FMCSA Policy on Considering the Preventability of Crashes in Administrative Review Requests of Hazardous Materials Safety Permit Denials Based Upon Crash Rates in the Top 30 Percent of the National Average Under 49 CFR 385.407, 53383-53384 [E8-21563]
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Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations
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BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 385
FMCSA Policy on Considering the
Preventability of Crashes in
Administrative Review Requests of
Hazardous Materials Safety Permit
Denials Based Upon Crash Rates in
the Top 30 Percent of the National
Average Under 49 CFR 385.407
Background
Federal Motor Carrier Safety
Administration (FMCSA).
ACTION: Notice of enforcement policy.
AGENCY:
SUMMARY: FMCSA may not issue a
hazardous materials safety permit
(safety permit) to a motor carrier that
has a crash rate, driver, vehicle or
hazardous material out-of-service rate in
the top 30 percent of the national
average pursuant to 49 CFR 385.407.
This document provides notice of
FMCSA policy that it will consider
preventability when a motor carrier
contests the denial of a safety permit
based upon a crash rate in the top thirty
percent of the national average and
presents compelling evidence that one
or more of the crashes listed in the
Motor Carrier Management Information
System (MCMIS) was not preventable
and thus not reflective of the motor
carrier’s suitability to transport the type
and quantity of hazardous materials that
require a safety permit. Preventability is
determined by the following standard: If
a driver who exercises normal judgment
and foresight could have foreseen the
possibility of the accident that in fact
occurred, and avoided it by taking steps
within his/her control which would not
have risked causing another kind of
mishap, the accident was preventable.
FMCSA currently uses this standard in
evaluating accident factors under its
safety rating process.
DATES: Effective Date: September 16,
2008.
ebenthall on PROD1PC60 with RULES
FOR FURTHER INFORMATION CONTACT:
James O. Simmons, Office of
Enforcement and Compliance,
Hazardous Materials Division, 1200
New Jersey Avenue, SE., Washington,
DC 20590, (202) 493–0496 (voice),
james.simmons@dot.gov (e-mail), Debra
S. Straus, Office of the Chief Counsel,
(202) 366–2266 (voice), or
debra.straus@dot.gov (e-mail).
VerDate Aug<31>2005
14:22 Sep 15, 2008
On June
30, 2004, FMCSA issued a Final Rule
containing the regulations
implementing the safety permit
program. 69 FR 39350. The Final Rule,
codified at 49 CFR part 385, identifies
who must hold a safety permit,
establishes the application process for a
safety permit, and the conditions that
must be satisfied before FMCSA will
issue a safety permit to a carrier. These
conditions are set out in 49 CFR
385.407.
SUPPLEMENTARY INFORMATION:
[FR Doc. E8–21303 Filed 9–15–08; 8:45 am]
Jkt 214001
Section 385.407 requires that a carrier
have a ‘‘Satisfactory’’ safety rating,
certify that it has a satisfactory security
program, and be properly registered
with the Pipeline and Hazardous
Materials Safety Administration
(PHMSA). 49 CFR 385.407(a)(1),
385.407(b) & (c). Section 385.407(a)(2)
additionally states that:
FMCSA will not issue a safety permit to a
motor carrier that: (ii) Has a crash rate in the
top 30 percent of the national average as
indicated in the FMCSA Motor Carrier
Management Information System (MCMIS);
or
(iii) Has a driver, vehicle, hazardous
materials, or total out-of-service rate in the
top 30 percent of the national average as
indicated in the MCMIS;
The safety permit requirement became
effective for motor carriers on the date
after January 1, 2005, when the motor
carrier was required to file a Motor
Carrier Identification Report Form
(MCS–150) according to a schedule set
forth in 49 CFR 390.19(a). The
application for the safety permit was
incorporated into the MCS–150, as an
expanded form entitled ‘‘MCS–150B or
Combined Motor Carrier Identification
Report and HM Permit Application.’’
On or about January 3, 2005, the
Office of Enforcement and Compliance
(OEC) published on its public Web site 1
the formula used to determine the
national averages and the crash rates
and driver, vehicle and hazmat out-ofservice (OOS) rates that establish the
thresholds for the ‘‘top 30 percent of the
national average.’’ The Web site also
instructed motor carriers on how to
calculate their own out-of-service rates.
This information on calculating the
national averages, crash rates and outof-service rates was subsequently
published in the Federal Register. 72 FR
62795 (Nov. 7, 2007).
Crash Rates
FMCSA may not issue a safety permit
to a motor carrier that has a crash rate
1 https://www.safersys.org/
HazMatRatesPost.aspx#OOSRates.
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
53383
in the top 30 percent of the national
average as indicated in the MCMIS. 49
CFR 385.407(a)(2)(ii). The threshold
crash rate above which a carrier falls
within the worst performing or top
thirty percent of the national average is
recalculated every two years using the
crash data from the previous two years.
The cut-off for motor carrier crash rates
above which a carrier will fall into the
top 30 percent of the national average
has remained at 0.125 since the
inception of the program.
To determine the crash rate for an
individual carrier that is applying for a
safety permit, FMCSA examines one
year of crash data. FMCSA divides the
number of crashes for the previous
twelve-month period by the total
number of power units that the motor
carrier operated during that twelvemonth period. For example, if a motor
carrier had 2 crashes and 10 power
units, the crash rate would be 0.20
based upon a calculation of (2 ÷ 10 =
0.20). FMCSA examines one year of data
to remain consistent with FMCSA
practice of reviewing one year of records
during a compliance review. FMCSA
does not consider a single crash to be
statistically valid. Thus, crash rates will
be calculated only for carriers with more
than one crash in the relevant twelvemonth period.
Preventability
Petitions for rulemaking filed by the
Institute of Makers of Explosives and
The Fertilizer Institute requested the
Agency to consider crash preventability
when evaluating a motor carrier’s crash
rate under the safety permit program, in
the same manner that accident
preventability is considered when a
motor carrier contests an unfavorable
safety rating. In the Agency’s response
to these petitions issued on June 21,
2007, the FMCSA Administrator agreed
that the same preventability criteria
used in assessing the ‘‘Accident Factor’’
under 49 CFR part 385, Appendix
A.III.B(d), should be applied when a
carrier contests denial of a safety permit
application based upon its crash rate
and provides compelling evidence a
crash was not preventable.
The preventability standard found in
Appendix A to Part 385, section III.B(d)
states:
The FMCSA will continue to consider
preventability when a new entrant contests
the evaluation of the accident factor by
presenting compelling evidence that the
recordable rate is not a fair means of
evaluating its accident factor. Preventability
will be determined according to the following
standard: ‘‘If a driver who exercises normal
judgment and foresight could have foreseen
the possibility of the accident that in fact
E:\FR\FM\16SER1.SGM
16SER1
53384
Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations
occurred, and avoided it by taking steps
within his/her control which would not have
risked causing another kind of mishap, the
accident was preventable.’’ (Emphasis
added.)
ebenthall on PROD1PC60 with RULES
The intent of the safety permit
program is to hold motor carriers that
transport permitted materials to a higher
safety standard due to the potential risks
associated with transportation of these
high-risk hazardous materials. In
applying this standard to the safety
fitness rating process, FMCSA
recognizes that crashes in which the
motor carrier’s driver was not at fault
and could not have reasonably avoided
without further risk, should not
adversely reflect on the safety fitness of
the motor carrier. Similarly, denial of a
safety permit based upon crashes which
were not preventable, does not have a
reasonable correlation to the safety
standard required under the safety
permit program.
In the safety rating context, FMCSA
considers preventability when the
carrier contests the evaluation of the
accident factor by presenting
compelling evidence that the recordable
rate is not a fair means of evaluating the
carrier’s fitness under the accident
factor. Similarly, FMCSA will consider
preventability of crashes under the
safety permit program. When a carrier
contests the denial of its safety permit
application based upon a crash rate that
falls into the top thirty percent of the
national average and submits
compelling evidence that a crash or
crashes listed in the MCMIS were not
preventable, it should not be included
in the crash rate calculation. The
preventability standard that will be
applied is the same standard that is
used in the safety rating context.
Preventability Policy Procedures
Accordingly, FMCSA is implementing
the following policy procedures: If a
motor carrier’s safety permit application
is denied based upon a crash rate greater
that the safety permit program crash rate
threshold, the carrier may submit
evidence to show that one or more
crashes were not preventable. In order
to preserve the right to seek
administrative review of FMCSA’s
determination on the preventability of
one or more crashes, the carrier should
submit such evidence as part of a
request for administrative review
pursuant to § 385.423(c). The carrier
should submit the request to FMCSA’s
Chief Safety Officer (CSO) and the
Office of Chief Counsel, and must
include adequate proof that the crash or
crashes in question were not
preventable. The standard for
determining preventability is the same
VerDate Aug<31>2005
14:22 Sep 15, 2008
Jkt 214001
as the standard found in Appendix A to
Part 385:
If a driver who exercises normal judgment
and foresight could have foreseen the
possibility of the accident that in fact
occurred, and avoided it by taking steps
within his/her control which would not have
risked causing another kind of mishap, the
accident was preventable.
It is incumbent upon the carrier to
provide reliable and objective evidence
that the accident was not preventable.
Such evidence may include but is not
limited to police reports and other
verifiable government reports or law
enforcement and witness statements.
The issue of whether a crash was or was
not preventable under the above-stated
standard will be initially addressed by
the FMCSA Office of Enforcement and
Compliance, Hazardous Materials
Division in consultation with the Office
of Chief Counsel, Enforcement and
Litigation Division. If the initial
determination results in a finding that
one or more crashes were not
preventable, the safety permit
application will be reprocessed with the
relevant crash or crashes removed from
consideration in the crash rate
calculation. If removal of the crash(es)
results in a crash rate calculation that
falls below the crash rate cut-off for the
top 30 percent of the national average
and no other disqualifying factors exist,
FMCSA will issue a safety permit to the
carrier. If the Office of Enforcement and
the Office of Chief Counsel determine
that the evidence submitted does not
support a finding that the crash or
crashes were preventable, the motor
carrier may pursue its request for
administrative review by the Chief
Safety Officer of the denial of its safety
permit application based upon its crash
rate. The request for administrative
review must have been timely filed and
served in accordance with the
requirements of 49 CFR 385.423.
Issued on: September 10, 2008.
John H. Hill,
Administrator.
[FR Doc. E8–21563 Filed 9–15–08; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 605
[Docket No. FTA–2008–0015]
Final Policy Statement on FTA’s
School Bus Operations Regulations
Federal Transit Administration
(FTA), DOT.
AGENCY:
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
ACTION:
Final policy statement.
SUMMARY: Through this notice, the
Federal Transit Administration (FTA)
clarifies its policy with respect to its
interpretation of ‘‘tripper service’’ and
‘‘school bus operations’’ under 49 CFR
part 605.
DATE: Effective Date: The effective date
of this final policy statement is
September 16, 2008.
ADDRESSES: Availability of the Final
Policy Statement and Comments: One
may access this final policy statement,
the proposed policy statement, and
public comments on the proposed
policy statement at docket number
FTA–2008–0015. For access to the
docket, please visit https://
www.regulations.gov or the Docket
Operations office located in the West
Building of the U.S. Department of
Transportation, Room W12–140, 1200
New Jersey Avenue, SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
Michael L. Culotta, Attorney, Office of
Chief Counsel, Federal Transit
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., 5th Floor—East Building,
Washington, DC 20590. E-mail:
Michael.Culotta@dot.gov. Telephone:
(202) 366–1936.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
On May 19, 2008, FTA issued a
Notice of Proposed Policy Statement on
FTA’s School Bus Operations
Regulations 1 to provide guidance in the
context of the recent decision of the
United States District Court for the
Western District of New York in
Rochester-Genesee Regional
Transportation Authority v. HynesCherin.2 As of August 6, 2008, FTA
received approximately 510 comments
on its proposed policy statement.
In the final policy set forth below,
FTA clarifies its guidance regarding
FTA’s interpretation of its school bus
operations regulations. FTA shall
construe the term ‘‘tripper service,’’ as
it has historically, to include
modifications to fare collection or
subsidy systems, modifications to the
frequency of service, and de minimus
route alterations from route paths in the
immediate vicinity of schools to stops
1 73
FR 28,790 (May 19, 2008).
F.Supp.2d 494, 507 (W.D.N.Y. 2008) (setting
aside FTA’s interpretation of its school bus
operations regulations under 49 CFR part 605).
2 531
E:\FR\FM\16SER1.SGM
16SER1
Agencies
[Federal Register Volume 73, Number 180 (Tuesday, September 16, 2008)]
[Rules and Regulations]
[Pages 53383-53384]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21563]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
FMCSA Policy on Considering the Preventability of Crashes in
Administrative Review Requests of Hazardous Materials Safety Permit
Denials Based Upon Crash Rates in the Top 30 Percent of the National
Average Under 49 CFR 385.407
AGENCY: Federal Motor Carrier Safety Administration (FMCSA).
ACTION: Notice of enforcement policy.
-----------------------------------------------------------------------
SUMMARY: FMCSA may not issue a hazardous materials safety permit
(safety permit) to a motor carrier that has a crash rate, driver,
vehicle or hazardous material out-of-service rate in the top 30 percent
of the national average pursuant to 49 CFR 385.407. This document
provides notice of FMCSA policy that it will consider preventability
when a motor carrier contests the denial of a safety permit based upon
a crash rate in the top thirty percent of the national average and
presents compelling evidence that one or more of the crashes listed in
the Motor Carrier Management Information System (MCMIS) was not
preventable and thus not reflective of the motor carrier's suitability
to transport the type and quantity of hazardous materials that require
a safety permit. Preventability is determined by the following
standard: If a driver who exercises normal judgment and foresight could
have foreseen the possibility of the accident that in fact occurred,
and avoided it by taking steps within his/her control which would not
have risked causing another kind of mishap, the accident was
preventable. FMCSA currently uses this standard in evaluating accident
factors under its safety rating process.
DATES: Effective Date: September 16, 2008.
FOR FURTHER INFORMATION CONTACT: James O. Simmons, Office of
Enforcement and Compliance, Hazardous Materials Division, 1200 New
Jersey Avenue, SE., Washington, DC 20590, (202) 493-0496 (voice),
james.simmons@dot.gov (e-mail), Debra S. Straus, Office of the Chief
Counsel, (202) 366-2266 (voice), or debra.straus@dot.gov (e-mail).
SUPPLEMENTARY INFORMATION: On June 30, 2004, FMCSA issued a Final Rule
containing the regulations implementing the safety permit program. 69
FR 39350. The Final Rule, codified at 49 CFR part 385, identifies who
must hold a safety permit, establishes the application process for a
safety permit, and the conditions that must be satisfied before FMCSA
will issue a safety permit to a carrier. These conditions are set out
in 49 CFR 385.407.
Background
Section 385.407 requires that a carrier have a ``Satisfactory''
safety rating, certify that it has a satisfactory security program, and
be properly registered with the Pipeline and Hazardous Materials Safety
Administration (PHMSA). 49 CFR 385.407(a)(1), 385.407(b) & (c). Section
385.407(a)(2) additionally states that:
FMCSA will not issue a safety permit to a motor carrier that:
(ii) Has a crash rate in the top 30 percent of the national average
as indicated in the FMCSA Motor Carrier Management Information
System (MCMIS); or
(iii) Has a driver, vehicle, hazardous materials, or total out-
of-service rate in the top 30 percent of the national average as
indicated in the MCMIS;
The safety permit requirement became effective for motor carriers
on the date after January 1, 2005, when the motor carrier was required
to file a Motor Carrier Identification Report Form (MCS-150) according
to a schedule set forth in 49 CFR 390.19(a). The application for the
safety permit was incorporated into the MCS-150, as an expanded form
entitled ``MCS-150B or Combined Motor Carrier Identification Report and
HM Permit Application.''
On or about January 3, 2005, the Office of Enforcement and
Compliance (OEC) published on its public Web site \1\ the formula used
to determine the national averages and the crash rates and driver,
vehicle and hazmat out-of-service (OOS) rates that establish the
thresholds for the ``top 30 percent of the national average.'' The Web
site also instructed motor carriers on how to calculate their own out-
of-service rates. This information on calculating the national
averages, crash rates and out-of-service rates was subsequently
published in the Federal Register. 72 FR 62795 (Nov. 7, 2007).
---------------------------------------------------------------------------
\1\ https://www.safersys.org/HazMatRatesPost.aspx#OOSRates.
---------------------------------------------------------------------------
Crash Rates
FMCSA may not issue a safety permit to a motor carrier that has a
crash rate in the top 30 percent of the national average as indicated
in the MCMIS. 49 CFR 385.407(a)(2)(ii). The threshold crash rate above
which a carrier falls within the worst performing or top thirty percent
of the national average is recalculated every two years using the crash
data from the previous two years. The cut-off for motor carrier crash
rates above which a carrier will fall into the top 30 percent of the
national average has remained at 0.125 since the inception of the
program.
To determine the crash rate for an individual carrier that is
applying for a safety permit, FMCSA examines one year of crash data.
FMCSA divides the number of crashes for the previous twelve-month
period by the total number of power units that the motor carrier
operated during that twelve-month period. For example, if a motor
carrier had 2 crashes and 10 power units, the crash rate would be 0.20
based upon a calculation of (2 / 10 = 0.20). FMCSA examines one year of
data to remain consistent with FMCSA practice of reviewing one year of
records during a compliance review. FMCSA does not consider a single
crash to be statistically valid. Thus, crash rates will be calculated
only for carriers with more than one crash in the relevant twelve-month
period.
Preventability
Petitions for rulemaking filed by the Institute of Makers of
Explosives and The Fertilizer Institute requested the Agency to
consider crash preventability when evaluating a motor carrier's crash
rate under the safety permit program, in the same manner that accident
preventability is considered when a motor carrier contests an
unfavorable safety rating. In the Agency's response to these petitions
issued on June 21, 2007, the FMCSA Administrator agreed that the same
preventability criteria used in assessing the ``Accident Factor'' under
49 CFR part 385, Appendix A.III.B(d), should be applied when a carrier
contests denial of a safety permit application based upon its crash
rate and provides compelling evidence a crash was not preventable.
The preventability standard found in Appendix A to Part 385,
section III.B(d) states:
The FMCSA will continue to consider preventability when a new
entrant contests the evaluation of the accident factor by presenting
compelling evidence that the recordable rate is not a fair means of
evaluating its accident factor. Preventability will be determined
according to the following standard: ``If a driver who exercises
normal judgment and foresight could have foreseen the possibility of
the accident that in fact
[[Page 53384]]
occurred, and avoided it by taking steps within his/her control
which would not have risked causing another kind of mishap, the
accident was preventable.'' (Emphasis added.)
The intent of the safety permit program is to hold motor carriers
that transport permitted materials to a higher safety standard due to
the potential risks associated with transportation of these high-risk
hazardous materials. In applying this standard to the safety fitness
rating process, FMCSA recognizes that crashes in which the motor
carrier's driver was not at fault and could not have reasonably avoided
without further risk, should not adversely reflect on the safety
fitness of the motor carrier. Similarly, denial of a safety permit
based upon crashes which were not preventable, does not have a
reasonable correlation to the safety standard required under the safety
permit program.
In the safety rating context, FMCSA considers preventability when
the carrier contests the evaluation of the accident factor by
presenting compelling evidence that the recordable rate is not a fair
means of evaluating the carrier's fitness under the accident factor.
Similarly, FMCSA will consider preventability of crashes under the
safety permit program. When a carrier contests the denial of its safety
permit application based upon a crash rate that falls into the top
thirty percent of the national average and submits compelling evidence
that a crash or crashes listed in the MCMIS were not preventable, it
should not be included in the crash rate calculation. The
preventability standard that will be applied is the same standard that
is used in the safety rating context.
Preventability Policy Procedures
Accordingly, FMCSA is implementing the following policy procedures:
If a motor carrier's safety permit application is denied based upon a
crash rate greater that the safety permit program crash rate threshold,
the carrier may submit evidence to show that one or more crashes were
not preventable. In order to preserve the right to seek administrative
review of FMCSA's determination on the preventability of one or more
crashes, the carrier should submit such evidence as part of a request
for administrative review pursuant to Sec. 385.423(c). The carrier
should submit the request to FMCSA's Chief Safety Officer (CSO) and the
Office of Chief Counsel, and must include adequate proof that the crash
or crashes in question were not preventable. The standard for
determining preventability is the same as the standard found in
Appendix A to Part 385:
If a driver who exercises normal judgment and foresight could
have foreseen the possibility of the accident that in fact occurred,
and avoided it by taking steps within his/her control which would
not have risked causing another kind of mishap, the accident was
preventable.
It is incumbent upon the carrier to provide reliable and objective
evidence that the accident was not preventable. Such evidence may
include but is not limited to police reports and other verifiable
government reports or law enforcement and witness statements. The issue
of whether a crash was or was not preventable under the above-stated
standard will be initially addressed by the FMCSA Office of Enforcement
and Compliance, Hazardous Materials Division in consultation with the
Office of Chief Counsel, Enforcement and Litigation Division. If the
initial determination results in a finding that one or more crashes
were not preventable, the safety permit application will be reprocessed
with the relevant crash or crashes removed from consideration in the
crash rate calculation. If removal of the crash(es) results in a crash
rate calculation that falls below the crash rate cut-off for the top 30
percent of the national average and no other disqualifying factors
exist, FMCSA will issue a safety permit to the carrier. If the Office
of Enforcement and the Office of Chief Counsel determine that the
evidence submitted does not support a finding that the crash or crashes
were preventable, the motor carrier may pursue its request for
administrative review by the Chief Safety Officer of the denial of its
safety permit application based upon its crash rate. The request for
administrative review must have been timely filed and served in
accordance with the requirements of 49 CFR 385.423.
Issued on: September 10, 2008.
John H. Hill,
Administrator.
[FR Doc. E8-21563 Filed 9-15-08; 8:45 am]
BILLING CODE 4910-EX-P