Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 53383 

1http://www.safersys.org/ 

HazMatRatesPost.aspx#OOSRates. 

* * * * * 

[FR Doc. E8–21303 Filed 9–15–08; 8:45 am] 

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 

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-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 

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 


ebenthall on PROD1PC60 with RULES
53384 Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 

1 73 FR 28,790 (May 19, 2008). 

2 531 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). 

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 § 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 

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 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

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 http:// 

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 


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