[Federal Register Volume 64, Number 31 (Wednesday, February 17, 1999)]
[Proposed Rules]
[Pages 7849-7852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3839]
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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
[[Page 7850]]
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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