DOT 49 CFR PART 376-2010 LEASE AND INTERCHANGE OF VEHICLES.pdf

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1、130 49 CFR Ch. III (10110 Edition) Pt. 376 later), and (1) the mover did not advise you during the claim settlement process of the availability of arbitration as a means for re-solving the dispute; (2) a decision was not rendered through arbitration within the time required by law; or (3) you are in

2、sti-tuting a court action to enforce an arbitra-tion decision with which the mover has not complied. While the Federal Government maintains regulations governing the processing of loss and damage claims (49 CFR part 370), it can-not resolve those claims. If you cannot settle a claim with the mover,

3、you may file a civil action to recover your claim in court under 49 U.S.C. 14706. You may obtain the name and address of the movers agent for service of legal process in your State by contacting the Federal Motor Carrier Safety Adminis-tration. You may also obtain the name of a process agent via the

4、 Internet. Go to http./ www.fmcsa.dot.gov then click on Licensing and Insurance (L and 49 CFR 1.73. SOURCE: 44 FR 4681, Jan. 23, 1979, unless otherwise noted. Redesignated at 61 FR 54707, Oct. 21, 1996. EDITORIAL NOTE: Nomenclature changes to part 376 appear at 66 FR 49871, Oct. 1, 2001. Subpart AGe

5、neral Applicability and Definitions 376.1 Applicability. The regulations in this part apply to the following actions by motor carriers registered with the Secretary to trans-port property: (a) The leasing of equipment with which to perform transportation regu-lated by the Secretary. (b) The leasing

6、of equipment to motor private carrier or shippers. (c) The interchange of equipment be-tween motor common carriers in the performance of transportation regu-lated by the Secretary. 44 FR 4681, Jan. 23, 1979. Redesignated at 61 FR 54707, Oct. 21, 1996, as amended at 62 FR 15423, Apr. 1, 1997 VerDate

7、Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-131 Federal Motor Carrier Safety Administration, DOT 376.11 376.2 Def

8、initions. (a) Authorized carrier. A person or per-sons authorized to engage in the trans-portation of property as a motor car-rier under the provisions of 49 U.S.C. 13901 and 13902. (b) Equipment. A motor vehicle, straight truck, tractor, semitrailer, full trailer, any combination of these and any o

9、ther type of equipment used by authorized carriers in the transpor-tation of property for hire. (c) Interchange. The receipt of equip-ment by one motor common carrier of property from another such carrier, at a point which both carriers are author-ized to serve, with which to continue a through move

10、ment. (d) Owner. A person (1) to whom title to equipment has been issued, or (2) who, without title, has the right to ex-clusive use of equipment, or (3) who has lawful possession of equipment reg-istered and licensed in any State in the name of that person. (e) Lease. A contract or arrangement in w

11、hich the owner grants the use of equipment, with or without driver, for a specified period to an authorized car-rier for use in the regulated transpor-tation of property, in exchange for compensation. (f) Lessor. In a lease, the party grant-ing the use of equipment, with or with-out driver, to anoth

12、er. (g) Lessee. In a lease, the party ac-quiring the use of equipment with or without driver, from another. (h) Sublease. A written contract in which the lessee grants the use of leased equipment, with or without driver, to another. (i) Addendum. A supplement to an ex-isting lease which is not effec

13、tive until signed by the lessor and lessee. (j) Private carrier. A person, other than a motor carrier, transporting property by motor vehicle in interstate or foreign commerce when (1) the per-son is the owner, lessee, or bailee of the property being transported; and (2) the property is being transp

14、orted for sale, lease, rent, or bailment, or to further a commercial enterprise. (k) Shipper. A person who sends or re-ceives property which is transported in interstate or foreign commerce. (l) Escrow fund. Money deposited by the lessor with either a third party or the lessee to guarantee performan

15、ce, to repay advances, to cover repair ex-penses, to handle claims, to handle li-cense and State permit costs, and for any other purposes mutually agreed upon by the lessor and lessee. (m) Detention. The holding by a con-signor or consignee of a trailer, with or without power unit and driver, beyond

16、 the free time allocated for the ship-ment, under circumstances not attrib-utable to the performance of the car-rier. 44 FR 4681, Jan. 23, 1979, as amended at 49 FR 47850, Dec. 7, 1984; 62 FR 15424, Apr. 1, 1997 Subpart BLeasing Regulations 376.11 General leasing requirements. Other than through the

17、 interchange of equipment as set forth in 376.31, and under the exemptions set forth in subpart C of these regulations, the au-thorized carrier may perform author-ized transportation in equipment it does not own only under the following conditions: (a) Lease. There shall be a written lease granting

18、the use of the equipment and meeting the requirements con-tained in 376.12. (b) Receipts for equipment. Receipts, specifically identifying the equipment to be leased and stating the date and time of day possession is transferred, shall be given as follows: (1) When possession of the equipment is tak

19、en by the authorized carrier, it shall give the owner of the equipment a receipt. The receipt identified in this section may be transmitted by mail, telegraph, or other similar means of communication. (2) When possession of the equipment by the authorized carrier ends, a re-ceipt shall be given in a

20、ccordance with the terms of the lease agreement if the lease agreement requires a receipt. (3) Authorized representatives of the carrier and the owner may take posses-sion of leased equipment and give and receive the receipts required under this subsection. (c) Identification of equipment. The au-th

21、orized carrier acquiring the use of equipment under this section shall identify the equipment as being in its service as follows: VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for Resale

22、No reproduction or networking permitted without license from IHS-,-,-132 49 CFR Ch. III (10110 Edition) 376.12 (1) During the period of the lease, the carrier shall identify the equipment in accordance with the FMCSAs require-ments in 49 CFR part 390 of this chap-ter (Identification of Vehicles). (2

23、) Unless a copy of the lease is car-ried on the equipment, the authorized carrier shall keep a statement with the equipment during the period of the lease certifying that the equipment is being operated by it. The statement shall also specify the name of the owner, the date and length of the lease,

24、any restrictions in the lease relative to the commodities to be transported, and the address at which the original lease is kept by the authorized carrier. This statement shall be prepared by the au-thorized carrier or its authorized rep-resentative. (d) Records of equipment. The author-ized carrier

25、 using equipment leased under this section shall keep records of the equipment as follows: (1) The authorized carrier shall pre-pare and keep documents covering each trip for which the equipment is used in its service. These documents shall con-tain the name and address of the owner of the equipment

26、, the point of origin, the time and date of departure, and the point of final destination. Also, the au-thorized carrier shall carry papers with the leased equipment during its oper-ation containing this information and identifying the lading and clearly indi-cating that the transportation is under

27、its responsibility. These papers shall be preserved by the authorized carrier as part of its transportation records. Leases which contain the information required by the provisions in this para-graph may be used and retained instead of such documents or papers. As to lease agreements negotiated unde

28、r a master lease, this provision is complied with by having a copy of a master lease in the unit of equipment in question and where the balance f documentation called for by this paragraph is included in the freight documents prepared for the specific movement. (2) Reserved 44 FR 4681, Jan. 23, 1979

29、, as amended at 49 FR 47269, Dec. 3, 1984; 49 FR 47850, Dec. 7, 1984; 50 FR 24649, June 12, 1985; 51 FR 37406, Oct. 22, 1986; 62 FR 15424, Apr. 1, 1997 376.12 Written lease requirements. Except as provided in the exemptions set forth in subpart C of this part, the written lease required under 376.11

30、(a) shall contain the following provisions. The required lease provisions shall be adhered to and performed by the au-thorized carrier. (a) Parties. The lease shall be made between the authorized carrier and the owner of the equipment. The lease shall be signed by these parties or by their authorize

31、d representatives. (b) Duration to be specific. The lease shall specify the time and date or the circumstances on which the lease be-gins and ends. These times or cir-cumstances shall coincide with the times for the giving of receipts re-quired by 376.11(b). (c) Exclusive possession and responsibil-

32、ities. (1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further pro-vide that the authorized carrier lessee shall assume complete responsibility for the operation of the eq

33、uipment for the duration of the lease. (2) Provision may be made in the lease for considering the authorized carrier lessee as the owner of the equipment for the purpose of sub-leasing it under these regulations to other authorized carriers during the lease. (3) When an authorized carrier of househo

34、ld goods leases equipment for the transportation of household goods, as defined by the Secretary, the parties may provide in the lease that the pro-visions required by paragraph (c)(1) of this section apply only during the time the equipment is operated by or for the authorized carrier lessee. (4) N

35、othing in the provisions required by paragraph (c)(1) of this section is in-tended to affect whether the lessor or driver provided by the lessor is an inde-pendent contractor or an employee of the authorized carrier lessee. An inde-pendent contractor relationship may exist when a carrier lessee comp

36、lies with 49 U.S.C. 14102 and attendant ad-ministrative requirements. (d) Compensation to be specified. The amount to be paid by the authorized VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHS

37、Not for ResaleNo reproduction or networking permitted without license from IHS-,-,-133 Federal Motor Carrier Safety Administration, DOT 376.12 carrier for equipment and drivers serv-ices shall be clearly stated on the face of the lease or in an addendum which is attached to the lease. Such lease or

38、ad-dendum shall be delivered to the lessor prior to the commencement of any trip in the service of the authorized carrier. An authorized representative of the lessor may accept these documents. The amount to be paid may be ex-pressed as a percentage of gross rev-enue, a flat rate per mile, a variabl

39、e rate depending on the direction trav-eled or the type of commodity trans-ported, or by any other method of com-pensation mutually agreed upon by the parties to the lease. The compensation stated on the lease or in the attached addendum may apply to equipment and drivers services either separately

40、or as a combined amount. (e) Items specified in lease. The lease shall clearly specify which party is re-sponsible for removing identification devices from the equipment upon the termination of the lease and when and how these devices, other than those painted directly on the equipment, will be retu

41、rned to the carrier. The lease shall clearly specify the manner in which a receipt will be given to the au-thorized carrier by the equipment owner when the latter retakes posses-sion of the equipment upon termi-nation of the lease agreement, if a re-ceipt is required at all by the lease. The lease s

42、hall clearly specify the re-sponsibility of each party with respect to the cost of fuel, fuel taxes, empty mileage, permits of all types, tolls, fer-ries, detention and accessorial services, base plates and licenses, and any un-used portions of such items. The lease shall clearly specify who is resp

43、onsible for loading and unloading the property onto and from the motor vehicle, and the compensation, if any, to be paid for this service. Except when the violation results from the acts or omissions of the lessor, the authorized carrier lessee shall assume the risks and costs of fines for overweigh

44、t and oversize trail-ers when the trailers are pre-loaded, sealed, or the load is containerized, or when the trailer or lading is otherwise outside of the lessors control, and for improperly permitted overdimension and overweight loads and shall reim-burse the lessor for any fines paid by the lessor

45、. If the authorized carrier is authorized to receive a refund or a credit for base plates purchased by the lessor from, and issued in the name of, the authorized carrier, or if the base plates are authorized to be sold by the authorized carrier to another lessor the authorized carrier shall refund t

46、o the initial lessor on whose behalf the base plate was first obtained a prorated share of the amount received. (f) Payment period. The lease shall specify that payment to the lessor shall be made within 15 days after sub-mission of the necessary delivery docu-ments and other paperwork concerning a

47、trip in the service of the authorized carrier. The paperwork required before the lessor can receive payment is lim-ited to log books required by the De-partment of Transportation and those documents necessary for the author-ized carrier to secure payment from the shipper. In addition, the lease may

48、provide that, upon termination of the lease agreement, as a condition prece-dent to payment, the lessor shall re-move all identification devices of the authorized carrier and, except in the case of identification painted directly on equipment, return them to the car-rier. If the identification devic

49、e has been lost or stolen, a letter certifying its removal will satisfy this require-ment. Until this requirement is com-plied with, the carrier may withhold final payment. The authorized carrier may require the submission of addi-tional documents by the lessor but not as a prerequisite to payment. Payment to the lessor shall not be made contin-gent upon submission of a bill of lading to which no exceptions have been taken. The authorized carrier shall not set time