General Requirements Inspection, Repair, and Maintenance; Intermodal Container Chassis and Trailers

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 390 and 396

[FHWA Docket No. FHWA-98-3656]

RIN 2125-AE40

General Requirements Inspection, Repair, and Maintenance;

Intermodal Container Chassis and Trailers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for

comments.

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SUMMARY: In response to a petition for rulemaking filed by the American

Trucking Associations, Inc. (ATA) and the ATA Intermodal Conference

(the petitioners), the FHWA agreed to consider revisions to the

requirements in parts 390 and 396 of the Federal Motor Carrier Safety

Regulations (FMCSRs) that place upon motor carriers the responsibility

for maintaining intermodal container chassis and trailers. The

petitioners contend that motor carriers have no opportunity to maintain

this equipment and that the parties who do have the opportunity often

fail to do so. The FHWA, therefore, is seeking information on the

extent of this problem and public comments on the solution proposed by

petitioners, i.e., to mandate joint responsibility between the

``equipment provider'' and the motor carrier for maintaining this type

of intermodal equipment.

DATES: Comments must be received on or before April 19, 1999.

ADDRESSES: Signed, written comments should refer to the docket number

that appears at the top of this document and must be submitted to the

Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,

Washington, DC 20590-0001. All comments received will be available for

examination at the above address between 9 a.m. and 5 p.m., e.t.,

Monday through Friday, except Federal holidays. Those desiring

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Richard H. Singer, Office of Motor

Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr. Charles

E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,

Federal Highway Administration, 400 Seventh Street, SW., Washington, DC

20590. [TDD number for the hearing impaired: 1-800-699-7828] Office

hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,

except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow the instructions online for more information and

help.

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Government Printing

Office's Electronic Bulletin Board Service at (202) 512-1661. Internet

users may reach the Federal Register's home page at http://

www.nara.gov/fedreg and the Government Printing Office's database at

http://www.access.gpo.gov/nara.

Background

The American Trucking Associations, Inc. and the ATA Intermodal

Conference filed a petition for rulemaking on March 17, 1997, to amend

49 CFR parts 390 and 396 of the FMCSRs.

The petitioners asked the FHWA to require parties that tender

intermodal equipment to motor carriers to ensure the ``roadworthiness''

of that equipment. The petition pointed out that:

[t]he motor carrier--or more precisely, the driver--usually does

not have the ability or opportunity to do a full and adequate

inspection of each piece of intermodal equipment to ensure the

equipment's roadworthiness or compliance with the FMCSRs when

accepting intermodal equipment at a port or railhead. The equipment

is owned or leased by the railroad, steamship line or other party

tendering/interchanging it to the motor carrier. If a safety defect

in the equipment is not immediately obvious to the truck driver, he/

she has neither the time nor facilities to conduct a more in-depth

inspection. The standard interchange agreement adopted by most

equipment providers, the Uniform Intermodal Interchange and

Facilities Access Agreement (UIIA), specifically states that the

``(p)rovider makes no express nor implied warranty as to the fitness

of the equipment.'' Further, the typical equipment provider addendum

to the UIIA requires the driver to warrant that the equipment is

``roadworthy.''

The petitioners argue that poor maintenance of intermodal equipment

is a serious safety problem and request the FHWA to make the owner or

operator of such equipment responsible for the roadworthiness of the

vehicles it tenders to motor carriers.

Motor carriers must be held responsible for the safety of their own

equipment, but when they engage in

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intermodal transportation this service often requires them to operate

vehicles which they do not own, and rarely control, until just before

the highway movement begins. It can be difficult, as the petitioners

contend, for motor carriers to comply with the requirements of the

FMCSRs without taking intermodal equipment out of service for

inspection, which could cause significant delay and disruption in the

movement of containers or trailers.

Present Requirement/ATA Proposed Amendments

The petitioners requested that title 49 of the Code of Federal

Regulations be amended as follows. Proposed changes are italicized:

Section 396.1 Scope

General--Every motor carrier (and for this part any party who is

tendering or interchanging a trailer, chassis, or container to a motor

carrier), its officers, drivers, agents, representatives, and employees

directly concerned with the inspection or maintenance of motor vehicles

shall comply and be conversant with the rules of this part.

Section 396.7 Unsafe Operations Forbidden

(a) General--A motor vehicle shall not be operated in such a

condition as to likely cause an accident or a breakdown of the vehicle.

(b) Intermodal--No person shall tender or interchange a

trailer, chassis, or container in violation of section (a) to a motor

carrier.

(c) No motor carrier shall certify or otherwise guarantee to any

person tendering or interchanging any trailer, chassis, or container to

a motor carrier that such trailer, chassis, or container complies with

this Part unless the person tendering or interchanging the trailer,

chassis, or container has provided the motor carrier with adequate

equipment, time, and facilities to make a full inspection and necessary

repairs to the trailer, chassis, or container prior to the tendering or

interchange of the trailer, chassis, or container.

(d) Exemption--Any motor vehicle discovered to be in an unsafe

condition while being operated on the highway may be continued in

operation only to the nearest place where repairs can safely be

effected. Such operation shall be conducted only if it is less

hazardous to the public than to permit the vehicle to remain on the

highway.

Section 396.9 Inspection of Motor Vehicles in Operation

(a) Personnel authorized to perform inspections. Every special

agent of the FHWA (as defined in Appendix B to this subchapter) is

authorized to enter upon and perform inspections of motor carrier's

vehicles in operation and any trailer, chassis, or container at an

intermodal terminal which is intended to be tendered or interchanged to

a motor carrier for use on the highways.

Section 390.37 Violation and Penalty

Any person who violates the rules set forth in this subchapter or

Part 325 of Subchapter A may be subject to civil or criminal penalties.

When a motor carrier has been tendered a trailer, chassis, or container

that does not meet the standards set forth in Part 393 in violation of

section 396.1 of this subchapter, the motor carrier tendered or

interchanged such a vehicle shall not be liable for civil or criminal

penalties under this subchapter.

Jurisdiction

The FHWA has jurisdiction over ``commercial motor vehicles''

(CMVs), ``employees'' and ``employers,'' as defined in 49 U.S.C.

31132(1), (2) and (3), respectively. The vast majority of intermodal

trailers and chassis-and-container combinations meet the definition of

a CMV--a ``towed vehicle used on the highways in interstate commerce to

transport * * * property (which) (A) has a gross vehicle weight rating

or gross vehicle weight of at least 10,001 pounds * * * '' An employer

is ``a person engaged in a business affecting interstate commerce that

owns or leases a commercial motor vehicle in connection with that

business, or assigns an employee to operate it.'' An employee is ``an

operator of a commercial motor vehicle (including an independent

contractor when operating a commercial motor vehicle), a mechanic, a

freight handler, or an individual not an employer, who (A) directly

affects commercial motor vehicle safety in the course of employment * *

* ''

Railroads, steamship lines, pier operators, or other parties that

own or lease intermodal CMVs are thus ``employers'' subject to the

jurisdiction of the FHWA. Any employee of such a business who is

responsible for intermodal CMVs ``directly affects commercial motor

vehicle safety'' through the inspection and maintenance program he or

she manages and is thus an ``employee'' subject to the jurisdiction of

the FHWA.

Request for Comments

Although FHWA believes it may be prudent to establish joint

responsibility between the ``equipment provider'' and the motor carrier

for the maintenance of these intermodal container chassis and trailers,

the agency seeks to ensure that it has considered all the pertinent

issues that could impact any potential rulemaking changes.

The FHWA specifically requests comments addressing the following

questions. However, commenters are also encouraged to include

discussion of any other issues they consider relevant to this

rulemaking.

1. What is the out-of-service (OOS) rate for intermodal container

chassis or trailers inspected at roadside? If that information is not

available, what percentage of the intermodal equipment transported by

individual motor carriers are placed out of service? What percentage of

OOS orders involve intermodal chassis? What percentage involve

intermodal trailers? What percentage of OOS orders are issued within 24

hours after the motor carrier takes possession of the intermodal

equipment? Within 48 hours? Within 96 hours? State agencies are

encouraged to respond to this question with information from their

State inspection databases.

2. What is the violation rate (the average number of equipment-

related violations of the FMCSRs found per inspection) for intermodal

container chassis or trailers inspected at roadside? If that

information is not available, what percentage of the intermodal

equipment transported by individual motor carriers have defects or

deficiencies? What percentage of inspection violations involve

intermodal chassis? What percentage involve intermodal trailers? What

percentage of violations are discovered within 24 hours after the motor

carrier takes possession of the intermodal equipment? Within 48 hours?

Within 96 hours? State agencies are encouraged to respond to this

question with information from their State inspection databases.

3. Why does the Uniform Intermodal Interchange and Facilities

Access Agreement disavow all responsibility for the ``fitness'' of

intermodal equipment?

4. Generally, national accident databases do not provide enough

detail for the FHWA to determine the percentage of commercial motor

vehicle accidents that can be attributed, in whole or in part, to

mechanical defects or deficiencies. If the FHWA decides to proceed with

this rulemaking, it would be necessary to estimate the benefits in

[[Page 7851]]

terms of accidents and injuries prevented and lives saved. Are State

officials and motor carriers aware of accidents attributable to

mechanical defects or deficiencies on intermodal container chassis or

trailers? If yes, what were the specific mechanical defects or

deficiencies and how was (were) the cause(s) of the accident(s)

determined? Do the States or industry sources have statistically

reliable data on accidents of this type, or on defects or deficiencies

that could lead to accidents? If so, please provide the information.

5. If the FHWA were to develop regulations making certain entities

who offer intermodal container chassis and trailers for transportation

responsible for the mechanical condition of those vehicles, one of the

means of enforcement would be through roadside inspections. During a

roadside inspection, defects or deficiencies could be identified, but

it is uncertain whether inspectors could determine when the defect or

deficiency occurred (i.e., before or after the motor carrier took

possession of the container chassis or trailer). How could State

officials cite the party that tendered the intermodal CMV for defects

or deficiencies found at the roadside if there were no proof that the

defects or deficiencies were present before the motor carrier took

possession of the vehicle?

6. Should the party that tendered the intermodal CMV be held

responsible for all defects or deficiencies irrespective of the length

of time the motor carrier has been operating the container chassis or

trailer? If not, at what point during the operation of the chassis or

trailer should the responsibility for ensuring its safe operation be

transferred from the entity offering the vehicle for transportation to

the motor carrier?

7. The petitioners indicated that drivers usually do not have the

``ability or opportunity to do a full and adequate inspection of each

piece of intermodal equipment to ensure the equipment's roadworthiness

or compliance with the FMCSRs when accepting intermodal equipment at a

port or railhead.'' What are the obstacles to providing drivers with

the opportunity to perform a walk-around inspection of container

chassis and trailers? With regard to ability, what types of training

would drivers need to perform a walk-around inspection of the container

chassis or trailers?

8. If the FHWA issued regulations to make the entities who offer

container chassis or trailers responsible for the mechanical condition

of the vehicles, these entities would need to provide maintenance

facilities and personnel to systematically inspect, repair, and

maintain the vehicles. How many inspection, repair, and maintenance

facilities and mechanics are currently used by these parties to service

container chassis and trailers used in intermodal operations? How many

additional facilities and employees would be needed to ensure that

every intermodal CMV complied with the FMCSRs before being turned over

to a motor carrier? What would be the incremental total and per-vehicle

cost to these parties of such a rule? What operational impact would the

rule have on intermodal transportation?

9. Currently, Sec. 396.17 requires that all commercial motor

vehicles operated in interstate commerce be inspected at least once

every 12 months. Proof of inspection must be carried on the vehicle. If

an intermodal container chassis or trailer or other vehicle being

offered for transportation does not have proof of inspection, the

carrier should recognize, irrespective of the appearance of the

vehicle, that it may not be operated in interstate commerce. How often

do equipment providers tender and motor carriers accept container

chassis trailers or other vehicles without proof that the periodic

inspection was performed?

10. For cases in which vehicles have an inspection decal or other

form of documentation indicating that the periodic inspection was

performed within 3 months prior to the carrier accepting the container

chassis or trailer for transportation, how often are vehicle defects or

deficiencies found during roadside inspections?

11. For cases in which vehicles have an inspection decal or other

form of documentation indicating that the periodic inspection was

performed between 3 months and 6 months of the carrier accepting the

container chassis or trailer for transportation, how often are vehicle

defects or deficiencies found during roadside inspections?

12. For cases in which vehicles have an inspection decal or other

form of documentation indicating that the periodic inspection was

performed between 6 months and 9 months of the carrier accepting the

container chassis or trailer for transportation, how often are vehicle

defects or deficiencies found during roadside inspections?

13. Could the safety objectives of this rulemaking be accomplished

by requiring more frequent periodic inspections of container chassis

and certain trailers (e.g., every 6 months, or 3 months) with

documentation or proof of inspection on the vehicle and an inspection

report made available within 48 to 72 hours of a request from a Federal

or State official?

14. One alternative to the FHWA issuing new regulations is for

motor carriers and/or entities offering the container chassis or

trailers for transportation to develop maintenance consortiums or make

similar arrangements to ensure that routine maintenance is performed

and repairs are made in a timely manner. What has the private sector

done to resolve the problem of maintenance of intermodal container

chassis and trailers?

Public Meetings

To provide the opportunity for additional input on this rulemaking,

the Department intends to hold three public meetings in the coming

months. The dates, times, and specific locations of these public

meetings have not yet been determined, but will be announced in future

Federal Register notices and press releases. Persons desiring more

details on these meetings can also receive direct notification by

addressing their requests to the individuals identified in this Federal

Register notice under the section entitled ``For Further Information

Contact.''

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket room at the above address. Comments

received after the comment closing date will be filed in the docket and

will be considered to the extent practicable. In addition to late

comments, the FHWA will also continue to file, in the docket, relevant

information that becomes available after the comment closing date, and

interested persons should continue to examine the docket for new

material.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this is a significant regulatory

action under Executive Order 12866 and under the Department of

Transportation's regulatory policies and procedures because of the

substantial public interest anticipated in this action. An organization

representing ocean common carriers wrote to the agency while this

notice was being prepared. It disputes most of the points made by the

ATA petition and argues that the cost and delay attendant upon shifting

regulatory burdens onto those who tender intermodal equipment to motor

carriers is unacceptable. The document will be placed in the public

docket. The FHWA expects other commenters to be equally forthright in

expressing views

[[Page 7852]]

for and against the rule requested by the ATA.

Due to the preliminary nature of this document and lack of

necessary information on costs and benefits, the FHWA is unable to

evaluate the economic impact of the potential regulatory changes being

considered in this rulemaking. Based upon the information received in

response to this notice, the FHWA intends to carefully consider the

costs and benefits associated with various alternatives proposed.

Comments, information, and data are solicited on the economic impact of

the potential changes described in this document or any alternative

proposal submitted.

Regulatory Flexibility Act

Due to the preliminary nature of this document and lack of

necessary information on costs and benefits, the FHWA is unable to

evaluate the effects of the potential regulatory changes on small

entities. Based upon the information received in response to this

notice, the FHWA intends, in compliance with the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), to carefully consider the economic impacts

of these potential changes on small entities. The FHWA solicits

comments, information, and data on these potential impacts.

Unfunded Mandates Reform Act of 1995

The FHWA will analyze any proposed rule to determine whether it

would result in the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector, of $100

million or more in any one year, as required by the Unfunded Mandates

Reform Act of 1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment.

Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding

intergovernmental consultation on Federal programs and activities do

not apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1995, 44

U.S.C. 3501-3520. Should future rulemaking action result in more

frequent (periodic) inspection requirements, with accompanying

increases in documentation and numbers of inspection reports, then an

information collection request will be submitted to the Office of

Management and Budget for consideration and approval.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.),

and has determined that this action would not have any effect on the

quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 390

Highway safety, Highways and roads, Motor carriers, Motor vehicle

identification and marking, Reporting and recordkeeping requirements.

49 CFR Part 396

Highway safety, Highways and roads, Motor carriers, Motor vehicle

maintenance, Motor vehicle safety, Reporting and recordkeeping

requirements.

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR

1.48.

Issued on: February 10, 1999.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 99-3839 Filed 2-16-99; 8:45 am]

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