Limited Waiver in Response to the COVID-19 Public Health Emergency to Permit the Operation of Intermodal Equipment with Expired Annual Inspection Decals

Limited Waiver in Response to the COVID-19 Public Health Emergency to Permit the Operation of Intermodal Equipment with Expired Annual Inspection Decals  

July 16, 2020

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants a waiver, as requested by Advent eModal, on behalf of all intermodal equipment providers (IEPs) and motor carriers operating intermodal equipment from the requirements of 49 CFR § 396.17(c) to allow the operation of intermodal equipment with annual inspection decals (or similar documentation) that show an expiration date of March 31, 2020, or later[1].  IEPs may include ocean carriers, railroads, and chassis leasing companies.  FMCSA granted a similar waiver on June 1, 2020, limited to IEPs and motor carriers operating intermodal equipment included in the Intermodal Association of North America’s (IANA) Global Intermodal Equipment Registry (GIER).  This waiver extends the same relief to all other IEPs and motor carriers operating intermodal equipment, and will help ensure the continued availability of all intermodal equipment to transport critical products and supplies during the Coronavirus Disease 2019 (COVID-19) public health emergency and recovery.

DATES: This waiver is effective July 16, 2020, and, unless otherwise extended, expires either on September 1, 2020, or upon the revocation of the President’s declaration of national emergency under 42 U.S.C. § 5191(b) concerning the COVID-19 public health emergency, whichever is sooner.

FOR FURTHER INFORMATION CONTACT:  Mr. Luke Loy, Senior Engineer, Vehicle and Roadside Operations Division (MC-PSV), Office Bus and Truck Standards, 202-366-0676, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

Legal Basis

Under 49 U.S.C. § 31315(a), the Federal Motor Carrier Safety Administration (FMCSA) is authorized to grant waivers from certain Federal Motor Carrier Safety Regulations to a person(s) seeking regulatory relief. FMCSA must make a determination that the waiver is in the public interest and that it is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver. Individual waivers may be granted for unique events for a period up to three months. FMCSA may grant waivers without public notice and request for comment.

Background

In general, a motor carrier may not use a commercial motor vehicle (including intermodal equipment), unless each component identified in Appendix G of the Federal Motor Carrier Safety Regulations has passed an inspection in accordance with the requirements of 49 CFR § 396.17 at least once during the preceding 12 months, and documentation of the inspection is on the vehicle (§ 396.17(c)).

The President has declared a national emergency under 42 U.S.C. § 5191(b) related to COVID-19. This waiver is in response to COVID-19 and the effects on people and the immediate risk presented to public health, safety, and welfare.     

Advent eModal, a technology platform company that provides applications for the intermodal equipment interchange business and intermodal equipment operators, has requested that FMCSA grant a waiver from the restriction imposed by 49 CFR § 396.17(c).  The reason for the requested relief is that with the spread of COVID-19, the movement of intermodal equipment has been disrupted resulting in large numbers of intermodal chassis (and possibly other intermodal equipment), both loaded and unloaded, being parked at locations other than the intermodal equipment maintenance facilities where the mandatory annual inspection would be conducted by qualified individuals.  During the period that the intermodal equipment has been parked, many of the units’ annual inspection decals have expired, or soon will expire, with no practical means of having a qualified individual conduct the mandatory annual inspection that would be necessary to return the intermodal equipment to revenue service.

Advent eModal notes that because the June 1, 2020, waiver granted by FMCSA is limited to IEPs and motor carriers operating intermodal equipment included in IANA’s GIER, a significant portion of the intermodal industry is not covered by the waiver despite being subject to the same problems resulting from the COVID-19 public health emergency.  Advent eModal notes that some intermodal motor carriers may not have their chassis registered in GIER, its own Chassis.com, or any other electronic marking option, as 49 CFR § 390.21(g)(4) permits other marking options for intermodal equipment. Advent eModal argues that about 40 percent of IEPs register their equipment with its registry, and that GIER therefore includes no more than 54 percent of all intermodal equipment. Whatever the exact figures, it is apparent that IANA’s estimate that some 90 percent of the chassis in North America are registered in GIER was exaggerated and that a substantial number of IEPs and intermodal equipment were not covered by the June 1 waiver. However, those intermodal motor carriers may experience the same inspection difficulties related to the COVID-19 public health emergency due to the nature of intermodal operations, equipment depot management, and equipment maintenance and repair logistics.

The requested relief would allow motor carriers to operate the intermodal equipment, with an expired inspection decal for a limited time until the intermodal equipment could be returned to an intermodal equipment facility where the annual inspection could be performed by a qualified individual. Some of this intermodal equipment may be inspected, but there will be difficulties inspecting a large percentage of the equipment that is not readily accessible to the intermodal equipment maintenance personnel. 

FMCSA’s Determination and Regulatory Provisions Waived

Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, limited in scope and circumstances, which is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

To respond to this unique event, prevent a possible shortage of intermodal equipment from becoming a transportation emergency, and continue the ability of motor carriers to transport goods and supplies during and following the COVID-19 public health emergency, this waiver:

Waives the restriction imposed by 49 CFR § 396.17(c) that a motor carrier must not use a commercial motor vehicle, and an intermodal equipment provider must not tender intermodal equipment to a motor carrier for interchange, unless each component identified in Appendix G of the Federal Motor Carrier Safety Regulations has passed an annual inspection.  The waiver would apply to intermodal equipment in situations where intermodal equipment is with motor carriers or at facilities, and intermodal equipment maintenance personnel or maintenance vendors do not have access to conduct annual inspections of the intermodal equipment prior to the expiration of the annual inspection decal. The waiver therefore grants motor carriers the ability to operate the intermodal equipment until it can be returned to a facility where the annual inspection can be performed by a qualified individual, not to exceed three months from the date of the waiver. 

Public Interest

FMCSA finds that the issuance of this waiver is in the public interest, given the urgent need to deliver necessary property and supplies during the COVID-19 public health emergency. This waiver will facilitate the continued movement of freight on intermodal equipment until the required annual inspection can be performed by IEPs. 

Safety Equivalency

Due to the limited scope of this waiver and the extensive safety requirements provided under 49 CFR part 393, concerning safety and features for commercial vehicles, including intermodal equipment, and 49 CFR part 396, concerning inspection, repair and maintenance rules, FMCSA has determined that this brief waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver. The waiver of a particular regulation should not be looked at in isolation, but rather as part of the whole of all regulations governing the condition of intermodal equipment.

It is important to note that this waiver, like the June 1 waiver, does not alter any of the safety requirements under 49 CFR§ 392.7, concerning daily equipment inspection and use, or 49 CFR part 393 concerning parts and accessories necessary for the safe operation of commercial motor vehicles, such as lamps and reflectors, brake systems, tires, wheels, axles, suspension systems, and frames. Section 396.3(a) requires IEPs to inspect, repair, and maintain all intermodal equipment subject to their control in order to ensure that all parts and accessories are in safe and proper operation condition at all times. Section 396.7 prohibits the operation of a vehicle in such a condition as to likely cause an accident or breakdown. Finally, § 396.13 requires that drivers transporting intermodal equipment be satisfied, before driving, that the vehicle is in safe operation condition.

FMCSA believes its current extensive regulatory framework ensures that under this waiver, as under the June 1 waiver, an equivalent level of safety will be achieved.

Unique Circumstances

The COVID-19 public health emergency has led to disruptions at shippers’ and receivers’ facilities, resulting in possible delays in motor carriers being allowed to deliver freight.  For certain intermodal shipments, the disruptions have resulted in some of the freight being held at motor carriers’ facilities or terminals until the receiver is prepared to handle the freight.  FMCSA finds that the circumstances surrounding this waiver are unique because IEPs are not able to conduct the annual inspection while the intermodal equipment is are with motor carriers or other parties.

For the reasons discussed above, FMCSA grants a waiver as provided above, subject to the terms, conditions, and restrictions below.

Terms, Conditions, and Restrictions of the Waiver

This waiver applies to the operation of all “intermodal equipment,” as defined in 49 CFR § 390.5. The waiver is effective beginning at 12:01 a.m. (ET) on July 16, 2020, and continues through 12:01 a.m. on September 1, 2020.

1. Intermodal equipment providers (IEPs) and motor carriers subject to the waiver may operate intermodal equipment with expired inspection decals provided the decal expired on or after March 31, 2020;

2. IEPs and motor carriers subject to the waiver may operate the equipment until it can be returned to an IEP facility where the annual inspection can be performed by a qualified individual, not to exceed three months from the date of the waiver.

3. All the parties involved must continue to comply with the rules under 49 CFR § 396.12 prohibiting IEPs from offering unsafe intermodal equipment for transportation, and coercing carriers into accepting such equipment.

4. Motor carriers and their drivers continue to be responsible for reporting intermodal equipment defects to the IEPs, and IEPs continue to be responsible for addressing the defect reports.

5. Motor carriers must ensure that their drivers conduct a pre-trip/pre-dispatch inspection as required by 49 CFR § 392.7 prior to using intermodal equipment with an expired annual inspection decal to ensure there are no visible defects or deficiencies likely to cause a mechanical breakdown while on public roads.

6. FMCSA reserves the right to revoke this waiver for failure to comply with the terms and conditions of this waiver.

Issued: July 16, 2020                                  ______________________________

Jim Mullen
Deputy Administrator