[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Notices]
[Pages 35045-35050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15833]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0177]


Crash Preventability Demonstration Program

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice.

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SUMMARY: On July 12, 2016, FMCSA proposed a crash preventability 
demonstration program. Based on the feedback received in response to 
the Federal Register notice, FMCSA announces the initiation of a crash 
preventability demonstration program in which the Agency would accept 
requests for data review (RDRs) to evaluate the preventability of 
certain categories of crashes through its national data correction 
system known as DataQs. This notice describes the crash types that will 
qualify for the demonstration program, the process for submitting RDRs 
to evaluate the preventability of a crash, how decisions on 
preventability will be displayed in Agency systems, and the data to be 
collected through this program for use in future decisions about a 
longer-term crash preventability program.

[[Page 35046]]


DATES: The crash preventability demonstration program will begin 
accepting RDRs on August 1, 2017, for crashes that occur on or after 
June 1, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. Catterson Oh, Compliance Division, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue 
SE., Washington, DC 20590, Telephone 202-366-6160 or by email: 
[email protected]. If you have questions regarding viewing or 
submitting material to the docket, contact Docket Services, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

Background

    Since its implementation in 2010, the Safety Measurement System 
(SMS) has used safety performance information in the Behavior Analysis 
and Safety Improvement Categories (BASICs) plus recordable crashes 
involving commercial motor vehicles (CMVs), that are submitted by the 
States through the Agency's Motor Carrier Management Information System 
(MCMIS), to prioritize carriers for safety interventions (75 FR 18256). 
The Agency uses the definition of ``accident'' in 49 CFR 390.5 to 
identify those crashes that must be maintained by the motor carrier in 
an accident register under 49 CFR 390.15. These include crashes 
resulting in fatalities, bodily injuries requiring immediate medical 
treatment away from the scene of the crash, or a vehicle being towed 
from the scene because of disabling damage. These same crashes must be 
reported by the States to FMCSA, through MCMIS, if the CMV has an 
actual weight (i.e., gross vehicle weight) or gross vehicle weight 
rating of 10,001 or more pounds or a gross combination weight rating of 
10,001 or more pounds and is used on public highways. In addition, 
crashes must be reported if the CMV is designed to transport nine or 
more people, including the driver, and the motor carrier receives 
compensation, and if a CMV in the crash is designed to transport 16 or 
more people, including the driver regardless of compensation. 
Additionally, if any motor vehicle in the crash is required to display 
a hazardous materials placard, regardless of the weight of the vehicle, 
it must be reported to FMCSA by the State. The crash data reported to 
FMCSA by the States does not specify whether or not the crash was 
preventable by the CMV driver.
    The Crash Indicator BASIC uses crashes from the previous 24 months 
to calculate a percentile for a motor carrier. SMS weights crashes 
based on crash severity, with more weight given to fatality and injury 
crashes than those that resulted in a vehicle being towed from the 
scene with no injuries or fatalities. In addition, the crashes are time 
weighted, with more recent crashes having more weight. All reportable 
crashes are included in the Crash Indicator BASIC regardless of 
preventability.
    While the public SMS Web site provides a list of the recordable 
crashes for the motor carrier, the Crash Indicator BASIC percentiles 
have never been publicly available. The Crash Indicator BASIC 
percentiles are, however, available to motor carriers who log in to 
view their own data, as well as to FMCSA and law enforcement users.
    Stakeholders have expressed concern that the Crash Indicator BASIC 
may not identify the highest-risk motor carriers for interventions and 
that the listing of crashes on the public Web site, without an 
indication of preventability, can give an inaccurate impression about 
the risk posed by the company.
    On January 23, 2015, FMCSA announced the results of the Agency's 
study on the feasibility of using a motor carrier's role in crashes in 
the assessment of the company's safety (80 FR 3719). This study 
analyzed whether police accident reports provide sufficient, 
consistent, and reliable information to support crash-weighting 
determinations; whether a crash weighting determination process would 
offer an even stronger predictor of crash risk than overall crash 
involvement and how crash weighting would be implemented in the 
Agency's SMS; and how FMCSA might manage a process for making crash-
weighting determinations, including the acceptance of public input.
    Among the public comments to FMCSA's January 23, 2015, Federal 
Register notice, the American Trucking Associations (ATA) provided a 
list of certain types of not preventable crashes and suggested that 
FMCSA establish a process by which documents demonstrating that the 
crash was not preventable could be submitted to justify removing these 
crashes from the motor carriers' records.
    Based on ATA's recommendations and other feedback received in 
response to the January 2015 Federal Register notice, on July 12, 2016, 
FMCSA proposed, in a Federal Register notice, a demonstration program 
to determine the efficacy of preventability determinations on certain 
types of crashes that are generally less complex. (81 FR 45210) The 
Agency proposed to accept RDRs to evaluate the preventability of 
certain categories of crashes through its national data correction 
system known as DataQs. It proposed that a crash challenged through an 
RDR would be found not preventable when documentation submitted with 
the RDR established that the crash was not preventable.

Demonstration Program Details

Types of Crashes

    The Agency's July 2016 Federal Register notice advised that a crash 
would be considered not preventable if the documentation submitted by 
the motor carrier or driver established that the CMV was struck by a 
motorist who was convicted of one of the four following offenses or a 
related offense:
    1. Driving under the influence;
    2. Driving the wrong direction;
    3. Striking the CMV in the rear; or
    4. Striking the CMV while it was legally stopped.
    While there were comments opposing the demonstration program, there 
were no comments opposing the categorization of the four proposed crash 
scenarios as not preventable; so these categories will be retained in 
the demonstration program as crashes that may be challenged by the 
motor carrier through an RDR.
    Additionally, FMCSA advised in the July 2016 Federal Register 
notice that RDRs could also be submitted:
    1. When an individual committed suicide by stepping or driving in 
front of the CMV;
    2. When the CMV was incapacitated by an animal in the roadway; or
    3. When the crash was the result of an infrastructure failure.
    Comments to the Federal Register notice largely supported 
identifying these additional proposed crash scenarios as not 
preventable. Numerous commenters suggested expanding the list of 
crashes to include vehicles running stop signs and red lights, crashes 
involving two or fewer vehicles, or any crash where the other driver 
was cited. Many commenters provided specific examples of crashes their 
drivers were involved in that they felt were not preventable. For 
example, Bill Puckett discussed an incident where a driver was 
operating on the right hand shoulder and crashed into the CMV while the 
CMV was making a right turn.
    The Institute of Makers of Explosives recommended including crashes 
where vehicles are struck by debris, including trees and falling rocks. 
The American Bus Association recommended including crashes where 
vehicles are struck by cargo from another vehicle.

[[Page 35047]]

    After consideration of these comments, FMCSA modifies the original 
list of not preventable crash scenarios to include crashes involving an 
unattended CMV that is legally stopped or parked, and crashes involving 
road debris or cargo from another vehicle. FMCSA believes that these 
crash scenarios are similar to the scenarios originally proposed 
because they generally are not complex. However, other crash scenarios 
proposed by commenters are more complex and would require more analysis 
and probably generate less consistent findings.
    Therefore, the Agency has decided that the crashes that may be 
reviewed using the RDR process during the demonstration program 
include:
    1. When the CMV was struck by a motorist driving under the 
influence (or related offense);
    2. When the CMV was struck by a motorist driving the wrong 
direction;
    3. When the CMV was struck in the rear;
    4. When the CMV was struck while it was legally stopped or parked, 
including when the vehicle was unattended;
    5. When the CMV struck an individual committing or attempting to 
commit suicide by stepping or driving in front of the CMV;
    6. When the CMV sustained disabling damage after striking an animal 
in the roadway;
    7. When the crash was the result of an infrastructure failure, 
falling trees, rocks, or other debris; or
    8. When the CMV was struck by cargo or equipment from another 
vehicle.
    As proposed in the July 2016 notice, FMCSA will use the 
preventability standard in 49 CFR part 385, Appendix B: ``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.''

Conviction Requirement

    FMCSA proposed that evidence of a conviction, as defined in 49 CFR 
383.5 and 390.5, be required to document that the crash was not 
preventable by the motor carrier or driver. However, the vast majority 
of commenters opposed this requirement, including Richard Metz, Douglas 
B. Marcello, Vigillo, Knight Transportation, Greyhound, Advocates for 
Highway and Auto Safety (Advocates), Truck Safety Coalition (TSC) and 
the National Ready Mixed Concrete Association. Reasons cited included 
the amount of time that courts take to adjudicate cases, and the fact 
that, when the other driver dies in the crash, there is no prosecution. 
In addition, some commenters pointed out that the courts make a 
determination of ``at fault'' which has a definition different from 
``preventable.''
    After consideration of this feedback, FMCSA will not require 
evidence of a conviction before processing crash preventability 
requests in the demonstration program. The Agency will, however, review 
conviction information, if provided.

Documents To Be Submitted

    In the July 2016 notice, FMCSA proposed that the RDRs should 
include all available law enforcement reports, insurance reports from 
all parties involved in the crash, and any other relevant information. 
Douglas B. Marcello, Vigillo, and the Owner Operators Independent 
Driver Association (OOIDA) noted that receiving insurance reports from 
other parties is unlikely and should not be required. In addition, 
Robert Spikes cited a crash where the insurance company paid because it 
was more cost effective than going to court. Comments also indicated 
that the Agency should accept other evidence, including videos.
    Therefore, FMCSA will not require someone submitting a crash 
preventability RDR to include any specific documentation from third 
parties, such as insurance companies, but it will be incumbent on the 
submitter to provide sufficient documentation that a crash was not 
preventable. The Agency will consider all relevant evidence submitted.
    The burden is on the submitter to show by compelling evidence that 
the crash was not preventable. However, in these and all crashes, FMCSA 
reserves the right to request additional information on the crash, 
which may include any documentation the carrier is required to maintain 
under the Agency's regulations. Failure to submit documents requested 
by the Agency may cause the RDR to be closed without a preventability 
determination.
    On August 1, the Agency's DataQs system will accept videos 5 MB or 
smaller in specific video container formats, including MP4, MPG, MKV, 
AVI, MPEG, and WMV file types. These file types will be accepted in 
this demonstration program.

Re-Opening RDRs

    If, during the demonstration program, a submitter receives a 
determination that the crash was preventable or undecided, or the RDR 
is closed for failure to submit additional requested documents, the RDR 
may be re-opened once and the request reconsidered by FMCSA if 
additional documentation is submitted.

Out of Service Violations

    The Agency proposed that a crash would be found preventable if 
documentation showed that the CMV driver was in violation of an out of 
service (OOS) regulation at the time of the crash, e.g., the driver had 
exceeded his/her hours of service limits. In addition, FMCSA advised 
that the crash would be considered preventable if the post-crash 
inspection revealed that an OOS violation existed prior to the crash.
    United Vision Logistics asserted that an OOS violation should not 
be determinative unless it was a contributing factor to the crash. 
Transportation Safety Services also indicated that crashes should not 
be considered preventable due to OOS violations.
    While some commenters did not want other violations to impact the 
crash preventability decision, the Agency is retaining this requirement 
in the demonstration program consistent with the Agency's current 
preventability review procedures. Operations in violation of an OOS 
regulation demonstrate a disregard for safety and compliance. These 
crashes were preventable because the vehicle and/or driver should not 
have been operating. Therefore, if a vehicle and/or driver was 
operating with any OOS condition under the North American Standard OOS 
Criteria at the time of the crash, the RDR will result in a preventable 
determination, because the vehicle and/or driver should not have been 
on the roadway because of an OOS condition. Additionally, if the motor 
carrier was in violation of an operations OOS order, the crash will be 
determined to have been preventable.

Display of Crashes in FMCSA Systems

    In the July 2016 Federal Register notice, the Agency proposed that 
it would remove crashes determined to be ``Not Preventable'' from the 
motor carrier's public SMS display. The Agency noted that Section 5223 
of the Fixing America's Surface Transportation Act, Public Law 114-94, 
prohibits the Agency from making available to the general public 
information regarding crashes in which a determination is made that the 
motor carrier or the CMV driver is not at fault.
    In response to the Agency's proposal to remove not preventable 
crashes from the public SMS display, commenters correctly stated that 
the Agency was

[[Page 35048]]

improperly equating a finding of ``not preventable'' with a finding of 
``not at fault.'' Advocates stated that determinations of fault are 
``the province of the legal system'' and noted that independent 
investigations of a crash may reach different fault conclusions. 
Advocates advised that using ``only a limited amount of information 
about the incident, and without all of the benefits provided to a jury 
during a civil trial, including going to the scene, is grossly 
misguided.'' The TSC added that the State court systems are responsible 
for making determinations of fault. ATA advised that, ``The goal of 
this process should not be to definitely declare fault, but to identify 
the predictive value of crashes in the same way the agency does with 
violations.''
    Fault is generally determined in the course of civil or criminal 
proceedings and results in the assignment of legal liability for the 
consequences of a crash. By contrast, a preventability determination 
seeks to identify the root causes for a crash and is used to prevent 
the same type of crash from re-occurring. A preventability 
determination is not a proceeding to assign legal liability for a 
crash. Because preventability determinations are distinct from findings 
of fault, Section 5223 does not prohibit the public display of not 
preventable crashes.
    The demonstration program is intended to analyze preventability. 
The Agency believes that the public display of all crashes, regardless 
of the preventability determination, provides the most complete 
information regarding a motor carrier's safety performance record. The 
Agency is committed to the open and transparent reporting of safety 
performance data. Therefore, during the demonstration program, not 
preventable crashes will continue to be listed on the public SMS site. 
However, the review of the crash, and the subsequent determination, 
will be clearly noted as described below. In addition, during the 
demonstration program, the motor carrier's Crash Indicator BASIC 
percentiles for motor carriers logged into the SMS, FMCSA, and law 
enforcement users will show percentiles with and without the crashes 
determined to be not preventable.
    During the demonstration program, changes in SMS will not be 
reflected in the Agency's mobile applications such as the SaferBus and 
Query Central (QC Mobile) apps or the Pre-employment Screening Program.

Weighting of Not Preventable Crashes

    FMCSA considered weighting crashes determined to be preventable 
with a higher weight in the SMS to see the impacts to the Agency's 
crash correlation models. YRC Worldwide, Inc. and OOIDA expressed 
concerns about weighting crashes determined to be preventable. It was 
noted that this might discourage participation in the demonstration 
program. As a result, FMCSA will not use a higher severity weighting 
for any crashes determined to be preventable for any SMS calculations 
during the demonstration program. However, the Agency's analysis of the 
demonstration program will review these crashes and include severity 
weight options to determine impacts on crash correlation.

Preventability Decisions

    The Agency did not receive comments requesting changes to the three 
proposed preventability decisions. The three preventability decisions 
will remain ``Not Preventable,'' ``Preventable,'' and ``Undecided.'' 
FMCSA clarifies below how these decisions will be displayed:
    1. Not Preventable--The public display of SMS will include a 
notation that reads, ``FMCSA reviewed this crash and determined that it 
was not preventable.'' For logged-in users (motor carriers viewing 
their own data, FMCSA, and law enforcement users), two Crash Indicator 
BASIC percentiles will be calculated--one with and one without the not 
preventable crash(es).
    2. Preventable--The public display of SMS will include a notation 
that reads, ``FMCSA reviewed this crash and determined that it was 
preventable.''
    3. Undecided--In these cases, the documentation submitted did not 
allow for a conclusive decision by reviewers. When crash reviews are 
undecided, SMS will include a notation that reads, ``FMCSA reviewed 
this crash and could not make a preventability determination based on 
the evidence provided.''
    In addition, if a submitter fails to provide documents requested by 
FMCSA, the RDR will be designated in DataQs as ``Closed Due to Non-
Response'' without any notation in the public display of SMS.

Input From the Public

    The July 2016 Federal Register notice proposed to allow public 
input on any crashes with a proposed not preventable determination. 
United Vision Logistics and the National Motor Freight Traffic 
Association do not believe that an opportunity for public input should 
be available in the program. The American Association for Justice 
advised that the public must have access to the data used to make a 
determination.
    The opportunity to collect information from other parties is 
critical to determining the impacts and costs of this program. 
Therefore, during the demonstration program, if a crash is reviewed and 
results in a preliminary finding that it was not preventable, the crash 
report number, U.S. DOT number, motor carrier name, crash event date, 
crash event State and crash type will be listed on the Agency's DataQs 
Web site.
    Any member of the public with documentation or data to refute the 
proposed finding will have 30 days to submit the documentation through 
the DataQs system at https://dataqs.fmcsa.dot.gov. Information on how 
to submit additional documentation is available at https://www.fmcsa.dot.gov/safety/crash-preventability-program.
    Any new documents or data will be reviewed and considered before 
FMCSA makes a final determination. Final determinations will be 
reflected on SMS within 60 days of the final decision.

DataQs

    Motor carriers and drivers will submit crash preventability RDRs 
through the Agency's DataQs system. DataQs has been modified to provide 
this functionality. The DataQs system is available at: https://dataqs.fmcsa.dot.gov.
    Information on how to submit a crash preventability RDR is 
available on the Agency's Web site at https://www.fmcsa.dot.gov/safety/crash-preventability-program.
    It should be noted that crash preventability RDRs for crashes that 
predate this program or that do not correspond to the crash scenarios 
listed above will not be processed. However, motor carriers and drivers 
should continue to submit RDRs through DataQs when crashes are assigned 
to the wrong carrier or the crash did not meet the definition of a 
recordable crash, using processes currently in place.

Reviewers

    FMCSA will use contract resources to complete two stages of review 
within the DataQs system. In stage 1, the reviewer will collect all 
documents related to the crash from the submitter and FMCSA systems.
    In stage 2, an experienced crash report reviewer will evaluate all 
of the documents from the submitter and FMCSA systems, including the 
MCMIS crash information. It should be noted that if an RDR is submitted 
before the MCMIS crash report is received, the

[[Page 35049]]

evaluation will be put on hold and the submitter will be advised.
    The stage 2 reviewer will confirm that the crash meets one of the 
crash types noted above. Based on the evidence reviewed, the stage 2 
reviewer will make a recommendation to FMCSA as to whether compelling 
evidence demonstrates that the crash was not preventable. The FMCSA 
reviewer will review the evidence considered by the stage 1 reviewer 
and the stage 2 recommendation. If FMCSA agrees with the recommendation 
of not preventable, the crash will be posted for public input as noted 
above. If the recommendation is for a determination that the crash was 
preventable or that the information submitted was insufficient to 
support a determination, and the FMCSA reviewer agrees, the 
determination of ``Preventable'' or ``Undecided'' would be noted in the 
public SMS display as described in the ``Preventability Decisions'' 
section above added to the corresponding crash in SMS. Changes would be 
reflected on SMS within 60 days.

Quality Controls

    At the onset of the program, all RDRs will be checked by a second 
reviewer during stage 2. If FMCSA's determination differs from the 
stage 2 recommendation, an additional final reviewer will be utilized 
and make a recommendation to FMCSA.
    Throughout the program, FMCSA will evaluate the quality control 
process. For continued consistency of crash preventability 
determinations, a percentage of RDRs will be reviewed before a 
recommendation is made to FMCSA.

Fraudulent Requests

    In accordance with the Agency's existing DataQs program, any 
intentionally false or misleading statement, representation, or 
document that is provided in support of an RDR may result in 
prosecution for a violation of Federal law (18 U.S.C. 1001).

Agency Use of Data

    Under 49 U.S.C. 504(f), ``No part of a report of an accident 
occurring in operations of a motor carrier, motor carrier of migrant 
workers, or motor private carrier and required by the Secretary, and no 
part of a report of an investigation of the accident made by the 
Secretary, may be admitted into evidence or used in a civil action for 
damages related to a matter mentioned in the report or investigation.'' 
The crash preventability determinations made under this program are 
intended only for FMCSA's use in determining whether the program may 
improve the Agency's prioritization tools. These determinations are 
made on the basis of information available to FMCSA at the time of the 
determination and are not appropriate for use by private parties in 
civil litigation. These determinations do not establish fault or 
negligence by any party and are made by persons with no personal 
knowledge of the crash.
    In addition, the crash preventability determinations made under 
this program will not affect any carrier's safety rating or ability to 
operate. FMCSA will not issue penalties or sanctions on the basis of 
these determinations, nor do they establish any obligations or impose 
legal requirements on any motor carrier. These determinations also will 
not change how the Agency will make enforcement decisions.
    Information submitted about a crash as part of this demonstration 
program may be shared with the appropriate FMCSA Division Office for 
further investigation. Likewise, if an investigation reveals additional 
information about a crash for which the demonstration program made a 
preventability determination, this information may be shared within the 
Agency and the crash subjected to further review.
    Throughout this demonstration period, FMCSA will maintain data so 
that at the conclusion of the test, the Agency can conduct certain 
analyses. It is expected that the Agency's analyses would include, but 
not be limited to, the cost of operating the test and its extrapolation 
to a larger program; future crash rates of carriers that submitted 
RDRs, future crash rates of motor carriers with not preventable 
crashes, and impacts to SMS crash rates and improvements to 
prioritization. The analysis will be used to examine ATA's assertion 
that crashes of these types are not preventable and that removing these 
crashes from the motor carriers' records would result in a better 
correlation to future crash risk, and inform future policy decisions on 
this issue.

Demonstration Period

    FMCSA will accept RDRs for crashes occurring on or after June 1, 
2017. FMCSA will begin accepting RDRs through DataQs for this 
demonstration program on August 1, 2017. This will provide the Agency 
with time to conduct outreach to the industry and for motor carriers or 
drivers to collect needed documents for submission.
    This demonstration program is expected to last a minimum of 24 
months.

Other Issues

Prioritization

    For the purpose of prioritizing motor carriers for safety 
interventions, FMCSA will continue to use all crashes during the 
demonstration program.

Safety Fitness Determination Rulemaking

    A few commenters asked how this program would impact the Agency's 
Safety Fitness Determination (SFD) notice of proposed rulemaking (NPRM) 
published on January 21, 2016. Preventability determinations made as 
part of this demonstration program will not be used for the purpose of 
safety ratings under the Agency's existing safety fitness determination 
process. The Agency will continue to make preventability determinations 
under its current procedures in 49 CFR part 385, Appendix B, when a 
crash adversely affects a carrier's safety rating. If a carrier 
disagrees with the calculation of the crash factor during a compliance 
review the carrier must request removal under the procedures identified 
in the compliance review report it receives or under the procedures 
identified in 49 CFR 385.15. The determinations made through this 
demonstration program will only be used to determine the impacts of 
preventability determinations on the effectiveness of the SMS in 
identifying the highest-risk carriers for interventions. Crash 
determinations made in this demonstration program will not be 
considered as part of any Agency action or proceeding that may impact a 
carrier's safety rating, including safety rating upgrade requests.
    In addition, FMCSA published a notice withdrawing the SFD NPRM on 
March 23, 2017.

Opposition

    While most comments to the July 2016 Federal Register notice 
supported the program, there were four commenters that expressed 
opposition on the program in its entirety. The TSC advised that it 
``firmly opposes'' the program. TSC and Road Safe America believe that 
FMCSA should not expend time or money pursuing this program, and that 
instead the Agency should focus on regulations that will reduce 
crashes. TSC, Road Safe America, and the American Association for 
Justice want all crashes to be in SMS. The Coalition of Seven added 
that the ``test study as proposed. . .is of marginal utility and would 
not materially improve the accuracy of the crash data.''
    The purpose of this demonstration program, however, is to gather 
data that

[[Page 35050]]

the Agency will use to examine the feasibility, costs, and benefits of 
making crash preventability determinations. The data gathered through 
the demonstration program will allow the Agency to better evaluate the 
utility of making crash preventability determinations. As a result, 
FMCSA is moving forward to implement this demonstration program.

    Issued under the authority delegated in 49 CFR 1.87 on: July 19, 
2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-15833 Filed 7-26-17; 8:45 am]
 BILLING CODE 4910-EX-P