49 CFR Part 376 — Lease and Interchange of Vehicles

PART 376—LEASE AND INTERCHANGE OF VEHICLES Authority: 49 U.S.C. 13301 and 14102; and 49 CFR 1.87. 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 A—General Applicability and Definitions § 376.1 Applicability. The regulations in this part apply to the following actions by motor carriers registered with the Secretary to transport property under 49 U.S.C. subtitle IV, part B: (a) The leasing of equipment with which to perform transportation regulated by the Secretary. (b) The leasing of equipment to motor private carrier or shippers. (c) The interchange of equipment between for-hire motor carriers in the performance of transportation regulated 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; 81 FR 68346, Oct. 4, 2016] § 376.2 Definitions. (a) Authorized carrier. (b) Equipment. (c) Interchange. (d) Owner. (e) Lease. (f) Lessor. (g) Lessee. (h) Sublease. (i) Addendum. (j) Private carrier. (k) Shipper. (l) Escrow fund. (m) Detention. [44 FR 4681, Jan. 23, 1979, as amended at 49 FR 47850, Dec. 7, 1984; 62 FR 15424, Apr. 1, 1997; 81 FR 68346, Oct. 4, 2016] Subpart B—Leasing Regulations § 376.11 General leasing requirements. Other than through the interchange of equipment as set forth in § 376.31, and under the exemptions set forth in subpart C of these regulations, the authorized carrier may perform authorized transportation in equipment it does not own only under the following conditions: (a) Lease. (b) Receipts for equipment. (1) When possession of the equipment is taken by the authorized carrier, it shall give the owner of the equipment a receipt. (2) When possession of the equipment by the authorized carrier ends, a receipt shall be given in accordance 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 possession of leased equipment and give and receive the receipts required under this subsection. (c) Identification of equipment. (1) During the period of the lease, the carrier shall identify the equipment in accordance with the FMCSA's requirements in 49 CFR part 390 of this chapter (Identification of Vehicles). (2) Unless a copy of the lease is carried 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, 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 authorized carrier or its authorized representative. (d) Records of equipment. (1) The authorized carrier shall prepare and keep documents covering each trip for which the equipment is used in its service. These documents shall contain the name and address of the owner of the equipment, the point of origin, the time and date of departure, and the point of final destination. Also, the authorized carrier shall carry documents with the leased equipment during its operation containing this information and identifying the lading and clearly indicating that the transportation is under its responsibility. These documents shall be preserved by the authorized carrier as part of its transportation records. Leases which contain the information required by the provisions in this paragraph may be used and retained instead of such documents. As to lease agreements negotiated under 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 of 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, 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; 78 FR 58479, Sept. 24, 2013; 83 FR 16224, Apr. 16, 2018] § 376.12 Lease requirements. Except as provided in the exemptions set forth in subpart C of this part, the written lease required under § 376.11(a) shall contain the following provisions. The required lease provisions shall be adhered to and performed by the authorized carrier. (a) Parties. (b) Duration to be specific. (c) Exclusive possession and responsibilities. (2) Provision may be made in the lease for considering the authorized carrier lessee as the owner of the equipment for the purpose of subleasing it under these regulations to other authorized carriers during the lease. (3) When an authorized carrier of household goods leases equipment for the transportation of household goods, as defined by the Secretary, the parties may provide in the lease that the provisions 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) Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements. (d) Compensation to be specified. (e) Items specified in lease. (f) Payment period. (g) Copies of freight bill or other form of freight documentation. (h) Charge-back items. (i) Products, equipment, or services from authorized carrier. (j) Insurance. (2) If the lessor purchases any insurance coverage for the operation of the leased equipment from or through the authorized carrier, the lease shall specify that the authorized carrier will provide the lessor with a copy of each policy upon the request of the lessor. Also, where the lessor purchases such insurance in this manner, the lease shall specify that the authorized carrier will provide the lessor with a certificate of insurance for each such policy. Each certificate of insurance shall include the name of the insurer, the policy number, the effective dates of the policy, the amounts and types of coverage, the cost to the lessor for each type of coverage, and the deductible amount for each type of coverage for which the lessor may be liable. (3) The lease shall clearly specify the conditions under which deductions for cargo or property damage may be made from the lessor's settlements. The lease shall further specify that the authorized carrier must provide the lessor with a written explanation and itemization of any deductions for cargo or property damage made from any compensation of money owed to the lessor. The written explanation and itemization must be delivered to the lessor before any deductions are made. (k) Escrow funds. (1) The amount of any escrow fund or performance bond required to be paid by the lessor to the authorized carrier or to a third party. (2) The specific items to which the escrow fund can be applied. (3) That while the escrow fund is under the control of the authorized carrier, the authorized carrier shall provide an accounting to the lessor of any transactions involving such fund. The carrier shall perform this accounting in one of the following ways: (i) By clearly indicating in individual settlement sheets the amount and description of any deduction or addition made to the escrow fund; or (ii) By providing a separate accounting to the lessor of any transactions involving the escrow fund. This separate accounting shall be done on a monthly basis. (4) The right of the lessor to demand to have an accounting for transactions involving the escrow fund at any time. (5) That while the escrow fund is under the control of the carrier, the carrier shall pay interest on the escrow fund on at least a quarterly basis. For purposes of calculating the balance of the escrow fund on which interest must be paid, the carrier may deduct a sum equal to the average advance made to the individual lessor during the period of time for which interest is paid. The interest rate shall be established on the date the interest period begins and shall be at least equal to the average yield or equivalent coupon issue yield on 91-day, 13-week Treasury bills as established in the weekly auction by the Department of Treasury. (6) The conditions the lessor must fulfill in order to have the escrow fund returned. At the time of the return of the escrow fund, the authorized carrier may deduct monies for those obligations incurred by the lessor which have been previously specified in the lease, and shall provide a final accounting to the lessor of all such final deductions made to the escrow fund. The lease shall further specify that in no event shall the escrow fund be returned later than 45 days from the date of termination. (l) Copies of the lease. (m) This paragraph applies to owners who are not agents but whose equipment is used by an agent of an authorized carrier in providing transportation on behalf of that authorized carrier. In this situation, the authorized carrier is obligated to ensure that these owners receive all the rights and benefits due an owner under the leasing regulations, especially those set forth in paragraphs (d)-(k) of this section. This is true regardless of whether the lease for the equipment is directly between the authorized carrier and its agent rather than directly between the authorized carrier and each of these owners. The lease between an authorized carrier and its agent shall specify this obligation. [44 FR 4681, Jan. 23, 1979, as amended at 45 FR 13092, Feb. 28, 1980; 47 FR 28398, June 30, 1982; 47 FR 51140, Nov. 12, 1982; 47 FR 54083, Dec. 1, 1982; 49 FR 47851, Dec. 7, 1984; 51 FR 37406, 37407, Oct. 22, 1986; 52 FR 2412, Jan. 22, 1987; 57 FR 32905, July 24, 1992; 62 FR 15424, Apr. 1, 1997; 83 FR 16224, Apr. 16, 2018; 83 FR 24228, May 25, 2018] Subpart C—Exemptions for the Leasing Regulations § 376.21 General exemptions. Except for § 376.11(c) which requires the identification of equipment, the leasing regulations in this part shall not apply to: (a) Equipment used in substituted motor-for-rail transportation of railroad freight moving between points that are railroad stations and on railroad billing. (b) Equipment used in transportation performed exclusively within any commercial zone as defined by the Secretary. (c) Equipment leased without drivers from a person who is principally engaged in such a business. (d) Any type of trailer not drawn by a power unit leased from the same lessor. [44 FR 4681, Jan. 23, 1979. Redesignated at 61 FR 54707, Oct. 21, 1996, as amended at 62 FR 15424, Apr. 1, 1997] § 376.22 Exemption for private carrier leasing and leasing between authorized carriers. Regardless of the leasing regulations set forth in this part, an authorized carrier may lease equipment to or from another authorized carrier, or a private carrier may lease equipment to an authorized carrier under the following conditions: (a) The identification of equipment requirements in § 376.11(c) must be complied with; (b) The lessor must own the equipment or hold it under a lease; (c) There must be a written agreement between the authorized carriers or between the private carrier and authorized carrier, as the case may be, concerning the equipment as follows: (1) It must be signed by the parties or their authorized representatives. (2) It must provide that control and responsibility for the operation of the equipment shall be that of the lessee from the time possession is taken by the lessee and the receipt required under § 376.11(b) is given to the lessor until: (i) Possession of the equipment is returned to the lessor and the receipt required under § 376.11(b) is received by the authorized carrier; or (ii) In the event that the agreement is between authorized carriers, possession of the equipment is returned to the lessor or given to another authorized carrier in an interchange of equipment. (3) A copy of the agreement must be carried in the equipment while it is in the possession of the lessee. (4) Nothing in this section shall prohibit the use, by authorized carriers, private carriers, and all other entities conducting lease operations pursuant to this section, of a master lease if a copy of that master lease is carried in the equipment while it is in the possession of the lessee, and if the master lease complies with the provisions of this section and receipts are exchanged in accordance with § 376.11(b), and if records of the equipment are prepared and maintained in accordance with § 376.11(d). (d) Authorized and private carriers under common ownership and control may lease equipment to each other under this section without complying with the requirements of paragraph (a) of this section pertaining to identification of equipment, and the requirements of paragraphs (c)(2) and (c)(4) of this section pertaining to equipment receipts. The leasing of equipment between such carriers will be subject to all other requirements of this section. [49 FR 9570, Mar. 14, 1984, as amended at 49 FR 47269, Dec. 3, 1984; 49 FR 47851, Dec. 7, 1984; 62 FR 15424, Apr. 1, 1997; 63 FR 40838, July 31, 1998] § 376.26 Exemption for leases between authorized carriers and their agents. The leasing regulations set forth in § 376.12(e) through (l) do not apply to leases between authorized carriers and their agents. [47 FR 28398, June 30, 1982, as amended at 62 FR 15424, Apr. 1, 1997] Subpart D—Interchange Regulations § 376.31 Interchange of equipment. Authorized for-hire motor carriers may interchange equipment under the following conditions: (a) Interchange agreement. (b) Operating authority. (c) Through bills of lading. (d) Identification of equipment. (1) The authorized for-hire motor carrier shall identify power units in accordance with FMCSA's requirements in 49 CFR part 390 (Identification of Vehicles). Before giving up possession of the equipment, the carrier shall remove all identification showing it as the operating carrier. (2) Unless a copy of the interchange agreement is carried on the equipment, the authorized for-hire motor carrier shall carry a statement with each vehicle during interchange service certifying that it is operating the equipment. The statement shall also identify the equipment by company or State registration number and shall show the specific point of interchange, the date and time it assumes responsibility for the equipment, and the use to be made of the equipment. This statement shall be signed by the parties to the interchange agreement or their authorized representatives. The requirements of this paragraph shall not apply where the equipment to be operated in interchange service consists only of trailers or semitrailers. (3) Authorized carriers under common ownership and control may interchange equipment with each other without complying with the requirements of paragraph (d)(1) of this section pertaining to removal of identification from equipment. (e) Connecting carriers considered as owner [44 FR 4681, Jan. 23, 1979. Redesignated at 61 FR 54707, Oct. 21, 1996, as amended at 62 FR 15424, Apr. 1, 1997; 63 FR 40838, July 31, 1998; 81 FR 68346, Oct. 4, 2016] Subpart E—Private Carriers and Shippers § 376.42 Lease of equipment by regulated carriers. Authorized carriers may lease equipment and drivers from private carriers, for periods of less than 30 days, in the manner set forth in § 376.22. [49 FR 9570, Mar. 14, 1984, as amended at 51 FR 37034, Oct. 17, 1986; 62 FR 15424, Apr. 1, 1997]

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