
[Federal Register: August 20, 2010 (Volume 75, Number 161)]
[Rules and Regulations]               
[Page 51419-51420]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20au10-13]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

[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; partial extension of compliance date.

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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 
30, 2011.

ADDRESSES:
     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:

Legal Basis

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

Background

    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).

OCEMA/IICL Petition

    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

[[Page 51420]]

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.

Conclusion

    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.
William Bronrott,
Deputy Administrator.
[FR Doc. 2010-20603 Filed 8-19-10; 8:45 am]
BILLING CODE 4910-EX-P

