51416 Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations 

(ii) An economic downturn, the 

occurrence of a natural disaster, or 

similar events in the service area that 

severely restrict or reduce sources of 

local funding support; or 

(iii) The unexpected discontinuation 

of local support from one or more 

sources that a project has relied on for 

a period of years. 

* * * * * 

Dated: August 13, 2010. 

Tom Bryant, 

Associate General Counsel. 

[FR Doc. 2010–20525 Filed 8–19–10; 8:45 am] 

BILLING CODE 6050–28–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 202, 212, and 234 

[DFARS Case 2008–D011] 

Defense Federal Acquisition 

Regulation Supplement; Acquisition of 

Commercial Items 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, the interim rule that 

amended the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement sections 805 and 

815 of the National Defense 

Authorization Act for Fiscal Year 2008. 

This rule specified when time-andmaterials or labor-hour contracts may be 

used for the acquisition of commercial 

items, and revised the language to 

address the conditions under which 

major weapon systems or subsystems 

may be treated as commercial items. 

DATES: Effective Date: August 20, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra R. Freeman, Defense 

Acquisition Regulations System, OUSD 

(AT&L) DPAP/DARS, 3060 Defense 

Pentagon, Room 3B855, Washington, DC 

20301–3060. Telephone 703–602–8383; 

facsimile 703–602–0350. Please cite 

DFARS Case 2008–D011. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD published an interim rule at 74 

FR 34263 on July 15, 2009, to 

implement sections 805 and 815 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year 2008 (Pub. L. 

110–181). A correction to the interim 

rule was published at 74 FR 35825 on 

July 21, 2009, to clarify the types of 

services to which this rule applies, 

consistent with subsections (c)(1)(A) 

and (c)(1)(C)(i) of section 805 of the 

NDAA for Fiscal Year 2008. Section 805 

specified when time-and-materials or 

labor-hour contracts may be used for 

commercial item acquisitions. Section 

815 of the NDAA for Fiscal Year 2008 

provided clarification regarding 

situations under which the procurement 

of a major weapon system, subsystems 

of major weapon systems, and 

components and spare parts for major 

weapon systems, may be acquired using 

procedures established for the 

acquisition of commercial items. 

Section 815 also clarified that the terms 

‘‘general public’’ and ‘‘non-governmental 

entities’’ with regard to sales of 

commercial items, do not include the 

Federal Government or a State, local, or 

foreign government. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD certifies that this rule will not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule reinforces existing 

requirements for the appropriate use of 

commercial acquisition procedures and 

for ensuring that contract prices are fair 

and reasonable. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 202, 

212, and 234 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

published at 74 FR 34263 on July 15, 

2009, as corrected at 75 FR 35825 on 

July 21, 2009, is adopted as final 

without change. 

[FR Doc. 2010–20436 Filed 8–19–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 247 and 252 

Defense Federal Acquisition 

Regulation Supplement; 

Transportation (DFARS Case 2003– 

D028) 

AGENCY: Defense Acquisition 

Regulations System. Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule, 

with changes, amending the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to update text on 

transportation matters relating to DoD 

contracts. 

DATES: Effective Date: August 20, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mary Overstreet, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–0311; 

facsimile 703–602–0350. Please cite 

DFARS Case 2003–D028. 

SUPPLEMENTARY INFORMATION: 

A. Background 

In keeping with the DFARS 

Transformation initiative objective of 

improving the efficiency and 

effectiveness of the acquisition process, 

while allowing the acquisition 

workforce the flexibility to innovate, 

DoD issued a proposed rule at 70 FR 

43109 on July 26, 2005, to update text 

on transportation matters relating to 

DoD contracts, including clarifying 

certain shipping procedures and 

offering additional guidance on their 

use. 

This final rule is a result of the 

DFARS Transformation initiative. The 

changes to the final rule— 

Æ Delete text on transportation 

matters that are sufficiently addressed 

in the Federal Acquisition Regulation or 

in DoD transportation regulations; 

Æ Clarify requirements for inclusion 

of shipping instructions in solicitations 

and contracts; and 

Æ Delete procedures for contracting 

for the preparation of property for 

shipment or storage; and for preparation 

of consignment instructions. Text on 

these subjects will be relocated to the 

DFARS companion resource, 

Procedures, Guidance, and Information 

(PGI). Additional information on PGI is 

available at http://www.acq.osd.mil/ 

dpap/dars/pgi. 


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Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations 51417 

B. Public Comments 

No public comments were received in 

response to the proposed rule. 

C. Summary of Changes to the Proposed 

Rule 

The following changes to the 

proposed rule resulted from DoD 

deliberations: 

Æ 247.001 indicates the availability of 

additional information at PGI 247.001 

for the Voluntary Intermodal Sealift 

Agreement program. 

Æ 247.200 indicates the availability of 

additional guidance at PGI 247.200 for 

procurement of transportation or related 

services. 

Æ 247.270–3, proposed for deletion, 

has been retained (redesignated as 

240.270–2). 

Æ 247.271–2, proposed for deletion, 

has been retained (redesignated as 

247.271–1). 

Æ 247.271–4(i) (redesignated as 

247.271–3(i)) indicates the availability 

of additional information at PGI 

247.271–3(c)(1) for demurrage and 

detention charges. 

Æ 247.301 indicates the availability of 

guidance at PGI 247.301 relating to 

Government Purchase Card purchases 

that require shipments to destinations 

outside CONUS. 

Æ 247.371 (redesignated as 247.370) 

indicates the availability of guidance at 

PGI 247.370 relating to DD Form 1384, 

Transportation Control and Movement 

Document. 

This is not a significant regulatory 

action, and therefore, is not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

D. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not have a significant economic impact 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule addresses internal DoD 

requirements for transportation 

planning and management. Therefore, 

DoD has not performed a final 

regulatory flexibility analysis. No 

comments were received from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 247 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, DoD is amending 48 CFR 

parts 247 and 252 as follows: 

■ 1. The authority citation for 48 CFR 

parts 247 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 247—TRANSPORTATION 

■ 2. Section 247.001 is revised to read 

as follows: 

247.001 Definitions. 

For definitions of ‘‘Civil Reserve Air 

Fleet’’ and ‘‘Voluntary Intermodal Sealift 

Agreement,’’ see Joint Pub 1–02, DoD 

Dictionary of Military and Associated 

Terms. See additional information at 

PGI 247.001 for the Voluntary 

Intermodal Sealift Agreement program. 

Subpart 247.1 [Removed] 

■ 3. Subpart 247.1 is removed. 

■ 4. Section 247.200 is revised to read 

as follows: 

247.200 Scope of subpart. 

This subpart does not apply to the 

operation of vessels owned by, or 

bareboat chartered by, the Government. 

See additional guidance at PGI 247.200 

for procurement of transportation or 

related services. 

■ 5. Section 247.206 is revised to read 

as follows: 

247.206 Preparation of solicitations and 

contracts. 

Consistent with FAR 15.304 and 

215.304, consider using the following as 

evaluation factors or subfactors: 

(1) Record of claims involving loss or 

damage; and 

(2) Commitment of transportation 

assets to readiness support (e.g., Civil 

Reserve Air Fleet and Voluntary 

Intermodal Sealift Agreement). 

247.270–1 [Removed] 

■ 6. Section 247.270–1 is removed. 

247.270–2, 247.270–3, and 247.270–4 

[Redesignated] 

■ 7. Sections 247.270–2, 247.270–3, and 

247.270–4 are redesignated as sections 

247.270–1, 247.270–2, and 247.270–3, 

respectively. 

247.270–5 [Removed] 

■ 8. Section 247.270–5 is removed. 

247.270–6 [Redesignated] 

■ 9. Section 247.270–6 is redesignated 

as section 247.270–4. 

247.271–1 [Removed] 

■ 10. Section 247.271–1 is removed. 

247.271–2 and 247.271–3 [Redesignated] 

■ 11. Sections 247.271–2 and 247.271– 

3 are redesignated as sections 247.271– 

1 and 247.271–2, respectively. 

■ 12. Newly designated section 

247.271–2 is revised to read as follows: 

247.271–2 Procedures. 

Follow the procedures at PGI 

247.271–2 for contracting for the 

preparation of personal property for 

shipment or storage. 

247.271–4 [Redesignated] 

■ 13. Section 247.271–4 is redesignated 

as section 247.271–3. 

■ 14. Newly designated section 

247.271–3 is amended by revising 

paragraphs (c) and (i) to read as follows: 

247.271–3 Solicitation provisions, 

schedule formats, and contract clauses. 

* * * * * 

(c) In solicitations and resulting 

contracts, the schedules provided by the 

installation personal property shipping 

office. Follow the procedures at PGI 

247.271–3(c) for use of schedules. 

* * * * * 

(i) The clause at 252.247–7014, 

Demurrage. See additional information 

at PGI 247.271–3(c)(1) for demurrage 

and detention charges. 

* * * * * 

■ 15. Section 247.301 is revised to read 

as follows: 

247.301 General. 

See PGI 247.301 for transportation 

guidance relating to Government 

Purchase Card purchases that require 

shipments to destinations outside 

CONUS. 

■ 15a. Sections 247.305–10 and 

247.305–70 are revised to read as 

follows: 

247.305–10 Packing, marking, and 

consignment instructions. 

Follow the procedures at PGI 

247.305–10 for preparation of 

consignment instructions. 

247.305–70 Returnable containers other 

than cylinders. 

Use the clause at 252.247–7021, 

Returnable Containers Other Than 

Cylinders, in solicitations and contracts 

for supplies involving contractorfurnished returnable reels, spools, or 

other returnable containers if the 


jdjones on DSK8KYBLC1PROD with RULES
51418 Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations 

contractor is to retain title to the 

containers. 

247.370 [Removed] 

■ 16. Section 247.370 is removed. 

247.371 and 247.372 [Redesignated] 

■ 17. Sections 247.371 and 247.372 are 

redesignated as sections 247.370 and 

247.371, respectively. 

■ 18. Newly designated sections 

247.370 and 247.371 are revised to read 

as follows: 

247.370 DD Form 1384, Transportation 

Control and Movement Document. 

The transportation office of the 

shipping activity prepares the DD Form 

1384 to accompany all shipments made 

through a military air or water port, in 

accordance with DoD 4500.9–R, Defense 

Transportation Regulation, Part II, 

Chapter 203. A link to this document is 

available in PGI 247.370. 

247.371 DD Form 1653, Transportation 

Data for Solicitations. 

The transportation specialist prepares 

the DD Form 1653 to accompany 

requirements for the acquisition of 

supplies. The completed form should 

contain recommendations for suitable 

f.o.b. terms and other suggested 

transportation provisions for inclusion 

in the solicitation. 

247.373 [Redesignated] 

■ 19. Section 247.373 is redesignated as 

section 247.372. 

■ 20. Section 247.573–1 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

247.573–1 Ocean transportation incidental 

to a contract for supplies, services, or 

construction. 

* * * * * 

(b) DD Form 1653, Transportation 

Data for Solicitations, shall be used— 

(1) By the requesting activity in 

developing the Government estimate for 

transportation costs; and 

(2) By the contracting officer in 

ensuring that valid shipping 

instructions and delivery terms are 

included in solicitations and contracts 

that may involve transportation of 

supplies by sea. 

(c) If the contractor notifies the 

contracting officer that the contractor or 

a subcontractor considers that— 

(1) No U.S.-flag vessels are available, 

the contracting officer must request 

confirmation of the nonavailability 

from— 

(i) The Commander, Military Sealift 

Command (MSC), through the Contracts 

and Business Management Directorate, 

MSC; or 

(ii) The Commander, Military Surface 

Deployment and Distribution (SDDC), 

through the SDDC global e-mailbox 

sddc.ops.ffw@us.army.mil and the 

Principal Assistant Responsible for 

Contracting, SDDC. 

(2) The proposed freight charges to 

the Government, the contractor, or any 

subcontractor are higher than charges 

for transportation of like goods to 

private persons, the contracting officer 

may approve a request for an exception 

to the requirement to ship on U.S.-flag 

vessels for a particular shipment. 

(i) Prior to granting an exception, the 

contracting officer must request advice, 

oral or written, from the Commander, 

MSC, or the Commander, MTMC. 

(ii) In advising the contracting officer 

whether to grant the exception, the 

Commander, MSC, or the Commander, 

SDDC, must consider, as appropriate, 

evidence from— 

(A) Published tariffs; 

(B) Industry publications; 

(C) The Maritime Administration; and 

(D) Any other available sources. 

(3) The freight charges proposed by 

U.S.-flag carriers are excessive or 

otherwise unreasonable— 

(i) The contracting officer must 

prepare a report in determination and 

finding format, and must— 

(A) Take into consideration that the 

1904 Act is, in part, a subsidy of the 

U.S.-flag commercial shipping industry 

that recognizes that lower prices may be 

available from foreign-flag carriers. 

Therefore, a lower price for use of a 

foreign-flag vessel is not a sufficient 

basis, on its own, to determine that the 

freight rate proposed by the U.S.-flag 

carrier is excessive or otherwise 

unreasonable. However, such a price 

differential may indicate a need for 

further review; 

(B) Consider, accordingly, not only 

excessive profits to the carrier (to 

include vessel owner or operator), if 

ascertainable, but also excessive costs to 

the Government (i.e., costs beyond the 

economic penalty normally incurred by 

excluding foreign competition) resulting 

from the use of U.S.-flag vessels in 

extraordinarily inefficient 

circumstances; and 

(C) Include an analysis of whether the 

cost is excessive, taking into account 

factors such as— 

(1) The differential between the 

freight charges proposed by the U.S.-flag 

carrier and an estimate of what foreignflag carriers would charge based upon a 

price analysis; 

(2) A comparison of U.S.-flag rates 

charged on comparable routes; 

(3) Efficiency of operation regardless 

of rate differential (e.g., suitability of the 

vessel for the required transportation in 

terms of cargo requirements or vessel 

capacity, and the commercial 

reasonableness of vessel positioning 

required); and 

(4) Any other relevant economic and 

financial considerations. 

(ii) The contracting officer must 

forward the report to— 

(A) The Commander, MSC, through 

the Contracts and Business Management 

Directorate, MSC; or 

(B) The Commander, through the 

SDDC global e-mailbox: 

sddc.ops.ffw@us.army.mil and the 

Principal Assistant Responsible for 

Contracting, SDDC. 

(iii) If in agreement with the 

contracting officer, the Commander, 

MSC, or the Commander, SDDC, will 

forward the report to the Secretary of 

the Navy or the Secretary of the Army, 

respectively, for a determination as to 

whether the proposed freight charges 

are excessive or otherwise unreasonable. 

247.573–2 [Amended] 

■ 21. Section 247.573–2 paragraph (d) is 

amended by removing the acronym 

‘‘MTMC’’ and adding in its place the 

acronym ‘‘SDDC’’ each time it appears as 

follows: 

■ a. In paragraph (d)(1) introductory 

text; 

■ b. In paragraph (d)(1)(i); 

■ c. In paragraph (d)(1)(ii)(B); 

■ d. In paragraph (d)(1)(iii); 

■ e. In paragraph (d)(2); 

■ f. In paragraph (d)(3)(ii)(B); and 

■ g. In paragraph (d)(3)(iii). 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.247–7000 through 252.247–7002 and 

252.247–7004 through 252.247–7007 

[Amended] 

■ 22. Sections 252.247–7000 through 

252.247–7002 and 252.247–7004 

through 252.247–7007 are amended in 

the introductory text by removing 

‘‘247.270–6’’ and adding in its place 

‘‘247.270–4’’. 

252.247–7008 [Amended] 

■ 23. Section 252.247–7008 and its 

Alternate I are amended in the 

introductory text by removing ‘‘247.271– 

4’’ and adding in its place ‘‘247.271–3’’. 

252.247–7009 through 252.247–7012 

[Amended] 

■ 24. Sections 252.247–7009 through 

252.247–7012 are amended in the 

introductory text by removing ‘‘247.271– 

4’’ and adding in its place ‘‘247.271–3’’. 

252.247–7013 [Amended] 

■ 25. Section 252.247–7013 is amended 

in the introductory text as follows: 


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Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations 51419 

■ a. By removing ‘‘247.271–4’’ and 

adding in its place ‘‘247.271–3’’; and 

■ b. By removing the parenthetical ‘‘(see 

247.271–2(b))’’. 

252.247–7014 and 252.247–7016 through 

252.247–7020 [Amended] 

■ 26. Sections 252.247–7014 and 

252.247–7016 through 252.247–7020 are 

amended in the introductory text by 

removing ‘‘247.271–4’’ and adding in its 

place ‘‘247.271–3’’. 

[FR Doc. 2010–20439 Filed 8–19–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 390 

[Docket No. FMCSA–2005–23315] 

RIN 2126–AB25 

Requirements for Intermodal 

Equipment Providers and for Motor 

Carriers and Drivers Operating 

Intermodal Equipment 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Final rule; partial extension of 

compliance date. 

SUMMARY: The FMCSA extends until 

June 30, 2011, the June 30, 2010, 

compliance date of its December 29, 

2009, final rule concerning the 

inspection, repair, and maintenance of 

intermodal equipment (IME), 

specifically with respect to the 

requirement for drivers and motor 

carriers to prepare a driver-vehicle 

inspection report (DVIR) on an item of 

IME even if no damage, defects, or 

deficiencies are discovered by, or 

reported to, the driver. This action is 

being taken to provide the Agency with 

sufficient time to address, through a 

notice-and-comment rulemaking 

proceeding, an issue raised in a petition 

for rulemaking submitted on March 31, 

2010, by the Ocean Carrier Equipment 

Management Association (OCEMA) and 

the Institute of International Container 

Lessors (IICL) (also referred to as ‘‘the 

petitioners’’). The requirements for 

intermodal equipment providers (IEPs) 

to have in place inspection, repair and 

maintenance programs, and a process 

for receiving and taking appropriate 

action in response to DVIRs on which 

damage, defects, or deficiencies are 

reported, remain in effect. 

DATES: Compliance Date: As of August 

20, 2010, the compliance date for the 

requirement in § 390.42(b) for drivers 

and motor carriers to prepare a DVIR on 

an item of IME if no damage, defects, or 

deficiencies are discovered by, or 

reported to, the driver, is extended until 

June 30, 2011. 

ADDRESSES: 

• Public Access to the Docket: You 

may view, print, and download this 

final rule and all related documents and 

background material on-line at http:// 

www.regulations.gov, using the Docket 

ID Number FMCSA–2005–23315. These 

documents can also be examined and 

copied for a fee at the U.S. Department 

of Transportation, Docket Operations, 

West Building-Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah M. Freund, Vehicle and 

Roadside Operations Division, Office of 

Bus and Truck Standards and 

Operations (MC–PSV), Federal Motor 

Carrier Safety Administration, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590; telephone (202) 366–4325. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

The legal basis of the December 17, 

2008 final rule (73 FR 76794) is also 

applicable to this rule. 

Background 

On December 17, 2008, FMCSA 

published a final rule adopting 

regulations to implement section 4118 

of the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU) (Pub. 

L. 109–59, 119 Stat. 1144, 1729, August 

10, 2005). The regulations require IEPs 

to register and file with FMCSA an 

Intermodal Equipment Provider 

Identification Report (Form MCS–150C); 

establish a systematic inspection, repair, 

and maintenance program to ensure the 

safe operating condition of each 

intermodal chassis; maintain 

documentation of their maintenance 

program; and provide a means to 

effectively respond to driver and motor 

carrier reports about intermodal chassis 

mechanical defects and deficiencies. 

The regulations also require IEPs to 

mark each intermodal chassis offered for 

transportation in interstate commerce 

with a U.S. Department of 

Transportation (USDOT) identification 

number. These regulations, for the first 

time, made IEPs subject to the Federal 

Motor Carrier Safety Regulations 

(FMCSRs), and called for shared safety 

responsibility among IEPs, motor 

carriers, and drivers. Additionally, 

FMCSA adopted inspection 

requirements for motor carriers and 

drivers operating IME. Improved 

maintenance is expected to result in 

fewer chassis being placed out-ofservice and fewer breakdowns involving 

intermodal chassis, thus improving the 

Nation’s intermodal transportation 

system. Because inadequately 

maintained intermodal chassis create 

risks for crashes, the regulations help 

ensure that commercial motor vehicle 

(CMV) operations are safer. 

On December 29, 2009, FMCSA 

amended the December 2008 final rule 

to: (1) Create an additional marking 

option for identifying the IEP 

responsible for the inspection, repair, 

and maintenance of items of IME in 

response to a petition for 

reconsideration from the Intermodal 

Association of North America (IANA); 

(2) clarify regulatory text and correct an 

inadvertent error in response to a 

petition for reconsideration from 

OCEMA; and (3) extend the deadline for 

IEPs, motor carriers, and drivers 

operating IME to comply with certain 

provisions pertaining to driver-vehicle 

inspections in response to a petition 

filed by OCEMA (74 FR 68703). 

OCEMA/IICL Petition 

On March 31, 2010, OCEMA and IICL 

submitted a joint petition to FMCSA 

requesting the repeal of the provision in 

§ 390.42(b) of the FMCSRs that requires 

motor carriers to prepare and transmit a 

DVIR to the IEP at the time the IME is 

returned to the IEP even when no 

damage, defects, or deficiencies are 

noted (hereafter referred to as a ‘‘nodefect DVIR’’). The petitioners contend 

that requiring the preparation and 

transmittal of these no-defect DVIRs 

imposes an undue burden on drivers, 

motor carriers, IEPs, and intermodal 

facilities nationwide. The petitioners 

estimate that a no-defect DVIR 

requirement will necessitate the 

completion, transmission, review, and 

retention of over 38 million unnecessary 

reports annually. In fact, the petitioners 

believe that the added administrative 

burdens of the requirement to file nodefect DVIRs actually could undermine 

the goal of safe IME. A copy of the 

petition has been placed in the docket 

referenced at the beginning of this 

notice. 

The petitioners presented four 

arguments against the DVIR element of 

the current rule: 

• SAFETEA–LU only requires DVIRs 

for known damage or defects. Congress 

could have added a requirement to file 

no-defect DVIRs but did not do so. As 

such, the regulatory imposition of nodefect DVIRs is not required by law and 


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