[Federal Register: November 7, 2007 (Volume 72, Number 215)]
[Rules and Regulations]
[Page 62795-62797]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no07-9]
[[Page 62795]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
FMCSA Policy on Calculating Crash Rates and Driver, Vehicle, and
Hazardous Materials Out-of-Service Rates and 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 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 states the FMCSA
policy on calculating motor carrier crash rates, and driver, vehicle,
and hazardous material out-of-service rates that represent the top 30
percent of the national average as indicated in the Motor Carrier
Management Information System (MCMIS). The document explains how FMCSA
calculates the top thirty percent of the national average and how it
calculates whether a single motor carrier falls within the top thirty
percent of the national average in each of these categories. The
document restates without change the FMCSA policy that has been
publicly available on its Web site since January 2005.
EFFECTIVE DATE: January 3, 2005.
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:
Background: Congress established the hazardous materials safety
permit (safety permit) requirement as part of the Hazardous Materials
Transportation Uniform Safety Act of 1990 (``HMTUSA'') Public Law 101-
615, 104 Stat. 3244 (Nov. 16, 1990). On January 1, 2000, the Federal
Motor Carrier Safety Administration (FMCSA) was established as a
separate administration within the U.S. Department of Transportation
pursuant to the Motor Carrier Safety Improvement Act of 1999. FMCSA
assumed responsibility for the enforcement of hazardous materials
transportation laws by motor vehicle transportation. 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. Those conditions are set out in 49
CFR 385.407.
Section 385.407 requires that a carrier must have a
``Satisfactory'' safety rating, must certify that it has a satisfactory
security program, and must 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). A motor carrier is
required to file its MCS-150 form every two years. Thus, the safety
permit requirement was implemented over the course of two years as
motor carriers subject to the permit requirement reached the date for
filing their MCS-150. 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 for
determining the national average, the crash rates and driver, vehicle
and hazmat out-of-service (OOS) rates that established the threshold
for the ``top 30 percent of the national average,'' and other
information about calculating these rates. The website also explained
how a carrier can calculate its own crash and OOS rates. For OOS rates,
OEC explained that it determined the top 30 percent of the national
average as follows:
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\1\ http://www.safersys.org/HazMatRatesPost.aspx#OOSRates.
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To calculate this percentage for (OOS) Rate, FMCSA looked at the
driver, vehicle, or HM OOS percentage rates of all carriers (HM and
non-HM) for calendar years 2003 and 2004. FMCSA then determined what
the numerical value was that resulted in 70 percent of the carriers
having a driver, vehicle, or HM OOS percentage rate lower than that
figure, and 30 percent of the carriers having a driver, vehicle, or
HM OOS percentage rate higher than that figure.
The published guidance also instructed carriers on how to calculate
their OOS percentage rates:
Divide the total number of out-of-service inspections from the
previous twelve month time period for each category by the total
number of inspections for that category for the same twelve month
time period. For example, if for the previous twelve month time
period a motor carrier had twenty driver inspections and two of
these resulted in an out-of-service condition then the Driver out-
of-service rate would be 0.10. (2 / 20 x 100% = 10%)
The OEC Web site provided notice to the regulated community on how
FMCSA would establish the national averages and cut-offs for the top,
or worst-performing, 30 percent of the motor carrier population. Using
these formulas, FMCSA established the thresholds for crash rates,
vehicle, driver, and hazardous materials OOS rates and published these
thresholds on its Web site in January 2005. The thresholds remained
effective for the first two years of the program. In January 2007,
using data for calendar years 2005 and 2006, FMCSA recalculated the top
thirty percent of the national average and published the threshold
crash rates, driver, vehicle, and hazardous materials OOS rates that
would be effective in 2007 and 2008. The threshold rates were as
follows:
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Motor carrier Driver OOS Vehicle OOS Hazmat OOS
crash rate rate rate rate
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2005 & 2006................................... 0.125 8.92% 33.3% 5.88%
[[Page 62796]]
2007 & 2008................................... 0.125 9.52% 33.33% 6.06%
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Challenges to the Rule
Over the course of the two-year implementation period of the safety
permit requirement, two motor carriers that were denied safety permits
challenged the adequacy of the notice to the regulated community of
FMCSA's method for calculating the top thirty percent of the national
average and the crash and OOS rates for individual carriers. Despite
the clear and accessible notice on the agency's public Web site of the
threshold rates and the method by which these rates and those of
individual carriers are calculated, the challenging motor carriers
asserted that this notice was insufficient because it was not published
in the Federal Register. FMCSA maintains its position that adequate and
fair notice was provided to the regulated community of the method by
which it would apply the conditions for issuing a safety permit under
49 CFR 385.407. Nevertheless, to foreclose further challenges, FMCSA is
restating its methodology through this publication in the Federal
Register.
Subpart E--Hazardous Materials Safety Permits
Calculating Crash Rates
Under 49 CFR 385.407(a)(2)(ii), 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. To calculate the threshold
rate above which a motor carrier's crash rate will fall into the top,
or worst-performing, 30 percent of the national average, FMCSA looked
at all carriers in its census (HM and non-HM) that had more than one
crash during the previous two-years. To calculate the national average,
FMCSA:
(1) Determined the number of crashes for each qualifying carrier
over a two-year period.
(2) Determined the number of power units that the carrier operated
over the two year period.
(3) For each carrier, divided the number of crashes by the number
of power units times 2 to determine each carrier's crash rate, i.e.,
[( of crashes) / ( of power units x 2) = crash rate].
(4) Using these rates, determined the numerical value that resulted
in 70 percent of the carriers having a crash rate lower than that
figure, and 30 percent of the carriers having a crash rate higher than
that figure.
The resulting numerical value represents the threshold for the
worst-performing 30 percent of the national average. The threshold
crash rate will be recalculated every two years using the crash data
from the previous two years. FMCSA examines two years of data in order
to evaluate crash rates that accurately represent occurrences in the
industry and that will remain consistent throughout the two-year period
during which carriers are required to apply for a safety permit. (The
calculations to determine crash rates have been performed in this
manner since the inception of the program in January 2005. Information
on the Web site erroneously indicated that only one year of data was
considered in setting the national averages when in fact two years of
data has consistently been used.)
FMCSA examines one year of crash data to determine the crash rate
for an individual carrier that is applying for a safety permit. The
carrier will divide the number of crashes for the previous twelve-month
period by the total number of power units that it 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 previous twelve-month period.
Calculating Out-of-Service (OOS) Rates
Under 49 CFR 385.407(a)(2)(iii), FMCSA may not issue a safety
permit to a motor carrier that has a driver, vehicle, hazardous
material or total out-of-service (OOS) rate in the top 30 percent of
the national average as indicated in the MCMIS. To calculate the
threshold rates above which a motor carrier's rate will fall into the
top, or worst-performing, 30 percent of the national average for each
of the listed categories, FMCSA separately examined the driver,
vehicle, or hazmat OOS rate of all the carriers in its census. OEC did
not include carriers that only had one inspection and only considered
hazmat carriers in the calculation for the hazmat OOS rate. OEC
examined two years of data, initially for calendar years 2003 and 2004,
and subsequently, for calendar years 2005 and 2006.
In each category, OEC determined the OOS rate for each qualifying
carrier in the census by dividing the total number of OOS violations by
the total number of inspections over the two-year period. For the
hazmat OOS rate, the total number of hazmat OOS violations was divided
by the total number of hazmat inspections over the two-year period. OEC
then determined the numerical value that resulted in 70 percent of the
carriers having a driver, vehicle, or hazmat OOS rate lower than that
figure, and 30 percent of the carriers having a driver, vehicle, or
hazmat OOS percentage rate higher than that figure. These numbers
established the threshold above which a carrier falls into the top, or
worst-performing, 30 percent of the national average in each category.
OEC determined that looking at a total OOS rate was redundant and that
total OOS rates were adequately considered by the examination of OOS
rates in each of the three categories. The threshold rates representing
the cut-off for the top thirty percent of the national average will be
recalculated every two years on the first workday of the year. The
first calculations for the national average were made on January 3,
2005 using the available MCMIS data for calendar years 2003 and 2004,
the second calculations for the national average were made on January
3, 2007, using the available MCMIS data for calendar years 2005 and
2006.
A motor carrier calculates its OOS rate in each of the three
categories by examining the number of inspections and OOS violations
during the preceding twelve-month period. The carrier must then divide
the number of OOS violations for the category by the total number of
inspections for that category. The resulting figure is the motor
carrier's OOS rate for the particular category. For example, if during
the previous twelve-month period, a motor carrier had twenty driver
inspections and two of these resulted in an OOS condition, the driver
OOS rate would be 0.10 (2 / 20 = 0.10 or 10%). Each of the OOS
categories, Driver, Vehicle, and Hazardous Materials, shall be
calculated separately. FMCSA does not consider a single OOS inspection
in any category to be statistically valid and thus will not deny a
permit to a carrier based upon an OOS
[[Page 62797]]
rate that results from a single OOS inspection.
Issued on: October 31, 2007.
John H. Hill,
Administrator.
[FR Doc. E7-21833 Filed 11-6-07; 8:45 am]
BILLING CODE 4910-EX-P