Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Rules and Regulations 15913 

99–661, as codified at 10 U.S.C. 2323. 

Section 2323 of title 10 expired on 

September 30, 2009. However, prior to 

the implementation of the interim rule, 

the implementing regulations for this 

law still appeared in the DFARS. 

Implementation of this rule was needed 

to preclude the risk that DoD 

contracting officers would inadvertently 

issue a solicitation or execute a contract 

based on an acquisition strategy that is 

no longer authorized. 

No public comments were submitted 

in response to the initial regulatory 

flexibility analysis, or in response to the 

interim rule, which was published in 

the Federal Register on October 14, 

2014. Therefore, there were no issues to 

assess, and no changes to the rule were 

necessary. 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. This 

expectation is based on the following 

information and analysis: 

The DoD Small Disadvantaged 

Business (SDB) program has not been in 

effect since fiscal year (FY) 2008. This 

rule does not change the fundamental 

procurement policies that DoD has used 

to achieve strong SDB participation or to 

encourage the involvement of 

historically Black colleges and 

universities and minority institutions in 

defense-related research, development, 

testing, and evaluation efforts. The 

following rationale is provided: 

10 U.S.C. 2323 was the underlying 

statutory authority for DoD’s small 

disadvantaged business (SDB) program. 

DoD’s SDB program was intended to 

supplement and complement the 

Federal-wide SDB program authorized 

under the Small Business Act. It 

provided for the institution of a specific 

goal within the mandatory 5 percent 

SDB goal for the award of prime 

contracts and subcontracts to 

historically Black colleges and 

universities, minority institutions, and 

Hispanic-serving institutions. Section 

2323 of Title 10 served as the basis for 

a number of unique acquisition 

techniques used by DoD to help it 

achieve these goals, such as the price 

evaluation adjustment for SDBs in 

competitive procurements and the setaside for historically Black colleges and 

universities and minority institutions. It 

was also the basis for the special 95 

percent customary progress payment 

rate for SDBs. 

Now that the law has expired, these 

special techniques can no longer be 

used. However, the impact of this 

change is mitigated by a number of 

factors. Preeminent among those factors 

is DoD’s obligation to meet or exceed 

the expectations of the Small Business 

Act regarding SDBs, and to provide 

assistance for defense-related research, 

development, testing, and evaluation 

activities to historically Black colleges 

and universities and minority 

institutions. 

Section 15(g) of the Small Business 

Act, Public Law 85–536, as amended, 

(15 U.S.C. 644(g)), requires all Federal 

agencies to make every attempt to 

achieve the annual Government-wide 

goal for participation by SDBs. The 

statutory SDB goal is not less than 5 

percent of the total value of all prime 

contract and subcontract awards for 

each fiscal year. DoD must comply with 

this law, and it has. The Department has 

met or exceeded the 5 percent SDB goal 

since FY 2001. 

DoD contracting officers can employ 

monetary incentives in solicitations and 

contracts, when inclusion of such 

incentives is, in the judgment of the 

contracting officer, necessary to increase 

subcontracting opportunities for small 

businesses, service-disabled veteranowned small businesses, HUBZone 

small businesses, women-owned small 

businesses, as well as small 

disadvantaged businesses. In addition, 

while the 95 percent progress payment 

rate is no longer allowable, SDBs, 

because they are small businesses, are 

still eligible to receive the 90 percent 

progress payment rate. Finally, the 

extent of participation of all small 

businesses, including small 

disadvantaged businesses, in 

performance of the contract is addressed 

during source selection for negotiated 

DoD acquisitions that are required to 

have subcontracting plans. The past 

performance of offerors in complying 

with subcontracting goals with all small 

businesses, including SDBs, is also 

evaluated in DoD acquisitions. 

The capability and expertise that 

HBCUs and MIs bring to numerous DoDfunded research and development 

programs are valued commodities. DoD 

must explore new areas of science, 

mathematics, and engineering in order 

to develop the alternative technologies 

needed to fulfill its national security 

mission. HBCUs and MIs will continue 

to support DoD in these endeavors 

through their involvement in various 

research and development programs. 

This rule does not impose new 

reporting, recordkeeping or other 

compliance requirements. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 205, 

206, 215, 219, 226, 232, 235, 252, and 

Appendix I to Chapter 2 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

■ Accordingly, the interim rule 

amending 48 CFR parts 205, 206, 215, 

219, 226, 232, 235, 252, and Appendix 

I to Chapter 2, which was published at 

79 FR 61579 on October 14, 2014, is 

adopted as a final rule without change. 

[FR Doc. 2015–06757 Filed 3–25–15; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 390 

Federal Motor Carrier Safety 

Regulations; Regulatory Guidance 

Concerning Crashes Involving 

Vehicles Striking Attenuator Trucks 

Deployed at Construction Sites 

AGENCY: Federal Motor Carrier Safety 

Administration, DOT. 

ACTION: Regulatory guidance. 

SUMMARY: FMCSA provides regulatory 

guidance concerning crashes involving 

motor vehicles striking the rear of 

attenuator trucks deployed at 

construction sites and whether such 

crashes meet the definition of 

‘‘accident’’ under 49 CFR 390.5 for the 

motor carrier that controls the 

attenuator truck. Attenuator trucks are 

highway safety vehicles equipped with 

an impact attenuating crash cushion 

intended to reduce the risks of injuries 

and fatalities resulting from crashes in 

construction work zones. The guidance 

explains that such crashes in which 

motorists strike the attenuator trucks 

while they are deployed at construction 

work zones are not covered by the 

definition of accident and such 

occurrences will not be considered by 

FMCSA under its Compliance, Safety, 

Accountability Safety Measurement 

System (SMS) scores, or Safety Fitness 

Determination for the motor carrier that 

controls the attenuator truck. This 

guidance will provide the motor carrier 

industry and Federal, State, and local 

law enforcement officials with uniform 

information for use in determining 

whether certain crashes involving 

attenuator vehicles must be recorded on 

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15914 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Rules and Regulations 

the motor carrier’s accident register and 

considered in the Agency’s safety 

oversight programs. 

DATES: This guidance is effective May 

26, 2015. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Thomas L. Yager, Chief, Driver and 

Carrier Operations Division, Office of 

Bus and Truck Standards and 

Operations; 1200 New Jersey Ave. SE., 

Washington, DC 20590, Telephone 202– 

366–4325, Email: MCPSD@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

The Secretary of Transportation has 

statutory authority to set minimum 

standards for commercial motor vehicle 

safety. These minimum standards must 

ensure that: (1) CMVs are maintained, 

equipped, loaded, and operated safely; 

(2) the responsibilities imposed on 

operators of CMVs do not impair their 

ability to operate the vehicles safely; (3) 

the physical condition of operators of 

CMVs is adequate to enable them to 

operate the vehicles safely; (4) the 

operation of CMVs does not have a 

deleterious effect on the physical 

condition of the operators; and (5) an 

operator of a commercial motor vehicle 

is not coerced by a motor carrier, 

shipper, receiver, or transportation 

intermediary to operate a commercial 

motor vehicle in violation of a 

regulation. (49 U.S.C. 31136(a)(1)–(5), as 

amended). The Secretary also has broad 

power in carrying out motor carrier 

safety statutes and regulations to 

‘‘prescribe recordkeeping and reporting 

requirements’’ and to ‘‘perform other 

acts the Secretary considers 

appropriate.’’ (49 U.S.C. 31133(a)(8) and 

(10)). 

The Administrator of FMCSA has 

been delegated authority under 49 CFR 

1.87(f) to carry out the functions vested 

in the Secretary of Transportation by 49 

U.S.C. chapter 311, subchapters I and 

III, relating to commercial motor vehicle 

programs and safety regulation. 

This document provides regulatory 

guidance to the public with respect to 

the definition of ‘‘accident’’ in 49 CFR 

390.5 of the Federal Motor Carrier 

Safety Regulations (FMCSRs), and the 

recording of accidents as required under 

49 CFR 390.15. All interested parties 

may access the guidance in this 

document through the FMCSA’s 

Internet site at http://

www.fmcsa.dot.gov. 

Background 

The regulatory guidance in this 

regulatory guidance responds to 

questions concerning the definition of 

‘‘accident’’ in 49 CFR 390.5: Are crashes 

in which motorists strike the rear of 

attenuator trucks deployed at 

construction sites considered recordable 

accidents? 

Section 390.5 defines ‘‘accident’’ as 

an occurrence involving a commercial 

motor vehicle operating on a highway in 

interstate or intrastate commerce which 

results in a fatality; bodily injury to a 

person who, as a result of the injury, 

immediately receives medical treatment 

away from the scene of the accident; or 

one or more motor vehicles incurring 

disabling damage as a result of the 

accident, requiring the motor vehicles to 

be transported away from the scene by 

a tow truck or other motor vehicle. It 

excludes occurrences involving only 

boarding and alighting from a stationary 

motor vehicle or involving only the 

loading or unloading of cargo. 

FMCSA acknowledges the potential 

impact on motor carriers’ Safety 

Measurement System (SMS) scores that 

could result from States uploading 

reports about crashes involving 

attenuator trucks deployed at 

construction sites into the Agency’s 

Motor Carrier Management Information 

System (MCMIS). Because these 

vehicles are deployed to prevent certain 

crashes through the use of flashing 

lights and to reduce the severity of 

crashes through the use of truckmounted impact attenuators or crash 

cushions when motorists do not take 

appropriate action to avoid the obstacles 

in the construction zone, it is expected 

that these vehicles will be struck from 

time to time while the attenuators are 

deployed. Such events that occur in a 

construction zone, either stationary or 

moving, should not count against the 

safety performance record of the motor 

carrier responsible for the operation of 

the attenuator truck. 

FMCSA’s Decision 

In consideration of the above, FMCSA 

has determined that the current 

regulatory guidance should be revised to 

make clear that crashes involving 

motorists striking attenuator trucks are 

not considered accidents, as defined 

under 49 CFR 390.5. The Agency issues 

the following guidance to 49 CFR 390.5 

to read as follows: 

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS; 

GENERAL 

Regulatory Guidance for 49 CFR 390.5

Definition of ‘‘Accident’’ 

Question: Are crashes involving 

motorists striking attenuator trucks 

while the impact attenuators or crash 

cushions are deployed included within 

the definition of ‘‘accident’’ with regard 

to the motor carrier responsible for the 

operation of the attenuator truck? 

Guidance: No. Attenuator trucks are 

highway safety vehicles equipped with 

an impact attenuating crash cushion 

intended to reduce the risks of injuries 

and fatalities resulting from crashes in 

construction work zones. Because these 

vehicles are deployed at construction 

work zones to prevent certain crashes 

through the use of flashing lights and to 

reduce the severity of crashes when 

motorists do not take appropriate action 

to avoid personnel and objects in the 

construction zone, it is expected that 

these vehicles will be struck from time 

to time while the impact attenuators or 

crash cushions are deployed. Therefore, 

such events are not considered 

accidents and the recordkeeping 

requirements of 49 CFR 390.15, 

Assistance in investigations and special 

studies, are not applicable with regard 

to the motor carrier responsible for the 

operation of the attenuator truck. If 

however, a commercial motor vehicle, 

as defined in 49 CFR 390.5, strikes an 

attenuator truck, this event would be 

considered an accident for the motor 

carrier responsible for the operation of 

the vehicle that hits the attenuator 

truck. 

Procedures 

Starting on the effective date of this 

regulatory guidance, any crash meeting 

the above criteria may be removed from 

a carrier’s record of crashes. To do so 

the carrier operating the attenuator 

vehicle should file a Request for Data 

Review (RDR) using the DataQ system at 

https://www.dataqs.fmcsa.dot.gov, as a 

no reportable crash, and provide 

sufficient evidence to establish the crash 

in question took place between a vehicle 

and their attenuator vehicle deployed in 

a constructions zone. After the effective 

date of this regulatory guidance, the 

affected motor carrier may file a RDR to 

remove crashes related to this regulatory 

guidance from their carrier record for 

the previous 24 months. 

Issued on: March 18, 2015. 

T.F. Scott Darling, III, 

Acting Administrator. 

[FR Doc. 2015–06817 Filed 3–25–15; 8:45 am] 

BILLING CODE 4910–EX–P 

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