Federal Register Vol. 80, No.229,

On July 31, 2015, OPM issued a proposed rule (80 FR 45616) to redefine Montour County, PA, from the Harrisburg, PA, wage area to the Scranton-Wilkes-Barre, PA, wage area.

FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended this change by consensus.

The proposed rule had a 30-day comment period, during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

Discussion

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-28, dated October 21, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, CL-600-2C10 (Regional Jet Series 700, 701 & 702) airplanes, CL-600-2D15 (Regional Jet Series 705) airplanes, CL-600-2D24 (Regional Jet Series 900) airplanes, and CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

Required actions include repetitive detailed inspections for damaged and detached WLPAs and BOPs. Corrective actions include repair. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5819.

Bombardier has issued the following service information:

• Bombardier Service Bulletin 601R-25-201, dated July 21, 2015.

• Bombardier Service Bulletin 670BA-25-100, dated July 21, 2015.

The service information describes procedures for repetitive detailed inspections for damage of the cage assembly, WLPAs, and BOPs, and repair and replacement of damaged parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because a detached WLPA or BOP could delay smoke detection in the cargo compartment, and in the event of a cargo compartment fire, this could lead to an uncontrolled cargo compartment fire. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-5819; Directorate Identifier 2015-NM-166-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 986 airplanes of U.S. registry.

We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $167,620, or $170 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at the New York airports listed in this final rule.

In a review of the airspace, the FAA found the airspace description for Elmira/Corning Regional Airport, Elmira, NY, Ithaca Tompkins Regional Airport, Ithaca, NY, and Duchess County Airport, Poughkeepsie, NY, as published in FAA Order 7400.9Z, Airspace Designations and Reporting Points, does not match the FAA's charting information. This administrative change coincides with the FAA's aeronautical database for Class E Airspace Designated as an Extension to a Class D Surface Area.

Class E airspace designations are published in paragraphs 6004 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by eliminating the NOTAM information that reads “This Class E airspace area is effective during the specific dates and time established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.” from the regulatory text of the Class E airspace designated as an extension to Class D at Elmira/Corning Regional Airport, Elmira, NY; Ithaca Tompkins Regional Airport, Ithaca, NY; and Duchess County Airport, Poughkeepsie, NY. Additionally, the geographic coordinates for each airport are updated to be in concert with the FAA's aeronautical database. Also the FAA recognizes the airport's name change from Tompkins County Airport, Ithaca, NY, to Ithaca Tomkins Regional Airport, Ithaca, NY.

This is an administrative change amending the description for the above New York airports, to be in concert with the FAAs aeronautical database, and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

The final regulations (TD 9741) that are the subject of this correction are under section 141 of the Internal Revenue Code.

As published, the final regulations (TD 9741) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

Background

The final regulations (TD 9741) that are the subject of this correction are under sections 141 of the Internal Revenue Code.

As published, the final regulations (TD 9741) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the final regulations (TD 9741), that are subject to FR Doc. 2015-27328, are corrected as follows:

1. On page 65641, in the preamble, third column, the second and third sentences of the first full paragraph, under paragraph heading “Anticipatory Redemptions, ”the language “This allows targeting of funds other than tax-exempt bond proceeds to finance portions of projects that are expected to be used for private business use in the future. The intent of this proposed rule is to encourage retirement of tax-exempt bonds before the occurrence of nonqualified use.” is corrected to read “This would have allowed targeting of funds other than tax-exempt bond proceeds to finance portions of projects that are expected to be used for private business use in the future. The intent of this proposed rule was to encourage retirement of tax-exempt bonds before the occurrence of nonqualified use”.

2. On page 65642, in the preamble, first column, first sentence of the third full paragraph, under paragraph heading “Nonqualified Bonds,” the language “Commenters generally agreed with the proposed change that allows any bonds of any issue to be treated as the” is corrected to read “Commenters generally agreed with the proposed change that allows any bonds of an issue to be treated as the”.

The DoD is committed to providing military personnel from across the Services access to the TAP. The TAP prepares all eligible members of the Military Services for a transition to civilian life; enables eligible Service members to meet the CRS as required by this rule; and is the overarching program that provides transition assistance, information, training, and services to eligible transitioning Service members to prepare them to be career ready when they transition back to civilian life.

Spouses of eligible Service members are entitled to the DOLEW, job placement counseling, DoD/VA-administered survivor information, financial planning assistance, transition plan assistance, VA-administered home loan services, housing assistance benefits information, and counseling on responsible borrowing practices. Dependents of eligible Service members are entitled to career change counseling and information on suicide prevention.

These revisions will:

• Institutionalize the implementation of the VOW Act of 2011,

• require mandatory participation in the Department of Labor (DOL) Employment Workshop (EW),

• implement the Transition GPS (Goals, Plans, Success) curriculum,

• require development of an Individual Transition Plan (ITP),

• enhance tracking of attendance at TAP events,

• implement of mandatory Career Readiness Standards (CRS) for separating Service members, and

• incorporate a CAPSTONE event to document transition readiness and reinforce Commanding Officer accountability and support for the needs of individual Service members.

This rule improves the process of conducting transition services for eligible separating Service members across the Military Services and establishes the data collection foundation to build short-, medium-, and long-term program outcomes.

In August 2011, President Obama announced his comprehensive plan to ensure America's Post 9/11 Veterans have the support they need and deserve when they leave the military, look for a job, and enter the civilian workforce. A key part of the President's plan was his call for a “career-ready military.” Specifically, he directed DoD and Department of Veterans Affairs (VA) to work closely with other federal agencies and the President's economic and domestic policy teams to lead a Veterans Employment Initiative Task Force to develop a new training and services delivery model to help strengthen the transition readiness of Service members from military to civilian life.Shortly thereafter, Congress passed and the President signed the “VOW to Hire Heroes Act of 2011,” Public Law 112-56, 201-265, 125 Stat. 715 (“VOW Act”), which included steps to improve the existing TAP for Service members. Among other things, the “VOW Act” made participation in several components of TAP mandatory for all Service members (except in certain limited circumstances).

The task force delivered its initial recommendations to the President in December 2011 which required implementation of procedures to document Service member participation, and to demonstrate Military Service compliance with 10 U.S.C. Chapter 58 requirements. The Veterans Opportunity to Work (VOW) Act of 2011 mandated transitioning Service members participation in receiving counseling and training on VA Benefits. VA developed VA Benefits I and II Briefings to meet this mandate. The VOW Act also mandated transitioning Service members to received counseling and informed of services regarding employment assistance. The Department of Labor revised it's curriculum to meet this mandate with the Department of Labor Employment Workshop. The VOW requirements have been codified in 10 U.S.C. Chapter 58 and attendance to all Transition GPS curricula is now documented.

The redesigned TAP was developed around four core recommendations:

Adopt standards of career readiness for transitioning Service members. Service members should leave the military having met clearly defined standards of career readiness.

Implement a revamped TAP curriculum. Service members should be provided with a set of value-added, individually tailored training programs and services to equip them with the set of tools they need to pursue their post-military goals successfully.

Implement a “CAPSTONE”. Service members should be afforded the opportunity, shortly before they depart the military, to review and verify that they have met the CRS and received the services they desire and to be steered to the resources and benefits available to them as Veterans.

Implement a “Military Life Cycle” (MLC) transition model. Transition preparation for Service members should occur over the entire span of their military careers—not just in the last few months of their military service.

Implementation of these recommendations transforms a Service member' experience during separating, retiring, demobilizing, or deactivating to make the most informed career decisions by equipping them with the tools they need to make a successful transition.

The rule discusses a redesigned program which implements, the transition-related provisions of the “VOW Act” and recommendations of the Task Force to offer a tailored curriculum providing Service members with useful and quality instruction with connections to the benefits and resources available to them as Veterans. At the heart of the redesign is the new set of CRS. Just as Service members must meet military mission readiness standards while on Active Duty, Service members will meet CRS before their transition to civilian life.

Spouses of eligible Service members are entitled to the DOLEW, job placement counseling, DoD/VA-administered survivor information, financial planning assistance, transition plan assistance, VA-administered home loan services, housing assistance benefits information, and counseling on responsible borrowing practices. Dependents of eligible service members are entitled to career change counseling and information on suicide prevention.

As part of the regulatory process, DOD is required to develop a regulatory impact analysis (RIA) for rules with costs or benefits exceeding $100 annually. DOD estimates implementation of this interim rule for the Department will have a cost of approximately $100M or more annually starting in 2016. DoD assumes that the annual outlays will continue.

In President Obama's speech in August of 2011 at the Washington Navy Yard, he used the term `Reverse Boot Camp' to demonstrate his vision for a redesigned TAP to increase the preparedness of Service members to successfully transition from military service to civilian communities. The President's use of language initiated an interagency discussion on an approach to mirror the Military Services' “basic or initial entry training” programs. This approach would require the Military Services to devote approximately 9 to 13 weeks, depending on curriculum development, outcome measures, assessments and individual military readiness and cultural differences, to afford Service members the opportunity to use all aspects of a rigorous transition preparation program.

While no cost estimates were conducted, this approach was deemed both expensive and would jeopardize DoD's ability to maintain mission readiness. Approximately 200,000-250,000 Service members leave DOD each year. To concentrate on transition preparation during the last 9 to 13 weeks of an individual's military career would not be workable since mission readiness could not absorb the impact of the void. Additionally, there would be a an increased expense required to activate or mobilize Reserve Component or National Guard personnel for the nine to 13 weeks prior to transition. Finally, logistical challenges could result from Service members dealing with TAP requirements while deployed. For example, units scheduled to mobilize would be delayed because a returning unit could occupy facilities (such as billeting, classrooms, and training areas) that the deploying units needed to train and prepare for mobilization.

A second alternative considered was establishment of regional residential transition centers staffed by personnel from all Military Services, the Departments of VA, Labor (DoL), and Homeland Security (U.S. Coast Guard), the U.S. Small Business Administration (SBA), and the OPM. Transitioning Service members would be sent on temporary duty for a period of four to six weeks, 12 months prior to their separation or retirement date to receive transition services. Eligible Reserve Component Service members would be assigned to the centers as a continuation of their demobilization out-processing. The potential costs to build or modify existing facilities, or rent facilities that would meet regional residential transition center requirements, as well as costs for Service member travel to and from the regional centers, reduced the viability of this approach.

A third, less expensive option would have left the existing TAP program intact without increasing counselor and curriculum facilitation resources. This option would not have accountability systems and procedures to demonstrate compliance with the “VOW Act” that mandates preseparation counseling, attendance at the DOL's three day Employment Workshop (DOLEW), and attendance at two VA briefings. Due to increasing Veteran unemployment and homeless percentages at the time of the decision, and the rebalancing of the military force, this cost neutral approach would not have the outcome-based capability intended to develop career ready skills in transitioning Service members. This option, which would not have met the requirements of the law, would cost the Military Services approximately $70M versus the fiscal year 2013 (FY13) $122M for the implementation of the re-designed TAP.

The “VOW Act” mandated preseparation counseling, VA Benefits Briefings I and II, and the DOLEW and these components were implemented in November 2012. On the same day, the “VOW Act” requirements became mandatory; DoD published a policy to make CRS and Commanding Officer verification that Service members are meeting CRS, mandatory. “Vow Act” compliance and CRS must be met by all Service members after they have served 180 days in active duty status. Service members must attend Transition GPS (Goals, Plans, Success) curriculum modules that build career readiness if they cannot meet the CRS on their own. In cases where Service members receive a punitive or Under Other Than Honorable Conditions discharge, Commanding Officers have the discretion of determining participation in the other than mandatory Transition GPS curricula. By policy, all Service members who do not meet the CRS will receive a warm handover to DOL, VA, or other resources targeted at improving career readiness in the area where the standard was not met.

The entire Transition GPS curriculum is now available online through Joint Knowledge Online (JKO); however, Service members must attend preseparation counseling, VA briefings, and the DOLEW in person. All other curriculum can be accessed through the JKO virtual platform. The virtual curriculum (VC) was launched at the beginning of FY14. DoD expected a cost savings in FY14 due to use of the VC but the cost avoidance cannot be calculated, as VC utilization is appropriate on a Service member-by-Service member basis.

Further, resource requirements for DoD become more predictable when transition assistance is provided at pre-determined points throughout the MLC TAP model, mitigating the impacts of “surge” periods when large numbers of Service members separate, demobilize or deactivate. The FY13 cost to DoD to implement the TAP redesign was $122M and in FY14 DoD costs were $85M. The difference is attributed to both implementation costs of the updated program in FY13 and to efficiencies discovered as implementation was completed throughout FY14. These costs represent only the portion of the interagency program that is paid by the DoD. The cost covers Defense civilian and contracted staff (FTEs) salaries and benefits at 206 world-wide locations. Civilian and contract labor account for approximately 88% of total program costs in both fiscal years. The remaining costs include equipment, computers (purchase, maintenance and operations), Information Technology (IT) and architecture, data collection and sharing, Web site development, performance evaluation and assessments, curriculum development and modifications, materials (audio-visual, CDs, eNotebooks, handouts, interactive brick and mortar classroom sessions, virtual curriculum, etc.), facilitation training, research, studies, and surveys. Within DoD, the re-designed TAP capitalized upon existing resources, e.g., use of certified financial planners housed in the Military Services' family centers to conduct financial planning or military education counselors used to conduct the Accessing Higher Education (AHE) track. Other efficiencies include reuse or upgrades to current facilities and classrooms used to deliver legacy TAP. Implementation costs in FY13 included equipping classrooms to allow individual internet access and train-the-trainer workshops to deliver the DoD portions of the Transition GPS curriculum. Examples of efficiencies discovered in FY14 include providing train-the-trainer courses through webinars and savings associated with Service members using the VC.

The DoD provides military spouses the statutory requirements of TAP as prescribed in Title 10, United States Code. Other elements of TAP, prescribed by DoD policy, are available to spouses if resources and space permits. Military spouses can attend the “brick and mortar” Transition GPS curriculum at no cost on a nearby military installation. They can also take the entire Transition GPS curriculum online, virtually, at any time, from anywhere with a computer or laptop for free.

Many of our Veteran and Military Service Organizations, employers and local communities provide transition support services to local installations. Installation Commanders are strongly encouraged to permit access to Veteran Service Organizations (VSOs) and Military Service Organizations (MSOs) to provide transition assistance-related events and activities in the United States and abroad at no cost to the government. Two memos signed by Secretary of Defense Chuck Hagel reinforce such access. The memos are effective within 60 days of the December 23 signing, and will remain in effect until the changes are codified within DoD.1 Access to installations is for the purpose of assisting Service members with their post-military disability process and transition resources and services. The costs to VSOs and MSOs would be any costs associated with salaries for paid VSO and MSO personnel. These organizations will pay for any costs associated with travel to and from military installations, as well as any materials they provide to separating Service members and their spouses. Costs to employers and community organizations supporting transition-related events and activities would be similar to those for VSOs and MSOs.

The DoD is dependent upon other federal agencies to deliver the redesigned TAP to transitioning Service members. The VA, DOL, SBA, Department of Education (ED), and Office of Personnel Management (OPM) have proven to be invaluable partners in supporting the Transition GPS curriculum development and delivery, and in providing follow-on services required by a warm handover due to unmet CRS. These interagency partners strongly support TAP governance and performance measurement.

Although DoD cannot estimate the costs for its interagency partners, TAP provides the Service members with resources through the contributions of its interagency partners that should be identified as factors of total program cost. Transition assistance is a comprehensive interagency effort with contributions from every partner leveraged to provide support to the All-Volunteer Force as the Service members prepare to become Veterans. The interagency partners deliver the Transition GPS curriculum and one-on-one services across 206 military installations across the globe. DoD can only speak to TAP costs within the Defense fence line, but can discuss the value provided by interagency partners.

The DOL provides skilled facilitators that deliver the DOLEW, a mandatory element of the Transition GPS standardized curriculum. DOL's American Jobs Centers (AJCs) provide integral employment support to transitioning Service members and transitioned Veterans. The AJCs are identified as resources for the Service members during TAP, which may increase visits from the informed Service members. The AJCs also support warm handovers of Service members who have identified employment as a transition goal on their ITP but do not meet the CRS for employment. DOL also provides input to the TAP interagency working groups and governance boards, and is involved in the data collection, performance measurement, and standardization efforts, all of which represent costs to the organization.

The SBA provides the Transition GPS entrepreneurship track, Boots to Business, to educate transitioning Service members interested in starting their own business about the challenges small businesses face. Upon completing the Boots to Business track, the SBA allows Service members to access the SBA on-line entrepreneurship course, free of charge. The SBA then provides Service members the opportunity to be matched to a successful businessperson as a mentor. This is a tremendous commitment that must create additional costs for the SBA. The SBA offices continue to provide support to Veterans as they pursue business plan development or start up loans; provision of this support is in their charter, but the increased awareness provided through the Transition GPS curriculum is likely to increase the patronage and represent a cost to SBA. The SBA also provides input to the TAP interagency working groups and governance boards. The SBA is engaged with data collection and sharing efforts to determine program outcomes.

VA provides facilitators who deliver the mandatory VA Benefits Briefings I and II as part of the Transition GPS standardized curriculum required to meet “VOW Act” requirements. The VA facilitators also deliver the two-day track for Career Technical Training that provides instruction to Service members to discern the best choices of career technical training institutions, financial aid, best use of the Post 9/11 GI Bill, etc. Benefits counselors deliver one-on-one benefits counseling on installations, as space permits. As a primary resource for Veterans, VA ensures benefits counselors are able to accept warm handovers of transitioning Service members who do not meet CRS and require VA assistance post separation. The VA hosts a web portal for connectivity between employers and transitioning Service members, Veterans and their families. VA provides input to the TAP interagency working groups and governance boards, and is involved in the data collection and sharing efforts to determine program outcomes, all of which represent costs to the organization.

ED serves a unique and highly valued role in the interagency partnership by ensuring the entire curriculum, both in classroom and virtual platform delivery, is based on adult learning principles. Their consultative role, tapped daily by the interagency partners, is critical to a quality TAP. ED also provides input to the TAP interagency working groups and governance boards and keeps a keen eye toward meaningful TAP outcomes, all of which represent costs to the organization.

The OPM contributes federal employment information and resources to the DOLEW, and enables the connectivity between the VA's Web portal and USA Jobs Web sites. The OPM also provides input to the TAP interagency working groups and governance boards and contributes to performance measures.

The costs to DoD's interagency partners were not calculated; implementation of this rule was mandated by the “Vow Act” and costs for all parties are already incurred. The calculated costs to DoD and unmeasured costs to DoD's interagency partners provide significant resources to Service members resulting in benefits to the Nation.

The benefits of the redesigned TAP to the Service members are increased career readiness to obtain employment, start their own business or enter career technical training or an institution of higher learning at the point of separation from military service. The legacy, end-of-career TAP is replaced by pre-determined opportunities across the MLC for many transition-related activities to be completed during the normal course of business. Since a direct economic estimate of the value of TAP is difficult for DoD to demonstrate as it would require collection of information from military personnel after they become private citizens, the value of the TAP can be derived by demonstrating qualitatively how Service members value the program and then displaying some changes in economic variables that can be differentiated between Veterans who have access to TAP and non-Veterans who do not have access to the program.

According to a curriculum assessment completed at the end of each TAP module, transitioning Service members gave the TAP positive reviews on its usefulness for their job search:

The TAP also helps mitigate the adjustment costs associated with labor market transition. Military members must prepare for the adjustments associated with losing military benefits (e.g. housing, health care, child care) to the benefits afforded in private sector or nonmilitary public sector jobs. The TAP addresses this very important aspect based on a regulatory mandate that they attend both the DOLEW and the VA's Veterans Benefits Briefings, and complete a 12-month post-separation financial plan to meet CRS.

The early alignment of military skills with civilian workforce demands and deliberate planning for transition throughout a Service member's career sets the stage for a well-timed flow of Service members to our Nation's labor force. Employers state that transitioning Service members have critical job-related skills, competencies, and qualities including the ability to learn new skills, strong leadership qualities, flexibility to work well in teams or independently, ability to set and achieve goals, recognition of problems and implementation of solutions, and ability to persevere in the face of obstacles. However, application of these skills and attributes must be translated into employer friendly language. The TAP addresses these issues. The VA web portal supports providing private and public sector employers with a direct link to profiles and resumes of separating Service members where employers can recruit from this talent pipeline.

The rule benefits communities across the country. Civilian communities receive more educated, better-trained and more prepared citizens when separating Service members return to communities as Veterans. Service members learn to align their military skills with civilian employment opportunities, which enables the pool of highly trained, adaptable, transitioning Service members a more timely integration into the civilian workforce and local economies. Service members also learn through TAP about the rich suite of resources available to them from the interagency partners and have, for the asking, one-on-one appointments with interagency partner staff, who can provide assistance to Service members and their families both before and after the Service member leaves active duty. More specifically, the components of the mandatory CRS target deliberate planning for financial preparedness as well as employment, education, housing and transportation plans and, for those Service members with families, childcare, schools, and spouse employment. The DoD and interagency partners incorporated the warm handover requirement for any transitioning Service member who does not meet the CRS. The warm handover is meant to serve as an immediate bridge from DoD to the federal partners' staffs, which are committed to providing needed support, resources and services to Service members post separation in the communities to which the Service members are returning. The intention is to provide early intervention before Veterans encounter the challenges currently identified by some communities, e.g., financial struggles, unemployment, lack of social supports that can spiral down into homelessness, risk taking behaviors, etc. Families and communities benefit.

The Task Force established expectations for program performance measures and outcomes. The redesigned TAP Interagency Executive Council and Senior Steering Group laid the preliminary groundwork to measure long-term program outcomes. While DoD is statutorily limited to measure outcomes while Service members are active duty, DoD performance measures are intended to demonstrate outcomes of the TAP redesign within DoD. These include the verified number of Service members separated from active duty who meet “VOW Act” mandates and who meet CRS prior to separation. At the end of fiscal year 2014, 76.4% of separated Active Duty members met “VOW Act” requirements and 84% met CRS.

These measures set the stage for future long-term measures when transitioning Service members become Veterans. The DoD's TAP Information Technology (IT) architecture and data collection processes enable future data sharing with our Federal partners to show program effectiveness. The DoD requires the interagency support of its partners to further develop and collect data to define a relationship between TAP attendance, “VOW Act” compliance and CRS and long-term outcome measures, e.g. optimal use of Post 9/11 GI Bill benefits and long-term earnings of Post 9/11 Veterans.

The provisions of the Administrative Procedure Act (APA) 5 U.S.C. 553 requiring notice and public comment are inapplicable because this rule involves a military function of the United States (5 U.S.C. 553(a)(1)) since it addresses the training and transitioning of military members to civilian life. Nonetheless, DOD is providing the public with an opportunity to review and comment on this rule because it is being published to redesign the two decades-old program and make Post 9/11 transitioning Service members career ready. This redesign requires an unprecedented interagency commitment of staffing, programs, and resources across 206 military installations as well as a culture change within DoD. Timely and full execution of the redesign is of significant Congressional interest with three hearings already conducted and more scheduled in the coming months. In the last of four reports to the White House, The Military Life Cycle Transition Assistance Program (MLC TAP) Implementation Plan, the Military Departments stated one of the barriers and risks for implementing the redesigned TAP is the lack of a signed policy from DoD. DoD's interagency partners' budgets and resources are best estimates, pending the issuance of this rule which DOD's partners are required to support. The Military Services are hindered in submitting accurate Program Objective Memorandums (POMs) unless official DoD policy is in place to support their resource and funding requirements.

This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036. As required by Executive Order (EO) 13563, DoD intends to conduct periodic reviews along with its partner agencies to modify, or repeal, aspects, as appropriate, and after public notice and comment. DOD expects to conduct a review no later than five years from the publication of this interim rule. With regard to a number of aspects of this rule, possible modifications will be considered based on public comments and related internal studies. DoD intends to synthesize and review available data on such things including new and historical information on transition assistance milestones once a member becomes a veteran. For example, how many veterans use their Post-9/11 GI Bill, how many complete a degree, how long does it take for a veteran to find employment following separation from the military? Following this, DOD may propose modifications to the current provisions of the existing rule.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This interim final rule has been designated an “economically significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB) under the requirements of these Executive Orders.

Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 million or more or have certain other impacts. This interim final rule is a major rule under the Congressional Review Act.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

The DoD certifies that this interim final rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

It has been determined that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1980.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This interim final rule will not have a substantial effect on State and local governments.

Accordingly 32 CFR part 88 is revised to read as follows:

This is a summary of the Commission's document, DA 15-1238; GN Docket No. 12-268, released October 30, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

The Media Bureau adopts the final catalog of expenses, embedded in FCC Form 2100, Schedule 399, to be used by broadcasters and MVPDs seeking reimbursement from the TV Broadcaster Relocation Fund following the Incentive Auction. The costs included in the catalog are not intended to be an exhaustive list of reimbursable expenses, but rather represent those expenses that relocated broadcasters and MVPDs will most commonly incur as a result of the channel repack. Entities can submit expenses not listed in the catalog using the “other” catch-all categories found throughout the catalog. The Commission will send FCC Form 2100, Schedule 399 to the Office of Management and Budget for final approval of the information collection requirement contained therein under the Paperwork Reduction Act. The final version of the Reimbursement Form, FCC Form 2100, Schedule 399 (Reimbursement Form or Form), including the embedded expense catalog, will be submitted to the Office of Management and Budget for approval under the Paperwork Reduction Act.

In addition, the Media Bureau adopts a process for making payments from the TV Broadcaster Relocation Fund via the Commission's internal vendor payment system, rather than requiring recipients to establish individual accounts with the U.S. Treasury, as had previously been announced. The Media Bureau found that this change would mitigate against waste, fraud and abuse by saving Commission resources and providing the agency with more control over the creation of payment accounts.

The Media Bureau also adopts a process wherein a broadcaster or MVPD must submit information on the Reimbursement Form, with supporting cost documentation, each time it makes a request for reimbursement from the Fund, not only at the beginning and end of the reimbursement period.

Finally, after seeking comment on which data points, if any, should be considered confidential or nor subject to public disclosure, the Media Bureau concludes that cost documentation submitted by entities seeking reimbursement for actual costs (for example, invoices), as well as the name, address, and other identifying information pertaining to the vendor providing equipment or service to a specific broadcaster or MVPD, will not be made publicly available.

The Commission will send a copy of this document in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This final rule amends the DFARS as follows:

1. Directs contracting officers to additional DFARS Procedures, Guidance, and Information (PGI) by adding references at—

• DFARS 217.500(b) to PGI 217.502-1;

• DFARS 217.502-1(a)(1) and (b)(1) to PGI 217.502-1(a)(1) and (b)(1), respectively; and

• DFARS 239.7603 to PGI 239.7603.

2. Makes conforming changes at DFARS 239.7604, 252.239-7009, and 252.239-7010.

Therefore, 48 CFR parts 217, 239, and 252 are amended as follows:

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 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.

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.

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.

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 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.

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 § 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.

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)).

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:

• 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.

Fifteen commenters, including two safety advocacy groups, two trade associations, a driver, an owner-operator, a union, OSHA, and seven individuals, expressed their general 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.

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.

These comments are discussed in detail below under the appropriate subject heading.

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.”

FMCSA has revised and clarified the NPRM's definition of “coercion.” Readers may find it helpful to keep in mind the new definition (see § 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.

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.

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.

The NPRM proposed to apply the prohibition on coercion not only to 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.”

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 § 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.”

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]:

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.

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.”

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.

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.”

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.

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.

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 § 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 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.

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.”

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 [§ 31136(a)(5)], but it did not limit the governmental exemption in § 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.

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.”

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.

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.”

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 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.

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 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.

ATA argued that a violation of proposed § 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 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.

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.”

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.

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.”

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.”

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.”

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 § 395.3(a)(2).

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.

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.

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 § 386.12(e).

The NPRM's § 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.

Section 390.3(a) is amended to include a reference to the coercion provisions in § 386.12(e) and § 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 subject to the prohibition on coercion in § 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 §§ 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 §§ 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.

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).

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].

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.

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.

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 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.

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.

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.

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

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.

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.

The snapper-grouper fishery of the South Atlantic includes golden tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On April 23, 2013, NMFS published a final rule for Amendment 18B to the FMP (78 FR 23858). Amendment 18B to the FMP established a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery and allocated the commercial golden tilefish ACL among two gear types, the longline and hook-and-line components.

The commercial ACL (equivalent to the commercial quota) for the hook-and-line component for golden tilefish in the South Atlantic is 135,324 lb (61,382 kg), gutted weight, for the current fishing year, January 1 through December 31, 2015, as specified in 50 CFR 622.190(a)(2)(ii).

Under 50 CFR 622.193(a)(1)(i), NMFS is required to close the commercial hook-and-line component for golden tilefish when the hook-and-line component's commercial ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial ACL for the hook-and-line component for golden tilefish in the South Atlantic will be reached by December 8, 2015. Accordingly, the commercial hook-and-line component for South Atlantic golden tilefish is closed effective 12:01 a.m., local time, December 8, 2015, until 12:01 a.m., local time, January 1, 2016.

The commercial longline component for South Atlantic golden tilefish closed on February 19, 2015, for the remainder of the fishing year, until 12:01 a.m., local time, January 1, 2016 (80 FR 8559, February 18, 2015). Furthermore, recreational harvest for golden tilefish closed on August 11, 2015, for the remainder of the fishing year, until 12:01 a.m., local time, January 1, 2016 (80 FR 48041, August 11, 2015). Therefore, because the commercial longline component and the recreational sector are already closed, and NMFS is closing the commercial hook-and-line component through this temporary rule, all fishing for South Atlantic golden tilefish is closed effective 12:01 a.m., local time, December 8, 2015, until 12:01 a.m., local time, January 1, 2016.

The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper having golden tilefish on board must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m., local time, December 8, 2015. During the closure, the sale or purchase of golden tilefish taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of golden tilefish that were harvested by hook-and-line, landed ashore, and sold prior to 12:01 a.m., local time, December 8, 2015, and were held in cold storage by a dealer or processor. For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the sale and purchase provisions of the commercial closure for golden tilefish would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic golden tilefish and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(a)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the commercial hook-and-line component for golden tilefish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because the capacity of the fishing fleet allows for rapid harvest of the commercial ACL for the hook-and-line component, and there is a need to immediately implement this action to protect golden tilefish. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial ACL for the hook-and-line component.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The shrimp fishery in the Gulf is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On August 12, 2015, NMFS published a notice of availability for Amendment 15 and requested public comment (80 FR 48285). On August 25, NMFS published a proposed rule for Amendment 15 and requested public comment (80 FR 51523). The proposed rule and Amendment 15 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Amendment 15 and this final rule is provided below.

This final rule revises the FMP framework procedures at 50 CFR 622.60(a) and (b) to allow for modification of accountability measures under the standard documentation process of the open framework procedure. Also, this final rule removes outdated terminology from the regulations, such as “total allowable catch,” and removes the phrase “transfer at sea provisions” from the list of framework procedures because this phrase was inadvertently included in the final rule for the Generic Annual Catch Limits and Accountability Measures Amendment (76 FR 82044, December 29, 2011). The transfer at sea text was never intended by the Council to be included in the list of framework procedures when they were revised in 2011, but were included as a result of an error by NMFS during that rulemaking.

Amendment 15 also contains actions that are not being codified in the regulations, but guide the Council and NMFS in establishing other management measures, which are codified. Amendment 15 revises the MSY, the overfishing threshold, and the overfished threshold definitions and values for penaeid shrimp stocks (brown, white, and pink shrimp).

The criteria and values for MSY, the overfishing threshold, and the overfished threshold for penaeid shrimp were established in Amendment 13 to the FMP (71 FR 56039, September 26, 2006). Historically, Gulf penaeid shrimp stocks were assessed with a virtual population analysis (VPA), which reported output in terms of number of parents. However, the 2007 pink shrimp stock assessment VPA incorrectly determined that pink shrimp were undergoing overfishing because the model could not accommodate low effort. In 2009, NMFS stock assessment analysts determined that the stock synthesis model was the best choice for modeling Gulf shrimp populations. Amendment 15 modifies stock status determination criteria to match the biomass-based output of the stock synthesis model. These revisions to the penaeid shrimp stock status criteria are expected to cause little to no change to the biological, physical, or ecological environments because these changes are only to the stock status reference points and therefore will not have a direct impact on the actual harvest of penaeid shrimp.

No substantive comments were received on either Amendment 15 or the proposed rule. One comment was received from a Federal agency that stated that it had no comment on the proposed rule or on Amendment 15.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with Amendment 15, the FMP, the Magnuson-Stevens Act, and other applicable law. This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

Background

This temporary final rule extends emergency permitting and possession limit regulations for the blueline tilefish (Caulolatilus microps) fishery in the Greater Atlantic Region (i.e., Federal waters north of the latitude of the Virginia/North Carolina border) as described in the original emergency action that published on June 4, 2015 (80 FR 31864). The initial temporary rule was implemented in response to a request for emergency action from the Mid-Atlantic Fishery Management Council. That temporary final rule included detailed information on the background, purpose, need, and justification to implement these emergency management measures, and that information is not repeated here.

Section 305(c) of the Magnuson-Stevens Act allows for the extension of an emergency action, which is otherwise effective for up to 180 days, for up to another 186 days, provided that certain criteria are met: (1) The public has had an opportunity to comment on the emergency regulation; and (2) in the case of a Council recommendation for emergency action, the Council is actively developing an fishery management plan (FMP) amendment or regulations to address the emergency on a permanent basis. NMFS accepted public comment on the initial emergency measures in the final rule through July 6, 2015; comments and responses are summarized below. The Mid-Atlantic and South Atlantic Fishery Management Councils are both working on long-term management measures for blueline tilefish along the Atlantic coast. The Mid-Atlantic Council has initiated an amendment to its Golden Tilefish FMP to add blueline tilefish fishery management measures to that FMP and manage the stock within its jurisdiction. Final action on that amendment is expected to occur at the Council's February 2016 meeting so that rulemaking may be completed before this temporary extension expires. This extension does not change the measures already in place. NMFS is not accepting additional public comment on this extension, and has determined that all the necessary criteria have been met and, therefore, is extending these emergency measures.

This temporary final rule extends the following management measures for blueline tilefish in the Greater Atlantic Region:

1. A requirement for commercial or charter/party vessels landing blueline tilefish in the Northeast region (i.e., north of the latitude of the Virginia/North Carolina border: 36°33′01.0″ N. latitude) to hold a valid Northeast open access golden tilefish commercial or charter/party vessel permit, which are issued by the Greater Atlantic Regional Fisheries Office;

2. A commercial possession limit of 300 lb (136 kg) whole weight per trip; and

3. A recreational possession limit of seven blueline tilefish per person, per trip.

None of these management measures modify the existing possession regulations for golden tilefish, or any other species.

In addition to the efforts being made by the Mid-Atlantic Council, the South Atlantic Council is considering revisions to its Snapper Grouper FMP to modify blueline tilefish management measures that may or may not affect the Mid-Atlantic Council's management of this stock. Questions remain on potential stock structure of the species throughout its distribution and there is considerable uncertainty in the data and projections in the most recent benchmark stock assessment that are currently being explored. It is expected that the long-term management of blueline tilefish fisheries will be improved once these scientific and policy issues are resolved. These extended emergency measures will continue to protect blueline tilefish in the Greater Atlantic Region while allowing the Councils more time to finalize their work.

We received numerous public comments prior to implementation of the emergency action, primarily from fishermen who were opposed to overly-restrictive possession limits on blueline tilefish. Overall, the concerns raised in these comments were addressed by the management measures that we implemented. We received three comments during the original rule's comment period, and these are summarized below.

Comment 1: One comment was from a North Carolina-based commercial fishing organization. The commenter suggested that the blueline tilefish possession limits implemented by the rule disproportionately impacted commercial fishing vessels while not equally restraining recreational fishing vessels.

Response: According to the analyses in the EA (see ADDRESSES), the possession limits implemented by NMFS were expected to have minor negative impacts on both commercial and recreational fishing vessels. In recent years, only 18 percent of commercial trips landed more than 500 lb (227 kg) of blueline tilefish, and in 2014, 94 percent of landings were derived from only six vessels (out of 81 active vessels). Therefore, the commercial possession limit of 300 lb (136 kg) was not expected to impact the vast majority of vessels in the fishery, and by design, reduces incentives to target blueline tilefish. Similarly, in the recreational fishery in recent years, only 12 percent of charter/party trips landed more than seven fish per person. Therefore, impacts on the overall commercial and recreational fisheries were projected to be comparable, with little impact on the vast majority of trips.

Comment 2: One comment from a New Jersey recreational fisherman opposed the recreational possession limit, stating it was too restrictive.

Response: As noted in the response above, a minority of recreational trips are likely to be affected by the possession limit of seven fish per person. The objective of the emergency rule was to prevent further expansion of catch on this species, and we believe the seven-fish possession limit to be appropriate, and consistent with the recommendations of the Council. Additionally, the blueline tilefish possession limits do not impact the possession limits of golden tilefish or other species.

Comment 3: One comment was from a recreational fisherman who was opposed to a possession limit of one fish per vessel (Alternative 2 in the EA).

Response: NMFS agrees that the possession limits under Alternative 2 would have been more restrictive, and likely to result in greater negative impacts on a higher proportion of fishery participants. NMFS chose to implement the possession limit of seven fish per person to help constrain fishing effort, while still allowing the fishery to continue.

The Regional Administrator, Greater Atlantic Region, NMFS, has determined that the emergency measures extended by this temporary rule are necessary for the conservation and management of the blueline tilefish fishery and are consistent with the Magnuson-Stevens Act and other applicable law.

Under 5 U.S.C. 553(d)(1), the Assistant Administrator for Fisheries finds good cause to waive the 30-day delayed effectiveness of this action. Because the extension of these emergency measures contains regulations already in place, it is contrary to public interest to allow them to expire. As described more fully in the original emergency action (80 FR 31864; June 4, 2015), the reasons justifying promulgation of the rule on an emergency basis make a delay in effectiveness contrary to the public interest. The possession limits implemented for recreational and commercial blueline tilefish vessels fishing in Federal waters north of the Virgina/North Carolina border are needed to constrain fishing mortality on the stock that would otherwise be unregulated. To provide protection for blueline tilefish, and to allow additional time for the Council to develop an appropriate long-term solution for the management of this stock, expediting these emergency measures is necessary.

This action is being taken pursuant to the emergency provision of the Magnuson-Stevens Act and is exempt from OMB review.

This rule is exempt from the otherwise applicable requirement of the Regulatory Flexibility Act to prepare a regulatory flexibility analysis because the rule is issued without opportunity for prior public comment.