80 FR 74695 - Prohibiting Coercion of Commercial Motor Vehicle Drivers
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 80, Issue 229 (November 30, 2015)
Federal Motor Carrier Safety Administration
Federal Register Volume 80, Issue 229 (November 30, 2015)
| Page Range | 74695-74710 | |
| FR Document | 2015-30237 |
[Federal Register Volume 80, Number 229 (Monday, November 30, 2015)] [Rules and Regulations] [Pages 74695-74710] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-30237] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 386 and 390 [Docket No. FMCSA-2012-0377] RIN 2126-AB57 Prohibiting Coercion of Commercial Motor Vehicle Drivers AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: FMCSA adopts regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles (CMVs) in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs)--including drivers' hours-of-service limits; the commercial driver's license (CDL) regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations (HMRs). In addition, the rule prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations. This rule includes procedures for drivers to report incidents of coercion to FMCSA, establishes rules of practice that the Agency will follow in response to reports of coercion, and describes penalties that may be imposed on entities found to have coerced drivers. This rulemaking is authorized by section 32911 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Motor Carrier Safety Act of 1984 (MCSA), as amended. DATES: This final rule is effective January 29, 2016. Petitions for Reconsideration of this final rule must be submitted to FMCSA Administrator no later than December 30, 2015. ADDRESSES: Availability of Rulemaking Documents For access to docket FMCSA-2012-0377 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Services at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Regulatory Affairs Division, Office of Chief Counsel, (202) 493-0349. FMCSA office hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Table of Contents I. Abbreviations and Acronyms II. Executive Summary III. Legal Basis for This Rulemaking IV. Background V. Discussion of Comments VI. Section-by-Section Description VII. Regulatory Analyses I. Abbreviations and Acronyms CDL Commercial Driver's License CMV Commercial Motor Vehicle DOT Department of Transportation FMCSA Federal Motor Carrier Safety Administration FMCSRs Federal Motor Carrier Safety Regulations [[Page 74696]] HOS Hours of Service HMRs Hazardous Materials Regulations ICC Interstate Commerce Commission MAP-21 Moving Ahead for Progress in the 21st Century Act MCSA or 1984 Act Motor Carrier Safety Act of 1984 NAICS North American Industry Classification System OIG Office of Inspector General OSHA Occupational Safety and Health Administration SBA Small Business Administration STAA Surface Transportation Assistance Act of 1982 II. Executive Summary Purpose and Summary of the Major Provisions Congress required FMCSA to ensure that the regulations adopted pursuant to the MCSA, as amended by MAP-21, do not result in coercion of drivers by motor carriers, shippers, receivers, or transportation intermediaries to operate CMVs in violation of certain provisions of the FMCSRs and the HMRs. The major provisions of this rule include prohibitions of coercion, procedures for drivers to report incidents of coercion to FMCSA, and rules of practice that the Agency will follow in response to reports of coercion. Benefits and Costs The FMCSA believes that this rule will not have an economically significant impact. The motor carriers, shippers, receivers, freight forwarders, brokers and transportation intermediaries that previously engaged in acts of coercion against truck or bus drivers will incur compliance costs to operate in accordance with the regulations, and they will lose whatever economic benefit coercion provided; however, the cost of compliance with existing regulations has already been captured in the analysis supporting the implementation of those regulations, so we do not consider them here. There will be safety benefits from increased compliance with the regulations and driver health benefits if HOS violations decrease. In the absence of coercion, the drivers will conduct their safety-sensitive work in a manner consistent with the applicable Federal regulations. During the four- year period from 2009 through 2012, OSHA determined that 253 whistleblower complaints from CMV drivers had merit. In the same period, FMCSA validated 20 allegations of motor carrier coercion of drivers that were filed with DOT's OIG. This is an average of 68.25 acts of coercion per year during the four-year period. The Agency estimates that the cost of eliminating this level of coercion would be less than the $100 million threshold required for economic significance under E.O. 12866. III. Legal Basis for This Rulemaking This rule is based on the authority of MCSA [49 U.S.C. 31136(a)], as amended by MAP-21 [Pub. L. 112-141, section 32911, 126 Stat. 405, 818, July 6, 2012] and on 49 U.S.C. 13301(a), as amended by the ICC Termination Act of 1995 [Pub. L. 104-88, 109 Stat. 803, December 29, 1995]. The 1984 Act confers on DOT authority to regulate drivers, motor carriers, and vehicle equipment. The 1984 Act stated that at a minimum, the regulations shall ensure that--(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators [49 U.S.C. 31136(a)]. Section 32911 of MAP-21 enacted a fifth requirement, i.e., that the regulations ensure that ``(5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 or chapter 313 of this title'' [49 U.S.C. 31136(a)(5)]. The 1984 Act also includes more general authority to ``(10) perform other acts the Secretary considers appropriate'' [49 U.S.C. 31133(a)(10)]. This rule includes two separate prohibitions. One prohibits motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to violate regulations based on section 31136 (which is the authority for many parts of the FMCSRs), 49 U.S.C. chapter 313 (the authority for the commercial driver's license (CDL) and drug and alcohol regulations), and 49 U.S.C. chapter 51 (the authority for the HMRs). This is required by 49 U.S.C. 31136(a)(5). A second provision prohibits entities that operate CMVs in interstate commerce from coercing drivers to violate the commercial regulations. As explained more fully below, this provision is based on the broad general authority of 49 U.S.C. 31136(a)(1)-(4), especially paragraphs (a)(1) and (2). Banning coercion to violate the safety- related commercial regulations is well within the scope of section 31136(a)(1)-(4). Applying the same ban to commercial provisions that are not immediately related to safety is nonetheless consistent with the goals of section 31136 and will help to inhibit the growth of a culture of indifference to regulatory compliance, a culture known to contribute to unsafe CMV operations. Banning coercion to violate the commercial regulations is also within the broad authority transferred from the former ICC to prescribe regulations to carry out Part B of Subtitle IV of Title 49, United States Code (49 U.S.C. 13301(a)). This prohibition applies to operators of CMVs, which are mainly motor carriers, but not to shippers, receivers, or transportation intermediaries, since they are not subject to section 31136(a)(1)-(4) or section 13301. Together, these two provisions cover most kinds of coercion drivers might encounter. This rule also adopts procedures for drivers to report coercion and rules of practice the Agency will follow in addressing such reports. FMCSA believes the reduction of regulatory violations caused by coercion will prove conducive to improved driver health and well-being, consistent with the objectives of section 31136(a)(2)-(4). Before prescribing any regulations, FMCSA must consider their ``costs and benefits'' [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those factors are discussed in this rule. IV. Background Section 32911 of MAP-21 is the most recent example of Congress' recognition of the important role the public plays in highway safety. In the 1980s, Congress implemented new financial responsibility requirements for motor carriers of property and passengers to encourage the insurance industry to exercise greater scrutiny over the operations of motor carriers as one method to improve safety oversight (section 30 of the Motor Carrier Act of 1980 (Pub. L. 96-296) and section 18 of the Bus Regulatory Reform Act of 1982 (Pub. L. 97-261)). Section 32911 of MAP-21 represents a similar congressional decision to expand the reach of motor carrier safety regulations from the supply side (the drivers and carriers traditionally regulated by the Federal government) to the demand side--the shippers, receivers, brokers, freight forwarders, travel groups and others that hire motor carriers to provide transportation and [[Page 74697]] whose actions have an impact on CMV safety. Economic pressure in the motor carrier industry affects commercial drivers in ways that can adversely affect safety. For years, drivers have voiced concerns that other parties in the logistics chain are frequently indifferent to the operational limits imposed on them by the FMCSRs. Allegations of coercion were submitted in the docket for the Agency's 2010-2011 HOS rulemaking.\1\ Also, drivers and others who testified at FMCSA listening sessions and before Congress said that some motor carriers, shippers, receivers, tour guides, and brokers insist that a driver deliver a load or passengers on a schedule that would be impossible to meet without violating the HOS or other regulations. Drivers may also be pressured to operate vehicles with mechanical deficiencies, despite the restrictions imposed by the safety regulations. Drivers who object that they must comply with the FMCSRs are sometimes told to get the job done despite the restrictions imposed by the safety regulations. The consequences of their refusal to do so are either stated explicitly or implied in unmistakable terms: Loss of a job, denial of subsequent loads, reduced payment, denied access to the best trips, etc. --------------------------------------------------------------------------- \1\ See 76 FR 81162. --------------------------------------------------------------------------- Although sec. 32911 of MAP-21 amended 49 U.S.C. 31136(a), it did not amend the jurisdictional definitions in 49 U.S.C. 31132, which specify the reach of FMCSA's authority to regulate motor carriers, drivers, and CMVs. Thus, it appears that Congress did not intend to apply all of the FMCSRs to shippers, receivers, and transportation intermediaries that are not now subject to those requirements. (Motor carriers, of course, have always been subject to the FMCSRs.) Instead, sec. 32911 prohibited these entities from coercing drivers to violate most of the FMCSRs. This necessarily confers upon FMCSA the jurisdiction over shippers, receivers, and transportation intermediaries necessary to enforce that prohibition. Although MAP-21 did not address coercion to violate the commercial regulations that the Agency inherited in the ICC Termination Act of 1995, FMCSA is adopting a rule in order to ensure that there is no significant gap in the applicability of the coercion prohibition. As discussed above in the Legal Basis section, the MCSA gives the Agency broad authority to ensure that CMVs are maintained, equipped, loaded, and operated safely, and that the responsibilities imposed on drivers do not impair their ability to operate CMVs safely [49 U.S.C. 31136(a)(1)-(2)]. Some of the commercial regulations have effects related to safety. Designation of a process agent under 49 CFR part 366 ensures that parties injured in a CMV crash can easily serve legal documents on the carrier operating the CMV, wherever the location of its corporate offices. Registration as a for-hire motor carrier under 49 CFR part 365, or as a broker under 49 CFR part 371, ensures that an applicant has met the minimum standards for safe and responsible operations. Coercion of drivers to violate requirements such as these could have an effect on their ability to operate CMVs safely, e.g., requiring a driver to operate a vehicle in interstate commerce when the owner had neither obtained operating authority registration from FMCSA nor filed proof of insurance. The minimum requirement to obtain FMCSA authority to operate as a for-hire motor carrier, freight forwarder, or broker under 49 U.S.C. 13902, 13903, or 13904, respectively, is willingness and ability to comply with ``this part and the applicable regulations of the Secretary . . . .'' Among those ``applicable regulations'' are this rule's ban on coercing drivers to violate the commercial regulations. For-hire motor carriers are subject to an even more explicit requirement to observe ``any safety regulations imposed by the Secretary'' [49 U.S.C. 13902(a)(1)(B)(i)], including Sec. 390.6(a)(2). Moreover, independent of MAP-21, FMCSA has statutory authority under 49 U.S.C. 13301(a), formerly vested in the ICC, to prescribe regulations to carry out chapter 139 and the rest of Part B of Subtitle IV of Title 49. The prohibition on coercing drivers to violate the commercial regulations is within the scope of this authority. Because both of the coercion prohibitions described above are based on 49 U.S.C. 31136(a), codified in subchapter III of chapter 311, violations of those rules would be subject to the civil penalties in 49 U.S.C. 521(b)(2)(A), which provides that any person who is determined by the Secretary, after notice and opportunity for a hearing, to have committed an act that is a violation of the regulations issued by the Secretary under subchapter III of chapter 311 (except sections 31138 and 31139 \2\) or section 31502 of this title shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each offense. --------------------------------------------------------------------------- \2\ Sections 31138 and 31139 prescribe minimum financial responsibility standards for the transportation of passengers and property, respectively. --------------------------------------------------------------------------- However, pursuant to the Debt Collection Improvement Act of 1996 [Pub. L. 104-134, title III, chapter 10, sec. 31001(s), 110 Stat. 1321- 373], the maximum inflation-adjusted civil penalty per offense is $16,000 (49 CFR part 386, App. B, Paragraph (a)(3)). V. Discussion of Comments Overview On May 13, 2014, the Agency published a notice of proposed rulemaking (NPRM) (79 FR 27265) to implement the MAP-21 prohibition of coercion. Between May 13 and September 4, 2014, 94 submissions were posted to the docket. One of the submissions was a duplicate,\3\ and three were non-responsive,\4\ leaving 90 submissions from the following: --------------------------------------------------------------------------- \3\ Submission number 0080 is a duplicate of number 0089. \4\ Submission numbers 0010, 0015, and 0016. ---------------------------------------------------------------------------One Federal agency: OSHA. Six motor carriers: Kimberly Arnold, Louisiana Transport, Inc., Mason/Dixon Lines, Inc., Schneider National, Inc., Wayne Yoder, one anonymous company, and the Motor Carrier Coalition comprised of 12 additional motor carriers. Ten industry associations: American Trucking Associations (ATA), Association of Independent Property Brokers & Agents (AIPBA), Institute of Makers of Explosives (IME), National Customs Brokers and Forwarders Association of America, Inc.(NCBFAA), National Grain and Feed Association (NGFA), National Industrial Transportation League (NIT League), National Shippers Strategic Transportation Council, Inc. (NASSTRAC), Owner-Operator Independent Drivers Association, Inc. (OOIDA), Snack Food Association, and Transportation Intermediaries Association (TIA). Two advocacy organizations: Advocates for Highway and Auto Safety (Advocates) and Road Safe America. One labor union: Transportation Trades Department, AFL-CIO (TTD). One transportation intermediary: Armada. One commercial carrier consultant: Richard Young; and 67 individuals including 15 who self-identified as drivers and 2 owner operators. Comments Supporting the Rulemaking Fifteen commenters, including two safety advocacy groups, two trade associations, a driver, an owner-operator, a union, OSHA, and seven individuals, expressed their general [[Page 74698]] support for the proposed rule. Road Safe America and Advocates support the Agency's efforts to end the practice of coercion, but Advocates recommended that FMCSA take additional steps, such as investigating all reported incidents of coercion, and exercise its authority to suspend the registration of those that engage in documented instances of coercion. ATA and AIPBA support prohibiting coercion, but expressed reservations about the potential impact the proposed rule would have on commercial relations between motor carriers and shippers, receivers, and intermediaries. OSHA, which is responsible for enforcing the whistleblower protection provisions of the Surface Transportation Assistance Act of 1981 (STAA) and 21 other statutes, supports the proposal and offered suggestions to make it more effective. TTD, a driver, an owner-operator, and seven individuals expressed strong support for the NPRM. Many of these commenters stated that the rule would finally make shippers, receivers and transportation intermediaries accountable for their actions. Comments in Opposition to the Rulemaking Eighteen commenters, including nine individuals, seven trade associations and two drivers expressed their general disapproval of the NPRM. Many of these commenters stated that they agree with FMCSA that CMV drivers should not be coerced into violating any laws or regulations; however, they believe the requirements proposed in the NPRM will lead to unintended consequences. Several commenters stated there is no need for this regulation because existing regulations already prohibit coercion. Three trade associations contend that the NPRM misapplies the legal doctrine of respondeat superior \5\ in attempting to hold shippers and receivers legally responsible for drivers that they do not hire, direct or manage. NASSTRAC stated the proposed rules are ``arbitrary and capricious, contrary to law, impracticable and certain to do more harm than good.'' Another commenter argued that the Agency has not accurately assessed the cost of these requirements, and expressed concern that the complaint reporting process is highly subjective. Two drivers wrote that new regulations are not necessary; instead drivers need to stand up to anyone trying to coerce them into violating the rules. Two individuals commented that this NPRM does not impose any new requirements on shippers or receivers that will prevent them from detaining a driver for hours and then requiring the driver to leave the property even if the driver is out of hours. --------------------------------------------------------------------------- \5\ `Respondeat superior' is a legal concept meaning that an employer is responsible for the wrongful acts of its employees or agents who are acting within the scope of their employment or agency. --------------------------------------------------------------------------- FMCSA Response These comments are discussed in detail below under the appropriate subject heading. Definition of Coercion OSHA commented that ``coercion is broader than just threats related to loss of work, future business, or other economic opportunities. Coercion and coercive tactics may also include threats of violence, demotion, reduction of pay, and withdrawal or reduction of benefits, or any action that is capable of dissuading a reasonable employee from engaging in whistleblowing activity.'' OSHA therefore recommended that the proposed definition of coercion, which referred to ``a threat . . . to withhold, or the actual withholding of, current or future business, employment, or work opportunities from a driver . . .'' be amended to refer to ``a threat . . . to take or permit any adverse employment action against a driver . . .'' NCBFAA pointed out that if a shipper, receiver, or transportation intermediary discovered an ``HOS issue--which would likely only be the case because the driver happened to say something about it--any decision to refuse to tender the shipment could be construed as violating the proposed regulation. For then, it would be knowingly `withholding . . . work opportunities from a driver' when it `knew' the driver was unable to lawfully handle the load. In that case, because the motor carrier elected to dispatch a driver that could not lawfully handle the load, the cargo would not be able to move until such time as the driver in question was again able to operate the equipment.'' ``The NCBFAA believes that where a shipper or transportation intermediary learns that a driver may not haul a load because he/she does not have the available hours, it should be able to freely advise the trucker of the situation so it can provide another driver who does have available hours to complete the haul in a timely manner. Alternatively, the shipper/transportation intermediary should be able to use another carrier entirely, particularly one that is sufficiently responsible and knowledgeable about the status of its drivers.'' TIA made the same point. ``Read literally, the definition would now make it a violation for a shipper or transportation intermediary to refuse a load to a driver if it `knew or should have known' that the driver was about to exceed or already had exceeded the HOS regulations. Yet, the shipper or transportation intermediary could not properly request that the driver perform the transportation, as it would then be both `coercing' the driver and aiding and abetting the HOS violation. So, if a driver assigned by a motor carrier shows up to pick up a load and advises the shipper or transportation intermediary that he or she cannot lawfully handle the load due to HOS or other concerns, the shipper or transportation intermediary would not be able to contact the carrier and request that they replace the driver. Instead the load would just sit. This is a catch 22 . . .'' NIT League offered a similar comment. ``If a shipper attempts to confirm a delivery appointment with the driver, does that equate to directing `a driver to complete a run in a certain time'? It may not in the mind of the shipper but what if the driver has a different interpretation? If the driver objects to meeting that appointment due to HOS rules and the shipper gives the load to another carrier who can timely make the delivery, does that loss of business equate to coercion? What if the driver associates the selection of an alternative carrier with its objection but the shipper simply needed to meet its delivery requirements? The answers to these questions are far from clear. . . . [T]he League suggests that FMCSA modify its proposal to require the driver to inform the shipper of the potential safety violation at the time he/she lodges the objection and to promptly record the alleged coercion event. Specifically, the League suggests that FMCSA require a driver who is concerned about violating a safety rule to take the following steps before accepting the load: (1) Clearly articulate the objection to the allegedly coercing party and such objection must identify the specific FMCSA regulation that will be violated; and (2) record in a contemporaneous writing his/her objection and the facts and circumstances associated with the alleged coercion incident.'' ATA also recommended ``that the rule require a driver alleging coercion to make the objection at a time contemporaneous with the incident in a writing that identifies the regulation(s) that would be violated if the driver operated the CMV.'' [[Page 74699]] FMCSA Response FMCSA has revised and clarified the NPRM's definition of ``coercion.'' Readers may find it helpful to keep in mind the new definition (see Sec. 390.5) as they review the Agency's response to specific comments. Although the language proposed by OSHA is similar to that used in the NPRM, FMCSA agrees that OSHA's recommendation would clarify the intended scope of the definition. The Agency has therefore included the phrase ``take or permit any adverse employment action,'' which has the added benefit of resolving other concerns about the definition. The NCBFAA, TIA, and NIT League comments correctly identified an unintended consequence of the proposed definition of ``coercion.'' Obviously, a shipper or transportation intermediary should not be liable for withholding a load from a driver who has stated that he or she could not make the trip without violating the FMCSRs. In that situation, both the driver and the shipper or transportation intermediary are acting appropriately. The Agency has therefore amended the reference to the withholding of ``current or future business, employment, or work opportunities'' by striking the reference to ``current or future'' business and adding the phrase ``take or permit any adverse employment action.'' The revised definition thus allows the shipper or transportation intermediary to take either of the actions that NCBFAA proposed without violating the rule, i.e., to call the motor carrier and request another driver or to give the load to a different motor carrier. Neither action would attempt to force a driver to violate the FMCSRs, nor would it involve a threat to take other adverse employment action against the driver. The removal of the word ``current'' resolves most of the TIA's and NIT League's concerns. There is no coercion to violate the FMCSRs when a shipper gives a load to another carrier after the original driver states that he or she cannot meet the requested delivery schedule without an HOS or other violation. On the contrary; that change of carriers is an attempt to ensure that no such regulatory violation occurs. The Agency has also revised the definition of ``coercion'' to require the driver to identify ``at least generally'' the rules that he or she would have to violate in the course of the delivery. FMCSA is not requiring drivers to ``identify the specific FMCSA regulation that will be violated,'' as the NIT League and ATA requested. The FMCSRs are complex and drivers cannot be expected to have full command of regulatory citations. Nonetheless, the driver must be able to identify the problem clearly enough to enable FMCSA personnel to determine that it falls within a requirement or prohibition of the Agency's regulations. It will be sufficient, for example, if the driver indicates that he or she objects to a particular trip because of an HOS problem (``they told me to keep driving even when I hit 11 hours''), a maintenance issue (``the last inspection certificate was 3 years old''), or bad tires (``there was no tread on the front tires; I could see the ply in a couple of places''). Similarly, the Agency will not require the driver to record his objection in ``a contemporaneous writing.'' On the other hand, if the shipper or transportation intermediary attempts to coerce the driver to take the load after hearing the objection, it would be in the driver's best interests to document that attempt as soon as practicable. Additional Burdens Created by Rule Many of the commenters believe shippers would have to adopt extensive and burdensome procedures to comply with the proposed rule. NASSTRAC wrote that ``[t]he aspect of the proposed rules that will cost the most (far more than the zero dollars FMCSA projects), and which is most contrary to established law, is the `duty to inquire.' . . . It remains the case that every shipper would have to discuss HOS status for every scheduled shipment with every driver.'' The TIA commented that ``[t]he NPRM would place the shipper and transportation intermediary into the role of employee management having to ask about hours of service availability.'' NGFA noted that ``[i]n current operations, a shipper or receiver . . . does not check a driver's hours-of-service (HOS) log or inspect the driver's commercial motor vehicle--and it could be argued that the shipper or receiver does not have a duty or even a right to do so--if the driver is employed by another company. . . . Even if drivers and their employers are fully cooperative in this respect, the resulting burden and added costs for shippers and receivers would be tremendous.'' The NIT League objected to ``FMCSA's apparent intent to impose a duty on the shipper or receiver to inquire as to a for-hire driver's compliance with the HOS rules.'' Schneider National, on the other hand, wrote that ``[i]f we understand FMCSA's proposal correctly, exposure for a claim of coercion is triggered by an objection from a driver under circumstances which the intermediary `knew or should have known' would require the driver to violate the safety regulations. Thus, it would appear that absent a driver's objection, there is no obligation on the part of those other than the motor carrier to whom the driver is directly employed or leased to independently assure compliance with the hours of service or other regulations.'' IME also interpreted the language of the NPRM as requiring the driver to object before a finding of coercion could be made. FMCSA Response Schneider National and IME are correct. This final rule does not require shippers, receivers, and transportation intermediaries (unlike motor carriers) to monitor a driver's compliance with the HOS rules or other regulations. As the preamble to the NPRM stated, a shipper, receiver, or transportation intermediary ``may commit coercion if it fails to heed a driver's objection that the request would require him/ her to break the rules'' (79 FR 27267, emphasis added). There would be no requirement or even occasion to inquire into the driver's available hours unless the driver had raised an objection to the delivery schedule; and an inquiry would not be necessary if the shipper or transportation intermediary agreed to change the delivery schedule to match the driver's available hours or arranged with the motor carrier to have a different driver take the load. Nevertheless, because many shippers, receivers, and transportation intermediaries believe that, in order to avoid potential liability, they must inquire about HOS compliance, and perhaps document all of their interactions with drivers, the Agency has amended the definition of ``coercion'' to make clear that the driver has an affirmative obligation to inform the motor carrier, shipper, receiver, or transportation intermediary when he or she cannot make the requested trip without violating one or more of the regulations listed in the definition. Motor carriers, shippers, receivers, and transportation intermediaries cannot commit coercion under the final rule unless and until they have been put on notice by the driver that he or she cannot meet the proposed delivery schedule without violating the HOS limits or other regulatory requirements. The purpose of that notice is, of course, to ensure that the driver is not coerced to commit such violations. Agents, Officers, or Representatives The NPRM proposed to apply the prohibition on coercion not only to [[Page 74700]] principals, but also to ``their respective agents, officers or representatives.'' Many commenters focused on this issue. A coalition of 12 motor carriers \6\ (hereafter Coalition) described a hypothetical situation where ABC Transportation, Inc. hires John Doe Trucking, an independent owner-operator, which coerces one of its drivers to violate the HOS rules without the knowledge or approval of ABC Transportation. The Coalition asked ``[a]gainst which entity in this scenario and under the proposed regulation would FMCSA take enforcement action? One would expect John Doe Trucking. After all, it is the entity responsible for the coercive behavior. But if John Doe Trucking is considered an `agent, officer, or representative' of ABC Transportation, Inc., ABC could, in fact, be on the hook. . . . In order to avoid the inequitable situation described above, the FMCSA . . . should consider narrowly defining the terms `agents,' `officers,' and `representatives' to specifically exclude independent contractors with whom motor carriers contract to haul freight and who are not specifically authorized to act on their behalf.'' --------------------------------------------------------------------------- \6\ C.R. England, Inc.; CRST International, Inc.; Central Refrigerated Service, Inc.; Cowan Systems, LLC; Dart Transit Company; Greatwide Truckload Management; Liquid Transport Corp.; National Carriers, Inc.; Oakley Trucking, Inc.; PGT Trucking, Inc.; Roadrunner Transportation Systems, Inc.; and Schneider National, Inc. --------------------------------------------------------------------------- ATA agreed with the Coalition's comments and urged the Agency ``to clarify that, for purposes of the definition of `coercion' and proposed section 390.6, a motor carrier's agents, officers or representatives only include anyone who is authorized to act on behalf of a motor carrier. In the instance where an independent contracting entity engaged in the act of coercion against one of its drivers, only that entity should be liable under proposed section 390.6--not the motor carrier to whom the equipment and driver are leased.'' Schneider National commented that it ``utilizes the services of approximately 2,000 independent contractors including a number of fleet owners. As such, Schneider shares the concerns raised in such comments relative to the use of terms `agents,' `officers' and `representatives' used in conjunction with the term `motor carrier' in Sec. 390.6(a)(2), and adopts their comments as filed. . . . [S]imilar issues may arise in the context of brokerage operations. Consider, for example, a motor carrier contracted by a broker with respect to a particular shipment. In the normal circumstance, the broker would arrange for the transportation on a schedule which can be accomplished consistent with the hours of service regulations, provided the involved motor carrier has an available driver with appropriate `hours'. The broker would not normally be privy to the motor carrier's driver/load assignment process. Under this circumstance, is the motor carrier, by virtue of the typical broker/carrier arrangement, an `agent' or `representative' of the broker such that the broker would be liable under the proposed rule for any motor carrier violation? The use of the terms `agent', `officers' and `representatives' might suggest that liability in the foregoing circumstances could be attributed to the broker. Such a result would be inequitable.'' FMCSA Response The issues raised by these comments were resolved by Congress in the MCSA of 1984. The prohibition on coercion is codified in the amended version of that statute at 49 U.S.C. 31136(a)(5). For purposes of the MCSA, `` `employee' means an operator of a commercial motor vehicle (including an independent contractor when operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who--(A) directly affects commercial motor vehicle safety in the course of employment; and (B) is not an employee of the United States Government, a State, or a political subdivision of a State acting in the course of the employment by the Government, a State, or a political subdivision of a State'' [49 U.S.C. 31132(2)]. Independent owner operators employed by a motor carrier are statutorily defined as employees of that carrier for purpose of the FMCSRs, including this final rule. In the hypothetical situation described by the Coalition, the independent owner operator who owns John Doe Trucking is an employee of ABC Transportation. Any attempt by John Doe Trucking to coerce one of its drivers is therefore an attempt by ABC Transportation, through one of its employees, to coerce one of its drivers. FMCSA published regulatory guidance on this issue on April 4, 1997 [62 FR 16370, 16407]: Question 17: May a motor carrier that employs owner-operators who have their own operating authority issued by the ICC or the Surface Transportation Board [authority that is now issued by FMCSA] transfer the responsibility for compliance with the FMCSRs to the owner-operators? Guidance: No. The term ``employee,'' as defined in Sec. 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators. Brokers, however, are not employees of a motor carrier, nor are motor carriers agents or representatives of brokers. In a normal arms- length transaction, the broker deals with a motor carrier, not an individual driver. The motor carrier has an obligation to comply with the FMCSRs and thus to assign a driver who has sufficient hours to complete the trip on the schedule outlined by the broker and to provide equipment that meets applicable standards. Any coercion that occurred would typically be committed by the motor carrier that employed the driver. However, as TIA pointed out, a State court has held that where a broker contracted with a motor carrier but in fact exercised direct control over the driver, that broker was liable for a tort committed by the driver [Sperl v. C. H. Robinson Worldwide, Inc., 946 NE.2d 463 (2011)]. A broker could be found liable for coercion if it interacted directly with a driver, instead of with the carrier, and attempted to force the driver to make a delivery on a schedule that would require a violation of the FMCSRs. The Agency has no information about how often direct interactions between transportation intermediaries and drivers may occur. Respondeat Superior Many commenters objected to the NPRM's assertion that the ``knew or should have known'' standard in the definition of coercion ``is essentially a restatement of the common law principle of `respondeat superior,' which holds the `master' (employer) liable for the acts of his `servant' (employee).'' Schneider National offered a brief critique that captures the general reaction: ``FMCSA should retract its discussion on respondeat superior and make clear that it is basing the rulemaking on MAP-21. At the very least, it need[s to] make clear that its regulations are limited to dealing with the issue of possible driver coercion and such regulations or any enforcement actions thereunder are not a re-characterization of the employment relationship generally. Absent this, those against whom an enforcement action is brought may have greatly enhanced incentive to fully litigate every citation, unduly burdening FMCSA's enforcement effectiveness.'' [[Page 74701]] FMCSA Response FMCSA agrees with Schneider National's comment. This final rule is based on the authority of 49 U.S.C. 31136(a)(5). The discussion of ``respondeat superior'' in the NPRM was not intended to make shippers, receivers, and transportation intermediaries vicariously liable, because Congress made them directly liable through section 32911 of MAP-21. FMCSA emphasizes that any evidence gathered in response to a written complaint by a driver would point to specific individuals and that persons at higher levels in the organization would not necessarily be implicated. In any case, the revised definition of coercion adopted in this final rule eliminates the ``knew or should have known'' standard by emphasizing more strongly the driver's duty to object as a predicate for any subsequent allegation of coercion. Coercion That Fails NASSTRAC objected to FMCSA's intent to ``penalize unsuccessful coercion, i.e., customer requests that a driver ignores.'' NASSTRAC argued that ``[p]enalizing coercion resulting in violations better addresses the conduct Congress wanted to discourage. FMCSA has cited no analogous regulatory program that would penalize millions of Americans' words or requests even if they produce no actions. The Foreign Corrupt Practices Act and similar anti-bribery laws penalize inducements to violate laws, but they generally require some direct or indirect payment in addition to an oral or written request. In addition, penalizing shippers, receivers and intermediaries for words that produce no actions, let alone violations, implicates First Amendment considerations, as well as concerns about overkill.'' FMCSA Response Drivers of CMVs are required to comply with all applicable regulatory standards. Those who resist coercion do not lose the benefit of this rule. The act of coercion is complete when the attempt is made; it does not require success. If Congress had wished to impose limits on the common understanding of coercion, it would have said so in 49 U.S.C. 31136(a)(5). Coercion does, however, require some kind of threat; merely asking a driver to make a trip that would violate a regulation would not constitute coercion. If the driver refused to make such a trip, a further discussion of his or her response and related issues might or might not cross the line into coercion. The answer would depend on the substance of the conversation and the existence of a threat, explicit or implied, to make the driver pay an economic price for refusing to violate an FMCSA regulation. Burden of Proof Two trade associations, ATA and NITL, Advocates, Mr. Wayne Yoder, who is a carrier, and four anonymous individuals commented on who should bear the burden to prove coercion. Among these commenters, ATA and two individuals argued that the driver should bear the burden of proof in coercion cases. The individuals said it must be the driver's responsibility because only the driver controls the information on his logs. On the other hand, Advocates stated that ``once a complaint is determined by FMCSA to meet the substantive criteria outlined in Section 386.12(e) of the NPRM a prima facie showing of coercion has been made under the proposed regulations. As such, the burden of proof should shift to the alleged offender to demonstrate that there was a valid reason for the actions in dispute as is the current legal framework applied in cases alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964.'' A carrier and three individuals (Mr. Nick Scarabello and two anonymous people) noted the driver is not well positioned to provide evidence of coercion. The carrier responding to the NPRM stated that a motor carrier is better able to provide evidence by way of rate agreements, contracts, orders, or bills of lading from the customer, but the driver has no way of printing or saving messages sent via company-owned and installed communication devices. An anonymous individual suggested that trucking companies should be required to record all phone conversations with drivers as a way to prevent or provide evidence of coercion. A commenter stated after a driver files a report of an incident, FMCSA should request written transcripts of the conversation and supporting documents. An anonymous commenter wrote that ``if you don't put the burden of proof on the carrier or dispatcher[,] then it's the driver[']s word against the company and the driver still ends up being punished.'' OOIDA stated that FMCSA places the enforcement burden on drivers to prove a violation of the law that results in the issuance of penalties and fines for the government. OOIDA argued FMCSA should take the lead in coercion enforcement activities instead of placing the responsibility to initiate and prove incidents of coercion upon those least able to deal with the problem directly, the target of the coercion. ATA and the NIT League recommended that the Agency adopt a standard of ``clear and convincing evidence,'' rather than ``preponderance of the evidence.'' The NIT League argued that this standard is appropriate because of the significant consequences associated with a violation of the coercion prohibition, which include potential monetary penalties and suspension or revocation of the registration of an offender. Conversely, OOIDA stated FMCSA should not weaken the rule by adopting an evidentiary standard that exceeds the standard for determining other safety violations. FMCSA Response When imposing a civil penalty for coercion, the government has the burden of proof. The driver, however, is typically the only person in a position to provide the critical evidence needed to sustain the action against a carrier, shipper, receiver, or transportation intermediary. The NPRM simply acknowledged this reality. While it may sometimes be difficult for the driver to provide relevant evidence, as OOIDA and others argued, there is no realistic alternative. The Agency will not require motor carriers to record all phone conversations and other communications with drivers, a far-reaching requirement which was not proposed for public comment in the NPRM. FMCSA will investigate timely complaints that meet the standards outlined in Sec. 386.12 and may be able to locate or generate additional information, but the driver must supply the essential facts. There is no good reason to adopt a ``clear and convincing'' evidentiary standard for coercion cases when the ``preponderance'' standard is used for all other motor carrier enforcement actions. The potential penalties applicable to a violation of 49 U.S.C. 31136(a)(5) and this rule's implementing regulations are the same as those applicable to a violation of 49 U.S.C. 31136(a)(1)-(4) and the implementing FMCSRs. Title VII of the Civil Rights Act of 1964 prohibits certain employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. There is nothing in MAP-21 to indicate that Congress intended to make CMV drivers who are subject to coercion a protected class in the same sense as individuals subject to [[Page 74702]] racial, religious, sexual, or other discrimination. The shifting of the burden of proof under Title VII is therefore not indicative of a similar legislative intent to shift the burden to carriers, shippers, receivers or transportation intermediaries after a driver files a non- frivolous coercion complaint. The burden of proof in coercion cases remains with FMCSA. Application to Governmental Entities NASSTRAC commented that ``FMCSA has asserted that state and local governments would be unaffected, as would Indian Tribal Governments. However, Indian Tribal Governments, and state and local governments (and federal government entities) are shippers and receivers of freight transported by CMVs. The Department of Defense ships and receives large volumes every year. All of these shippers would apparently have a duty to inquire as to HOS and other compliance by every driver, even though many probably have no idea that HOS rules even exist.'' TIA provided a similar comment: ``TIA urges the Agency . . . to clearly define the scope of this rule to include the Department of Defense (DOD), the General Services Administration (GSA), Port Terminal Operators, and all other applicable entities that contract with motor carriers to haul their specific goods along the transportation supply- chain.'' FMCSA Response The MAP-21 prohibition on coercion amended 49 U.S.C. 31136(a), a provision originally enacted by the MCSA. Under the MCSA, the term ``employer'' ``(A) means a person engaged in a business affecting interstate commerce that owns or leases a commercial motor vehicle in connection with that business, or assigns an employee to operate it; but (B) does not include the [Federal] Government, a State, or a political subdivision of a State.'' [49 U.S.C. 31132(3) (emphasis added)]. MAP-21 subjected motor carriers, shippers, receivers, and transportation intermediaries to the prohibition on coercion [Sec. 31136(a)(5)], but it did not limit the governmental exemption in Sec. 31132(3). FMCSA has no authority to apply this final rule to Federal, State or local governmental entities. Whether a terminal operator qualifies as a political subdivision of a State will require a case-by- case evaluation. Deadline To File Coercion Complaints OSHA recommended that the proposed 60-day filing deadline be extended to 180 days. ``The 60-day filing period for the anti-coercion rule would greatly limit the ability of DOT to act on valid complaints of coercive activity that drivers have timely filed under the STAA [i.e., 49 U.S.C. 31105, enacted by the Surface Transportation Assistance Act of 1982 (STAA)]. Consequently, the short period decreases the effectiveness of the statute and weakens its overall deterrence value. The Department of Labor/OSHA has found that by providing workers with a filing period of 180 days [as authorized by 49 U.S.C. 31105], it is able to pursue a greater number of meritorious complaints and more fully fulfill its mandate under STAA.'' An individual, Lisa Pate, also noted the inconsistency between FMCSA's proposed 60-day deadline and OSHA's 180-day deadline. OSHA recommended ``tolling of the filing deadline, in case there are delays in transferring the allegation to the appropriate Division Administration.'' Similarly, the Advocates wrote that ``[v]ictims of coercion should not be time-barred from seeking an appropriate remedy under the law for the failure of FMCSA to promptly request further information or transfer the complaint to the appropriate Division Administrator.'' The NIT League, on the other hand, wrote that ``because the allegations of coercion will often involve verbal communications at freight pick-up locations, . . . it will be critical for complaints to be filed promptly and for the accused party to be provided with prompt notice of the complaint. This would help ensure that any internal investigation of the driver's allegations either by the driver's employer or the alleged coercer can be conducted expeditiously, any relevant evidence can be preserved, and witnesses can be interviewed before memories fade. Thus, the NIT League suggests that the time period for drivers to file complaints be reduced to 30 days and that any party accused of coercion be served with the complaint upon its filing with FMCSA.'' FMCSA Response OSHA regulations (29 CFR 1978.100 et seq.) and the underlying statute (49 U.S.C. 31105) protect employees who are discharged, disciplined, or discriminated against under certain circumstances. Those actions are likely to generate records that can be reviewed months later. Coercion, on the other hand, may occur without leaving clear documentary evidence. FMCSA continues to believe that a deadline shorter than 180 days is appropriate to ensure that a complaint is filed while the recollections of both the driver and the alleged coercer are fresh. However, the Agency considers the 30-day deadline proposed by the NIT League to be unfair to drivers, some of whom are on the road for weeks at a time and may not be in a position to file a complaint that quickly. In order to ensure that drivers have sufficient time to prepare and submit a coercion complaint, the final rule extends the 60-day period proposed in the NPRM to 90 days. Criteria To Evaluate Coercion Claims OSHA commented that ``the proposed requirement that the complaint be `non-frivolous' is overly vague and should be eliminated. The current proposed requirement of `non-frivolity' would allow for enormous amounts of discretion across FMCSA Divisions. Gross discretion will undoubtedly lead to regional disparities in the enforcement of the provision and severely limit the overall effectiveness of the provision.'' The NIT League suggested that the Agency clarify the criteria that will be used in evaluating reported incidents of coercion. IME expressed concern over the burden imposed on carriers, shippers, receivers, and transportation intermediaries to defend against driver complaints. IME argued that the proposed rule is, ``by its very nature, . . . fraught with subjectivity. In order to avoid or defend against complaints of coercion, carriers, shippers and receivers will be compelled to memorialize every significant interaction they have with drivers.'' FMCSA Response The MCSA includes the following: ``(a) Investigating complaints.-- The Secretary of Transportation shall conduct a timely investigation of a nonfrivolous written complaint alleging that a substantial violation of a regulation prescribed under this subchapter is occurring or has occurred within the prior 60 days'' [49 U.S.C. 31143(a)]. The ``nonfrivolous'' standard has been used in 49 CFR 386.12(b) for many years without the adverse consequences OSHA predicted, and the Agency believes its use in 49 CFR 386.12(e)(2) will be comparably straightforward and effective. FMCSA does not agree with commenters' assessment of the burden involved in defending against driver complaints. The ``subjectivity'' that IME feared has been virtually eliminated by the revised definition adopted in this final rule, which requires the driver to state explicitly that he or she cannot deliver the load without violating the [[Page 74703]] applicable regulations, and why that is the case. There can be no coercion unless the shipper, receiver, or transportation intermediary responds with an equally explicit threat to force the driver to make the delivery despite the regulatory violation it would entail. While groundless allegations of coercion are possible, such accusations are also possible under OSHA's whistleblower rules, yet they appear to be a relatively minor problem and are readily dismissed for want of evidence. Penalties Advocates argued that the Agency should suspend the operating authority of motor carriers found to have committed coercion, rather than just issue ``meaningless fines.'' Coercion involving private carriers should be reported to the relevant States ``so that the state licensing authority may take the appropriate action as well as have a complete record of the entities they are responsible for monitoring.'' Advocates noted that an $11,000 fine (since increased to $16,000) ``pales in comparison to the $250,000 punitive fine that can be levied against a company by the Department of Labor under the Surface Transportation Assistance Act (STAA) after a finding that a driver was dismissed for refusing to compromise a health or safety standard.'' An individual commenter, Jim Duvall, wrote that ``Any fine or monetary penalty should directly benefit the driver(s) harmed in the action.'' Three commenters stated that the final rule should impose penalties against drivers who make false claims of coercion. One commenter said there should be a penalty for drivers who make false accusations because they either refuse to take responsibility for their own failure to properly calculate their hours or knowingly violate the HOS rules because they do not want to ``miss the load.'' Two other individuals stated that there should be penalties for drivers who are disgruntled and file baseless coercion complaints to get back at their employer. AIPBA noted that the imposition of significant penalties against drivers who are found to have falsely accused a broker will deter ``such improper and fraudulent conduct by unscrupulous drivers.'' FMCSA Response FMCSA will take aggressive action when a violation of the prohibition against coercion can be substantiated. This action will include civil penalties consistent with the regulations, and may include initiation of a proceeding to revoke the operating authority of a for-hire motor carrier. Under 49 U.S.C. 13905, a carrier that engages in willful non-compliance with an Agency regulation or order may have its operating authority revoked. FMCSA's policy on revocation was set forth in a notice published on August 2, 2012 (77 FR 46147). The Agency agrees that coercion is the type of violation that may fall into this category. Some commenters appear to regard a coercion allegation that cannot be substantiated as a false accusation. That is not necessarily true. Despite its best efforts, FMCSA may not be able adequately to document some allegations that are in fact correct. In any case, neither section 32911 of MAP-21 nor the Agency's general civil penalty statute authorizes penalties against drivers who make false accusations of coercion. As for Mr. Duvall's recommendation, ``All penalties and fines collected under this section shall be deposited into the Highway Trust Fund (other than the Mass Transit Account)'' in the U.S. Treasury [49 U.S.C. 521(b)(10)]. The Agency cannot pay drivers the civil penalties it collects for incidents of coercion. And unlike OSHA, FMCSA has no authority to require the violator to compensate the driver for injuries he or she has suffered. Coercion as an Acute Violation ATA argued that a violation of proposed Sec. 390.6, which prohibits coercion, should not necessarily be classified as an acute violation in Appendix B, section VII of Part 385, as proposed in the NPRM. Instead, coercion should be acute, critical, or neither, depending on the classification of the regulation the driver was coerced to violate. FMCSA Response FMCSA agrees that a carrier's safety fitness should be determined on the basis of the regulations it violates or coerces a driver to violate. In other words, coercion itself should not be treated as acute (or critical). The final rule therefore eliminates the NPRM's proposed amendments to Appendix B of 49 CFR part 385. This is consistent with the Agency's practice of limiting acute and critical classifications to regulations which, if violated, are likely to increase the risk of crashes. Because FMCSA currently has no data showing a link between coercion and crashes, it seems appropriate not to classify coercion as acute. If new data or further analysis shows such a link, the Agency may revisit this decision. As indicated above, however, FMCSA will impose significant penalties when reports of coercion can be proved. Coercion of Carriers NASSTRAC described a hypothetical situation where Shipper A hires Carrier B to deliver a load on a reasonable schedule. However, when Carrier B's driver arrives to pick up the load, he tells Shipper A that he has to go off duty in a few hours under the HOS regulations, making it impossible to meet Shipper A's delivery schedule. ``Shipper A says in frustration, `That's the last time I use Carrier B.' Is Shipper A subject to a penalty of up to $11,000 just for saying those words, even if no safety violation occurs? How many penalties could Shipper A face if it makes no more use of Carrier B?'' ATA urged ``FMCSA to consider amending the proposed definition in section 390.5 to cover not only the driver as the target of withholding or coercion, respectively, but also his/her employer.'' FMCSA Response NASSTRAC has described a normal and completely legal business response to inadequate service. Shipper A has not coerced the driver to violate the HOS rules, nor has it coerced Carrier B to put pressure on the driver to violate the rules. It has simply decided not to use a carrier that does not dispatch drivers who can meet the agreed upon delivery schedule. Section 32911 of MAP-21 applies only to the coercion of drivers, not to the coercion of motor carriers. Under 49 U.S.C. 31136(a)(5), the Agency's regulations must ensure that ``(5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary . . .'' (emphasis added). Because an ``operator'' is distinct from a ``motor carrier,'' the term ``operator'' necessarily refers only to drivers. While shippers may sometimes coerce motor carriers to pressure their drivers to violate the FMCSRs, the coercion of motor carriers is not covered by MAP-21 or this rule. Miscellaneous Comments Driver Confidentiality. OOIDA argued that FMCSA must have whistleblower protections in place. ``This includes a guarantee of a certain amount of confidentiality in driver communications with the agency, and procedures at the agency to take action against parties who retaliate against drivers who submit good faith allegation[s] of coercion to the agency.'' [[Page 74704]] FMCSA Response FMCSA is required by 49 U.S.C. 31143(b) to keep the identity of a complainant confidential unless ``disclosure is necessary to prosecute a violation.'' Because a party accused of coercion cannot defend itself without knowing the name of the accuser, and when and where the alleged incident occurred, the driver's identity cannot be confidential. Retaliation for reporting incidents that, for whatever reason cannot be substantiated, is not covered by this rule. OSHA, however, may be able to provide relief. Communications with Drivers. ``OOIDA suggests that FMCSA require all parties providing drivers with instructions, rules, or other conditions on the transportation to maintain all such communications as they do supporting documents under the HOS rules. OOIDA is aware that many motor carriers, brokers and third parties already retain such communication, and so this requirement should not be a significant burden. Such records should be regularly reviewed during safety audits and compliance reviews. The potential safety benefits of motor carriers knowing that these records will be available to enforcement would outweigh any added burden.'' FMCSA Response The Agency could not act on such a far-reaching and controversial proposal without first publishing it for notice and comment. The NPRM proposed no such requirement, and it is not included in this final rule. Notifying Carriers and Consumer Reporting Agencies. OOIDA commented that, ``One form of coercion and retaliation against drivers is the reporting of negative information about a driver in an employment history submitted to a consumer reporting agency. Other motor carriers purchase that employment history from the consumer reporting agency to fulfill their FMCSR hiring requirements, and they often make negative hiring decisions based on those reports. On their face, some of the information reported appears performance related, such as `late pick- up/delivery.' But there is nothing to protect drivers from being tagged with a negative mark on their employment history if the late pickup or delivery resulted from conditions or circumstances that caused the driver to run out of legal hours to make the delivery on time. Resistance to coercion (i.e., the driver objections proposed by the Notice) may be reported as `refused dispatch' or `insubordination.' These employment records can effectively disqualify a driver from being considered for employment by motor carriers or make it much harder for the driver to find employment. The result is that safety-conscious drivers who do the right thing and resist coercion get bad employment reports and are driven out of the industry. Other drivers who capitulate to demands to violate the rules and save their jobs can keep fairly clean employment records and stay in the industry. . . . FMCSA should impose penalties upon motor carriers who submit such information to consumer reporting agencies and who refuse to remove such information after it is submitted.'' FMCSA Response Negative reports about a driver by a motor carrier could constitute ``adverse employment actions'' prohibited by this final rule. However, there would be significant evidentiary obstacles to making a coercion case in these situations. A late pickup or delivery may not have been caused by unrealistic demands the driver was coerced to meet. Bad planning on the part of the driver or carrier, unexpected traffic congestion, or other factors could also explain some delays. Tracing reports of ``insubordination'' back to the driver's refusal to be coerced would inevitably involve a detailed examination of one or more incidents and conflicting accounts of the reason for the alleged insubordination. While FMCSA will review all reported incidents, the Agency cannot take action against a carrier for coercion unless there is evidence that an unfavorable report on a driver was motivated by a desire to punish the driver for refusal to be coerced. The Rule Should Govern the Demands of Receivers. OOIDA argued that ``[t]he most powerful tool that receivers have over drivers is the withholding of a signature or receipt from the driver acknowledging receipt of the freight--a document the driver needs as a condition for being compensated by their carrier or third-party and that the driver must obtain before driving away to get rest or new business. Withholding such receipt is commonly used by receivers to coerce drivers to [1] accept the receiver's schedule to unload a vehicle (no matter when the driver arrived at the docks, when the driver's next scheduled pickup or delivery may be, or what the driver's Hours of Service status may be); . . . [3] require the driver to break down pallets and sort and stack freight.'' OOIDA also described situations where drivers are held at a receiver's dock past the 14th hour after coming on duty, and then forced to drive away from the receiver's facility in violation of Sec. 395.3(a)(2). FMCSA Response While the situation OOIDA described involving a signature or receipt was not discussed in the NPRM, withholding a delivery receipt might be used to coerce a driver to violate the FMCSRs. A receiver that forces a driver to leave its premises is not threatening the driver with an adverse employment action; it is asserting its right as a property owner to control access to the property. Comments on Issues Outside the Scope of This Rulemaking Fourteen commenters raised issues beyond the scope of this rulemaking, involving lack of adequate parking; detention time and detention pay; and various HOS provisions. Because none of these issues was related to coercion of drivers to violate FMCSA regulations, the Agency will not comment on them in this document. VI. Section-by-Section Description A. Part 386 Section 386.1, ``Scope of the rules in this part,'' is amended by adding a new paragraph (c) referring to the filing and handling of coercion complaints under new Sec. 386.12(e). The NPRM's Sec. 386.12(e) is called ``Complaint of coercion.'' The procedures to file and handle coercion complaints outlined in the NPRM have been revised. The complaint must be filed within 90 days after the event with the Agency's on-line National Consumer Complaint Database (http://nccdb.fmcsa.dot.gov), or with the Division Administrator where the driver is employed. FMCSA may reassign the complaint to the Division Administrator best situated to investigate it. In addition, the final rule removes a sentence included in the NPRM stating that the Division Administrator may issue a Notice of Claim or Notice of Violation when appropriate. Because that statement could be read as a limitation on the Agency's enforcement options, it has been deleted. B. Part 390 Section 390.3(a) is amended to include a reference to the coercion provisions in Sec. 386.12(e) and Sec. 390.6, and describe the applicability of those provisions. Section 390.5 is amended to add definitions of ``Coerce or coercion,'' ``Receiver or consignee,'' ``Shipper,'' and ``Transportation intermediary.'' The definitions of ``Receiver or consignee,'' ``Shipper,'' and ``Transportation intermediary'' make these entities [[Page 74705]] subject to the prohibition on coercion in Sec. 390.6 only when shipping, receiving or arranging transportation of property (and in the case of ``transportation intermediaries,'' passengers) in interstate commerce. Although the term ``transportation intermediary'' is commonly associated with brokers and freight forwarders, it also includes travel agents and similar entities that arrange group tours or trips and contract with motorcoach operators for transportation services. Such intermediaries and their agents are subject to the prohibition on coercion. Because the HMRs apply to transportation in intrastate commerce, the definitions make clear that the prohibition on coercion applies to parties that ship, receive, or arrange transportation of hazardous materials in interstate or intrastate commerce. The NPRM's definition of ``coerce or coercion'' has been amended (1) by removing the reference to ``current or future'' business; (2) adding a prohibition on ``any adverse employment action against a driver,'' and (3) deleting references to violations of Sec. Sec. 385.105(b), 385.111(a), (c)(1), or (g), which were erroneously included. Section 390.6(a)(1) is added to prohibit motor carriers, shippers, receivers, or transportation intermediaries, or the agents, officers, or representatives of such entities, from coercing drivers to operate CMVs in violation of 49 CFR parts 171-173, 177-180, 380-383, or 390- 399, or Sec. Sec. 385.415 or 385.421. These parts correspond to the statutory language in 49 U.S.C. 31136(a)(5). Parts 171-173 and 177-180 are the HMRs applicable to highway transportation promulgated under 49 U.S.C. chapter 51. Parts 382-383 are the commercial driver's license (CDL) and drug and alcohol testing regulations promulgated under 49 U.S.C. chapter 313. Parts 390-399 are those portions of the FMCSRs promulgated under the authority (partial or complete) of 49 U.S.C. 31136(a). The other parts or sections listed are based on one or more of the statutes referenced in 49 U.S.C. 31136(a)(5). Section 390.6(a)(2) is added to prohibit operators of CMVs or their agents, officers, or representatives, from coercing drivers to violate 49 CFR parts 356, 360, or 365-379. This subsection is based on the authority of 49 U.S.C. 31136(a)(1)-(4) and 49 U.S.C. 13301(a). Section 390.6(b) describes the procedures for a driver to file a complaint of coercion with FMCSA. VII. Regulatory Analyses A. Regulatory Planning and Review and DOT Regulatory Policies (E.O. 12866) and Procedures as Supplemented by E.O. 13563) FMCSA has determined that this rule is a significant regulatory action under E. O. 12866 (58 FR 51735, October 4, 1993), as supplemented by E. O. 13563 (76 FR 3821, January 21, 2011), and significant within the meaning of the DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). The estimated economic costs of the rule will not exceed the $100 million annual threshold (as explained below). Extent of Economic Impact The 1982 STAA includes whistleblower protections for motor carrier employees (49 U.S.C. 31105). OSHA, which administers the complaint process created by section 31105, received 1,158 complaints from CMV drivers between FY 2009 and FY 2012.\7\ OSHA found that 253 of them (22 percent) had merit.\8\ Between FY 2009 and FY 2012, the OIG hotline received 91 complaints alleging that motor carriers had coerced or retaliated against drivers. FMCSA determined that 20 of these complaints had merit.\9\ The average number of verified complaints for that 4-year period was therefore 68.25 per year [(253 + 20)/4 = 68.25]. --------------------------------------------------------------------------- \7\ U.S. Department of Labor, Occupational Safety & Health Administration (OSHA), Whistleblower Protection Program: Investigative Data Fact Sheets. Available at http://www.whistleblowers.gov/wb_data_FY05-12.pdf. \8\ Ibid., Footnote 3. \9\ U.S. Department of Transportation, Office of the Inspector General (OIG). This averaged 23 complaints per year, (with 44 in 2010), which the OIG referred to FMCSA. FMCSA substantiated 20 complaints (22 percent) of violations of acute and critical regulations due to driver allegations of unlawful discrimination or discipline (See 29 CFR 1978.100 et seq.). Available at http://www.oig.dot.gov/Hotline. --------------------------------------------------------------------------- Some unknown portion of the 253 complaints filed with OSHA during that period almost certainly dealt with coercion or similar actions. Even if all of them were coercion-related, this number--combined with the 20 substantiated complaints filed with the OIG--remains small compared to the total population of CMV drivers. Section 31105, however, applies only to employers (basically motor carriers) while this rule will also cover shippers, receivers, and transportation intermediaries. The Agency is unable to estimate the number of coercion allegations it may receive, whether triggered by actions of motor carriers or other entities made subject to this rule by MAP-21. In view of the small number of coercion-related complaints filed with OSHA and DOT's OIG, the aggregate economic value to motor carriers of these coercion-related incidents is likely to be low. Therefore, the cost to carriers of eliminating those incidents--assuming the rule has that effect--and incurring the higher costs of compliance, would also be low; however, the cost of compliance with existing regulations has already been captured in the analysis supporting the implementation of those regulations, so we do not consider them here. We believe that the application of this rule to shippers, receivers, brokers, freight forwarders, and other transportation intermediaries will not significantly increase the number of coercion complaints, since drivers generally have more frequent and direct contacts with their employers than with these other parties. In addition, even though the rule applies to a larger population, FMCSA also notes that the rule should have a deterrent effect on entities considering coercion. The roughly 68 annual complaints noted above is the only available estimate of coercion in the trucking industry now. This rule would be expected to reduce the amount of coercion that takes place, but there is no available measure of the effectiveness of the rule. The relatively low number of complaints suggests that the overall economic impact will be less than the $100 million threshold of economic significance under E.O. 12866. Benefits If coercion creates situations where CMVs are operated in an unsafe manner, then there are consequences for safety and driver health risks. By forcing drivers to operate mechanically unsafe CMVs or drive beyond their allowed hours, coercion increases the risk of crashes. Reduction of these behaviors because of this rule would generate a safety benefit. Additionally, the operation of CMVs beyond HOS limits has been shown to have negative consequences for driver health. A reduction of this practice would create an improvement in driver health. The Agency lacks data to quantify the safety or health benefits attributable to the rule. Costs This rule, as an enforcement measure, would impose compliance costs on carriers and on other business entities utilizing the motor carrier industry. If drivers now operate CMVs in violation of HOS rules, or if coercion had caused drivers to operate their CMV even [[Page 74706]] though there were mechanical defects, carriers would potentially have to reorganize their schedules or hire new drivers to operate in compliance. Maintenance costs might also accelerate as a result of this rule, as the industry improves compliance with the existing safety standards resulting from increased risk of enforcement action. Additionally, the entities that practice coercion would lose the economic benefit of that coercion. This economic benefit could be time- related (if drivers are coerced into driving when they should stop and rest, stop and wait for CMV maintenance, or drive a vehicle they are not qualified to operate rather than wait for a qualified driver). Drivers alleging coercion will have to provide a written statement describing the incident along with evidence to support their charges. This total paperwork burden is difficult to estimate but is not likely to be very large. Similarly the Agency believes that the investigation of those reports will not have a large cost. Summary The Agency does not believe that the benefits and costs of this rule would create a large economic impact. The safety benefits and compliance costs are likely to be very small based on the small number of expected cases each year. Therefore, the Agency believes that the rule will not be economically significant. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of their regulatory actions on small business and other small entities and to minimize any significant economic impact. The term ``small entities'' comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, as well as governmental jurisdictions with populations of less than 50,000.\10\ Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these businesses. --------------------------------------------------------------------------- \10\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see National Archives at http://www.archives.gov/federal-register/laws/regulatory-flexibility/601.html. --------------------------------------------------------------------------- Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the rule is not expected to have a significant economic impact on a substantial number of small entities. As indicated above, OSHA found merit in only 253 complaints filed by CMV drivers over a 4- year period, or about 63 per year. Even if all of the complaints were classified as coercion-related, that number would be very small when compared to the size of the driver population and motor carrier industry. The Small Business Administration (SBA) classifies businesses according to the average annual receipts. The SBA defines a ``small entity'' in the motor carrier industry [i.e., general freight truck transportation, subsector 484 of the North American Industry Classification System (NAICS)] as having revenues of less than $27.5 million per firm. Likewise, transportation intermediaries (i.e., subsector 488 of NAICS) which include brokers and freight forwarders, are classified as small if their annual revenue is under $15 million.\11\ --------------------------------------------------------------------------- \11\ U.S. Small Business Administration Table of Small Business Size Standards matched to North American Industry Classification System Codes (NAICS), See NAIC subsector 484 (Truck Transportation) and 488 Support Activities for Transportation).effective July, 2012. The Small Business Size Standards used in the Initial Regulatory Flexibility Act analysis (IRFA) were released by the Small Business Administration in January 2012. The SBA issued revised Small Business Standards in July 2014. See downloadable PDF file at https://www.sba.gov/content/small-business-size-standards. --------------------------------------------------------------------------- Table 1 presents a breakdown of FMCSA's revenue estimates for the populations in various categories. By SBA standards, the vast majority of all businesses in the motor carrier and related industries are ``small entities.'' Although general freight transportation arrangement firms fall under the $15 million threshold, there is an exception for ``non-vessel household goods forwarders.'' \12\ This exception stipulates that the revenue threshold, for this sub-set of freight forwarders in the trucking industry is $27.5 million. As indicated above, fewer than 70 coercion complaints per year have been filed with OSHA and FMCSA in the past few years. We have no reason to believe that number will increase significantly under the rule. In fact, the potential penalty for coercing a driver should have a deterrent effect. Even if the penalty assessed might have a ``significant economic impact,'' the limited number of recent coercion complaints suggests that the penalty would not affect ``a substantial number of small entities,'' given that there are nearly 500,000 firms in the industry that qualify as small entities. --------------------------------------------------------------------------- \12\ According to the 2007 Economic Census data, 2,221 establishments were classified as non-vessel common carriers. These establishments accounted for 10.2 percent of the number of, and 5.2 percent of the annual revenue for, the total number of establishments classified under NAICS Code 488510-Freight Transportation Arrangement. In 2007, the average revenue for all entities classified to NAICS Code 488510 was $1.8 million. Therefore, the results of the analysis are the same regardless of whether the Small Business Standard is $15 million or $27.5 million. --------------------------------------------------------------------------- This rule does not affect industry productivity by requiring new documentation, affecting labor productivity or availability, or increasing expenditures on maintenance or new equipment. The fines, which are the only impact (unless the carrier's operating authority is suspended or revoked), can be avoided by not coercing drivers into violating existing regulations. Furthermore, by regulation, the Agency's fines are usually subject to a maximum financial penalty limit of 2 percent of a firm's gross revenue. For the vast majority of small firms, a fine at this level would not be ``significant'' in the sense that it would jeopardize the viability of the firm. The table below excludes shippers and receivers subject to the prohibition on coercion, a group which is a large portion of the entire U.S. population, because anyone who sends or receives a package would be considered a shipper or receiver. However, compliance with the prohibition on coercion of drivers is not expected to have significant economic impact on many of them. Consequently, because they are not expected to be in a position to coerce a driver, I certify that the action will not have a significant economic impact on a substantial number of small entities. [[Page 74707]] Table 1--Total Number of Entities and Determination, 2012 ------------------------------------------------------------------------ Type of entity Number Determination ------------------------------------------------------------------------ Motor carriers (property)......... \13\ 523,239 99% below 27.5 million.\14\ Motor carriers (passenger)........ 12,184 99% below $15 million.\15\ Freight forwarders................ \16\ 14,319 97% below $27.5 million. Property brokers.................. 21,565 99% below $27.5 million. ------------------------------------------------------------------------ Source: Motor carrier (passenger), and property broker numbers is updated from the Initial Regulatory Flexibility Act analysis (IRFA) to reflect revisions reported in ``2014 Pocket Guide to Large Truck and Bus Statistics,'' Federal Motor Carrier Administration, October 2014. The 2014 Pocket Guide is available at http://www.fmcsa.dot.gov/safety/data-and-statistics/commercial-motor-vehicle-facts. C. Assistance for Small Entities --------------------------------------------------------------------------- \13\ Includes interstate motor carriers and intrastate hazardous materials motor carriers. \14\ The results show that 99 percent of all motor carriers (property) with recent activity have 148 PUs or fewer. \15\ The methodology used to determine the percentage of motor carriers (property and passenger) is the same methodology described in detail at pages 31 through 34 of the September 2014 Initial RFA prepared for the proposed rule on Motor Carrier Safety Fitness Determination. \16\ The number of freight forwarders reported (21,809) in the IFRA was obtained from the U.S Census Bureau 2007 Economic Census. The 21,809 entities are the number of establishments, not the number of firms that operated for all or part of 2007. An establishment is a place of business. A firm may operate out of more than one establishment. Hence, the number of firms is a subset of the number of establishment. In the 2007 Economic Census, 15,180 firms were classified to NAICS Code 488510-Freight Transportation Arrangement. The number of firms that operated for all or part of the year accounted for 69.6 percent of establishments (15,180 / 21,809). The product of 69.9 percent and 20,573 establishments reported the 2012 Economic Census yielded an estimated 14,319 firms in 2012. These data are available on the Census Bureau American Fact Finder Web site at http://factfinder.census.gov/faces/nav/jsf/pages/searchresults.xhtml?refresh=t. --------------------------------------------------------------------------- In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Mr. Charles Medalen, listed in the FOR FURTHER INFORMATION CONTACT section of this rule. Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the SBA's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888- 734-3247). DOT has a policy ensuring the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights. D. Unfunded Mandates Reform Act of 1995 This rule will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.), that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million (which is the value of $100 million in 2015 after adjusting for inflation) or more in any 1 year. E. Federalism (E.O. 13132) A rulemaking has implications for Federalism under section 1(a) of E.O. 13132 if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on State or local governments. FMCSA analyzed this action in accordance with E.O. 13132. This rule does not preempt or modify any provision of State law, impose substantial direct unreimbursed compliance costs on any State, or diminish the power of any State to enforce its own laws. FMCSA has determined that this rule will not have substantial direct costs on or for States nor will it limit the policymaking discretion of States. Accordingly, this rulemaking does not have Federalism implications. F. Civil Justice Reform (E.O. 12988) This rule meets applicable standards in sections 3(a) and 3(b) (2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. G. Protection of Children (E.O. 13045) E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing ``economically significant'' rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children. H. Taking of Private Property (E.O. 12630) FMCSA reviewed this rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have takings implications. I. Privacy Impact Assessment FMCSA conducted a privacy impact assessment (PIA) of this rule as required by section 522(a)(5) of division H of the FY 2005 Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004). The assessment considered impacts of the final rule on the privacy of information in an identifiable form and related matters. The final rule will impact the handling of personally identifiable information (PII). FMCSA has evaluated the risks and effects the rulemaking might have on collecting, storing, and sharing PII and has evaluated protections and alternative information handling processes in developing the final rule in order to mitigate potential privacy risks. For the purposes of both transparency and efficiency, the privacy analysis conforms to the DOT standard Privacy Impact Assessment (PIA) and will be published on the DOT Web site at www.dot.gov/privacy concurrently with the publication of the rule. The PIA addresses the rulemaking, associated business processes contemplated in the rule and any information known about the systems or existing systems to be implemented in support of the final rulemaking. A PIA for the Coercion NPRM was previously developed and is [[Page 74708]] currently available to the public on the DOT Web site at www.dot.gov/privacy. The PIA has been reviewed, and revised as appropriate, to reflect the final rule and will be published not later than the date on which the Department initiates any of the activities contemplated in the Final Rule determined to have an impact on individuals' privacy and not later than the date on which the system (if any) supporting implementation of the Final Rule is updated. As required by the Privacy Act, FMCSA and the Department will publish, with request for comment, a revised system of records notice (SORN) that will cover the collection of information that is affected by this final rule. Since coercion complaints will be stored in the National Consumer Complaint Database (NCCDB), the SORN for the NCCDB (DOT/FMCSA 004--National Consumer Complaint Database (NCCDB)--75 FR 27051--May 13, 2010) will be revised to reflect the new collection of information and published in the Federal Register not less than 30 days before the Agency is authorized to collect or use PII retrieved by unique identifier. Additionally, FMCSA will revise the PIA for NCCDB (formally the Safety Violations and Household Goods Consumer Complaint Hotline Database) posted on June 6, 2006 and an updated PIA will be available to the public on the DOT Web site at www.dot.gov/privacy. The privacy risks and effects associated with the cases resulting from this rule are not unique and have previously been addressed by the enforcement case file storage requirements in the Electronic Document Management System (EDMS) PIA posted on June 6, 2006 and the DOT/FMCSA 005--Electronic Document Management System SORN (71 FR 35727) published on June 21, 2006. J. Intergovernmental Review (E.O. 12372) The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. K. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from the OMB for each collection of information they conduct, sponsor, or require through regulations. Information submitted by drivers alleging coercion is exempt from PRA requirements because it is collected pursuant to ``an administrative action or investigation involving an agency against specific individuals or entities'' [44 U.S.C. 3518(c)(1)(B)(ii)]. L. National Environmental Policy Act and Clean Air Act FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). FMCSA conducted an environmental assessment and determined that the rule has the potential for minor environmental impacts. Based on the limited data FMCSA has concerning the extent of the affected CMV driver population, these impacts would be very small and FMCSA does not expect any significant impacts to the environment from this rule. The environmental assessment has been placed in the rulemaking docket. In addition to the NEPA requirements to examine impacts on air quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) also requires FMCSA to analyze the potential impact of its actions on air quality and to ensure that FMCSA actions conform to State and local air quality implementation plans. The additional contributions to air emissions from any of the alternatives are expected to fall below the CAA de minimis thresholds as per 40 CFR 93.153 and are, therefore, not expected to be subject to the Environmental Protection Agency's General Conformity Rule (40 CFR parts 51 and 93). M. Environmental Justice (E.O. 12898) FMCSA evaluated the environmental effects of this rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor is there any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were a ``disproportionate'' and ``high and adverse impact'' on minority or low-income populations. None of the alternatives analyzed in the Agency's EA, discussed under National Environmental Policy Act, would result in high and adverse environmental impacts. N. Energy Supply, Distribution, or Use (E.O. 13211) FMCSA has analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a ``significant energy action'' under that order because it is not a ``significant regulatory action'' likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211. O. Indian Tribal Governments (E.O. 13175) This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. P. National Technology Transfer and Advancement Act (Technical Standards) The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. List of Subjects 49 CFR Part 386 Administrative practice and procedures, Brokers, Freight forwarders, Hazardous materials transportation, Highway safety, Motor carriers, Motor vehicle safety, Penalties. 49 CFR Part 390 Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. For the reasons stated in the preamble, FMCSA amends parts 386 and 390 in 49 CFR chapter III, subchapter B, as follows: PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS 0 1. The authority citation for part 386 continues to read as follows: Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 311, 313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; Sec. 206, Pub. L. [[Page 74709]] 106-159, 113 Stat.1763; subtitle B, title IV of Pub. L. 109-59; and 49 CFR 1.81 and 1.87. 0 2. Revise the heading of part 386 as set forth above. 0 3. Amend Sec. 386.1 by revising paragraph (a) and adding paragraph (c) to read as follows: Sec. 386.1 Scope of the rules in this part. (a) Except as indicated in paragraph (c) of this section, the rules in this part govern proceedings before the Assistant Administrator, who also acts as the Chief Safety Officer of the Federal Motor Carrier Safety Administration (FMCSA), under applicable provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350- 399), including the commercial regulations (49 CFR parts 360-379), and the Hazardous Materials Regulations (49 CFR parts 171-180). * * * * * (c) The rules in Sec. 386.12(e) govern the filing by a driver and the handling by the appropriate Division Administrator of complaints of coercion in violation of Sec. 390.6 of this subchapter. 0 4. Amend Sec. 386.12 as follows: 0 a. Revise the section heading; 0 b. Add and reserve paragraph (d); and 0 c. Add paragraph (e). Sec. 386.12 Complaints. * * * * * (d) [Reserved] (e) Complaint of coercion. (1) A driver alleging a violation of Sec. 390.6(a)(1) or (2) of this subchapter must file a written complaint with FMCSA stating the substance of the alleged coercion no later than 90 days after the event. The written complaint, including the information described below, must be filed with the National Consumer Complaint Database at http://nccdb.fmcsa.dot.gov or the FMCSA Division Administrator for the State where the driver is employed. The Agency may refer a complaint to another Division Administrator who the Agency believes is best able to handle the complaint. Information on filing a written complaint may be obtained by calling 1-800-DOT-SAFT (1-800-368-7238). Each complaint must be signed by the driver and must contain: (i) The driver's name, address, and telephone number; (ii) The name and address of the person allegedly coercing the driver; (iii) The provisions of the regulations that the driver alleges he or she was coerced to violate; and (iv) A concise but complete statement of the facts relied upon to substantiate each allegation of coercion, including the date of each alleged violation. (2) Action on complaint of coercion. Upon the filing of a complaint of coercion under paragraph (e)(1) of this section, the appropriate Division Administrator shall determine whether the complaint is non- frivolous and meets the requirements of paragraph (e)(1). (i) If the Division Administrator determines that the complaint is non-frivolous and meets the requirements of paragraph (e)(1) of this section, he/she shall investigate the complaint. The complaining driver shall be timely notified of findings resulting from such investigation. The Division Administrator shall not be required to conduct separate investigations of duplicative complaints. (ii) If the Division Administrator determines the complaint is frivolous or does not meet the requirements of paragraph (e)(1) of this section, he/she shall dismiss the complaint and notify the driver in writing of the reasons for such dismissal. (3) Protection of complainants. Because prosecution of coercion in violation of Sec. 390.6 of this subchapter will require disclosure of the driver's identity, the Agency shall take every practical means within its authority to ensure that the driver is not subject to harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of such disclosure. This will include notification that 49 U.S.C. 31105 includes broad employee protections and that retaliation for filing a coercion complaint may subject the alleged coercer to enforcement action by the Occupational Safety and Health Administration. PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 0 5. Revise the authority citation for part 390 to read as follows: Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743- 1744), sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; and 49 CFR 1.81, 1.81a and 1.87. 0 6. Revise Sec. 390.3(a) to read as follows: Sec. 390.3 General applicability. (a)(1) The rules in subchapter B of this chapter are applicable to all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce. (2) The rules in 49 CFR 386.12(e) and 390.6 prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce: (i) To violate certain safety regulations are applicable to all motor carriers, shippers, receivers, and transportation intermediaries; and (ii) To violate certain commercial regulations are applicable to all operators of commercial motor vehicles. * * * * * 0 7. Amend Sec. 390.5 by adding definitions of ``Coerce or Coercion,'' ``Receiver or consignee,'' ``Shipper,'' and ``Transportation intermediary,'' in alphabetical order, to read as follows: Sec. 390.5 Definitions. * * * * * Coerce or Coercion means either-- (1) A threat by a motor carrier, shipper, receiver, or transportation intermediary, or their respective agents, officers or representatives, to withhold business, employment or work opportunities from, or to take or permit any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions which the driver stated would require him or her to violate one or more of the regulations, which the driver identified at least generally, that are codified at 49 CFR parts 171- 173, 177-180, 380-383, or 390-399, or Sec. Sec. 385.415 or 385.421, or the actual withholding of business, employment, or work opportunities or the actual taking or permitting of any adverse employment action to punish a driver for having refused to engage in such operation of a commercial motor vehicle; or (2) A threat by a motor carrier, or its agents, officers or representatives, to withhold business, employment or work opportunities or to take or permit any adverse employment action against a driver in order to induce the driver to operate a commercial motor vehicle under conditions which the driver stated would require a violation of one or more of the regulations, which the driver identified at least generally, that are codified at 49 CFR parts 356, 360, or 365-379, or the actual withholding of business, employment or work opportunities or the actual taking or permitting of any adverse employment action to punish a driver for refusing to engage in such operation of a commercial motor vehicle. * * * * * Receiver or consignee means a person who takes delivery from a motor carrier or driver of a commercial motor vehicle of property transported in interstate commerce or hazardous materials [[Page 74710]] transported in interstate or intrastate commerce. * * * * * Shipper means a person who tenders property to a motor carrier or driver of a commercial motor vehicle for transportation in interstate commerce, or who tenders hazardous materials to a motor carrier or driver of a commercial motor vehicle for transportation in interstate or intrastate commerce. * * * * * Transportation intermediary means a person who arranges the transportation of property or passengers by commercial motor vehicle in interstate commerce, or who arranges the transportation of hazardous materials by commercial motor vehicle in interstate or intrastate commerce, including but not limited to brokers and freight forwarders. * * * * * 0 8. Add Sec. 390.6 to read as follows: Sec. 390.6 Coercion prohibited. (a) Prohibition. (1) A motor carrier, shipper, receiver, or transportation intermediary, including their respective agents, officers, or representatives, may not coerce a driver of a commercial motor vehicle to operate such vehicle in violation of 49 CFR parts 171- 173, 177-180, 380-383 or 390-399, or Sec. Sec. 385.415 or 385.421; (2) A motor carrier or its agents, officers, or representatives, may not coerce a driver of a commercial motor vehicle to operate such vehicle in violation of 49 CFR parts 356, 360, or 365-379. (b) Complaint process. (1) A driver who believes he or she was coerced to violate a regulation described in paragraph (a)(1) or (2) of this section may file a written complaint under Sec. 386.12(e) of this subchapter. (2) A complaint under paragraph (b)(1) of this section shall describe the action that the driver claims constitutes coercion and identify the regulation the driver was coerced to violate. (3) A complaint under paragraph (b)(1) of this section may include any supporting evidence that will assist the Division Administrator in determining the merits of the complaint. Issued under the authority of delegation in 49 CFR 1.87 on: November 23, 2015. T.F. Scott Darling, III, Acting Administrator. [FR Doc. 2015-30237 Filed 11-27-15; 8:45 am] BILLING CODE 4910-EX-P
![Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations 74695
Regulations System, PGI 217.502–1(b)(1), when a contracting from coercing a driver to violate the
OUSD(AT&L)DPAP(DARS), Room activity from a DoD Component commercial regulations. This rule
3B941, 3060 Defense Pentagon, provides acquisition assistance to includes procedures for drivers to report
Washington, DC 20301–3060. deployed DoD units or personnel from incidents of coercion to FMCSA,
Telephone 571–372–6115; facsimile another DoD Component. establishes rules of practice that the
571–372–6094. Agency will follow in response to
SUPPLEMENTARY INFORMATION: This final
PART 239—ACQUISITION OF reports of coercion, and describes
rule amends the DFARS as follows: INFORMATION TECHNOLOGY penalties that may be imposed on
1. Directs contracting officers to entities found to have coerced drivers.
239.7603 [Redesignated as 239.7604]
additional DFARS Procedures, This rulemaking is authorized by
Guidance, and Information (PGI) by ■ 4. Redesignate section 239.7603 as section 32911 of the Moving Ahead for
adding references at— section 239.7604. Progress in the 21st Century Act (MAP–
■ 5. Add new section 239.7603 to read 21) and the Motor Carrier Safety Act of
• DFARS 217.500(b) to PGI 217.502–
1; as follows: 1984 (MCSA), as amended.
• DFARS 217.502–1(a)(1) and (b)(1) to 239.7603 Procedures. DATES: This final rule is effective
PGI 217.502–1(a)(1) and (b)(1), January 29, 2016.
Follow the procedures relating to Petitions for Reconsideration of this
respectively; and cloud computing at PGI 239.7603.
• DFARS 239.7603 to PGI 239.7603. final rule must be submitted to FMCSA
2. Makes conforming changes at PART 252—SOLICITATION Administrator no later than December
DFARS 239.7604, 252.239–7009, and PROVISIONS AND CONTRACT 30, 2015.
252.239–7010. CLAUSES ADDRESSES:
List of Subjects in 48 CFR 217, 239, and 252.239–7009 [Amended] Availability of Rulemaking Documents
252 For access to docket FMCSA–2012–
■ 6. Amend section 252.239–7009, in
Government procurement. 0377 to read background documents and
the introductory text, by removing
comments received, go to http://
Jennifer L. Hawes, ‘‘239.7603(a)’’ and adding ‘‘239.7604(a)’’
www.regulations.gov at any time, or to
Editor, Defense Acquisition Regulations in its place.
Docket Services at U.S. Department of
System. 252.239–7010 [Amended] Transportation, Room W12–140, 1200
Therefore, 48 CFR parts 217, 239, and ■ 7. Amend section 252.239–7010, in New Jersey Avenue SE., Washington,
252 are amended as follows: the introductory text, by removing DC 20590, between 9 a.m. and 5 p.m.,
■ 1. The authority citation for 48 CFR ‘‘239.7603(b)’’ and adding Monday through Friday, except Federal
parts 217, 239, and 252 continues to ‘‘239.7604(b)’’ in its place. holidays.
read as follows: [FR Doc. 2015–30307 Filed 11–27–15; 8:45 am] Privacy Act
BILLING CODE 5001–06–P
Authority: 41 U.S.C. 1303 and 48 CFR In accordance with 5 U.S.C. 553(c),
chapter 1. DOT solicits comments from the public
to better inform its rulemaking process.
PART 217—SPECIAL CONTRACTING DEPARTMENT OF TRANSPORTATION
DOT posts these comments, without
METHODS
Federal Motor Carrier Safety edit, including any personal information
■ 2. In section 217.500, paragraph (b) is Administration the commenter provides, to
added to read as follows: www.regulations.gov, as described in
49 CFR Parts 386 and 390 the system of records notice (DOT/ALL–
217.500 Scope of subpart. 14 FDMS), which can be reviewed at
* * * * * [Docket No. FMCSA–2012–0377] www.dot.gov/privacy.
(b) A contracting activity from one RIN 2126–AB57 FOR FURTHER INFORMATION CONTACT: Mr.
DoD Component may provide Charles Medalen, Regulatory Affairs
acquisition assistance to deployed DoD Prohibiting Coercion of Commercial Division, Office of Chief Counsel, (202)
units or personnel from another DoD Motor Vehicle Drivers 493–0349. FMCSA office hours are from
Component. See PGI 217.502–1 for 9 a.m. to 5 p.m., Monday through
AGENCY: Federal Motor Carrier Safety
guidance and procedures. Friday, except Federal holidays.
Administration (FMCSA), DOT.
■ 3. Sections 217.502 and 217.502–1 are SUPPLEMENTARY INFORMATION:
added to read as follows: ACTION: Final rule.
Table of Contents
217.502 Procedures. SUMMARY: FMCSA adopts regulations
I. Abbreviations and Acronyms
that prohibit motor carriers, shippers,
217.502–1 General. II. Executive Summary
receivers, or transportation III. Legal Basis for This Rulemaking
(a) Determination of best procurement intermediaries from coercing drivers to IV. Background
approach—(1) Assisted acquisitions. operate commercial motor vehicles V. Discussion of Comments
Follow the procedures at PGI 217.502– (CMVs) in violation of certain VI. Section-by-Section Description
1(a)(1), when a contracting activity from provisions of the Federal Motor Carrier VII. Regulatory Analyses
one DoD Component provides Safety Regulations (FMCSRs)— I. Abbreviations and Acronyms
jstallworth on DSK7TPTVN1PROD with RULES
acquisition assistance to deployed DoD including drivers’ hours-of-service
units or personnel from another DoD limits; the commercial driver’s license CDL Commercial Driver’s License
Component. (CDL) regulations; drug and alcohol CMV Commercial Motor Vehicle
DOT Department of Transportation
(b) Written agreement on testing rules; and the Hazardous FMCSA Federal Motor Carrier Safety
responsibility for management and Materials Regulations (HMRs). In Administration
administration—(1) Assisted addition, the rule prohibits anyone who FMCSRs Federal Motor Carrier Safety
acquisitions. Follow the procedures at operates a CMV in interstate commerce Regulations
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HOS Hours of Service be less than the $100 million threshold related commercial regulations is well
HMRs Hazardous Materials Regulations required for economic significance within the scope of section 31136(a)(1)–
ICC Interstate Commerce Commission under E.O. 12866. (4). Applying the same ban to
MAP–21 Moving Ahead for Progress in the
commercial provisions that are not
21st Century Act III. Legal Basis for This Rulemaking
MCSA or 1984 Act Motor Carrier Safety Act immediately related to safety is
of 1984
This rule is based on the authority of nonetheless consistent with the goals of
NAICS North American Industry MCSA [49 U.S.C. 31136(a)], as amended section 31136 and will help to inhibit
Classification System by MAP–21 [Pub. L. 112–141, section the growth of a culture of indifference
OIG Office of Inspector General 32911, 126 Stat. 405, 818, July 6, 2012] to regulatory compliance, a culture
OSHA Occupational Safety and Health and on 49 U.S.C. 13301(a), as amended known to contribute to unsafe CMV
Administration by the ICC Termination Act of 1995 operations. Banning coercion to violate
SBA Small Business Administration [Pub. L. 104–88, 109 Stat. 803,
STAA Surface Transportation Assistance the commercial regulations is also
December 29, 1995]. within the broad authority transferred
Act of 1982
The 1984 Act confers on DOT from the former ICC to prescribe
II. Executive Summary authority to regulate drivers, motor regulations to carry out Part B of
carriers, and vehicle equipment. The Subtitle IV of Title 49, United States
Purpose and Summary of the Major 1984 Act stated that at a minimum, the
Provisions Code (49 U.S.C. 13301(a)). This
regulations shall ensure that—(1) prohibition applies to operators of
Congress required FMCSA to ensure commercial motor vehicles are CMVs, which are mainly motor carriers,
that the regulations adopted pursuant to maintained, equipped, loaded, and but not to shippers, receivers, or
the MCSA, as amended by MAP–21, do operated safely; (2) the responsibilities transportation intermediaries, since they
not result in coercion of drivers by imposed on operators of commercial are not subject to section 31136(a)(1)–(4)
motor carriers, shippers, receivers, or motor vehicles do not impair their
or section 13301.
transportation intermediaries to operate ability to operate the vehicles safely; (3)
CMVs in violation of certain provisions Together, these two provisions cover
the physical condition of operators of
of the FMCSRs and the HMRs. most kinds of coercion drivers might
commercial motor vehicles is adequate
The major provisions of this rule encounter.
to enable them to operate the vehicles
include prohibitions of coercion, safely; and (4) the operation of This rule also adopts procedures for
procedures for drivers to report commercial motor vehicles does not drivers to report coercion and rules of
incidents of coercion to FMCSA, and have a deleterious effect on the physical practice the Agency will follow in
rules of practice that the Agency will condition of the operators [49 U.S.C. addressing such reports.
follow in response to reports of 31136(a)]. FMCSA believes the reduction of
coercion. Section 32911 of MAP–21 enacted a regulatory violations caused by coercion
fifth requirement, i.e., that the will prove conducive to improved
Benefits and Costs driver health and well-being, consistent
regulations ensure that ‘‘(5) an operator
The FMCSA believes that this rule of a commercial motor vehicle is not with the objectives of section
will not have an economically coerced by a motor carrier, shipper, 31136(a)(2)–(4).
significant impact. The motor carriers, receiver, or transportation intermediary Before prescribing any regulations,
shippers, receivers, freight forwarders, to operate a commercial motor vehicle FMCSA must consider their ‘‘costs and
brokers and transportation in violation of a regulation promulgated benefits’’ [49 U.S.C. 31136(c)(2)(A) and
intermediaries that previously engaged under this section, or chapter 51 or 31502(d)]. Those factors are discussed
in acts of coercion against truck or bus chapter 313 of this title’’ [49 U.S.C. in this rule.
drivers will incur compliance costs to 31136(a)(5)]. IV. Background
operate in accordance with the The 1984 Act also includes more
regulations, and they will lose whatever general authority to ‘‘(10) perform other Section 32911 of MAP–21 is the most
economic benefit coercion provided; acts the Secretary considers recent example of Congress’ recognition
however, the cost of compliance with appropriate’’ [49 U.S.C. 31133(a)(10)]. of the important role the public plays in
existing regulations has already been This rule includes two separate highway safety. In the 1980s, Congress
captured in the analysis supporting the prohibitions. One prohibits motor implemented new financial
implementation of those regulations, so carriers, shippers, receivers, or responsibility requirements for motor
we do not consider them here. There transportation intermediaries from carriers of property and passengers to
will be safety benefits from increased coercing drivers to violate regulations encourage the insurance industry to
compliance with the regulations and based on section 31136 (which is the exercise greater scrutiny over the
driver health benefits if HOS violations authority for many parts of the operations of motor carriers as one
decrease. In the absence of coercion, the FMCSRs), 49 U.S.C. chapter 313 (the method to improve safety oversight
drivers will conduct their safety- authority for the commercial driver’s (section 30 of the Motor Carrier Act of
sensitive work in a manner consistent license (CDL) and drug and alcohol 1980 (Pub. L. 96–296) and section 18 of
with the applicable Federal regulations. regulations), and 49 U.S.C. chapter 51 the Bus Regulatory Reform Act of 1982
During the four-year period from 2009 (the authority for the HMRs). This is (Pub. L. 97–261)).
through 2012, OSHA determined that required by 49 U.S.C. 31136(a)(5). Section 32911 of MAP–21 represents
253 whistleblower complaints from A second provision prohibits entities a similar congressional decision to
CMV drivers had merit. In the same that operate CMVs in interstate expand the reach of motor carrier safety
jstallworth on DSK7TPTVN1PROD with RULES
period, FMCSA validated 20 allegations commerce from coercing drivers to regulations from the supply side (the
of motor carrier coercion of drivers that violate the commercial regulations. As drivers and carriers traditionally
were filed with DOT’s OIG. This is an explained more fully below, this regulated by the Federal government) to
average of 68.25 acts of coercion per provision is based on the broad general the demand side—the shippers,
year during the four-year period. The authority of 49 U.S.C. 31136(a)(1)–(4), receivers, brokers, freight forwarders,
Agency estimates that the cost of especially paragraphs (a)(1) and (2). travel groups and others that hire motor
eliminating this level of coercion would Banning coercion to violate the safety- carriers to provide transportation and
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whose actions have an impact on CMV safely [49 U.S.C. 31136(a)(1)–(2)]. Some However, pursuant to the Debt
safety. of the commercial regulations have Collection Improvement Act of 1996
Economic pressure in the motor effects related to safety. Designation of [Pub. L. 104–134, title III, chapter 10,
carrier industry affects commercial a process agent under 49 CFR part 366 sec. 31001(s), 110 Stat. 1321–373], the
drivers in ways that can adversely affect ensures that parties injured in a CMV maximum inflation-adjusted civil
safety. For years, drivers have voiced crash can easily serve legal documents penalty per offense is $16,000 (49 CFR
concerns that other parties in the on the carrier operating the CMV, part 386, App. B, Paragraph (a)(3)).
logistics chain are frequently indifferent wherever the location of its corporate
to the operational limits imposed on V. Discussion of Comments
offices. Registration as a for-hire motor
them by the FMCSRs. Allegations of carrier under 49 CFR part 365, or as a Overview
coercion were submitted in the docket broker under 49 CFR part 371, ensures On May 13, 2014, the Agency
for the Agency’s 2010–2011 HOS that an applicant has met the minimum published a notice of proposed
rulemaking.1 Also, drivers and others standards for safe and responsible rulemaking (NPRM) (79 FR 27265) to
who testified at FMCSA listening operations. Coercion of drivers to implement the MAP–21 prohibition of
sessions and before Congress said that violate requirements such as these could coercion.
some motor carriers, shippers, receivers, have an effect on their ability to operate Between May 13 and September 4,
tour guides, and brokers insist that a CMVs safely, e.g., requiring a driver to 2014, 94 submissions were posted to the
driver deliver a load or passengers on a operate a vehicle in interstate commerce docket. One of the submissions was a
schedule that would be impossible to when the owner had neither obtained duplicate,3 and three were non-
meet without violating the HOS or other operating authority registration from responsive,4 leaving 90 submissions
regulations. Drivers may also be FMCSA nor filed proof of insurance. from the following:
pressured to operate vehicles with
The minimum requirement to obtain • One Federal agency: OSHA.
mechanical deficiencies, despite the • Six motor carriers: Kimberly
restrictions imposed by the safety FMCSA authority to operate as a for-hire
motor carrier, freight forwarder, or Arnold, Louisiana Transport, Inc.,
regulations. Drivers who object that they Mason/Dixon Lines, Inc., Schneider
must comply with the FMCSRs are broker under 49 U.S.C. 13902, 13903, or
13904, respectively, is willingness and National, Inc., Wayne Yoder, one
sometimes told to get the job done anonymous company, and the Motor
despite the restrictions imposed by the ability to comply with ‘‘this part and the
applicable regulations of the Secretary Carrier Coalition comprised of 12
safety regulations. The consequences of
. . . .’’ Among those ‘‘applicable additional motor carriers.
their refusal to do so are either stated • Ten industry associations:
explicitly or implied in unmistakable regulations’’ are this rule’s ban on
coercing drivers to violate the American Trucking Associations (ATA),
terms: Loss of a job, denial of Association of Independent Property
subsequent loads, reduced payment, commercial regulations. For-hire motor
carriers are subject to an even more Brokers & Agents (AIPBA), Institute of
denied access to the best trips, etc. Makers of Explosives (IME), National
Although sec. 32911 of MAP–21 explicit requirement to observe ‘‘any
safety regulations imposed by the Customs Brokers and Forwarders
amended 49 U.S.C. 31136(a), it did not
Secretary’’ [49 U.S.C. 13902(a)(1)(B)(i)], Association of America, Inc.(NCBFAA),
amend the jurisdictional definitions in
49 U.S.C. 31132, which specify the including § 390.6(a)(2). Moreover, National Grain and Feed Association
reach of FMCSA’s authority to regulate independent of MAP–21, FMCSA has (NGFA), National Industrial
motor carriers, drivers, and CMVs. statutory authority under 49 U.S.C. Transportation League (NIT League),
Thus, it appears that Congress did not 13301(a), formerly vested in the ICC, to National Shippers Strategic
intend to apply all of the FMCSRs to prescribe regulations to carry out Transportation Council, Inc.
shippers, receivers, and transportation chapter 139 and the rest of Part B of (NASSTRAC), Owner-Operator
intermediaries that are not now subject Subtitle IV of Title 49. The prohibition Independent Drivers Association, Inc.
to those requirements. (Motor carriers, on coercing drivers to violate the (OOIDA), Snack Food Association, and
of course, have always been subject to commercial regulations is within the Transportation Intermediaries
the FMCSRs.) Instead, sec. 32911 scope of this authority. Association (TIA).
prohibited these entities from coercing • Two advocacy organizations:
Because both of the coercion Advocates for Highway and Auto Safety
drivers to violate most of the FMCSRs. prohibitions described above are based
This necessarily confers upon FMCSA (Advocates) and Road Safe America.
on 49 U.S.C. 31136(a), codified in • One labor union: Transportation
the jurisdiction over shippers, receivers, subchapter III of chapter 311, violations
and transportation intermediaries Trades Department, AFL–CIO (TTD).
of those rules would be subject to the • One transportation intermediary:
necessary to enforce that prohibition. civil penalties in 49 U.S.C. 521(b)(2)(A),
Although MAP–21 did not address Armada.
which provides that any person who is • One commercial carrier consultant:
coercion to violate the commercial determined by the Secretary, after notice Richard Young; and
regulations that the Agency inherited in and opportunity for a hearing, to have • 67 individuals including 15 who
the ICC Termination Act of 1995, committed an act that is a violation of self-identified as drivers and 2 owner
FMCSA is adopting a rule in order to the regulations issued by the Secretary operators.
ensure that there is no significant gap in under subchapter III of chapter 311
the applicability of the coercion Comments Supporting the Rulemaking
(except sections 31138 and 31139 2) or
prohibition. As discussed above in the Fifteen commenters, including two
section 31502 of this title shall be liable
Legal Basis section, the MCSA gives the safety advocacy groups, two trade
to the United States for a civil penalty
jstallworth on DSK7TPTVN1PROD with RULES
Agency broad authority to ensure that associations, a driver, an owner-
in an amount not to exceed $10,000 for
CMVs are maintained, equipped, operator, a union, OSHA, and seven
each offense.
loaded, and operated safely, and that the individuals, expressed their general
responsibilities imposed on drivers do 2 Sections 31138 and 31139 prescribe minimum
not impair their ability to operate CMVs financial responsibility standards for the 3 Submission number 0080 is a duplicate of
transportation of passengers and property, number 0089.
1 See 76 FR 81162. respectively. 4 Submission numbers 0010, 0015, and 0016.
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support for the proposed rule. Road Safe violating the rules. Two individuals it a violation for a shipper or
America and Advocates support the commented that this NPRM does not transportation intermediary to refuse a
Agency’s efforts to end the practice of impose any new requirements on load to a driver if it ‘knew or should
coercion, but Advocates recommended shippers or receivers that will prevent have known’ that the driver was about
that FMCSA take additional steps, such them from detaining a driver for hours to exceed or already had exceeded the
as investigating all reported incidents of and then requiring the driver to leave HOS regulations. Yet, the shipper or
coercion, and exercise its authority to the property even if the driver is out of transportation intermediary could not
suspend the registration of those that hours. properly request that the driver perform
engage in documented instances of FMCSA Response the transportation, as it would then be
coercion. ATA and AIPBA support both ‘coercing’ the driver and aiding
prohibiting coercion, but expressed These comments are discussed in
detail below under the appropriate and abetting the HOS violation. So, if a
reservations about the potential impact driver assigned by a motor carrier
the proposed rule would have on subject heading.
shows up to pick up a load and advises
commercial relations between motor Definition of Coercion the shipper or transportation
carriers and shippers, receivers, and intermediary that he or she cannot
OSHA commented that ‘‘coercion is
intermediaries. OSHA, which is lawfully handle the load due to HOS or
broader than just threats related to loss
responsible for enforcing the
of work, future business, or other other concerns, the shipper or
whistleblower protection provisions of
economic opportunities. Coercion and transportation intermediary would not
the Surface Transportation Assistance
coercive tactics may also include threats be able to contact the carrier and request
Act of 1981 (STAA) and 21 other
of violence, demotion, reduction of pay, that they replace the driver. Instead the
statutes, supports the proposal and
and withdrawal or reduction of benefits, load would just sit. This is a catch 22
offered suggestions to make it more or any action that is capable of
effective. TTD, a driver, an owner- . . .’’
dissuading a reasonable employee from
operator, and seven individuals NIT League offered a similar
engaging in whistleblowing activity.’’
expressed strong support for the NPRM. OSHA therefore recommended that the comment. ‘‘If a shipper attempts to
Many of these commenters stated that proposed definition of coercion, which confirm a delivery appointment with
the rule would finally make shippers, referred to ‘‘a threat . . . to withhold, or the driver, does that equate to directing
receivers and transportation the actual withholding of, current or ‘a driver to complete a run in a certain
intermediaries accountable for their future business, employment, or work time’? It may not in the mind of the
actions. opportunities from a driver . . .’’ be shipper but what if the driver has a
Comments in Opposition to the amended to refer to ‘‘a threat . . . to different interpretation? If the driver
Rulemaking take or permit any adverse employment objects to meeting that appointment due
action against a driver . . .’’ to HOS rules and the shipper gives the
Eighteen commenters, including nine NCBFAA pointed out that if a load to another carrier who can timely
individuals, seven trade associations shipper, receiver, or transportation make the delivery, does that loss of
and two drivers expressed their general intermediary discovered an ‘‘HOS business equate to coercion? What if the
disapproval of the NPRM. Many of these issue—which would likely only be the driver associates the selection of an
commenters stated that they agree with case because the driver happened to say alternative carrier with its objection but
FMCSA that CMV drivers should not be something about it—any decision to the shipper simply needed to meet its
coerced into violating any laws or refuse to tender the shipment could be delivery requirements? The answers to
regulations; however, they believe the construed as violating the proposed these questions are far from clear. . . .
requirements proposed in the NPRM regulation. For then, it would be [T]he League suggests that FMCSA
will lead to unintended consequences. knowingly ‘withholding . . . work modify its proposal to require the driver
Several commenters stated there is no opportunities from a driver’ when it to inform the shipper of the potential
need for this regulation because existing ‘knew’ the driver was unable to lawfully safety violation at the time he/she
regulations already prohibit coercion. handle the load. In that case, because
Three trade associations contend that lodges the objection and to promptly
the motor carrier elected to dispatch a record the alleged coercion event.
the NPRM misapplies the legal doctrine driver that could not lawfully handle
of respondeat superior 5 in attempting to Specifically, the League suggests that
the load, the cargo would not be able to FMCSA require a driver who is
hold shippers and receivers legally move until such time as the driver in
responsible for drivers that they do not concerned about violating a safety rule
question was again able to operate the to take the following steps before
hire, direct or manage. NASSTRAC equipment.’’ ‘‘The NCBFAA believes
stated the proposed rules are ‘‘arbitrary accepting the load: (1) Clearly articulate
that where a shipper or transportation the objection to the allegedly coercing
and capricious, contrary to law, intermediary learns that a driver may
impracticable and certain to do more party and such objection must identify
not haul a load because he/she does not the specific FMCSA regulation that will
harm than good.’’ Another commenter have the available hours, it should be
argued that the Agency has not be violated; and (2) record in a
able to freely advise the trucker of the contemporaneous writing his/her
accurately assessed the cost of these situation so it can provide another
requirements, and expressed concern objection and the facts and
driver who does have available hours to circumstances associated with the
that the complaint reporting process is complete the haul in a timely manner.
highly subjective. Two drivers wrote alleged coercion incident.’’
Alternatively, the shipper/
jstallworth on DSK7TPTVN1PROD with RULES
that new regulations are not necessary; transportation intermediary should be ATA also recommended ‘‘that the rule
instead drivers need to stand up to able to use another carrier entirely, require a driver alleging coercion to
anyone trying to coerce them into particularly one that is sufficiently make the objection at a time
responsible and knowledgeable about contemporaneous with the incident in a
5 ‘Respondeat superior’ is a legal concept meaning
the status of its drivers.’’ writing that identifies the regulation(s)
that an employer is responsible for the wrongful
acts of its employees or agents who are acting TIA made the same point. ‘‘Read that would be violated if the driver
within the scope of their employment or agency. literally, the definition would now make operated the CMV.’’
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FMCSA Response to have full command of regulatory circumstances which the intermediary
FMCSA has revised and clarified the citations. Nonetheless, the driver must ‘knew or should have known’ would
NPRM’s definition of ‘‘coercion.’’ be able to identify the problem clearly require the driver to violate the safety
Readers may find it helpful to keep in enough to enable FMCSA personnel to regulations. Thus, it would appear that
mind the new definition (see § 390.5) as determine that it falls within a absent a driver’s objection, there is no
they review the Agency’s response to requirement or prohibition of the obligation on the part of those other
specific comments. Agency’s regulations. It will be than the motor carrier to whom the
Although the language proposed by sufficient, for example, if the driver driver is directly employed or leased to
OSHA is similar to that used in the indicates that he or she objects to a independently assure compliance with
NPRM, FMCSA agrees that OSHA’s particular trip because of an HOS the hours of service or other
recommendation would clarify the problem (‘‘they told me to keep driving regulations.’’ IME also interpreted the
intended scope of the definition. The even when I hit 11 hours’’), a language of the NPRM as requiring the
maintenance issue (‘‘the last inspection driver to object before a finding of
Agency has therefore included the
certificate was 3 years old’’), or bad tires coercion could be made.
phrase ‘‘take or permit any adverse
(‘‘there was no tread on the front tires;
employment action,’’ which has the FMCSA Response
I could see the ply in a couple of
added benefit of resolving other Schneider National and IME are
places’’).
concerns about the definition. Similarly, the Agency will not require correct. This final rule does not require
The NCBFAA, TIA, and NIT League shippers, receivers, and transportation
the driver to record his objection in ‘‘a
comments correctly identified an intermediaries (unlike motor carriers) to
contemporaneous writing.’’ On the other
unintended consequence of the hand, if the shipper or transportation monitor a driver’s compliance with the
proposed definition of ‘‘coercion.’’ intermediary attempts to coerce the HOS rules or other regulations. As the
Obviously, a shipper or transportation driver to take the load after hearing the preamble to the NPRM stated, a shipper,
intermediary should not be liable for objection, it would be in the driver’s receiver, or transportation intermediary
withholding a load from a driver who best interests to document that attempt ‘‘may commit coercion if it fails to heed
has stated that he or she could not make as soon as practicable. a driver’s objection that the request
the trip without violating the FMCSRs. would require him/her to break the
In that situation, both the driver and the Additional Burdens Created by Rule rules’’ (79 FR 27267, emphasis added).
shipper or transportation intermediary Many of the commenters believe There would be no requirement or even
are acting appropriately. The Agency shippers would have to adopt extensive occasion to inquire into the driver’s
has therefore amended the reference to and burdensome procedures to comply available hours unless the driver had
the withholding of ‘‘current or future with the proposed rule. NASSTRAC raised an objection to the delivery
business, employment, or work wrote that ‘‘[t]he aspect of the proposed schedule; and an inquiry would not be
opportunities’’ by striking the reference rules that will cost the most (far more necessary if the shipper or
to ‘‘current or future’’ business and than the zero dollars FMCSA projects), transportation intermediary agreed to
adding the phrase ‘‘take or permit any and which is most contrary to change the delivery schedule to match
adverse employment action.’’ The established law, is the ‘duty to inquire.’ the driver’s available hours or arranged
revised definition thus allows the . . . It remains the case that every with the motor carrier to have a
shipper or transportation intermediary shipper would have to discuss HOS different driver take the load.
to take either of the actions that status for every scheduled shipment Nevertheless, because many shippers,
NCBFAA proposed without violating with every driver.’’ receivers, and transportation
the rule, i.e., to call the motor carrier The TIA commented that ‘‘[t]he intermediaries believe that, in order to
and request another driver or to give the NPRM would place the shipper and avoid potential liability, they must
load to a different motor carrier. Neither transportation intermediary into the role inquire about HOS compliance, and
action would attempt to force a driver of employee management having to ask perhaps document all of their
to violate the FMCSRs, nor would it about hours of service availability.’’ interactions with drivers, the Agency
involve a threat to take other adverse NGFA noted that ‘‘[i]n current has amended the definition of
employment action against the driver. operations, a shipper or receiver . . . ‘‘coercion’’ to make clear that the driver
The removal of the word ‘‘current’’ does not check a driver’s hours-of- has an affirmative obligation to inform
resolves most of the TIA’s and NIT service (HOS) log or inspect the driver’s the motor carrier, shipper, receiver, or
League’s concerns. There is no coercion commercial motor vehicle—and it could transportation intermediary when he or
to violate the FMCSRs when a shipper be argued that the shipper or receiver she cannot make the requested trip
gives a load to another carrier after the does not have a duty or even a right to without violating one or more of the
original driver states that he or she do so—if the driver is employed by regulations listed in the definition.
cannot meet the requested delivery another company. . . . Even if drivers Motor carriers, shippers, receivers, and
schedule without an HOS or other and their employers are fully transportation intermediaries cannot
violation. On the contrary; that change cooperative in this respect, the resulting commit coercion under the final rule
of carriers is an attempt to ensure that burden and added costs for shippers unless and until they have been put on
no such regulatory violation occurs. and receivers would be tremendous.’’ notice by the driver that he or she
The Agency has also revised the The NIT League objected to cannot meet the proposed delivery
definition of ‘‘coercion’’ to require the ‘‘FMCSA’s apparent intent to impose a schedule without violating the HOS
driver to identify ‘‘at least generally’’ the duty on the shipper or receiver to limits or other regulatory requirements.
jstallworth on DSK7TPTVN1PROD with RULES
rules that he or she would have to inquire as to a for-hire driver’s The purpose of that notice is, of course,
violate in the course of the delivery. compliance with the HOS rules.’’ to ensure that the driver is not coerced
FMCSA is not requiring drivers to Schneider National, on the other to commit such violations.
‘‘identify the specific FMCSA regulation hand, wrote that ‘‘[i]f we understand
that will be violated,’’ as the NIT League FMCSA’s proposal correctly, exposure Agents, Officers, or Representatives
and ATA requested. The FMCSRs are for a claim of coercion is triggered by an The NPRM proposed to apply the
complex and drivers cannot be expected objection from a driver under prohibition on coercion not only to
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principals, but also to ‘‘their respective for the transportation on a schedule independent contractor employed by a motor
agents, officers or representatives.’’ which can be accomplished consistent carrier. The existence of operating authority
Many commenters focused on this issue. with the hours of service regulations, has no bearing upon the issue. The motor
A coalition of 12 motor carriers 6 provided the involved motor carrier has carrier is, therefore, responsible for
(hereafter Coalition) described a an available driver with appropriate compliance with the FMCSRs by its driver
hypothetical situation where ABC ‘hours’. The broker would not normally employees, including those who are owner-
Transportation, Inc. hires John Doe be privy to the motor carrier’s driver/ operators.
Trucking, an independent owner- load assignment process. Under this
operator, which coerces one of its Brokers, however, are not employees
circumstance, is the motor carrier, by
drivers to violate the HOS rules without of a motor carrier, nor are motor carriers
virtue of the typical broker/carrier
the knowledge or approval of ABC arrangement, an ‘agent’ or agents or representatives of brokers. In
Transportation. The Coalition asked ‘representative’ of the broker such that a normal arms-length transaction, the
‘‘[a]gainst which entity in this scenario the broker would be liable under the broker deals with a motor carrier, not an
and under the proposed regulation proposed rule for any motor carrier individual driver. The motor carrier has
would FMCSA take enforcement action? violation? The use of the terms ‘agent’, an obligation to comply with the
One would expect John Doe Trucking. ‘officers’ and ‘representatives’ might FMCSRs and thus to assign a driver who
After all, it is the entity responsible for suggest that liability in the foregoing has sufficient hours to complete the trip
the coercive behavior. But if John Doe circumstances could be attributed to the on the schedule outlined by the broker
Trucking is considered an ‘agent, broker. Such a result would be and to provide equipment that meets
officer, or representative’ of ABC inequitable.’’ applicable standards. Any coercion that
Transportation, Inc., ABC could, in fact, occurred would typically be committed
be on the hook. . . . In order to avoid FMCSA Response by the motor carrier that employed the
the inequitable situation described The issues raised by these comments driver. However, as TIA pointed out, a
above, the FMCSA . . . should consider were resolved by Congress in the MCSA State court has held that where a broker
narrowly defining the terms ‘agents,’ of 1984. The prohibition on coercion is contracted with a motor carrier but in
‘officers,’ and ‘representatives’ to codified in the amended version of that fact exercised direct control over the
specifically exclude independent statute at 49 U.S.C. 31136(a)(5). For driver, that broker was liable for a tort
contractors with whom motor carriers purposes of the MCSA, ‘‘ ‘employee’ committed by the driver [Sperl v. C. H.
contract to haul freight and who are not means an operator of a commercial Robinson Worldwide, Inc., 946 NE.2d
specifically authorized to act on their motor vehicle (including an 463 (2011)]. A broker could be found
behalf.’’ independent contractor when operating liable for coercion if it interacted
ATA agreed with the Coalition’s a commercial motor vehicle), a
comments and urged the Agency ‘‘to directly with a driver, instead of with
mechanic, a freight handler, or an the carrier, and attempted to force the
clarify that, for purposes of the individual not an employer, who—(A)
definition of ‘coercion’ and proposed driver to make a delivery on a schedule
directly affects commercial motor that would require a violation of the
section 390.6, a motor carrier’s agents, vehicle safety in the course of
officers or representatives only include FMCSRs. The Agency has no
employment; and (B) is not an employee
anyone who is authorized to act on information about how often direct
of the United States Government, a
behalf of a motor carrier. In the instance interactions between transportation
State, or a political subdivision of a
where an independent contracting State acting in the course of the intermediaries and drivers may occur.
entity engaged in the act of coercion employment by the Government, a Respondeat Superior
against one of its drivers, only that State, or a political subdivision of a
entity should be liable under proposed State’’ [49 U.S.C. 31132(2)]. Many commenters objected to the
section 390.6—not the motor carrier to Independent owner operators NPRM’s assertion that the ‘‘knew or
whom the equipment and driver are employed by a motor carrier are should have known’’ standard in the
leased.’’ statutorily defined as employees of that definition of coercion ‘‘is essentially a
Schneider National commented that it carrier for purpose of the FMCSRs, restatement of the common law
‘‘utilizes the services of approximately including this final rule. In the principle of ‘respondeat superior,’
2,000 independent contractors hypothetical situation described by the which holds the ‘master’ (employer)
including a number of fleet owners. As Coalition, the independent owner liable for the acts of his ‘servant’
such, Schneider shares the concerns operator who owns John Doe Trucking (employee).’’ Schneider National offered
raised in such comments relative to the is an employee of ABC Transportation. a brief critique that captures the general
use of terms ‘agents,’ ‘officers’ and Any attempt by John Doe Trucking to reaction: ‘‘FMCSA should retract its
‘representatives’ used in conjunction coerce one of its drivers is therefore an discussion on respondeat superior and
with the term ‘motor carrier’ in attempt by ABC Transportation, through make clear that it is basing the
§ 390.6(a)(2), and adopts their comments one of its employees, to coerce one of rulemaking on MAP–21. At the very
as filed. . . . [S]imilar issues may arise its drivers. least, it need[s to] make clear that its
in the context of brokerage operations. FMCSA published regulatory regulations are limited to dealing with
Consider, for example, a motor carrier guidance on this issue on April 4, 1997
contracted by a broker with respect to a the issue of possible driver coercion and
[62 FR 16370, 16407]: such regulations or any enforcement
particular shipment. In the normal
circumstance, the broker would arrange Question 17: May a motor carrier that actions thereunder are not a re-
jstallworth on DSK7TPTVN1PROD with RULES
employs owner-operators who have their characterization of the employment
own operating authority issued by the ICC or relationship generally. Absent this,
6 C.R. England, Inc.; CRST International, Inc.;
the Surface Transportation Board [authority
Central Refrigerated Service, Inc.; Cowan Systems, those against whom an enforcement
that is now issued by FMCSA] transfer the
LLC; Dart Transit Company; Greatwide Truckload
responsibility for compliance with the action is brought may have greatly
Management; Liquid Transport Corp.; National
Carriers, Inc.; Oakley Trucking, Inc.; PGT Trucking, FMCSRs to the owner-operators? enhanced incentive to fully litigate
Inc.; Roadrunner Transportation Systems, Inc.; and Guidance: No. The term ‘‘employee,’’ as every citation, unduly burdening
Schneider National, Inc. defined in § 390.5, specifically includes an FMCSA’s enforcement effectiveness.’’
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![Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations 74701
FMCSA Response or might not cross the line into coercion. enforcement activities instead of placing
FMCSA agrees with Schneider The answer would depend on the the responsibility to initiate and prove
National’s comment. This final rule is substance of the conversation and the incidents of coercion upon those least
based on the authority of 49 U.S.C. existence of a threat, explicit or implied, able to deal with the problem directly,
31136(a)(5). The discussion of to make the driver pay an economic the target of the coercion.
price for refusing to violate an FMCSA ATA and the NIT League
‘‘respondeat superior’’ in the NPRM was
regulation. recommended that the Agency adopt a
not intended to make shippers,
standard of ‘‘clear and convincing
receivers, and transportation Burden of Proof evidence,’’ rather than ‘‘preponderance
intermediaries vicariously liable, Two trade associations, ATA and of the evidence.’’ The NIT League
because Congress made them directly NITL, Advocates, Mr. Wayne Yoder, argued that this standard is appropriate
liable through section 32911 of MAP– who is a carrier, and four anonymous because of the significant consequences
21. FMCSA emphasizes that any individuals commented on who should associated with a violation of the
evidence gathered in response to a bear the burden to prove coercion. coercion prohibition, which include
written complaint by a driver would Among these commenters, ATA and two potential monetary penalties and
point to specific individuals and that individuals argued that the driver suspension or revocation of the
persons at higher levels in the should bear the burden of proof in registration of an offender. Conversely,
organization would not necessarily be coercion cases. The individuals said it OOIDA stated FMCSA should not
implicated. must be the driver’s responsibility weaken the rule by adopting an
In any case, the revised definition of because only the driver controls the evidentiary standard that exceeds the
coercion adopted in this final rule information on his logs. standard for determining other safety
eliminates the ‘‘knew or should have On the other hand, Advocates stated violations.
known’’ standard by emphasizing more that ‘‘once a complaint is determined by
strongly the driver’s duty to object as a FMCSA to meet the substantive criteria FMCSA Response
predicate for any subsequent allegation outlined in Section 386.12(e) of the When imposing a civil penalty for
of coercion. NPRM a prima facie showing of coercion, the government has the
Coercion That Fails coercion has been made under the burden of proof. The driver, however, is
proposed regulations. As such, the typically the only person in a position
NASSTRAC objected to FMCSA’s burden of proof should shift to the to provide the critical evidence needed
intent to ‘‘penalize unsuccessful alleged offender to demonstrate that to sustain the action against a carrier,
coercion, i.e., customer requests that a there was a valid reason for the actions shipper, receiver, or transportation
driver ignores.’’ NASSTRAC argued that in dispute as is the current legal intermediary. The NPRM simply
‘‘[p]enalizing coercion resulting in framework applied in cases alleging acknowledged this reality. While it may
violations better addresses the conduct employment discrimination in violation sometimes be difficult for the driver to
Congress wanted to discourage. FMCSA of Title VII of the Civil Rights Act of provide relevant evidence, as OOIDA
has cited no analogous regulatory 1964.’’ and others argued, there is no realistic
program that would penalize millions of A carrier and three individuals (Mr. alternative. The Agency will not require
Americans’ words or requests even if Nick Scarabello and two anonymous motor carriers to record all phone
they produce no actions. The Foreign people) noted the driver is not well conversations and other
Corrupt Practices Act and similar anti- positioned to provide evidence of communications with drivers, a far-
bribery laws penalize inducements to coercion. The carrier responding to the reaching requirement which was not
violate laws, but they generally require NPRM stated that a motor carrier is proposed for public comment in the
some direct or indirect payment in better able to provide evidence by way NPRM. FMCSA will investigate timely
addition to an oral or written request. In of rate agreements, contracts, orders, or complaints that meet the standards
addition, penalizing shippers, receivers bills of lading from the customer, but outlined in § 386.12 and may be able to
and intermediaries for words that the driver has no way of printing or locate or generate additional
produce no actions, let alone violations, saving messages sent via company- information, but the driver must supply
implicates First Amendment owned and installed communication the essential facts.
considerations, as well as concerns devices. An anonymous individual There is no good reason to adopt a
about overkill.’’ suggested that trucking companies ‘‘clear and convincing’’ evidentiary
should be required to record all phone standard for coercion cases when the
FMCSA Response
conversations with drivers as a way to ‘‘preponderance’’ standard is used for
Drivers of CMVs are required to prevent or provide evidence of coercion. all other motor carrier enforcement
comply with all applicable regulatory A commenter stated after a driver files actions. The potential penalties
standards. Those who resist coercion do a report of an incident, FMCSA should applicable to a violation of 49 U.S.C.
not lose the benefit of this rule. The act request written transcripts of the 31136(a)(5) and this rule’s
of coercion is complete when the conversation and supporting implementing regulations are the same
attempt is made; it does not require documents. An anonymous commenter as those applicable to a violation of 49
success. If Congress had wished to wrote that ‘‘if you don’t put the burden U.S.C. 31136(a)(1)–(4) and the
impose limits on the common of proof on the carrier or dispatcher[,] implementing FMCSRs.
understanding of coercion, it would then it’s the driver[’]s word against the Title VII of the Civil Rights Act of
have said so in 49 U.S.C. 31136(a)(5). company and the driver still ends up 1964 prohibits certain employers from
jstallworth on DSK7TPTVN1PROD with RULES
Coercion does, however, require some being punished.’’ discriminating against employees on the
kind of threat; merely asking a driver to OOIDA stated that FMCSA places the basis of race, color, religion, sex, or
make a trip that would violate a enforcement burden on drivers to prove national origin. There is nothing in
regulation would not constitute a violation of the law that results in the MAP–21 to indicate that Congress
coercion. If the driver refused to make issuance of penalties and fines for the intended to make CMV drivers who are
such a trip, a further discussion of his government. OOIDA argued FMCSA subject to coercion a protected class in
or her response and related issues might should take the lead in coercion the same sense as individuals subject to
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![74702 Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations
racial, religious, sexual, or other extended to 180 days. ‘‘The 60-day ensure that a complaint is filed while
discrimination. The shifting of the filing period for the anti-coercion rule the recollections of both the driver and
burden of proof under Title VII is would greatly limit the ability of DOT the alleged coercer are fresh. However,
therefore not indicative of a similar to act on valid complaints of coercive the Agency considers the 30-day
legislative intent to shift the burden to activity that drivers have timely filed deadline proposed by the NIT League to
carriers, shippers, receivers or under the STAA [i.e., 49 U.S.C. 31105, be unfair to drivers, some of whom are
transportation intermediaries after a enacted by the Surface Transportation on the road for weeks at a time and may
driver files a non-frivolous coercion Assistance Act of 1982 (STAA)]. not be in a position to file a complaint
complaint. The burden of proof in Consequently, the short period that quickly. In order to ensure that
coercion cases remains with FMCSA. decreases the effectiveness of the statute drivers have sufficient time to prepare
and weakens its overall deterrence and submit a coercion complaint, the
Application to Governmental Entities
value. The Department of Labor/OSHA final rule extends the 60-day period
NASSTRAC commented that has found that by providing workers proposed in the NPRM to 90 days.
‘‘FMCSA has asserted that state and with a filing period of 180 days [as
local governments would be unaffected, Criteria To Evaluate Coercion Claims
authorized by 49 U.S.C. 31105], it is
as would Indian Tribal Governments. able to pursue a greater number of OSHA commented that ‘‘the proposed
However, Indian Tribal Governments, meritorious complaints and more fully requirement that the complaint be ‘non-
and state and local governments (and fulfill its mandate under STAA.’’ An frivolous’ is overly vague and should be
federal government entities) are individual, Lisa Pate, also noted the eliminated. The current proposed
shippers and receivers of freight inconsistency between FMCSA’s requirement of ‘non-frivolity’ would
transported by CMVs. The Department proposed 60-day deadline and OSHA’s allow for enormous amounts of
of Defense ships and receives large 180-day deadline. discretion across FMCSA Divisions.
volumes every year. All of these OSHA recommended ‘‘tolling of the Gross discretion will undoubtedly lead
shippers would apparently have a duty filing deadline, in case there are delays to regional disparities in the
to inquire as to HOS and other in transferring the allegation to the enforcement of the provision and
compliance by every driver, even appropriate Division Administration.’’ severely limit the overall effectiveness
though many probably have no idea that Similarly, the Advocates wrote that of the provision.’’
HOS rules even exist.’’ ‘‘[v]ictims of coercion should not be The NIT League suggested that the
TIA provided a similar comment: time-barred from seeking an appropriate Agency clarify the criteria that will be
‘‘TIA urges the Agency . . . to clearly remedy under the law for the failure of used in evaluating reported incidents of
define the scope of this rule to include FMCSA to promptly request further coercion. IME expressed concern over
the Department of Defense (DOD), the information or transfer the complaint to the burden imposed on carriers,
General Services Administration (GSA), the appropriate Division shippers, receivers, and transportation
Port Terminal Operators, and all other Administrator.’’ intermediaries to defend against driver
applicable entities that contract with The NIT League, on the other hand, complaints. IME argued that the
motor carriers to haul their specific wrote that ‘‘because the allegations of proposed rule is, ‘‘by its very nature,
goods along the transportation supply- coercion will often involve verbal . . . fraught with subjectivity. In order
chain.’’ communications at freight pick-up to avoid or defend against complaints of
locations, . . . it will be critical for coercion, carriers, shippers and
FMCSA Response complaints to be filed promptly and for receivers will be compelled to
The MAP–21 prohibition on coercion the accused party to be provided with memorialize every significant
amended 49 U.S.C. 31136(a), a prompt notice of the complaint. This interaction they have with drivers.’’
provision originally enacted by the would help ensure that any internal
MCSA. Under the MCSA, the term FMCSA Response
investigation of the driver’s allegations
‘‘employer’’ ‘‘(A) means a person either by the driver’s employer or the The MCSA includes the following:
engaged in a business affecting alleged coercer can be conducted ‘‘(a) Investigating complaints.—The
interstate commerce that owns or leases expeditiously, any relevant evidence Secretary of Transportation shall
a commercial motor vehicle in can be preserved, and witnesses can be conduct a timely investigation of a
connection with that business, or interviewed before memories fade. nonfrivolous written complaint alleging
assigns an employee to operate it; but Thus, the NIT League suggests that the that a substantial violation of a
(B) does not include the [Federal] time period for drivers to file regulation prescribed under this
Government, a State, or a political complaints be reduced to 30 days and subchapter is occurring or has occurred
subdivision of a State.’’ [49 U.S.C. that any party accused of coercion be within the prior 60 days’’ [49 U.S.C.
31132(3) (emphasis added)]. MAP–21 served with the complaint upon its 31143(a)]. The ‘‘nonfrivolous’’ standard
subjected motor carriers, shippers, filing with FMCSA.’’ has been used in 49 CFR 386.12(b) for
receivers, and transportation many years without the adverse
FMCSA Response consequences OSHA predicted, and the
intermediaries to the prohibition on
coercion [§ 31136(a)(5)], but it did not OSHA regulations (29 CFR 1978.100 Agency believes its use in 49 CFR
limit the governmental exemption in et seq.) and the underlying statute (49 386.12(e)(2) will be comparably
§ 31132(3). FMCSA has no authority to U.S.C. 31105) protect employees who straightforward and effective.
apply this final rule to Federal, State or are discharged, disciplined, or FMCSA does not agree with
local governmental entities. Whether a discriminated against under certain commenters’ assessment of the burden
jstallworth on DSK7TPTVN1PROD with RULES
terminal operator qualifies as a political circumstances. Those actions are likely involved in defending against driver
subdivision of a State will require a to generate records that can be reviewed complaints. The ‘‘subjectivity’’ that IME
case-by-case evaluation. months later. Coercion, on the other feared has been virtually eliminated by
hand, may occur without leaving clear the revised definition adopted in this
Deadline To File Coercion Complaints documentary evidence. FMCSA final rule, which requires the driver to
OSHA recommended that the continues to believe that a deadline state explicitly that he or she cannot
proposed 60-day filing deadline be shorter than 180 days is appropriate to deliver the load without violating the
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![Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations 74703
applicable regulations, and why that is hire motor carrier. Under 49 U.S.C. significant penalties when reports of
the case. There can be no coercion 13905, a carrier that engages in willful coercion can be proved.
unless the shipper, receiver, or non-compliance with an Agency
Coercion of Carriers
transportation intermediary responds regulation or order may have its
with an equally explicit threat to force operating authority revoked. FMCSA’s NASSTRAC described a hypothetical
the driver to make the delivery despite policy on revocation was set forth in a situation where Shipper A hires Carrier
the regulatory violation it would entail. notice published on August 2, 2012 (77 B to deliver a load on a reasonable
While groundless allegations of coercion FR 46147). The Agency agrees that schedule. However, when Carrier B’s
are possible, such accusations are also coercion is the type of violation that driver arrives to pick up the load, he
possible under OSHA’s whistleblower may fall into this category. tells Shipper A that he has to go off duty
rules, yet they appear to be a relatively Some commenters appear to regard a in a few hours under the HOS
minor problem and are readily coercion allegation that cannot be regulations, making it impossible to
dismissed for want of evidence. substantiated as a false accusation. That meet Shipper A’s delivery schedule.
Penalties is not necessarily true. Despite its best ‘‘Shipper A says in frustration, ‘That’s
efforts, FMCSA may not be able the last time I use Carrier B.’ Is Shipper
Advocates argued that the Agency adequately to document some A subject to a penalty of up to $11,000
should suspend the operating authority allegations that are in fact correct. In just for saying those words, even if no
of motor carriers found to have any case, neither section 32911 of MAP– safety violation occurs? How many
committed coercion, rather than just 21 nor the Agency’s general civil penalties could Shipper A face if it
issue ‘‘meaningless fines.’’ Coercion
penalty statute authorizes penalties makes no more use of Carrier B?’’
involving private carriers should be
against drivers who make false ATA urged ‘‘FMCSA to consider
reported to the relevant States ‘‘so that
accusations of coercion. amending the proposed definition in
the state licensing authority may take
the appropriate action as well as have a As for Mr. Duvall’s recommendation, section 390.5 to cover not only the
complete record of the entities they are ‘‘All penalties and fines collected under driver as the target of withholding or
responsible for monitoring.’’ Advocates this section shall be deposited into the coercion, respectively, but also his/her
noted that an $11,000 fine (since Highway Trust Fund (other than the employer.’’
increased to $16,000) ‘‘pales in Mass Transit Account)’’ in the U.S.
Treasury [49 U.S.C. 521(b)(10)]. The FMCSA Response
comparison to the $250,000 punitive
fine that can be levied against a Agency cannot pay drivers the civil
NASSTRAC has described a normal
company by the Department of Labor penalties it collects for incidents of
and completely legal business response
under the Surface Transportation coercion. And unlike OSHA, FMCSA
to inadequate service. Shipper A has not
Assistance Act (STAA) after a finding has no authority to require the violator
coerced the driver to violate the HOS
that a driver was dismissed for refusing to compensate the driver for injuries he
rules, nor has it coerced Carrier B to put
to compromise a health or safety or she has suffered.
pressure on the driver to violate the
standard.’’ Coercion as an Acute Violation rules. It has simply decided not to use
An individual commenter, Jim Duvall, a carrier that does not dispatch drivers
wrote that ‘‘Any fine or monetary ATA argued that a violation of
who can meet the agreed upon delivery
penalty should directly benefit the proposed § 390.6, which prohibits
schedule.
driver(s) harmed in the action.’’ coercion, should not necessarily be
Three commenters stated that the classified as an acute violation in Section 32911 of MAP–21 applies
final rule should impose penalties Appendix B, section VII of Part 385, as only to the coercion of drivers, not to
against drivers who make false claims of proposed in the NPRM. Instead, the coercion of motor carriers. Under 49
coercion. One commenter said there coercion should be acute, critical, or U.S.C. 31136(a)(5), the Agency’s
should be a penalty for drivers who neither, depending on the classification regulations must ensure that ‘‘(5) an
make false accusations because they of the regulation the driver was coerced operator of a commercial motor vehicle
either refuse to take responsibility for to violate. is not coerced by a motor carrier,
their own failure to properly calculate shipper, receiver, or transportation
FMCSA Response intermediary . . .’’ (emphasis added).
their hours or knowingly violate the
HOS rules because they do not want to FMCSA agrees that a carrier’s safety Because an ‘‘operator’’ is distinct from
‘‘miss the load.’’ Two other individuals fitness should be determined on the a ‘‘motor carrier,’’ the term ‘‘operator’’
stated that there should be penalties for basis of the regulations it violates or necessarily refers only to drivers. While
drivers who are disgruntled and file coerces a driver to violate. In other shippers may sometimes coerce motor
baseless coercion complaints to get back words, coercion itself should not be carriers to pressure their drivers to
at their employer. AIPBA noted that the treated as acute (or critical). The final violate the FMCSRs, the coercion of
imposition of significant penalties rule therefore eliminates the NPRM’s motor carriers is not covered by MAP–
against drivers who are found to have proposed amendments to Appendix B of 21 or this rule.
falsely accused a broker will deter ‘‘such 49 CFR part 385. This is consistent with Miscellaneous Comments
improper and fraudulent conduct by the Agency’s practice of limiting acute
unscrupulous drivers.’’ and critical classifications to regulations Driver Confidentiality. OOIDA argued
which, if violated, are likely to increase that FMCSA must have whistleblower
FMCSA Response the risk of crashes. Because FMCSA protections in place. ‘‘This includes a
jstallworth on DSK7TPTVN1PROD with RULES
FMCSA will take aggressive action currently has no data showing a link guarantee of a certain amount of
when a violation of the prohibition between coercion and crashes, it seems confidentiality in driver
against coercion can be substantiated. appropriate not to classify coercion as communications with the agency, and
This action will include civil penalties acute. If new data or further analysis procedures at the agency to take action
consistent with the regulations, and may shows such a link, the Agency may against parties who retaliate against
include initiation of a proceeding to revisit this decision. As indicated above, drivers who submit good faith
revoke the operating authority of a for- however, FMCSA will impose allegation[s] of coercion to the agency.’’
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![74704 Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations
FMCSA Response disqualify a driver from being forced to drive away from the receiver’s
FMCSA is required by 49 U.S.C. considered for employment by motor facility in violation of § 395.3(a)(2).
31143(b) to keep the identity of a carriers or make it much harder for the
FMCSA Response
complainant confidential unless driver to find employment. The result is
that safety-conscious drivers who do the While the situation OOIDA described
‘‘disclosure is necessary to prosecute a involving a signature or receipt was not
violation.’’ Because a party accused of right thing and resist coercion get bad
employment reports and are driven out discussed in the NPRM, withholding a
coercion cannot defend itself without delivery receipt might be used to coerce
knowing the name of the accuser, and of the industry. Other drivers who
capitulate to demands to violate the a driver to violate the FMCSRs. A
when and where the alleged incident receiver that forces a driver to leave its
rules and save their jobs can keep fairly
occurred, the driver’s identity cannot be premises is not threatening the driver
clean employment records and stay in
confidential. Retaliation for reporting with an adverse employment action; it
the industry. . . . FMCSA should
incidents that, for whatever reason is asserting its right as a property owner
impose penalties upon motor carriers
cannot be substantiated, is not covered to control access to the property.
who submit such information to
by this rule. OSHA, however, may be
consumer reporting agencies and who Comments on Issues Outside the Scope
able to provide relief.
refuse to remove such information after of This Rulemaking
Communications with Drivers.
it is submitted.’’
‘‘OOIDA suggests that FMCSA require Fourteen commenters raised issues
all parties providing drivers with FMCSA Response beyond the scope of this rulemaking,
instructions, rules, or other conditions Negative reports about a driver by a involving lack of adequate parking;
on the transportation to maintain all motor carrier could constitute ‘‘adverse detention time and detention pay; and
such communications as they do employment actions’’ prohibited by this various HOS provisions. Because none
supporting documents under the HOS final rule. However, there would be of these issues was related to coercion
rules. OOIDA is aware that many motor significant evidentiary obstacles to of drivers to violate FMCSA regulations,
carriers, brokers and third parties making a coercion case in these the Agency will not comment on them
already retain such communication, and situations. A late pickup or delivery in this document.
so this requirement should not be a may not have been caused by unrealistic VI. Section-by-Section Description
significant burden. Such records should demands the driver was coerced to
be regularly reviewed during safety meet. Bad planning on the part of the A. Part 386
audits and compliance reviews. The driver or carrier, unexpected traffic Section 386.1, ‘‘Scope of the rules in
potential safety benefits of motor congestion, or other factors could also this part,’’ is amended by adding a new
carriers knowing that these records will explain some delays. Tracing reports of paragraph (c) referring to the filing and
be available to enforcement would ‘‘insubordination’’ back to the driver’s handling of coercion complaints under
outweigh any added burden.’’ refusal to be coerced would inevitably new § 386.12(e).
FMCSA Response involve a detailed examination of one or The NPRM’s § 386.12(e) is called
more incidents and conflicting accounts ‘‘Complaint of coercion.’’ The
The Agency could not act on such a of the reason for the alleged procedures to file and handle coercion
far-reaching and controversial proposal insubordination. While FMCSA will complaints outlined in the NPRM have
without first publishing it for notice and review all reported incidents, the been revised. The complaint must be
comment. The NPRM proposed no such Agency cannot take action against a filed within 90 days after the event with
requirement, and it is not included in carrier for coercion unless there is the Agency’s on-line National Consumer
this final rule. evidence that an unfavorable report on Complaint Database (http://
Notifying Carriers and Consumer a driver was motivated by a desire to nccdb.fmcsa.dot.gov), or with the
Reporting Agencies. OOIDA commented punish the driver for refusal to be Division Administrator where the driver
that, ‘‘One form of coercion and coerced. is employed. FMCSA may reassign the
retaliation against drivers is the The Rule Should Govern the Demands complaint to the Division Administrator
reporting of negative information about of Receivers. OOIDA argued that ‘‘[t]he best situated to investigate it. In
a driver in an employment history most powerful tool that receivers have addition, the final rule removes a
submitted to a consumer reporting over drivers is the withholding of a sentence included in the NPRM stating
agency. Other motor carriers purchase signature or receipt from the driver that the Division Administrator may
that employment history from the acknowledging receipt of the freight—a issue a Notice of Claim or Notice of
consumer reporting agency to fulfill document the driver needs as a Violation when appropriate. Because
their FMCSR hiring requirements, and condition for being compensated by that statement could be read as a
they often make negative hiring their carrier or third-party and that the limitation on the Agency’s enforcement
decisions based on those reports. On driver must obtain before driving away options, it has been deleted.
their face, some of the information to get rest or new business. Withholding
reported appears performance related, such receipt is commonly used by B. Part 390
such as ‘late pick-up/delivery.’ But there receivers to coerce drivers to [1] accept Section 390.3(a) is amended to
is nothing to protect drivers from being the receiver’s schedule to unload a include a reference to the coercion
tagged with a negative mark on their vehicle (no matter when the driver provisions in § 386.12(e) and § 390.6,
employment history if the late pickup or arrived at the docks, when the driver’s and describe the applicability of those
delivery resulted from conditions or next scheduled pickup or delivery may provisions.
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circumstances that caused the driver to be, or what the driver’s Hours of Service Section 390.5 is amended to add
run out of legal hours to make the status may be); . . . [3] require the definitions of ‘‘Coerce or coercion,’’
delivery on time. Resistance to coercion driver to break down pallets and sort ‘‘Receiver or consignee,’’ ‘‘Shipper,’’
(i.e., the driver objections proposed by and stack freight.’’ OOIDA also and ‘‘Transportation intermediary.’’ The
the Notice) may be reported as ‘refused described situations where drivers are definitions of ‘‘Receiver or consignee,’’
dispatch’ or ‘insubordination.’ These held at a receiver’s dock past the 14th ‘‘Shipper,’’ and ‘‘Transportation
employment records can effectively hour after coming on duty, and then intermediary’’ make these entities
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![Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations 74705
subject to the prohibition on coercion in VII. Regulatory Analyses In view of the small number of
§ 390.6 only when shipping, receiving coercion-related complaints filed with
A. Regulatory Planning and Review and
or arranging transportation of property OSHA and DOT’s OIG, the aggregate
DOT Regulatory Policies (E.O. 12866) economic value to motor carriers of
(and in the case of ‘‘transportation and Procedures as Supplemented by
intermediaries,’’ passengers) in these coercion-related incidents is likely
E.O. 13563) to be low. Therefore, the cost to carriers
interstate commerce. Although the term
‘‘transportation intermediary’’ is FMCSA has determined that this rule of eliminating those incidents—
commonly associated with brokers and is a significant regulatory action under assuming the rule has that effect—and
freight forwarders, it also includes travel E. O. 12866 (58 FR 51735, October 4, incurring the higher costs of
1993), as supplemented by E. O. 13563 compliance, would also be low;
agents and similar entities that arrange
(76 FR 3821, January 21, 2011), and however, the cost of compliance with
group tours or trips and contract with
significant within the meaning of the existing regulations has already been
motorcoach operators for transportation captured in the analysis supporting the
DOT regulatory policies and procedures
services. Such intermediaries and their (44 FR 11034, February 26, 1979). The implementation of those regulations, so
agents are subject to the prohibition on estimated economic costs of the rule we do not consider them here. We
coercion. Because the HMRs apply to will not exceed the $100 million annual believe that the application of this rule
transportation in intrastate commerce, threshold (as explained below). to shippers, receivers, brokers, freight
the definitions make clear that the forwarders, and other transportation
prohibition on coercion applies to Extent of Economic Impact intermediaries will not significantly
parties that ship, receive, or arrange The 1982 STAA includes increase the number of coercion
transportation of hazardous materials in whistleblower protections for motor complaints, since drivers generally have
interstate or intrastate commerce. The carrier employees (49 U.S.C. 31105). more frequent and direct contacts with
NPRM’s definition of ‘‘coerce or OSHA, which administers the their employers than with these other
coercion’’ has been amended (1) by complaint process created by section parties. In addition, even though the
removing the reference to ‘‘current or 31105, received 1,158 complaints from rule applies to a larger population,
future’’ business; (2) adding a CMV drivers between FY 2009 and FY FMCSA also notes that the rule should
prohibition on ‘‘any adverse 2012.7 OSHA found that 253 of them (22 have a deterrent effect on entities
employment action against a driver,’’ percent) had merit.8 Between FY 2009 considering coercion.
and (3) deleting references to violations and FY 2012, the OIG hotline received The roughly 68 annual complaints
91 complaints alleging that motor noted above is the only available
of §§ 385.105(b), 385.111(a), (c)(1), or
carriers had coerced or retaliated against estimate of coercion in the trucking
(g), which were erroneously included. industry now. This rule would be
drivers. FMCSA determined that 20 of
Section 390.6(a)(1) is added to these complaints had merit.9 The expected to reduce the amount of
prohibit motor carriers, shippers, average number of verified complaints coercion that takes place, but there is no
receivers, or transportation for that 4-year period was therefore available measure of the effectiveness of
intermediaries, or the agents, officers, or 68.25 per year [(253 + 20)/4 = 68.25]. the rule. The relatively low number of
representatives of such entities, from Some unknown portion of the 253 complaints suggests that the overall
coercing drivers to operate CMVs in complaints filed with OSHA during that economic impact will be less than the
violation of 49 CFR parts 171–173, 177– period almost certainly dealt with $100 million threshold of economic
180, 380–383, or 390–399, or §§ 385.415 coercion or similar actions. Even if all significance under E.O. 12866.
or 385.421. These parts correspond to of them were coercion-related, this Benefits
the statutory language in 49 U.S.C. number—combined with the 20
substantiated complaints filed with the If coercion creates situations where
31136(a)(5). Parts 171–173 and 177–180
OIG—remains small compared to the CMVs are operated in an unsafe manner,
are the HMRs applicable to highway
total population of CMV drivers. Section then there are consequences for safety
transportation promulgated under 49 and driver health risks. By forcing
U.S.C. chapter 51. Parts 382–383 are the 31105, however, applies only to
employers (basically motor carriers) drivers to operate mechanically unsafe
commercial driver’s license (CDL) and CMVs or drive beyond their allowed
drug and alcohol testing regulations while this rule will also cover shippers,
receivers, and transportation hours, coercion increases the risk of
promulgated under 49 U.S.C. chapter crashes. Reduction of these behaviors
313. Parts 390–399 are those portions of intermediaries. The Agency is unable to
estimate the number of coercion because of this rule would generate a
the FMCSRs promulgated under the safety benefit. Additionally, the
allegations it may receive, whether
authority (partial or complete) of 49 operation of CMVs beyond HOS limits
triggered by actions of motor carriers or
U.S.C. 31136(a). The other parts or has been shown to have negative
other entities made subject to this rule
sections listed are based on one or more consequences for driver health. A
by MAP–21.
of the statutes referenced in 49 U.S.C. reduction of this practice would create
31136(a)(5). 7 U.S. Department of Labor, Occupational Safety an improvement in driver health. The
Section 390.6(a)(2) is added to & Health Administration (OSHA), Whistleblower Agency lacks data to quantify the safety
prohibit operators of CMVs or their Protection Program: Investigative Data Fact Sheets. or health benefits attributable to the
Available at http://www.whistleblowers.gov/wb_ rule.
agents, officers, or representatives, from data_FY05-12.pdf.
coercing drivers to violate 49 CFR parts 8 Ibid., Footnote 3. Costs
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356, 360, or 365–379. This subsection is 9 U.S. Department of Transportation, Office of the
This rule, as an enforcement measure,
Inspector General (OIG). This averaged 23
based on the authority of 49 U.S.C. complaints per year, (with 44 in 2010), which the would impose compliance costs on
31136(a)(1)–(4) and 49 U.S.C. 13301(a). OIG referred to FMCSA. FMCSA substantiated 20 carriers and on other business entities
Section 390.6(b) describes the complaints (22 percent) of violations of acute and utilizing the motor carrier industry. If
critical regulations due to driver allegations of
procedures for a driver to file a unlawful discrimination or discipline (See 29 CFR
drivers now operate CMVs in violation
complaint of coercion with FMCSA. 1978.100 et seq.). Available at http:// of HOS rules, or if coercion had caused
www.oig.dot.gov/Hotline. drivers to operate their CMV even
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though there were mechanical defects, agencies strive to lessen any adverse that the revenue threshold, for this sub-
carriers would potentially have to effects on these businesses. set of freight forwarders in the trucking
reorganize their schedules or hire new Under the Regulatory Flexibility Act, industry is $27.5 million. As indicated
drivers to operate in compliance. as amended by the Small Business above, fewer than 70 coercion
Maintenance costs might also accelerate Regulatory Enforcement Fairness Act of complaints per year have been filed
as a result of this rule, as the industry 1996 (Pub. L. 104–121, 110 Stat. 857), with OSHA and FMCSA in the past few
improves compliance with the existing the rule is not expected to have a years. We have no reason to believe that
safety standards resulting from significant economic impact on a number will increase significantly
increased risk of enforcement action. substantial number of small entities. As under the rule. In fact, the potential
Additionally, the entities that practice indicated above, OSHA found merit in penalty for coercing a driver should
coercion would lose the economic only 253 complaints filed by CMV have a deterrent effect. Even if the
benefit of that coercion. This economic drivers over a 4-year period, or about 63 penalty assessed might have a
benefit could be time-related (if drivers per year. Even if all of the complaints ‘‘significant economic impact,’’ the
are coerced into driving when they were classified as coercion-related, that limited number of recent coercion
should stop and rest, stop and wait for number would be very small when complaints suggests that the penalty
CMV maintenance, or drive a vehicle compared to the size of the driver would not affect ‘‘a substantial number
they are not qualified to operate rather population and motor carrier industry. of small entities,’’ given that there are
than wait for a qualified driver). The Small Business Administration nearly 500,000 firms in the industry that
Drivers alleging coercion will have to (SBA) classifies businesses according to qualify as small entities.
provide a written statement describing the average annual receipts. The SBA This rule does not affect industry
the incident along with evidence to defines a ‘‘small entity’’ in the motor productivity by requiring new
support their charges. This total carrier industry [i.e., general freight documentation, affecting labor
paperwork burden is difficult to truck transportation, subsector 484 of productivity or availability, or
estimate but is not likely to be very the North American Industry increasing expenditures on maintenance
large. Similarly the Agency believes that Classification System (NAICS)] as or new equipment. The fines, which are
the investigation of those reports will having revenues of less than $27.5 the only impact (unless the carrier’s
not have a large cost. million per firm. Likewise, operating authority is suspended or
transportation intermediaries (i.e., revoked), can be avoided by not
Summary subsector 488 of NAICS) which include coercing drivers into violating existing
The Agency does not believe that the brokers and freight forwarders, are regulations. Furthermore, by regulation,
benefits and costs of this rule would classified as small if their annual the Agency’s fines are usually subject to
create a large economic impact. The revenue is under $15 million.11 a maximum financial penalty limit of 2
safety benefits and compliance costs are Table 1 presents a breakdown of
percent of a firm’s gross revenue. For
likely to be very small based on the FMCSA’s revenue estimates for the
the vast majority of small firms, a fine
small number of expected cases each populations in various categories. By
at this level would not be ‘‘significant’’
year. Therefore, the Agency believes SBA standards, the vast majority of all
in the sense that it would jeopardize the
that the rule will not be economically businesses in the motor carrier and
viability of the firm.
significant. related industries are ‘‘small entities.’’
The table below excludes shippers
Although general freight transportation
B. Regulatory Flexibility Act and receivers subject to the prohibition
arrangement firms fall under the $15
The Regulatory Flexibility Act of 1980 on coercion, a group which is a large
million threshold, there is an exception
(5 U.S.C. 601 et seq.) requires Federal portion of the entire U.S. population,
for ‘‘non-vessel household goods
agencies to consider the effects of their because anyone who sends or receives
forwarders.’’ 12 This exception stipulates
regulatory actions on small business and a package would be considered a
other small entities and to minimize any 11 U.S. Small Business Administration Table of shipper or receiver. However,
significant economic impact. The term Small Business Size Standards matched to North compliance with the prohibition on
‘‘small entities’’ comprises small American Industry Classification System Codes coercion of drivers is not expected to
(NAICS), See NAIC subsector 484 (Truck have significant economic impact on
businesses and not-for-profit Transportation) and 488 Support Activities for
organizations that are independently Transportation).effective July, 2012. The Small
many of them. Consequently, because
owned and operated and are not Business Size Standards used in the Initial they are not expected to be in a position
dominant in their fields, as well as Regulatory Flexibility Act analysis (IRFA) were to coerce a driver, I certify that the
released by the Small Business Administration in action will not have a significant
governmental jurisdictions with January 2012. The SBA issued revised Small
populations of less than 50,000.10 Business Standards in July 2014. See downloadable
economic impact on a substantial
Accordingly, DOT policy requires an PDF file at https://www.sba.gov/content/small- number of small entities.
business-size-standards.
analysis of the impact of all regulations 12 According to the 2007 Economic Census data, 488510-Freight Transportation Arrangement. In
on small entities and mandates that 2,221 establishments were classified as non-vessel 2007, the average revenue for all entities classified
common carriers. These establishments accounted to NAICS Code 488510 was $1.8 million. Therefore,
10 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) for 10.2 percent of the number of, and 5.2 percent the results of the analysis are the same regardless
see National Archives at http://www.archives.gov/ of the annual revenue for, the total number of of whether the Small Business Standard is $15
federal-register/laws/regulatory-flexibility/601.html. establishments classified under NAICS Code
million or $27.5 million.
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![74708 Federal Register / Vol. 80, No. 229 / Monday, November 30, 2015 / Rules and Regulations
currently available to the public on the individuals or entities’’ [44 U.S.C. it does not require a Statement of Energy
DOT Web site at www.dot.gov/privacy. 3518(c)(1)(B)(ii)]. Effects under E.O. 13211.
The PIA has been reviewed, and revised
L. National Environmental Policy Act O. Indian Tribal Governments (E.O.
as appropriate, to reflect the final rule
and Clean Air Act 13175)
and will be published not later than the
date on which the Department initiates FMCSA analyzed this rule in This rule does not have tribal
any of the activities contemplated in the accordance with the National implications under E.O. 13175,
Final Rule determined to have an Environmental Policy Act of 1969 Consultation and Coordination with
impact on individuals’ privacy and not (NEPA) (42 U.S.C. 4321 et seq.). FMCSA Indian Tribal Governments, because it
later than the date on which the system conducted an environmental assessment does not have a substantial direct effect
(if any) supporting implementation of and determined that the rule has the on one or more Indian tribes, on the
the Final Rule is updated. potential for minor environmental relationship between the Federal
As required by the Privacy Act, impacts. Based on the limited data Government and Indian tribes, or on the
FMCSA and the Department will FMCSA has concerning the extent of the distribution of power and
publish, with request for comment, a affected CMV driver population, these responsibilities between the Federal
revised system of records notice (SORN) impacts would be very small and Government and Indian tribes.
that will cover the collection of FMCSA does not expect any significant P. National Technology Transfer and
information that is affected by this final impacts to the environment from this Advancement Act (Technical
rule. Since coercion complaints will be rule. The environmental assessment has Standards)
stored in the National Consumer been placed in the rulemaking docket.
Complaint Database (NCCDB), the The National Technology Transfer
In addition to the NEPA requirements and Advancement Act (NTTAA) (15
SORN for the NCCDB (DOT/FMCSA to examine impacts on air quality, the
004—National Consumer Complaint U.S.C. 272 note) directs agencies to use
Clean Air Act (CAA) as amended (42 voluntary consensus standards in their
Database (NCCDB)—75 FR 27051—May
U.S.C. 7401 et seq.) also requires regulatory activities unless the agency
13, 2010) will be revised to reflect the
FMCSA to analyze the potential impact provides Congress, through OMB, with
new collection of information and
of its actions on air quality and to an explanation of why using these
published in the Federal Register not
ensure that FMCSA actions conform to standards would be inconsistent with
less than 30 days before the Agency is
State and local air quality applicable law or otherwise impractical.
authorized to collect or use PII retrieved
implementation plans. The additional Voluntary consensus standards (e.g.,
by unique identifier. Additionally,
contributions to air emissions from any specifications of materials, performance,
FMCSA will revise the PIA for NCCDB
of the alternatives are expected to fall design, or operation; test methods;
(formally the Safety Violations and
below the CAA de minimis thresholds sampling procedures; and related
Household Goods Consumer Complaint
as per 40 CFR 93.153 and are, therefore, management systems practices) are
Hotline Database) posted on June 6,
not expected to be subject to the standards that are developed or adopted
2006 and an updated PIA will be
Environmental Protection Agency’s by voluntary consensus standards
available to the public on the DOT Web
General Conformity Rule (40 CFR parts bodies. This rule does not use technical
site at www.dot.gov/privacy.
The privacy risks and effects 51 and 93). standards. Therefore, we did not
associated with the cases resulting from M. Environmental Justice (E.O. 12898) consider the use of voluntary consensus
this rule are not unique and have standards.
previously been addressed by the FMCSA evaluated the environmental
effects of this rule in accordance with List of Subjects
enforcement case file storage
requirements in the Electronic Executive Order 12898 and determined 49 CFR Part 386
Document Management System (EDMS) that there are no environmental justice
issues associated with its provisions nor Administrative practice and
PIA posted on June 6, 2006 and the procedures, Brokers, Freight forwarders,
DOT/FMCSA 005—Electronic is there any collective environmental
impact resulting from its promulgation. Hazardous materials transportation,
Document Management System SORN Highway safety, Motor carriers, Motor
(71 FR 35727) published on June 21, Environmental justice issues would be
raised if there were a ‘‘disproportionate’’ vehicle safety, Penalties.
2006.
and ‘‘high and adverse impact’’ on 49 CFR Part 390
J. Intergovernmental Review (E.O. minority or low-income populations.
12372) Highway safety, Intermodal
None of the alternatives analyzed in the
transportation, Motor carriers, Motor
The regulations implementing E.O. Agency’s EA, discussed under National
vehicle safety, Reporting and
12372 regarding intergovernmental Environmental Policy Act, would result
recordkeeping requirements.
consultation on Federal programs and in high and adverse environmental
impacts. For the reasons stated in the
activities do not apply to this program. preamble, FMCSA amends parts 386
K. Paperwork Reduction Act N. Energy Supply, Distribution, or Use and 390 in 49 CFR chapter III,
(E.O. 13211) subchapter B, as follows:
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501 et seq.), FMCSA has analyzed this rule under PART 386—RULES OF PRACTICE FOR
Federal agencies must obtain approval E.O. 13211, Actions Concerning FMCSA PROCEEDINGS
from the OMB for each collection of Regulations That Significantly Affect
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information they conduct, sponsor, or Energy Supply, Distribution, or Use. ■ 1. The authority citation for part 386
require through regulations. Information The Agency has determined that it is continues to read as follows:
submitted by drivers alleging coercion is not a ‘‘significant energy action’’ under Authority: 49 U.S.C. 113, chapters 5, 51,
exempt from PRA requirements because that order because it is not a ‘‘significant 59, 131–141, 145–149, 311, 313, and 315;
it is collected pursuant to ‘‘an regulatory action’’ likely to have a Sec. 204, Pub. L. 104–88, 109 Stat. 803, 941
administrative action or investigation significant adverse effect on the supply, (49 U.S.C. 701 note); Sec. 217, Pub. L. 105–
involving an agency against specific distribution, or use of energy. Therefore, 159, 113 Stat. 1748, 1767; Sec. 206, Pub. L.
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106–159, 113 Stat.1763; subtitle B, title IV of (2) Action on complaint of coercion. of commercial motor vehicles operating
Pub. L. 109–59; and 49 CFR 1.81 and 1.87. Upon the filing of a complaint of in interstate commerce:
■ 2. Revise the heading of part 386 as set coercion under paragraph (e)(1) of this (i) To violate certain safety regulations
forth above. section, the appropriate Division are applicable to all motor carriers,
■ 3. Amend § 386.1 by revising Administrator shall determine whether shippers, receivers, and transportation
paragraph (a) and adding paragraph (c) the complaint is non-frivolous and intermediaries; and
to read as follows: meets the requirements of paragraph (ii) To violate certain commercial
(e)(1). regulations are applicable to all
§ 386.1 Scope of the rules in this part. (i) If the Division Administrator operators of commercial motor vehicles.
(a) Except as indicated in paragraph determines that the complaint is non-
* * * * *
(c) of this section, the rules in this part frivolous and meets the requirements of
govern proceedings before the Assistant paragraph (e)(1) of this section, he/she ■ 7. Amend § 390.5 by adding
Administrator, who also acts as the shall investigate the complaint. The definitions of ‘‘Coerce or Coercion,’’
Chief Safety Officer of the Federal Motor complaining driver shall be timely ‘‘Receiver or consignee,’’ ‘‘Shipper,’’
Carrier Safety Administration (FMCSA), notified of findings resulting from such and ‘‘Transportation intermediary,’’ in
under applicable provisions of the investigation. The Division alphabetical order, to read as follows:
Federal Motor Carrier Safety Administrator shall not be required to § 390.5 Definitions.
Regulations (FMCSRs) (49 CFR parts conduct separate investigations of
350–399), including the commercial duplicative complaints. * * * * *
regulations (49 CFR parts 360–379), and (ii) If the Division Administrator Coerce or Coercion means either—
the Hazardous Materials Regulations (49 determines the complaint is frivolous or (1) A threat by a motor carrier,
CFR parts 171–180). does not meet the requirements of shipper, receiver, or transportation
* * * * * paragraph (e)(1) of this section, he/she intermediary, or their respective agents,
(c) The rules in § 386.12(e) govern the shall dismiss the complaint and notify officers or representatives, to withhold
filing by a driver and the handling by the driver in writing of the reasons for business, employment or work
the appropriate Division Administrator such dismissal. opportunities from, or to take or permit
of complaints of coercion in violation of (3) Protection of complainants. any adverse employment action against,
§ 390.6 of this subchapter. Because prosecution of coercion in a driver in order to induce the driver to
violation of § 390.6 of this subchapter operate a commercial motor vehicle
■ 4. Amend § 386.12 as follows:
will require disclosure of the driver’s under conditions which the driver
■ a. Revise the section heading;
identity, the Agency shall take every stated would require him or her to
■ b. Add and reserve paragraph (d); and
practical means within its authority to violate one or more of the regulations,
■ c. Add paragraph (e).
ensure that the driver is not subject to which the driver identified at least
§ 386.12 Complaints. harassment, intimidation, disciplinary generally, that are codified at 49 CFR
* * * * * action, discrimination, or financial loss parts 171–173, 177–180, 380–383, or
(d) [Reserved] as a result of such disclosure. This will 390–399, or §§ 385.415 or 385.421, or
(e) Complaint of coercion. (1) A driver include notification that 49 U.S.C. the actual withholding of business,
alleging a violation of § 390.6(a)(1) or (2) 31105 includes broad employee employment, or work opportunities or
of this subchapter must file a written protections and that retaliation for filing the actual taking or permitting of any
complaint with FMCSA stating the a coercion complaint may subject the adverse employment action to punish a
substance of the alleged coercion no alleged coercer to enforcement action by driver for having refused to engage in
later than 90 days after the event. The the Occupational Safety and Health such operation of a commercial motor
written complaint, including the Administration. vehicle; or
information described below, must be (2) A threat by a motor carrier, or its
PART 390—FEDERAL MOTOR agents, officers or representatives, to
filed with the National Consumer CARRIER SAFETY REGULATIONS;
Complaint Database at http:// withhold business, employment or work
GENERAL opportunities or to take or permit any
nccdb.fmcsa.dot.gov or the FMCSA
Division Administrator for the State ■ 5. Revise the authority citation for part adverse employment action against a
where the driver is employed. The 390 to read as follows: driver in order to induce the driver to
Agency may refer a complaint to operate a commercial motor vehicle
Authority: 49 U.S.C. 504, 508, 31132, under conditions which the driver
another Division Administrator who the 31133, 31136, 31144, 31151, 31502; sec. 114,
Agency believes is best able to handle Pub. L. 103–311, 108 Stat. 1673, 1677–1678;
stated would require a violation of one
the complaint. Information on filing a sec. 212, 217, 229, Pub. L. 106–159, 113 Stat. or more of the regulations, which the
written complaint may be obtained by 1748, 1766, 1767; sec. 229, Pub. L. 106–159 driver identified at least generally, that
calling 1–800–DOT–SAFT (1–800–368– (as transferred by sec. 4114 and amended by are codified at 49 CFR parts 356, 360,
7238). Each complaint must be signed secs. 4130–4132, Pub. L. 109–59, 119 Stat. or 365–379, or the actual withholding of
1144, 1726, 1743–1744), sec. 4136, Pub. L. business, employment or work
by the driver and must contain: 109–59, 119 Stat. 1144, 1745; and 49 CFR
(i) The driver’s name, address, and opportunities or the actual taking or
1.81, 1.81a and 1.87.
telephone number; permitting of any adverse employment
■ 6. Revise § 390.3(a) to read as follows: action to punish a driver for refusing to
(ii) The name and address of the
person allegedly coercing the driver; § 390.3 General applicability. engage in such operation of a
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(iii) The provisions of the regulations (a)(1) The rules in subchapter B of this commercial motor vehicle.
that the driver alleges he or she was chapter are applicable to all employers, * * * * *
coerced to violate; and employees, and commercial motor Receiver or consignee means a person
(iv) A concise but complete statement vehicles that transport property or who takes delivery from a motor carrier
of the facts relied upon to substantiate passengers in interstate commerce. or driver of a commercial motor vehicle
each allegation of coercion, including (2) The rules in 49 CFR 386.12(e) and of property transported in interstate
the date of each alleged violation. 390.6 prohibiting the coercion of drivers commerce or hazardous materials
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transported in interstate or intrastate DEPARTMENT OF COMMERCE ACL among two gear types, the longline
commerce. and hook-and-line components.
* * * * * National Oceanic and Atmospheric The commercial ACL (equivalent to
Administration the commercial quota) for the hook-and-
Shipper means a person who tenders line component for golden tilefish in the
property to a motor carrier or driver of 50 CFR Part 622 South Atlantic is 135,324 lb (61,382 kg),
a commercial motor vehicle for gutted weight, for the current fishing
[Docket No. 120404257–3325–02]
transportation in interstate commerce, year, January 1 through December 31,
or who tenders hazardous materials to a RIN 0648–XE215 2015, as specified in 50 CFR
motor carrier or driver of a commercial 622.190(a)(2)(ii).
motor vehicle for transportation in Fisheries of the Caribbean, Gulf of Under 50 CFR 622.193(a)(1)(i), NMFS
interstate or intrastate commerce. Mexico, and South Atlantic; 2015 is required to close the commercial
Commercial Accountability Measure hook-and-line component for golden
* * * * * and Closure for South Atlantic Golden tilefish when the hook-and-line
Transportation intermediary means a Tilefish Hook-and-Line Component component’s commercial ACL has been
person who arranges the transportation reached, or is projected to be reached,
AGENCY: National Marine Fisheries
of property or passengers by commercial by filing a notification to that effect with
Service (NMFS), National Oceanic and
motor vehicle in interstate commerce, or the Office of the Federal Register. NMFS
Atmospheric Administration (NOAA),
who arranges the transportation of Commerce. has determined that the commercial
hazardous materials by commercial ACL for the hook-and-line component
ACTION: Temporary rule; closure.
motor vehicle in interstate or intrastate for golden tilefish in the South Atlantic
commerce, including but not limited to SUMMARY: NMFS implements will be reached by December 8, 2015.
brokers and freight forwarders. accountability measures for the Accordingly, the commercial hook-and-
commercial hook-and-line component line component for South Atlantic
* * * * *
for golden tilefish in the exclusive golden tilefish is closed effective 12:01
■ 8. Add § 390.6 to read as follows: economic zone (EEZ) of the South a.m., local time, December 8, 2015, until
Atlantic. NMFS projects commercial 12:01 a.m., local time, January 1, 2016.
§ 390.6 Coercion prohibited. The commercial longline component
hook-and-line landings for golden
(a) Prohibition. (1) A motor carrier, tilefish will reach the hook-and-line for South Atlantic golden tilefish closed
shipper, receiver, or transportation component’s commercial annual catch on February 19, 2015, for the remainder
intermediary, including their respective limit (ACL) on December 8, 2015. of the fishing year, until 12:01 a.m.,
Therefore, NMFS closes the commercial local time, January 1, 2016 (80 FR 8559,
agents, officers, or representatives, may
hook-and-line component for golden February 18, 2015). Furthermore,
not coerce a driver of a commercial
tilefish in the South Atlantic EEZ on recreational harvest for golden tilefish
motor vehicle to operate such vehicle in closed on August 11, 2015, for the
violation of 49 CFR parts 171–173, 177– December 8, 2015, and it will remain
closed until the start of the next fishing remainder of the fishing year, until
180, 380–383 or 390–399, or §§ 385.415 12:01 a.m., local time, January 1, 2016
or 385.421; year on January 1, 2016. This closure is
(80 FR 48041, August 11, 2015).
necessary to protect the golden tilefish
(2) A motor carrier or its agents, Therefore, because the commercial
resource.
officers, or representatives, may not longline component and the recreational
DATES: This rule is effective 12:01 a.m.,
coerce a driver of a commercial motor sector are already closed, and NMFS is
local time, December 8, 2015, until closing the commercial hook-and-line
vehicle to operate such vehicle in 12:01 a.m., local time, January 1, 2016.
violation of 49 CFR parts 356, 360, or component through this temporary rule,
FOR FURTHER INFORMATION CONTACT: all fishing for South Atlantic golden
365–379.
Mary Vara, NMFS Southeast Regional tilefish is closed effective 12:01 a.m.,
(b) Complaint process. (1) A driver Office, telephone: 727–824–5305, email: local time, December 8, 2015, until
who believes he or she was coerced to mary.vara@noaa.gov. 12:01 a.m., local time, January 1, 2016.
violate a regulation described in SUPPLEMENTARY INFORMATION: The The operator of a vessel with a valid
paragraph (a)(1) or (2) of this section snapper-grouper fishery of the South Federal commercial vessel permit for
may file a written complaint under Atlantic includes golden tilefish and is South Atlantic snapper-grouper having
§ 386.12(e) of this subchapter. managed under the Fishery golden tilefish on board must have
(2) A complaint under paragraph Management Plan for the Snapper- landed and bartered, traded, or sold
(b)(1) of this section shall describe the Grouper Fishery of the South Atlantic such golden tilefish prior to 12:01 a.m.,
action that the driver claims constitutes Region (FMP). The FMP was prepared local time, December 8, 2015. During
by the South Atlantic Fishery the closure, the sale or purchase of
coercion and identify the regulation the
Management Council and is golden tilefish taken from the EEZ is
driver was coerced to violate.
implemented by NMFS under the prohibited. The prohibition on sale or
(3) A complaint under paragraph authority of the Magnuson-Stevens purchase does not apply to the sale or
(b)(1) of this section may include any Fishery Conservation and Management purchase of golden tilefish that were
supporting evidence that will assist the Act (Magnuson-Stevens Act) by harvested by hook-and-line, landed
Division Administrator in determining regulations at 50 CFR part 622. ashore, and sold prior to 12:01 a.m.,
the merits of the complaint. On April 23, 2013, NMFS published local time, December 8, 2015, and were
jstallworth on DSK7TPTVN1PROD with RULES
Issued under the authority of delegation in a final rule for Amendment 18B to the held in cold storage by a dealer or
49 CFR 1.87 on: November 23, 2015. FMP (78 FR 23858). Amendment 18B to processor. For a person on board a
the FMP established a longline vessel for which a Federal commercial
T.F. Scott Darling, III,
endorsement program for the or charter vessel/headboat permit for the
Acting Administrator. commercial golden tilefish component South Atlantic snapper-grouper fishery
[FR Doc. 2015–30237 Filed 11–27–15; 8:45 am] of the snapper-grouper fishery and has been issued, the sale and purchase
BILLING CODE 4910–EX–P allocated the commercial golden tilefish provisions of the commercial closure for
VerDate Sep<11>2014 15:17 Nov 27, 2015 Jkt 238001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\30NOR1.SGM 30NOR1](https://thefederalregister.org/doc/80_FR_74924/page/16.svg)
Document Created: 2018-03-01 11:13:02
Document Modified: 2018-03-01 11:13:02
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective January 29, 2016. | |
| Contact | Mr. Charles Medalen, Regulatory Affairs Division, Office of Chief Counsel, (202) 493-0349. FMCSA office hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. | |
| FR Citation | 80 FR 74695 | |
| RIN Number | 2126-AB57 | |
| CFR Citation | 49
CFR
386 49 CFR 390 | |
| CFR Associated | Administrative Practice and Procedures; Brokers; Freight Forwarders; Hazardous Materials Transportation; Highway Safety; Motor Carriers; Motor Vehicle Safety; Penalties; Intermodal Transportation and Reporting and Recordkeeping Requirements |
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