Requirements for Intermodal Equipment Providers and for Motor Carriers and Drivers Operating Intermodal Equipment, 76794-76827 [E8-29254]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 243 (Wednesday, December 17, 2008)]
[Rules and Regulations]
[Pages 76794-76827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29254]



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Part III





Department of Transportation





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 Federal Motor Carrier Safety Administration



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49 CFR Parts 385, 386, 390, et al.



 Requirements for Intermodal Equipment Providers and for Motor Carriers 
and Drivers Operating Intermodal Equipment; Final Rule

Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, 392, 393, 396, and Appendix G to 
Subchapter B of Chapter III

[Docket No. FMCSA-2005-23315]
RIN 2126-AA86


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.

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SUMMARY: FMCSA adopts regulations to implement section 4118 of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU). The regulations require intermodal 
equipment providers (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 
assure 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 new regulations, 
for the first time, make IEPs subject to the Federal Motor Carrier 
Safety Regulations (FMCSRs), and call for shared safety responsibility 
among IEPs, motor carriers, and drivers. Additionally, FMCSA adopts 
inspection requirements for motor carriers and drivers operating 
intermodal equipment. Improved maintenance is expected to result in 
fewer chassis being placed out-of-service (OOS) and fewer breakdowns 
involving intermodal chassis, thus improving the Nation's intermodal 
transportation system. Because inadequately maintained intermodal 
chassis create risks for crashes, this final rule will also help ensure 
that commercial motor vehicle (CMV) operations are safer.

DATES: Effective Date: This final rule becomes effective June 17, 2009.
    Implementation Date: Intermodal equipment providers must comply 
with the requirements for establishing systematic inspection, repair, 
and maintenance programs, recordkeeping systems, and for submitting 
Form MCS-150C by December 17, 2009. Intermodal equipment providers must 
comply with the requirement to mark their intermodal chassis with a 
USDOT identification number by December 17, 2010.
    Deadline for Applications for Nonpreemption: Any State that wishes 
to apply for a nonpreemption determination must submit the request to 
the FMCSA Administrator no later than June 17, 2009.
    Petitions for Reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than January 16, 2009.

ADDRESSES: Please include the Docket ID Number FMCSA-2005-23315 or 
Regulatory Identification Number (RIN) 2126-AA86 in the subject line of 
your application or petition, and submit it by any one of the following 
methods:
     Mail to: Administrator, Federal Motor Carrier Safety 
Administration (MC-A), West Building--6th Floor, Room W60-308, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Courier or Hand-Deliver to: 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.
     Federal eRulemaking Portal: through the Federal Docket 
Management System (FDMS) at https://www.regulations.gov.
     Public Access to the Docket: You may view, print, and 
download this final rule and all related documents and background 
material on-line at https://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:

I. Legal Basis
II. Background
III. Discussion of Comments Received on the Proposed Rule
    General
    Part 385--Safety Fitness Procedures
    Part 386--Rules of Practice
    Part 390--Federal Motor Carrier Safety Regulations
    Part 392--Driving of Commercial Motor Vehicles
    Part 393--Parts and Accessories Necessary for Safe Operation
    Part 396--Inspection, Repair, and Maintenance
    Enforcement Plan
    International Implications
    Implementation Date
    Analysis of Safety Data
    Economic Analysis
IV. Summary of the Final Rule
    Part 385--Safety Fitness Procedures
    Part 386--Rules of Practice
    Part 390--Federal Motor Carrier Safety Regulations
    Part 392--Driving of Commercial Motor Vehicles
    Part 393--Parts and Accessories Necessary for Safe Operation.
    Part 396--Inspection, Repair, and Maintenance
V. Regulatory Analyses and Notices
    Executive Order 12866 (Regulatory Planning and Review and DOT 
Regulatory Policies and Procedures)
    Regulatory Flexibility Analysis
    Intergovernmental Review
    Paperwork Reduction Act
    National Environmental Policy Act of 1969 (NEPA)
    Executive Order 12898 (Environmental Justice)
    Energy Effects
    Unfunded Mandates Reform Act of 1995
    Civil Justice Reform
    Protection of Children
    Taking of Private Property
    Federalism
    List of Subjects
VI. The Final Rule

I. Legal Basis

    This final rule is based on the authority of the Motor Carrier 
Safety Act of 1984 (1984 Act) and the Motor Carrier Act of 1935 (1935 
Act), both of which are broadly discretionary, and the specific 
mandates of section 4118 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144, 
at 1729, August 10, 2005, codified at 49 United States Code (U.S.C.) 
31151).
    The 1984 Act authorizes the Secretary of Transportation (Secretary) 
to regulate drivers, motor carriers, and vehicle equipment. Codified at 
49 U.S.C. 31136(a), section 206(a) of the Act requires the Secretary to 
publish regulations on motor vehicle safety. Specifically, the Act sets 
forth minimum safety standards to ensure that: (1) Commercial motor 
vehicles (CMVs) are maintained, equipped, loaded, and operated safely 
[Sec.  31136(a)(1)]; (2) the responsibilities imposed on operators of 
commercial motor vehicles do not impair their ability to operate the

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vehicles safely [Sec.  31136(a)(2)]; (3) the physical condition of CMV 
operators is adequate to enable them to operate the vehicles safely 
[Sec.  31136(a)(3)]; and (4) the operation of CMVs does not have a 
deleterious effect on the physical condition of the operators [Sec.  
31136(a)(4)].
    The final rule establishes a program to ensure that intermodal 
equipment (IME), mainly chassis \1\ interchanged to motor carriers and 
used to transport intermodal containers, is safe and systematically 
maintained. An intermodal chassis meets the definition of a 
``commercial motor vehicle'' in the 1984 Act [49 U.S.C. 31132(a)(1)] 
when used in interstate commerce because it ``has a gross vehicle 
weight rating or gross vehicle weight of at least 10,001 pounds * * 
*.'' FMCSA considered all four of the safety standards included in the 
1984 Act when developing this rule. The rule will ensure that IME is 
maintained, equipped, loaded, and operated safely [Sec.  31136(a)(1)]. 
Entities that interchange IME to motor carriers are required to 
establish a program systematically to inspect, repair, and maintain 
their equipment, if they do not already have such a program in place. 
The pre-trip inspection responsibilities imposed on drivers do not 
impair their ability to operate CMVs safely [Sec.  31136(a)(2)]. 
Maintaining IME to the level required by this rule will prevent some 
roadside repairs and thus reduce the risk both of equipment failure and 
of crashes when CMVs stop near traffic lanes. Both results may produce 
a marginal improvement in the physical condition of drivers [Sec.  
31136(a)(4)]. This rule does not deal directly with the medical 
qualifications of CMV drivers [Sec.  31136(a)(3)].
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    \1\ Intermodal chassis are specifically designed to transport 
cargo containers. See Figure 11 of 49 CFR 393.11 for an 
illustration. In theory Sec.  31151 also applies to flatbed trailers 
which are occasionally used to transport containers, but is is very 
unlikely such IEPs would interchange such equipment to motor 
carriers; the maintenance of such equipment would almost certainly 
be the responsibility of the motor carrier, not the IEP. Loaded 
cargo containers are transported on ships and trains to ports and 
rail facilities in the U.S. and then transferred to chassis trailers 
for transportation by highway to their final destinations. 
Similarly, empty containers may be loaded at shippers' facilities in 
the U.S. and then transported on chassis trailers to ports and rail 
yards for subsequent movement to other destinations in the U.S. or 
abroad.
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    The 1935 Act provides that the Secretary may prescribe requirements 
for (1) qualifications and maximum hours of service of employees of, 
and safety of operation and equipment of, a motor carrier [49 U.S.C. 
31502(b)(1)], and (2) qualifications and maximum hours of service of 
employees of, and standards of equipment of, a motor private carrier, 
when needed to promote safety of operation [Sec.  31502(b)(2)]. This 
final rule is based on the Secretary's authority to regulate the safety 
and standards of equipment of for-hire and private carriers.
    Finally, this rule implements the provisions of section 4118 of 
SAFETEA-LU, entitled ``Roadability.'' Section 31151(a)(1) requires the 
Secretary to issue regulations ``to ensure that intermodal equipment 
used to transport intermodal containers is safe and systematically 
maintained.'' Section 31151(a)(3) specifies a minimum of 14 items to be 
included in the regulations, each of which is included in the final 
rule or existing Agency procedures. Departmental employees designated 
by the Secretary are authorized to inspect IME and copy related 
maintenance and repair records (Sec.  31151(b)). Any IME that fails to 
comply with applicable Federal safety regulations may be placed out of 
service (OOS) by Departmental or other Federal, State, or governmental 
officials designated by the Secretary until the necessary repairs have 
been made (Sec.  31151(c)). State, local, or tribal requirements 
inconsistent with a regulation adopted pursuant to Sec.  31151 are 
preempted (Sec.  31151(d)). Specifically, any State requirement for the 
periodic inspection of intermodal chassis by IEPs that was in effect on 
January 1, 2005, is preempted on the effective date of this final rule 
(Sec.  31151(e)(1), but preemption may be waived upon application by 
the State if the Secretary finds the State requirement is as effective 
as the Federal requirement and does not unduly burden interstate 
commerce (Sec.  31151(e)(2)). All of the SAFETEA-LU roadability 
provisions are implemented by this final rule.

II. Background

December 21, 2006, Proposed Rule, and April 13, 2007, Notice of Public 
Listening Sessions and Reopening of Comment Period

    On December 21, 2006, FMCSA published a notice of proposed 
rulemaking (NPRM) (at 71 FR 76796) to implement section 4118 of 
SAFETEA-LU. The public comment period for the NPRM closed on March 21, 
2007. FMCSA published a notice to advise the public that it was 
reopening and extending the comment period until May 21, 2007, for 
interested parties wishing to present oral statements at the public 
listening sessions (72 FR 18615, April 13, 2007). The listening 
sessions were held on April 27, 2007, in Norfolk, VA; May 3, 2007, in 
Port Newark, NJ; and May 18, 2007, in Long Beach, CA. Speakers included 
representatives of national and local motor carrier and intermodal 
industry associations, port operations organizations, a State agency, 
organized labor, and individual drivers and motor carriers. The issues 
and questions raised by speakers at the listening sessions were 
consistent with the issues raised in the written comments. 
Nevertheless, those oral presentations allowed FMCSA to learn more 
about the concerns of intermodal equipment providers and operators and 
to answer questions concerning FMCSA's proposals. Transcripts of the 
listening sessions are in the docket.

III. Discussion of Comments Received on the Proposed Rule

    FMCSA received 57 written comments from IEP, shipper, railroad, and 
motor carrier organizations, trade associations, State and local 
governments, State organizations, an industry consultant, labor unions, 
a safety advocacy group, a Canadian railroad, and private citizens. The 
commenters included the American Association of Port Authorities 
(AAPA), the Commercial Vehicle Safety Alliance (CVSA), the Association 
of American Railroads (AAR), the Institute of International Container 
Lessors, Ltd. (IICL), the Intermodal Association of North America 
(IANA), the National Association of Waterfront Employers (NAWE), the 
Ocean Carrier Equipment Management Association, Inc. (OCEMA), the U.S. 
Maritime Alliance (USMX), the American Trucking Associations (ATA), the 
Canadian Trucking Alliance, the Motor & Equipment Manufacturers 
Association, Clark Freight Lines (Clark), Den-El Transfer, Eagle 
Systems, Inc., Schneider National Inc. (Schneider), Cowan Systems, LLC 
(Cowan), Five Star Transport, All Ways Transportation, Inc., ConSurve, 
Ohio State Highway Patrol (OHP), California Highway Patrol (CHP), 
Maryland State Highway Administration (Maryland), Georgia Department of 
Public Safety (Georgia), and Public Utilities Commission of Ohio 
(PUCO), Advocates for Highway and Auto Safety (Advocates), 
International Brotherhood of Teamsters (Teamsters), International 
Longshore and Warehouse Union (ILWU), Owner-Operator Independent 
Drivers Association, Inc. (OOIDA), Virginia Intermodal Management, LLC 
(VIM), GE Equipment Services/Rail Services (GE), Pacific Maritime 
Association (PMA), Pacer Stacktrain (Pacer), Terminal Maintenance 
Company LLC, the Canadian National Railway Company (CNRC), and 19 
individuals.
    The following is a summary of the specific substantive issues 
raised by

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commenters, along with FMCSA's responses to them, grouped according to 
the relevant sections of the proposed rule.

General

    Although many commenters support the idea of IEPs being subject to 
certain Federal Motor Carrier Safety Regulations (FMCSRs), they offered 
divergent views on both the statutory provisions and proposed 
regulatory policies. For example, Teamsters believe that the proposed 
rules represent a significant step toward improving IME safety, but 
contain significant gaps that could undermine the objective of 
improving equipment safety. Maryland believes that although the intent 
of the NPRM is good, its proposed implementation and execution are 
problematic. CNRC expressed concern over potential conflicts between 
Canadian and U.S. regulations that may have an adverse impact on trade 
between the two countries.
    Pacer maintains that the recently amended Uniform Intermodal 
Interchange and Facilities Access Agreement \2\ (UIIA) creates a 
market-based incentive for IEPs to ensure their equipment is properly 
inspected and maintained.
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    \2\ The Uniform Intermodal Interchange and Facilities Access 
Agreement (UIIA) is a standard interchange contract, administered by 
IANA, developed to promote intermodal productivity and operating 
efficiencies through the development of uniform industry processes 
and procedures governing the interchange of intermodal equipment 
between ocean carriers, railroads, equipment leasing companies and 
intermodal trucking companies.
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    Pacer and USMX questioned the safety statistics used to justify the 
proposed regulatory action.
    FMCSA Response: FMCSA acknowledges commenters' concerns about the 
implementation of 49 U.S.C. 31151. The Agency must implement the 
statute, and our previous analysis of roadside inspection data 
presented in the preamble of the 2006 NPRM provides an indication of 
the safety need for this rule. As discussed in the NPRM, FMCSA 
performed an analysis of roadside inspection data to compare the 
vehicle violation and OOS inspection outcomes of intermodal container 
chassis and non-intermodal trailers. The results of this analysis 
confirmed that the percentage of intermodal container chassis operated 
in an unsafe mechanical condition is greater than the percentage of 
non-intermodal semitrailers operated in an unsafe mechanical condition.

Part 385--Safety Fitness Procedures

    Advocates, Teamsters, ATA, and PUCO all expressed concern with the 
proposal to conduct roadability reviews of IEPs without FMCSA assigning 
safety ratings based on such reviews. Advocates argued that allowing an 
IEP to undergo the equivalent of a safety fitness evaluation while 
refusing to assign a rating does not advance motor carrier safety. 
Advocates also disagreed with FMCSA's use of the Agency's Safety Status 
Measurement System (SafeStat) database, because they believe SafeStat 
has inadequate and flawed data sources and no statistical basis for 
indicating high-risk motor carriers. Teamsters believe that assigning 
safety ratings would not be a burden to motor carriers and IEPs, since 
other entities that undergo compliance reviews receive safety ratings.
    OCEMA and IICL stated that it is unclear from the proposed 
regulations what defines the roadability review, when a roadability 
review will be performed, or what criteria would trigger a review. 
OCEMA and IICL believe that a definition of ``roadability review'' 
should be added to Sec.  385.3 and should include the criteria FMCSA 
will consider in deciding whether to initiate such a review. Likewise, 
IANA asked how FMCSA would decide whether there is a pattern of 
recordable crashes or noncompliance that would warrant enforcement. 
Teamsters commented that the rule should specify the frequency with 
which such reviews will be performed and that penalties for 
noncompliance should be mandatory. OCEMA and IICL also commented that 
the criteria in Appendix A to part 385 for evaluating the results of a 
roadability review are inapplicable to IEPs. These commenters 
recommended that the Agency amend Appendix A to clearly define the 
process applicable to IEPs or, in the alternative, add a separate 
appendix relating to IEPs.
    PMA and USMX stated that as a result of a roadability review, an 
IEP might be prohibited from tendering equipment from multiple 
locations. These commenters believe that each site must be evaluated on 
its own merit and that such prohibitions should be limited to the 
offending site. Additionally, Pacer stated that any deficiencies in 
equipment found at the IEP's facility which the IEP does not intend to 
interchange should not be considered in a roadability review.
    CHP stated that the agency has experienced situations where 
intrastate motor carriers of property whose permit for intrastate 
operations has been suspended lease their equipment to motor carriers 
that have an active intrastate permit. It recommends a provision to 
prevent IEPs from leasing or selling equipment to other IEPs or motor 
carriers, if they have been prohibited from tendering IME in interstate 
commerce for reasons related to the unsafe condition of equipment.
    FMCSA Response: Because a roadability review is significantly 
limited in scope relative to a compliance review performed on motor 
carriers, as currently defined in 49 CFR 385.3, the Agency will not 
issue a ``safety rating'' to an IEP at the end of a roadability review. 
The roadability review focuses on an IEP's maintenance program, rather 
than a motor carrier's safety management controls. FMCSA has a full 
array of enforcement and compliance tools to measure and ensure an 
IEP's adherence to the FMCSRs, which includes, but is not limited to, 
roadability reviews, targeted roadside inspections, notices of 
violation, civil penalty proceedings, or imminent hazard OOS orders.
    In a roadability review, FMCSA will assess an IEP's compliance with 
the safety requirements of this final rule, specifically 49 CFR parts 
390, 393, and 396. If the results of the roadability review indicate 
that an IEP is not in compliance with the applicable regulations, the 
Agency will cite the IEP for noncompliance and may impose civil 
penalties. If an IEP's level of compliance with the FMCSRs is so poor 
that its continued operation constitutes an imminent hazard to the 
public, the Agency may prohibit the IEP from tendering its IME for 
interstate transportation.
    In response to Teamsters' comment that other entities subject to a 
compliance review, such as motor carriers, hazardous materials (HM) 
shippers, and cargo tank facilities, receive a safety rating, FMCSA 
does not believe it is necessary to rate IEPs at this time. The 
Agency's goal is to identify IEPs that fail to establish effective 
inspection, repair, and maintenance programs and to take appropriate 
action to bring about improved levels of compliance. A rating of the 
IEP is not necessary to accomplish this safety objective. Additionally, 
FMCSA is developing a new safety compliance assurance model through its 
Comprehensive Safety Analysis (CSA) 2010 initiative where, among other 
things, FMCSA is considering the elimination of safety ``ratings'' for 
carriers, and to focus on the actual safety fitness determination.\3\
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    \3\ The goal of CSA 2010 is to develop and implement more 
effective and efficient ways for FMCSA, its State partners and 
industry to reduce commercial motor vehicle crashes, fatalities, and 
injuries. CSA 2010 will help FMCSA and its State partners contact 
more carriers and drivers, use improved data to better identify high 
risk carriers and drivers and apply a wider range of interventions 
to correct high risk behavior. See https://www.fmcsa.dot.gov/safety-
security/csa2010/home.htm.

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    With respect to Advocates' criticism of FMCSA's use of SafeStat to 
identify IEPs for potential roadability reviews, and their reference to 
the findings of oversight organizations, FMCSA believes it is 
appropriate to use algorithms, such as SafeStat, to target IEPs for 
enforcement interventions. The algorithms do not, in and of themselves, 
represent an assessment of the IEPs' maintenance programs but identify 
at-risk IEPs that should be contacted by the Agency.
    To determine if a given IEP should be prioritized for a roadability 
review, FMCSA will evaluate the IEP's violation rates of the applicable 
rules in 49 CFR parts 390, 393, and 396. The decision whether to take 
enforcement action will generally be based on the results of the 
review. If the IEP has significant compliance issues, it may be subject 
to the civil penalties outlined in 49 CFR part 386. Noting Teamsters' 
recommendation that penalties be mandatory, FMCSA will determine 
through its enforcement policies and procedures the circumstances under 
which civil penalty proceedings should be initiated against IEPs, the 
same as it does with motor carriers.
    As to OCEMA's and IICL's comments about the definition of the term 
roadability review, it is defined in Sec.  385.3 of the final rule 
(Sec.  385.501 in the NPRM). FMCSA will develop enforcement policies 
and procedures for record sampling rates and thresholds for pursuing 
enforcement cases based on the results of the roadability review 
process.
    Concerning the frequency of roadability reviews, FMCSA may initiate 
a roadability review, for example: If an IEP is the subject of a non-
frivolous complaint, if an item of its IME (as identified in a police 
accident report) is involved in a crash or HM incident, if an IEP has a 
higher-than-average OOS rate for its chassis, or as a routine safety 
oversight activity to determine its compliance with applicable 
regulations.
    FMCSA agrees with the comments of Pacer and of a participant in the 
Long Beach listening session that IME that is held OOS and not intended 
for interchange, such as by being ``red-tagged'' or physically 
separated from other IME, should not be considered during the course of 
a roadability review. FMCSA already has policies and procedures in 
place for determining whether vehicle inspections should be conducted 
during an on-site visit of a regulated entity and guidelines for the 
selection of vehicles in this process. The Agency has revised the 
regulatory text in Sec.  390.40(d) to clarify this issue. Regardless of 
the actual condition of the IEP's intermodal equipment, FMCSA will 
review some or all of its inspection, repair and maintenance files.
    FMCSA agrees with PMA's and USMX's comments concerning the scope of 
a prohibition against tendering of IME from multiple locations. Section 
385.503(c) clearly states that the Agency has the discretion to 
prohibit an IEP from tendering equipment from a particular location or 
from multiple locations. The scope of the prohibition would depend upon 
the nature and extent of the violations noted.
    Responding to CHP's comment regarding IEPs that have been 
prohibited from tendering IME in interstate commerce, an IEP that gains 
possession or control of IME from an IEP that FMCSA has declared unfit 
assumes all responsibility for the chassis. Section 390.40 clearly 
designates IEPs as responsible for ensuring (1) all IME intended for 
interchange with motor carriers is in safe and proper operating 
condition (reference Section 390.40(d)), and (2) no IME is placed in 
service on the public highways if that equipment has been found to pose 
an imminent hazard, as defined in Sec.  386.72(b)(1) (reference Section 
390.40(j)).

Part 386--Rules of Practice

    Maryland believes that an IEP that misses an installment payment on 
a civil penalty that has previously been assessed should correct this 
deficiency within 30 days, not the 90-day time frame proposed in Sec.  
386.83.
    Advocates stated that they could not find any language in the 
proposed regulation to indicate that FMCSA is prepared to act 
immediately to stop the violation and place the equipment or the IEP 
OOS. They point out that, currently 49 CFR 386.72(b)(1) states that an 
``imminent hazard'' means a violation of certain statutes and 
implementing regulations involving a vehicle, employee, or commercial 
motor vehicle operations that substantially increases the likelihood of 
serious injury or death if not discontinued immediately. Advocates 
urged FMCSA to state unequivocally in the final regulation that the 
Agency will act immediately to abate the hazard until adequate proof is 
provided that the hazard will not recur.
    FMCSA Response: In response to Maryland's comment about IEPs that 
miss an installment payment on a civil penalty, the 90-day period 
proposed in the NPRM is consistent with the existing requirement in 49 
CFR 386.83(a)(2) for CMV owners and operators.
    With regard to Advocates' concern about roadside OOS orders to 
abate violations, there is a distinction between such orders and 
imminent hazard orders. FMCSA personnel and State officials have always 
had a process for placing unsafe vehicles, including IME, out-of-
service. Although the SAFETEA-LU provision creating 49 U.S.C. 31151(c) 
gave the Agency explicit authority to place intermodal equipment out-
of-service, the Agency opted not to include this provision in the NPRM, 
but has now included it in Sec.  396.9. In Sec.  396.9(d)(1), FMCSA 
changed the regulatory text to require the driver to provide the report 
of IME placed OOS to the motor carrier or IEP. In Sec.  396.9(d)(2), a 
sentence has been added requiring that repairs of items of IME placed 
OOS must be documented in the maintenance records for such equipment.

Part 390--Federal Motor Carrier Safety Regulations

Section 390.5, Definitions
    ATA and NAWE are in agreement with FMCSA's proposal to use the 
exact language of the statutory definition of ``intermodal equipment 
provider.'' Most other commenters, however, stated that this definition 
is ambiguous and confusing. IICL commented that contractors performing 
maintenance work are not classified as IEPs unless specifically 
identified as such in contract language. AAR commented that under this 
definition, more than one entity could qualify as an IEP. According to 
AAR, the entity with the written interchange agreement could be 
different from the entity with the contractual responsibility to 
maintain the IME, and through subcontracting efforts, more than one 
entity could have a contractual responsibility for maintaining the 
equipment. IANA estimates the UIIA governs the interchange of more than 
90 percent of intermodal loads and believes the UIIA standard document 
should be incorporated by reference into the FMCSA rules. AAR and CNRC 
believe FMCSA should assign responsibility for compliance with the 
regulations to one IEP--the one whose USDOT and other identification 
number appears on the IME. Schneider recommended that if the owner of a 
chassis enters into a long-

[[Page 76798]]

term lease, the long-term lessee should be the IEP. GE suggests the 
party with direct physical control over the facility where the 
equipment is staged and made available to motor carriers is in the best 
position to comply with the requirements to maintain IME outlined in 
the proposed regulations.
    Pacer and ConSurve commented that the definitions of interchange 
and IEP need to be clarified as they relate to equipment pools.
    GE believes that the reference to ``trailers'' in the proposed 
definition of intermodal equipment could be misunderstood to include 
intermodal truck trailers in common use--even those not used to 
transport intermodal containers. To prevent confusion, GE contends that 
the definition of intermodal equipment be limited to trailers used to 
carry intermodal containers and intermodal container chassis. IICL made 
a similar comment.
    FMCSA Response: On the question of whether a vendor performing 
maintenance could be considered an IEP, FMCSA acknowledges the 
difference pointed out by several commenters between the text of the 
preamble and the text of the proposed regulation. The text of the 
proposed regulation was correct because it reflected the statutory 
language in section 31151(f)(3); the NPRM preamble contained an error.
    FMCSA agrees with IICL's statement that the IEP is the party 
responsible for ensuring performance of systematic inspection, repair, 
and maintenance rather than a vendor or operator who is performing 
local services on behalf of an IEP. FMCSA also agrees with GE's comment 
suggesting that the party with direct physical control over the 
facility where the equipment is staged and made available to motor 
carriers would be in the best position to comply with the requirements 
outlined in the proposed regulations. That is not necessarily the final 
answer, however.
    The party responsible for the maintenance of the IME (for example, 
a long-term lessee) could be considered the IEP, as long as the entity: 
(1) Is the party interchanging the IME; and (2) also provides for its 
systematic inspection, repair, and maintenance. Indeed, the entity 
shown on an interchange agreement may contract with a third party to 
provide inspection, repair, and maintenance services. In some cases, 
such as in a port-wide chassis pool, the third party may be the one 
tendering the equipment, and thus would be the IEP. In others, the 
third party may provide maintenance services (e.g., by having 
maintenance technicians and their equipment at an IEP's facility), but 
does not itself tender IME to motor carriers. The intent of this final 
rule is to ensure that each intermodal chassis is systematically 
maintained by the entity that offers it for transportation in 
interstate commerce. When the owner of IME places its equipment in a 
pool and relinquishes its control to a pool operator that is 
contractually obligated to maintain the equipment, the pool operator 
would be considered the IEP.
    The definitions for the terms ``Intermodal Equipment Agreement'' 
and ``interchange'' used in the NPRM were taken directly from 49 U.S.C. 
31151(f)(2) and 31151(f)(4), respectively. Given the statutory 
language, FMCSA does not believe it is appropriate to consider IANA's 
request to include a reference to the existing standard industry 
procedures and definitions in the UIIA.
    As for GE's comment that the reference to ``trailers'' in the 
proposed definition of intermodal equipment could be misunderstood to 
include intermodal truck trailers in common use, the definition for the 
term ``intermodal equipment'' was taken directly from the text of 
section 31151(f)(1). That definition, and the Agency's regulation, both 
include the phrase ``used in the intermodal transportation of 
containers over public highways in interstate commerce, including 
trailers and chassis.'' Thus, it is clear that the definition for 
``intermodal equipment'' applies to trailers that are used in 
intermodal transportation and not those in common use.
Section 390.15, Assistance in Investigations and Special Studies
    Teamsters, ATA, and CHP objected to the proposal to exempt IEPs 
from the requirement to maintain an accident register under Sec.  
390.15(b). Teamsters believe this requirement would undermine the 
effectiveness of the proposed rule because this information is 
important not only for assessing the effectiveness of the rule, but 
also as a tool to help FMCSA document patterns of noncompliance by 
IEPs, and as a guide for the industry and policy makers in the future. 
ATA commented that because documentation is a key element to ensure 
that chassis repairs are actually completed, IEPs should be required to 
maintain, and make available to inspectors, all records related to 
chassis damage and the subsequent repairs. Such documentation would 
also aid in compliance audits that will be undertaken pursuant to these 
regulations.
    CHP recommended including a requirement for motor carriers involved 
in a recordable collision, while operating IME, to forward a copy of 
the report required pursuant to Sec.  390.15(b) to the IEP and for the 
IEP to retain such reports in the same manner as required of the motor 
carrier.
    FMCSA Response: FMCSA believes that the ability to track crashes 
involving IME does not require the IEP to maintain an accident 
register. The IEP is not likely to be made aware of a crash involving 
its IME unless a chassis unit is damaged and returned to the IEP in 
need of repair, or the motor carrier reports the crash to the IEP. 
Motor carriers are encouraged to document such crashes and report the 
information to FMCSA if they believe the mechanical condition of the 
IME contributed to the crash.
    With respect to CHP's comment about motor carriers not having an 
incentive to report IME damage sustained in a collision, and ATA's 
comment concerning the IEP's responsibility to make available all 
records related to chassis damage and subsequent repairs actually made, 
the new requirement under Sec.  396.12 requires motor carriers to 
report ``any damage, defects, or deficiencies'' [emphasis added], and 
would require IEPs to maintain inspection, repair, and maintenance 
records required under Sec.  396.3(b).
Section 390.21, Marking of Self-Propelled CMVs and Intermodal Equipment
    FMCSA proposed that each unit of IME be marked with a USDOT number 
but requested comment on what other unique identification numbers could 
serve the same purpose as the USDOT number. ATA, PUCO, OHP, Advocates, 
and Georgia believe using a USDOT number to mark IME is the best 
option. Other commenters disagreed, citing concerns about the 
practicality of this requirement.
    Several commenters suggested, as an alternative, that the IEP could 
use the current unique identifiers approved by the American Association 
of Railroads and the Intermodal Equipment Register.
    In addition to their individual comments, IICL, IANA, OCEMA, and 
AAR joined the AAPA, the NAWE, and the USMX (Consensus Group) to 
``offer a consensus solution to the issue of intermodal equipment 
identification numbers * * *.'' The Consensus Group supported use of 
the 10-character alphanumeric identifier currently in use to mark IME. 
The Consensus Group stated that although SAFETEA-LU requires that IME 
be matched to an IEP through a unique identifying number,

[[Page 76799]]

there is no law specifying that a particular provider number be marked 
on a chassis.
    To support its recommendation, the Consensus Group pointed out 
that: (1) The affected chassis are already marked with the unique 10-
character identifier, (2) marking 850,000 chassis in service in the 
U.S. with a particular provider number would cause confusion and would 
take as much as two years to complete at substantial cost, and (3) the 
10-character identifier is already used by State and local enforcement 
personnel.
    The Consensus Group also recommended the establishment of a Web-
based equipment registry through IANA to record and maintain IEPs and 
equipment identification numbers in an online database that would be 
accessible to Federal, State, and local enforcement authorities, as 
well as industry participants, on a real-time basis.
    VIM supported the Consensus Group registry proposal; however, 
another alternative proposed by VIM is to use a sticker similar to 
those used to show compliance with the inspection process under part 
396. The sticker could be designed to last at least 12 months and could 
display the name and contact information of the IEP. VIM proposed that 
such a sticker be used as a substitute for the Agency's proposed method 
of identification.
    In some cases, motor carriers are also IEPs. CHP stated that its 
Biennial Inspection of Terminals (BIT) program requires motor carriers 
in California to have a carrier identification number issued by the 
CHP, and because 95 percent of these entities are motor carriers who 
are already required to mark their power units with their 
identification number, use of another identification number was not 
necessary.
    FMCSA Response: SAFETEA-LU has two requirements regarding 
identification: (1) To identify IEPs responsible for inspection and 
maintenance, and (2) to match IME to an IEP through a unique 
identifying number.
    As several commenters noted, each item of IME already has a unique 
ID number: The Standard Carrier Alpha Code (SCAC) code, consisting of a 
4-character alphabetic field identifying the owner of the IME, followed 
by a 6-digit numeric field unique to the individual item of equipment. 
However, the SCAC code does not necessarily identify the IEP. As 
several commenters noted during the listening sessions, third parties 
(such as equipment pools) may have the responsibility for systematic 
inspection, repair, and maintenance of IME. In some cases, they might 
be responsible for a particular item of IME for months or years. 
However, as was stated at the Norfolk listening session, the Hampton 
Roads chassis pool ``loses'' about 400 chassis per month to other 
locations and ``gains'' about 400 per month from other ports.
    Three main alternatives for physically identifying IME were offered 
by FMCSA and commenters:
    1. Assign a USDOT number and require marking IME as proposed in the 
NPRM and in accordance with Sec.  390.21 requirements. This has the 
advantage of being consistent with the current regulations concerning 
power units. It has the potential disadvantage of high costs because 
chassis would have to be re-marked when they are transferred to 
different IEPs, which can easily happen several times a year.
    2. Do not mark IME with a USDOT number, but instead use a database, 
such as IANA proposed, to track the IEP according to the 10-character 
SCAC code on the IME. The advantages associated with this alternative 
would be that no new marking of IME would be required and there would 
be no new costs associated with the activity. However, the potential 
costs for IEPs to establish and participate in the database, and for 
FMCSA and its Motor Carrier Safety Assistance Program (MCSAP) partners 
to access it, are unknown. The potential disadvantages are that the 10-
character number does not necessarily identify the IEP; rather, the 10-
character number identifies the chassis owner. Thus, IEPs would need to 
continually update their lists of units of IME for which they are 
responsible to make the information useful to one another and to the 
safety agencies accessing it. IANA estimated it would need at least 9 
months to establish the database and to provide access control.
    3. Assign a USDOT number, but allow it to be used on an IEP-
specific sticker, similar to a Periodic Inspection (PI) form. This 
alternative was suggested by VIM in both its comments to the docket and 
at the Norfolk listening session.
    FMCSA believes the third alternative provides the IEP-specific 
identification called for by the legislation and does so in a far less 
time-consuming and costly manner than was proposed in the NPRM. 
Therefore, the final rule provides for the assignment of USDOT numbers 
to IEPs through the same FMCSA process (49 CFR 390.19) as used for 
motor carriers. However, instead of requiring marking of chassis in the 
manner currently specified by 49 CFR 390.21, the rule allows the IEP 
the following four options to identify its IME:
    (1) Use a label or other method of marking that identifies the IEP. 
The label or other marking must be maintained in a manner that retains 
its legibility. Alternatively, it must be protected from moisture and 
other damage (e.g., by use of a weatherproof container on the IME of 
the kind currently used for vehicle registration documents).
    (2) Identify the IME on the interchange agreement, if that document 
includes additional information to identify the specific item of IME 
(such as the Vehicle Identification Number (VIN) and the SCAC code and 
6-digit unique identifying number). This second alternative is 
functionally similar to the identification requirements for rented 
CMVs, described in Sec.  390.21(e)(2)(iii). A copy of the interchange 
agreement must be present while the vehicle is in transit. The IEP 
identification must be readily available and easily identifiable so it 
can be noted by a Federal, State, or local safety enforcement official 
during an inspection.
    (3) Mark the IME with a USDOT number in the same manner required 
under Sec.  390.21, except the marking will only be required on the 
curb side of the equipment in order to minimize costs to IEPs.
    (4) Identify the IEP on trailer documentation carried in a 
weatherproof compartment attached to the item of IME. The document must 
include additional information to identify the specific item of IME, 
such as the VIN and the SCAC code and 6-digit unique identifying 
number. This alternative is similar to alternative (2) above, but 
provides another option that some IEPs might find preferable. As in 
alternative (2), the IEP identification must be clearly available and 
clearly identifiable so it can be noted by a Federal, State, or local 
safety enforcement official during an equipment inspection.
    In order to provide IEPs sufficient time to inventory their 
equipment and implement procedures to identify their IME, the final 
rule allows IEPs until December 17, 2010 to comply with this 
requirement. FMCSA acknowledges the logistical challenges IEPs will 
collectively face in accounting for hundreds of thousands of chasses 
and implementing a system for marking such chassis. 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. The Agency emphasizes that

[[Page 76800]]

IEPs must establish and implement maintenance programs much sooner than 
the marking requirements to ensure there are no delays in the efforts 
to improve safety.
Section 390.40, Responsibilities of IEPs
1. The Phrase ``Timely Manner''
    OOIDA, Maryland, IICL, CNRC, USMX, PMA, Schneider, NAWE, OCEMA, 
ATA, and IANA expressed concern with the proposed language of Sec.  
390.40(h) that ``repairs or replacement must be made in a timely manner 
after * * *'' an IEP has been ``notified by a driver of such damage, 
defects, or deficiencies.'' The consensus of many of these commenters 
is that the phrase ``timely manner'' is vague, impractical, and thus 
possibly unenforceable. The recommendations offered by commenters to 
address the ambiguity range from deletion of the ``timely manner'' 
requirement (IICL), to requiring that the repair be made within 30 
minutes (Schneider), to allowing up to 10 days (Teamsters) to comply 
with this requirement.
    PMA, USMX, and NAWE, in a supplemental comment, emphasized two 
points: (1) That an artificial time frame sacrifices safety for speed; 
and (2) that this issue concerns a commercial operational and economic 
issue in which FMCSA should not be involved, because the mission of the 
FMCSA is truck safety. OCEMA also submitted a supplemental comment on 
the propriety of FMCSA adopting a regulation relating to the timeliness 
of repairs or replacements. An AAR supplemental comment expressed 
similar concerns.
    Teamsters, OOIDA, and Maryland are concerned about the effect of 
the new rules on the amount of time a driver will spend waiting after a 
defect has been found in IME, as most drivers are paid only when they 
are driving. Teamsters recommended that the IEP either pay the driver 
for the waiting time or immediately provide alternate equipment in good 
condition. In addition, Teamsters recommended that the rules include 
provisions to protect drivers from carriers who are apt to retaliate 
against any driver who reports defects or damage to IME.
    Similarly, OOIDA stated that drivers reporting deficient equipment 
to an IEP are routinely made to wait, uncompensated, for long periods 
of time for repairs to be made at IEP facilities. To help avoid long 
delays, it is common for drivers to carry tools and certain replacement 
parts, such as lights, and make minor repairs themselves.
    OOIDA is concerned that the ``timely manner'' provision will not be 
enforced and the level or number of complaints required to trigger an 
investigation of IEP violations under Sec.  390.40 is not defined.
    FMCSA Response: In response to these concerns on the use of the 
phrase ``timely manner,'' one alternative FMCSA considered was to 
replace the word ``timely'' with a fixed period of time in Sec.  
390.40(h). This would address the concerns expressed by motor carriers 
and drivers who may be required to spend time waiting for an IEP to 
repair or replace IME if, for whatever reason, the IME was not in safe 
and proper operating condition beforehand. It would also eliminate the 
questions that are likely to arise from use of the NPRM's imprecise 
term, ``timely.'' However, FMCSA believes setting a specific time limit 
could have a number of negative consequences as well. For example, it 
could result in an overemphasis on the time element of the IME 
interchange process, leading to incomplete repairs by IEPs or to 
frivolous complaints by drivers and motor carriers when IEPs exceed the 
time limit.
    The other alternative considered by FMCSA was to remove the word 
``timely'' from the proposed Sec.  390.40(h). Although this would 
satisfy the concerns of commenters who contend repair or replacement of 
IME is an operational issue outside of FMCSA's jurisdiction, removing 
the word ``timely'' could be viewed as allowing a continuation of the 
status quo for those IEPs tendering equipment in need of repairs to 
drivers and requiring them to decide between accepting it and risking 
delays (at best) and crashes (at worst).
    FMCSA decided to remove the term ``timely'' from the final 
regulatory text. At the same time, the Agency adds a new provision to 
Sec.  390.40(d) to require IEPs to ensure that equipment intended for 
interchange is in safe and proper operating condition.
    These revisions to the regulatory language serve two purposes. 
First, the new text of Sec.  390.40(d) reemphasizes the language of 49 
U.S.C. 31151(a)(l) ``* * * equipment used to transport intermodal 
containers is safe and systematically maintained.'' The provision is 
intended to ensure IME is in proper working order and has been 
systematically maintained before it is interchanged with a motor 
carrier. Second, the Agency acknowledges that the word ``timely'' is a 
subjective description and it is not necessarily in the best interests 
of the tendering or receiving party to specify a time limit for making 
repairs or replacing IME.
    Although OOIDA expressed concern that FMCSA would not ``act 
aggressively'' to address complaints of drivers being coerced to accept 
defective IME or to endure lengthy waits for repairs or replacements of 
defective IME, FMCSA will consider for appropriate handling each non-
frivolous complaint. The Agency encourages drivers to call the Agency's 
Safety Violation Hotline (1-888-DOT-SAFT) if they believe IEPs have 
violated the FMCSRs. Non-frivolous complaints lodged against IEPs will 
be investigated and may result in a roadability review or other type of 
enforcement and compliance intervention. If the IME has defects or 
deficiencies that an IEP decides are not repairable, it is the IEP's 
choice as to how to address the IME situation. The IEP must not offer 
defective IME for interchange to the carrier for transport in 
interstate commerce.
    SAFETEA-LU does not provide the Agency with statutory authority to 
establish rules concerning driver compensation. This issue is more 
appropriately addressed through contractual arrangements or other 
business agreements between motor carriers (or independent owner-
operators) and an IEP.
    With respect to implementing a requirement suggested by Teamsters 
to require replacement IME to be provided ``immediately,'' the Agency 
believes ``immediately'' would be just as difficult to translate into a 
consistent time period as ``timely.'' Additionally, drivers who believe 
they have been penalized by their employers for refusing to violate the 
FMCSRs are afforded statutory protections and may file a complaint with 
the U.S. Department of Labor's Occupational Safety and Health 
Administration (see 49 U.S.C. 31105).
2. Other Comments on Sec.  390.40
    Teamsters commented that the proposed requirements for reasonable 
space and repair-replace procedures in Sec.  390.40(g) are a core 
element in ensuring that the existing driver pre-trip walk around 
inspection (requiring the driver to confirm that the equipment is in 
good working condition) will be made. CNRC is concerned that the 
proposal would impose significant space restraints on intermodal 
facility operators, particularly if more than one IEP required space in 
the facility to make repairs to damaged IME. CNRC also commented that 
the requirements would be impractical if repairs are needed at an 
intermodal terminal where the IEP does not offer IME for interchange. 
Similarly, OCEMA stated that the majority of chassis interchanges will 
occur at facilities not under the control of the equipment provider.

[[Page 76801]]

Finally, NAWE stressed that the equipment interchange may take place at 
a ``facility'' other than at a marine ``terminal.''
    Advocates stated that they could not find any language in the 
proposed regulation that states FMCSA is prepared to act immediately to 
stop a violation of Sec.  390.40(i), which prohibits placing IME in 
service if it poses an imminent hazard, and to place the equipment, or 
the IEP as a company, OOS. Advocates urged FMCSA to state unequivocally 
in the final regulation that the Agency will act immediately to abate 
any imminent hazard until adequate proof is provided that the hazard 
will not recur.
    FMCSA Response: As to space constraints, nothing in the rule would 
prohibit IEPs or any repair or maintenance providers with which they 
may contract, from sharing their resources, including facility space, 
maintenance technicians, repair services, equipment, or parts to make 
repairs to defective IME. Individual IEPs and maintenance facilities 
are in the best position to negotiate and work together to improve the 
safety of intermodal equipment and establish reasonable space and 
repair-replace procedures for defective IME. In doing so, they may well 
find they are all able to achieve improvements in productivity and 
reductions in costs.
    With regard to the Advocates' concern about FMCSA acting 
immediately to prevent IME in need of repairs from being interchanged, 
there are two issues to consider: The ability of FMCSA to abate an 
imminent hazard, and the amount of time for FMCSA to respond to a 
complaint of defective IME being tendered. The Agency adopts regulatory 
text under Sec.  386.72 to describe the process by which it can take 
action against IEPs that constitute an imminent hazard, as authorized 
by 49 U.S.C. 521(b)(5)(A).
    As discussed in the section concerning making repairs in a ``timely 
manner,'' the term ``immediately'' is subjective and would result in 
difficulties in enforcement. Therefore, FMCSA does not indicate a 
specific time frame for addressing these issues.
Section 390.42, Procedures To Correct Safety Records
    OCEMA expressed concern about the proposed procedures for 
correcting safety records. It states that SAFETEA-LU provides a 
procedure under which motor carriers, drivers, and IEPs may seek 
correction of their motor carrier safety records, regardless of whether 
the data is released to the public. OCEMA argued that the language 
proposed by FMCSA limits the correction process required by the statute 
to the filing of questions and concerns about information released to 
the public, with no recourse for information that is not released to 
the public.
    Teamsters are concerned that the proposed rules may allow IEPs and 
motor carriers to redirect a citation to a driver, who is usually 
classified as an independent contractor (a classification Teamsters 
dispute). Teamsters stated that if this is not FMCSA's intent, the 
rules should reflect that while motor carriers and IEPs may have their 
records corrected, the appropriate party to receive the citation should 
be either an IEP or a motor carrier, not a driver.
    OCEMA further commented that challenges to data provided by State 
agencies must first be resolved with the appropriate State agency. As 
an example, OCEMA suggested a situation where a minor defect (e.g., a 
damaged mud flap or a burned out light) that should have been caught 
and fixed by the driver, or that occurred after the driver left the 
terminal, might be attributed to the IEP whose identifying number is on 
the side of the chassis, potentially leading to an unwarranted 
roadability review. OCEMA recommends structuring SafeStat such that 
certain minor violations are not included in that database. In 
addition, OCEMA believes that drivers are only required to conduct pre-
trip inspections and be satisfied that components are in good working 
order before the equipment is operated on the road. OCEMA contends that 
there is no mandatory requirement to certify the equipment condition as 
having passed a pre-trip inspection. Thus, it is OCEMA's understanding 
that the failure of a driver to report a defect establishes a 
presumption that items on the inspection list were in good working 
order when the equipment left the IEP's facility and that the text of 
proposed Sec.  390.42 should be revised to reflect that presumption. 
PMA agreed, and also suggested alternative rule language. Further, PMA 
commented that, to avoid frivolous complaints and unnecessary reviews 
under this section, roadability reviews based on driver complaints 
should require adequate evidentiary support for the complaint.
    FMCSA Response: IEPs and motor carriers may seek corrections to any 
information they believe the Agency maintains about their operations, 
regardless of whether the information is made available to the public. 
The Agency does not intend to limit the data that IEPs and motor 
carriers may seek to correct, and has therefore removed the phrase 
``data released to the public'' from the final rule. FMCSA routinely 
releases information to the public through its various Web sites, and 
to motor carriers and other parties in response to requests for data. 
Interested parties that are aware of inaccurate information are 
encouraged to contact the Agency to provide corrections to the 
information.
    FMCSA considers non-frivolous complaints to be written allegations 
of a violation of the FMCSRs containing sufficient information, such as 
names of involved individuals or specific circumstances warranting 
further investigation. FMCSA has policies and procedures already in 
place for responding to such complaints involving motor carriers, and 
the same approach may be used for IEPs.
    The final rule does not provide a process through which IEPs may 
redirect equipment citations from themselves to drivers. Generally, 
State and local enforcement agencies determine the entity to which 
citations for certain offenses will be issued. The Agency does not seek 
to resolve this particular issue by attempting to prescribe through 
regulation how individual State and local enforcement programs must be 
run. FMCSA's interest is to ensure that equipment safety violations 
found on trailing units and on power units be properly recorded so they 
can be addressed by the parties responsible for each CMV's systematic 
inspection, repair, and maintenance.
    In response to comments by OCEMA and Teamsters, stating FMCSA 
should clarify the criteria for determining what types of defects 
should be considered detectable by the driver who will be transporting 
the IME, the Agency restates its intent that the implementing 
regulation ensure IEPs have in place systematic inspection, repair, and 
maintenance programs so the IME they tender to motor carriers is in 
safe and proper operating condition. The final rule includes a 
requirement for drivers to perform a pre-trip inspection to check the 
mechanical condition of the IME before it is operated on public roads. 
This is necessary because even IME maintained by the most safety-
conscious IEP may have some defects or deficiencies that appear between 
the time the IME is reviewed at the end of one trip and the time it is 
tendered for its next trip.
    Section 31151(a)(1) [49 U.S.C. 31151(a)(1)] requires FMCSA to issue 
regulations ensuring IME used to transport intermodal containers is 
safe and systematically maintained. The final rule establishes 
programmatic responsibility for IME maintenance.

[[Page 76802]]

    However, the statute also carries the expectation FMCSA will issue 
regulations clearly indicating that a motor carrier accepting IME for 
transport will take seriously the requirement that the driver be 
satisfied that IME parts or accessories are in good working order. 
FMCSA recognizes that, although a driver is not generally in a position 
to perform an in-depth inspection of IME, the driver has a 
responsibility to assess whether IME components that can be inspected 
without going underneath the chassis (e.g., lighting devices and tires) 
are in good working order. The final rule includes this requirement in 
Sec.  392.7(b).
    FMCSA acknowledges OCEMA's concern that some drivers may fail to 
report a defect under the requirements of Sec.  390.42(a). Although a 
driver is required to be satisfied the IME is in safe and proper 
operating condition before operating it, the Agency did not include a 
provision in the NPRM for carriers to adopt a particular method to 
document the visual or auditory inspections of the various components 
the driver would check. The Agency agrees with OCEMA that IEPs should 
not be held responsible for citations on equipment a motor carrier has 
``certified as passing the pre-trip inspection'' under Sec.  392.7(b).
    There are many components and many potential defects a driver would 
not be able to see or hear during the pre-trip inspection. Essentially, 
IEPs are responsible for ensuring the safe and proper operating 
condition of the IME they are tendering to motor carriers for use in 
interstate commerce. This premise is clearly embedded in the 
roadability provisions of the statute.
    In response to OCEMA's recommendations that FMCSA's SafeStat 
database not include ``certain minor defects,'' such as burned out 
lights and lamp problems, FMCSA disagrees. Approximately 50 percent of 
OOS violations in three of the four States analyzed by FMCSA 
represented such minor defects. FMCSA believes a pattern of violations, 
especially OOS violations, may point to serious gaps in an IEP's 
inspection, repair, and maintenance program.
    This rule, for the first time, makes IEPs subject to the FMCSRs. 
Fundamentally, IEPs must systematically inspect, repair, and maintain 
IME (for both major and minor defects) that is intended for interchange 
with a motor carrier. The rule also imposes additional requirements on 
motor carriers and drivers operating IME, who must satisfy themselves 
that certain IME parts and accessories are in good working order before 
they operate it over the road. They must also report any known damage 
or deficiencies to the IEP at the time the equipment is returned. 
Compliance gaps could originate from IME defects not being reported to 
an IEP, the IEP not having a process in place to receive the reports, 
the IEP not taking action upon the reports it receives, or a 
combination of all of these scenarios. It might be necessary for FMCSA 
to perform a roadability review of an IEP's operations to determine the 
root causes for patterns of violations, and whether the causes could 
lead FMCSA to focus on a party other than the IEP.
    The distribution of intermodal semitrailer violations described in 
Table 7 of the NPRM (71 FR at 76806) fell into 3 main categories: 
Lamps, tires, and brakes. Lamps accounted for 34 percent of the 
violations; tires, 12.2 percent; and brakes, 13.8 percent. The OOS 
violations described in Table 10 of the NPRM (71 FR at 76808-76809) 
fell into 4 main categories: Brakes, tires, lamps, and container 
securement. The distribution was brakes, 35.3 percent; lamps, 31.4 
percent; container securement, 18.6 percent; and tires, 7.5 percent. In 
the aggregate, more than 90 percent of the OOS violations fell into 
these 4 categories, pointing to some relatively straightforward areas 
for IEPs to focus upon when establishing their intermodal equipment 
maintenance programs.
    FMCSA agrees with OCEMA's statement that a driver's failure to 
report a defect establishes a presumption that items on the inspection 
list were in good working order when the IME departed the facility. The 
IEP is responsible for the systematic inspection, repair, and 
maintenance of the IME they tender t