Document headings vary by document type but may contain
                    the following: the agency or agencies that issued and signed a document
the number of the CFR title and the number of each part
                      the document amends, proposes to amend, or is directly
                      related to
the agency docket number / agency internal file number
the RIN which identifies each regulatory action listed in
                      the Unified Agenda of Federal Regulatory and Deregulatory
                      Actions See the
                    Document Drafting Handbook
                    for more details.
 Department of Transportation Federal Motor Carrier Safety Administration 49 CFR Part 385
 AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
 ACTION: Notice of enforcement policy amendment.
 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 rate2005 & 2006
0.125
8.92
33.3
5.882007 & 2008
0.125
9.52
33.3
6.062009 & 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 
                    ( print page 57698)
                    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 ComplianceCY 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