[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Rules and Regulations]
[Pages 68703-68709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30654]
[[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