[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Proposed Rules]
[Pages 75478-75482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32075]


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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://dms.dot.gov, docket 
number FMCSA-98-3656. It is also available from FMCSA's Web site at 
http://www.fmcsa.dot.gov/rulesregs/fmcsr/rulemakings; or the Federal 
Register Web site at http://www.gpoaccess.gov. If you 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://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://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
----------------------------------------------------------------------------------------------------------------
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
                                                             ---------------------------------------------------
    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]
BILLING CODE 4910-EX-P