[Federal Register: August 20, 2010 (Volume 75, Number 161)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 390
[Docket No. FMCSA-2005-23315]
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; partial extension of compliance date.
SUMMARY: The FMCSA extends until June 30, 2011, the June 30, 2010,
compliance date of its December 29, 2009, final rule concerning the
inspection, repair, and maintenance of intermodal equipment (IME),
specifically with respect to the requirement for drivers and motor
carriers to prepare a driver-vehicle inspection report (DVIR) on an
item of IME even if no damage, defects, or deficiencies are discovered
by, or reported to, the driver. This action is being taken to provide
the Agency with sufficient time to address, through a notice-and-
comment rulemaking proceeding, an issue raised in a petition for
rulemaking submitted on March 31, 2010, by the Ocean Carrier Equipment
Management Association (OCEMA) and the Institute of International
Container Lessors (IICL) (also referred to as "the petitioners"). The
requirements for intermodal equipment providers (IEPs) to have in place
inspection, repair and maintenance programs, and a process for
receiving and taking appropriate action in response to DVIRs on which
damage, defects, or deficiencies are reported, remain in effect.
DATES: Compliance Date: As of August 20, 2010, the compliance date for
the requirement in Sec. 390.42(b) for drivers and motor carriers to
prepare a DVIR on an item of IME if no damage, defects, or deficiencies
are discovered by, or reported to, the driver, is extended until June
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.
The legal basis of the December 17, 2008 final rule (73 FR 76794)
is also applicable to this rule.
On December 17, 2008, FMCSA published a final rule adopting
regulations to implement section 4118 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, 1729, August 10, 2005).
The regulations require 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
ensure 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 regulations, for
the first time, made IEPs subject to the Federal Motor Carrier Safety
Regulations (FMCSRs), and called for shared safety responsibility among
IEPs, motor carriers, and drivers. Additionally, FMCSA adopted
inspection requirements for motor carriers and drivers operating IME.
Improved maintenance is expected to result in fewer chassis being
placed out-of-service and fewer breakdowns involving intermodal
chassis, thus improving the Nation's intermodal transportation system.
Because inadequately maintained intermodal chassis create risks for
crashes, the regulations help ensure that commercial motor vehicle
(CMV) operations are safer.
On December 29, 2009, FMCSA amended the December 2008 final rule
to: (1) Create an additional marking option for identifying the IEP
responsible for the inspection, repair, and maintenance of items of IME
in response to a petition for reconsideration from the Intermodal
Association of North America (IANA); (2) clarify regulatory text and
correct an inadvertent error in response to a petition for
reconsideration from OCEMA; and (3) extend the deadline for IEPs, motor
carriers, and drivers operating IME to comply with certain provisions
pertaining to driver-vehicle inspections in response to a petition
filed by OCEMA (74 FR 68703).
On March 31, 2010, OCEMA and IICL submitted a joint petition to
FMCSA requesting the repeal of the provision in Sec. 390.42(b) of the
FMCSRs that requires motor carriers to prepare and transmit a DVIR to
the IEP at the time the IME is returned to the IEP even when no damage,
defects, or deficiencies are noted (hereafter referred to as a "no-
defect DVIR"). The petitioners contend that requiring the preparation
and transmittal of these no-defect DVIRs imposes an undue burden on
drivers, motor carriers, IEPs, and intermodal facilities nationwide.
The petitioners estimate that a no-defect DVIR requirement will
necessitate the completion, transmission, review, and retention of over
38 million unnecessary reports annually. In fact, the petitioners
believe that the added administrative burdens of the requirement to
file no-defect DVIRs actually could undermine the goal of safe IME. A
copy of the petition has been placed in the docket referenced at the
beginning of this notice.
The petitioners presented four arguments against the DVIR element
of the current rule:
SAFETEA-LU only requires DVIRs for known damage or
defects. Congress could have added a requirement to file no-defect
DVIRs but did not do so. As such, the regulatory imposition of no-
defect DVIRs is not required by law and
is likely inconsistent with congressional intent.
Submission of no-defect DVIRs can add to congestion and
delay at intermodal facilities. A no-defect DVIR does not add in any
meaningful way to the safety of IME and therefore does not justify such
congestion and delay.
An estimated 96 percent of the chassis in-gated at
intermodal facilities have no known damage or defect. If no-defect
DVIRs are required, there is a significant risk that the 4 percent of
DVIRs with damage or defects could be lost in the volume of no-defect
DVIRs or result in delays in correcting reported defects at often
overburdened marine, rail, and other terminals.
Data transmission, processing, and storage requirements
for no-defect DVIRs add significant, unnecessary costs to intermodal
operations with no apparent offsetting benefits.
The petitioners request that Sec. 390.42(b) of the FMCSRs be
amended as follows:
(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. The report must include, at a
minimum, the items in Sec. 396.11(a)(2) of this chapter. If no
damage, defects, or deficiencies are discovered by the driver, no
report shall be required.
FMCSA Analysis of the Petition
The Agency has reviewed the petitioners' request and finds that it
has merit. In developing the 2008 final rule, FMCSA determined that the
DVIR requirements for IME should be consistent with the long-standing
driver- and motor carrier-DVIR requirements in Sec. 396.11 for non-
IME. Section 396.11(b) calls for a DVIR to be prepared to indicate not
only any defects or deficiencies discovered by or reported to the
driver that would affect the safety or operation of the vehicle, but
also to indicate if the driver found no defects or deficiencies.
The Agency notes that Sec. 390.40(d) of the FMCSRs requires an IEP
to "Provide intermodal equipment that is in safe and proper operating
condition." More specifically, Sec. 390.40(i) requires that at
facilities at which the IEP makes IME available for interchange, the
IEP must (1) develop and implement procedures to repair any equipment
damage, defects, or deficiencies identified as part of a pre-trip
inspection, or (2) replace the equipment. As such, the existing
regulations provide a system of checks and balances to ensure that all
IME offered for interchange is in safe and proper operating condition--
regardless of whether the motor carrier prepared a DVIR for IME that
had no damage, defects, or deficiencies at the time it was returned.
The Agency also agrees with the petitioners that the existing
requirement for motor carriers to submit no-defect DVIRs goes beyond
the specific requirements of 49 U.S.C. 31151(a)(3)(L), and appears
likely to provide negligible safety benefits.
The FMCSA also notes that, in addition to the petitioners, two
other industry stakeholders, the American Trucking Associations'
Intermodal Motor Carriers Conference (ATA-IMCC) and IANA, have written
the Agency in support of the petition to eliminate the requirement for
no-defect DVIRs. This support, in conjunction with the reasons outlined
above, has persuaded the Agency to initiate rulemaking on this issue.
Copies of documents submitted by the ATA-IMCC, OCEMA, and IANA have
been placed in the docket.
After completing its review and analysis of the petition, FMCSA has
determined that the petition has merit and that a notice-and-comment
rulemaking proceeding should be initiated to provide all interested
parties the opportunity to comment on the matter. The Agency plans to
issue a notice of proposed rulemaking at a later date to propose
eliminating the portion of Sec. 390.42(b) that requires motor carriers
to prepare and transmit a DVIR to the IEP upon returning the IME, even
when the IME has no known damage, defects, or deficiencies.
Partial Extension of Compliance Date
While the Agency is conducting the rulemaking discussed above,
FMCSA extends until June 30, 2011, the June 30, 2010, compliance date
of the December 2009 final rule, specifically with respect to the
requirement in Sec. 390.42(b) for drivers and motor carriers to
prepare a DVIR on an item of IME if no damage, defects, or deficiencies
are discovered by, or reported to, the driver.
Issued on: August 13, 2010.
[FR Doc. 2010-20603 Filed 8-19-10; 8:45 am]
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