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July 31, 2015

Docket Management Facility U.S. Department of Transportation 1200 New Jersey Avenue, SE West Building, Ground Floor, Room W12-140 Washington, DC 20590-0001

Comments on Parts and Accessories Necessary for Safety Operation; Federal Motor Vehicle Safety Standards Certification for Commercial Motor Vehicles Operated by United States – Domiciled Motor Carriers, Docket No. FMCSA 2014-0428.

Summary

The American Trucking Associations adamantly opposes the implementation of this proposed Commercial Vehicle Certification Label rule for several reasons:

There is no safety benefit to implement this “mattress tag” rule, only unnecessary administrative compliance costs. As the report of the Independent Review Team, titled, Blueprint for Safety Leadership: Aligning Enforcement and Risk” date July 15, 2014 strongly recommended that “FMCSA needs to better align compliance and enforcement processes with the safety risks that cause crashes.”

FMCSA fails to recognize that operational efficiencies for drivers, carriers, and vehicles will be significantly reduced as a result of this proposal. For example, trailer and chassis interchanges and interlining would be affected, roadside inspection time would increase, driver on duty time due to additional pre and post inspection checks and back-office compliance costs would increase.

FMCSA fails to understand that no matter what the NHTSA rule says, no certification label is permanent.

Several commercial vehicle manufacturers are no longer in business, having gone bankrupt, been sold, or just closed their doors, making the ability to obtain a lost or defaced certification letter impossible.

And lastly, the NTSB recommendations were the result of a bus crash that the Board attributed to the driver’s failure, not the equipment, let alone the standards

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to which it was manufactured. The recommendations have nothing to do with trucking operations.

Details

There is no safety benefit associated with the proposed rule. FMCSA fails to identify any real safety benefit for this proposed rule. They claim only that the rule “would make it easier for FMCSA and its State partners to identify CMVs operated by U.S. domiciled motor carriers that may have been introduced into interstate commerce without proper FMVSS certification.” Easier is not a safety benefit. A recent released FMCSA Report entitled, “The Blueprint for Safety Leadership: Aligning Enforcement and Risk” dated July 15, 2014 states in its first recommendation that “FMCSA needs to better align compliance and enforcement processes with the safety risks that cause crashes.” With no evidence available that suggests there were any crashes where the lack of a certification label was responsible for the crash, it appears that FMCSA has opted to ignore one of the primary recommendations of the report. Checking the certification label only tells the carrier and enforcement personnel that the vehicle met the appropriate FMVSS on the date of manufacture and has little if anything to do with the condition or safe operation of the vehicle after it has been purchased by a motor carrier. The certificate requirement is “an obligation” of the manufacturer, required by 49 CFR Part 567, and protects the dealer, since the prohibition is on the sale of a noncomplying vehicle. The requirement only applies to the first sale of a vehicle and not to the after-market, making the label akin to a mattress tag.

After the commercial vehicle has been sold to a carrier, it is the carrier’s responsibility to ensure the safe operation of that vehicle. Doing so means the carrier is responsible for adhering to the FMCSR 49 CFR parts 393 and 396.

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Carriers comply with these parts by inspecting the vehicle for the all items listed in part 393, using pre and post operation vehicle inspection processes, periodic and annual inspections, and by employing proper preventive maintenance practice.

The current 49 CFR part 393.1(c) is sufficient to ensure that the motor carrier is operating a motor vehicle properly equipped with the applicable safety equipment and features specified. Part 393 states, “No motor carrier may operate a commercial motor vehicle, or cause or permit such vehicle to be operated, unless it is equipped in accordance with the requirements and specifications of this part.”

FMCSA fails to recognize that common trucking operational efficiencies for drivers, vehicle and enforcement will be significantly reduced as a result of implementing this proposed rule.

A common trucking practice is equipment interchange. This practice occurs when a motor carrier's power unit is pulling someone else's trailer. Complexity grows when leased equipment or chassis are involved and when motor carriers interline. Transport efficiency benefits from this exchange of equipment rather than trans-loading the freight. Oftentimes shippers want their trailers - with their trademarks prominently displayed on the trailer wraps - used instead of the carrier's own trailers. Regardless of how or why equipment is interchanged, this proposed rule would penalize the carriers and drivers when inspected at roadside for a missing label on a piece a equipment it does not own and which is otherwise in safe operating condition. It would be an unnecessary waste of time for a motor carrier and driver to visually ascertain whether an interchanged trailer or chassis has the proper label or certificate, and, if missing, where the manufacturer's letter is kept, if it exists at all. That extra time would delay freight movements and cut into driver's hours-of-service. There, of course is a cost associated with this time – a cost FMCSA has not considered or calculated. Apply the above mentioned scenario to the West Coast port situation where chassis interchange is already slowed by labor’s unfounded assertions of the right to perform roadability inspections. Most intermodal chassis used in port-maritime container transport were manufactured overseas and have been in use for over 15 years. Obtaining a manufacturer's letter therefore would be difficult if not impossible. The label is commonly missing because 1) its presence was never before required or seen as critical; 2) chassis operate in conditions of salt air, abrasion from stacking in yards and handling by multiple parties; and 3) given the aging nature of the port chassis fleet, equipment is increasingly being refurbished wherein frames are sandblasted and repainted which removes all visible original identification markings. In addition, the intermodal industry, as authorized and approved by the FMCSA, has instituted its own chassis marking and registration system, GIER (Global Intermodal Equipment Registry), so chassis owners, intermodal equipment providers and pools can be readily located via access to online digital databases if issues arise. There is no need to rely on a missing manufacturer's label.

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Another problem unrecognized by FMCSA is that drivers may also change during the course of a freight movement. The proposal assumes, apparently, that each handoff from line-haul to line-haul to P&D driver, from Carrier A to Carrier B in an interline situation, and from company driver to independent contractor is accompanied by perfect knowledge of which pieces of interchanged equipment require a manufacturer's letter and where that letter is stored. In some instances, the interchanged trailer may be sealed and the letter (if it exists) stored in an inside trailer pouch. Is FMCSA asking law enforcement to break seals for no other purpose than finding a manufacturer's letter asserting FMVSS compliance several years before?

Motor carriers frequently operate equipment they do not own, rented or leased power or trailing equipment, equipment of owner-operators, trailing equipment belonging to shippers, ocean lines, or trailer pools. When presented with equipment lacking certification, this proposed rule would require them to halt operations and sort out the situation. A certification requirement on carriers will be enormously disruptive of everyday carrier operations.

FMCSA fails to understand that no matter what the NHTSA says, no certification label is permanent.

Commercial motor vehicles, including tractors, trailers, converter dollies, and intermodal chassis log many million highway miles in their lifetime, often more than 125 thousand miles a year. They travel in all types of weather and are exposed to salt and chemicals to remove road ice, water, snow, mud, gravel and all types of road debris. They are struck by cars, bikes, other trucks, forklifts, and they often strike shipper and receiver docks. In this environment, after a period of time, things will wear away and often fall off.

Through a survey of motor carriers, and other collected information the following are examples of carriers with missing certification labels:

TABLE 1, Carrier Responses with Missing Labels

Carrier Total Tractors/Trailers/Dollies

Missing Certification Labels

Total Number of CVs (tractors, trailers, dollies)

1 50/150/0 >2000

2 75/0/0 unknown

3 1/3/0 >500

4 0/75/0 >500

5 <10/>10/>10 >500

6 0/0/0 >500

7 0/0/0 >1500

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8 2/5/2 >1000

9 0/20/0 >1500

10 850/855/0 >1500

11 0/10/0 <100

12 2/20/0 unknown

13 0/?/0 >1500

14 0/100/5 >1000

15 50/50/650 >2000

16 20/80/200 >1000

17 0/180/0 >500

18 0/5000/0 >30,000

19 0/18/0 <200

20 0/13/0 <300

Totals 20 carriers

1060 Tractors 6489 Trailers 862 Dollies 8411 total commercial vehicles

Total vehicles approximately 47,000

The ATA Technology and Maintenance Council (TMC) surveyed approximately 500 of its members about the Commercial Vehicle Certification Label (a copy of the TMC Survey Summary is attached). The TMC received twenty-six responses (Table 1 only identifies carriers missing certification labels). FMCSA asked for information on the size of the CMV population that may lack certification labels. Eleven motor carriers of the twenty six responses (42%) indicated that they had missing or unreadable certification labels. FMCSA also asked for information on the size of the CMV population that lack certification labels because they were neither designed or certified to be FMVSS compliant. We could not find any carrier with such equipment.

Additionally, ATA received information from other motor carriers that they had missing or unreadable certification labels. Two of those e-mails are shown below.

“I just read a notice from the NYS Motor Truck Assoc. that there is a proposal to require FMCSS Certification labels on various vehicles. We have a major concern because we have numerous semi-trailers that the manufacturer is either out of business or have been bought by other companies. We have Dorsey, Fruehauf, Hyster, Montone, and Hill trailers that are no longer in business. Very often if we purchase a used trailer or other vehicle if it has been painted or cleaned there are no labels on them and you are lucky to find a boiler plate for the V.I.N. or axle or vehicle rating. Some manufacturers such as Rogers, Hyster and Tremcar only provide decals that do not hold up in the Winter and power washing. Rogers charges at least $150 for a replacement decal for their trailers. I only see major headaches if this enforced.” Name withheld by ATA; received Tue June 30, 2015, 10:06 AM

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“We received information from the WTA regarding certification labels on trucks, trailers etc. It appears that (We) would in fact be in violation if this were to become law. We have retail locations in eight different towns in Wyoming and the equipment that is in question is scattered throughout all eight. We currently have 15 trucks mostly Kenworth serving as propane delivery trucks, and bed trucks with cranes and knuckle booms that were built by various companies across the country that would be affected. We also own 29 trailers that would be in violation, the trailers are mostly propane trailers of various sizes ranging from 7000 to 20,000 gallons. Most of the trailer manufactures are out of business and providing a label would be impossible. If the certification label proposal becomes law, the replacement cost of this equipment would be so astronomical that we would be unable to offer the services that we currently have and the ultimate result would be layoffs of some of our current work force.” Name withheld by ATA; received, Wednesday, July 08, 2015 7:36 PM As these motor carrier emails illustrate, smaller fleets and start-up companies utilize used, older equipment. They are not the first purchasers of the tractors and trailers. New equipment costs can be prohibitive for them – and unnecessary where the used equipment is maintained in safe operating condition. More than 90 percent of the USDOT-registered motor carriers operate six trucks or less1. When the NPRM proposes that these small businesses “not use” even a single piece of equipment lacking a certification label -- absent a letter from the manufacturer one or two owners ago with whom that small business has had no direct dealings – FMCSA is directly affecting a significant percentage of that “six or fewer” motor carrier’s fleet. The problem is exacerbated when the motor carrier operates specialized equipment - equipment that is more costly and more difficult to obtain. Good businesses of any industry do not retain extra, unused equipment. Replacement of equipment “not used,” then, means purchase or lease, with the attendant costs and delays. By example, according to ACT Research Co., in May there was a 162,000 backlog of trailer orders, meaning that an order today will not be filled until next year. The sad irony is that the driver and equipment for any one of the 90% of motor carriers with six or less trucks may have passed a rigorous Level 1 roadside inspection with flying colors prior to this NPRM. ATA believes that the absence of manufacturer’s certificates is more likely among motor carriers who have older equipment – but who are thereby also the smaller fleets that get started with second-hand equipment. Similarly, the compliance costs are greater the more specialized the equipment. Several commercial vehicle manufacturers are no longer in business having gone

bankrupt or have been sold or just closed their doors, making the ability to obtain

a lost or defaced certification label letter impossible.

1 American Trucking Trends, 2015, page VI.

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Many manufacturers of trailing equipment are out of business and cannot provide certification. Carriers will be unable to get a certification letter from an “out of business” manufacturer and if this rule is promulgated the carrier will be forced to “not use’ that vehicle, at a significant cost to the carrier. Table 2 is a list of manufacturers identified by several motor carrier companies that made trailers, dollies and/or chassis and are now out-of-business, or sold to another company but whose equipment is still being operated. The table is likely to be only a partial list of manufacturers from which motor carriers will not be able to obtain missing certifications labels or letters of compliance.

TABLE 2 – Out-of-Business or Sold Commercial Vehicle Manufacturers

Company Name

Comments and Notes

Alloy Trailers

Bankrupt and sold to Alliance LLC in 1998. Bankruptcy Court Ruling: http://www.spokanejournal.com/local-news/bankruptcy-judge-oks-sale-of-alloys-assets/

Beall Trailers Beall Transport Equipment Co. 8 (BTEC) was bought by Polar Corp. in 2013 and was operating under bankruptcy protection since Sept. 2012. http://www.polartank.com/blog/?p=378http://www.polartank.com/blog/?p=37

Boydstun Metal Works

Went out of business in March, 2012 according to its Chapter 7 liquidation filing under bankruptcy. http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=6758590

Butler Tank Acquired by Bluescope Steel Limited in 2004. http://www.businesswire.com/news/home/20040215005107/en/Butler-Manufacturing-Company-Announces-Acquisition-BlueScope-Steel#.VZVel43bIdU

Cheetah Chassis http://www.truckpaper.com/listingsdetail/detail.aspx?OHID=1360904 No other information.

Comet Trailers

In the Spokane Chronicle News Digest, Comet Trailers was sold to Leonard Truck Lines in 1982. Comet was acquired by Reliance LLC sometime between 1982 and 2010, but Reliance LLC sold all trademarks including Comet to Cozad Trailer Sales LLC. Reliance (and thereby Comet) acquired by Cozad: http://www.cozadtrailers.com/en/news/https://news.google.com/newspapers?nid=1345&dat=19821108&id=V_1LAAAAIBAJ&sjid=aPkDAAAAIBAJ&pg=2386,2211942&hl=en.

Dorsey Trailers Bought by Pitts Enterprises in 2007. http://trailer-bodybuilders.com/trailers/pitts-purchases-dorsey-trailer

Fruehauff Bought by Wabash Trailers in 1997. http://www.nytimes.com/1997/03/15/business/wabash-to-acquire-fruehauf-trailer-assets.ht

HarDee Trailers HarDee Manufacturing, Inc. in Chapter 11 bankruptcy since August of 2000, purchased by Warren Equipment, Aug 2001. http://trailer-bodybuilders.com/truck-bodies/warren-purchases-hardee-manufacturing

Heartland Rig Filed for bankruptcy in 2004 and was bought by Loadcraft Industries Ltd. http://www.reporternews.com/business/drilling-rig-company-expanding-into-brownwood

Hyster Co Merged in 1993 with Yale Materials Handling Corp to become Hyster-Yale Materials Handling Inc. http://www.techagreements.com/agreement-preview.aspx?title=Hyster%20Yale%20Materials%20Handling%20-%20Agreement%20of%20Merger&num=512783 Hyster-Yale is a subsidiary of Nacco Industries Inc. http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=3720662

Jifflox A type of lock/connector to fifth wheel system and not a company in itself. The company that made those, TODCO, still has a website with a 2015 copyright. The Jifflox were recalled due to a fault in manufacturing (there’s a case with the US 6th circuit appellate court about it). It merged with Hercules Offshore Inc. in 2007, Merger: http://www.bizjournals.com/houston/stories/2007/03/19/daily1.html T ODCO http://www.todco.com/ Jifflox recall: http://www.recallsfinder.com/9999_todco_jifflox.htm

Lufkin Bought by General Electric in 2013. http://www.forbes.com/sites/abrambrown/2013/04/08/ge-

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adds-to-oil-business-with-3-3-purchase-of-lufkin-industries/ Stopped manufacturing trailers in 2008. http://www.lufkin.com/index.php/lufkin-trailers

Monon Trailers HPA Monon Corp. was sold to Vanguard National Trailer Corp. (subsidiary of China International Marine Containers Ltd.) in 2003. http://trailer-bodybuilders.com/archive/sale-hpa-monon-vanguard-complete

Montone Trailers Acquired by Dorsey in 1996. http://www.thefreelibrary.com/Dorsey+Trailers,+Inc.+Announces+1996+Results-a019037682

Pratt Industries There was a sale-leaseback deal with W. P. Carey Inc. in 2014. http://www.prnewswire.com/news-releases/w-p-carey-inc-closes-21-million-sale-leaseback-of-pratt-industries-manufacturing-facility-282686111.html

Road Systems Road Systems Inc. changed its name to Con-way Manufacturing to align itself more closely to Con-way Inc. http://www.prnewswire.com/news-releases/road-systems-inc-becomes-con-way-manufacturing-219792541.html

Stought Trailers Stoughton Trailers LLC which is a subsidiary of STI Holdings Inc. Apparently, Stoughton Trailers Inc. changed its name to STI Holdings Inc. in 2002. http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=11852137

Strick Corp Strick Trailers bought by Great Dame, http://connection.ebscohost.com/c/articles/7064211/great-dane-acquires-strick-trailer-plants

Trailmobile Was bought by New Life Transport Parts Center in 2009. Press Release: http://www.newlifeparts.com/newlife/trailmobile/index.html

Walker Stainless Walker Group was bought by the private investment firm Insight Equity in 2006. http://www.insightequity.com/2006/10/13/walker-stainless-steel-under-new-ownership/

Carriers will not easily get certification letters. Manufacturers may be reluctant to provide certification on older equipment for which they may not have maintained records, or out of fear of liability for equipment subsequently altered. In some cases, especially with intermodal chassis, many of which were manufactured overseas ten to fifteen years or more ago, it will not be possible to identify or find the manufacturer.

The NTSB recommendations were the result of a bus crash that the Board attributed to the driver’s failure, not the equipment let alone the standards to which it was manufactured. The recommendations have nothing to do with trucking operations.

The NTSB recommendation to the Federal Motor Carrier Safety Administration: “Seek statutory authority to suspend, revoke or withdraw a motor carrier’s operating authority upon discovering the carrier is operating any non-FMVSS-compliant passenger-carrying commercial motor vehicles, a violation of the FMVSS-compliant certification requested in Safety Recommendation H-09-40.” (H-09-41)

(H-9-40) “Require that passenger motor carriers certify on their OP-1(P) forms (Application for Motor Passenger Carrier Authority and initial MCS-150 form (Motor Carrier Identification Report [Application for USDOT Number]) and subsequent required biennial submissions that all vehicles operated, owned or leased per trip or per term met the FMVSSs in effect at the time of manufacture.” (H-9-40)

As is plainly stated, both these NTSB recommendations are directed at passenger-carrying commercial motor vehicle and not trucks.

Conclusions

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ATA cannot discern any safety benefit from a certification label for equipment that is not already covered more adequately and sensibly by the pre-trip and post trip inspection and maintenance requirements carriers already bear. ATA concludes there are no safety benefits and only continuing and relatively high compliance costs.

The certification label requirement in-place today only applies to the sale of new commercial vehicles, similar to the mattress tag on new mattresses. It does not apply to sales of used equipment, the purchasers of which cannot rely on the continuing validity of a certification label.

It is ironic that just last year FMCSA was touting the fact that they were significantly reducing motor carrier administrative costs of $1.7 billion, by eliminating the need to retain “no defects noted” driver vehicle inspection reports. Now, less than a year later, FMCSA is proposing a way to replace that savings with a totally unnecessary, costly burden with no apparent safety benefit.

The proposal fails to consider what a carrier is to do when a certification label is missing and the vehicle manufacturer is no longer in business. The NRPM assumes manufacturers never go out of business, never are sold to another company and never go bankrupt.

Based on data and information collected by ATA, the size of the CMV population that may lack certification labels or have unreadable certification labels may be as high as 42 percent, and for intermodal chassis could be much higher.

Lastly, in correspondence between FMCSA and NTSB in February2011, FMCSA stated that motor carriers domiciled in the United States and Canada cannot legally obtain noncompliant CMVs, the additional certification requirements yield few if any safety benefits.2

Other than a change in FMCSA Administrators, there has been no change to the existing rules regarding this issue and ATA can see no reason to require this burdensome rule now or in the future.

Ted Scott Director 703 838-1908 tscott@trucking.org

2 “http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-09-040” on 2/4/2011 CC#

201100050, - From Anne S. Ferro, Administrator

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