[Federal Register: December 17, 2008 (Volume 73, Number 243)]
[Rules and Regulations]
[Page 76793-76827]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de08-12]
[[Page 76793]]
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Part III
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 385, 386, 390, et al.
Requirements for Intermodal Equipment Providers and for Motor Carriers
and Drivers Operating Intermodal Equipment; Final Rule
[[Page 76794]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, 390, 392, 393, 396, and Appendix G to
Subchapter B of Chapter III
[Docket No. FMCSA-2005-23315]
RIN 2126-AA86
Requirements for Intermodal Equipment Providers and for Motor
Carriers and Drivers Operating Intermodal Equipment
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA adopts regulations to implement section 4118 of the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU). The regulations require intermodal
equipment providers (IEPs) to: register and file with FMCSA an
Intermodal Equipment Provider Identification Report (Form MCS-150C);
establish a systematic inspection, repair, and maintenance program to
assure the safe operating condition of each intermodal chassis;
maintain documentation of their maintenance program; and provide a
means to effectively respond to driver and motor carrier reports about
intermodal chassis mechanical defects and deficiencies. The regulations
also require IEPs to mark each intermodal chassis offered for
transportation in interstate commerce with a U.S. Department of
Transportation (USDOT) identification number. These new regulations,
for the first time, make IEPs subject to the Federal Motor Carrier
Safety Regulations (FMCSRs), and call for shared safety responsibility
among IEPs, motor carriers, and drivers. Additionally, FMCSA adopts
inspection requirements for motor carriers and drivers operating
intermodal equipment. Improved maintenance is expected to result in
fewer chassis being placed out-of-service (OOS) and fewer breakdowns
involving intermodal chassis, thus improving the Nation's intermodal
transportation system. Because inadequately maintained intermodal
chassis create risks for crashes, this final rule will also help ensure
that commercial motor vehicle (CMV) operations are safer.
DATES: Effective Date: This final rule becomes effective June 17, 2009.
Implementation Date: Intermodal equipment providers must comply
with the requirements for establishing systematic inspection, repair,
and maintenance programs, recordkeeping systems, and for submitting
Form MCS-150C by December 17, 2009. Intermodal equipment providers must
comply with the requirement to mark their intermodal chassis with a
USDOT identification number by December 17, 2010.
Deadline for Applications for Nonpreemption: Any State that wishes
to apply for a nonpreemption determination must submit the request to
the FMCSA Administrator no later than June 17, 2009.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than January 16, 2009.
ADDRESSES: Please include the Docket ID Number FMCSA-2005-23315 or
Regulatory Identification Number (RIN) 2126-AA86 in the subject line of
your application or petition, and submit it by any one of the following
methods:
Mail to: Administrator, Federal Motor Carrier Safety
Administration (MC-A), West Building--6th Floor, Room W60-308, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
Courier or Hand-Deliver to: The U.S. Department of
Transportation, Docket Operations, West Building--Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: through the Federal Docket
Management System (FDMS) at http://www.regulations.gov.
Public Access to the Docket: You may view, print, and
download this final rule and all related documents and background
material on-line at http://www.regulations.gov, using the Docket ID
Number FMCSA-2005-23315. These documents can also be examined and
copied for a fee at the U.S. Department of Transportation, Docket
Operations, West Building--Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations (MC-PSV), Federal Motor Carrier Safety Administration, 1200
New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-4325.
SUPPLEMENTARY INFORMATION:
I. Legal Basis
II. Background
III. Discussion of Comments Received on the Proposed Rule
General
Part 385--Safety Fitness Procedures
Part 386--Rules of Practice
Part 390--Federal Motor Carrier Safety Regulations
Part 392--Driving of Commercial Motor Vehicles
Part 393--Parts and Accessories Necessary for Safe Operation
Part 396--Inspection, Repair, and Maintenance
Enforcement Plan
International Implications
Implementation Date
Analysis of Safety Data
Economic Analysis
IV. Summary of the Final Rule
Part 385--Safety Fitness Procedures
Part 386--Rules of Practice
Part 390--Federal Motor Carrier Safety Regulations
Part 392--Driving of Commercial Motor Vehicles
Part 393--Parts and Accessories Necessary for Safe Operation.
Part 396--Inspection, Repair, and Maintenance
V. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures)
Regulatory Flexibility Analysis
Intergovernmental Review
Paperwork Reduction Act
National Environmental Policy Act of 1969 (NEPA)
Executive Order 12898 (Environmental Justice)
Energy Effects
Unfunded Mandates Reform Act of 1995
Civil Justice Reform
Protection of Children
Taking of Private Property
Federalism
List of Subjects
VI. The Final Rule
I. Legal Basis
This final rule is based on the authority of the Motor Carrier
Safety Act of 1984 (1984 Act) and the Motor Carrier Act of 1935 (1935
Act), both of which are broadly discretionary, and the specific
mandates of section 4118 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144,
at 1729, August 10, 2005, codified at 49 United States Code (U.S.C.)
31151).
The 1984 Act authorizes the Secretary of Transportation (Secretary)
to regulate drivers, motor carriers, and vehicle equipment. Codified at
49 U.S.C. 31136(a), section 206(a) of the Act requires the Secretary to
publish regulations on motor vehicle safety. Specifically, the Act sets
forth minimum safety standards to ensure that: (1) Commercial motor
vehicles (CMVs) are maintained, equipped, loaded, and operated safely
[Sec. 31136(a)(1)]; (2) the responsibilities imposed on operators of
commercial motor vehicles do not impair their ability to operate the
[[Page 76795]]
vehicles safely [Sec. 31136(a)(2)]; (3) the physical condition of CMV
operators is adequate to enable them to operate the vehicles safely
[Sec. 31136(a)(3)]; and (4) the operation of CMVs does not have a
deleterious effect on the physical condition of the operators [Sec.
31136(a)(4)].
The final rule establishes a program to ensure that intermodal
equipment (IME), mainly chassis \1\ interchanged to motor carriers and
used to transport intermodal containers, is safe and systematically
maintained. An intermodal chassis meets the definition of a
``commercial motor vehicle'' in the 1984 Act [49 U.S.C. 31132(a)(1)]
when used in interstate commerce because it ``has a gross vehicle
weight rating or gross vehicle weight of at least 10,001 pounds * *
*.'' FMCSA considered all four of the safety standards included in the
1984 Act when developing this rule. The rule will ensure that IME is
maintained, equipped, loaded, and operated safely [Sec. 31136(a)(1)].
Entities that interchange IME to motor carriers are required to
establish a program systematically to inspect, repair, and maintain
their equipment, if they do not already have such a program in place.
The pre-trip inspection responsibilities imposed on drivers do not
impair their ability to operate CMVs safely [Sec. 31136(a)(2)].
Maintaining IME to the level required by this rule will prevent some
roadside repairs and thus reduce the risk both of equipment failure and
of crashes when CMVs stop near traffic lanes. Both results may produce
a marginal improvement in the physical condition of drivers [Sec.
31136(a)(4)]. This rule does not deal directly with the medical
qualifications of CMV drivers [Sec. 31136(a)(3)].
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\1\ Intermodal chassis are specifically designed to transport
cargo containers. See Figure 11 of 49 CFR 393.11 for an
illustration. In theory Sec. 31151 also applies to flatbed trailers
which are occasionally used to transport containers, but is is very
unlikely such IEPs would interchange such equipment to motor
carriers; the maintenance of such equipment would almost certainly
be the responsibility of the motor carrier, not the IEP. Loaded
cargo containers are transported on ships and trains to ports and
rail facilities in the U.S. and then transferred to chassis trailers
for transportation by highway to their final destinations.
Similarly, empty containers may be loaded at shippers' facilities in
the U.S. and then transported on chassis trailers to ports and rail
yards for subsequent movement to other destinations in the U.S. or
abroad.
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The 1935 Act provides that the Secretary may prescribe requirements
for (1) qualifications and maximum hours of service of employees of,
and safety of operation and equipment of, a motor carrier [49 U.S.C.
31502(b)(1)], and (2) qualifications and maximum hours of service of
employees of, and standards of equipment of, a motor private carrier,
when needed to promote safety of operation [Sec. 31502(b)(2)]. This
final rule is based on the Secretary's authority to regulate the safety
and standards of equipment of for-hire and private carriers.
Finally, this rule implements the provisions of section 4118 of
SAFETEA-LU, entitled ``Roadability.'' Section 31151(a)(1) requires the
Secretary to issue regulations ``to ensure that intermodal equipment
used to transport intermodal containers is safe and systematically
maintained.'' Section 31151(a)(3) specifies a minimum of 14 items to be
included in the regulations, each of which is included in the final
rule or existing Agency procedures. Departmental employees designated
by the Secretary are authorized to inspect IME and copy related
maintenance and repair records (Sec. 31151(b)). Any IME that fails to
comply with applicable Federal safety regulations may be placed out of
service (OOS) by Departmental or other Federal, State, or governmental
officials designated by the Secretary until the necessary repairs have
been made (Sec. 31151(c)). State, local, or tribal requirements
inconsistent with a regulation adopted pursuant to Sec. 31151 are
preempted (Sec. 31151(d)). Specifically, any State requirement for the
periodic inspection of intermodal chassis by IEPs that was in effect on
January 1, 2005, is preempted on the effective date of this final rule
(Sec. 31151(e)(1), but preemption may be waived upon application by
the State if the Secretary finds the State requirement is as effective
as the Federal requirement and does not unduly burden interstate
commerce (Sec. 31151(e)(2)). All of the SAFETEA-LU roadability
provisions are implemented by this final rule.
II. Background
December 21, 2006, Proposed Rule, and April 13, 2007, Notice of Public
Listening Sessions and Reopening of Comment Period
On December 21, 2006, FMCSA published a notice of proposed
rulemaking (NPRM) (at 71 FR 76796) to implement section 4118 of
SAFETEA-LU. The public comment period for the NPRM closed on March 21,
2007. FMCSA published a notice to advise the public that it was
reopening and extending the comment period until May 21, 2007, for
interested parties wishing to present oral statements at the public
listening sessions (72 FR 18615, April 13, 2007). The listening
sessions were held on April 27, 2007, in Norfolk, VA; May 3, 2007, in
Port Newark, NJ; and May 18, 2007, in Long Beach, CA. Speakers included
representatives of national and local motor carrier and intermodal
industry associations, port operations organizations, a State agency,
organized labor, and individual drivers and motor carriers. The issues
and questions raised by speakers at the listening sessions were
consistent with the issues raised in the written comments.
Nevertheless, those oral presentations allowed FMCSA to learn more
about the concerns of intermodal equipment providers and operators and
to answer questions concerning FMCSA's proposals. Transcripts of the
listening sessions are in the docket.
III. Discussion of Comments Received on the Proposed Rule
FMCSA received 57 written comments from IEP, shipper, railroad, and
motor carrier organizations, trade associations, State and local
governments, State organizations, an industry consultant, labor unions,
a safety advocacy group, a Canadian railroad, and private citizens. The
commenters included the American Association of Port Authorities
(AAPA), the Commercial Vehicle Safety Alliance (CVSA), the Association
of American Railroads (AAR), the Institute of International Container
Lessors, Ltd. (IICL), the Intermodal Association of North America
(IANA), the National Association of Waterfront Employers (NAWE), the
Ocean Carrier Equipment Management Association, Inc. (OCEMA), the U.S.
Maritime Alliance (USMX), the American Trucking Associations (ATA), the
Canadian Trucking Alliance, the Motor & Equipment Manufacturers
Association, Clark Freight Lines (Clark), Den-El Transfer, Eagle
Systems, Inc., Schneider National Inc. (Schneider), Cowan Systems, LLC
(Cowan), Five Star Transport, All Ways Transportation, Inc., ConSurve,
Ohio State Highway Patrol (OHP), California Highway Patrol (CHP),
Maryland State Highway Administration (Maryland), Georgia Department of
Public Safety (Georgia), and Public Utilities Commission of Ohio
(PUCO), Advocates for Highway and Auto Safety (Advocates),
International Brotherhood of Teamsters (Teamsters), International
Longshore and Warehouse Union (ILWU), Owner-Operator Independent
Drivers Association, Inc. (OOIDA), Virginia Intermodal Management, LLC
(VIM), GE Equipment Services/Rail Services (GE), Pacific Maritime
Association (PMA), Pacer Stacktrain (Pacer), Terminal Maintenance
Company LLC, the Canadian National Railway Company (CNRC), and 19
individuals.
The following is a summary of the specific substantive issues
raised by
[[Page 76796]]
commenters, along with FMCSA's responses to them, grouped according to
the relevant sections of the proposed rule.
General
Although many commenters support the idea of IEPs being subject to
certain Federal Motor Carrier Safety Regulations (FMCSRs), they offered
divergent views on both the statutory provisions and proposed
regulatory policies. For example, Teamsters believe that the proposed
rules represent a significant step toward improving IME safety, but
contain significant gaps that could undermine the objective of
improving equipment safety. Maryland believes that although the intent
of the NPRM is good, its proposed implementation and execution are
problematic. CNRC expressed concern over potential conflicts between
Canadian and U.S. regulations that may have an adverse impact on trade
between the two countries.
Pacer maintains that the recently amended Uniform Intermodal
Interchange and Facilities Access Agreement \2\ (UIIA) creates a
market-based incentive for IEPs to ensure their equipment is properly
inspected and maintained.
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\2\ The Uniform Intermodal Interchange and Facilities Access
Agreement (UIIA) is a standard interchange contract, administered by
IANA, developed to promote intermodal productivity and operating
efficiencies through the development of uniform industry processes
and procedures governing the interchange of intermodal equipment
between ocean carriers, railroads, equipment leasing companies and
intermodal trucking companies.
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Pacer and USMX questioned the safety statistics used to justify the
proposed regulatory action.
FMCSA Response: FMCSA acknowledges commenters' concerns about the
implementation of 49 U.S.C. 31151. The Agency must implement the
statute, and our previous analysis of roadside inspection data
presented in the preamble of the 2006 NPRM provides an indication of
the safety need for this rule. As discussed in the NPRM, FMCSA
performed an analysis of roadside inspection data to compare the
vehicle violation and OOS inspection outcomes of intermodal container
chassis and non-intermodal trailers. The results of this analysis
confirmed that the percentage of intermodal container chassis operated
in an unsafe mechanical condition is greater than the percentage of
non-intermodal semitrailers operated in an unsafe mechanical condition.
Part 385--Safety Fitness Procedures
Advocates, Teamsters, ATA, and PUCO all expressed concern with the
proposal to conduct roadability reviews of IEPs without FMCSA assigning
safety ratings based on such reviews. Advocates argued that allowing an
IEP to undergo the equivalent of a safety fitness evaluation while
refusing to assign a rating does not advance motor carrier safety.
Advocates also disagreed with FMCSA's use of the Agency's Safety Status
Measurement System (SafeStat) database, because they believe SafeStat
has inadequate and flawed data sources and no statistical basis for
indicating high-risk motor carriers. Teamsters believe that assigning
safety ratings would not be a burden to motor carriers and IEPs, since
other entities that undergo compliance reviews receive safety ratings.
OCEMA and IICL stated that it is unclear from the proposed
regulations what defines the roadability review, when a roadability
review will be performed, or what criteria would trigger a review.
OCEMA and IICL believe that a definition of ``roadability review''
should be added to Sec. 385.3 and should include the criteria FMCSA
will consider in deciding whether to initiate such a review. Likewise,
IANA asked how FMCSA would decide whether there is a pattern of
recordable crashes or noncompliance that would warrant enforcement.
Teamsters commented that the rule should specify the frequency with
which such reviews will be performed and that penalties for
noncompliance should be mandatory. OCEMA and IICL also commented that
the criteria in Appendix A to part 385 for evaluating the results of a
roadability review are inapplicable to IEPs. These commenters
recommended that the Agency amend Appendix A to clearly define the
process applicable to IEPs or, in the alternative, add a separate
appendix relating to IEPs.
PMA and USMX stated that as a result of a roadability review, an
IEP might be prohibited from tendering equipment from multiple
locations. These commenters believe that each site must be evaluated on
its own merit and that such prohibitions should be limited to the
offending site. Additionally, Pacer stated that any deficiencies in
equipment found at the IEP's facility which the IEP does not intend to
interchange should not be considered in a roadability review.
CHP stated that the agency has experienced situations where
intrastate motor carriers of property whose permit for intrastate
operations has been suspended lease their equipment to motor carriers
that have an active intrastate permit. It recommends a provision to
prevent IEPs from leasing or selling equipment to other IEPs or motor
carriers, if they have been prohibited from tendering IME in interstate
commerce for reasons related to the unsafe condition of equipment.
FMCSA Response: Because a roadability review is significantly
limited in scope relative to a compliance review performed on motor
carriers, as currently defined in 49 CFR 385.3, the Agency will not
issue a ``safety rating'' to an IEP at the end of a roadability review.
The roadability review focuses on an IEP's maintenance program, rather
than a motor carrier's safety management controls. FMCSA has a full
array of enforcement and compliance tools to measure and ensure an
IEP's adherence to the FMCSRs, which includes, but is not limited to,
roadability reviews, targeted roadside inspections, notices of
violation, civil penalty proceedings, or imminent hazard OOS orders.
In a roadability review, FMCSA will assess an IEP's compliance with
the safety requirements of this final rule, specifically 49 CFR parts
390, 393, and 396. If the results of the roadability review indicate
that an IEP is not in compliance with the applicable regulations, the
Agency will cite the IEP for noncompliance and may impose civil
penalties. If an IEP's level of compliance with the FMCSRs is so poor
that its continued operation constitutes an imminent hazard to the
public, the Agency may prohibit the IEP from tendering its IME for
interstate transportation.
In response to Teamsters' comment that other entities subject to a
compliance review, such as motor carriers, hazardous materials (HM)
shippers, and cargo tank facilities, receive a safety rating, FMCSA
does not believe it is necessary to rate IEPs at this time. The
Agency's goal is to identify IEPs that fail to establish effective
inspection, repair, and maintenance programs and to take appropriate
action to bring about improved levels of compliance. A rating of the
IEP is not necessary to accomplish this safety objective. Additionally,
FMCSA is developing a new safety compliance assurance model through its
Comprehensive Safety Analysis (CSA) 2010 initiative where, among other
things, FMCSA is considering the elimination of safety ``ratings'' for
carriers, and to focus on the actual safety fitness determination.\3\
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\3\ The goal of CSA 2010 is to develop and implement more
effective and efficient ways for FMCSA, its State partners and
industry to reduce commercial motor vehicle crashes, fatalities, and
injuries. CSA 2010 will help FMCSA and its State partners contact
more carriers and drivers, use improved data to better identify high
risk carriers and drivers and apply a wider range of interventions
to correct high risk behavior. See http://www.fmcsa.dot.gov/safety-security/csa2010/home.htm.
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[[Page 76797]]
With respect to Advocates' criticism of FMCSA's use of SafeStat to
identify IEPs for potential roadability reviews, and their reference to
the findings of oversight organizations, FMCSA believes it is
appropriate to use algorithms, such as SafeStat, to target IEPs for
enforcement interventions. The algorithms do not, in and of themselves,
represent an assessment of the IEPs' maintenance programs but identify
at-risk IEPs that should be contacted by the Agency.
To determine if a given IEP should be prioritized for a roadability
review, FMCSA will evaluate the IEP's violation rates of the applicable
rules in 49 CFR parts 390, 393, and 396. The decision whether to take
enforcement action will generally be based on the results of the
review. If the IEP has significant compliance issues, it may be subject
to the civil penalties outlined in 49 CFR part 386. Noting Teamsters'
recommendation that penalties be mandatory, FMCSA will determine
through its enforcement policies and procedures the circumstances under
which civil penalty proceedings should be initiated against IEPs, the
same as it does with motor carriers.
As to OCEMA's and IICL's comments about the definition of the term
roadability review, it is defined in Sec. 385.3 of the final rule
(Sec. 385.501 in the NPRM). FMCSA will develop enforcement policies
and procedures for record sampling rates and thresholds for pursuing
enforcement cases based on the results of the roadability review
process.
Concerning the frequency of roadability reviews, FMCSA may initiate
a roadability review, for example: If an IEP is the subject of a non-
frivolous complaint, if an item of its IME (as identified in a police
accident report) is involved in a crash or HM incident, if an IEP has a
higher-than-average OOS rate for its chassis, or as a routine safety
oversight activity to determine its compliance with applicable
regulations.
FMCSA agrees with the comments of Pacer and of a participant in the
Long Beach listening session that IME that is held OOS and not intended
for interchange, such as by being ``red-tagged'' or physically
separated from other IME, should not be considered during the course of
a roadability review. FMCSA already has policies and procedures in
place for determining whether vehicle inspections should be conducted
during an on-site visit of a regulated entity and guidelines for the
selection of vehicles in this process. The Agency has revised the
regulatory text in Sec. 390.40(d) to clarify this issue. Regardless of
the actual condition of the IEP's intermodal equipment, FMCSA will
review some or all of its inspection, repair and maintenance files.
FMCSA agrees with PMA's and USMX's comments concerning the scope of
a prohibition against tendering of IME from multiple locations. Section
385.503(c) clearly states that the Agency has the discretion to
prohibit an IEP from tendering equipment from a particular location or
from multiple locations. The scope of the prohibition would depend upon
the nature and extent of the violations noted.
Responding to CHP's comment regarding IEPs that have been
prohibited from tendering IME in interstate commerce, an IEP that gains
possession or control of IME from an IEP that FMCSA has declared unfit
assumes all responsibility for the chassis. Section 390.40 clearly
designates IEPs as responsible for ensuring (1) all IME intended for
interchange with motor carriers is in safe and proper operating
condition (reference Section 390.40(d)), and (2) no IME is placed in
service on the public highways if that equipment has been found to pose
an imminent hazard, as defined in Sec. 386.72(b)(1) (reference Section
390.40(j)).
Part 386--Rules of Practice
Maryland believes that an IEP that misses an installment payment on
a civil penalty that has previously been assessed should correct this
deficiency within 30 days, not the 90-day time frame proposed in Sec.
386.83.
Advocates stated that they could not find any language in the
proposed regulation to indicate that FMCSA is prepared to act
immediately to stop the violation and place the equipment or the IEP
OOS. They point out that, currently 49 CFR 386.72(b)(1) states that an
``imminent hazard'' means a violation of certain statutes and
implementing regulations involving a vehicle, employee, or commercial
motor vehicle operations that substantially increases the likelihood of
serious injury or death if not discontinued immediately. Advocates
urged FMCSA to state unequivocally in the final regulation that the
Agency will act immediately to abate the hazard until adequate proof is
provided that the hazard will not recur.
FMCSA Response: In response to Maryland's comment about IEPs that
miss an installment payment on a civil penalty, the 90-day period
proposed in the NPRM is consistent with the existing requirement in 49
CFR 386.83(a)(2) for CMV owners and operators.
With regard to Advocates' concern about roadside OOS orders to
abate violations, there is a distinction between such orders and
imminent hazard orders. FMCSA personnel and State officials have always
had a process for placing unsafe vehicles, including IME, out-of-
service. Although the SAFETEA-LU provision creating 49 U.S.C. 31151(c)
gave the Agency explicit authority to place intermodal equipment out-
of-service, the Agency opted not to include this provision in the NPRM,
but has now included it in Sec. 396.9. In Sec. 396.9(d)(1), FMCSA
changed the regulatory text to require the driver to provide the report
of IME placed OOS to the motor carrier or IEP. In Sec. 396.9(d)(2), a
sentence has been added requiring that repairs of items of IME placed
OOS must be documented in the maintenance records for such equipment.
Part 390--Federal Motor Carrier Safety Regulations
Section 390.5, Definitions
ATA and NAWE are in agreement with FMCSA's proposal to use the
exact language of the statutory definition of ``intermodal equipment
provider.'' Most other commenters, however, stated that this definition
is ambiguous and confusing. IICL commented that contractors performing
maintenance work are not classified as IEPs unless specifically
identified as such in contract language. AAR commented that under this
definition, more than one entity could qualify as an IEP. According to
AAR, the entity with the written interchange agreement could be
different from the entity with the contractual responsibility to
maintain the IME, and through subcontracting efforts, more than one
entity could have a contractual responsibility for maintaining the
equipment. IANA estimates the UIIA governs the interchange of more than
90 percent of intermodal loads and believes the UIIA standard document
should be incorporated by reference into the FMCSA rules. AAR and CNRC
believe FMCSA should assign responsibility for compliance with the
regulations to one IEP--the one whose USDOT and other identification
number appears on the IME. Schneider recommended that if the owner of a
chassis enters into a long-
[[Page 76798]]
term lease, the long-term lessee should be the IEP. GE suggests the
party with direct physical control over the facility where the
equipment is staged and made available to motor carriers is in the best
position to comply with the requirements to maintain IME outlined in
the proposed regulations.
Pacer and ConSurve commented that the definitions of interchange
and IEP need to be clarified as they relate to equipment pools.
GE believes that the reference to ``trailers'' in the proposed
definition of intermodal equipment could be misunderstood to include
intermodal truck trailers in common use--even those not used to
transport intermodal containers. To prevent confusion, GE contends that
the definition of intermodal equipment be limited to trailers used to
carry intermodal containers and intermodal container chassis. IICL made
a similar comment.
FMCSA Response: On the question of whether a vendor performing
maintenance could be considered an IEP, FMCSA acknowledges the
difference pointed out by several commenters between the text of the
preamble and the text of the proposed regulation. The text of the
proposed regulation was correct because it reflected the statutory
language in section 31151(f)(3); the NPRM preamble contained an error.
FMCSA agrees with IICL's statement that the IEP is the party
responsible for ensuring performance of systematic inspection, repair,
and maintenance rather than a vendor or operator who is performing
local services on behalf of an IEP. FMCSA also agrees with GE's comment
suggesting that the party with direct physical control over the
facility where the equipment is staged and made available to motor
carriers would be in the best position to comply with the requirements
outlined in the proposed regulations. That is not necessarily the final
answer, however.
The party responsible for the maintenance of the IME (for example,
a long-term lessee) could be considered the IEP, as long as the entity:
(1) Is the party interchanging the IME; and (2) also provides for its
systematic inspection, repair, and maintenance. Indeed, the entity
shown on an interchange agreement may contract with a third party to
provide inspection, repair, and maintenance services. In some cases,
such as in a port-wide chassis pool, the third party may be the one
tendering the equipment, and thus would be the IEP. In others, the
third party may provide maintenance services (e.g., by having
maintenance technicians and their equipment at an IEP's facility), but
does not itself tender IME to motor carriers. The intent of this final
rule is to ensure that each intermodal chassis is systematically
maintained by the entity that offers it for transportation in
interstate commerce. When the owner of IME places its equipment in a
pool and relinquishes its control to a pool operator that is
contractually obligated to maintain the equipment, the pool operator
would be considered the IEP.
The definitions for the terms ``Intermodal Equipment Agreement''
and ``interchange'' used in the NPRM were taken directly from 49 U.S.C.
31151(f)(2) and 31151(f)(4), respectively. Given the statutory
language, FMCSA does not believe it is appropriate to consider IANA's
request to include a reference to the existing standard industry
procedures and definitions in the UIIA.
As for GE's comment that the reference to ``trailers'' in the
proposed definition of intermodal equipment could be misunderstood to
include intermodal truck trailers in common use, the definition for the
term ``intermodal equipment'' was taken directly from the text of
section 31151(f)(1). That definition, and the Agency's regulation, both
include the phrase ``used in the intermodal transportation of
containers over public highways in interstate commerce, including
trailers and chassis.'' Thus, it is clear that the definition for
``intermodal equipment'' applies to trailers that are used in
intermodal transportation and not those in common use.
Section 390.15, Assistance in Investigations and Special Studies
Teamsters, ATA, and CHP objected to the proposal to exempt IEPs
from the requirement to maintain an accident register under Sec.
390.15(b). Teamsters believe this requirement would undermine the
effectiveness of the proposed rule because this information is
important not only for assessing the effectiveness of the rule, but
also as a tool to help FMCSA document patterns of noncompliance by
IEPs, and as a guide for the industry and policy makers in the future.
ATA commented that because documentation is a key element to ensure
that chassis repairs are actually completed, IEPs should be required to
maintain, and make available to inspectors, all records related to
chassis damage and the subsequent repairs. Such documentation would
also aid in compliance audits that will be undertaken pursuant to these
regulations.
CHP recommended including a requirement for motor carriers involved
in a recordable collision, while operating IME, to forward a copy of
the report required pursuant to Sec. 390.15(b) to the IEP and for the
IEP to retain such reports in the same manner as required of the motor
carrier.
FMCSA Response: FMCSA believes that the ability to track crashes
involving IME does not require the IEP to maintain an accident
register. The IEP is not likely to be made aware of a crash involving
its IME unless a chassis unit is damaged and returned to the IEP in
need of repair, or the motor carrier reports the crash to the IEP.
Motor carriers are encouraged to document such crashes and report the
information to FMCSA if they believe the mechanical condition of the
IME contributed to the crash.
With respect to CHP's comment about motor carriers not having an
incentive to report IME damage sustained in a collision, and ATA's
comment concerning the IEP's responsibility to make available all
records related to chassis damage and subsequent repairs actually made,
the new requirement under Sec. 396.12 requires motor carriers to
report ``any damage, defects, or deficiencies'' [emphasis added], and
would require IEPs to maintain inspection, repair, and maintenance
records required under Sec. 396.3(b).
Section 390.21, Marking of Self-Propelled CMVs and Intermodal Equipment
FMCSA proposed that each unit of IME be marked with a USDOT number
but requested comment on what other unique identification numbers could
serve the same purpose as the USDOT number. ATA, PUCO, OHP, Advocates,
and Georgia believe using a USDOT number to mark IME is the best
option. Other commenters disagreed, citing concerns about the
practicality of this requirement.
Several commenters suggested, as an alternative, that the IEP could
use the current unique identifiers approved by the American Association
of Railroads and the Intermodal Equipment Register.
In addition to their individual comments, IICL, IANA, OCEMA, and
AAR joined the AAPA, the NAWE, and the USMX (Consensus Group) to
``offer a consensus solution to the issue of intermodal equipment
identification numbers * * *.'' The Consensus Group supported use of
the 10-character alphanumeric identifier currently in use to mark IME.
The Consensus Group stated that although SAFETEA-LU requires that IME
be matched to an IEP through a unique identifying number,
[[Page 76799]]
there is no law specifying that a particular provider number be marked
on a chassis.
To support its recommendation, the Consensus Group pointed out
that: (1) The affected chassis are already marked with the unique 10-
character identifier, (2) marking 850,000 chassis in service in the
U.S. with a particular provider number would cause confusion and would
take as much as two years to complete at substantial cost, and (3) the
10-character identifier is already used by State and local enforcement
personnel.
The Consensus Group also recommended the establishment of a Web-
based equipment registry through IANA to record and maintain IEPs and
equipment identification numbers in an online database that would be
accessible to Federal, State, and local enforcement authorities, as
well as industry participants, on a real-time basis.
VIM supported the Consensus Group registry proposal; however,
another alternative proposed by VIM is to use a sticker similar to
those used to show compliance with the inspection process under part
396. The sticker could be designed to last at least 12 months and could
display the name and contact information of the IEP. VIM proposed that
such a sticker be used as a substitute for the Agency's proposed method
of identification.
In some cases, motor carriers are also IEPs. CHP stated that its
Biennial Inspection of Terminals (BIT) program requires motor carriers
in California to have a carrier identification number issued by the
CHP, and because 95 percent of these entities are motor carriers who
are already required to mark their power units with their
identification number, use of another identification number was not
necessary.
FMCSA Response: SAFETEA-LU has two requirements regarding
identification: (1) To identify IEPs responsible for inspection and
maintenance, and (2) to match IME to an IEP through a unique
identifying number.
As several commenters noted, each item of IME already has a unique
ID number: The Standard Carrier Alpha Code (SCAC) code, consisting of a
4-character alphabetic field identifying the owner of the IME, followed
by a 6-digit numeric field unique to the individual item of equipment.
However, the SCAC code does not necessarily identify the IEP. As
several commenters noted during the listening sessions, third parties
(such as equipment pools) may have the responsibility for systematic
inspection, repair, and maintenance of IME. In some cases, they might
be responsible for a particular item of IME for months or years.
However, as was stated at the Norfolk listening session, the Hampton
Roads chassis pool ``loses'' about 400 chassis per month to other
locations and ``gains'' about 400 per month from other ports.
Three main alternatives for physically identifying IME were offered
by FMCSA and commenters:
1. Assign a USDOT number and require marking IME as proposed in the
NPRM and in accordance with Sec. 390.21 requirements. This has the
advantage of being consistent with the current regulations concerning
power units. It has the potential disadvantage of high costs because
chassis would have to be re-marked when they are transferred to
different IEPs, which can easily happen several times a year.
2. Do not mark IME with a USDOT number, but instead use a database,
such as IANA proposed, to track the IEP according to the 10-character
SCAC code on the IME. The advantages associated with this alternative
would be that no new marking of IME would be required and there would
be no new costs associated with the activity. However, the potential
costs for IEPs to establish and participate in the database, and for
FMCSA and its Motor Carrier Safety Assistance Program (MCSAP) partners
to access it, are unknown. The potential disadvantages are that the 10-
character number does not necessarily identify the IEP; rather, the 10-
character number identifies the chassis owner. Thus, IEPs would need to
continually update their lists of units of IME for which they are
responsible to make the information useful to one another and to the
safety agencies accessing it. IANA estimated it would need at least 9
months to establish the database and to provide access control.
3. Assign a USDOT number, but allow it to be used on an IEP-
specific sticker, similar to a Periodic Inspection (PI) form. This
alternative was suggested by VIM in both its comments to the docket and
at the Norfolk listening session.
FMCSA believes the third alternative provides the IEP-specific
identification called for by the legislation and does so in a far less
time-consuming and costly manner than was proposed in the NPRM.
Therefore, the final rule provides for the assignment of USDOT numbers
to IEPs through the same FMCSA process (49 CFR 390.19) as used for
motor carriers. However, instead of requiring marking of chassis in the
manner currently specified by 49 CFR 390.21, the rule allows the IEP
the following four options to identify its IME:
(1) Use a label or other method of marking that identifies the IEP.
The label or other marking must be maintained in a manner that retains
its legibility. Alternatively, it must be protected from moisture and
other damage (e.g., by use of a weatherproof container on the IME of
the kind currently used for vehicle registration documents).
(2) Identify the IME on the interchange agreement, if that document
includes additional information to identify the specific item of IME
(such as the Vehicle Identification Number (VIN) and the SCAC code and
6-digit unique identifying number). This second alternative is
functionally similar to the identification requirements for rented
CMVs, described in Sec. 390.21(e)(2)(iii). A copy of the interchange
agreement must be present while the vehicle is in transit. The IEP
identification must be readily available and easily identifiable so it
can be noted by a Federal, State, or local safety enforcement official
during an inspection.
(3) Mark the IME with a USDOT number in the same manner required
under Sec. 390.21, except the marking will only be required on the
curb side of the equipment in order to minimize costs to IEPs.
(4) Identify the IEP on trailer documentation carried in a
weatherproof compartment attached to the item of IME. The document must
include additional information to identify the specific item of IME,
such as the VIN and the SCAC code and 6-digit unique identifying
number. This alternative is similar to alternative (2) above, but
provides another option that some IEPs might find preferable. As in
alternative (2), the IEP identification must be clearly available and
clearly identifiable so it can be noted by a Federal, State, or local
safety enforcement official during an equipment inspection.
In order to provide IEPs sufficient time to inventory their
equipment and implement procedures to identify their IME, the final
rule allows IEPs until December 17, 2010 to comply with this
requirement. FMCSA acknowledges the logistical challenges IEPs will
collectively face in accounting for hundreds of thousands of chasses
and implementing a system for marking such chassis. During the
implementation period, IANA and its partners may continue their efforts
to demonstrate the feasibility of their system for future consideration
by the Agency. The Agency emphasizes that
[[Page 76800]]
IEPs must establish and implement maintenance programs much sooner than
the marking requirements to ensure there are no delays in the efforts
to improve safety.
Section 390.40, Responsibilities of IEPs
1. The Phrase ``Timely Manner''
OOIDA, Maryland, IICL, CNRC, USMX, PMA, Schneider, NAWE, OCEMA,
ATA, and IANA expressed concern with the proposed language of Sec.
390.40(h) that ``repairs or replacement must be made in a timely manner
after * * *'' an IEP has been ``notified by a driver of such damage,
defects, or deficiencies.'' The consensus of many of these commenters
is that the phrase ``timely manner'' is vague, impractical, and thus
possibly unenforceable. The recommendations offered by commenters to
address the ambiguity range from deletion of the ``timely manner''
requirement (IICL), to requiring that the repair be made within 30
minutes (Schneider), to allowing up to 10 days (Teamsters) to comply
with this requirement.
PMA, USMX, and NAWE, in a supplemental comment, emphasized two
points: (1) That an artificial time frame sacrifices safety for speed;
and (2) that this issue concerns a commercial operational and economic
issue in which FMCSA should not be involved, because the mission of the
FMCSA is truck safety. OCEMA also submitted a supplemental comment on
the propriety of FMCSA adopting a regulation relating to the timeliness
of repairs or replacements. An AAR supplemental comment expressed
similar concerns.
Teamsters, OOIDA, and Maryland are concerned about the effect of
the new rules on the amount of time a driver will spend waiting after a
defect has been found in IME, as most drivers are paid only when they
are driving. Teamsters recommended that the IEP either pay the driver
for the waiting time or immediately provide alternate equipment in good
condition. In addition, Teamsters recommended that the rules include
provisions to protect drivers from carriers who are apt to retaliate
against any driver who reports defects or damage to IME.
Similarly, OOIDA stated that drivers reporting deficient equipment
to an IEP are routinely made to wait, uncompensated, for long periods
of time for repairs to be made at IEP facilities. To help avoid long
delays, it is common for drivers to carry tools and certain replacement
parts, such as lights, and make minor repairs themselves.
OOIDA is concerned that the ``timely manner'' provision will not be
enforced and the level or number of complaints required to trigger an
investigation of IEP violations under Sec. 390.40 is not defined.
FMCSA Response: In response to these concerns on the use of the
phrase ``timely manner,'' one alternative FMCSA considered was to
replace the word ``timely'' with a fixed period of time in Sec.
390.40(h). This would address the concerns expressed by motor carriers
and drivers who may be required to spend time waiting for an IEP to
repair or replace IME if, for whatever reason, the IME was not in safe
and proper operating condition beforehand. It would also eliminate the
questions that are likely to arise from use of the NPRM's imprecise
term, ``timely.'' However, FMCSA believes setting a specific time limit
could have a number of negative consequences as well. For example, it
could result in an overemphasis on the time element of the IME
interchange process, leading to incomplete repairs by IEPs or to
frivolous complaints by drivers and motor carriers when IEPs exceed the
time limit.
The other alternative considered by FMCSA was to remove the word
``timely'' from the proposed Sec. 390.40(h). Although this would
satisfy the concerns of commenters who contend repair or replacement of
IME is an operational issue outside of FMCSA's jurisdiction, removing
the word ``timely'' could be viewed as allowing a continuation of the
status quo for those IEPs tendering equipment in need of repairs to
drivers and requiring them to decide between accepting it and risking
delays (at best) and crashes (at worst).
FMCSA decided to remove the term ``timely'' from the final
regulatory text. At the same time, the Agency adds a new provision to
Sec. 390.40(d) to require IEPs to ensure that equipment intended for
interchange is in safe and proper operating condition.
These revisions to the regulatory language serve two purposes.
First, the new text of Sec. 390.40(d) reemphasizes the language of 49
U.S.C. 31151(a)(l) ``* * * equipment used to transport intermodal
containers is safe and systematically maintained.'' The provision is
intended to ensure IME is in proper working order and has been
systematically maintained before it is interchanged with a motor
carrier. Second, the Agency acknowledges that the word ``timely'' is a
subjective description and it is not necessarily in the best interests
of the tendering or receiving party to specify a time limit for making
repairs or replacing IME.
Although OOIDA expressed concern that FMCSA would not ``act
aggressively'' to address complaints of drivers being coerced to accept
defective IME or to endure lengthy waits for repairs or replacements of
defective IME, FMCSA will consider for appropriate handling each non-
frivolous complaint. The Agency encourages drivers to call the Agency's
Safety Violation Hotline (1-888-DOT-SAFT) if they believe IEPs have
violated the FMCSRs. Non-frivolous complaints lodged against IEPs will
be investigated and may result in a roadability review or other type of
enforcement and compliance intervention. If the IME has defects or
deficiencies that an IEP decides are not repairable, it is the IEP's
choice as to how to address the IME situation. The IEP must not offer
defective IME for interchange to the carrier for transport in
interstate commerce.
SAFETEA-LU does not provide the Agency with statutory authority to
establish rules concerning driver compensation. This issue is more
appropriately addressed through contractual arrangements or other
business agreements between motor carriers (or independent owner-
operators) and an IEP.
With respect to implementing a requirement suggested by Teamsters
to require replacement IME to be provided ``immediately,'' the Agency
believes ``immediately'' would be just as difficult to translate into a
consistent time period as ``timely.'' Additionally, drivers who believe
they have been penalized by their employers for refusing to violate the
FMCSRs are afforded statutory protections and may file a complaint with
the U.S. Department of Labor's Occupational Safety and Health
Administration (see 49 U.S.C. 31105).
2. Other Comments on Sec. 390.40
Teamsters commented that the proposed requirements for reasonable
space and repair-replace procedures in Sec. 390.40(g) are a core
element in ensuring that the existing driver pre-trip walk around
inspection (requiring the driver to confirm that the equipment is in
good working condition) will be made. CNRC is concerned that the
proposal would impose significant space restraints on intermodal
facility operators, particularly if more than one IEP required space in
the facility to make repairs to damaged IME. CNRC also commented that
the requirements would be impractical if repairs are needed at an
intermodal terminal where the IEP does not offer IME for interchange.
Similarly, OCEMA stated that the majority of chassis interchanges will
occur at facilities not under the control of the equipment provider.
[[Page 76801]]
Finally, NAWE stressed that the equipment interchange may take place at
a ``facility'' other than at a marine ``terminal.''
Advocates stated that they could not find any language in the
proposed regulation that states FMCSA is prepared to act immediately to
stop a violation of Sec. 390.40(i), which prohibits placing IME in
service if it poses an imminent hazard, and to place the equipment, or
the IEP as a company, OOS. Advocates urged FMCSA to state unequivocally
in the final regulation that the Agency will act immediately to abate
any imminent hazard until adequate proof is provided that the hazard
will not recur.
FMCSA Response: As to space constraints, nothing in the rule would
prohibit IEPs or any repair or maintenance providers with which they
may contract, from sharing their resources, including facility space,
maintenance technicians, repair services, equipment, or parts to make
repairs to defective IME. Individual IEPs and maintenance facilities
are in the best position to negotiate and work together to improve the
safety of intermodal equipment and establish reasonable space and
repair-replace procedures for defective IME. In doing so, they may well
find they are all able to achieve improvements in productivity and
reductions in costs.
With regard to the Advocates' concern about FMCSA acting
immediately to prevent IME in need of repairs from being interchanged,
there are two issues to consider: The ability of FMCSA to abate an
imminent hazard, and the amount of time for FMCSA to respond to a
complaint of defective IME being tendered. The Agency adopts regulatory
text under Sec. 386.72 to describe the process by which it can take
action against IEPs that constitute an imminent hazard, as authorized
by 49 U.S.C. 521(b)(5)(A).
As discussed in the section concerning making repairs in a ``timely
manner,'' the term ``immediately'' is subjective and would result in
difficulties in enforcement. Therefore, FMCSA does not indicate a
specific time frame for addressing these issues.
Section 390.42, Procedures To Correct Safety Records
OCEMA expressed concern about the proposed procedures for
correcting safety records. It states that SAFETEA-LU provides a
procedure under which motor carriers, drivers, and IEPs may seek
correction of their motor carrier safety records, regardless of whether
the data is released to the public. OCEMA argued that the language
proposed by FMCSA limits the correction process required by the statute
to the filing of questions and concerns about information released to
the public, with no recourse for information that is not released to
the public.
Teamsters are concerned that the proposed rules may allow IEPs and
motor carriers to redirect a citation to a driver, who is usually
classified as an independent contractor (a classification Teamsters
dispute). Teamsters stated that if this is not FMCSA's intent, the
rules should reflect that while motor carriers and IEPs may have their
records corrected, the appropriate party to receive the citation should
be either an IEP or a motor carrier, not a driver.
OCEMA further commented that challenges to data provided by State
agencies must first be resolved with the appropriate State agency. As
an example, OCEMA suggested a situation where a minor defect (e.g., a
damaged mud flap or a burned out light) that should have been caught
and fixed by the driver, or that occurred after the driver left the
terminal, might be attributed to the IEP whose identifying number is on
the side of the chassis, potentially leading to an unwarranted
roadability review. OCEMA recommends structuring SafeStat such that
certain minor violations are not included in that database. In
addition, OCEMA believes that drivers are only required to conduct pre-
trip inspections and be satisfied that components are in good working
order before the equipment is operated on the road. OCEMA contends that
there is no mandatory requirement to certify the equipment condition as
having passed a pre-trip inspection. Thus, it is OCEMA's understanding
that the failure of a driver to report a defect establishes a
presumption that items on the inspection list were in good working
order when the equipment left the IEP's facility and that the text of
proposed Sec. 390.42 should be revised to reflect that presumption.
PMA agreed, and also suggested alternative rule language. Further, PMA
commented that, to avoid frivolous complaints and unnecessary reviews
under this section, roadability reviews based on driver complaints
should require adequate evidentiary support for the complaint.
FMCSA Response: IEPs and motor carriers may seek corrections to any
information they believe the Agency maintains about their operations,
regardless of whether the information is made available to the public.
The Agency does not intend to limit the data that IEPs and motor
carriers may seek to correct, and has therefore removed the phrase
``data released to the public'' from the final rule. FMCSA routinely
releases information to the public through its various Web sites, and
to motor carriers and other parties in response to requests for data.
Interested parties that are aware of inaccurate information are
encouraged to contact the Agency to provide corrections to the
information.
FMCSA considers non-frivolous complaints to be written allegations
of a violation of the FMCSRs containing sufficient information, such as
names of involved individuals or specific circumstances warranting
further investigation. FMCSA has policies and procedures already in
place for responding to such complaints involving motor carriers, and
the same approach may be used for IEPs.
The final rule does not provide a process through which IEPs may
redirect equipment citations from themselves to drivers. Generally,
State and local enforcement agencies determine the entity to which
citations for certain offenses will be issued. The Agency does not seek
to resolve this particular issue by attempting to prescribe through
regulation how individual State and local enforcement programs must be
run. FMCSA's interest is to ensure that equipment safety violations
found on trailing units and on power units be properly recorded so they
can be addressed by the parties responsible for each CMV's systematic
inspection, repair, and maintenance.
In response to comments by OCEMA and Teamsters, stating FMCSA
should clarify the criteria for determining what types of defects
should be considered detectable by the driver who will be transporting
the IME, the Agency restates its intent that the implementing
regulation ensure IEPs have in place systematic inspection, repair, and
maintenance programs so the IME they tender to motor carriers is in
safe and proper operating condition. The final rule includes a
requirement for drivers to perform a pre-trip inspection to check the
mechanical condition of the IME before it is operated on public roads.
This is necessary because even IME maintained by the most safety-
conscious IEP may have some defects or deficiencies that appear between
the time the IME is reviewed at the end of one trip and the time it is
tendered for its next trip.
Section 31151(a)(1) [49 U.S.C. 31151(a)(1)] requires FMCSA to issue
regulations ensuring IME used to transport intermodal containers is
safe and systematically maintained. The final rule establishes
programmatic responsibility for IME maintenance.
[[Page 76802]]
However, the statute also carries the expectation FMCSA will issue
regulations clearly indicating that a motor carrier accepting IME for
transport will take seriously the requirement that the driver be
satisfied that IME parts or accessories are in good working order.
FMCSA recognizes that, although a driver is not generally in a position
to perform an in-depth inspection of IME, the driver has a
responsibility to assess whether IME components that can be inspected
without going underneath the chassis (e.g., lighting devices and tires)
are in good working order. The final rule includes this requirement in
Sec. 392.7(b).
FMCSA acknowledges OCEMA's concern that some drivers may fail to
report a defect under the requirements of Sec. 390.42(a). Although a
driver is required to be satisfied the IME is in safe and proper
operating condition before operating it, the Agency did not include a
provision in the NPRM for carriers to adopt a particular method to
document the visual or auditory inspections of the various components
the driver would check. The Agency agrees with OCEMA that IEPs should
not be held responsible for citations on equipment a motor carrier has
``certified as passing the pre-trip inspection'' under Sec. 392.7(b).
There are many components and many potential defects a driver would
not be able to see or hear during the pre-trip inspection. Essentially,
IEPs are responsible for ensuring the safe and proper operating
condition of the IME they are tendering to motor carriers for use in
interstate commerce. This premise is clearly embedded in the
roadability provisions of the statute.
In response to OCEMA's recommendations that FMCSA's SafeStat
database not include ``certain minor defects,'' such as burned out
lights and lamp problems, FMCSA disagrees. Approximately 50 percent of
OOS violations in three of the four States analyzed by FMCSA
represented such minor defects. FMCSA believes a pattern of violations,
especially OOS violations, may point to serious gaps in an IEP's
inspection, repair, and maintenance program.
This rule, for the first time, makes IEPs subject to the FMCSRs.
Fundamentally, IEPs must systematically inspect, repair, and maintain
IME (for both major and minor defects) that is intended for interchange
with a motor carrier. The rule also imposes additional requirements on
motor carriers and drivers operating IME, who must satisfy themselves
that certain IME parts and accessories are in good working order before
they operate it over the road. They must also report any known damage
or deficiencies to the IEP at the time the equipment is returned.
Compliance gaps could originate from IME defects not being reported to
an IEP, the IEP not having a process in place to receive the reports,
the IEP not taking action upon the reports it receives, or a
combination of all of these scenarios. It might be necessary for FMCSA
to perform a roadability review of an IEP's operations to determine the
root causes for patterns of violations, and whether the causes could
lead FMCSA to focus on a party other than the IEP.
The distribution of intermodal semitrailer violations described in
Table 7 of the NPRM (71 FR at 76806) fell into 3 main categories:
Lamps, tires, and brakes. Lamps accounted for 34 percent of the
violations; tires, 12.2 percent; and brakes, 13.8 percent. The OOS
violations described in Table 10 of the NPRM (71 FR at 76808-76809)
fell into 4 main categories: Brakes, tires, lamps, and container
securement. The distribution was brakes, 35.3 percent; lamps, 31.4
percent; container securement, 18.6 percent; and tires, 7.5 percent. In
the aggregate, more than 90 percent of the OOS violations fell into
these 4 categories, pointing to some relatively straightforward areas
for IEPs to focus upon when establishing their intermodal equipment
maintenance programs.
FMCSA agrees with OCEMA's statement that a driver's failure to
report a defect establishes a presumption that items on the inspection
list were in good working order when the IME departed the facility. The
IEP is responsible for the systematic inspection, repair, and
maintenance of the IME they tender to motor carriers. But drivers are
also responsible for making an inspection of IME components before
operating that equipment, and their failure to report a defect creates
a presumption that items on the inspection list were in good working
order when the IME departed the IEP's facility. This rule requires that
the driver must be satisfied that the IME is in good working order
before the equipment is operated over the road, and that drivers
preparing to transport intermodal equipment must make a visual or
auditory inspection, as appropriate, of certain components before
operating the equipment over the road.
Section 390.44, Responsibilities of Drivers and Motor Carriers
A number of commenters expressed concern with the Agency's
assignment of responsibility for compliance. Teamsters and OOIDA
believe that the proposal does not ensure the IEP, and not the driver,
will be held responsible in certain situations. OOIDA believes the
discussion in the NPRM preamble gives deference to the UIIA, which it
contends favors the IEPs. It is also concerned that a lack of
discussion on responsibility for hidden IME defects will result in
drivers being issued citations for those equipment violations.
Teamsters believe the driver's responsibility to inspect and report IME
defects or damage should be accompanied by a provision protecting
drivers from retaliation from motor carriers and IEPs.
PUCO and OCEMA believe that the responsibility for IME should be
shared between IEPs, motor carriers and drivers. In OCEMA's view,
drivers are expected to make minor repairs to IME. Clark recommends
that the rules should require the driver and the equipment owner's
representative to both sign the pre- and post-trip inspection report to
eliminate any possible dispute of the equipment condition and repairs
noted on the Post Trip Inspection report. Pacer commented that the
final rule should ensure responsibility for any defects not reported to
the IEP remain with the motor carrier.
Some commenters suggest specific changes to the proposed inspection
and reporting requirements. ATA recommends that when a driver discovers
an equipment deficiency during the pre-trip inspection, documentation
of both the deficiency and subsequent repair should be required. To
facilitate implementation and standardization, ATA also recommends that
FMCSA adopt the industry's interchange agreement, the UIIA, Exhibit A,
as the basis for the pre-trip deficiency report. Similarly, Teamsters
argue that Sec. Sec. 390.44, 392.7(b), and 396.11(a)(2) impose three
separate, but overlapping inspection requirements on drivers. Teamsters
recommend these requirements be consolidated in one uniform list.
Maryland recommends the language used in proposed Sec. 390.44 be
consistent with that contained in Sec. 396.13.
AAR suggests FMCSA add a paragraph (c) in Sec. 390.44 to ensure
there is one company that has responsibility as an equipment provider
for every piece of IME. Paragraph (c) would read as follows: A driver
or motor carrier shall not transport intermodal equipment that is not
marked with an identifying number pursuant to Sec. 390.40(b).
FMCSA Response: These new regulations call for shared safety
responsibility between IEPs, motor
[[Page 76803]]
carriers, and drivers. (Here, as elsewhere in this discussion, drivers
are acting as agents for their motor carriers.) IEPs must have
systematic inspection, repair, and maintenance procedures in place
ensuring they provide IME in safe and proper operating condition.
Drivers must assess the condition of specified IME parts and
accessories, in order to satisfy themselves that they are in good
working order. IEPs must have an operational process and space
available to have equipment defects repaired or equipment replaced
prior to the driver's departure. When IME is returned, the driver must
report actual damage or defects on the IME to the IEP. Finally, the IEP
must have a process to repair damage or defects reported to them and
must document those repairs.
As for the processes for assessing the condition of IME and
documenting IME deficiencies and repairs, FMCSA will address, in more
specific terms, the matters of the pre-trip inspection under the
comments for the proposed revision of Sec. 392.7 and the documentation
under the comments for the proposed revision of Sec. 396.11.
Section 390.46, Preemption
Maryland, CHP, Advocates, and ILWU oppose FMCSA's proposal that
States must apply for a non-preemption determination before the
effective date of the final rule.
FMCSA Response: Section 31151(e)(2)(B) requires States to submit
their applications for non-preemption to the Secretary before the
``effective date'' of the final rule. FMCSA acknowledges commenters'
concerns that developing these requests to submit to the Secretary for
determinations of non-preemption may be time consuming. The Agency also
recognizes that its own timely action will be necessary in order to
properly assess and make recommendations for disposition of such
requests. Therefore, FMCSA will establish an effective date of June 17,
2009 to allow States additional time to apply for determinations of
non-preemption. FMCSA believes a 6-month effective date period is
appropriate to allow States time to prepare requests for non-preemption
and for the Agency to act on these requests.
Part 392--Driving of Commercial Motor Vehicles
Section 392.7, Equipment, Inspection, and Use
ATA, Pacer, and OCEMA recommend the Agency adopt the industry
inspection procedures by requiring the same list of inspection items as
set forth in Exhibit A of the UIIA, which is used throughout the U.S.
intermodal industry.
Maryland commented that proposed Sec. 392.7(b) improperly
instructed the driver to conduct an audible inspection, rather than an
audible and visual inspection.
CNRC points out that FMCSA proposed drivers be given additional
inspection duties with respect to IME, but nothing in the regulations
provides for any driver qualifications for performing these
inspections. CNRC states that, because the inspections could result in
significant downtime for the IME, it is imperative the drivers know
what they are looking for and provide accurate guidance to the IEP as
to what safety issue requires attention.
Teamsters believe that, while drivers are in a good position to
observe and report damage or defects to IME, the proposed regulations
place the bulk of the responsibility for inspecting this equipment on
drivers. Further, Teamsters argue that the components listed in
proposed Sec. Sec. 392.7(b) and 396.11(a)(2) are too broad, and
recommend the regulations clarify the extent of the driver's
responsibility (e.g., by stating whether the responsibility is limited
to problems that are visually detectable).
FMCSA Response: FMCSA disagrees with commenters who contend the
inspection checklist contained in the Appendix to the UIIA should form
the basis of the FMCSA's proposed items for the driver's pre-trip
review under Sec. 392.7 and the driver-vehicle inspection report under
Sec. 396.11. First, the current edition of the inspection checklist
contains a provision that is inconsistent with the FMCSRs. Exhibit A,
Items 8b and 8d of the UIIA state that a tire should not have the
following conditions present: ``Any tire with excessive wear (2/32nds
or less tread depth), visually observable bump, or knot apparently
related to tread or sidewall separation; * * * Seventy-five percent or
more of the tread width loose or missing in excess of 12 inches (30 cm)
in circumference.'' However, Sec. 393.75(a)(2) of the FMCSRs prohibits
operating a motor vehicle on any tire that ``has any tread or sidewall
separation.''
Second, the UIIA checklist also contains items that are not
included under 49 CFR part 393. These components would generally be
required for the IME to be in safe and proper operating condition under
49 CFR part 396. FMCSA's comparison of the UIIA to the FMCSRs is
provided below. The content of the FMCSA inspection checklist is
specified in Sec. 392.7(b). To the extent that the contents of any
other inspection checklist are compatible with it, and do not otherwise
conflict with FMCSR requirements, IEPs and motor carriers may continue
to use them.
Comparison of UIIA Exhibit A, 49 CFR 392.7(b), and 49 CFR 396.11(a)(2)
----------------------------------------------------------------------------------------------------------------
UIIA Instructions 392.7(b) 396.11(a)(2)
----------------------------------------------------------------------------------------------------------------
1. Chassis Twist locks, safety Engaged, properly Locking pins, clevises, Same.
latches. secured. clamps, or locks.
2. Slider pins....................... Engaged (sliding Sliders or sliding Same.
chassis). frame lock.
3. Bolsters.......................... Not bent, container can Tie down bolsters...... Same.
be secured.
4. Landing legs...................... 90 degree position, Not addressed.......... Not addressed.
move up and down.
5. Sand shoes........................ Shoes or dolly wheels Not addressed.......... Not addressed.
attached, secure.
6. Crank handles..................... Attached, secure, Not addressed.......... Not addressed.
operable.
7. Mud flaps......................... Whole, properly secured Not addressed.......... Not addressed.
8. Tires............................. ....................... Tires.................. Tires.
a. Flat, underinflated, noticeable Check that condition Good working order..... Listed.
leak. not present.
b. Excessive wear, \2/32\'' or less Check that condition Good working order..... Listed.
tread. not present.
c. Mounted or inflated in contact Check that condition Good working order..... Listed.
with vehicle. not present.
[[Page 76804]]
d. 75% or more of tread loose or Check that condition Good working order..... Listed.
missing in excess of 12 inches. not present.
9. Rims.............................. Not cracked or bent.... Not addressed.......... Wheels, rims, lugs,
tires.
10. Rear underride guard............. In place, not bent Not addressed.......... Not addressed.
under frame.
11. Electrical wiring/lights......... Lights are in working Lighting devices and Lighting devices,
order. reflectors. lamps, markers, and
conspicuity marking
material.
12. Reflectors/conspicuity treatments Check for reflector Lighting devices and Lighting devices,
lenses, presence of reflectors. lamps, markers, and
conspicuity tape or conspicuity marking
bar. material.
13. Brake Lines, air hoses, glad Check for audible air Service brakes, Air line connections,
hands. leaks and proper including trailer hoses, and couplers.
pressurization only. brake connections.
14. Current license plate............ Check to see that it is Not addressed.......... Not addressed.
affixed.
15. Proper display of HM cargo In accordance with Not addressed.......... Not addressed.
placards. shipping papers.
16. Display of non-expired Federal Check to see that it is Not addressed.......... Not addressed.
placards or stickers. affixed to equipment.
----------------------------------------------------------------------------------------------------------------
In response to Teamsters' comment concerning the level of detail of
the inspection activity prescribed in Sec. 392.7, the rulemaking does
not change the nature of the equipment inspection and use requirement
except to add the few items of equipment specific to IME. In fact, the
FMCSRs have included a requirement for drivers to be satisfied vehicles
are in safe and proper operating condition since the 1930's.
In response to several commenters who questioned the meaning of the
phrase ``visual or audible inspection'' in proposed Sec. 392.7(b), the
Agency did not intend to suggest that the inspection be limited to a
visual inspection when an auditory inspection or a combination of a
visual and an auditory inspection may be more appropriate. For example,
some components, such as support rails, call for a visual inspection.
For others, such as locking pins, both visual and auditory inspections
may be more appropriate.
Regarding a driver's responsibility to inspect the CMV's service
brakes, the American Association of Motor Vehicle Administrators
(AAMVA) Commercial Driver's License (CDL) Manual provides guidance
concerning pre-trip inspection procedures applicants must demonstrate
to obtain a CDL. The procedure for checking the service brakes is
designed to help the driver determine whether the brakes are working
correctly and that the vehicle does not pull to one side or the other.
The CDL applicant should drive the CMV forward at 5 mph, apply the
service brake, and attempt to stop the vehicle to determine: (1) If it
pulls to either side, and (2) that it stops when the brakes are
applied. A driver preparing to transport IME may use this procedure to
check the IME's brakes.
Responding to commenters who expressed concern about (1) the
documentation of IME defects and (2) how citations of equipment
violations are assigned (to the IEP or to the motor carrier), the first
is a matter to be addressed during the driver's pre-trip assessment of
the IME. Drivers must document the results of their pre-trip
assessment, and the IEP must have a process to receive that document
and determine how to resolve deficiencies that are noted. Drivers
operating CMVs currently must submit a driver vehicle inspection report
to the motor carrier at the completion of each day's work on each
vehicle operated. The new provision in 49 U.S.C. 31151(a)(3)(L) calls
for an analogous process: IEPs must establish a process by which
drivers or motor carriers transporting their IME may report to the IEP
or the IEP's designated agent any defects or deficiencies the driver or
motor carrier are aware of at the time the IME is returned to the IEP's
facility.
Part 393--Parts and Accessories Necessary for Safe Operation
CHP argues that IEPs who operate IME on highways are, by
definition, motor carriers. Therefore, CHP recommends changing the
language ``No intermodal equipment provider may operate intermodal
equipment * * *'' in proposed Sec. 393.1(c) to read ``No intermodal
equipment provider may tender intermodal equipment for interchange * *
*''
FMCSA Response: FMCSA agrees with CHP that, if an IEP itself is
operating IME on a highway, the IEP is a motor carrier to the extent
that its highway operations are concerned, and it would be covered by
the full range of the FMCSRs applicable to those operations. This rule
focuses on IEPs that tender IME to be transported over our Nation's
highways in interstate commerce by others. To clarify this, a minor
revision has been made to the regulatory language.
Part 396--Inspection, Repair, and Maintenance
Section 396.3, Inspection, Repair, and Maintenance
IANA points out that proposed Sec. 396.3 does not provide a time
frame for required systematic inspections, but that the summary of the
economic impact in the preamble assumes that quarterly inspections are
needed. It believes this lack of clarity should be addressed in the
final rule. Teamsters argue that Sec. 396.3 should require motor
carriers and IEPs to perform systematic inspections on a quarterly
basis. However, IICL believes that a minimum of two inspections per
year would be sufficient to protect the safety of the public.
ConSurve seeks clarity on the language of Sec. 396.3(b), which
suggests the IEP's responsibilities for equipment condition extend 30
days past interchange. In this regard, ConSurve asks on what basis this
determination is made and which party is responsible for inspection,
repair, and maintenance when a container/chassis is delivered but then
remains at that location for more than 30 days.
In reference to proposed Sec. 396.3(b), OCEMA contends that it is
unrealistic to retain records ``where the vehicle is either housed or
maintained,'' as required by Sec. 396.3(c), because over the course of
a year, either or both of these locations may vary significantly for a
given piece of IME. OCEMA recommends adding a separate paragraph
describing the record retention requirements for IEPs that would also
allow inspection, maintenance, and repair records to be
[[Page 76805]]
retained by the IEP in a central location or central electronic
database.
FMCSA Response: FMCSA estimates that approximately four inspections
of IME will be performed annually. However, the use cycle of IME (and
other CMVs, for that matter) is what determines the appropriate number
of inspections, their level of detail, and the maintenance and repair
activities necessary to ensure all CMVs are in safe and proper
operating condition. Therefore the IEP must perform as many inspections
as necessary to maintain IME in a condition complying with the FMCSRs.
The second paragraph of Sec. 396.3(b) states ``IEPs must maintain,
or cause to be maintained, records for each unit of intermodal
equipment they tender or intend to tender'' [emphasis added]. If an IEP
has not yet tendered a unit of intermodal equipment, but intends to
tender that piece of IME in the future (i.e., the responsibility has
not been transferred to another IEP), it continues to be responsible
for that piece of IME until tender is made to a carrier or driver. In
this instance, the tendering IEP would be required to maintain the
maintenance records on that piece of IME until tender is completed. The
intent of Congress in enacting the roadability provisions in SAFETEA-LU
was to require the tendering IEP to systematically maintain IME and the
underlying responsibility for that maintenance to be continuous.
Responding to ConSurve's question, the responsibility for inspection,
repair, and maintenance for an item of IME that remains at a
consignee's location more than 30 days would depend upon the terms of
the interchange agreement or any other written document executed by an
IEP and a motor carrier, the primary purpose of which is to establish
the responsibilities and liabilities of both parties with respect to
the interchange of the intermodal equipment.
Responding to OCEMA's question concerning retention of IME
maintenance records at a central location, FMCSA allows motor carriers
to retain CMV maintenance records at a location different from one
where a vehicle is housed or maintained. The motor carrier is still
held responsible for ensuring the records are up to date and accurate,
and upon request by the Agency, the maintenance records must be made
available within 2 working days. IEPs will be subject to the same
requirements.
Section 396.11, Driver Vehicle Inspection Reports
ATA, AAR, and OCEMA believe that the list of components in proposed
Sec. 396.11(a)(2) for which the driver is responsible to report, if
defective or deficient, does not include all of the safety items that
can be visually checked by a driver or the defects a driver is likely
to become aware of while operating the equipment. These commenters
recommend FMCSA add to this list those components contained in Exhibit
A to the UIIA. OCEMA also contends that this would be consistent with
the requirements of Sec. 390.44 and Sec. 396.12 that require motor
carriers' drivers to report any damage or deficiencies which they
become aware of that could affect the safe operation of the IME.
ATA suggests the Agency use photographs as part of the records
requirement to document IME condition and repair status, noting that
many new and modernized intermodal terminal facilities are already
using them. However, ATA believes the reporting requirements set out in
Sec. 396.12 will provide a reliable record of equipment condition and
repairs needed, as well as providing the tracking/audit basis for
insuring that necessary repairs are actually made.
The IICL suggests FMCSA should also require motor carriers to train
their drivers to properly inspect and identify defects or problems with
IME, including chassis and trailers, and also provide training to
drivers on how to properly complete a standardized vehicle inspection
and report form. Records of such training should be available to the
FMCSA upon request.
FMCSA Response: The Agency believes the list of components is
appropriate to ensure IME safety when operated on highways, but IEPs
may add the components in Exhibit A of the UIIA to their inspection
checklists (as motor carriers are allowed to add components to their
checklist). In accordance with 49 CFR 390.31, IEPs may use electronic
recordkeeping, at their option.
As for requiring motor carriers to train their drivers to properly
inspect IME and to identify and document equipment defects, FMCSA does
not prescribe specific CMV inspection training for drivers transporting
IME. These issues are currently addressed in parts 391, concerning
driver qualifications, 392 concerning the driving of CMVs, and 396,
concerning inspection, repair and maintenance, and already apply to
drivers transporting IME.
Section 396.12, Requirements for Accepting IEP Reports
ATA recommends that the document proposed for Sec. 396.12(a)
should be developed and standardized by the Agency and should use the
safety check items listed in UIIA Exhibit A. ATA believes document
standardization would facilitate driver acceptance (and use) and
maintenance and repair efficiencies, as well as streamline the audit
review process. Schneider suggests drivers should make the report on
the industry-accepted J1 or EIR (equipment interchange receipt), so as
to not add further paperwork burden to the process. CNRC believes the
contents of these reports should be spelled out by FMCSA in more
detail. It also argues that a more detailed report will shorten the
time required to repair any damage without unnecessarily lengthening
the time required to report the damage.
ATA supports the inclusion of proposed Sec. 396.12(c), as
fulfilling a longstanding need for documentation of IME repairs.
Teamsters question the 3-month retention period specified in proposed
Sec. 396.12(d), stating that proposed Sec. 396.21(b)(1) would require
inspection reports to be retained for 14 months, but documentation
regarding repair of defects uncovered by the inspection would only be
kept for 3 months. Teamsters believe Sec. 396.12(d) should be modified
to require IEPs to keep documentation of the repair, as well as
documentation that a repair was unnecessary, for as long as the IME is
in use.
CHP believes the reports required by Sec. 396.12 should include
not only the motor carrier's USDOT number but also identification of
the IEP by the identification number required under Sec. 390.21 and a
unique identifier of the particular piece of IME. This would help avoid
the potential for wrong identification of a particular piece of IME in
terminal environments where there are hundreds of intermodal chassis
virtually indistinguishable from one another.
FMCSA Response: In response to ATA's and CNRC's recommendation for
a standardized form for drivers to use to comply with proposed Sec.
396.12(a), the Agency supports specifying the content of the reports,
but not the format of the required documents. This approach provides
greater regulatory flexibility to IEPs and carriers without
compromising safety. Therefore, the regulated entities may use any
forms which contain the minimum information required by the final rule.
The 3-month retention period for IME maintenance records in
proposed Sec. 396.12(d) is consistent with Sec. 396.11, which
requires a 3-month retention period for DVIRs submitted to motor
carriers. Concerning the proposed requirement to document a
determination that a requested repair
[[Page 76806]]
was unnecessary, this provision is included in Sec. 396.12(c)(2),
within the ``Corrective Action'' section. This is separate from the
Sec. 396.3(b) requirement to retain systematic inspection, repair, and
maintenance records. If an IEP repairs an item of IME in response to
information recorded on a DVIR, the documentation of that repair (a
work order, etc.) must be prepared and maintained as a maintenance
record for a 12-month period as specified in Sec. 396.3. Also, the
information concerning the repair may be noted on the DVIR as an
indicator the defect or deficiency reported by the driver was
corrected.
FMCSA agrees with CHP that reports required by Sec. 396.12 should
include the motor carrier's USDOT number, the IEP's USDOT number, and a
unique identifier of the particular piece of IME. This was
inadvertently left out of the proposed provision at Sec. 396.12(b)(2),
but will now be included in the final rule.
Section 396.17, Periodic Inspection
Advocates argue that they cannot support FMCSA's proposed periodic
inspection interval of one year for IME that is interchanged or
intended for interchange to motor carriers in intermodal
transportation. They believe this is far too infrequent for ensuring
the roadability safety of tendered IME. Advocates strongly support the
CHP proposal for a minimum of four inspections each year for tendered
IME and indicate that these inspections should be spaced at 3-month
intervals. ConSurve agrees with this argument.
Pacer points out, however, that it currently performs inspections
at least annually and believes this is sufficient to properly and
safely maintain IME. Pacer adds that FMCSA regulations only require
annual inspections for non-intermodal equipment and believes there is
no reason that IME should be subjected to more stringent requirements.
PMA suggests that FMCSA develop a separate Appendix G to the FMCSRs
for IME. It believes the inspection of some items, such as those
concerning lighting devices, are only referenced broadly but other
parts or items specific to intermodal chassis are not identified or
included in Appendix G.
FMCSA Response: The Agency's periodic or annual inspection should
not be construed to be a substitute for a systematic inspection,
repair, and maintenance program. The annual inspection is only a
fraction of the maintenance program--it is not the entire program.
Therefore, the Agency does not believe it necessary to require more
frequent ``periodic inspections.'' IEPs must complete the annual
inspection and support a systematic inspection, repair and maintenance
program throughout the entire year.
As discussed earlier, the frequency of inspections needed for a
CMV, including IME, is dependent upon its usage and would be addressed
in the systematic program established by the IEP. Some IEPs might find
it necessary to perform more frequent inspections than others.
Therefore, FMCSA believes it is more appropriate to establish a
performance-based inspection, repair, and maintenance rule rather than
to set a specific minimum number of inspections to accomplish the
safety objective.
FMCSA does not agree with PMA's suggestion that new, chassis-
specific inspection criteria be developed to ensure the proper periodic
inspection of IME. Recognizing that the components on IME are similar
to those on other types of trailers, the Agency believes the current
periodic inspection criteria under Appendix G to the FMCSRs can be
appropriately applied to IME.
Section 396.19, Inspector Qualifications
OCEMA opposed the Agency's proposed amendments to Sec. 396.19
requiring IEPs to ensure the persons performing the inspections under
Sec. 396.17(e) are qualified and to retain evidence of each person's
qualifications for as long as the person is performing annual
inspections and for one year thereafter. It believes that IEPs would
not be able to perform this function because: (1) Thousands of
individual chassis inspectors are employed by third party vendors; and
(2) the IEPs have no control over the training, hiring, or firing of
these individuals. OCEMA believes the third parties should be
responsible for assuring the qualifications of their inspectors and
IEPs should be allowed to rely on the third-party certifications.
FMCSA Response: The Agency acknowledges that some IEPs may contract
with third parties to perform inspections, repairs, and maintenance on
IME. It is the IEP's responsibility to ensure their third-party
contractors use persons who have the appropriate training and/or
experience to inspect IME. Question 1 of the FMCSA's regulatory
guidance for current Sec. 396.19 provides a clarification of how motor
carriers and IEPs may satisfy the requirement for maintaining evidence
of inspector qualifications (April 4, 1997; 62 FR 16369 at 16429; also
available on the Agency's Web site at http://www.fmcsa.dot.gov).
Section 396.23, Equivalent to Periodic Inspection
Teamsters support the requirement that an annual inspection be
performed by a qualified inspector; however, they believe Sec. 396.23
could result in the driver being cited during a roadside inspection for
the motor carrier's or the IEP's failure to comply with the annual
inspection requirement. They recommend that the rule be modified to
make it clear that it is the motor carrier or the IEP who is liable for
failure to perform the annual inspection, not the driver.
FMCSA Response: Sections 396.17, ``Periodic inspection,'' and
396.23, ``Equivalent to periodic inspection,'' are clear in assigning
responsibility for the conduct of the annual inspection to the motor
carrier or the IEP--and not the driver. Section 396.17(b) requires (1)
motor carriers to inspect or cause to be inspected all motor vehicles
subject to their control, and (2) IEPs to inspect or cause to be
inspected IME that is interchanged or intended for interchange to motor
carries in intermodal transportation. Section 396.17(c) specifies that
a motor carrier must not use a CMV, and an IEP must not tender
equipment to a motor carrier for interchange, unless (1) each component
identified in appendix G to Subchapter B, ``Minimum Periodic Inspection
Standards,'' has passed an inspection at least once during the
preceding 12 months; and (2) documentation of such inspection is on the
vehicle. Further, Sec. 396.17(h) states that failure to properly
perform the annual inspection required shall cause the motor carrier or
IEP be subject to the penalty provisions of 49 U.S.C. 521(b). It does
not state the driver will be liable.
Enforcement Plan
Maryland expressed concern that there is no mechanism to assign
responsibility for OOS violations observed during roadside inspections
to specific parties. For example, a driver picks up a chassis at the
IEP's facility that the driver believes to be in safe and proper
operating condition. After the driver leaves the intermodal facility,
the vehicle is placed OOS during a roadside inspection. Maryland
recommends that to avoid improperly citing the IEP for an OOS violation
the driver should have discovered during a pre-trip inspection, the
driver should keep a copy of the IEP inspection report indicating the
date and time the driver picked up the IME. Enforcement personnel would
then have documentation demonstrating that the driver believed the
chassis was ``in safe
[[Page 76807]]
operating condition'' when he or she accepted the chassis.
Maryland also expressed concern that implementation of roadside
enforcement processes would require modification of FMCSA's information
technology (IT) systems to capture both the motor carrier's USDOT
number and the IEP's USDOT number or other unique identifier.
OHP raised several questions about FMCSA's Proposed Enforcement
Plans regarding the issuance of an Operations OOS Order (referred to as
``Imminent Hazard OOS Order'' in the comment) to IEPs. If it is FMCSA's
intent to have inspectors conducting roadside inspections enforce the
FMCSRs and issue Imminent Hazardous OOS Orders against IEPs, OHP
suggests FMCSA modify the Aspen inspection program to allow the
inspector to record intermodal equipment violations on the inspection
report against the IEP (similar to noting violations against a shipper
of HM). Regarding communication of the OOS order to law enforcement
personnel, OHP suggests FMCSA use the FMCSA Safety and Fitness
Electronic Records (SAFER) Web site, as is currently used to
communicate OOS orders against motor carriers. OHP also asked if an OOS
order will state whether the IEP is prohibited from offering IME after
the OOS order is issued, or if it would prohibit the further movement
of IME already in use by the carrier or driver in interstate commerce.
It suggests FMCSA consider issuing OOS orders to prohibit the
intermodal service provider from offering IME after the OOS order is
issued. Finally, OHP asked what FMCSA expects the roadside inspectors
to do if they stop and inspect a properly credentialed motor carrier
(i.e., a carrier that does not have an OOS order issued against it)
using a piece of IME from an IEP that has been issued an OOS order and
it could be proven the IME was offered after the OOS order was issued.
To handle such situations, OHP suggests FMCSA consider providing
roadside inspectors with a special violation code to use in the Aspen
inspection program to indicate whether an IEP violated an OOS order.
This would allow the motor carrier to continue with the current trip,
assuming the vehicle passed the inspections.
FMCSA Response: Responding to Maryland's concern about the
assignment of responsibility for OOS violations, most of the process
will remain as it currently stands. Federal, State, and local
enforcement officials will document what is observed during the
inspection, including information about the type of defects, their
nature, and whether they were observed on the power unit, the trailer,
or both. They will also note the USDOT number of the power unit and the
USDOT and other identification numbers of the trailer. Based upon the
types of defects and deficiencies noted, equipment-related citations
will be assigned to the motor carrier, the IEP, or both. However, if a
driver indicated that the IME items in Sec. 392.7(b) were in good
working order when the driver accepted the equipment, the motor carrier
will also be cited for ``failure to inspect'' violations. If any CMV is
placed OOS for defects on the power unit, trailer unit, or both, the
driver must not continue to operate it until the OOS condition is
remedied.
As for OHP's questions, FMCSA will assess the extent and the
severity of violations found during a roadability review of an IEP. If
the findings indicate a localized situation--perhaps only one facility
out of several has significant compliance problems--FMCSA may consider
focusing its enforcement actions on that single facility. If a single
item of IME is found to have severe defects or deficiencies that are
likely to cause a breakdown of the vehicle or to cause a crash, the
chassis may be placed OOS during a roadside inspection.
FMCSA clarifies that Imminent Hazard OOS Orders for IEPs can be
issued at any time if the Agency believes there is evidence of imminent
hazard to safety.
International Implications
ATA, Advocates, and Maryland are concerned about the applicability
of the proposed rule to IEPs that are located in foreign countries, but
offer equipment for operation in the United States. These three
commenters believe that foreign-based IEPs should be treated the same
as foreign-based motor carriers, including the marking, recordkeeping,
and systematic maintenance and repair requirements. Commenters also
believe that IME being transported into the U.S. should be evaluated at
the point of entry for safety adequacy and national security.
On the other hand, CNRC believes that costs to assure compliance
for foreign-based equipment and for foreign-based IEPs could be
lessened if FMCSA were to consider exempting IME in transit between
points in the same foreign country from the new regulations, or IME
that will be in the U.S. for less than 30 days.
FMCSA Response: All CMVs (including IME) are subject to the FMCSRs
when operated in interstate commerce in the U.S. As for CNRC's
recommendation, the Agency has no jurisdiction over foreign-based IEPs
that tender foreign-based IME in transit between points in a foreign
country. However, FMCSA declines to grant exemptions for IME operating
within the U.S. A foreign-based IEP that tenders foreign-based IME for
transportation into the U.S. must obtain a USDOT number and identify
its IME accordingly. This is consistent with the current requirements
for motor carriers based outside the U.S. to obtain a USDOT number and
mark their power units, if they intend to operate in this country.
Implementation Date
Suggestions from commenters on the length of time needed to
implement the proposed requirements range from 9-24 months. For
example, IICL believes a 2-year phase-in period would be needed if IME
had to be physically marked with the IEP's identifier. However, if the
existing alphanumeric identifiers were to be used, only a one-year
phase-in period would be needed to implement the requirements after
development of a database and reporting process.
FMCSA Response: After consideration of the comments, FMCSA will
implement an effective date for this rule 6 months from the date of
publication, that is, June 17, 2009 to allow States sufficient time to
apply for determinations of non-preemption. In addition, FMCSA has set
a compliance date of 12 months after the publication date of this rule,
or by December 17, 2009, to allow IEPs time to establish maintenance
programs and recordkeeping systems. This means that IEPs must register
for a DOT number and set up maintenance and inspection recordkeeping
systems by this date. The IEPs must mark their chassis within 24 months
of the publication date of this rule, or by December 17, 2010. The two-
year phase-in period provides the IEPs with sufficient time to locate
and mark all of their IME.
Analysis of Safety Data
OCEMA, Maryland, and AAR commented on the analysis of IME safety
data and the estimated number of IEPs.
OCEMA states that most of the analysis compares OOS violation
statistics for intermodal chassis maintained by IEPs to those owned by
motor carriers or to non-intermodal trailing equipment maintained by
motor carriers. It believes that the data in these studies do not
clearly reflect the equipment's safety. In addition, OCEMA notes that
FMCSA has demonstrated that most defects can be detected by a visual
inspection and that carriers and drivers share with IEPs in the
[[Page 76808]]
responsibility for the safe operation of intermodal chassis.
Maryland believes that the Agency's safety data on driver's
inspections of brakes (Table 10 in the Safety Analysis portion of the
NPRM) gives credence to its argument that drivers do not have the
``means or opportunity'' to conduct the required safety inspections on
IME.
AAR points out that it has reviewed the studies FMCSA used to
assess the benefits of its proposed rules on intermodal chassis
maintenance and has found flaws. AAR believes that several of the
studies overestimated the difference in OOS rates between intermodal
chassis and non-intermodal trailers. Further, AAR disagrees with the
inclusion of violations associated with the securement of the
intermodal container itself. AAR reasons that, because intermodal
containers must be secured to chassis, they are subject to potential
cargo securement problems that would not exist for non-intermodal
trailers. It also disputes the conclusion of the analysis of crash
data, stating that their own analysis found only 18 cases where the
crash was attributable to the condition of the intermodal chassis, as
opposed to the tractor or to the driver's failure to properly secure
the container on the chassis. AAR estimates that this amounts to 1.9
percent of the 953 crashes in which intermodal chassis were involved.
FMCSA Response: FMCSA acknowledges that there are circumstances
where a driver may not be able to perform a thorough visual inspection
on a chassis presented with a container attached. However, the Agency
emphasizes that the IEP is responsible for assuring that the IME it
intends to tender to motor carriers and drivers is in safe and proper
operating condition. IME safety is a shared responsibility and drivers
are required by the FMCSRs to report equipment deficiencies or defects
they note during the course of a pre-trip inspection performed in
accordance with Sec. 392.7(b), as well as any defects or deficiencies
that become apparent before the time the IME is returned.
FMCSA disagrees with AAR's contention that the Agency overstated
the problem of safety violations for IME. The roadside inspection data
consistently show that chassis are not being maintained at a level
comparable to non-chassis equipment. Furthermore, because cargo
securement--whether the cargo is an intermodal container transported by
a chassis trailer or another type of cargo transported upon or within a
trailer--is a critical part of ensuring the safe operation of CMVs,
FMCSA stands by its decision to include cargo securement violations in
its analyses.
Economic Analysis
Ten commenters addressed FMCSA's economic analysis either generally
or by providing specific information or estimates that differ from
those included in the NPRM. For example, USMX believes FMCSA
underestimated the financial burden of the proposed regulations and
that the safety benefits would not outweigh the costs. Pacer, ConSurve,
and Clark expressed similar concerns.
OCEMA is concerned about FMCSA's estimate that there are 108 non-
motor carrier IEPs in the U.S., of which 93 are steamship lines, 5 are
railroads, and 10 are chassis pool operators. It disagrees with using
this breakdown to roughly allocate the chassis population among the
various chassis owning entities, including motor carriers. OCEMA argues
that this distribution does not account for the fact that many of the
lessors' chassis are under long-term lease to the steamship lines.
Thus, steamship lines operate significantly more chassis than they
actually own. OCEMA believes this misallocation of chassis among
providers led FMCSA to underestimate the regulatory costs ocean
carriers will experience if this rule is implemented.
IICL, ConSurve, and OCEMA believe FMCSA has significantly
underestimated the total costs to comply with the rule, and, in
particular, argue FMCSA failed to adequately account for the
significantly higher wages paid to union workers employed at or near
port facilities.
VIM believes FMCSA's estimated cost of applying the IEP number to
chassis is significantly lower than the actual cost, also due in part
to an underestimate of wages. This commenter marked over 20,000 chassis
and states that its direct cost is well over $25 per chassis, more than
double FMCSA's cost, and notes that chassis may need to be re-marked
regularly due to frequent migration among chassis pools. VIM also
states that there are indirect costs associated with moving a chassis
to another area simply to apply the identifying number. OCEMA agreed
with VIM.
Maryland, AAR, and OCEMA question FMCSA's estimate of quarterly
inspections when the rule language requires only an annual inspection.
PUCO addressed the costs to States of conducting compliance reviews
(CRs) and safety audits by stating that it is concerned the amount of
money available to undertake these additional tasks may not keep pace
with the increased workload. Consequently, PUCO urged FMCSA to
carefully examine the budgetary needs of those conducting the reviews
and ensure sufficient funds are made available for this purpose.
AAR questions the Agency's threshold analysis that the costs to
comply with the rule would be paid for if the rule prevented 8-12
fatalities (or fatal crashes) per year. AAR contends that achieving
what it considers a modest safety improvement may be more than one can
reasonably expect even from eliminating fatalities attributable to
defects in intermodal chassis. According to AAR's own analysis of the
data, if 1.9 percent of the crash fatalities are due to chassis
condition, then elimination of fatal crashes caused by chassis
condition would prevent about 1 fatality per year--well short of the
stated breakeven goal of 8 per year.
Finally, OCEMA questions FMCSA's statement that the Regulatory
Flexibility Act does not apply to 93 steamship line equipment providers
because they are all foreign entities. OCEMA states ``[t]here are in
fact a number of U.S. companies that are carriers controlling large
numbers of chassis. Examples include Crowley Maritime Corporation,
American President Line, Matson Navigation, and Horizon Line. It may
also be of interest to FMCSA that many of the foreign steamship lines
have established U.S. subsidiaries which, in some cases, are the
entities that own and operate chassis.''
FMCSA Response: FMCSA acknowledges that the NPRM may have
underestimated the costs to some IEPs because of potentially higher
labor costs associated with steamship companies, especially if these
entities control a larger portion of the chassis pool than originally
estimated. Because of these concerns, FMCSA has updated its cost
estimates to reflect the labor costs specific to each major industry
that IEPs represent. Steamship lines may lease a large fraction of
chassis owned by pool operators and under this rule would be
financially responsible for the inspection, repair, and maintenance of
this equipment. Costs for all pool lessor chassis are evaluated using
cost data applicable to steamship lines.
In response to IICL's and OCEMA's comments on wages (specifically,
that cost estimates do not account for higher wages of union
employees), FMCSA is using the generally accepted source for wage data,
the Bureau of Labor Statistics, Occupational Employment Statistics
survey. The wages reported for
[[Page 76809]]
steamship line employees \4\ reflect any wage premium paid to union
employees in this industry group. On net, estimates of costs borne by
steamship lines directly, or indirectly via long-term leases of chassis
from lessors, were revised upward 10-20 percent for the final rule.
---------------------------------------------------------------------------
\4\ North American Industry Classification System (NAICS),
industry code 483100 (Deep Sea, Coastal, and Great Lakes Water
Transportation).
---------------------------------------------------------------------------
Regarding the number of inspections needed for compliance with this
rule, FMCSA presented costs estimates based on a quarterly inspection
program to preclude the possibility of understating compliance costs.
FMCSA has subsequently added cost estimates based on a semiannual
inspection program for IME. The estimates based on quarterly
inspections should be viewed as an upper bound for compliance costs,
while new estimates based on a semiannual inspection program provide a
reasonable lower bound for these costs.
With regard to PUCO's concerns about providing adequate funding for
roadability reviews, FMCSA will take this new responsibility into
account as it plans to implement the requirements of this final rule.
Regarding cost-effectiveness, it is unclear whether a sufficient
number of fatal crashes will be avoided to achieve positive net
benefits. However, the Agency reevaluated this threshold to include all
crashes avoided and industry efficiency gains, and it believes this
rule would reasonably achieve a minimum level of cost-effectiveness.
These results are presented in the final Regulatory Impact Analysis.
In response to OCEMA's comments on the Regulatory Flexibility Act
Analysis, FMCSA realizes some steamship lines are U.S. companies or
U.S.-based subsidiaries of foreign companies that own and control
intermodal equipment. However, the Agency does not believe the
steamship lines or subsidiaries that own and control intermodal
equipment would meet the Small Business Administration's (SBA)
definition of ``small business.'' A U.S. small business concern is
``independently owned and operated and * * * is not dominant in its
field of operation,'' and has a suggested threshold payroll of 500
employees. FMCSA examined publicly available financial statements and
investor relation material (where available) for entities with
membership in one of the major trade organizations representing
companies affected by this rule. It also looked at any additional
steamship lines that provide ``direct call liner services'' at U.S.
port facilities. The Agency confirmed that the entities identified as
being subject to increased costs as a result of this rule are either
foreign-based entities that are not subject to the Regulatory
Flexibility Act or otherwise do not meet the criteria for the small
business designation, based on the SBA's definition of ``small
business.''
The final rule provides IEPs with several options for identifying
IME in order to eliminate almost all of the costs associated with
chassis marking. Nevertheless, we recognize that frequent flows of IME
into and out from an IEP's pool do raise identification costs, because
a significant number of chassis change ownership frequently and will
need to be re-identified each year. Consequently, the Agency added
estimates of chassis re-identification costs to its economic analysis.
IV. Summary of the Final Rule
This section describes only those changes from the proposed rule
text in the NPRM. The final rule also includes several provisions, not
included in the NPRM, that are necessary to fully address FMCSA's
compliance review and enforcement procedures for IEPs.
Part 385--Safety Fitness Procedures
The final rule incorporates the NPRM text for part 385 with several
changes. A definition for the term roadability review is added to Sec.
385.3 and deleted from proposed Sec. 385.203. In Sec. Sec. 385.201
and 385.203, roadability reviews were added to the list of functions
that Safety Inspectors, Auditors, and Investigators can perform. FMCSA
also deleted a portion of Sec. 385.503(c) to ensure that Sec. Sec.
385.503(b) and (c) provide a consistent definition for the term
``imminent hazard.'' The Agency then added the appropriate cross-
reference for the definition of ``imminent hazard.''
Under the final rule, FMCSA will conduct roadability reviews to
evaluate the safety of IEPs and their compliance with the relevant
FMCSRs. This activity will consist of an on-site examination of an
IEP's inspection, repair, and maintenance operation; and records to
determine its compliance with applicable FMCSRs (i.e., parts 390, 393,
and 396).
In addition to IEPs identified in SafeStat, a roadability review
may be conducted on an IEP that falls into one of the following
categories: (1) The provider is the subject of a complaint that FMCSA
determines to be non-frivolous; (2) the provider has equipment involved
in a higher-than-average number of recordable crashes or HM incidents;
(3) the provider has a higher than average OOS rate for its chassis; or
(4) the Agency determines there is a need for a review. FMCSA will
conduct roadability reviews using the software called Compliance
Analysis and Performance Review Information (CAPRI). If FMCSA finds
violations of parts 390, 393, or 396, the Agency will cite the IEP for
those violations and impose civil penalties according to the civil
penalty structure contained in 49 U.S.C. 521(b). FMCSA may prohibit an
IEP from tendering any IME from one or more locations if the provider's
compliance with the FMCSRs is so deficient that continued operation
constitutes an imminent hazard to highway safety under 49 U.S.C.
521(b)(5).
Part 386--Rules of Practice
The final rule amends 49 CFR part 386 concerning rules of practice
for enforcement proceedings before the FMCSA Assistant Administrator.
This will make part 386 applicable to IEPs subject to today's final
rule concerning inspection, repair, and maintenance requirements.
FMCSA determined that Sec. 386.72(b) needed to be amended to
include an explicit reference to placing IEPs OOS when they tender IME
that poses an imminent hazard to safety, although the Agency did not
propose to do so in the NPRM. In title 49 of the U.S. Code, section
521(b)(5)(B) defines imminent hazard as a violation of certain statutes
and implementing regulations involving a ``vehicle, employee, or
commercial motor vehicle operations which substantially increases the
likelihood of serious injury or death if not discontinued
immediately.'' [emphasis added]. Thus, if an IEP tenders equipment
meeting the definition in section 521(b)(5)(B), the Secretary can stop
it from tendering such equipment.
The final rule also amends Sec. 386.83 to extend the applicability
of this section to IEPs.
Finally, the final rule amends Appendix A to part 386 to add IEPs'
violations of OOS orders to the penalty table in this appendix.
Part 390--Federal Motor Carrier Safety Regulations
The final rule requires IME to be identified with the USDOT number
issued by FMCSA to the IEP. However, in response to commenters'
concerns about the cost and complexity of re-marking chassis when IME
is transferred to a different IEP, the rule allows IEPs to use several
alternatives for identifying IME. It also provides a 24-month period
for IEPs to comply with the IME identification requirement.
[[Page 76810]]
IEPs have the choice of identifying the IME with a label, sticker,
decal, or other easily applied marking, instead of the more elaborate
marking (for power units) required by 49 CFR 390.21. If an IEP uses a
label, it must be readily visible and legible to an inspection official
during daylight hours when the vehicle is stationary. The label must be
a color that contrasts sharply with the background on which it is
placed, and the letters must contrast sharply in color with the
background of the label. The label must be kept and maintained in a
manner that retains this legibility.
As an alternative, the IEP may use a paper identification document
but must protect it from damage in a weatherproof container on the IME,
of the kind used for vehicle registration documents. Also, the IEP may
include its USDOT number on interchange paperwork, so long as the
unique identification of the item of IME is clearly delineated as well.
The IEP identification (USDOT number) must be clear enough to be
immediately legible to a safety official during the course of an
equipment inspection. Alternatively, IME may be marked with a USDOT
number in the same fashion as required under the current Sec. 390.21,
except the marking will only be required on the curb side of the
equipment. IEPs may use the 10-character alphanumeric codes until the
compliance date of December 17, 2010. Even though the FMCSA
Administrator denied IANA's request to initiate a pilot program,\5\ the
Agency asked IANA to communicate with it in the future concerning its
progress in developing the Global Intermodal Equipment Registry (GIER).
The Agency will consider allowing the GIER if it becomes apparent that
its use could serve as an additional alternative method of complying
with the provisions of 49 CFR 390.21.
---------------------------------------------------------------------------
\5\ On January 2, 2008, IANA et al. submitted a petition
proposing a pilot program that would have been implemented through
the development and subsequent maintenance of a central database to
register all chassis operated in the United States. The so-called
GIER database would enable IEPs and motor carrier safety enforcement
personnel to identify the responsible IEP that is associated with
the existing unique alphanumeric identifier (ID), which consists of
four letters followed by six numbers.
---------------------------------------------------------------------------
Section 390.40 of the final rule lists the responsibilities of an
IEP. The final rule adds a new paragraph (d) that requires IEPs to
``ensure that intermodal equipment intended for interchange with motor
carriers is in safe and proper operating condition.'' Former paragraphs
(d) through (i) were re-numbered (e) through (j). The phrase, ``in a
timely manner,'' is deleted from paragraph (h), which was paragraph (g)
in the NPRM.
The order of presentation of Sec. Sec. 390.42 and 390.44 are
reversed from the order in which they were published in the NPRM.
Section 390.42 addresses the rights and responsibilities of drivers
and motor carriers operating intermodal equipment. Former paragraph (b)
was deleted and the subject covering accuracy of violations data is now
addressed in Sec. 390.44. Paragraph (a) is adopted as proposed.
Paragraph (c) is revised slightly to make the text consistent with
Sec. 390.40(i) and is redesignated as paragraph (b). Section 390.44
prescribes procedures for IEPs and motor carriers to request correction
of their safety records. Paragraphs 390.44(a) and (b) are expanded to
state that these procedures include safety violations cited during
roadside inspections the IEP or the motor carrier believed were
improperly attributed to them. Paragraphs 390.44(c) and (d) are adopted
as proposed.
Part 392--Driving of Commercial Motor Vehicles
The final rule amends Sec. 392.7 to provide a more comprehensive
list of IME-specific components. Drivers preparing to transport IME are
required to make an inspection of specific components of IME and be
satisfied the IME is in good working order before operating it over the
road. FMCSA emphasizes that this does not limit a driver to performing
a visual inspection where an auditory inspection or a combination of a
visual and an auditory inspection may be more appropriate.
Part 393--Parts and Accessories Necessary for Safe Operation
The final rule amends paragraph (d) of Sec. 390.40 to require that
intermodal equipment intended for interchange with motor carriers to
transport intermodal containers is in safe and proper operating
condition. As discussed earlier in this document, FMCSA believes this
change is responsive to CHP's comment concerning the definitional
language of Part 393 because the new requirement focuses on IEPs as
equipment providers while the current regulations continue to focus on
IEPs that operate as motor carriers. Also, the final rule replaces
Sec. 393.1(a), ``Scope'', which was deleted in error in the NPRM.
Part 396--Inspection, Repair, and Maintenance
The final rule amends part 396 to require IEPs to establish a
systematic inspection, repair, and maintenance program and to maintain
records documenting its program. Equipment providers are also required
to comply with FMCSA's periodic and annual inspection regulations.
Further, IEPs are required to establish a process by which a motor
carrier or driver can report the defects or deficiencies on container
chassis that they discover or are reported to them. IEPs are then
required to document whether they repaired the defect or deficiency, or
whether repair is unnecessary, before the IME is tendered for
interchange.
Section 396.9 has been revised to explicitly include IME among the
types of CMVs the Agency may place OOS. Although FMCSA and its
predecessor agencies have always had the authority to place CMVs OOS,
Sec. 31151(c) specifically authorizes the Agency to place IME OOS.
This requirement is now added to the FMCSRs in Sec. 396.9. In Sec.
396.9(d)(1), FMCSA changed the last part of the second sentence to
require the driver to immediately mail, fax, or otherwise transmit the
report to the motor carrier and IEP if the driver would not return to a
carrier or IEP facility within 24 hours. In Sec. 396.9(d)(2), a
sentence was added to require that repairs to IME taken OOS must also
be documented in the maintenance records for such equipment (see 49
U.S.C. 31151(c)).
The final rule also amends Sec. 396.11 to add a new paragraph
(a)(2), specifying that the IEP must have a process to receive reports
of defects or deficiencies in the equipment.
Finally, the final rule adds a new Sec. 396.12 to require IEPs to
establish a procedure to accept reports of defects or deficiencies from
motor carriers or drivers, repair the defects that are likely to affect
safety, and document the procedure. The text is revised from the NPRM
to require the IEP to record its USDOT number and a unique identifier
of the particular IME, in repair records. The latter is the 10-
character alphanumeric identification assigned to the individual IME
(comprised of the 4-letter Standard Carrier Alpha Code of the IME
leasing company, steamship line, or other party, and a 6-digit numeric
field unique to the IME), the license-plate number, the VIN, or another
number permanently associated with the IME.
V. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures)
FMCSA determined this final rule is a ``significant regulatory
action'' under Executive Order 12866, Regulatory
[[Page 76811]]
Planning and Review, and significant under DOT regulatory policies and
procedures. Therefore, this final rule has been reviewed by the
Department's Office of the Secretary of Transportation (OST) and the
Office of Management and Budget (OMB). However, the Agency estimates
that the economic impact of this final rule will not exceed the annual
$100 million threshold for economic significance. This final rule
implements statutory requirements and reflects the Agency's response to
comments received on the NPRM issued on December 21, 2006 (71 FR
76796).
FMCSA prepared a regulatory evaluation analyzing the costs and
benefits of this rule. The regulatory evaluation indicates that the
rule will not have a significant economic impact on IEPs, motor
carriers, and drivers. The economic benefits of the rule are estimated
to include: (1) Safety benefits from avoiding crashes involving IME,
and (2) efficiency benefits resulting from a reduction in vehicle OOS
orders on intermodal chassis and wait times for drivers to receive a
roadworthy chassis. The results of this evaluation are summarized
below. A copy of the full Regulatory Evaluation document is included in
Docket Number FMCSA-2005-23315.
Estimated Compliance Costs for Intermodal Equipment Providers
Potential costs considered in this Regulatory Evaluation include
costs to:
File an Intermodal Equipment Provider Identification
Report (FMCSA Form MCS-150C),
Identify the IEP responsible for the equipment through the
USDOT number assigned by FMCSA,
Establish a systematic inspection program, and a repair
and maintenance program to ensure the safe operating condition of each
chassis,
Maintain documentation of the inspection program, and
Establish and maintain a new reporting system for
identifying and correcting defective and deficient equipment.
When considering the cost impact of the rule, the Agency recognized
that some of these costs are already being incurred by the motor
carrier and intermodal industries. Based on information provided by
commenters and participants in public listening sessions, FMCSA
believes that periodic inspections of IME by those controlling that
equipment (Sec. 396.17(c)) are being performed at least once every 12
months, as required by the regulation. As discussed in more detail
below, surveys of steamship lines and railroads that are also IEPs
indicate that some are engaging in regular repair and preventive
maintenance, and conducting inspections in addition to the mandatory
periodic inspection. Further, because some motor carriers themselves
apparently make repairs to IMEs, this final rule would shift many of
these uncompensated costs back to IEPs. Therefore, for all of these
reasons, the costs of this final rule are lower than would be in the
absence of any inspection, repair, or maintenance activity currently
performed on IME.
Total first-year costs associated with this rule range from $7.8-
$38.8 million, depending on equipment providers' current inspection,
maintenance, and repair programs for their chassis. Total discounted
costs over the 10-year analysis period range from $52.4-$285.4 million,
using a 7 percent discount rate.
Filing Intermodal Equipment Provider Identification Report (Form MCS-
150C)
This final rule requires each IEP to (1) obtain a unique USDOT
number by submitting an Intermodal Equipment Provider Identification
Report, Form MCS-150C, to FMCSA, and (2) file an update of its report
every 24 months. FMCSA estimates that 108 entities (93 steamship lines,
5 railroads, and 10 common pool operators/equipment lessors) will need
to submit form MCS-150C.
FMCSA estimates that it takes 20 minutes to complete the Form MCS-
150C the first time it is filed.\6\ As mandated in section 217 of the
Motor Carrier Safety Improvement Act of 1999 (MCSIA), Pub. L. 106-159,
113 Stat. 1748, at 1767 (December 9, 1999), the Form MCS-150 need not
be updated more frequently than every two years. FMCSA estimates that
the biennial update would take considerably less time than the original
submission, as little as 10 minutes, because most of the updated
information is likely to be the same as the original filing, and
equipment providers will have had experience in completing the form at
least once before.\7\
---------------------------------------------------------------------------
\6\ FMCSA, Motor Carrier Identification Report, (65 FR 70509;
November 24, 2000).
\7\ The estimated time requirements for IEPs to fill out a Form
MCS-150C for the first time and biennially are consistent with
FMCSA's estimate of the time it takes motor carriers to fill out a
Form MCS-150.
---------------------------------------------------------------------------
A supervisor or manager would most likely be responsible for filing
a Form MCS-150C. According to the national employment and wage data
from the May 2006 Occupational Employment Statistics survey published
by the Bureau of Labor Statistics (BLS), the median hourly wages for
``first line office and administrative managers'' \8\ in the trucking,
ocean shipping and railroad industries \9\ were $22.57, $21.77, and
$27.04, respectively (this analysis will use wages in the steamship
industry for common pool operators). The weighted average of these
hourly wage estimates is $22.09. The BLS also publishes estimates of
benefits in its National Compensation Survey (NCS).\10\ According to
the December 2006 NCS, total hourly employee compensation in the
transportation and warehousing industries is $31.39, of which $20.80
(or 65.4 percent) is wages and salary, and $10.99 (or 34.6 percent) is
benefits. Including benefits brings the labor cost for filing the Form
MCS-150C to $33.77 per hour.
---------------------------------------------------------------------------
\8\ Standard Occupational Classification (SOC) 43-1011.
\9\ North American Industry Classification System (NAICS) 484100
(General freight, trucking), 483100 (Deep Sea, Coastal, Great Lakes
Shipping), 482100 (Railroads).
\10\ Benefits include paid leave, supplementary pay, insurance,
retirement and savings, as well legally required items, such as
social security, and workers' compensation.
---------------------------------------------------------------------------
IEPs would incur a one-time cost of $10.26 per entity (20 minutes
at $33.77 per hour), or about $1,108 for the 108 non-motor carrier
IEPs. Biennial updates would occur in years 3, 5, 7, and 9 and cost
$5.63 per entity (10 minutes at $33.77 per hour), or about $554 for
IEPs in each of those years. Total 10-year costs to IEPs discounted at
a 7 percent rate would be $1,754. Table 1 summarizes the estimated
initial costs for IEPs to file a Form MCS-150C with FMCSA, as well as
subsequent costs incurred to file the biennial updates. Motor carriers
are already required to file the Form MCS-150, and will not incur any
new costs.
[[Page 76812]]
Table 1--Costs To File Identification Report (MCS-150 or MCS-150C)
----------------------------------------------------------------------------------------------------------------
Additional costs due to the
Final Rule
-------------------------------
Provider Number of Total costs
entities over 10 years,
Year 1 costs discounted at
7%
----------------------------------------------------------------------------------------------------------------
Steamship Lines................................................. 93 $1,032 $1,488
Railroads....................................................... 5 69 99
Common-pool operators........................................... 10 115 166
Motor Carriers.................................................. 1,900 0 0
-----------------------------------------------
Total....................................................... 2,008 1,216 1,754
----------------------------------------------------------------------------------------------------------------
Note: Figures may not sum to totals due to rounding.
USDOT Number IEP Identification on Each Chassis
This final rule requires all IEPs to identify their chassis with a
USDOT number that is assigned when the Form MCS-150C is filed with the
Agency. This final rule allows IEPs to mark their IME with a label or
other marking that identifies the IEP through its assigned USDOT
number. The label or other marking must be legible and the IEP
identification must be clearly readily visible to an enforcement
official during the course of an equipment inspection.
FMCSA believes that IEPs will be able to fulfill these
identification requirements at the very low cost of $2 per chassis,
which includes $1 for labor and $1 for materials. With regard to labor,
this analysis assumes that this activity will take on average no more
than a minute per chassis to affix a label or insert a document that
clearly displays the IEP's USDOT number in the weatherproof container
used for vehicle registration documents. Regardless of who completes
these tasks at the IEP's facility, the cost (including overhead and
fringe benefits) of one-minute's worth of labor will not exceed $1.
Material costs will vary depending on which option the IEP chooses,
but should also be minimal. FMCSA staff researched custom-printed
weather-proof outdoor vinyl labels offered by numerous companies and
found that these may be purchased in bulk-lots of 1,000--each non-motor
carrier IEP controls on average about 7,500 chassis--for well below $1
dollar per vinyl label. If an IEP chooses to simply include in the
vehicle a document with its USDOT number, material costs are even
lower: Commercial printing services would cost about $0.10 per page
(for each chassis), and these documents could be produced by the IEPs
themselves at even lower cost. Nevertheless, this analysis rounds up
all material costs to $1.
Chassis identification will not be a one-time expense for IEPs for
three main reasons. First, older chassis are retired and replaced each
year. Based upon research and assessment conducted at the time the NPRM
was developed, FMCSA believes that the operational life of an
intermodal chassis is approximately 14 years and consequently that \1/
14\ of the total chassis pool turns over each year.\11\ Second, vendors
that sell weatherproof vinyl labels indicate that these labels last for
about three years and therefore will need to be replaced as they wear
out. Last, some IEPs report that the composition of their chassis pools
changes quite often. This ``churn'' in chassis in a pool can reportedly
be as high as 40 percent per year. Because each chassis will need to be
identified with the USDOT number of the IEP that currently controls it,
a large fraction of the total chassis pool may need to be re-identified
each year.
---------------------------------------------------------------------------
\11\ The operational life estimate was derived using data on the
model years of chassis that underwent roadside inspections.
---------------------------------------------------------------------------
Table 2 summarizes the cost of chassis identification. High
``churn'' rates were reported only by chassis pool lessors, and, as
previously discussed, many of their chassis are actually under long-
term lease to steamship lines. Consequently, these high rates of
turnover are likely concentrated among less than one-quarter of the
total chassis pool. Costs were calculated under a variety of churn
rates that were applied to the total non-motor carrier-controlled pool,
and, as can be seen, total costs do not vary greatly. This analysis
will subsequently use a churn rate of 20 percent. It is also worth
noting that more frequent re-identification of IME by IEPs alleviates
the costs from replacing worn-out labels.
Table 2--Comparison of Chassis Identification Costs
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Annual chassis churn 50% 40% 30% 20% 10% 5% 0%
----------------------------------------------------------------------------------------------------------------
First Year Costs:
Initial Marking.............................. $1.6 $1.6 $1.6 $1.6 $1.6 $1.6 $1.6
Year 1 Churn................................. 0.8 0.6 0.5 0.3 0.2 0.1 0.0
Costs in Years 2-10, Discounted at 7%:
Label Replacement............................ 0.5 0.7 1.0 1.2 1.4 1.4 1.4
Churn........................................ 4.9 3.9 2.9 2.0 1.0 0.5 0.0
New Chassis.................................. 0.8 0.8 0.8 0.8 0.8 0.8 0.8
--------------------------------------------------------------
Total 10-Year Costs, Discounted at 7%.... 8.5 7.6 6.8 5.9 4.9 4.4 3.8
----------------------------------------------------------------------------------------------------------------
Note: Figures may not sum to totals due to rounding.
[[Page 76813]]
Systematic Inspection, Repair, and Maintenance Programs
Current regulations (49 CFR 396.17) require motor carriers or their
agents to conduct periodic (annual) inspections on their equipment.
Also, in accordance with Sec. 396.3(a), every motor carrier is
required to systematically inspect, repair, and maintain, or cause to
be systematically inspected, repaired, and maintained, all motor
vehicles subject to its control. The parts and accessories for those
motor vehicles are required to be in safe and proper operating
condition at all times a vehicle is being operated. These parts and
accessories include those components specified in part 393 and any
additional parts and accessories that may affect safety of operation.
Such parts and accessories include but are not limited to frame and
frame assemblies, suspension systems, axles and attaching parts, wheels
and rims, and steering systems (Sec. 396.3(a)(1)). This final rule
explicitly extends these requirements to IEPs.
Information collected prior to this rulemaking (surveys, port
visits, anecdotal information provided by industry contacts) led FMCSA
to conclude that most IEPs currently have active inspection, repair,
and maintenance programs for their chassis that satisfy Sec. 396.17,
and would bear no additional costs to satisfy this particular
regulation. With regard to the requirements of Sec. 396.3, FMCSA
believes that the majority of providers are performing regular inbound
and outbound inspections at terminals, annual inspections, and some
forms of preventive maintenance, along with maintaining records on the
inspection, repair, and maintenance (IRM) activities performed.
However, the Agency could not conclude that all IEPs are 100 percent in
compliance with the systematic IRM requirements of Sec. 396.3.
Consequently, the Agency anticipates some additional costs associated
with the requirements for systematic IRM specifically due to the need
for additional IME inspections by some IEPs.
Maintenance and Repair Costs
Maintenance programs for some IEPs may need to be improved to bring
them into full compliance with the requirements. However, these changes
are expected to make maintenance and repair more proactive and less
reactive. For instance, currently some IEPs perform maintenance only in
direct response to equipment deficiencies noted by drivers or IEP
personnel in the course of driver pre-trip, outbound, or inbound
inspections, or during the annual inspection required by the FMCSRs.
The final rule instead now requires all IEPs to proactively conduct
inspections and preventive maintenance at more regularly scheduled
intervals. Overall repair costs could increase if there were cost
savings from delaying certain repairs as along as possible. Some of
these delayed repairs, however, may have resulted in more costly
repairs later or shortened chassis life, so it is unclear the extent to
which the strategy of delaying repairs reduces costs. Delaying repairs,
however, would increase the chances that repairs were undertaken by
carriers after IME had left an IEP terminal, usually while the driver
was en route to his or her destination. In these instances, this final
rule shifts some of the uncompensated repair costs from motor carriers
to IEPs. Further, if on-the-road repairs are more expensive than those
done at the IEP terminals, this final rule could result in a net
reduction in certain repair costs. Regardless, there is much
uncertainty about the magnitude of any of these effects, and the Agency
does not have data on repairs that did not occur, to be able to
estimate the impact on repair costs. The Agency continues to assume, as
it did in the NPRM, no additional costs for maintenance and repair as a
result of this final rule.
Additional Inspections
Although any reallocation of maintenance and repair costs is
assumed to have zero net cost impact, the extent to which this
reallocation occurs will depend on the effectiveness of IEPs' current
inspection systems at identifying needed repairs or performing regular
maintenance before chassis are tendered to truck drivers to operate in
interstate commerce. Drivers who submitted comments to the proposed
rule stated that chassis are often tendered without having been
adequately inspected, specifically noting that pre-trip walk-around
inspections uncover problems that should have been noted and addressed
earlier by IEPs. However, information from a limited survey of
steamship lines indicates that the majority seem to already comply with
the systematic IRM requirement. Because FMCSA is unable to conclude
that full compliance already exists, it assumes that non-motor carrier
IEPs will need to undertake new activities and thus incur costs in
order to comply with the requirements of this rule. New costs will
specifically arise from IEPs' performing additional inspections where
needed.
FMCSA is uncertain about the proportion of chassis that are
currently inspected often and thoroughly enough to meet the requirement
of this final rule. For this analysis, FMCSA assumes a range of
compliance of 50-75 percent of the intermodal chassis population. The
baseline rate of compliance may be higher, although FMCSA did not find
evidence that it is at 100 percent. To calculate the costs of this
final rule, FMCSA assumed that IEPs will have to conduct additional
inspections on the non-compliant fraction (25 to 50 percent) of the
chassis pool to meet the IRM requirement.
FMCSA based the foregoing assumptions on information from a variety
of sources, including surveys, port visits, its own observations at
roadside inspections, and comments on the NPRM and at the public
listening sessions. Although intermodal survey responses suggest that
some IEPs are already achieving a high level of compliance with this
rule, FMCSA believes the survey responses are dominated by larger,
better-managed firms with more rigorous inspection and repair programs.
FMCSA did not survey chassis pool operators, although this industry
submitted comments to the NPRM. FMCSA believes its assumption of 25 to
50 percent non-compliance does not underestimate costs.
The final rule sets no explicit requirements on the number of
inspections per chassis under a systematic IRM program. However, to
create cost estimates, FMCSA made assumptions about how many additional
inspections IEPs would actually undertake. FMCSA assumes all chassis
currently receive at least an annual inspection. In the Regulatory
Evaluation for the NPRM, FMCSA assumed that typically three additional
inspections (amounting to a quarterly inspection program) would be
needed to bring the non-compliant portion (non-motor-carrier-controlled
IME pool) into compliance. Some commenters may have interpreted that
estimate as implying a requirement for 4 inspections annually; because
a typical intermodal chassis travels only several thousand miles per
year, this number of inspections might be excessive. In response to
those commenters, for the final rule, FMCSA also analyzed the costs of
semiannual inspections, where non-compliant chassis would need just one
additional scheduled inspection to be brought into compliance with the
FMCSRs. The Agency notes that mileage is not the only factor that
contributes to chassis wear, as environmental factors may also play a
prominent role in some parts of the country. A quarterly inspection
regime can be used to calculate a reasonable upper bound for costs,
while a semiannual program can
[[Page 76814]]
be used to calculate a reasonable lower bound.
This analysis assumes that it takes, on average, 45 minutes to
conduct an annual inspection of an intermodal chassis. FMCSA assumes 30
minutes for all its current annual inspection programs. AAR members
note that it takes 30 minutes to conduct the annual inspection of
intermodal chassis. However, OCEMA indicates the annual FMCSA
inspection takes one hour regardless of who is performing the
inspection. The cost of conducting inspections can vary depending on
the nature of the labor being used (e.g., union or non-union, employees
or contractors, on-site or off-site) and the geographic region. FMCSA
assumes a transportation equipment inspector will devote 30 minutes to
the inspection. The inspector would be supported by a truck maintenance
technician who is assumed to devote 15 minutes to the inspection.\12\
---------------------------------------------------------------------------
\12\ All wage figures are from the May 2006 DOL Occupational
Employee Statistics (OES). The specific occupations used were
Transportation Inspector (53-6051) and Bus and Truck Mechanic (49-
3031).
---------------------------------------------------------------------------
FMCSA examined wages from three distinct industry segments: Motor
carriers, steamship lines, and railroads.\13\ Public comments note that
common pool operators may lease a large fraction of their chassis to
steamship lines and also are often located near ports. For both
reasons, FMCSA believes wages specific to steamship lines are also
applicable to chassis pool operators. A transportation equipment
inspector earns wages of $16.88, $23.04, and $27.56 per hour in the
motor carrier, railroad, and steamship industries, respectively. A
truck maintenance technician earns wages of $17.14, $22.33, and $23.86
per hour in the motor carrier, railroad, and steamship industries,
respectively. As previously discussed regarding the costs of filing the
Form MCS-150C, wages account for 65.4 percent of total compensation.
Applying these data and the estimated time for an inspection yields a
per inspection cost of wages of $19.46, $26.15, and $30.19 for motor
carrier, railroad, and steamship industries, respectively. Because this
rule extends no additional requirements to motor carriers, additional
costs are based only on chassis controlled by non-motor carrier IEPs.
---------------------------------------------------------------------------
\13\ Specifically, industries as defined by the North American
Industry Classification System (NAICS): General Freight Trucking
(488400), Rail Transportation (482100), and Deep Sea, Coastal, and
Great Lakes Water Transportation (483100). Where specific
occupations were not included in the latter, industry Support
Activities for Water Transportation (488300) was used.
---------------------------------------------------------------------------
FMCSA also estimated existing IRM costs for all IEPs for comparison
with the additional costs of the final rule. Using responses from the
recent IEP surveys, FMCSA estimates that the average cost of repair and
maintenance was $1,356 per chassis per year for railroads, and $688 per
chassis per year for steamship lines. When put on a per mile basis
(also taken from the survey responses), these estimates are close
($0.13 for railroads and $0.15 for steamship lines). For the purposes
of this analysis, the average, $1,022 per chassis per year, is used as
the expected cost of repair and maintenance.
Table 3 shows the estimated costs of IRM programs for equipment
providers. Costs are presented for two scenarios, that 50 percent of
chassis are not part of compliant IRM programs, and that 25 percent are
not. For each scenario, two estimates on the additional number of
inspections needed to achieve compliance, one or three, are presented.
Additional costs of this rule for new inspections to meet systematic
IRM requirements were estimated to be between $6.0 million and $36.0
million per year.
Table 3--Estimated Annual Costs of Systematic Inspection, Repair, and Maintenance Programs for Intermodal Chassis
--------------------------------------------------------------------------------------------------------------------------------------------------------
Existing costs ($ millions) Costs from final rule ($ millions)
-----------------------------------------------------------------------
Inspections per year currently Additional inspections per year
performed on compliant chassis* needed to bring non-compliant
------------------------------------ chassis into compliance*
4 2 -----------------------------------
------------------------------------ 3 1
IEP Firms Chassis Percent of Percent of -----------------------------------
chassis chassis Percent of Percent of
currently in currently in chassis chassis
full compliance full compliance currently not in currently not in
------------------------------------ compliance compliance
-----------------------------------
50% 75% 50% 75% 50% 25% 50% 25%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steamship Lines........................................... 93 392,000 430.2 439.1 418.4 421.3 17.8 8.9 5.9 3.0
Railroads................................................. 5 96,200 104.6 106.5 102.1 102.7 3.8 1.9 1.3 0.6
Common Pool Operators..................................... 10 320,000 351.2 358.4 341.5 343.9 14.5 7.2 4.8 2.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Motor Carriers............................................ 1,900 41,800 46.0
44.3
0.0
0.0
---------------------------------------------------------------------------------------------
Total................................................. 2,008 850,000 932.0 950.0 906.3 912.3 36.0 18.0 12.0 6.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* All chassis are assumed to undergo an annual inspection.
Note: Figures may not sum to totals due to rounding.
Recordkeeping
FMCSA believes that the systematic IRM requirement will prompt IEPs
to conduct one to three additional inspections per year on a subset of
the total number of chassis. The Agency assumes that IEPs are already
keeping records on the inspections they currently perform. FMCSA
estimates that the time needed to document and file each inspection
report is approximately 3 minutes.\14\ Including benefits, a
transportation equipment inspector earns wages between $26 and $42 per
hour. The 3 minutes of an
[[Page 76815]]
inspector's time devoted to recordkeeping would cost IEPs, on average,
wages of no more than $2 per inspection. Table 4 presents the annual
estimated cost of recordkeeping for the additional inspections
underlying the costs presented in Table 3 above.,
---------------------------------------------------------------------------
\14\ FMCSA's supporting document on information collection
titled, ``Inspection, Repair, and Maintenance,'' is covered by OMB
approval number 2126-0003.
Table 4--Additional Annual Recordkeeping Costs
----------------------------------------------------------------------------------------------------------------
Costs from final rule ($ millions)
-----------------------------------
Additional inspections per year to
reach full compliance
-----------------------------------
3 1
IEP Firms Chassis -----------------------------------
Percent of Percent of
chassis chassis
currently not in currently not in
compliance compliance
-----------------------------------
50% 25% 50% 25%
----------------------------------------------------------------------------------------------------------------
Steamship Lines....................................... 93 392,000 1.2 0.6 0.4 0.2
Railroads............................................. 5 96,200 0.3 0.1 0.1 0.0
Common Pool Operators................................. 10 320,000 1.0 0.5 0.3 0.2
---------------------------------------------------------
Total............................................. 108 808,200 2.4 1.2 0.8 0.4
----------------------------------------------------------------------------------------------------------------
Note: Figures may not sum to totals due to rounding.
Defective and Deficient Equipment Reporting
The final rule requires that IEPs establish a system for motor
carriers and drivers to report to IEPs any defects or deficiencies in
tendered chassis that would affect the safety of the operation of those
chassis or result in its mechanical breakdown on the road. This change
potentially requires: (1) The establishment of the system; (2) the
minimum information that the intermodal provider must obtain from motor
carriers and drivers; (3) the corrective actions that must be taken
when a chassis is identified as being defective or deficient in some
way; and (4) the retention period for all documentation generated as a
consequence of this system. This requirement will be added to the
FMCSRs in a new Sec. 396.12, ``Procedures for intermodal equipment
providers to accept reports required by Sec. 390.44(b).''
The requirements of Sec. 396.12 are not expected to result in
additional costs to IEPs or motor carriers and their drivers. Surveys
and other research indicate that all required actions are currently
performed in some form. A detailed discussion of the requirements of
Sec. 396.12 is contained in the full Regulatory Evaluation in the
docket.
Total Compliance Costs of the Regulation
Table 5 summarizes the expected compliance costs attributable to
the regulation.
Table 5--Total Costs of Intermodal Rule
[$ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Additional
annual Current
inspections percentage Filing
Period needed to of non- form MCS- Chassis Inspections Recordkeeping Total
achieve compliant 150C marking
full chassis
compliance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1............................................................ 3 50 0.001 1.6 36.0 1.2 38.8
25 18.0 0.6 20.2
1 50 12.0 0.4 14.0
25 6.0 0.2 7.8
10-Year Discounted at 7%.......................................... 3 50 0.003 5.9 270.7 8.8 285.4
25 135.3 4.4 145.6
1 50 90.2 2.9 99.0
25 45.1 1.5 52.4
10-Year Discounted at 3%.......................................... 3 50 0.003 6.6 316.5 10.3 333.4
25 158.2 5.2 170.0
1 50 105.5 3.4 115.6
25 52.7 1.7 61.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures may not sum to totals due to rounding.
The first-year costs are estimated to be between $7.8 million and
$38.8 million. The present value of compliance costs over ten years,
calculated using a 7 percent discount rate, are expected to be between
$52.4 million and $285.4 million. With a 3 percent discount rate, these
ten-year costs are expected to be between $61.1 million and $333.4
million. This wide range of cost estimates primarily reflects the
Agency's decision to include a lower cost
[[Page 76816]]
scenario for how IEPs will meet the systematic IRM requirements of this
final rule.
Safety and Economic Benefits of Improving Container Chassis Maintenance
The expected benefits of the final rule include the following:
Prevented crashes:
1. Prevented injuries;
2. Saved lives;
3. Reduced property damage;
Increased operational efficiency of intermodal chassis by:
1. Reduced vehicle out-of-service rate;
2. Reduced average unproductive time spent by truckers waiting for
chassis repairs on the road;
3. Reduced average time spent by truckers at rail terminals or port
facilities waiting to be given a roadworthy chassis.
The following sections quantify the potential benefits of the rule
by estimating the number of crashes avoided to justify the compliance
costs directly or indirectly imposed by the rule. These sections also
provide a qualitative discussion of benefits of the rule where
quantitative estimates are not available.
Threshold Analysis for Safety Benefits
FMCSA is cautious in presenting safety benefits because it lacks
data that systematically identify crashes associated with hauling
intermodal freight. Most crash data do not indicate specifically what
type of semitrailer is involved in the crash, and the limited amount of
detail in such data makes any conclusions based on crash analyses less
certain. One can determine from carriers' filings of Form MCS-150 if
the motor carrier involved in a crash hauls, exclusively or in part,
intermodal freight. However, the information collected on that form may
not be accurate, and carriers are not required to indicate what
fraction of carriers' business is devoted to intermodal freight, so
estimates derived from this information are extremely uncertain.
Furthermore the small fraction of crash reports that identify an
intermodal chassis often do not present enough information to allow the
Agency to determine whether poor chassis condition was a contributing
factor in the crash.
FMCSA conducted a threshold analysis of the benefits needed to make
this final rule cost effective. Because the costs of this rule are
relatively low, even small safety benefits would make it cost
beneficial. The estimated average cost of a truck crash involving a
truck tractor with a single semitrailer is $170,229.\15\ Based on the
cost estimates presented in Table 5, this final rule will need to
prevent between 40 and 230 crashes per year to yield positive net
benefits.\16\
---------------------------------------------------------------------------
\15\ Zaloshnja, Eduard and Ted Miller (December 2006). ``Unit
Costs of Medium and Heavy Truck Crashes.'' http://ai.volpe.dot.gov/CarrierResearchResults/PDFs/Crash%20Costs%202006.pdf. These costs
represent the present value of all costs over the victim's expected
life span that result from a crash, computed using a 4 percent
discount rate. The costs are medically related costs, emergency
services costs, property damage costs, lost productivity, and
monetized value of the pain, suffering, and quality of life
adjustments. Zaloshnja and Miller present estimates in 2005 dollars;
this evaluation adjusts these estimates to 2006 dollars using the
2.93 percent increase in the gross domestic price deflator from 2005
to 2006. Zaloshnja and Miller use a $3.0 million value of a
statistical life (VSL). We have recomputed crash costs using a $5.8
million VSL in accordance with DOT guidance (Office of the Secretary
of Transportation, ``Treatment of the Economic Value of a
Statistical Life in Departmental Analyses.'' Feb. 2008. Available
at: http://ostpxweb.ost.dot.gov/policy/reports/080205.htm) and also
published at 73 FR 35194, June 20, 2008.
\16\ The net present value of a single crash avoided per year
over 10 years, with a 7 percent discount rate, is $1,242,863. Total
discounted costs over ten years are divided by this number to
calculate the annual average number crashes.
---------------------------------------------------------------------------
Benefits Associated with Increased Operational Efficiency
The final rule is likely to produce some productivity benefits by
enabling the hauling of intermodal freight to function more smoothly
through a reduction of vehicle OOS rates. According to information
provided to FMCSA by ATA members, carriers spend, on average, 3 hours
of a driver's time and 1.5 hours of other employees' time to correct
each vehicle OOS order received on chassis tendered by an equipment
provider.\17\ The opportunity cost for a truck driver and one
employee's time is calculated at $140 per vehicle OOS order
attributable to a problem chassis.\18\ Given that, on average, between
18.5 and 25 percent of roadside inspections of intermodal chassis
result in vehicle OOS violations, the cost savings associated with this
final rule, in terms of the opportunity cost of the driver and motor
carriers' time, would quickly add up, as there are an estimated 850,000
intermodal chassis in operation in the U.S.
---------------------------------------------------------------------------
\17\ Average revenue per tractor would also measure opportunity
cost, but this analysis only measures the cost of staff time, not
equipment (the tractor and trailer), thereby resulting in a lower
potential cost savings estimate.
\18\ Using National employment and wage data, the median hourly
wage for a truck driver is estimated at $16.01 and supervisor/
manager is estimated at $21.08. With fringe benefit added to the
wages, the hourly wage and salaries are estimated at $23.39 and
$30.79 for truck driver and the manager/supervisor, respectively.
---------------------------------------------------------------------------
FMCSA estimated the number of OOS orders this final rule would
eliminate. A complete discussion on the methodology behind these
estimates is contained in the full Regulatory Evaluation in the docket.
Based on its research, FMCSA assumed intermodal chassis have OOS rates
of 19 percent and that this final rule will reduce this OOS rate 25
percent, to a 14.25 percent rate. This is slightly above the trailing-
unit OOS rate of 13 percent for non-intermodal carriers. In 2006, FMCSA
determined that 21,154 inspections were performed on intermodal
chassis, resulting in 3,982 OOS orders. FMCSA currently estimates that
95 percent of chassis are tendered by non-motor carrier IEPs, and
therefore 95 percent of these OOS orders are for non-motor carrier IME.
If this rule eliminated 25 percent of OOS orders on non-motor carrier
IME, it would result in a reduction of about 950 OOS orders per year.
Applying the estimated cost of $140 per OOS order yields an annual
benefit of $133,000. The net present value of this benefit over 10
years, discounted at a 7 percent rate, will be about $1 million.
FMCSA anticipates this final rule, by mandating that IEPs implement
systematic IRM, will reduce the number of defective chassis being
offered or tendered for transportation in interstate commerce, and
thereby reduce the time needed by truck drivers to find a roadworthy
chassis at intermodal terminal facilities.
Regulatory Flexibility Analysis
FMCSA believes there will not be a significant economic impact on a
substantial number of small entities. Chapter 4.2 of the Regulatory
Evaluation in the docket contains the full Regulatory Flexibility
Analysis for this rule. The Regulatory Flexibility Act of 1980 (Pub. L.
96-354) (5 U.S.C. 601 et seq.) requires agencies to consider the impact
of regulations on small businesses, small non-profit organizations, and
small governmental jurisdictions, unless the Agency determines that a
rule is not expected to have a significant economic impact on a
substantial number of small entities (SEISNOSE). This final rule will
affect primarily 93 steamship lines, 10 IME pool operators, and 5
railroads--all of which are either large entities or foreign-owned
businesses. This final rule does not apply to a substantial number of
small entities.
Intergovernmental Review
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on
[[Page 76817]]
Federal programs and activities do not apply to this program.
Paperwork Reduction Act
FMCSA determined that this final rule requires revisions to two
existing information collections. OMB Number 2126-0003 entitled,
``Inspection, Repair and Maintenance,'' will expire on April 30, 2009.
The currently-approved ``total annual burden hours'' for 2126-0003 is
59,093,244 hours.
OMB Number 2126-0013 entitled, ``Motor Carrier Identification
Report,'' expires March 31, 2011. The currently-approved ``total annual
burden hours'' for 2126-0013 is 119,270 hours.
The amendments in this final rule that affect existing information
collections include the requirements for entities that offer intermodal
container chassis for transportation in interstate commerce to: (1)
File an Intermodal Equipment Provider Identification Report (FMCSA Form
MCS-150C, a variant on the currently-approved Motor Carrier
Identification Report, Form MCS-150); (2) establish a systematic
inspection, repair, and maintenance program to ensure the safe
operating condition of each IME tendered to motor carriers and drivers,
and to maintain documentation of the program in accordance with 49 CFR
part 396; and (3) provide a means for an IEP to effectively respond,
using a variant of the Driver-Vehicle Inspection Report currently
approved by OMB, to driver and motor carrier complaints about the
condition of intermodal container chassis.
The requirement for IEPs to file the Form MCS-150C report is
expected to add only 36 burden hours to data collection 2126-0013 in
the first year after this rule takes effect, and 18 hours every 2 years
thereafter for updates to the form. In addition, it is anticipated that
electronic recordkeeping will reduce, to the greatest extent
practicable, the costs associated with complying with the recordkeeping
requirements.
National Environmental Policy Act of 1969 (NEPA)
FMCSA analyzed this final rule for the purpose of the NEPA (42
U.S.C. 4321 et seq.) and conducted an environmental assessment under
the procedures set forth in FMCSA Order 56101.1, published March 1,
2004 (69 FR 9680). Under FMCSA Order 5610.1, the environmental
assessment focuses only on those resource categories that are of
interest to the public or important to the decision, including Public
Health and Safety, Hazardous Materials Transportation, Solid Waste
Disposal, and other Special Areas of Consideration. In addition, the
NEPA analysis also incorporates the rule's potential impact on Historic
Properties (Section 106 Analysis under the National Historic
Preservation Act) and Section 4(f) Determinations under the DOT Act
(recodified at 49 U.S.C. 303(c)).
The results of the Environmental Assessment indicate that the
potential for crash reduction may result in a small net benefit to the
environment. FMCSA calculated the impacts of CMV crashes on the
environment and the estimated crash reductions for this final rule will
prevent emissions from congestion resulting from these CMV crashes, as
well as prevent hazardous materials spills and solid waste generated as
a result of the averted CMV crashes. However, because these impacts are
rather small, FMCSA made a Finding of No Significant Impact for this
rulemaking. Further environmental review in the form of an
Environmental Impact Statement is not required. The Environmental
Assessment and the Finding of No Significant Impact are in the docket.
Executive Order 12898 (Environmental Justice)
FMCSA considered the environmental effects of this final rule in
accordance with Executive Order 12898 and DOT Order 5610.2 on
addressing Environmental Justice for Minority Populations and Low-
Income Populations, published April 15, 1997 (62 FR 18377) and
determined that there are no environmental justice issues associated
with this rule nor any collective environmental impact resulting from
its promulgation. Environmental justice issues would be raised if there
were ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. None of the regulatory alternatives
considered in this rulemaking will result in high and adverse
environmental impacts.
Energy Effects
FMCSA analyzed this action under Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use.'' FMCSA determined that it is not a ``significant
energy action'' because it is not economically significant (i.e., a
cost of more than $120.7 million in a single year) and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
Unfunded Mandates Reform Act of 1995
FMCSA determined this final rule does not impose an unfunded
mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1532 et seq.), resulting in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of
$120.7 million or more (adjusted for inflation) in any one year.
Civil Justice Reform
This rulemaking meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, ``Civil Justice Reform,'' to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
FMCSA analyzed this action, as required under Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks.'' FMCSA certifies it is not an economically significant
rule, nor does it concern an environmental risk to health or safety
that may disproportionately affect children.
Taking of Private Property
This rulemaking does not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights.''
Federalism
FMCSA analyzed this final rule in accordance with the principles
and criteria of Executive Order 13132, ``Federalism,'' and determined
it has federalism implications within the meaning of the Order.
The Federalism Order applies to ``policies that have federalism
implications,'' which it defines as regulations and other actions
``that have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Sec. 1(a). The key concept here is ``substantial direct
effects on the States.''
Section 31151(d) preempts ``a law, regulation, order, or other
requirement of a State, a political subdivision of a State, or a tribal
organization relating to commercial motor vehicle safety'' if it
``exceeds or is inconsistent with a requirement imposed under or
pursuant to'' 49 U.S.C. 31151. In other words, this final rule
establishing maintenance and related requirements for IME preempts any
State or local law or regulation on
[[Page 76818]]
the same subject if it exceeds or is inconsistent with the Federal
requirement.
Nonetheless, there are exceptions to this ``preemption'' principle.
``[A] State requirement for the periodic inspection of intermodal
chassis by IEPs that was in effect on January 1, 2005,'' shall remain
in effect only until the effective date of the final rule adopted under
this proceeding [section 31151(e)(1)]; thus giving the States time to
adapt to, and/or change, existing State laws and requirements to
coincide with the new Federal roadability requirements. Additionally,
notwithstanding section 31151(d), State requirements are not preempted
by a Federal requirement if the Secretary ``determines that the State
requirement is as effective as the Federal requirement and does not
unduly burden interstate commerce'' [section 31151(e)(2)(A)]. A State
must request a non-preemption determination before the effective date
of the FMCSA final rule (section 31151(e)(2)(B)), here 6 months after
publication in the Federal Register. No subsequent amendment to a non-
preempted requirement may take effect unless it is first submitted to
the Secretary, who must find that the amendment is no less effective
than the FMCSA requirements and does not unduly burden interstate
commerce (section 31151(e)(2)(C)).
Section 31151 clearly has a ``direct effect'' on the States,
federalism implications, and preempts State law, but all of those
results are intended and required by the statute. Although most of the
States that adopted statutes regulating the maintenance of IME did not
enforce them for several years, section 31151 will foreclose the
opportunity for States to enact alternative legislation on this
subject. We believe, however, that section 31151 does not create a
``substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' The IME
affected by this rulemaking operate in interstate commerce. The
regulation of interstate commerce is constitutionally and historically
vested in the Federal government, not the States. The assertion of
Federal authority in this area does not change the traditional
relationship between the national government and the States, nor does
it affect the constitutional and practical distribution of power and
responsibilities among the various levels of government.
Section 3(b) of the Federalism Order provides that ``[n]ational
action limiting the policymaking discretion of the States shall be
taken only where there is constitutional and statutory authority for
the action and the national activity is appropriate in light of the
presence of a problem of national significance.'' The constitutional
authority and statutory mandate for this rulemaking are clear and
explicit.
FMCSA determined that this action will have a direct effect on
States. However, because existing State laws on the maintenance of IME
are so few and narrow in scope, the Agency also determined that this
action will not have a substantial direct effect nor impose substantial
additional costs or burdens on the States.
The Agency consulted with the States on the federalism implications
of this regulation, as required by E.O. 13132, to ensure that State and
local officials had meaningful and timely input into the formal
promulgation and development of this regulation. Also, FMCSA provided
State and local governments with ample opportunity to address this
issue during the NPRM comment period and subsequent reopening of the
comment period for the purpose of hearing oral comments at three public
listening sessions, as indicated previously in this rule. Most of the
States' concerns were based on the amount of time the Agency would
allow them to file requests for non-preemption. FMCSA responded to
these requests by setting a more realistic 6-month delayed effective
date for this final rule, in light of the additional time States need
to develop applications for non-preemption and the Agency will need to
act on these requests. Thus, the Agency believes it has met the
concerns of these State and local officials in this regard.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Intermodal
equipment roadability, Motor carriers, Motor vehicle safety, Reporting
and recordkeeping requirements.
49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders,
Hazardous materials, Intermodal equipment provider, Highway safety,
Motor carriers, Motor vehicle safety, Penalties.
49 CFR Part 390
Highway safety, Intermodal equipment providers, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 392
Highway safety, Intermodal equipment providers, Motor carriers.
49 CFR Part 393
Highway safety, Intermodal equipment providers, Motor carriers,
Motor vehicle safety.
49 CFR Part 396
Highway safety, Intermodal equipment providers, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
VI. The Final Rule
0
For the reasons discussed above, FMCSA amends Subchapter B, Chapter
III, in Title 49 of the Code of Federal Regulations, as set forth
below:
PART 385--SAFETY FITNESS PROCEDURES
0
1. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113,
13901-13905, 31136, 31144, 31148, 31151, and 31502; Sec. 350 of Pub.
L. 107-87; and 49 CFR 1.73.
0
2. Amend Sec. 385.1 by adding paragraph (e) to read as follows:
Sec. 385.1 Purpose and scope.
* * * * *
(e) Subpart F of this part establishes procedures to perform a
roadability review of intermodal equipment providers to determine their
compliance with the applicable Federal Motor Carrier Safety Regulations
(FMCSRs).
0
3. Amend Sec. 385.3 by adding paragraph (4) to the definition of
``Reviews,'' to read as follows:
Sec. 385.3 Definitions and acronyms.
* * * * *
Reviews. * * *
(4) Roadability review means an on-site examination of the
intermodal equipment provider's compliance with the applicable FMCSRs.
* * * * *
0
4. Revise Sec. 385.201 to read as follows:
Sec. 385.201 Who is qualified to perform a review of a motor carrier
or an intermodal equipment provider?
(a) An FMCSA employee, or a State or local government employee
funded through the Motor Carrier Safety Assistance Program (MCSAP), who
was qualified to perform a compliance review before June 17, 2002, may
perform a compliance review, safety audit, roadability review, or
roadside inspection if he or she complies with Sec. 385.203(b).
[[Page 76819]]
(b) A person who was not qualified to perform a compliance review
before June 17, 2002, may perform a compliance review, safety audit,
roadability review, or roadside inspection after complying with the
requirements of Sec. 385.203(a).
Sec. 385.203 [Amended]
0
5. Amend Sec. 385.203 by adding ``roadability review,'' after ``safety
audit,'' in paragraphs (a) and (b).
0
6. Amend part 385 by adding a new Subpart F--Intermodal Equipment
Providers (Sec. Sec. 385.501-385.503) to read as follows:
Subpart F--Intermodal Equipment Providers
Sec. 385.501 Roadability review.
(a) FMCSA will perform roadability reviews of intermodal equipment
providers, as defined in Sec. 390.5 of this chapter.
(b) FMCSA will evaluate the results of the roadability review using
the criteria in Appendix A to this part as they relate to compliance
with parts 390, 393, and 396 of this chapter.
Sec. 385.503 Results of roadability review.
(a) FMCSA will not assign a safety rating to an intermodal
equipment provider based on the results of a roadability review.
However, FMCSA may cite the intermodal equipment provider for
violations of parts 390, 393, and 396 of this chapter and may impose
civil penalties resulting from the roadability review.
(b) FMCSA may prohibit the intermodal equipment provider from
tendering specific items of intermodal equipment determined to
constitute an ``imminent hazard'' (See Sec. 386.72(b)(1) of this
chapter).
(c) FMCSA may prohibit an intermodal equipment provider from
tendering any intermodal equipment from a particular location or
multiple locations if the agency determines the intermodal equipment
provider's failure to comply with the FMCSRs constitutes an imminent
hazard under Sec. 386.72(b)(1).
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS
PROCEEDINGS
0
7. The authority citation for part 386 is revised to read as follows:
Authority: 49 U.S.C. 521, 5123, 13301, 13902, 14915, 31132-
31133, 31136, 31144, 31151, 31502, 31504; Sec. 204, Pub. L. 104-88,
109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159,
113 Stat. 1748, 1767; and 49 CFR 1.73.
0
8. Revise the heading of part 386 to read as set forth above.
0
9. Revise Sec. 386.1 to read as follows:
Sec. 386.1 Scope of the rules in this part.
(a) The rules in this part govern proceedings before the Assistant
Administrator, who also acts as the Chief Safety Officer of the Federal
Motor Carrier Safety Administration (FMCSA), under applicable
provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) (49
CFR parts 350-399), including the commercial regulations (49 CFR parts
360-379), and the Hazardous Materials Regulations (49 CFR parts 171-
180).
(b) The purpose of the proceedings is to enable the Assistant
Administrator:
(1) To determine whether a motor carrier, intermodal equipment
provider (as defined in Sec. 390.5 of this chapter), property broker,
freight forwarder, or its agents, employees, or any other person
subject to the jurisdiction of FMCSA, has failed to comply with the
provisions or requirements of applicable statutes and the corresponding
regulations; and
(2) To issue an appropriate order to compel compliance with the
statute or regulation, assess a civil penalty, or both, if such
violations are found.
0
10. Amend Sec. 386.72 by revising paragraph (b) to read as follows:
Sec. 386.72 Imminent hazard.
* * * * *
(b)(1) Whenever it is determined that a violation of 49 U.S.C.
31502 or the Motor Carrier Safety Act of 1984, as amended, or the
Commercial Motor Vehicle Safety Act of 1986, as amended, or a
regulation issued under such section or Acts, or a combination of such
violations, poses an imminent hazard to safety, the Director of the
Office of Enforcement and Compliance or a Division Administrator, or
his or her delegate, shall order:
(i) A commercial motor vehicle or employee operating such vehicle
out-of-service, or order an employer to cease all or part of the
employer's commercial motor vehicle operations, as provided by 49
U.S.C. 521(b)(5);
(ii) An intermodal equipment provider's specific vehicle or
equipment out-of-service, or order an intermodal equipment provider to
cease all or part of its operations, as provided by 49 U.S.C. 521(b)(5)
and 49 U.S.C. 31151(a)(3)(I).
(2) In making any such order, no restrictions shall be imposed on
any vehicle, terminal or facility, employee, employer or intermodal
equipment provider beyond that required to abate the hazard.
(3) In this paragraph (b), imminent hazard means any condition of
vehicle, intermodal equipment, or commercial motor vehicle operations
that substantially increases the likelihood of serious injury or death
if not discontinued immediately.
(4) Upon the issuance of an order under paragraph (b)(1) of this
section, the motor carrier employer, intermodal equipment provider or
driver employee shall comply immediately with such order. Opportunity
for review shall be provided in accordance with 5 U.S.C. 554, except
that such review shall occur not later than 10 days after issuance of
such order, as provided by section 213(b) of the Motor Carrier Safety
Act of 1984 (49 U.S.C. 521(b)(5)). An order to an employer or
intermodal equipment provider to cease all or part of its operations
shall not prevent vehicles in transit at the time the order is served
from proceeding to their immediate destinations, unless any such
vehicle or its driver is specifically ordered out-of-service forthwith.
However, vehicles and drivers proceeding to their immediate destination
shall be subject to compliance upon arrival.
(5) For purposes of this section, the term immediate destination is
the next scheduled stop of the vehicle already in motion where the
cargo on board can be safely secured.
(6) Failure to comply immediately with an order issued under this
section shall subject the motor carrier employer, intermodal equipment
provider, or driver to penalties prescribed in subpart G of this part.
0
11. Revise Sec. 386.83 to read as follows:
Sec. 386.83 Sanction for failure to pay civil penalties or abide by
payment plan; operation in interstate commerce prohibited.
(a)(1) General rule. A CMV owner or operator, or intermodal
equipment provider that fails to pay a civil penalty in full within 90
days after the date specified for payment by FMCSA's final agency
order, is prohibited from operating in interstate commerce starting on
the next (i.e., the 91st) day. The prohibition continues until FMCSA
has received full payment of the penalty.
(2) Civil penalties paid in installments. The FMCSA Service Center
may allow a CMV owner or operator, or an intermodal equipment provider,
to pay a civil penalty in installments. If the CMV owner or operator,
or intermodal equipment provider, fails to make an installment
[[Page 76820]]
payment on schedule, the payment plan is void and the entire debt is
payable immediately. A CMV owner or operator, or intermodal equipment
provider, that fails to pay the full outstanding balance of its civil
penalty within 90 days after the date of the missed installment
payment, is prohibited from operating in interstate commerce on the
next (i.e., the 91st) day. The prohibition continues until the FMCSA
has received full payment of the entire penalty.
(3) Appeals to Federal Court. If the CMV owner or operator, or
intermodal equipment provider, appeals the final agency order to a
Federal Circuit Court of Appeals, the terms and payment due date of the
final agency order are not stayed unless the Court so directs.
(b) Show cause proceeding. (1) FMCSA will notify a CMV owner or
operator, or intermodal equipment provider, in writing if it has not
received payment within 45 days after the date specified for payment by
the final agency order or the date of a missed installment payment. The
notice will include a warning that failure to pay the entire penalty
within 90 days after payment was due, will result in the CMV owner or
operator, or an intermodal equipment provider, being prohibited from
operating in interstate commerce.
(2) The notice will order the CMV owner or operator, or intermodal
equipment provider, to show cause why it should not be prohibited from
operating in interstate commerce on the 91st day after the date
specified for payment. The prohibition may be avoided only by
submitting to the Chief Safety Officer:
(i) Evidence that the respondent has paid the entire amount due; or
(ii) Evidence that the respondent has filed for bankruptcy under
chapter 11, title 11, United States Code. Respondents in bankruptcy
must also submit the information required by paragraph (d) of this
section.
(3) The notice will be delivered by certified mail or commercial
express service. If the principal place of business of a CMV owner or
operator, or an intermodal equipment provider, is in a foreign country,
the notice will be delivered to the designated agent of the CMV owner
or operator or intermodal equipment provider.
(c) A CMV owner or operator, or intermodal equipment provider, that
continues to operate in interstate commerce in violation of this
section may be subject to additional sanctions under paragraph IV(h) of
appendix A to part 386.
(d) This section does not apply to any person who is unable to pay
a civil penalty because the person is a debtor in a case under 11
U.S.C. chapter 11. CMV owners or operators, or intermodal equipment
providers, in bankruptcy proceedings under chapter 11 must provide the
following information in their response to the FMCSA:
(1) The chapter of the Bankruptcy Code under which the bankruptcy
proceeding is filed (i.e., chapter 7 or 11);
(2) The bankruptcy case number;
(3) The court in which the bankruptcy proceeding was filed; and
(4) Any other information requested by the agency to determine a
debtor's bankruptcy status.
0
12. Amend appendix A to part 386 by revising paragraphs IV.c, IV.d, and
IV.g. to read as follows:
Appendix A to Part 386--Penalty Schedule; Violations of Notices and
Orders
* * * * *
IV. Out-of-Service Order * * *
c. Violation--Operation of a commercial motor vehicle or
intermodal equipment by a driver after the vehicle or intermodal
equipment was placed out-of-service and before the required repairs
are made.
Penalty--$2,100 each time the vehicle or intermodal equipment is
so operated.
(This violation applies to drivers as defined in IVa above.)
d. Violation--Requiring or permitting the operation of a
commercial motor vehicle or intermodal equipment placed out-of-
service before the required repairs are made.
Penalty--Up to $16,000 each time the vehicle or intermodal
equipment is so operated after notice of the defect is received.
(This violation applies to intermodal equipment providers and
motor carriers, including an independent owner-operator who is not a
``driver,'' as defined in IVa above.)
* * * * *
g. Violation--Operating in violation of an order issued under
Sec. 386.72(b) to cease all or part of the employer's commercial
motor vehicle operations or to cease all or part of an intermodal
equipment provider's operations, i.e., failure to cease operations
as ordered.
Penalty--Up to $16,000 per day the operation continues after the
effective date and time of the order to cease.
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
13. Revise the authority citation for part 390 to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31144,
31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941
(49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673,
1677; sec. 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1767, 1773;
and 49 CFR 1.73.
0
14. Amend Sec. 390.3 by adding a new paragraph (h) to read as follows:
Sec. 390.3 General applicability.
* * * * *
(h) Intermodal equipment providers. On and after December 17, 2009,
the rules in the following provisions of subchapter B of this chapter
apply to intermodal equipment providers:
(1) Subpart F, Intermodal Equipment Providers, of Part 385, Safety
Fitness Procedures.
(2) Part 386, Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings.
(3) Part 390, Federal Motor Carrier Safety Regulations; General,
except Sec. 390.15(b) concerning accident registers.
(4) Part 393, Parts and Accessories Necessary for Safe Operation.
(5) Part 396, Inspection, Repair, and Maintenance.
0
15. Amend Sec. 390.5 by adding, in alphabetical order, definitions for
Interchange, Intermodal equipment, Intermodal equipment interchange
agreement, and Intermodal equipment provider to read as follows:
Sec. 390.5 Definitions.
* * * * *
Interchange means the act of providing intermodal equipment to a
motor carrier pursuant to an intermodal equipment interchange agreement
for the purpose of transporting the equipment for loading or unloading
by any person or repositioning the equipment for the benefit of the
equipment provider, but it does not include the leasing of equipment to
a motor carrier for primary use in the motor carrier's freight hauling
operations.
Intermodal equipment means trailing equipment that is used in the
intermodal transportation of containers over public highways in
interstate commerce, including trailers and chassis.
Intermodal equipment interchange agreement means the Uniform
Intermodal Interchange and Facilities Access Agreement (UIIFA) or any
other written document executed by an intermodal equipment provider or
its agent and a motor carrier or its agent, the primary purpose of
which is to establish the responsibilities and liabilities of both
parties with respect to the interchange of the intermodal equipment.
Intermodal equipment provider means any person that interchanges
intermodal equipment with a motor carrier pursuant to a written
interchange
[[Page 76821]]
agreement or has a contractual responsibility for the maintenance of
the intermodal equipment.
* * * * *
0
16. Revise Sec. 390.15(a) to read as follows:
Sec. 390.15 Assistance in investigations and special studies.
(a) Each motor carrier and intermodal equipment provider must do
the following:
(1) Make all records and information pertaining to an accident
available to an authorized representative or special agent of the
Federal Motor Carrier Safety Administration, an authorized State or
local enforcement agency representative, or authorized third party
representative within such time as the request or investigation may
specify.
(2) Give an authorized representative all reasonable assistance in
the investigation of any accident, including providing a full, true,
and correct response to any question of the inquiry.
* * * * *
0
17. Revise Sec. 390.19 to read as follows:
Sec. 390.19 Motor carrier, hazardous material shipper, and intermodal
equipment provider identification reports.
(a) Applicability. Each motor carrier and intermodal equipment
provider must file Form MCS-150, Form MCS-150B or Form MCS-150C with
FMCSA as follows:
(1) A U.S.-, Canada-, Mexico-, or non-North America-domiciled motor
carrier conducting operations in interstate commerce must file a Motor
Carrier Identification Report, Form MCS-150.
(2) A motor carrier conducting operations in intrastate commerce
and requiring a Safety Permit under 49 CFR part 385, subpart E of this
chapter must file the Combined Motor Carrier Identification Report and
HM Permit Application, Form MCS-150B.
(3) Each intermodal equipment provider that offers intermodal
equipment for transportation in interstate commerce must file an
Intermodal Equipment Provider Identification Report, Form MCS-150C.
(b) Filing schedule. Each motor carrier or intermodal equipment
provider must file the appropriate form under paragraph (a) of this
section at the following times:
(1) Before it begins operations; and
(2) Every 24 months, according to the following schedule:
------------------------------------------------------------------------
USDOT number ending in Must file by last day of
------------------------------------------------------------------------
1...................................... January.
2...................................... February.
3...................................... March.
4...................................... April.
5...................................... May.
6...................................... June.
7...................................... July.
8...................................... August.
9...................................... September.
0...................................... October.
------------------------------------------------------------------------
(3) If the next-to-last digit of its USDOT Number is odd, the motor
carrier or intermodal equipment provider shall file its update in every
odd-numbered calendar year. If the next-to-last digit of the USDOT
Number is even, the motor carrier or intermodal equipment provider
shall file its update in every even-numbered calendar year.
(c) Availability of forms. The forms described under paragraph (a)
of this section and complete instructions are available from the FMCSA
Web site at http://www.fmcsa.dot.gov (Keyword ``MCS-150,'' or ``MCS-
150B,'' or ``MCS-150C''); from all FMCSA Service Centers and Division
offices nationwide; or by calling 1-800-832-5660.
(d) Where to file. The required form under paragraph (a) of this
section must be filed with FMCSA Office of Information Management. The
form may be filed electronically according to the instructions at the
Agency's Web site, or it may be sent to Federal Motor Carrier Safety
Administration, Office of Information Management, MC-RIO, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
(e) Special instructions for for-hire motor carriers. A for-hire
motor carrier should submit the Form MCS-150, or Form MCS-150B, along
with its application for operating authority (Form OP-1, OP-1(MX), OP-
1(NNA) or OP-2), to the appropriate address referenced on that form, or
may submit it electronically or by mail separately to the address
mentioned in paragraph (d) of this section.
(f) Only the legal name or a single trade name of the motor carrier
or intermodal equipment provider may be used on the forms under
paragraph (a) of this section (Form MCS-150, MCS-150B, or MCS-150C).
(g) A motor carrier or intermodal equipment provider that fails to
file the form required under paragraph (a) of this section, or
furnishes misleading information or makes false statements upon the
form, is subject to the penalties prescribed in 49 U.S.C. 521(b)(2)(B).
(h)(1) Upon receipt and processing of the form described in
paragraph (a) of this section, FMCSA will issue the motor carrier or
intermodal equipment provider an identification number (USDOT Number).
(2) The following applicants must additionally pass a pre-
authorization safety audit as described below before being issued a
USDOT Number:
(i) A Mexico-domiciled motor carrier seeking to provide
transportation of property or passengers in interstate commerce between
Mexico and points in the United States beyond the municipalities and
commercial zones along the United States-Mexico international border
must pass the pre-authorization safety audit under Sec. 365.507 of
this subchapter. The Agency will not issue a USDOT Number until
expiration of the protest period provided in Sec. 365.115 of this
subchapter or--if a protest is received-after FMCSA denies or rejects
the protest.
(ii) A non-North America-domiciled motor carrier seeking to provide
transportation of property or passengers in interstate commerce within
the United States must pass the pre-authorization safety audit under
Sec. 385.607(c) of this subchapter. The Agency will not issue a USDOT
Number until expiration of the protest period provided in Sec. 365.115
of this subchapter or--if a protest is received--after FMCSA denies or
rejects the protest.
(3) The motor carrier must display the number on each self-
propelled CMV, as defined in Sec. 390.5, along with the additional
information required by Sec. 390.21.
(4) The intermodal equipment provider must identify each unit of
interchanged intermodal equipment by its assigned USDOT number.
(i) A motor carrier that registers its vehicles in a State that
participates in the Performance and Registration Information Systems
Management (PRISM) program (authorized under section 4004 of the
Transportation Equity Act for the 21st Century [(Public Law 105-178,
112 Stat. 107]) is exempt from the requirements of this section,
provided it files all the required information with the appropriate
State office.
0
18. Amend Sec. 390.21 by revising the section heading and paragraphs
(a) and (b)(2), and by adding paragraph (g) to read as follows:
Sec. 390.21 Marking of self-propelled CMVs and intermodal equipment.
(a) General. Every self-propelled CMV subject to subchapter B of
this chapter must be marked as specified in paragraphs (b), (c), and
(d) of this section, and each unit of intermodal equipment interchanged
or offered for interchange to a motor carrier by an intermodal
equipment provider subject
[[Page 76822]]
to subchapter B of this chapter must be marked as specified in
paragraph (g) of this section.
(b) * * *
(2) The identification number issued by FMCSA to the motor carrier
or intermodal equipment provider, preceded by the letters ``USDOT.''
* * * * *
(g) Intermodal equipment. (1) The requirements for marking
intermodal equipment apply to each intermodal equipment provider, as
defined in Sec. 390.5, that interchanges or offers for interchange
intermodal equipment to a motor carrier.
(2) Each unit of intermodal equipment interchanged or offered for
interchange to a motor carrier by an intermodal equipment provider
subject to subchapter B of this chapter must identify the intermodal
equipment provider.
(3) The intermodal equipment provider must be identified by its
legal name or a single trade name and the identification number issued
by FMCSA, preceded by the letters ``USDOT.''
(4) The intermodal equipment must be identified as follows, using
any one of the following methods:
(i) The identification marking must appear on the curb side of the
item of equipment. It must be in letters that contrast sharply in color
with the background on which the letters are placed. The letters must
be readily legible, during daylight hours, from a distance of 50 feet
(15.24 meters) while the CMV is stationary; and be kept and maintained
in a manner that retains this legibility; or
(ii) The identification marking must appear on a label placed upon
the curb side of the item of equipment. The label must be readily
visible and legible to an inspection official during daylight hours
when the vehicle is stationary. The label must be a color that
contrasts sharply with the background on which it is placed, and the
letters must also contrast sharply in color with the background of the
label. The label must be kept and maintained in a manner that retains
this legibility; or
(iii) The USDOT number of the intermodal equipment provider must
appear on the interchange agreement so that it is clearly identifiable
to an inspection official. The interchange agreement must include
additional information to identify the specific item of intermodal
equipment (such as the VIN and 4-character SCAC code and 6-digit unique
identifying number); or
(iv) The identification marking must be shown on a document placed
in a weathertight compartment affixed to the frame of the item of
intermodal equipment. The color of the letters used in the document
must contrast sharply in color with the background of the document. The
document must include additional information to identify the specific
item of intermodal equipment (such as the VIN and 4-character SCAC code
and 6-digit unique identifying number).
0
19. Amend part 390 by adding a new subpart C (Sec. Sec. 390.40-390.46)
to read as follows:
Subpart C--Requirements and Information for Intermodal Equipment
Providers and for Motor Carriers Operating Intermodal Equipment
Sec.
390.40 What responsibilities do intermodal equipment providers have
under the Federal Motor Carrier Safety Regulations (49 CFR parts
350-399)?
390.42 What are the responsibilities of drivers and motor carriers
operating intermodal equipment?
390.44 What are the procedures to correct the safety record of a
motor carrier or an intermodal equipment provider?
390.46 Are State and local laws and regulations on the inspection,
repair, and maintenance of intermodal equipment preempted by the
Federal Motor Carrier Safety Regulations?
Subpart C--Requirements and Information for Intermodal Equipment
Providers and for Motor Carriers Operating Intermodal Equipment
Sec. 390.40 What responsibilities do intermodal equipment providers
have under the Federal Motor Carrier Safety Regulations (49 CFR parts
350-399)?
An intermodal equipment provider must--
(a) Identify its operations to the FMCSA by filing the Form MCS-
150C required by Sec. 390.19.
(b) Mark its intermodal equipment with the USDOT number as required
by Sec. 390.21 before tendering the equipment to a motor carrier.
(c) Systematically inspect, repair, and maintain, or cause to be
systematically inspected, repaired, and maintained, in a manner
consistent with Sec. 396.3(a)(1), as applicable, all intermodal
equipment intended for interchange with a motor carrier.
(d) Ensure that intermodal equipment intended for interchange with
motor carriers is in safe and proper operating condition.
(e) Maintain a system of driver vehicle inspection reports
submitted to the intermodal equipment provider as required by Sec.
396.11 of this chapter.
(f) Maintain a system of inspection, repair, and maintenance
records as required by Sec. 396.12 of this chapter for equipment
intended for interchange with a motor carrier.
(g) Periodically inspect equipment intended for interchange, as
required under Sec. 396.17 of this chapter.
(h) At facilities at which the intermodal equipment provider makes
intermodal equipment available for interchange, have procedures in
place, and provide sufficient space, for drivers to perform a pre-trip
inspection of tendered intermodal equipment.
(i) At facilities at which the intermodal equipment provider makes
intermodal equipment available for interchange, develop and implement
procedures to repair any equipment damage, defects, or deficiencies
identified as part of a pre-trip inspection, or replace the equipment,
prior to the driver's departure. The repairs or replacement must be
made after being notified by a driver of such damage, defects, or
deficiencies.
(j) Refrain from placing intermodal equipment in service on the
public highways if that equipment has been found to pose an imminent
hazard, as defined in Sec. 386.72(b)(1) of this chapter.
Sec. 390.42 What are the responsibilities of drivers and motor
carriers operating intermodal equipment?
(a) Before operating intermodal equipment over the road, the driver
accepting the equipment must inspect the equipment components listed in
Sec. 392.7(b) of this subchapter and be satisfied they are in good
working order.
(b) A driver or motor carrier transporting intermodal equipment
must report to the intermodal equipment provider, or its designated
agent, any known damage, defects, or deficiencies in the intermodal
equipment at the time the equipment is returned to the provider or the
provider's designated agent. If no damage, defects, or deficiencies are
discovered by the driver, the report shall so indicate. The report must
include, at a minimum, the items in Sec. 396.11(a)(2) of this chapter.
Sec. 390.44 What are the procedures to correct the safety record of
a motor carrier or an intermodal equipment provider?
(a) An intermodal equipment provider or its agent may
electronically file questions or concerns at http://dataqs.fmcsa.dot.gov about Federal and State data that reference the
provider. This includes safety violations alleging that the components,
parts, or accessories of intermodal chassis or trailers listed in Sec.
392.7(b) of this chapter were not in good working order when inspected
at roadside. An
[[Page 76823]]
intermodal equipment provider should not be held responsible for such
violations because a motor carrier indicated pursuant to Sec. 392.7(b)
that these components, parts, or accessories had no safety defects at
the time of the pre-trip inspection.
(b) A motor carrier or its agent may electronically file questions
or concerns at http://dataqs.fmcsa.dot.gov about Federal and State data
that reference the motor carrier. This includes safety violations
alleging that any components, parts, or accessories of intermodal
chassis or trailers, except those listed in Sec. 392.7(b) of this
chapter, were not in good working order when inspected at roadside.
Such violations will not be used by FMCSA in making a safety fitness
determination of a motor carrier (unless there is evidence that the
driver or motor carrier caused or substantially contributed to the
violations) because the driver could not readily detect these
violations during a pre-trip inspection performed in accordance with
Sec. 392.7(b).
(c) An intermodal equipment provider, or its agent, may request
FMCSA to investigate a motor carrier believed to be in noncompliance
with responsibilities under 49 U.S.C. 31151 or the implementing
regulations in this subchapter regarding interchange of intermodal
equipment by contacting the appropriate FMCSA Field Office.
(d) A motor carrier or its agent may request FMCSA to investigate
an intermodal equipment provider believed to be in noncompliance with
responsibilities under 49 U.S.C. 31151 or the implementing regulations
in this subchapter regarding interchange of intermodal equipment by
contacting the appropriate FMCSA Field Office.
Sec. 390.46 Are State and local laws and regulations on the
inspection, repair, and maintenance of intermodal equipment preempted
by the Federal Motor Carrier Safety Regulations?
(a) General. As provided by 49 U.S.C. 31151(d), a law, regulation,
order, or other requirement of a State, a political subdivision of a
State, or a tribal organization relating to the inspection, repair, and
maintenance of intermodal equipment is preempted if such law,
regulation, order, or other requirement exceeds or is inconsistent with
a requirement imposed by the Federal Motor Carrier Safety Regulations.
(b) Pre-existing State requirements--(1) In general. Pursuant to 49
U.S.C. 31151(e)(1), unless otherwise provided in paragraph (b)(2) of
this section, a State requirement for the periodic inspection of
intermodal chassis by intermodal equipment providers that was in effect
on January 1, 2005, shall remain in effect only until June 17, 2009.
(2) Nonpreemption determinations--(i) In general. Pursuant to 49
U.S.C. 31151(e)(2), and notwithstanding paragraph (a) of this section,
a State requirement described in paragraph (b)(1) of this section is
not preempted if the Administrator determines that the State
requirement is as effective as the FMCSA final rule and does not unduly
burden interstate commerce.
(ii) Application required. Paragraph (b)(2)(i) of this section
applies to a State requirement only if the State applies to the
Administrator for a determination with respect to the requirement
before the effective date of the final rule (June 17, 2009). The
Administrator will make a determination with respect to any such
application within 6 months after the date on which the Administrator
receives the application.
(iii) Amended State requirements. If a State amends a regulation
for which it previously received a nonpreemption determination from the
Administrator under paragraph (b)(2)(i) of this section, it must apply
for a determination of nonpreemption for the amended regulation. Any
amendment to a State requirement not preempted under this subsection
because of a determination by the Administrator may not take effect
unless it is submitted to the Agency before the effective date of the
amendment, and the Administrator determines that the amendment would
not cause the State requirement to be less effective than the FMCSA
final rule on ``Requirements for Intermodal Equipment Providers and
Motor Carriers and Drivers Operating Intermodal Equipment'' and would
not unduly burden interstate commerce.
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
0
20. Revise the authority citation for part 392 to read:
Authority: 49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR
1.73.
0
21. Amend Sec. 392.7 by designating the existing text as paragraph (a)
and adding a new paragraph (b) to read:
Sec. 392.7 Equipment, inspection, and use.
* * * * *
(b) Drivers preparing to transport intermodal equipment must make
an inspection of the following components, and must be satisfied they
are in good working order before the equipment is operated over the
road. Drivers who operate the equipment over the road shall be deemed
to have confirmed the following components were in good working order
when the driver accepted the equipment:
Service brake components that are readily visible to a driver
performing as thorough a visual inspection as possible without
physically going under the vehicle, and trailer brake connections.
Lighting devices and reflectors.
Tires.
Coupling devices.
Rails or support frames.
Tie down bolsters.
Locking pins, clevises, clamps, or hooks.
Sliders or sliding frame lock.
PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION
0
22. Revise the authority citation for part 393 to read as follows:
Authority: 49 U.S.C. 322, 31136, 31151 and 31502; sec. 1041(b),
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); and 49 CFR 1.73.
0
23. Amend Sec. 393.1 by revising paragraph (b) and adding paragraphs
(c) and (d) to read as follows:
Sec. 393.1 Scope of the rules of this part.
* * * * *
(b)(1) Every motor carrier and its employees must be knowledgeable
of and comply with the requirements and specifications of this part.
(2) Every intermodal equipment provider and its employees or agents
responsible for the inspection, repair, and maintenance of intermodal
equipment interchanged to motor carriers must be knowledgeable of and
comply with the applicable requirements and specifications of this
part.
(c) 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.
(d) No intermodal equipment provider may operate intermodal
equipment, or cause or permit such equipment to be operated, unless it
is equipped in accordance with the requirements and specifications of
this part.
PART 396--INSPECTION, REPAIR, AND MAINTENANCE
0
24. Revise the authority citation for part 396 to read as follows:
Authority: 49 U.S.C. 31133, 31136, 31151, and 31502; and 49 CFR
1.73.
0
25. Revise Sec. 396.1 to read as follows:
[[Page 76824]]
Sec. 396.1 Scope.
(a) Every motor carrier, its officers, drivers, agents,
representatives, and employees directly concerned with the inspection
or maintenance of commercial motor vehicles must be knowledgeable of
and comply with the rules of this part.
(b) Every intermodal equipment provider, its officers, agents,
representatives, and employees directly concerned with the inspection
or maintenance of intermodal equipment interchanged or offered for
interchange to motor carriers must be knowledgeable of and comply with
the rules of this part.
0
26. Amend Sec. 396.3 by revising the introductory text of paragraphs
(a) and (b) to read as follows:
Sec. 396.3 Inspection, repair, and maintenance.
(a) General. Every motor carrier and intermodal equipment provider
must systematically inspect, repair, and maintain, or cause to be
systematically inspected, repaired, and maintained, all motor vehicles
and intermodal equipment subject to its control.
* * * * *
(b) Required records. Motor carriers, except for a private motor
carrier of passengers (nonbusiness), must maintain, or cause to be
maintained, records for each motor vehicle they control for 30
consecutive days. Intermodal equipment providers must maintain or cause
to be maintained, records for each unit of intermodal equipment they
tender or intend to tender to a motor carrier. These records must
include:
* * * * *
0
27. Revise Sec. 396.9 to read as follows:
Sec. 396.9 Inspection of motor vehicles and intermodal equipment in
operation.
(a) Personnel authorized to perform inspections--Every special
agent of the FMCSA (as defined in Appendix B to this subchapter) is
authorized to enter upon and perform inspections of a motor carrier's
vehicles in operation and intermodal equipment in operation.
(b) Prescribed inspection report--The Driver Vehicle Examination
Report shall be used to record results of motor vehicle inspections and
results of intermodal equipment inspections conducted by authorized
FMCSA personnel.
(c) Motor vehicles and intermodal equipment declared ``out-of-
service.''
(1) Authorized personnel shall declare and mark ``out-of-service''
any motor vehicle or intermodal equipment which by reason of its
mechanical condition or loading would likely cause an accident or a
breakdown. An ``Out-of-Service Vehicle'' sticker shall be used to mark
vehicles and intermodal equipment ``out-of-service.''
(2) No motor carrier or intermodal equipment provider shall require
or permit any person to operate nor shall any person operate any motor
vehicle or intermodal equipment declared and marked ``out-of-service''
until all repairs required by the ``out-of-service notice'' have been
satisfactorily completed. The term operate as used in this section
shall include towing the vehicle or intermodal equipment, except that
vehicles or intermodal equipment marked ``out-of-service'' may be towed
away by means of a vehicle using a crane or hoist. A vehicle
combination consisting of an emergency towing vehicle and an ``out-of-
service'' vehicle shall not be operated unless such combination meets
the performance requirements of this subchapter except for those
conditions noted on the Driver Vehicle Examination Report.
(3) No person shall remove the ``Out-of-Service Vehicle'' sticker
from any motor vehicle or intermodal equipment prior to completion of
all repairs required by the ``out-of-service notice.''
(d) Motor carrier or intermodal equipment provider disposition.
(1) The driver of any motor vehicle, including a motor vehicle
transporting intermodal equipment, who receives an inspection report
shall deliver a copy to both the motor carrier operating the vehicle
and the intermodal equipment provider upon his/her arrival at the next
terminal or facility. If the driver is not scheduled to arrive at a
terminal or facility of the motor carrier operating the vehicle or at a
facility of the intermodal equipment provider within 24 hours, the
driver shall immediately mail, fax, or otherwise transmit the report to
the motor carrier and intermodal equipment provider.
(2) Motor carriers and intermodal equipment providers shall examine
the report. Violations or defects noted thereon shall be corrected.
Repairs of items of intermodal equipment placed out-of-service are also
to be documented in the maintenance records for such equipment.
(3) Within 15 days following the date of the inspection, the motor
carrier or intermodal equipment provider shall--
(i) Certify that all violations noted have been corrected by
completing the ``Signature of Carrier/Intermodal Equipment Provider
Official, Title, and Date Signed'' portions of the form; and
(ii) Return the completed roadside inspection form to the issuing
agency at the address indicated on the form and retain a copy at the
motor carrier's principal place of business, at the intermodal
equipment provider's principal place of business, or where the vehicle
is housed for 12 months from the date of the inspection.
0
28. Amend Sec. 396.11 by revising paragraph (a) to read:
Sec. 396.11 Driver vehicle inspection report(s).
(a) Report required. (1) Motor carriers. Every motor carrier must
require its drivers to report, and every driver must prepare a report
in writing at the completion of each day's work on each vehicle
operated. The report must cover at least the following parts and
accessories:
--Service brakes including trailer brake connections
--Parking brake
--Steering mechanism
--Lighting devices and reflectors
--Tires
--Horn
--Windshield wipers
--Rear vision mirrors
--Coupling devices
--Wheels and rims
--Emergency equipment
(2) Intermodal equipment providers. Every intermodal equipment
provider must have a process to receive driver reports of defects or
deficiencies in the intermodal equipment operated. The driver must
report on, and the process to receive reports must cover, at least the
following parts and accessories:
--King pin upper coupling device
--Rails or support frames
--Tie down bolsters
--Locking pins, clevises, clamps, or hooks
--Sliders or sliding frame lock
--Wheels, rims, lugs, tires
--Lighting devices, lamps, markers, and conspicuity marking material
--Air line connections, hoses, and couplers
--Brakes
* * * * *
0
29. Add Sec. 396.12 to read as follows:
Sec. 396.12 Procedures for intermodal equipment providers to accept
reports required by Sec. 390.42(b) of this chapter.
(a) System for reports. Each intermodal equipment provider must
establish a system for motor carriers and drivers to report to it any
damage, defects, or deficiencies of intermodal equipment discovered by,
or reported to, the motor carrier or driver which would--
(1) Affect the safety of operation of the intermodal equipment, or
(2) Result in its mechanical breakdown while transported on public
roads.
[[Page 76825]]
(b) Report content. The system required by paragraph (a) of this
section must include documentation of all of the following:
(1) Name of the motor carrier responsible for the operation of the
intermodal equipment at the time the damage, defects, or deficiencies
were discovered by, or reported to, the driver.
(2) Motor carrier's USDOT number; intermodal equipment provider's
USDOT number, and a unique identifying number for the item of
intermodal equipment.
(3) Date and time the report was submitted.
(4) All damage, defects, or deficiencies of the intermodal
equipment reported to the equipment provider by the motor carrier or
its driver. If no defect or deficiency in the intermodal equipment is
discovered by the driver, the report shall so indicate.
(5) The signature of the driver who prepared the report.
(c) Corrective action. (1) Prior to allowing or permitting a motor
carrier to transport a piece of intermodal equipment for which a motor
carrier or driver has submitted a report about damage, defects or
deficiencies, each intermodal equipment provider or its agent must
repair the reported damage, defects, or deficiencies that are likely to
affect the safety of operation of the vehicle.
(2) Each intermodal equipment provider or its agent must certify on
the original driver's report which lists any damage, defects, or
deficiencies of the intermodal equipment that the reported damage,
defects, or deficiencies have been repaired, or that repair is
unnecessary, before the vehicle is operated again.
(d) Retention period for reports. Each intermodal equipment
provider must maintain all documentation required by this section,
including the original driver report, the certification of repairs on
all intermodal equipment, and the certification of the driver's pre-
inspection review, for a period of three months from the date that a
motor carrier or its driver submits the report to the intermodal
equipment provider or its agent.
0
30. Revise Sec. Sec. 396.17, 396.19, 396.21, 396.23, and 396.25 to
read:
Sec. 396.17 Periodic inspection.
(a) Every commercial motor vehicle must be inspected as required by
this section. The inspection must include, at a minimum, the parts and
accessories set forth in appendix G of this subchapter. The term
commercial motor vehicle includes each vehicle in a combination
vehicle. For example, for a tractor semitrailer, full trailer
combination, the tractor, semitrailer, and the full trailer (including
the converter dolly if so equipped) must each be inspected.
(b) Except as provided in Sec. 396.23 and this paragraph, motor
carriers must inspect or cause to be inspected all motor vehicles
subject to their control. Intermodal equipment providers must inspect
or cause to be inspected intermodal equipment that is interchanged or
intended for interchange to motor carriers in intermodal
transportation.
(c) A motor carrier must not use a commercial motor vehicle, and an
intermodal equipment provider must not tender equipment to a motor
carrier for interchange, unless each component identified in appendix G
of this subchapter has passed an inspection in accordance with the
terms of this section at least once during the preceding 12 months and
documentation of such inspection is on the vehicle. The documentation
may be:
(1) The inspection report prepared in accordance with Sec.
396.21(a), or
(2) Other forms of documentation, based on the inspection report
(e.g., sticker or decal), which contains the following information:
(i) The date of inspection;
(ii) Name and address of the motor carrier, intermodal equipment
provider, or other entity where the inspection report is maintained;
(iii) Information uniquely identifying the vehicle inspected if not
clearly marked on the motor vehicle; and
(iv) A certification that the vehicle has passed an inspection in
accordance with Sec. 396.17.
(d) A motor carrier may perform the required annual inspection for
vehicles under the carrier's control which are not subject to an
inspection under Sec. 396.23(b)(1). An intermodal equipment provider
may perform the required annual inspection for intermodal equipment
interchanged or intended for interchange to motor carriers that are not
subject to an inspection under Sec. 396.23(b)(1).
(e) In lieu of the self-inspection provided for in paragraph (d) of
this section, a motor carrier or intermodal equipment provider
responsible for the inspection may choose to have a commercial garage,
fleet leasing company, truck stop, or other similar commercial business
perform the inspection as its agent, provided that business operates
and maintains facilities appropriate for commercial vehicle inspections
and it employs qualified inspectors, as required by Sec. 396.19.
(f) Vehicles passing roadside or periodic inspections performed
under the auspices of any State government or equivalent jurisdiction
or the FMCSA, meeting the minimum standards contained in appendix G of
this subchapter, will be considered to have met the requirements of an
annual inspection for a period of 12 months commencing from the last
day of the month in which the inspection was performed. If a vehicle is
subject to a mandatory State inspection program, as provided in Sec.
396.23(b)(1), a roadside inspection may only be considered equivalent
if it complies with the requirements of that program.
(g) It is the responsibility of the motor carrier or intermodal
equipment provider to ensure that all parts and accessories on
commercial motor vehicles intended for use in interstate commerce for
which they are responsible are maintained at, or promptly repaired to,
the minimum standards set forth in appendix G to this subchapter.
(h) Failure to perform properly the annual inspection required by
this section shall cause the motor carrier or intermodal equipment
provider to be subject to the penalty provisions of 49 U.S.C. 521(b).
Sec. 396.19 Inspector qualifications.
(a) Motor carriers and intermodal equipment providers must ensure
that individuals performing annual inspections under Sec. 396.17(d) or
(e) are qualified as follows:
(1) Understand the inspection criteria set forth in part 393 and
appendix G of this subchapter and can identify defective components;
(2) Are knowledgeable of and have mastered the methods, procedures,
tools and equipment used when performing an inspection; and
(3) Are capable of performing an inspection by reason of
experience, training, or both as follows:
(i) Successfully completed a Federal-or State-sponsored training
program or have a certificate from a State or Canadian Province that
qualifies the individuals to perform commercial motor vehicle safety
inspections, or
(ii) Have a combination of training or experience totaling at least
1 year. Such training or experience may consist of:
(A) Participation in a commercial motor vehicle manufacturer-
sponsored training program or similar commercial training program
designed to train students in commercial motor vehicle operation and
maintenance;
(B) Experience as a mechanic or inspector in a motor carrier or
[[Page 76826]]
intermodal equipment maintenance program;
(C) Experience as a mechanic or inspector in commercial motor
vehicle maintenance at a commercial garage, fleet leasing company, or
similar facility; or
(D) Experience as a commercial motor vehicle inspector for a State,
Provincial or Federal government.
(b) Motor carriers and intermodal equipment providers must retain
evidence of that individual's qualifications under this section. They
must retain this evidence for the period during which that individual
is performing annual motor vehicle inspections for the motor carrier or
intermodal equipment provider, and for one year thereafter. However,
motor carriers and intermodal equipment providers do not have to
maintain documentation of inspector qualifications for those
inspections performed either as part of a State periodic inspection
program or at the roadside as part of a random roadside inspection
program.
Sec. 396.21 Periodic inspection recordkeeping requirements.
(a) The qualified inspector performing the inspection shall prepare
a report that:
(1) Identifies the individual performing the inspection;
(2) Identifies the motor carrier operating the vehicle or
intermodal equipment provider intending to interchange the vehicle to a
motor carrier;
(3) Identifies the date of the inspection;
(4) Identifies the vehicle inspected;
(5) Identifies the vehicle components inspected and describes the
results of the inspection, including the identification of those
components not meeting the minimum standards set forth in appendix G to
this subchapter; and
(6) Certifies the accuracy and completeness of the inspection as
complying with all the requirements of this section.
(b)(1) The original or a copy of the inspection report shall be
retained by the motor carrier, intermodal equipment provider, or other
entity that is responsible for the inspection for a period of fourteen
months from the date of the inspection report. The original or a copy
of the inspection report must be retained where the vehicle is either
housed or maintained.
(2) The original or a copy of the inspection report must be
available for inspection upon demand of an authorized Federal, State or
local official.
(3) Exception. If the motor carrier operating the commercial motor
vehicles did not perform the commercial motor vehicle's last annual
inspection, or if an intermodal equipment provider did not itself
perform the annual inspection on equipment intended for interchange to
a motor carrier, the motor carrier or intermodal equipment provider is
responsible for obtaining the original or a copy of the last annual
inspection report upon demand of an authorized Federal, State, or local
official.
Sec. 396.23 Equivalent to periodic inspection.
(a) A motor carrier or an intermodal equipment provider may meet
the requirements of Sec. 396.17 through a State or other
jurisdiction's roadside inspection program. The inspection must have
been performed during the preceding 12 months. In using the roadside
inspection, the motor carrier or intermodal equipment provider would
need to retain a copy of an annual inspection report showing that the
inspection was performed in accordance with the minimum periodic
inspection standards set forth in appendix G to this subchapter. If the
motor carrier operating the commercial vehicle is not the party
directly responsible for its maintenance, the motor carrier must
deliver the roadside inspection report to the responsible party in a
timely manner. Before accepting such an inspection report, the motor
carrier or intermodal equipment provider must ensure that the report
complies with the requirements of Sec. 396.21(a).
(b)(1) If a commercial motor vehicle is subject to a mandatory
State inspection program which is determined by the Administrator to be
as effective as Sec. 396.17, the motor carrier or intermodal equipment
provider must meet the requirement of Sec. 396.17 through that State's
inspection program. Commercial motor vehicle inspections may be
conducted by State personnel, at State authorized commercial
facilities, or by the motor carrier or intermodal equipment provider
itself under the auspices of a State authorized self-inspection
program.
(2) Should the FMCSA determine that a State inspection program, in
whole or in part, is not as effective as Sec. 396.17, the motor
carrier or intermodal equipment provider must ensure that the periodic
inspection required by Sec. 396.17 is performed on all commercial
motor vehicles under its control in a manner specified in Sec. 396.17.
Sec. 396.25 Qualifications of brake inspectors.
(a) Motor carriers and intermodal equipment providers must ensure
that all inspections, maintenance, repairs or service to the brakes of
its commercial motor vehicles, are performed in compliance with the
requirements of this section.
(b) For purposes of this section, brake inspector means any
employee of a motor carrier or intermodal equipment provider who is
responsible for ensuring that all brake inspections, maintenance,
service, or repairs to any commercial motor vehicle, subject to the
motor carrier's or intermodal equipment provider's control, meet the
applicable Federal standards.
(c) No motor carrier or intermodal equipment provider may require
or permit any employee who does not meet the minimum brake inspector
qualifications of paragraph (d) of this section to be responsible for
the inspection, maintenance, service or repairs of any brakes on its
commercial motor vehicles.
(d) The motor carrier or intermodal equipment provider must ensure
that each brake inspector is qualified as follows:
(1) Understands the brake service or inspection task to be
accomplished and can perform that task; and
(2) Is knowledgeable of and has mastered the methods, procedures,
tools and equipment used when performing an assigned brake service or
inspection task; and
(3) Is capable of performing the assigned brake service or
inspection by reason of experience, training, or both as follows:
(i) Has successfully completed an apprenticeship program sponsored
by a State, a Canadian Province, a Federal agency or a labor union, or
a training program approved by a State, Provincial or Federal agency,
or has a certificate from a State or Canadian Province that qualifies
the person to perform the assigned brake service or inspection task
(including passage of Commercial Driver's License air brake tests in
the case of a brake inspection); or
(ii) Has brake-related training or experience or a combination
thereof totaling at least one year. Such training or experience may
consist of:
(A) Participation in a training program sponsored by a brake or
vehicle manufacturer or similar commercial training program designed to
train students in brake maintenance or inspection similar to the
assigned brake service or inspection tasks; or
(B) Experience performing brake maintenance or inspection similar
to the
[[Page 76827]]
assigned brake service or inspection task in a motor carrier or
intermodal equipment provider maintenance program; or
(C) Experience performing brake maintenance or inspection similar
to the assigned brake service or inspection task at a commercial
garage, fleet leasing company, or similar facility.
(e) No motor carrier or intermodal equipment provider may employ
any person as a brake inspector unless the evidence of the inspector's
qualifications, required under this section, is maintained by the motor
carrier or intermodal equipment provider at its principal place of
business, or at the location at which the brake inspector is employed.
The evidence must be maintained for the period during which the brake
inspector is employed in that capacity and for one year thereafter.
However, motor carriers and intermodal equipment providers do not have
to maintain evidence of qualifications to inspect air brake systems for
such inspections performed by persons who have passed the air brake
knowledge and skills test for a Commercial Driver's License.
0
31. Amend Appendix G to Subchapter B--Minimum Periodic Inspection
Standards, in Paragraph 6. Safe Loading, by adding new subparagraph 6.c
to read:
Appendix G to Subchapter B of Chapter III--Minimum Periodic Inspection
Standards
* * * * *
6. Safe loading.
* * * * *
c. Container securement devices on intermodal equipment--All
devices used to secure an intermodal container to a chassis,
including rails or support frames, tiedown bolsters, locking pins,
clevises, clamps, and hooks that are cracked, broken, loose, or
missing.
* * * * *
Issued on: December 4, 2008.
John H. Hill,
Administrator.
[FR Doc. E8-29254 Filed 12-16-08; 8:45 am]
BILLING CODE 4910-EX-P
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