
[Federal Register: December 29, 2009 (Volume 74, Number 248)]
[Rules and Regulations]               
[Page 68703-68709]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de09-16]                         


[[Page 68703]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 386, 390, 392, and 396

[Docket No. FMCSA-2005-23315]
RIN 2126-AB25

 
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; technical amendments, response to petitions for 
reconsideration, and; partial extension of deadline.

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SUMMARY: FMCSA amends its December 17, 2008, final rule implementing 
section 4118 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The 2008 
final rule makes intermodal equipment providers (IEPs) subject to 
certain Federal Motor Carrier Safety Regulations (FMCSRs), and 
establishes shared safety responsibility among IEPs, motor carriers, 
and drivers. These amendments create a fifth marking option for 
identifying the IEP responsible for the inspection, repair, and 
maintenance of items of intermodal equipment (IME) in response to a 
petition for reconsideration from the Intermodal Association of North 
America (IANA); clarify regulatory text and correct an inadvertent 
error in response to a petition for reconsideration from the Ocean 
Carrier Equipment Management Association (OCEMA); and 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.

DATES: Effective Date: The amendments in this final rule become 
effective December 29, 2009.
    Implementation Date: IEPs must establish systematic inspection, 
repair, and maintenance programs, recordkeeping systems and identify 
its operations by submitting Form MCS-150C by December 17, 2009, except 
for the requirements of Sections 396.9(d), 396.11(a)(2), 396.12(a), 
396.12(c), and 396.12(d), which they must comply with by June 30, 2010. 
IEPs must mark their intermodal chassis with its legal name or a single 
trade name and a USDOT identification number by December 17, 2010.

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: 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.

Background

    FMCSA received petitions for reconsideration, filed timely, from 
IANA and OCEMA. IANA requested that FMCSA reconsider the final rule's 
requirements for marking of IME. OCEMA requested that FMCSA reconsider 
several other items in the final rule. OCEMA also requested a delay in 
the implementation requirements for specific documentation-related 
items in Part 396 of the final rule. A discussion of each item, 
followed by the Agency's assessment and decision, follows.

Legal Basis

    The legal basis of the December 17, 2008 final rule (73 FR 76794) 
is also applicable to this final rule.

Marking of Intermodal Equipment

    On December 21, 2006 (71 FR 76795), FMCSA published a notice of 
proposed rulemaking (NPRM) in response to Congressional direction in 
section 4118 of SAFETEA-LU. It proposed, among other things, to require 
display of the USDOT Number, or other unique identifier, issued by 
FMCSA, on each intermodal container chassis offered for transportation 
in interstate commerce.
    On May 21, 2007, IANA and other parties (American Association of 
Port Authorities (AAPA), Association of American Railroads (AAR), the 
Institute of International Container Lessors (IICL), OCEMA, the 
National Association of Waterfront Employers (NAWE), and the United 
States Maritime Alliance, Ltd. (USMX), collectively known as the 
Consensus Group) submitted supplemental comments to the docket for the 
NPRM. IANA and its co-signatories presented a different solution to the 
challenge of identifying the responsible IEP for individual items of 
IME. The Consensus Group supported use of the 10-character alphanumeric 
identifier currently in use to mark IME, and recommended the 
establishment of a Web-based equipment registry that IANA would 
administer by recording and maintaining the identifying information for 
IEPs and their equipment. This registry would take the form of an 
online database that would be accessible to Federal, State, and local 
enforcement authorities, as well as industry participants, on a real-
time basis.
    In its comments to the NPRM, dated March 21, 2007, OCEMA stated 
that ``the Intermodal Association of North America already maintains a 
substantial database of intermodal truckers and equipment providers. As 
an association already providing various facilitation services to 
intermodal stakeholders, this may be an appropriate task for IANA to 
undertake. Additionally, OCEMA is in the process of developing a 
software system for its CCM \1\ chassis pool program that could be 
modified to include a chassis identification module. The CCM system is 
expected to be implemented by the beginning of 2008.''
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    \1\ CCM LLC was formed in 2005 to develop and own chassis pools. 
It is an affiliate of the Ocean Carrier Equipment Management 
Association, Inc.
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    On January 2, 2008, IANA et al. requested that FMCSA consider 
initiating a pilot program to evaluate an alternative approach to meet 
the IME marking requirements of 49 CFR 390.21. IANA suggested that use 
of its proposed Global Intermodal Equipment Registry (GIER), a 
centralized, Web-based IME database, would enable IEPs and motor 
carrier safety enforcement personnel to identify the responsible IEP 
without a need to physically mark each item of IME, as proposed in the 
NPRM. IANA stated that the GIER would identify each intermodal chassis 
by its existing unique alphanumeric identifier (ID), which consists of 
four letters followed by six numbers. It would also include the USDOT 
number of the IEP responsible for the intermodal equipment on a given 
day and at any given time, so this information could be accurately 
recorded on roadside inspection records. The database would be 
accessible to Federal, State, and local enforcement authorities, as 
well as, industry participants, on a real time basis. The Agency denied 
IANA's initial request because there were no rules in effect that could 
preclude them from testing the GIER concept. Therefore, a pilot 
program, as provided under 49 CFR part 381, was not necessary.

[[Page 68704]]

    In addition, many commenters to the NPRM expressed concerns with 
the proposed marking requirements, citing the large population of IME 
(over 850,000 units in service) and the IME turnover in some IEP's 
operations (for example, a Virginia port experiences turnover amounting 
to several hundred chassis each month).
    FMCSA determined that it would be reasonable and appropriate to 
offer additional regulatory alternatives that would meet the statutory 
requirements to (1) identify IEPs responsible for inspection and 
maintenance, and (2) to match IME to an IEP through a unique 
identifying number. For this reason, the final rule of December 17, 
2008 (73 FR 76794) offered four options for the IEP to identify its 
IME: (1) A label or other method of marking; (2) identification of the 
IME on the interchange agreement, if that document includes additional 
information to identify the specific item of IME; (3) marking the IME 
with a USDOT number in the same manner required under Sec.  390.21, 
except the marking would only be required on the curb side of the 
equipment; or (4) identification of the IEP on trailer documentation 
carried in a weatherproof compartment attached to the item of IME. In 
order to provide IEPs sufficient time to inventory their equipment and 
implement procedures to identify their IME, the final rule allows IEPs 
two years from the publication date of the final rule (that is, until 
December 17, 2010) to comply with this requirement.
    Although FMCSA did not accept the proposal outlined by IANA and its 
co-applicants in their NPRM comments, it acknowledged the logistical 
challenges IEPs will collectively face in accounting for and marking 
their 800,000-plus chassis. The final rule stated that, 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 (73 FR at 76801). While FMCSA stated in the final rule 
that the Administrator had denied IANA's request to initiate a pilot 
program, the Agency asked IANA to communicate with it in the future 
concerning its progress in developing the GIER. In the preamble to the 
final rule, the Agency said it would consider allowing the GIER if its 
use could serve as an additional alternative method of complying with 
the provisions of 49 CFR 390.21 (73 FR at 76810).
    On January 16, 2009, IANA petitioned FMCSA to reconsider the same 
provisions of 49 CFR 390.21 that formed the basis of its earlier 
petition. Two other parties that co-signed the 2008 petition, the 
Intermodal Carriers Conference of the American Trucking Associations 
and the Commercial Vehicle Safety Alliance (CVSA), submitted letters 
supporting IANA's request. For the most part, the technical elements of 
the January 2009 petition for reconsideration are essentially the same 
as those contained in the January 2008 request to initiate a pilot 
program.

Agency's Assessment and Decision

    For the reasons set forth below, FMCSA amends Sec.  390.21 to 
include a fifth option for marking/identifying IME. The Agency has 
determined that the use of publicly-accessible identification systems 
which, under the conditions prescribed below, utilize existing, unique 
alpha-numeric control numbers associated with items of IME to match IME 
to the responsible IEP at any given time (1) meet the marking/
identification requirements outlined in the statute and (2) will be at 
least as effective as the current requirements of Sec.  390.21 of the 
FMCSRs.
    The December 2008 final rule requires IME to be marked/identified 
so it can be matched to the IEP that is responsible for its systematic 
inspection, repair, and maintenance. Because IME tends to change hands 
quite often, it will be costly for many IEPs to apply a permanent 
marking (stenciled or applied identification code) to the equipment. It 
is also unlikely that such marking would effectively identify the 
appropriate party for those scenarios in which the change of hands 
occurs faster than the vehicle marking could be completed. Also, as 
commenters noted, there is a large population of IME subject to these 
requirements. According to IANA, tracking the responsible IEPs through 
the use of its identification system will (1) save IEPs time and the 
costs of physically marking IME, and (2) provide FMCSA and its State 
partners an alternative way to ``match'' IME to the IEP. The Agency 
agrees.
    Importantly, while IANA's development of the GIER provided the 
impetus for this regulatory amendment, FMCSA emphasizes that the fifth 
marking option established by today's rulemaking is not limited 
specifically to the GIER.
    To ensure that the IEP responsible for the inspection, repair, and 
maintenance of any item of IME can be definitively identified through 
an identification system permitted under the fifth option, the Agency 
requires that the following conditions be satisfied:
    1. The identification system must utilize a unique alpha-numeric 
control number associated with each item of IME to match the IME to the 
responsible IEP at any given time. The identification system shall use 
at least one of the following:
    a. Standard Carrier Alpha Code (SCAC) plus 6 trailing digits;
    b. License plate number and State of license;
    c. Vehicle Identification Number (VIN)
    2. The identification system shall be publicly-available, and offer 
read-only access for inquiries on individual items of IME without 
requiring advance user registration, a password, or a usage fee. The 
identification system must be accessible through:
    a. Real-time internet access via a public web portal; and
    b. Toll-free telephonic access
    IEPs' interest in maintaining the accuracy of their IME inventory 
is likely to serve as an incentive for them to maintain the accuracy 
and currency of the information contained in an identification system. 
Furthermore, FMCSA will benefit from permitting the alternative 
identification system by having accurate and current information on 
IEPs responsible for IME at a given point in time, allowing the Agency 
to identify patterns of noncompliance rapidly. State partners' interest 
in this fifth option is indicated by CVSA's status as co-petitioner.

Operating Condition of Intermodal Equipment

Background

    In its 2006 NPRM, FMCSA proposed language for a new Sec.  390.40 
concerning IEPs' responsibilities under the FMCSRs. Proposed Sec.  
390.40(h) (71 FR at 76828) reads as follows:

    ``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 in a timely manner after being notified by 
a driver of such damage, defects, or deficiencies''.

    Many of the commenters to the rulemaking indicated that the phrase 
``timely manner'' was vague, impractical, and possibly unenforceable.
    As discussed in the 2008 final rule (73 FR at 76800), FMCSA 
considered several potential revisions to this regulatory text. The 
first was to replace the word ``timely'' with a fixed period of time. 
FMCSA rejected that option because it could result in an overemphasis 
on the time element of the IME interchange process compared to the 
quality and completeness of repairs.

[[Page 68705]]

A second alternative considered was to remove the word ``timely.'' 
However, the Agency believed this could be viewed as allowing a 
continuation of the status quo--some IEPs would continue their practice 
of tendering equipment in need of repairs and requiring drivers to 
decide between operating faulty equipment, with the attendant risk of 
fines or roadside breakdowns, and the certainty of delay if they 
requested repairs or a different chassis.
    In the final rule, FMCSA removed the term ``timely'' from the 
regulatory text, but also added a new provision to Sec.  390.40(d), 
Ensure that intermodal equipment intended for interchange with motor 
carriers is in safe and proper operating condition.
    This revision was intended to serve two purposes. First, it 
reemphasized the language of 49 U.S.C. 31151(a)(l): ``* * * equipment 
used to transport intermodal containers is safe and systematically 
maintained.'' Second, it acknowledged that a subjective requirement 
(``timely'') was not necessarily in the best interests of the tendering 
or receiving party (73 FR at 76800).
    On January 16, 2009, OCEMA filed a petition for reconsideration of 
the final rule. A copy of the petition is in the docket referenced at 
the beginning of this notice. OCEMA asserts that Sec.  390.40(d) of the 
new regulation adds a non-statutory duty for IEPs to ``ensure'' the 
operating condition of IME prior to interchange.
    OCEMA is concerned that the word ``ensure'' in paragraph (d) places 
a greater level of responsibility on IEPs than the SAFETEA-LU 
provisions intended. OCEMA believes the use of this term is 
inconsistent with the ``shared responsibility'' approach, delineating 
specific obligations for each stakeholder (IEP, motor carrier, driver), 
that was part of the legislation.
    Furthermore, OCEMA believes that the use of the word ``ensure,'' 
commonly construed as ``to secure or guarantee,'' would have the effect 
of requiring IEPs to perform constant, virtually daily inspections of 
IME. In contrast, OCEMA points out that the regulatory analysis for the 
final rule requires IEPs to conduct inspections and preventive 
maintenance at more regularly scheduled intervals, but sets no explicit 
requirements for the number of inspections per chassis under a 
systematic inspection, repair, and maintenance program.
    OCEMA suggests that FMCSA delete Sec.  390.40(d) and revise Sec.  
390.1 to read as follows, with its proposed text revisions underlined:

    This part establishes general applicability, definitions, 
general requirements and information as they pertain to persons 
subject to this chapter. Requirements relating to the interchange, 
operation, inspection, or maintenance and repair of intermodal 
equipment are intended to ensure that intermodal equipment used to 
transport intermodal containers is safe and systematically 
maintained.

Agency's Assessment and Decision

    FMCSA believes OCEMA's proposed amendment is appropriate. However, 
there is a simpler solution. FMCSA has decided to revise Sec.  
390.40(d) to read: ``Provide intermodal equipment intended for 
interchange that is in safe and proper operating condition.'' This 
revision responds to the petitioner's request by removing the 
problematic word ``ensure'' while continuing to stress the requirement 
to provide IME in safe and proper operating condition.

Section 390.5, Definition of ``Intermodal Equipment Provider''

    OCEMA requests that FMCSA confirm (1) that there will be only one 
IEP for a particular piece of equipment, which is the party that 
identifies itself as such to FMCSA as required under the final rule, 
and (2) that the IEP can be either the interchanging party or a party 
having contractual responsibility for the systematic inspection, 
maintenance and repair of the equipment. OCEMA believes this can be 
achieved by providing guidance through additional comments to the 
supplementary information to the final rule, rather than requiring a 
change to the text of the rule itself.

Agency's Assessment and Decision

    OCEMA's understanding is correct. The statutory definition of 
``intermodal equipment provider'' is clear: ``* * * any person that 
interchanges intermodal equipment with a motor carrier * * * or has a 
contractual responsibility for the maintenance of the intermodal 
equipment.'' [emphasis added] (49 U.S.C. 31151(f)(3)).
    FMCSA has posted new Frequently Asked Questions to the IEP area of 
its web site to clarify this point. The web address is: 
www.fmcsa.dot.gov/iep

Sanction for Failure To Pay Civil Penalties or Abide by Payment Plan

    Section 386.83(a)(1) reads as follows:
    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 [emphasis added].
    OCEMA requested FMCSA to confirm that any restrictions on an IEP's 
operations in interstate commerce would be limited to the IEP's 
tendering of intermodal equipment, and would not affect the IEP's other 
interstate transportation operations. OCEMA believes this can be 
achieved by additional guidance in the supplementary information to the 
final rule, rather than requiring a change to the text of the rule 
itself.

Agency's Assessment and Decision

    FMCSA agrees with OCEMA's reading of Sec.  386.83(a)(1). The scope 
of the prohibition against an IEP is limited to the tendering of IME. 
These technical amendments revise the text of Sec.  386.83(a)(1) to 
clarify this.

Section 392.7 Equipment, Inspection, and Use; Sec.  396.11 Driver 
Vehicle Inspection Report(s)

    FMCSA made limited revisions to Sec.  392.7 and Sec.  396.11 in the 
final rule. This was done to provide new regulatory language consistent 
with the legislative direction and also to maintain the integrity of 
the existing regulatory text. The new text at Sec.  392.7(b) applies to 
the pre-trip inspections of IME, and the new text of Sec.  396.11 to 
post-trip inspections.
    Although OCEMA acknowledges that IME components that drivers are 
required to inspect are clearly described in the final rule, it 
questions why the lists are different for the pre- and post-trip 
inspections. In order to maximize the effectiveness and impact on 
equipment safety resulting from driver pre-trip inspections, OCEMA 
recommends the Agency adopt a pre-trip inspection list which mirrors 
the post-trip inspection list.
    Agency's Assessment and Decision:
    FMCSA believes OCEMA's request is reasonable, and that it could aid 
both drivers and IMEs in performing and reporting the results of pre-
trip and post-trip inspections. The Agency revises the text of Sec.  
392.7(b) to make it more consistent with Sec.  396.11 and also revises 
the order of the items in Sec.  396.11 so they conform to that of Sec.  
392.7(b).
    The Agency also revises the text of Sec.  396.11(a) to clarify its 
application to commercial motor vehicles other than intermodal 
equipment.
    Finally, FMCSA clarifies its intent and corrects an error in the 
text of Sec.  396.12(d) concerning the driver's pre-trip assessment. 
The last paragraph of the discussion of Sec.  392.7 in the preamble of 
the final rule (73 FR 76804) reads as follows:


[[Page 68706]]


    ``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.''

    FMCSA clarifies that drivers must advise the IEP of the results of 
their pre-trip assessment, and the IEP must have a process to determine 
how to resolve the deficiencies that the driver reports. There is no 
explicit requirement for documentation of the pre-trip assessment. 
Neither the underlying statute, nor the rule itself, requires a written 
pre-trip inspection report. The regulation gives the IEP the choice of 
providing FMCSR-compliant IME; repairing defects or deficiencies the 
driver brings to the IEP's attention; or providing the driver with a 
different piece of IME. The outcome would be the same in each case: the 
IME tendered for operation in interstate commerce should not have any 
defects or deficiencies that would make it non-compliant with the 
FMCSRs.
    FMCSA recognizes that IEPs and motor carriers may voluntarily 
choose to use a written or electronic pretrip inspection form. Provided 
the content of the form does not conflict with the FMCSRs, FMCSA has no 
objections to use of such forms. However, the Agency emphasizes that 
there is no requirement for written documentation of driver pre-trip 
assessments.

Partial Extension of Compliance Date

Background

    On October 27, 2009, OCEMA requested that the FMCSA extend the 
December 17, 2009 deadline for complying with specific elements of part 
396 of the IME safety rule until June 30, 2010.
    1. Sec.  396.9(d)--Requirements for drivers to deliver Driver 
Vehicle Examination Reports (DVERs) to IEP, corrective actions, and 
recordkeeping requirements.
    2. Sec.  396.11(a)(2) and Sec.  396.12(a)--Every intermodal 
equipment provider must have a process to receive driver reports of 
defects or deficiencies in the intermodal equipment operated.
    3. Sec.  396.12(c)--Corrective action
    4. Sec.  396.12(d)--Retention period for Driver Vehicle Inspection 
Reports (DVIRs).
    A copy of the petition for rulemaking is in the docket referenced 
at the beginning of this notice.
    OCEMA believes that IEPs' processes and systems required by the 
December 2008 regulations, relating to pre-trip inspection, periodic 
maintenance, systematic maintenance, and recordkeeping, should be 
substantially in place by the December 17, 2009 compliance date. 
However, requirements in sections 396.9, 396.11, and 396.12, relating 
to the DVIR and the DVER physically cannot be implemented at the over 
1,000 facilities where interchanges take place nationwide by that date.
    OCEMA states that it was an active participant in all phases of the 
rulemaking process and was a key stakeholder in the negotiations that 
led to the compromise roadability legislation that was enacted in 
SAFETEA-LU. The Petitioner estimates that its member IEPs own or have 
under long term lease over 50% of all intermodal chassis operated in 
the United States (approximately 450,000 units). An OCEMA affiliate, 
CCM, has organized regional chassis pools at numerous locations in the 
U.S. The pools will serve as the IEPs for over 100,000 chassis. As 
such, Petitioners have a significant interest in the rule at issue in 
this proceeding.
    OCEMA provides several reasons for requesting an extension of the 
compliance date for the provisions of the December 2008 rule that form 
the subject of its petition:
     The Regulations inadvertently create a gap by requiring 
IEPs to have in place a process to receive Driver Vehicle Inspection 
Reports (DVIRs), including identification of the IEP, by December 17, 
2009, while not requiring marking of the IEP on the equipment until 
December 17, 2010.
     The in-gate procedures and communication technologies are 
so varied at marine terminals, rail facilities, container yards, and 
other inland locations that any effort to implement the subject 
requirements without the ready availability of IEP information will 
lead to congestion and gate delays, while undermining existing systems 
for handling inbound defects.
     Failure to extend the compliance date will place much of 
the intermodal industry in the position of having to choose between 
non-compliance with regulatory requirements and discontinued 
operations.
     OCEMA is building an open architecture paperless DVIR 
Receipt System (DRS) that, when implemented, will significantly 
facilitate the ability of all segments of the industry to comply with 
DVIR requirements. Design of the DRS is expected to be complete on or 
around the compliance date. However, OCEMA members will still need to 
work with the over 1,000 facilities at which chassis are interchanged 
to complete deployment, including establishment of communication links 
and gate procedures.
     A key component of the DRS is interface with the GIER 
system currently under development by IANA. The GIER database will 
provide a mechanism for matching the IEP to the IME. However, as of the 
date of OCEMA's request, the GIER is not yet available.

Agency's Assessment and Decision

    FMCSA has carefully reviewed OCEMA's petition for an extension of 
the compliance date. The Agency acknowledges the need for considerable 
planning and coordinating among IEPs, motor carriers, and the operators 
of terminals and other intermodal facilities that are necessary so that 
the vehicle safety oversight activities contemplated by Congress in the 
SAFETEA-LU provision, as well as by FMCSA in the implementing 
regulation, can move forward. The large number of intermodal 
facilities, and the significant variations in their operating 
practices, make the implementation of the enhanced IME safety oversight 
activities a challenging task.
    Although OCEMA and its member organizations have made considerable 
progress since the final rule was published nearly a year ago, they 
have also noted the challenges they continue to face. The Agency 
believes they have made a compelling argument for extending the 
compliance date for these specific elements of the new regulations as 
they apply to IME. The Agency also agrees that a six-month extension of 
the compliance date for these elements would enable IEPs and the 
terminal operators they work with sufficient time to complete any 
necessary adjustments to their IME operational procedures.
    FMCSA also agrees with OCEMA's assertion that, even with a delayed 
compliance date for the requested sections of the FMCSRs, IEPs' 
operations will continue to be subject to all the inspection, repair, 
and maintenance requirements essential to ensuring safety and 
compliance with the December 17, 2008 final rule. By the December 17, 
2009 implementation

[[Page 68707]]

date, IEPs will have identified themselves to the FMCSA and obtained 
USDOT numbers. They will also have in place a process to repair or 
replace defective equipment prior to its departure from terminal, in 
response to notification by drivers after their pre-trip inspection. 
IEPs will have in place systematic inspection, maintenance and repair 
programs, periodic inspection procedures, and their associated 
recordkeeping systems.
    The Agency acknowledges OCEMA's point, that, considering that the 
DVIR and DVER requirements cannot be fully implemented at this point in 
time, safety cannot be said to be sacrificed by delaying enforcement of 
such requirements. In addition, OCEMA states that existing systems for 
receipt of driver damage or defect information will continue to be 
used. The Agency takes note of this, and anticipates a smooth 
transition between existing and new systems during the next few months.
    Accordingly, FMCSA grants the petition to extend the effective date 
portions of Sections 396.9, 396.11, and 396.12 of the FMCSRs as they 
apply to IEPs and the IME they are responsible for maintaining.

Rulemaking Analyses and Notices

Administrative Procedure Act

    If an agency determines that the prior notice and opportunity for 
public comment on a rule normally required by the Administrative 
Procedure Act are impracticable, unnecessary, or contrary to the public 
interest (the so-called ``good cause'' finding), it may publish the 
rule without such notice. (See 5 U.S.C. 553(b).)
    The amendments made by this final rule accomplish three purposes. 
They provide an additional option for IEPs to identify their IME for 
FMCSA and State enforcement personnel. The Agency believes that this 
method will allow IEPs to meet the marking/identification requirements 
in a manner that will be comparable to or as effective as the current 
requirements of Sec.  390.21 of the FMCSRs.
    The amendments also make minor changes to improve clarity and 
consistency and correct an inadvertent error. Although the amended list 
of items in the pre-trip inspection checklist at Sec.  392.7(b) is more 
substantial, it simply reflects the requirements of the current post-
trip inspection checklist and therefore does not impose requirements 
unfamiliar to drivers.
    Finally, the amendments suspend the deadline for compliance with 
specific provisions of part 396 of the FMCSRs as they apply to IEPs. 
However, the Agency believes that, even with a delayed compliance date 
for those provisions, IEPs' operations will very likely be at a level 
of safety comparable to, or as effective as, the provisions of the 
December 17, 2008 final rule. FMCSA believes there is no discernable 
impact on safety because the substantive requirements that have the 
greatest impact on safety will go into effect on schedule. These 
include a process to repair or replace defective equipment prior to its 
departure from terminal, in response to notification by drivers after 
their pre-trip inspection, as well as systematic inspection, 
maintenance and repair programs, periodic inspection procedures, and 
their associated recordkeeping systems.
    For these reasons, FMCSA finds good cause that notice and public 
comment are unnecessary. Further, the Agency finds good cause under 5 
U.S.C. 553(d)(3) to make the amendments effective upon publication. The 
partial extension of the deadline for compliance with the specified 
elements of part 396 will remain in effect until June 30, 2010.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or within 
the meaning of Department of Transportation regulatory policies and 
procedures. The Office of Management and Budget (OMB) did not review 
this document. We expect the final rule will have minimal costs; 
therefore, a full regulatory evaluation is unnecessary.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has evaluated the effects of this rule on small entities. 
The rule provides an additional option for IEPs to mark their IME in 
accordance with the requirements of Sec.  390.21. This change reflects 
current operational practices of physically marking IME and thus places 
no new requirements on the regulated industry. The rule also makes 
several changes to improve clarity and consistency and to correct an 
inadvertent error. Although the change to make two inspection 
checklists is more substantial, it reflects current operational 
practices and thus places no new requirements on the regulated 
industry. It also provides a partial extension of the compliance date 
for specific elements of Part 396 as they apply to the operations of 
IEPs. The partial extension will promote a smoother and more effective 
transition towards IEPs' compliance with the December 2008 rule. For 
these reasons, FMCSA therefore certifies that this action will not have 
a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et 
seq.), that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $141.3 
million or more in any 1 year.

Executive Order 12988 (Civil Justice Reform)

    This action 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.

Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. We 
determined that this rulemaking does not concern an environmental risk 
to health or safety that may disproportionately affect children.

Executive Order 12630 (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.

Executive Order 13132 (Federalism)

    FMCSA analyzed this rule in accordance with the principles and 
criteria contained in Executive Order 13132. Although the 2008 final 
rule had Federalism implications, FMCSA determined that it did not 
create a substantial direct effect 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. 
This rulemaking does not change that determination in any way.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding

[[Page 68708]]

intergovernmental consultation on Federal programs and activities do 
not apply to this action.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that FMCSA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that no 
new information collection requirements are associated with the 
technical amendments to this final rule.

National Environmental Policy Act

    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004 (69 FR 9680), that this action does not have any effect 
on the quality of the environment. Therefore, this final rule is 
categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement. FMCSA also 
analyzed this rule under the Clean Air Act, as amended (CAA), section 
176(c) (42 U.S.C. 7401 et seq.), and implementing regulations 
promulgated by the Environmental Protection Agency. Approval of this 
action is exempt from the CAA's general conformity requirement since it 
has no effect on the environment.

Executive Order 13211 (Energy Effects)

    FMCSA analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We determined that it is not a ``significant 
energy action'' under that Executive Order because it is not 
economically significant and is not likely to have an adverse effect on 
the supply, distribution, or use of energy.

List of Subjects

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 396

    Highway safety, Intermodal equipment providers, Motor carriers, 
Motor vehicle.

0
In consideration of the foregoing, FMCSA amends title 49, Code of 
Federal Regulations, subtitle B, chapter III, as follows:

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT 
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS 
PROCEEDINGS

0
1. The authority citation for part 386 continues 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
2. Amend Sec.  386.83 by revising paragraph (a)(1) 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. (i) A CMV owner or operator 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 the FMCSA has received full payment of the 
penalty.
    (ii) An 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 tendering intermodal 
equipment to motor carriers for operation in interstate commerce 
starting on the next (i.e., the 91st) day. The prohibition continues 
until the FMCSA has received full payment of the penalty.
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
3. The authority citation for part 390 continues 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
4. Amend Sec.  390.21 by adding paragraph (g)(4)(v) to read as follows:


Sec.  390.21  Marking of self-propelled CMVs and intermodal equipment.

* * * * *
    (g) * * *
    (4) * * *
    (v) The USDOT number of the intermodal equipment provider is 
maintained in a database that is available via real-time internet and 
telephonic access. The database must:
    (A) Identify the name and USDOT number of the intermodal equipment 
provider responsible for the intermodal equipment, in response to an 
inquiry that includes:
    (i) Standard Carrier Alpha Code (SCAC) plus trailing digits, or
    (ii) License plate number and State of license, or
    (iii) Vehicle Identification Number (VIN) of the item of intermodal 
equipment.
    (B) Offer read-only access for inquiries on individual items of 
intermodal equipment, without requiring advance user registration, a 
password, or a usage fee.

0
5. Revise Sec.  390.40(d) to read as follows:


Sec.  390.40  What responsibilities do intermodal equipment providers 
have under the Federal Motor Carrier Safety Regulations (49 CFR parts 
350-399)?

* * * * *
    (d) Provide intermodal equipment intended for interchange that is 
in safe and proper operating condition.
* * * * *

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

0
6. The authority citation continues to read as follows:

    Authority: 49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR 
1.73.

0
7. Revise Sec.  392.7(b) to read as follows:

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

[[Page 68709]]

as thorough a visual inspection as possible without physically going 
under the vehicle, and trailer brake connections
--Lighting devices, lamps, markers, and conspicuity marking material
--Wheels, rims, lugs, tires
--Air line connections, hoses, and couplers
--King pin upper coupling device
--Rails or support frames
--Tie down bolsters
--Locking pins, clevises, clamps, or hooks
--Sliders or sliding frame lock

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

0
8. The authority citation continues to read as follows:

    Authority: 49 U.S.C. 31133, 31136, 31151, and 31502; and 49 CFR 
1.73.

0
9. Revise Sec.  396.11(a)(1) introductory text and (a)(2) to read as 
follows:


Sec.  396.11  Driver vehicle inspection report(s).

    (a) Report Required--(1) Motor Carriers. Every motor carrier shall 
require its drivers to report, and every driver shall prepare a report 
in writing at the completion of each day's work on each vehicle 
operated, except for intermodal equipment tendered by an intermodal 
equipment provider. The report shall cover at least the following parts 
and accessories:
* * * * *
    (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:

--Brakes
--Lighting devices, lamps, markers, and conspicuity marking material
--Wheels, rims, lugs, tires
--Air line connections, hoses, and couplers
--King pin upper coupling device
--Rails or support frames
--Tie down bolsters
--Locking pins, clevises, clamps, or hooks
--Sliders or sliding frame lock

* * * * *

0
10. Revise Sec.  396.12(d) to read as follows:


Sec.  396.12  Procedures for intermodal equipment providers to accept 
reports required by 390.42(b) of this chapter.

* * * * *
    (d) Retention period for reports. Each intermodal equipment 
provider must maintain all documentation required by this section, 
including the original driver report and the certification of repairs 
on all intermodal equipment, 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.

    Issued on: December 18, 2009.
Anne S. Ferro,
Administrator.
[FR Doc. E9-30654 Filed 12-28-09; 8:45 am]

BILLING CODE 4910-EX-P
