57696 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

have recycled content. To the extent that the 

services provided by the Contractor require 

provision of any of the above types of 

products, the Contractor must provide the 

energy efficient and environmentally 

sustainable type of product unless that type 

of product— 

(1) Is not available; 

(2) Is not life cycle cost effective (or does 

not exceed 110% of the price of alternative 

items if life cycle cost data is unavailable), 

EPEAT is an example of lifecycle costs that 

have been analyzed by DOE and found to be 

acceptable at the silver and gold level; 

(3) Does not meet performance needs; or, 

(4) Cannot be delivered in time to meet a 

critical need. 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. 

(e) Contractors must establish and maintain 

a documented energy management program 

which includes requirements for energy and 

water efficient equipment, EnergyStar or 

WaterSense, as applicable and procedures for 

verification of purchases, following the 

criteria in DOE Order 430.2B, Departmental 

Energy, Renewable Energy, and 

Transportation Management, Attachment 1, 

or its successor. This requirement should not 

be flowed down to subcontractors. 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. 

(g) The Contractor shall prepare and 

submit performance reports using prescribed 

DOE formats, at the end of the Federal fiscal 

year, on matters related to the acquisition of 

environmentally preferable and sustainable 

products and services. This is a material 

delivery under the contract. Failure to 

perform this requirement may be considered 

a failure that endangers performance of this 

contract and may result in termination for 

default [see FAR 52.249–6, Termination (Cost 

Reimbursement)]. 

(h) These provisions shall be flowed down 

only to first tier subcontracts exceeding the 

simplified acquisition threshold that support 

operation of the DOE facility and offer 

significant subcontracting opportunities for 

energy efficient or environmentally 

sustainable products or services. The 

Subcontractor will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The Subcontractor will advise the 

Contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

Subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

Alternate I for Construction Contracts and 

Subcontracts (OCT 2010)—When contracting 

for construction, alteration, or renovation of 

DOE facilities, substitute the following 

paragraphs (d) through (i): 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non-ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. When 

developing the Bill of Materials for approval 

of the Contracting Officer or Representative, 

the contractor shall specify energy efficient 

and environmentally sustainable materials to 

the extent possible within the constraints of 

the general design specifications. Compliance 

with the Guiding Principles for Federal 

Leadership in High Performance and 

Sustainable Buildings (Guiding Principles) 

shall be achieved through certification to the 

Leadership in Energy and Environmental 

Design (LEED) Gold level under the LEED 

rating system most suited to the building 

type. 

(e) [Reserved] 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor(s) 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. 

(g) The Contractor shall prepare and 

submit performance reports using prescribed 

DOE formats, at the end of the Federal fiscal 

year, on matters related to the acquisition of 

energy efficient and environmentally 

sustainable products and services. This is a 

material delivery under the contract. Failure 

to perform this requirement may be 

considered a failure that endangers 

performance of this contract and may result 

in termination for default, see 48 CFR 

52.249–6, Termination (Cost 

Reimbursement). 

(h) These provisions shall be flowed down 

only to first tier construction subcontracts 

exceeding the simplified acquisition 

threshold that support operation of the DOE 

facility and offer significant opportunities for 

designating energy efficient or 

environmentally sustainable products or 

services in the materials selection process. 

The subcontractor will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The subcontractor will advise the 

contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

[FR Doc. 2010–23655 Filed 9–21–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 385 

Change to FMCSA Policy on 

Calculating and Publicizing the Driver, 

Vehicle, and Hazardous Materials Outof-Service Rates and Crash Rates 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of enforcement policy 

amendment. 


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Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 57697 

SUMMARY: Under 49 CFR 385.407 

FMCSA may not issue a hazardous 

materials safety permit (HMSP) to a 

motor carrier having a crash rate, or 

driver, vehicle, or hazardous materials 

(HM) out-of-service (OOS) rate in the 

top 30 percent of the national average. 

This document revises the date used to 

calculate the threshold crash and OOS 

rates, from calendar year cycles to fiscal 

year cycles, from October 1 of a given 

year to September 30 of the following 

year. This will provide motor carriers 

and the industry a 3-month preview of 

the crash and OOS rates FMCSA uses to 

determine HMSP eligibility, before the 

motor carrier HMSP registration cycle 

begins on January 1. 

DATES: Effective Date: This policy 

amendment is effective October 1, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Roxane Greene at 

roxane.greene@dot.gov or (202) 366– 

0735; or Paul Bomgardner at 

paul.bomgardner@dot.gov or (202) 493– 

0027. Both staff members may be 

reached at FMCSA, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

Office hours are from 8:30 a.m. to 

5 p.m., EST, Monday through Friday, 

except Federal holidays. 

SUPPLEMENTARY INFORMATION: On 

November 7, 2007, FMCSA published a 

Notice of Enforcement Policy (72 FR 

62795) explaining how the Agency 

calculates the top 30 percent of the 

national average for crash rates, and for 

driver, vehicle and hazardous materials 

OOS rates, and determines whether a 

given motor carrier falls within the top 

30 percent of the national average in 

each of these categories. 

49 CFR part 385, subpart E identifies 

which motor carriers must hold a 

HMSP, establishes the application 

process for a HMSP, and specifies the 

conditions that must satisfy to qualify 

for this permit. 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). In addition, 

as specified under Section 385.407(a)(2), 

FMCSA will not issue a HMSP to a 

motor carrier having a crash rate in the 

top 30 percent of the national average, 

as indicated in the FMCSA Motor 

Carrier Management Information System 

(MCMIS), or a driver, vehicle, HM, or 

total OOS rate in the top 30 percent of 

the national average as indicated in the 

MCMIS. 

The HMSP requirement became 

effective for motor carriers after January 

1, 2005, when the motor carrier was 

required to file a Motor Carrier 

Identification Report Form (MCS–150), 

as set forth in 49 CFR 390.19. A motor 

carrier is required to file its MCS–150 

form with FMCSA every two years. The 

application for the HMSP was 

incorporated into the MCS–150, as an 

expanded version of the form entitled 

‘‘MCS–150B or Combined Motor Carrier 

Identification Report and HM Permit 

Application.’’ Thus, the HMSP must be 

renewed every two years. 

In early January 2005, FMCSA 

published on its public Web site the 

calculation for determining the national 

average crash rate and the driver, 

vehicle and HM OOS rates that 

established the threshold for the ‘‘top 30 

percent of the national average’’. The 

Web site also explained how a carrier 

can calculate its own crash and OOS 

rates. 

To calculate the threshold figure that 

determines the top (worst-performing) 

30 percent of the national average, 

FMCSA looked at the crash rates and 

driver, vehicle, and HM OOS percentage 

rates of all carriers (HM and non-HM) 

for the prior two calendar years. The 

Agency then determined the numerical 

threshold value relative to which 70 

percent of all carriers have a driver, 

vehicle, or HM OOS percentage rate 

lower than that figure, and 30 percent of 

the carriers have a driver, vehicle, or 

HM OOS percentage rate that is higher. 

The FMCSA Web site provided notice to 

the regulated community on how 

FMCSA would establish the national 

averages and threshold figures for the 

top, or worst-performing, 30 percent of 

the motor carrier population. The 

Agency recalculates and publishes these 

threshold rates on its Web site every 2 

years. Upon publication, the threshold 

rates remain effective for the 2-year 

registration period of the HMSP 

program. For example, in January 2009, 

using data for calendar years 2007 and 

2008, FMCSA recalculated and 

published on its Web site the threshold 

crash rates and driver, vehicle, and HM 

OOS rates establishing the top 30 

percent of the national average (see 

http://www.safer.fmcsa.dot.gov/ 

HazmatRatesPost.pdf). These rates 

provide the standard for granting or 

denying HMSPs during the calendar 

year (CY) 2009 to 2011 registration 

cycle. 

Table 1 below shows the calculated 

threshold rates establishing the top 30 

percent of the national average for the 

registration years CY 2005 through 

2010: 

Table 1 below shows the calculated 

threshold rates establishing the top 30 

percent of the national average for the 

registration years CY 2005 through 

2010: 

TABLE 1—CALCULATED THRESHOLD RATES FOR CY 2005 THROUGH 2010 

Registration years 

(calendar years) 

Crash 

rate 

Driver 

OOS rate 

(percent) 

Vehicle 

OOS rate 

(percent) 

HM 

OOS rate 

2005 & 2006 .................................................................................................... 0.125 8.92 33.3 5.88 

2007 & 2008 .................................................................................................... 0.125 9.52 33.3 6.06 

2009 & 2010 .................................................................................................... 0.125 9.09 33.3 4.76 

OEC Calculation of Crash Rate and 

OOS Rates on a Fiscal Year Basis 

The threshold for crash rates, and 

driver, vehicle and HM OOS rates were, 

and will continue to be, recalculated 

every 2 years using the crash and OOS 

data from the previous 2 years. The 

FMCSA is only revising the date from 

which the data from the 2-year period 

will be calculated. The 2-year period 

will now be measured by the federal 

fiscal year (October 1 to September 30), 

instead of calendar year (January 1 to 

December 31). This change will take 

effect prior to the next registration cycle 

for the HMSP program starting in 2011. 

To determine the rates for the next 

registration cycle, 2011 to 2012, FMCSA 

will use two years of crash and OOS 

data to calculate the threshold rates for 

the top 30 percent of the national 

average using data from fiscal years 

2009, (October 1, 2008, to September 30, 

2009), and 2010, (October 1, 2009, to 

September 30, 2010). Accordingly, the 

threshold rates for registration year 2011 

and 2012 will be calculated on October 

1, 2010, and published on the FMCSA 

Web site shortly thereafter, and will be 

effective for the registration period 

commencing January 1, 2011. This 

change will provide motor carriers with 


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57698 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

a 3-month preview of the crash and 

OOS rates that will be effective for the 

issuance of HMSPs during the following 

2-year registration period. 

Carriers’ Calculation of Their OOS 

Rates and Crash Rate 

When a motor carrier submits an 

HMSP application through the MCS– 

150B process, FMCSA examines one 

year (12 months) of the carrier’s crash 

and OOS data. This policy is consistent 

with Agency’s practice of reviewing one 

year of motor carrier records during the 

conduct of a compliance review. The 

period examined is the 12 months 

immediately preceding the date that the 

application is received and processed. A 

motor carrier must, therefore, calculate 

its vehicle, driver, and HM OOS rates in 

each of the three categories by 

examining the number of inspections 

and OOS violations during the 

preceding 12-month period. To 

determine its OOS rate, the carrier 

would divide the number of OOS 

violations by the total number of 

inspections for each category. The 

resulting figure is the motor carrier’s 

OOS rate for the category. 

The FMCSA likewise examines one 

year of crash data to determine a 

carrier’s crash rate. A motor carrier will 

divide the number of crashes for the 

previous 12-month period by the total 

number of power units that it operated 

during that 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). The 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 previous 12-month period. 

Upcoming Registration Cycles Under 

the HMSP Program 

TABLE 2—UPCOMING REGISTRATION CYCLES

Upcoming registration years (or cycles) OOS rates calculated and publicized for 

industry preview 

OOS rates implemented by FMCSA 

Office of Enforcement and Compliance 

CY 2011 & 2012 ........................................... FY 2010 (Oct. 1, 2009) .................................................. January 1, 2011 to December 31, 2012. 

CY 2013 & 2014 ........................................... FY 2012 (Oct. 1, 2011) .................................................. January 1, 2013 to December 31, 2014. 

CY 2015 & 2016 ........................................... FY 2014 (Oct. 1, 2013) .................................................. January 1, 2015 to December 31, 2016. 

The OOS rates based on a 2-fiscal year 

cycle will be effective for the 2-year 

registration cycle as the above table 

illustrates, beginning the following 

January, and will remain in effect for the 

entire 2 calendar years of the 

registration cycle. For example, the OOS 

rates calculated on October 1, 2010, will 

be published on the FMCSA Web site 

for preview, become effective for 

purposes of HMSP review on January 1, 

2011, and will remain in effect through 

December 31, 2012. The OOS rates will 

then be re-calculated and published on 

October 1, 2012, for the following 

registration cycle, and enforced starting 

January 1, 2013. 

Issued on: August 31, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–23440 Filed 9–21–10; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 32 

Hunting and Fishing 

CFR Correction 

In Title 50 of the Code of Federal 

Regulations, Parts 18 to 199, revised as 

of October 1, 2009, on page 385, in 

§ 32.43, the entry for ‘‘Coldwater 

National Wildlife Refuge’’ is moved to 

precede the entry for ‘‘Dahomey 

National Wildlife Refuge’’ on page 383. 

[FR Doc. 2010–23769 Filed 9–21–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 32 

Hunting and Fishing 

CFR Correction 

In Title 50 of the Code of Federal 

Regulations, Parts 18 to 199, revised as 

of October 1, 2009, on page 406, in 

§ 32.45, the second entry for ‘‘Northwest 

Montana Wetland Management District’’ 

is removed. 

[FR Doc. 2010–23771 Filed 9–21–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 32 

Hunting and Fishing 

CFR Correction 

In Title 50 of the Code of Federal 

Regulations, Parts 18 to 199, revised as 

of October 1, 2009, on page 326, in 

§ 32.35, in the entry for ‘‘Marais des 

Cygnes National Wildlife Refuge’’ , the 

heading and introductory text for 

paragraph A. is reinstated to read as 

follows: 

§ 32.35 Kansas. 

* * * * * 

Marais des Cygnes National Wildlife Refuge 

A. Migratory Game Bird Hunting. We allow 

hunting of goose, duck, coot, rail, snipe, 

woodcock, and mourning dove on designated 

areas of the refuge in accordance with State 

regulations subject to the following 

conditions: 

* * * * * 

[FR Doc. 2010–23774 Filed 9–21–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 600 and 635 

[Docket No. 100729315–0331–01] 

RIN 0648–BA12 

Atlantic Highly Migratory Species; 

Atlantic Billfish Management, White 

Marlin (Kajikia albidus), Roundscale 

Spearfish (Tetrapturus georgii) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interpretive rule and Final 

Action. 

SUMMARY: This document combines two 

actions, an interpretive rule and a final 

action that both affect management of 

Atlantic billfishes. The interpretive rule 

adds the recently recognized species, 

roundscale spearfish (Tetrapturus 

georgii), to the definition of terms in the 

implementing regulations of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) and the Atlantic HMS 

regulations. The final action will 

recognize the change of the genus of 


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