[Federal Register Volume 73, Number 180 (Tuesday, September 16, 2008)]
[Rules and Regulations]
[Pages 53383-53384]
From the Federal Register Online via the Government Publishing 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.

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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), 
[email protected] (e-mail), Debra S. Straus, Office of the Chief 
Counsel, (202) 366-2266 (voice), or [email protected] (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).
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    \1\ http://www.safersys.org/HazMatRatesPost.aspx#OOSRates.
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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