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[Federal Register: September 16, 2008 (Volume 73, Number 180)]
[Rules and Regulations]
[Page 53383-53384]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se08-8] =======================================================
---------------------------------------------------------- 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\ http://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
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