
agency to interview individuals or organizations that might represent
interests that are most likely to be substantially affected by a
rulemaking concerning this subject, has concluded that a negotiated
rulemaking process seeking to produce a set of consensus
recommendations to FMCSA should not be undertaken. Therefore, no
further consideration will be given to conducting a negotiated
rulemaking.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Chief of the
Vehicle and Roadside Operations Division (MC-PSV), (202) 366-4009,
Federal Motor Carrier Safety Administration, 400
[[Page 75479]]
Seventh Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION: The electronic file of this document is
available from the DOT public docket at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov, docket
number FMCSA-98-3656. It is also available from FMCSA's Web site at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fmcsa.dot.gov/rules_regulations/rules_development_and_administration/fmcsr/fmcsrguide.htm; or the Federal Register Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gpoaccess.gov. If you do not have
ou do not have
access to the Internet, you may request a copy of this document from
the person identified above under FOR FURTHER INFORMATION CONTACT. You
must identify the title and docket number of the document.
Docket: For access to the docket to read background documents or
comments received, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
Background
On February 17, 1999 (64 FR 7849), the Federal Highway
Administration (FHWA) published an ANPRM to consider whether 49 CFR
parts 390 and 396 of the Federal Motor Carrier Safety Regulations
(FMCSRs) should be amended to shift the responsibility for ensuring
that intermodal container chassis and trailers comply with the
applicable motor carrier safety regulations from motor carriers
operating such vehicles, to entities (ocean carriers, rail carriers,
intermodal terminal operators, ports) that offer these vehicles for
transportation in interstate commerce. This action was in response to a
petition for rulemaking filed by the American Trucking Associations,
Inc. (ATA) and the ATA Intermodal Conference (the Petitioners). The
Petitioners argued motor carriers have no opportunity to maintain this
equipment and that the parties who do have the opportunity often fail
to do so. The Petitioners requested the FMCSRs be amended to require
rail carriers, ocean carriers, and other entities that offer intermodal
container chassis for transportation in interstate commerce to ensure
chassis meet applicable Federal safety requirements.
Discussion of ANPRM and Listening Session Comments
The agency received 104 comments from 71 interested parties in
response to the ANPRM and 102 individuals spoke at one or more of the
three listening sessions. Most of the commenters to the docket and
speakers during the listening session were motor carriers, ocean
carriers, rail carriers or terminal operators. The following table
identifies participants by industry sector.
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Industry sector Docket Chicago New York Seattle
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Motor Carriers/Motor Carrier Industry....................... 39 15 16 6
Port/Marine Terminal/Ocean Carrier/Representatives.......... 24 8 12 12
Railroad/Representatives.................................... 2 11 8 6
Shipper..................................................... 1 ........... ........... ...........
State Agency................................................ 1 ........... ........... ...........
Intermodal Association of North America (IANA)/Consultant/ 3 2 3 1
Other......................................................
Maritime Union Members...................................... 1 ........... ........... 2
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Total................................................... 71 36 39 27
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Stakeholder opinions about potential resolutions were largely polarized
into one of two basic positions:
[sbull] Motor carriers agreed with Petitioners and expressed
concerns about the lack of attention to chassis maintenance on the part
of the equipment providers.
[sbull] Terminal operators and equipment providers were opposed to
amending the FMCSRs to shift responsibility from motor carriers to
equipment providers.
The major issues raised and stakeholder perspectives are discussed
below.
Lack of Data To Determine Safety Impacts Current Maintenance Practices
While the Petitioners and those in favor of the petition argued the
lack of adequate maintenance by equipment providers is a safety issue,
there appeared to be no data available to support this assertion. There
was a lack of data presented in both the docket submissions and in the
information offered at the listening sessions. The available data show
a significant number of chassis dispatched from intermodal terminals
are later shown to have safety defects during roadside inspection, but
the relationship between these defects and accidents has not been
substantiated. Overall, most of the information presented during the
public meetings was anecdotal.
The responses to the questions presented in the ANPRM and questions
asked by U.S. Department of Transportation representatives (Office of
the Secretary, Office of Motor Carrier Safety (prior to the
establishment of FMCSA), FHWA, Federal Railroad Administration,
Maritime Administration) during the listening sessions produced no
meaningful data to either define the problem or evaluate potential
solutions. Commenters to the docket and participants in the meetings
appeared to be in agreement that better data should be developed before
a decision is made by the agency to pursue this issue.
Adequacy of Chassis Maintenance and Inspection
The comments submitted to the docket and the remarks of
participants in the public meetings suggest there is a need to clarify
industry practices concerning the maintenance of intermodal container
chassis. Commenters and participants indicated most ocean carriers,
rail carriers, terminal operators, and motor carriers take seriously
their responsibility to operate only roadworthy equipment. However,
they acknowledge other members of the intermodal transportation
industry are doing only the minimum necessary to ``get by.''
Commenters and participants fundamentally disagree on the adequacy
of preventive maintenance and inspection practices at many terminals.
Terminal operators indicated they have effective maintenance and
inspection programs in place. Equipment Interchange Discussion
Agreement (EIDA), an association of nine ocean common carriers, stated
its members
[[Page 75480]]
have literally hundreds of facilities employing over a thousand
mechanics and inspectors and that equipment maintenance is their single
largest expense. American President Lines (APL) spends over $36 million
annually on 63,000 chassis; Maersk spends $17 million on 32,000
chassis, a rough average of $500 per year per chassis. A representative
of an ocean carrier explained that this attention to maintenance and
comprehensive equipment inspection is driven by the market realities of
customer expectations.
Generally, motor carriers agreed that some terminal operators made
significant efforts to improve. However, they continue to have concerns
about the equipment providers' inbound inspection process. Motor
carriers believe it is in the financial interest of equipment providers
to let chassis leave the terminal without noting defects or
deficiencies and then pointing out mechanical problems when the
container chassis is returned. The mechanical problems then are blamed
on motor carriers and the costs for repairs are subsequently passed on
to them.
Motor carriers argue chassis repair and maintenance should be done
before motor carriers arrive at the terminal. They believe roadability
lanes offered by some equipment providers are a good idea, but
preventative maintenance would be better. Chassis maintenance is too
often undertaken on an as-needed basis rather than as part of a
scheduled preventive maintenance program.
Adequacy of Roadability/Walk-Around Inspections
Commenters and participants recognize that roadability lanes are
available in some terminals, but they appear to be used by only a small
percentage of drivers. If roadability lanes or similar facilities are
available, the time involved in using them makes this option
problematic since most drayage drivers are paid by the trip, not by the
hour. It was observed company drivers who are paid by the hour take
advantage of roadability lanes more often than owner-operators who are
paid on a per trip basis.
Motor carriers argued that at many rail terminals drivers cannot
get out of their trucks to do chassis inspection and they claim that
there is no staff available to assist them. However, EIDA members and
other terminal operators asserted that they provided drivers with ample
opportunity to perform the required walk-around inspection prior to
departure.
Commenters emphasized that some vehicle components cannot be
inspected by one person working alone. For example, checking brake
adjustment typically requires one person to apply the brakes while
another person measures the push-rod travel. Motor carriers argue
significant mechanical defects typically cited by roadside inspectors
cannot be identified during a walk-around inspection. They assert walk-
around inspections cannot substitute for routine inspection and
maintenance by the terminal operator's mechanics.
Owner-operators agreed walk-around inspections do not typically
reveal all the defects that Federal or State inspectors may find during
a more thorough inspection. Also, if a defect is found during the walk-
around inspection it is likely to generate a costly delay in leaving
the terminal. Owner-operators argue the driver's walk-around inspection
should be considered a back up to the routine and detailed inspection
by the equipment provider, not the primary means to detect defects.
Impacts of Changing Responsibility for Chassis Roadability
EIDA estimates that the incremental cost of shifting this
responsibility to the terminal operators would be about $200 per
chassis per year. This would represent a 40-percent increase in
operating costs. These increased operating costs would be ultimately
borne by the transportation system and by consumers. These estimates do
not include increased equipment, facility, and other capital costs. AAR
estimates that it would cost the railroads over $200 million annually
if maintenance responsibilities are shifted to terminals.
Since the current Federal regulations make the chassis' roadability
the responsibility of motor carriers, violations concerning chassis
defects become part of the motor carrier's safety record. Roadside
violations are entered electronically directly into the FMCSA's
database of safety performance information about motor carriers.
Consequently, motor carriers are concerned about how the chassis
violations may affect their safety profiles because: (1) FMCSA's Safety
Status Measurement System (SAFESTAT) scores are available to the public
and can be used by insurance companies and shippers as a basis for
business decisions; and (2) the FMCSA's potential use of the violation
data for selecting motor carriers for compliance reviews. Regardless of
whether the chassis owner accepts responsibility for the violation and
pays for the repairs, the violation remains on the motor carrier's
safety record. As a result, the issue of assignment of responsibility
is of importance to motor carriers.
Institutional Issues
Motor carriers involved in port drayage operations estimate their
drivers spend 25 percent or more of their time waiting in line at
terminals, without compensation. Motor carriers believe that because of
the highly competitive nature of the drayage industry, they have no
leverage. If a motor carrier or driver insists on improved business
terms he will simply be replaced.
The National Association of Waterfront Employers (NAWE)
acknowledged the economic pressures force drivers to leave the terminal
as soon as possible. Some of the commenters to the docket and
participants in the public meetings believe the situation would change
significantly if drivers were paid by the hour.
The Uniform Intermodal Interchange Facilities Access Agreement (the
Uniform Agreement) governs the relationship between equipment providers
and motor carriers. The Uniform Agreement was initiated 20 years ago,
and is continually reviewed by a multimodal committee. IANA estimates
that its participants include more than 4,700 motor carriers, 6
railroads and 55 ocean carriers.
A nine-member board administers the agreement: 3 motor carriers; 3
rail carriers, and 3 ocean or water carriers. Participants in the
public meetings indicated there is a willingness to re-negotiate terms
of the Uniform Agreement but not to shift responsibility from motor
carriers.
The Uniform Agreement states:
The user, while in possession of interchange equipment, releases
and agrees to hold harmless the owner from and against any and all
loss, damage, liability, cost or expenses suffered or incurred
arising out of or connected with injuries or death of any persons
arising out of the user's use, operation, maintenance or possession
of interchange equipment.
A copy of the Uniform Agreement is included in the Through Transport
Mutual Insurance Association, Ltd. (TTClub) comments. The agreement
specifically states that the equipment provider makes no warranties as
to the fitness of the equipment. A common addendum to the Uniform
Agreement requires that the driver warrant that the equipment he is
receiving is roadworthy.
Equipment providers argue that making motor carriers responsible
for
[[Page 75481]]
the chassis is necessary because the equipment may be interchanged
among several motor carriers after leaving the terminal. EIDA believes
equipment providers accept responsibility for the equipment while it is
in their possession and will repair any deficiencies prior to turning
the equipment over to motor carriers. However, once a motor carrier
accepts the chassis, the motor carrier must assume the duty of
maintaining the equipment up to safety standards. The equipment
providers believe the disclaimers in the agreement merely eliminate any
strict liability that might otherwise be assumed.
State Regulations
Commenters expressed concern about a growing number of potentially
conflicting State roadability laws. They believed the result would be a
patchwork of inconsistent regulations negatively impacting the ability
of the United States to operate a national intermodal transportation
system.
Marine terminal operators, ocean carriers, and railroads emphasize
the importance of taking action to preempt current and forthcoming
State regulations concerning intermodal equipment inspection and
interchange that will negatively impact interstate and international
commerce, intermodal transportation, and the authority of the United
States Department of Transportation.
Consideration of the Negotiated Rulemaking Process
On November 29, 2002 (67 FR 71127), the FMCSA published a notice
announcing that the agency would study the feasibility of using the
Negotiated Rulemaking process to develop rulemaking options concerning
the maintenance of intermodal container chassis and trailers.
On February 24, 2003, FMCSA extended the comment period based upon
a request by the counsel for the American Association of Railroads to
allow additional time for filing comments after a planned meeting of
IANA and the Ocean Carrier Equipment Management Association (OCEMA).
The IANA/OCEMA working group subsequently failed to develop a
private-sector solution to the assignment of responsibility for
maintaining intermodal chassis and trailers.
Results of the Convenor's Interviews
Typically, the first step in examining the feasibility of
conducting a negotiated rulemaking is to conduct a ``convening,'' or
conflict assessment. During this process the convener identifies and
interviews the interests that would be substantially affected by the
proposed policy change and individuals or organizations that might
represent those interests. Based upon the interviews, the convener
identifies issues of concern that may warrant addressing, and explores
whether the establishment of a committee is feasible and appropriate in
the particular situation. The following are the issues the convenor
identified in his report to FMCSA concerning the feasibility of
conducting a negotiated rulemaking on container chassis maintenance. A
copy of the report is in Docket No. FMCSA-98-3656.
Extent of the Chassis Roadability Problem
The interviewees that supported moving forward with the rulemaking
believe equipment defects on container chassis are a serious safety
problem. As with the case of commenters to the public docket, and
participants in the public meetings, interviewees also indicated many
of the serious defects on container chassis are not visible during a
walk-around or visual inspection.
When motor carriers leave the port terminal, according to
interviewees, they are supposed to certify that the equipment is
roadworthy and that there is no damage. Many motor carriers said that
some terminals do relatively little about inspecting outbound chassis,
but considerably more about inspecting in-bound ones. Therefore, motor
carriers may be held responsible for damage that was not reported
outbound, even if it was pre-existing. Some interviewees suggested the
solution includes holding the equipment provider responsible for
inspecting and certifying a chassis before releasing it to the motor
carrier.
Interviewees that were opposed to continuing the rulemaking believe
there is a lack of data to support the Petitioners' argument that a
safety problem exists with container chassis maintenance. While a
number of them agreed that equipment violations are numerous, they
argue that it is difficult to show the violations have caused
accidents. These interviewees said that in many instances motor
carriers receive citations for violations concerning equipment
conditions that could not be detected during a walk-around or visual
inspection. However, they do not believe such violations warranted
additional Federal regulations. Some indicated they believe private-
sector solutions would offer greater flexibility and be less costly and
more effective than new Federal regulations.
State Laws and Regulations
Almost all of the interviewees expressed concern about a recent
trend toward States enacting roadability laws. They indicated that in
the late 1990s, Illinois, Louisiana, and South Carolina legislatures
passed laws shifting responsibility for roadworthiness of intermodal
chassis from motor carriers to the party tendering the intermodal
equipment. Interviewees reported that most of the States are not
enforcing their roadability laws.
Interviewees expressed concern the State laws have taken differing,
sometimes inconsistent regulatory approaches to coverage. The State
laws were viewed as a means of dealing with vehicles that were not
being properly maintained, and assigning inspection, repair and
maintenance responsibilities to ensure the proper and safe operation of
the chassis. Nearly all interviewees reported that a growing patchwork
of inconsistent State laws would adversely impact intermodal
transportation.
There was widespread agreement among interviewees that FMCSA could
make a major impact by adopting regulations, and preempting State laws
and regulations. They noted States may have powerful economic
incentives to limit enforcement of roadability legislation, especially
given the possibility that they could risk the movement of shipping
business and port operations to States with less stringent regulations,
or no roadability rules at all. Two interviewees discussed personal
stories where direct gubernatorial intervention halted enforcement
efforts. Therefore, there is the belief State motor carrier enforcement
agencies may face a difficult choice between maintaining major terminal
operations that provide jobs and economic stimuli and enforcing their
own rules.
Some interviewees favored the rights of States to pass roadability
laws because they believe FMCSA has not done enough to improve the
condition of container chassis. However, interests were divided over
whether preemption should be the end process or merely the beginning. A
few interviewees believed FMCSA should preempt the States but do
nothing more. Others believed FMCSA should preempt the States only if
it is part of a plan or program to resolve a number of issues
concerning the intermodal industry.
Jurisdiction and Enforcement Issues
Interviewees expressed widely divergent views as to the limits of
FMCSA's legal authority relating to equipment providers such as
terminal
[[Page 75482]]
operators, rail carriers and ocean carriers that furnish chassis for
transportation by motor carriers. Many believed FMCSA lacks statutory
authority to regulate non-motor carrier entities.
Uniform Agreement
Some motor carriers expressed concern their interests are not fully
represented on the governing board because they are in a minority
position relative to the rail and water carriers. These motor carriers
believe the Department of Transportation should regulate the
interchange agreement and address the unequal bargaining power between
rail/water carriers and motor carriers. Others believed the Department
of Transportation should not regulate the interchange agreement because
it is the result of years of evolution of the commercial relationship
between the motor carriers and the equipment providers.
Of concern to many motor carriers is that the interchange agreement
states that equipment providers do not warrant the roadability of the
equipment. Moreover, an addendum to the interchange agreement requires
the motor carrier that picks up the equipment to accept responsibility
for the roadworthiness of the chassis.
However, some interviewees did not believe the interchange
agreement is the appropriate mechanism to implement changes in the
intermodal industry because usage of the interchange agreement is only
voluntary. They argue that the use of the interchange agreement is
prevalent, but there is no data to indicate how much of the industry is
actually covered by it. In contrast, other interviewees believe changes
to the uniform agreement would become the industry standard and be
sanctioned by DOT.
FMCSA Decision
FMCSA withdraws the ANPRM because there is insufficient data to
support moving forward with the rulemaking at this time. While the
agency could quantify the costs of regulatory options that could
potentially result in improved maintenance practices by equipment
providers, there is insufficient data currently to quantify the safety
benefits of such a rulemaking. The agency has reviewed information
provided by commenters responding to the ANPRM, transcripts from
listening sessions, safety performance data concerning motor carriers
engaged primarily in intermodal transportation, and the neutral
convenor's final report. FMCSA has determined it is unlikely the agency
could craft a rulemaking that would resolve the maintenance
responsibility disputes between equipment providers and motor carriers,
and be supported with sufficient safety data to prove its necessity,
and subsequently its effectiveness. The available data show a
significant number of container chassis dispatched from intermodal
terminals are later shown to have safety defects during roadside
inspection. However, the relationship between these defects and
accident causation has not been substantiated.
FMCSA recognizes most motor carriers do not have the economic
leverage to persuade equipment providers to ensure proper chassis
maintenance. It is also true the Uniform Intermodal Interchange and
Facilities Access Agreement that motor carriers typically must sign in
order to do business has the effect of shifting both the maintenance or
repair burden and the liability to motor carriers. Based on the
comments to the ANPRM, statements from participants in the listening
sessions, and the interviews conducted by the neutral convenor who
examined the feasibility of conducting a negotiated rulemaking on this
subject, there is no readily apparent regulatory option that would be
well received among the many parties.
There are two data limitations that prevent the agency from
proceeding with a defensible rulemaking: (1) chassis inspection and
accident data is lumped in among ``trailer'' data; and (2) relatively
few accidents are shown as involving chassis, possibly because the
short distances chassis travel work to reduce accident exposure or
possibly because the chassis are categorized as ``trailers'' in the
accident reports. The first step toward a Federal rule must be data
collection, addressing these data limitations, and possibly identifying
chassis owners whose equipment shows a pattern of poor maintenance.
FMCSA is considering options to better capture data about chassis
at the point of inspection and at accident scenes. A special study
could be conducted if resources become available. However, the time
required to complete a comprehensive data collection and analysis
effort would prolong the period that the rulemaking is left unresolved,
with no certainty regarding the outcome. Therefore, FMCSA believes it
is in the best interests of all parties that the agency discontinue
consideration of a negotiated rulemaking based on the convenor's final
report, and withdraw its 1999 ANPRM.
Issued on: December 1, 2003.
Annette M. Sandberg,
Administrator.
[FR Doc. 03-32075 Filed 12-30-03; 8:45 am]
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