82_FR_14903 82 FR 14848 - Carrier Safety Fitness Determination

82 FR 14848 - Carrier Safety Fitness Determination

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 82, Issue 55 (March 23, 2017)

Page Range14848-14850
FR Document2017-05777

FMCSA withdraws its January 21, 2016, notice of proposed rulemaking (NPRM), which proposed a revised methodology for issuance of a safety fitness determination (SFD) for motor carriers. The new methodology would have determined when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on the carrier's on-road safety data; an investigation; or a combination of on-road safety data and investigation information. FMCSA had recently announced that, rather than move to a final rule, a Supplemental Notice of Proposed Rulemaking (SNPRM) would be the next step in the rulemaking process. However, after reviewing the record in this matter, FMCSA withdraws the NPRM and cancels the plans to develop a Supplemental Notice of Proposed Rulemaking. The Agency must receive the Correlation Study from the National Academies of Science, as required by the Fixing America's Surface Transportation (FAST) Act, assess whether and, if so, what corrective actions are advisable, and complete additional analysis before determining whether further rulemaking action is necessary to revise the safety fitness determination process.

Federal Register, Volume 82 Issue 55 (Thursday, March 23, 2017)
[Federal Register Volume 82, Number 55 (Thursday, March 23, 2017)]
[Proposed Rules]
[Pages 14848-14850]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-05777]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 365, 385, 386, 387, and 395

[Docket No. FMCSA-2015-0001]
RIN 2126-AB11


Carrier Safety Fitness Determination

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

ACTION: Notice of withdrawal.

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SUMMARY: FMCSA withdraws its January 21, 2016, notice of proposed 
rulemaking (NPRM), which proposed a revised methodology for issuance of 
a safety fitness determination (SFD) for motor carriers. The new 
methodology would have determined when a motor carrier is not fit to 
operate commercial motor vehicles (CMVs) in or affecting interstate 
commerce based on the carrier's on-road safety data; an investigation; 
or a combination of on-road safety data and investigation information. 
FMCSA had recently announced that, rather than move to a final rule, a 
Supplemental Notice of Proposed Rulemaking (SNPRM) would be the next 
step in the rulemaking process. However, after reviewing the record in 
this matter, FMCSA withdraws the NPRM and cancels the plans to develop 
a Supplemental Notice of Proposed Rulemaking. The Agency must receive 
the Correlation Study from the National Academies of Science, as 
required by the Fixing America's Surface Transportation (FAST) Act, 
assess whether and, if so, what corrective actions are advisable, and 
complete additional analysis before determining whether further 
rulemaking action is necessary to revise the safety fitness 
determination process.

DATES: The NPRM ``Carrier Safety Fitness Determination,'' RIN 2126-
AB11, published on January 21, 2016 (81 FR 3562), is withdrawn as of 
March 23, 2017.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Baker, (202) 366-3397, 
[email protected]. FMCSA office hours are from 7:30 a.m. to 4 p.m., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: On January 21, 2016, FMCSA published an NPRM 
proposing revisions to the current methodology for issuance of a SFD 
for motor carriers as required by 49 U.S.C. 31144 (81 FR 3562).
    The essential elements of the proposed rule included determining 
safety fitness from not only a comprehensive compliance investigation, 
but also considering roadside inspections data. Adding roadside 
inspections to the proposal included a minimum number of inspections 
and violations to be used for the SFD, as well as providing failure 
standards, and elimination of the current three-tier rating system 
(i.e., satisfactory--conditional--unsatisfactory). Also, the NPRM 
proposed revising the SFD appeals process and establishing 
implementation and transition provisions for a final rule.
    The Agency received 153 initial comment period submissions and 17 
reply comment period submissions in response to the NPRM. After 
considering the comments, FMCSA announced that, rather than move to a 
final rule, a SNPRM would be the next step in the rulemaking 
process.\1\
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    \1\ See ``FMCSA Sets Schedule for Safety Fitness Determination--
Supplemental Notice of Proposed Rulemaking,'' January 12, 2017, at 
https://www.fmcsa.dot.gov/newsroom/fmcsa-sets-schedule-safety-fitness-determination-supplemental-notice-proposed-rulemaking.
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NPRM Comments Generally

Elimination of Three Tier Rating System and Scope of FMCSA Rating 
Obligation

    In the NPRM, FMCSA proposed to eliminate the current three ratings 
of satisfactory, conditional and unsatisfactory. Instead, the Agency 
proposed only one rating of ``unfit.'' Commenters including John 
Brannum, C.H. Robinson, Greyhound Lines, Advocates for Highway and Auto 
Safety (Advocates), Road Safe America, Truck Safety Coalition and the 
American Association for Justice supported the termination of the 
three-tier rating system. These commenters supported the fact that this 
change would not allow conditional carriers to operate without 
improving their operations and would make it much clearer for the 
shipping community to determine which carriers may or may not operate. 
Specifically, C. H. Robinson noted it has long recommended a two-tiered 
structure that more clearly signals to shippers, and other industry 
stakeholders, which carriers should not be hired due to safety 
concerns. It said all stakeholders seek clear direction from FMCSA, and 
FMCSA desires stakeholders to properly use data collected by FMCSA. 
David Gee, an owner of a motor carrier and a broker, commented that the 
Agency should use the rulemaking to affirm that the shipper and broker 
community can rely upon the agency's ultimate safety fitness 
determination in making carrier selections free from state law 
negligence suits. Greyhound stated it agrees that the change will do 
away with the misperception that a ``satisfactory'' rating is a sign of 
operational approval.
    However, commenters including the National Motor Freight Traffic 
Association (NMFTA), Minnesota Trucking Association, School Bus, Inc., 
National School Transportation Association, and the American Trucking 
Associations, Inc. (ATA), opposed the proposed change. ATA wrote that 
the proposal to remove the term ``safety rating'' may have negative, 
perhaps unanticipated, consequences. Specifically, ATA explained that 
there will be no means to distinguish fleets whose safety management 
controls have been verified during compliance reviews (i.e. those 
labeled

[[Page 14849]]

``Satisfactory'') from fleets that have not been reviewed. Second, 
there will be no means to separate fleets with documented deficiencies 
(i.e. those labeled ``Conditional'') from all other fleets not labeled 
``Unfit.'' In addition to the inequity this creates for fleets that 
have earned a ``Satisfactory'' rating, ATA believes it does a 
disservice to third parties and the general public who should be 
alerted to the fleets with documented problems. ATA also proposed that 
FMCSA should allow fleets that have been investigated to maintain their 
satisfactory ratings; this idea was echoed by NMFTA and the Intermodal 
Association of North America.
    Further, ATA suggested that FMCSA consider three labels: Assessed--
Unfit, Assessed--Not Unfit, and Not Assessed. ATA noted that a tiered 
naming convention such as this could help eliminate confusion and leave 
third parties better informed.
    Some commenters also asserted that FMCSA, contrary to the position 
expressed in the NPRM, had a statutory duty to determine the fitness of 
all motor carriers, not just those that are unfit. These commenters 
claimed that the provisions of 49 U.S.C. 31144 require such actions.

Failure Standards

    Advocates expressed concern that, as proposed, one of the 
assessment methods would only reach the worst 1 percent or 4 percent of 
carriers, depending on the various categories. Advocates believe that 
the failure standards were ``artificially selected'' based on the 
Agency's resources ``instead of making safety the highest priority.'' 
Advocates recommended that the SFD process should identify each and 
every motor carrier that is unsafe and needs to be determined 
``Unfit.'' Contrarily, to support the Agency's proposal, the 
International Brotherhood of Teamsters offered that the Agency should 
only be expected to determine the safety fitness of as many carriers as 
possible, given existing resources.
    Advocates further commented that if the agency plans to use the 
absolute performance measure based on a snapshot of data to establish 
the thresholds, there must be a plan to continually update this data to 
encourage improvements in safety on par with increases in on-road 
safety, both within the industry and on-road in general.
    Knight Transportation agreed with the Agency's proposal that 
carrier fitness should not be based on relative peer performance. NMFTA 
added that the assignment of absolute failure standards for the 
individual categories would provide a carrier with a better method to 
track and assess its safety compliance based on the roadside 
inspections, and sooner identify an area which might require additional 
attention. The International Brotherhood of Teamsters noted that, under 
the proposed methodology, carriers will benefit from being judged 
solely on their own performance rather than other companies' safety 
performance. Intermodal Association of North America also believes that 
moving to an absolute measurement approach is an improved method over 
the existing, relative measurements of the Compliance, Safety, and 
Accountability program.
    The American Bus Association questioned how FMCSA can issue a 
regulatory proposal to change the long standing safety fitness 
determination process for motor carriers, without providing the failure 
standards in the NPRM.
    C.H. Robinson commended the decision to move away from a percentile 
ranking and establish firm, fixed safety data targets as represented by 
the ``absolute measure'' thresholds that began to be published in 
August 2014. C.H. Robinson found, however, that FMCSA has not educated 
stakeholders well about how absolute measures are formulated and 
specifically why absolute measures vary greatly across peer groups. 
C.H. Robinson suggests FMCSA fully explain absolute measures to 
shippers, brokers and other stakeholders, to reduce the risk that small 
business carriers will be adversely impacted. C.H. Robinson believes 
the potential adverse impact to small carriers regarding this confusion 
is significant.
    In addition, the Alliance for Safe, Efficient and Competitive Truck 
Transportation (ASCETT) noted that, with declining inspection rates, 
continued evidence of enforcement anomalies, electronic logging devices 
(ELDs) and speed limiters, a new NPRM and opportunity for notice and 
comment is needed. ASCETT further commented that the Agency will have 
to recalibrate the failure measures through rulemaking to justify new 
enforcement thresholds. However, ASCETT questioned if the 
recalibrations would be worth the expense.

Criticism of Data Analysis Period (2011)

    Some commenters noted that applying the methodologies to more 
current data would change the population of carriers that would be 
identified as proposed unfit. Commenters noted that the number of 
inspections has decreased since 2011. Additionally, some commenters 
pointed out that by the end of 2017, ELDs will be mandatory. This 
change will alter the violations in the Hours of Service category. 
Also, these commenters stated that if speed limiters become mandated 
for heavy vehicles this would result in changes to violations.

Comments on Costs

    Some commenters alleged that some costs associated with declaring 
additional carriers ``unfit'' were not considered in the economic 
analysis. According to these commenters, other costs to consider in 
addition to those currently in the economic analysis include: Impacts 
to non-driver staff; costs for improving performance to come into 
compliance (e.g., attorney, consultant, and employee training costs); 
costs for administrative appeals; damage to business reputation and 
creditworthiness; lost sales; opportunity costs of time away from the 
business; lost revenue to suppliers (such as fuel suppliers); lost 
capital utilization if vehicles are taken off the market unnecessarily; 
defaults on loans; repossession of equipment; and personal bankruptcy 
of owners.

Impacts on Small Businesses

    Three commenters suggested that FMCSA should consider changes to 
the proposed rule for small entities, including retaining the 
``corrective action plan'' provision in the current regulation. In 
addition, some commenters recommended that FMCSA allow for reduced 
reporting requirements and timetables for small carriers.

Letter to the Secretary of Transportation Urging Withdrawal

    On February 15, 2017, a letter from 62 national and regional 
organizations of motor carriers urged Secretary of Transportation 
Elaine L. Chao to withdraw the NPRM; a copy of the letter has been 
added to the docket.
    The organizations argued that the proposed rule utilizes SMS data 
and methodologies, which Congress directed the National Academies of 
Science to review in the Fixing America's Surface Transportation Act, 
Public Law 114-94 (FAST Act) (Dec. 4, 2015). The National Academies of 
Science final report is expected in June 2017. The organizations 
representing motor property and passenger carriers believe it is ill-
advised to develop a new SFD system until the report is received and 
any necessary reforms are made through corrective actions to the 
foundational data and methodologies that support

[[Page 14850]]

safety fitness determinations. While the petitioners support the goal 
of an easily understandable, rational SFD system, they believe the NPRM 
should be withdrawn at this time.

FMCSA Decision To Withdraw the NPRM

    Based on the current record, including comments received in 
response to the NPRM and the February 2017 correspondence to Secretary 
Chao, FMCSA has decided to withdraw the January 2016 NPRM and, 
accordingly, cancels the plans to develop a SNPRM as announced by the 
Agency on January 12, 2017. If FMCSA determines changes to the safety 
fitness determination process are still necessary and advisable in the 
future, a new rulemaking would be initiated that will incorporate any 
appropriate recommendations from the National Academies of Science and 
the comments received through this rulemaking. The NPRM concerning 
motor carrier safety fitness determinations is withdrawn.

    Issued under the authority delegated in 49 CFR 1.87 on: March 
17, 2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-05777 Filed 3-22-17; 8:45 am]
 BILLING CODE 4910-EX-P



                                                  14848                  Federal Register / Vol. 82, No. 55 / Thursday, March 23, 2017 / Proposed Rules

                                                  ppm; and vegetable, fruiting, group 8–10                carrier’s on-road safety data; an                     final rule, a SNPRM would be the next
                                                  at 1.0 ppm. Practical analytical methods                investigation; or a combination of on-                step in the rulemaking process.1
                                                  for detecting and measuring levels of                   road safety data and investigation                    NPRM Comments Generally
                                                  clethodim have been developed and                       information. FMCSA had recently
                                                  validated in/on all appropriate                         announced that, rather than move to a                 Elimination of Three Tier Rating System
                                                  agricultural commodities and respective                 final rule, a Supplemental Notice of                  and Scope of FMCSA Rating Obligation
                                                  processing fractions. The Limit of                      Proposed Rulemaking (SNPRM) would                        In the NPRM, FMCSA proposed to
                                                  Quantitation (LOQ) of clethodim in the                  be the next step in the rulemaking                    eliminate the current three ratings of
                                                  methods is 0.2 ppm, which will allow                    process. However, after reviewing the                 satisfactory, conditional and
                                                  monitoring of food with residues at the                 record in this matter, FMCSA                          unsatisfactory. Instead, the Agency
                                                  levels proposed for the tolerances.                     withdraws the NPRM and cancels the                    proposed only one rating of ‘‘unfit.’’
                                                  Contact: RD.                                            plans to develop a Supplemental Notice                Commenters including John Brannum,
                                                  Amended Tolerance Exemptions                            of Proposed Rulemaking. The Agency                    C.H. Robinson, Greyhound Lines,
                                                                                                          must receive the Correlation Study from               Advocates for Highway and Auto Safety
                                                     1. PP 6G8523. (EPA–HQ–OPP–2014–                                                                            (Advocates), Road Safe America, Truck
                                                  0457). J.R. Simplot Company, 5369 W.                    the National Academies of Science, as
                                                                                                          required by the Fixing America’s                      Safety Coalition and the American
                                                  Irving St., Boise, ID 83706, requests to                                                                      Association for Justice supported the
                                                  amend an exemption from the                             Surface Transportation (FAST) Act,
                                                                                                          assess whether and, if so, what                       termination of the three-tier rating
                                                  requirement of a tolerance in 40 CFR                                                                          system. These commenters supported
                                                  174.534 for residues of the plant-                      corrective actions are advisable, and
                                                                                                          complete additional analysis before                   the fact that this change would not
                                                  incorporated protectant (PIP) VNT1                                                                            allow conditional carriers to operate
                                                  protein in or on potato. The petitioner                 determining whether further rulemaking
                                                                                                          action is necessary to revise the safety              without improving their operations and
                                                  believes no analytical method is needed                                                                       would make it much clearer for the
                                                  for enforcement purposes because the                    fitness determination process.
                                                                                                                                                                shipping community to determine
                                                  VNT1 protein concentration is lower                     DATES: The NPRM ‘‘Carrier Safety                      which carriers may or may not operate.
                                                  than the detectable limit of 100 parts per              Fitness Determination,’’ RIN 2126–                    Specifically, C. H. Robinson noted it has
                                                  billion (ppb) in tubers. As the                         AB11, published on January 21, 2016                   long recommended a two-tiered
                                                  expression levels of the VNT1 protein                   (81 FR 3562), is withdrawn as of March                structure that more clearly signals to
                                                  are below detection limits, it is                                                                             shippers, and other industry
                                                                                                          23, 2017.
                                                  impractical to demonstrate methods for                                                                        stakeholders, which carriers should not
                                                  detecting and measuring the levels of                   FOR FURTHER INFORMATION CONTACT:    Ms.               be hired due to safety concerns. It said
                                                  the pesticide residues. Contact: BPPD.                  Barbara Baker, (202) 366–3397,                        all stakeholders seek clear direction
                                                     Authority: 21 U.S.C. 346a.                           barbara.baker@dot.gov. FMCSA office                   from FMCSA, and FMCSA desires
                                                                                                          hours are from 7:30 a.m. to 4 p.m.,                   stakeholders to properly use data
                                                     Dated: January 11, 2017.
                                                                                                          Monday through Friday, except Federal                 collected by FMCSA. David Gee, an
                                                  Michael Goodis,
                                                                                                          holidays.                                             owner of a motor carrier and a broker,
                                                  Acting Director, Registration Division, Office
                                                  of Pesticide Programs.                                                 On
                                                                                                          SUPPLEMENTARY INFORMATION:                            commented that the Agency should use
                                                                                          January 21, 2016, FMCSA published an
                                                  [FR Doc. 2017–05704 Filed 3–22–17; 8:45 am]
                                                                                                                                                                the rulemaking to affirm that the
                                                                                          NPRM proposing revisions to the                                       shipper and broker community can rely
                                                  BILLING CODE 6560–50–P
                                                                                          current methodology for issuance of a                                 upon the agency’s ultimate safety fitness
                                                                                          SFD for motor carriers as required by 49                              determination in making carrier
                                                                                                                                                                selections free from state law negligence
                                                  DEPARTMENT OF TRANSPORTATION U.S.C. 31144 (81 FR 3562).                                                       suits. Greyhound stated it agrees that
                                                                                            The essential elements of the                                       the change will do away with the
                                                  Federal Motor Carrier Safety            proposed rule included determining                                    misperception that a ‘‘satisfactory’’
                                                  Administration                          safety fitness from not only a                                        rating is a sign of operational approval.
                                                                                          comprehensive compliance                                                 However, commenters including the
                                                  49 CFR Parts 350, 365, 385, 386, 387,   investigation, but also considering                                   National Motor Freight Traffic
                                                  and 395                                 roadside inspections data. Adding                                     Association (NMFTA), Minnesota
                                                  [Docket No. FMCSA–2015–0001]            roadside inspections to the proposal                                  Trucking Association, School Bus, Inc.,
                                                                                          included a minimum number of                                          National School Transportation
                                                  RIN 2126–AB11                           inspections and violations to be used for                             Association, and the American Trucking
                                                  Carrier Safety Fitness Determination    the SFD, as well as providing failure                                 Associations, Inc. (ATA), opposed the
                                                                                          standards, and elimination of the                                     proposed change. ATA wrote that the
                                                  AGENCY: Federal Motor Carrier Safety    current three-tier rating system (i.e.,                               proposal to remove the term ‘‘safety
                                                  Administration (FMCSA), DOT.            satisfactory—conditional—                                             rating’’ may have negative, perhaps
                                                  ACTION: Notice of withdrawal.           unsatisfactory). Also, the NPRM                                       unanticipated, consequences.
                                                                                          proposed revising the SFD appeals                                     Specifically, ATA explained that there
                                                  SUMMARY: FMCSA withdraws its January process and establishing                                                 will be no means to distinguish fleets
                                                  21, 2016, notice of proposed rulemaking implementation and transition                                         whose safety management controls have
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                                                  (NPRM), which proposed a revised        provisions for a final rule.                                          been verified during compliance
                                                  methodology for issuance of a safety                                                                          reviews (i.e. those labeled
                                                  fitness determination (SFD) for motor     The Agency received 153 initial
                                                  carriers. The new methodology would     comment period submissions and 17                                       1 See ‘‘FMCSA Sets Schedule for Safety Fitness

                                                  have determined when a motor carrier    reply comment period submissions in                                   Determination—Supplemental Notice of Proposed
                                                  is not fit to operate commercial motor  response to the NPRM. After                                           Rulemaking,’’ January 12, 2017, at https://
                                                                                                                                                                www.fmcsa.dot.gov/newsroom/fmcsa-sets-schedule-
                                                  vehicles (CMVs) in or affecting         considering the comments, FMCSA                                       safety-fitness-determination-supplemental-notice-
                                                  interstate commerce based on the        announced that, rather than move to a                                 proposed-rulemaking.



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                                                                         Federal Register / Vol. 82, No. 55 / Thursday, March 23, 2017 / Proposed Rules                                          14849

                                                  ‘‘Satisfactory’’) from fleets that have not             for the individual categories would                   inspections has decreased since 2011.
                                                  been reviewed. Second, there will be no                 provide a carrier with a better method                Additionally, some commenters pointed
                                                  means to separate fleets with                           to track and assess its safety compliance             out that by the end of 2017, ELDs will
                                                  documented deficiencies (i.e. those                     based on the roadside inspections, and                be mandatory. This change will alter the
                                                  labeled ‘‘Conditional’’) from all other                 sooner identify an area which might                   violations in the Hours of Service
                                                  fleets not labeled ‘‘Unfit.’’ In addition to            require additional attention. The                     category. Also, these commenters stated
                                                  the inequity this creates for fleets that               International Brotherhood of Teamsters                that if speed limiters become mandated
                                                  have earned a ‘‘Satisfactory’’ rating,                  noted that, under the proposed                        for heavy vehicles this would result in
                                                  ATA believes it does a disservice to                    methodology, carriers will benefit from               changes to violations.
                                                  third parties and the general public who                being judged solely on their own
                                                                                                                                                                Comments on Costs
                                                  should be alerted to the fleets with                    performance rather than other
                                                  documented problems. ATA also                           companies’ safety performance.                          Some commenters alleged that some
                                                  proposed that FMCSA should allow                        Intermodal Association of North                       costs associated with declaring
                                                  fleets that have been investigated to                   America also believes that moving to an               additional carriers ‘‘unfit’’ were not
                                                  maintain their satisfactory ratings; this               absolute measurement approach is an                   considered in the economic analysis.
                                                  idea was echoed by NMFTA and the                        improved method over the existing,                    According to these commenters, other
                                                  Intermodal Association of North                         relative measurements of the                          costs to consider in addition to those
                                                  America.                                                Compliance, Safety, and Accountability                currently in the economic analysis
                                                     Further, ATA suggested that FMCSA                    program.                                              include: Impacts to non-driver staff;
                                                  consider three labels: Assessed—Unfit,                     The American Bus Association                       costs for improving performance to
                                                  Assessed—Not Unfit, and Not Assessed.                   questioned how FMCSA can issue a                      come into compliance (e.g., attorney,
                                                  ATA noted that a tiered naming                          regulatory proposal to change the long                consultant, and employee training
                                                  convention such as this could help                      standing safety fitness determination                 costs); costs for administrative appeals;
                                                  eliminate confusion and leave third                     process for motor carriers, without                   damage to business reputation and
                                                  parties better informed.                                providing the failure standards in the                creditworthiness; lost sales; opportunity
                                                     Some commenters also asserted that                   NPRM.                                                 costs of time away from the business;
                                                  FMCSA, contrary to the position                            C.H. Robinson commended the                        lost revenue to suppliers (such as fuel
                                                  expressed in the NPRM, had a statutory                  decision to move away from a percentile               suppliers); lost capital utilization if
                                                  duty to determine the fitness of all                    ranking and establish firm, fixed safety              vehicles are taken off the market
                                                  motor carriers, not just those that are                 data targets as represented by the                    unnecessarily; defaults on loans;
                                                  unfit. These commenters claimed that                    ‘‘absolute measure’’ thresholds that                  repossession of equipment; and
                                                  the provisions of 49 U.S.C. 31144                       began to be published in August 2014.                 personal bankruptcy of owners.
                                                  require such actions.                                   C.H. Robinson found, however, that
                                                                                                          FMCSA has not educated stakeholders                   Impacts on Small Businesses
                                                  Failure Standards                                                                                                Three commenters suggested that
                                                                                                          well about how absolute measures are
                                                     Advocates expressed concern that, as                 formulated and specifically why                       FMCSA should consider changes to the
                                                  proposed, one of the assessment                         absolute measures vary greatly across                 proposed rule for small entities,
                                                  methods would only reach the worst 1                    peer groups. C.H. Robinson suggests                   including retaining the ‘‘corrective
                                                  percent or 4 percent of carriers,                       FMCSA fully explain absolute measures                 action plan’’ provision in the current
                                                  depending on the various categories.                    to shippers, brokers and other                        regulation. In addition, some
                                                  Advocates believe that the failure                      stakeholders, to reduce the risk that                 commenters recommended that FMCSA
                                                  standards were ‘‘artificially selected’’                small business carriers will be adversely             allow for reduced reporting
                                                  based on the Agency’s resources                         impacted. C.H. Robinson believes the                  requirements and timetables for small
                                                  ‘‘instead of making safety the highest                  potential adverse impact to small                     carriers.
                                                  priority.’’ Advocates recommended that                  carriers regarding this confusion is
                                                  the SFD process should identify each                                                                          Letter to the Secretary of Transportation
                                                                                                          significant.
                                                  and every motor carrier that is unsafe                     In addition, the Alliance for Safe,                Urging Withdrawal
                                                  and needs to be determined ‘‘Unfit.’’                   Efficient and Competitive Truck                          On February 15, 2017, a letter from 62
                                                  Contrarily, to support the Agency’s                     Transportation (ASCETT) noted that,                   national and regional organizations of
                                                  proposal, the International Brotherhood                 with declining inspection rates,                      motor carriers urged Secretary of
                                                  of Teamsters offered that the Agency                    continued evidence of enforcement                     Transportation Elaine L. Chao to
                                                  should only be expected to determine                    anomalies, electronic logging devices                 withdraw the NPRM; a copy of the letter
                                                  the safety fitness of as many carriers as               (ELDs) and speed limiters, a new NPRM                 has been added to the docket.
                                                  possible, given existing resources.                     and opportunity for notice and                           The organizations argued that the
                                                     Advocates further commented that if                  comment is needed. ASCETT further                     proposed rule utilizes SMS data and
                                                  the agency plans to use the absolute                    commented that the Agency will have to                methodologies, which Congress directed
                                                  performance measure based on a                          recalibrate the failure measures through              the National Academies of Science to
                                                  snapshot of data to establish the                       rulemaking to justify new enforcement                 review in the Fixing America’s Surface
                                                  thresholds, there must be a plan to                     thresholds. However, ASCETT                           Transportation Act, Public Law 114–94
                                                  continually update this data to                         questioned if the recalibrations would                (FAST Act) (Dec. 4, 2015). The National
                                                  encourage improvements in safety on                                                                           Academies of Science final report is
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                                                                                                          be worth the expense.
                                                  par with increases in on-road safety,                                                                         expected in June 2017. The
                                                  both within the industry and on-road in                 Criticism of Data Analysis Period (2011)              organizations representing motor
                                                  general.                                                  Some commenters noted that                          property and passenger carriers believe
                                                     Knight Transportation agreed with the                applying the methodologies to more                    it is ill-advised to develop a new SFD
                                                  Agency’s proposal that carrier fitness                  current data would change the                         system until the report is received and
                                                  should not be based on relative peer                    population of carriers that would be                  any necessary reforms are made through
                                                  performance. NMFTA added that the                       identified as proposed unfit.                         corrective actions to the foundational
                                                  assignment of absolute failure standards                Commenters noted that the number of                   data and methodologies that support


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                                                  14850                  Federal Register / Vol. 82, No. 55 / Thursday, March 23, 2017 / Proposed Rules

                                                  safety fitness determinations. While the                to Pacific Coast Indian tribes that have              treaty Indian tribe with treaty fishing
                                                  petitioners support the goal of an easily               a treaty right to harvest groundfish.                 rights in the area covered by the FMP at
                                                  understandable, rational SFD system,                    DATES: Comments on this proposed rule                 the beginning of the biennial harvest
                                                  they believe the NPRM should be                         must be received no later than April 24,              specifications and management
                                                  withdrawn at this time.                                 2017.                                                 measures process. The Secretary will
                                                                                                          ADDRESSES: You may submit comments                    develop tribal allocations and
                                                  FMCSA Decision To Withdraw the
                                                                                                          on this document, identified by NOAA–                 regulations in consultation with the
                                                  NPRM
                                                                                                          NMFS–2017–0005, by either of the                      affected tribe(s) and, insofar as possible,
                                                    Based on the current record,                          following methods:                                    with tribal consensus. The procedures
                                                  including comments received in                             • Electronic Submission: Submit all                that NMFS employs in implementing
                                                  response to the NPRM and the February                   electronic public comments via the                    tribal treaty rights under the FMP were
                                                  2017 correspondence to Secretary Chao,                  Federal eRulemaking Portal. Go to                     designed to provide a framework
                                                  FMCSA has decided to withdraw the                       www.regulations.gov/                                  process by which NMFS can
                                                  January 2016 NPRM and, accordingly,                     #!docketDetail;D=NOAA-NMFS-2017-                      accommodate tribal treaty rights by
                                                  cancels the plans to develop a SNPRM                    0005, click the ‘‘Comment Now!’’ icon,                setting aside appropriate amounts of
                                                  as announced by the Agency on January                   complete the required fields, and enter               fish in conjunction with the Pacific
                                                  12, 2017. If FMCSA determines changes                   or attach your comments.                              Fishery Management Council process
                                                  to the safety fitness determination                        • Mail: Barry A. Thom, Regional                    for determining harvest specifications
                                                  process are still necessary and advisable               Administrator, West Coast Region,                     and management measures.
                                                  in the future, a new rulemaking would                   NMFS, 7600 Sand Point Way NE.,                           Since the FMP has been in place,
                                                  be initiated that will incorporate any                  Seattle, WA 98115–0070, Attn: Miako                   NMFS has been allocating a portion of
                                                  appropriate recommendations from the                    Ushio.                                                the U.S. TAC (called Optimum Yield
                                                  National Academies of Science and the                      Instructions: Comments sent by any                 (OY) or Annual Catch Limit (ACL) prior
                                                  comments received through this                          other method, to any other address or                 to 2012) of Pacific whiting to the tribal
                                                  rulemaking. The NPRM concerning                         individual, or received after the end of              fishery, following the process
                                                  motor carrier safety fitness                            the comment period, may not be                        established in 50 CFR 660.50(d). The
                                                  determinations is withdrawn.                            considered by NMFS. All comments                      tribal allocation is subtracted from the
                                                    Issued under the authority delegated in 49            received are part of the public record                U.S. Pacific whiting TAC before
                                                  CFR 1.87 on: March 17, 2017.                            and will generally be posted for public               allocation to the non-tribal sectors.
                                                  Daphne Y. Jefferson,                                    viewing on www.regulations.gov                           There are four tribes that can
                                                  Deputy Administrator.                                   without change. All personal identifying              participate in the tribal Pacific whiting
                                                  [FR Doc. 2017–05777 Filed 3–22–17; 8:45 am]             information (e.g., name, address, etc.),              fishery: The Hoh Tribe, the Makah
                                                  BILLING CODE 4910–EX–P
                                                                                                          confidential business information, or                 Tribe, the Quileute Tribe and the
                                                                                                          otherwise sensitive information                       Quinault Indian Nation (collectively,
                                                                                                          submitted voluntarily by the sender will              the ‘‘Treaty Tribes’’). The Hoh Tribe has
                                                                                                          be publicly accessible. NMFS will                     not expressed an interest in
                                                  DEPARTMENT OF COMMERCE                                  accept anonymous comments (enter                      participating to date. The Quileute Tribe
                                                  National Oceanic and Atmospheric                        ‘‘N/A’’ in the required fields if you wish            and Quinault Indian Nation have
                                                  Administration                                          to remain anonymous).                                 expressed interest in commencing
                                                                                                          FOR FURTHER INFORMATION CONTACT:                      participation in the Pacific whiting
                                                  50 CFR Part 660                                         Miako Ushio, phone: 206–526–4644,                     fishery. However, to date, only the
                                                                                                          and email: miako.ushio@noaa.gov.                      Makah Tribe has prosecuted a tribal
                                                  [Docket No. 161128999–7248–01]                          SUPPLEMENTARY INFORMATION:                            fishery for Pacific whiting, having
                                                  RIN 0648–BG47                                           Electronic Access                                     harvested Pacific whiting since 1996
                                                                                                                                                                using midwater trawl gear. Tribal
                                                  Magnuson-Stevens Act Provisions;                           This proposed rule is accessible via               allocations have been based on
                                                  Fisheries Off West Coast States;                        the Internet at the Office of the Federal             discussions with the Tribes regarding
                                                  Pacific Coast Groundfish Fishery; 2017                  Register Web site at https://                         their intent for those fishing years. Table
                                                  Tribal Fishery for Pacific Whiting                      www.federalregister.gov. Background                   1 below provides a history of U.S. TACs
                                                                                                          information and documents are                         and annual tribal allocation in metric
                                                  AGENCY:  National Marine Fisheries                      available at the NMFS West Coast                      tons (mt).
                                                  Service (NMFS), National Oceanic and                    Region Web site at http://
                                                  Atmospheric Administration (NOAA),                      www.westcoast.fisheries.noaa.gov/                        TABLE 1—U.S. TOTAL ALLOWABLE
                                                  Commerce.                                               fisheries/management/whiting/pacific_                    CATCH (TAC) AND ANNUAL TRIBAL
                                                  ACTION: Proposed rule; request for                      whiting.html and at the Pacific Fishery                  ALLOCATION IN METRIC TONS (mt)
                                                  comments.                                               Management Council’s Web site at
                                                                                                          http://www.pcouncil.org/.                                                                          Tribal
                                                  SUMMARY:   NMFS issues this proposed                                                                                                        U.S. TAC 1
                                                                                                                                                                         Year                              allocation
                                                  rule for the 2017 Pacific whiting fishery               Background                                                                             (mt)         (mt)
                                                  under the authority of the Pacific Coast                   The regulations at 50 CFR 660.50(d)
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  Groundfish Fishery Management Plan                      address the implementation of the treaty              2007     ..................      242,591       35,000
                                                  (FMP), the Magnuson Stevens Fishery                     rights that Pacific Coast treaty Indian               2008     ..................      269,545       35,000
                                                                                                                                                                2009     ..................      135,939       50,000
                                                  Conservation and Management Act                         tribes have to harvest groundfish in
                                                                                                                                                                2010     ..................      193,935       49,939
                                                  (Magnuson-Stevens Act), and the Pacific                 their usual and accustomed fishing                    2011     ..................      290,903       66,908
                                                  Whiting Act of 2006, as amended. This                   areas in U.S. waters. Section 660.50(d)               2012     ..................      186,037       48,556
                                                  proposed rule would allocate 17.5                       provides that an allocation or regulation             2013     ..................      269,745       63,205
                                                  percent of the U.S. Total Allowable                     specific to the tribes shall be initiated by          2014     ..................      316,206       55,336
                                                  Catch (TAC) of Pacific whiting for 2017                 a written request from a Pacific Coast                2015     ..................      325,072       56,888



                                             VerDate Sep<11>2014   16:56 Mar 22, 2017   Jkt 241001   PO 00000   Frm 00019   Fmt 4702   Sfmt 4702   E:\FR\FM\23MRP1.SGM     23MRP1



Document Created: 2017-03-23 02:45:58
Document Modified: 2017-03-23 02:45:58
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of withdrawal.
DatesThe NPRM ``Carrier Safety Fitness Determination,'' RIN 2126- AB11, published on January 21, 2016 (81 FR 3562), is withdrawn as of March 23, 2017.
ContactMs. Barbara Baker, (202) 366-3397, [email protected] FMCSA office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
FR Citation82 FR 14848 
RIN Number2126-AB11
CFR Citation49 CFR 350
49 CFR 365
49 CFR 385
49 CFR 386
49 CFR 387
49 CFR 395

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