Prohibiting Coercion of Commercial Motor Vehicle Drivers
Prohibiting Coercion of Commercial Motor Vehicle Drivers
T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
November 30, 2015
[Federal Register Volume 80, Number 229 (Monday, November 30, 2015)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30237]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 386 and 390
[Docket No. FMCSA-2012-0377]
Prohibiting Coercion of Commercial Motor Vehicle Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: FMCSA adopts regulations that prohibit motor carriers,
shippers, receivers, or transportation intermediaries from coercing
drivers to operate commercial motor vehicles (CMVs) in violation of
certain provisions of the Federal Motor Carrier Safety Regulations
(FMCSRs)--including drivers' hours-of-service limits; the commercial
driver's license (CDL) regulations; drug and alcohol testing rules; and
the Hazardous Materials Regulations (HMRs). In addition, the rule
prohibits anyone who operates a CMV in interstate commerce from
coercing a driver to violate the commercial regulations. This rule
includes procedures for drivers to report incidents of coercion to
FMCSA, establishes rules of practice that the Agency will follow in
response to reports of coercion, and describes penalties that may be
imposed on entities found to have coerced drivers. This rulemaking is
authorized by section 32911 of the Moving Ahead for Progress in the
21st Century Act (MAP-21) and the Motor Carrier Safety Act of 1984
(MCSA), as amended.
DATES: This final rule is effective January 29, 2016.
Petitions for Reconsideration of this final rule must be submitted
to FMCSA Administrator no later than December 30, 2015.
Availability of Rulemaking Documents
For access to docket FMCSA-2012-0377 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Services at U.S. Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Regulatory
Affairs Division, Office of Chief Counsel, (202) 493-0349. FMCSA office
hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal
Table of Contents
I. Abbreviations and Acronyms
II. Executive Summary
III. Legal Basis for This Rulemaking
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
Benefits and Costs
The FMCSA believes that this rule will not have an economically
significant impact. The motor carriers, shippers, receivers, freight
forwarders, brokers and transportation intermediaries that previously
engaged in acts of coercion against truck or bus drivers will incur
compliance costs to operate in accordance with the regulations, and
they will lose whatever economic benefit coercion provided; however,
the cost of compliance with existing regulations has already been
captured in the analysis supporting the implementation of those
regulations, so we do not consider them here. There will be safety
benefits from increased compliance with the regulations and driver
health benefits if HOS violations decrease. In the absence of coercion,
the drivers will conduct their safety-sensitive work in a manner
consistent with the applicable Federal regulations. During the four-
year period from 2009 through 2012, OSHA determined that 253
whistleblower complaints from CMV drivers had merit. In the same
period, FMCSA validated 20 allegations of motor carrier coercion of
drivers that were filed with DOT's OIG. This is an average of 68.25
acts of coercion per year during the four-year period. The Agency
estimates that the cost of eliminating this level of coercion would be
less than the $100 million threshold required for economic significance
under E.O. 12866.
III. Legal Basis for This Rulemaking
This rule is based on the authority of MCSA [49 U.S.C. 31136(a)],
as amended by MAP-21 [Pub. L. 112-141, section 32911, 126 Stat. 405,
818, July 6, 2012] and on 49 U.S.C. 13301(a), as amended by the ICC
Termination Act of 1995 [Pub. L. 104-88, 109 Stat. 803, December 29,
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.
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
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.
\1\ See 76 FR 81162.
Although sec. 32911 of MAP-21 amended 49 U.S.C. 31136(a), it did
not amend the jurisdictional definitions in 49 U.S.C. 31132, which
specify the reach of FMCSA's authority to regulate motor carriers,
drivers, and CMVs. Thus, it appears that Congress did not intend to
apply all of the FMCSRs to shippers, receivers, and transportation
intermediaries that are not now subject to those requirements. (Motor
carriers, of course, have always been subject to the FMCSRs.) Instead,
sec. 32911 prohibited these entities from coercing drivers to violate
most of the FMCSRs. This necessarily confers upon FMCSA the
jurisdiction over shippers, receivers, and transportation
intermediaries necessary to enforce that prohibition.
Although MAP-21 did not address coercion to violate the commercial
regulations that the Agency inherited in the ICC Termination Act of
1995, FMCSA is adopting a rule in order to ensure that there is no
significant gap in the applicability of the coercion prohibition. As
discussed above in the Legal Basis section, the MCSA gives the Agency
broad authority to ensure that CMVs are maintained, equipped, loaded,
and operated safely, and that the responsibilities imposed on drivers
do not impair their ability to operate CMVs safely [49 U.S.C.
31136(a)(1)-(2)]. Some of the commercial regulations have effects
related to safety. Designation of a process agent under 49 CFR part 366
ensures that parties injured in a CMV crash can easily serve legal
documents on the carrier operating the CMV, wherever the location of
its corporate offices. Registration as a for-hire motor carrier under
49 CFR part 365, or as a broker under 49 CFR part 371, ensures that an
applicant has met the minimum standards for safe and responsible
operations. Coercion of drivers to violate requirements such as these
could have an effect on their ability to operate CMVs safely, e.g.,
requiring a driver to operate a vehicle in interstate commerce when the
owner had neither obtained operating authority registration from FMCSA
nor filed proof of insurance.
The minimum requirement to obtain FMCSA authority to operate as a
for-hire motor carrier, freight forwarder, or broker under 49 U.S.C.
13902, 13903, or 13904, respectively, is willingness and ability to
comply with ``this part and the applicable regulations of the Secretary
. . . .'' Among those ``applicable regulations'' are this rule's ban on
coercing drivers to violate the commercial regulations. For-hire motor
carriers are subject to an even more explicit requirement to observe
``any safety regulations imposed by the Secretary'' [49 U.S.C.
13902(a)(1)(B)(i)], including Sec. 390.6(a)(2). Moreover, independent
of MAP-21, FMCSA has statutory authority under 49 U.S.C. 13301(a),
formerly vested in the ICC, to prescribe regulations to carry out
chapter 139 and the rest of Part B of Subtitle IV of Title 49. The
prohibition on coercing drivers to violate the commercial regulations
is within the scope of this authority.
Because both of the coercion prohibitions described above are based
on 49 U.S.C. 31136(a), codified in subchapter III of chapter 311,
violations of those rules would be subject to the civil penalties in 49
U.S.C. 521(b)(2)(A), which provides that any person who is determined
by the Secretary, after notice and opportunity for a hearing, to have
committed an act that is a violation of the regulations issued by the
Secretary under subchapter III of chapter 311 (except sections 31138
and 31139 \2\) or section 31502 of this title shall be liable to the
United States for a civil penalty in an amount not to exceed $10,000
for each offense.
\2\ Sections 31138 and 31139 prescribe minimum financial
responsibility standards for the transportation of passengers and
However, pursuant to the Debt Collection Improvement Act of 1996
[Pub. L. 104-134, title III, chapter 10, sec. 31001(s), 110 Stat. 1321-
373], the maximum inflation-adjusted civil penalty per offense is
$16,000 (49 CFR part 386, App. B, Paragraph (a)(3)).
V. Discussion of Comments
On May 13, 2014, the Agency published a notice of proposed
rulemaking (NPRM) (79 FR 27265) to implement the MAP-21 prohibition of
Between May 13 and September 4, 2014, 94 submissions were posted to
the docket. One of the submissions was a duplicate,\3\ and three were
non-responsive,\4\ leaving 90 submissions from the following:
\3\ Submission number 0080 is a duplicate of number 0089.
\4\ Submission numbers 0010, 0015, and 0016.
One Federal agency: OSHA.
Six motor carriers: Kimberly Arnold, Louisiana Transport,
Inc., Mason/Dixon Lines, Inc., Schneider National, Inc., Wayne Yoder,
one anonymous company, and the Motor Carrier Coalition comprised of 12
additional motor carriers.
Ten industry associations: American Trucking Associations
(ATA), Association of Independent Property Brokers & Agents (AIPBA),
Institute of Makers of Explosives (IME), National Customs Brokers and
Forwarders Association of America, Inc.(NCBFAA), National Grain and
Feed Association (NGFA), National Industrial Transportation League (NIT
League), National Shippers Strategic Transportation Council, Inc.
(NASSTRAC), Owner-Operator Independent Drivers Association, Inc.
(OOIDA), Snack Food Association, and Transportation Intermediaries
Two advocacy organizations: Advocates for Highway and Auto
Safety (Advocates) and Road Safe America.
One labor union: Transportation Trades Department, AFL-CIO
One transportation intermediary: Armada.
One commercial carrier consultant: Richard Young; and
67 individuals including 15 who self-identified as drivers
and 2 owner operators.
Comments Supporting the Rulemaking
Fifteen commenters, including two safety advocacy groups, two trade
associations, a driver, an owner-operator, a union, OSHA, and seven
individuals, expressed their general
support for the proposed rule. Road Safe America and Advocates support
the Agency's efforts to end the practice of coercion, but Advocates
recommended that FMCSA take additional steps, such as investigating all
reported incidents of coercion, and exercise its authority to suspend
the registration of those that engage in documented instances of
coercion. ATA and AIPBA support prohibiting coercion, but expressed
reservations about the potential impact the proposed rule would have on
commercial relations between motor carriers and shippers, receivers,
and intermediaries. OSHA, which is responsible for enforcing the
whistleblower protection provisions of the Surface Transportation
Assistance Act of 1981 (STAA) and 21 other statutes, supports the
proposal and offered suggestions to make it more effective. TTD, a
driver, an owner-operator, and seven individuals expressed strong
support for the NPRM. Many of these commenters stated that the rule
would finally make shippers, receivers and transportation
intermediaries accountable for their actions.
Comments in Opposition to the Rulemaking
Eighteen commenters, including nine individuals, seven trade
associations and two drivers expressed their general disapproval of the
NPRM. Many of these commenters stated that they agree with FMCSA that
CMV drivers should not be coerced into violating any laws or
regulations; however, they believe the requirements proposed in the
NPRM will lead to unintended consequences. Several commenters stated
there is no need for this regulation because existing regulations
already prohibit coercion. Three trade associations contend that the
NPRM misapplies the legal doctrine of respondeat superior \5\ in
attempting to hold shippers and receivers legally responsible for
drivers that they do not hire, direct or manage. NASSTRAC stated the
proposed rules are ``arbitrary and capricious, contrary to law,
impracticable and certain to do more harm than good.'' Another
commenter argued that the Agency has not accurately assessed the cost
of these requirements, and expressed concern that the complaint
reporting process is highly subjective. Two drivers wrote that new
regulations are not necessary; instead drivers need to stand up to
anyone trying to coerce them into violating the rules. Two individuals
commented that this NPRM does not impose any new requirements on
shippers or receivers that will prevent them from detaining a driver
for hours and then requiring the driver to leave the property even if
the driver is out of hours.
\5\ `Respondeat superior' is a legal concept meaning that an
employer is responsible for the wrongful acts of its employees or
agents who are acting within the scope of their employment or
These comments are discussed in detail below under the appropriate
Definition of Coercion
OSHA commented that ``coercion is broader than just threats related
to loss of work, future business, or other economic opportunities.
Coercion and coercive tactics may also include threats of violence,
demotion, reduction of pay, and withdrawal or reduction of benefits, or
any action that is capable of dissuading a reasonable employee from
engaging in whistleblowing activity.'' OSHA therefore recommended that
the proposed definition of coercion, which referred to ``a threat . . .
to withhold, or the actual withholding of, current or future business,
employment, or work opportunities from a driver . . .'' be amended to
refer to ``a threat . . . to take or permit any adverse employment
action against a driver . . .''
NCBFAA pointed out that if a shipper, receiver, or transportation
intermediary discovered an ``HOS issue--which would likely only be the
case because the driver happened to say something about it--any
decision to refuse to tender the shipment could be construed as
violating the proposed regulation. For then, it would be knowingly
`withholding . . . work opportunities from a driver' when it `knew' the
driver was unable to lawfully handle the load. In that case, because
the motor carrier elected to dispatch a driver that could not lawfully
handle the load, the cargo would not be able to move until such time as
the driver in question was again able to operate the equipment.'' ``The
NCBFAA believes that where a shipper or transportation intermediary
learns that a driver may not haul a load because he/she does not have
the available hours, it should be able to freely advise the trucker of
the situation so it can provide another driver who does have available
hours to complete the haul in a timely manner. Alternatively, the
shipper/transportation intermediary should be able to use another
carrier entirely, particularly one that is sufficiently responsible and
knowledgeable about the status of its drivers.''
TIA made the same point. ``Read literally, the definition would now
make it a violation for a shipper or transportation intermediary to
refuse a load to a driver if it `knew or should have known' that the
driver was about to exceed or already had exceeded the HOS regulations.
Yet, the shipper or transportation intermediary could not properly
request that the driver perform the transportation, as it would then be
both `coercing' the driver and aiding and abetting the HOS violation.
So, if a driver assigned by a motor carrier shows up to pick up a load
and advises the shipper or transportation intermediary that he or she
cannot lawfully handle the load due to HOS or other concerns, the
shipper or transportation intermediary would not be able to contact the
carrier and request that they replace the driver. Instead the load
would just sit. This is a catch 22 . . .''
NIT League offered a similar comment. ``If a shipper attempts to
confirm a delivery appointment with the driver, does that equate to
directing `a driver to complete a run in a certain time'? It may not in
the mind of the shipper but what if the driver has a different
interpretation? If the driver objects to meeting that appointment due
to HOS rules and the shipper gives the load to another carrier who can
timely make the delivery, does that loss of business equate to
coercion? What if the driver associates the selection of an alternative
carrier with its objection but the shipper simply needed to meet its
delivery requirements? The answers to these questions are far from
clear. . . . [T]he League suggests that FMCSA modify its proposal to
require the driver to inform the shipper of the potential safety
violation at the time he/she lodges the objection and to promptly
record the alleged coercion event. Specifically, the League suggests
that FMCSA require a driver who is concerned about violating a safety
rule to take the following steps before accepting the load: (1) Clearly
articulate the objection to the allegedly coercing party and such
objection must identify the specific FMCSA regulation that will be
violated; and (2) record in a contemporaneous writing his/her objection
and the facts and circumstances associated with the alleged coercion
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 Sec. 390.5) as they review the Agency's response to
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
The Agency has also revised the definition of ``coercion'' to
require the driver to identify ``at least generally'' the rules that he
or she would have to violate in the course of the delivery. FMCSA is
not requiring drivers to ``identify the specific FMCSA regulation that
will be violated,'' as the NIT League and ATA requested. The FMCSRs are
complex and drivers cannot be expected to have full command of
regulatory citations. Nonetheless, the driver must be able to identify
the problem clearly enough to enable FMCSA personnel to determine that
it falls within a requirement or prohibition of the Agency's
regulations. It will be sufficient, for example, if the driver
indicates that he or she objects to a particular trip because of an HOS
problem (``they told me to keep driving even when I hit 11 hours''), a
maintenance issue (``the last inspection certificate was 3 years
old''), or bad tires (``there was no tread on the front tires; I could
see the ply in a couple of places'').
Similarly, the Agency will not require the driver to record his
objection in ``a contemporaneous writing.'' On the other hand, if the
shipper or transportation intermediary attempts to coerce the driver to
take the load after hearing the objection, it would be in the driver's
best interests to document that attempt as soon as practicable.
Additional Burdens Created by Rule
Many of the commenters believe shippers would have to adopt
extensive and burdensome procedures to comply with the proposed rule.
NASSTRAC wrote that ``[t]he aspect of the proposed rules that will cost
the most (far more than the zero dollars FMCSA projects), and which is
most contrary to established law, is the `duty to inquire.' . . . It
remains the case that every shipper would have to discuss HOS status
for every scheduled shipment with every driver.''
The TIA commented that ``[t]he NPRM would place the shipper and
transportation intermediary into the role of employee management having
to ask about hours of service availability.''
NGFA noted that ``[i]n current operations, a shipper or receiver .
. . does not check a driver's hours-of-service (HOS) log or inspect the
driver's commercial motor vehicle--and it could be argued that the
shipper or receiver does not have a duty or even a right to do so--if
the driver is employed by another company. . . . Even if drivers and
their employers are fully cooperative in this respect, the resulting
burden and added costs for shippers and receivers would be
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
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
Agents, Officers, or Representatives
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.''
\6\ C.R. England, Inc.; CRST International, Inc.; Central
Refrigerated Service, Inc.; Cowan Systems, LLC; Dart Transit
Company; Greatwide Truckload Management; Liquid Transport Corp.;
National Carriers, Inc.; Oakley Trucking, Inc.; PGT Trucking, Inc.;
Roadrunner Transportation Systems, Inc.; and Schneider National,
ATA agreed with the Coalition's comments and urged the Agency ``to
clarify that, for purposes of the definition of `coercion' and proposed
section 390.6, a motor carrier's agents, officers or representatives
only include anyone who is authorized to act on behalf of a motor
carrier. In the instance where an independent contracting entity
engaged in the act of coercion against one of its drivers, only that
entity should be liable under proposed section 390.6--not the motor
carrier to whom the equipment and driver are leased.''
Schneider National commented that it ``utilizes the services of
approximately 2,000 independent contractors including a number of fleet
owners. As such, Schneider shares the concerns raised in such comments
relative to the use of terms `agents,' `officers' and `representatives'
used in conjunction with the term `motor carrier' in Sec. 390.6(a)(2),
and adopts their comments as filed. . . . [S]imilar issues may arise in
the context of brokerage operations. Consider, for example, a motor
carrier contracted by a broker with respect to a particular shipment.
In the normal circumstance, the broker would arrange for the
transportation on a schedule which can be accomplished consistent with
the hours of service regulations, provided the involved motor carrier
has an available driver with appropriate `hours'. The broker would not
normally be privy to the motor carrier's driver/load assignment
process. Under this circumstance, is the motor carrier, by virtue of
the typical broker/carrier arrangement, an `agent' or `representative'
of the broker such that the broker would be liable under the proposed
rule for any motor carrier violation? The use of the terms `agent',
`officers' and `representatives' might suggest that liability in the
foregoing circumstances could be attributed to the broker. Such a
result would be inequitable.''
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
FMCSA published regulatory guidance on this issue on April 4, 1997
[62 FR 16370, 16407]:
Question 17: May a motor carrier that employs owner-operators
who have their own operating authority issued by the ICC or the
Surface Transportation Board [authority that is now issued by FMCSA]
transfer the responsibility for compliance with the FMCSRs to the
Guidance: No. The term ``employee,'' as defined in Sec. 390.5,
specifically includes an independent contractor employed by a motor
carrier. The existence of operating authority has no bearing upon
the issue. The motor carrier is, therefore, responsible for
compliance with the FMCSRs by its driver employees, including those
who are owner-operators.
Brokers, however, are not employees of a motor carrier, nor are
motor carriers agents or representatives of brokers. In a normal arms-
length transaction, the broker deals with a motor carrier, not an
individual driver. The motor carrier has an obligation to comply with
the FMCSRs and thus to assign a driver who has sufficient hours to
complete the trip on the schedule outlined by the broker and to provide
equipment that meets applicable standards. Any coercion that occurred
would typically be committed by the motor carrier that employed the
driver. However, as TIA pointed out, a State court has held that where
a broker contracted with a motor carrier but in fact exercised direct
control over the driver, that broker was liable for a tort committed by
the driver [Sperl v. C. H. Robinson Worldwide, Inc., 946 NE.2d 463
(2011)]. A broker could be found liable for coercion if it interacted
directly with a driver, instead of with the carrier, and attempted to
force the driver to make a delivery on a schedule that would require a
violation of the FMCSRs. The Agency has no information about how often
direct interactions between transportation intermediaries and drivers
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
In any case, the revised definition of coercion adopted in this
final rule eliminates the ``knew or should have known'' standard by
emphasizing more strongly the driver's duty to object as a predicate
for any subsequent allegation of coercion.
Coercion That Fails
NASSTRAC objected to FMCSA's intent to ``penalize unsuccessful
coercion, i.e., customer requests that a driver ignores.'' NASSTRAC
argued that ``[p]enalizing coercion resulting in violations better
addresses the conduct Congress wanted to discourage. FMCSA has cited no
analogous regulatory program that would penalize millions of Americans'
words or requests even if they produce no actions. The Foreign Corrupt
Practices Act and similar anti-bribery laws penalize inducements to
violate laws, but they generally require some direct or indirect
payment in addition to an oral or written request. In addition,
penalizing shippers, receivers and intermediaries for words that
produce no actions, let alone violations, implicates First Amendment
considerations, as well as concerns about overkill.''
Drivers of CMVs are required to comply with all applicable
regulatory standards. Those who resist coercion do not lose the benefit
of this rule. The act of coercion is complete when the attempt is made;
it does not require success. If Congress had wished to impose limits on
the common understanding of coercion, it would have said so in 49
U.S.C. 31136(a)(5). Coercion does, however, require some kind of
threat; merely asking a driver to make a trip that would violate a
regulation would not constitute coercion. If the driver refused to make
such a trip, a further discussion of his or her response and related
issues might or might not cross the line into coercion. The answer
would depend on the substance of the conversation and the existence of
a threat, explicit or implied, to make the driver pay an economic price
for refusing to violate an FMCSA regulation.
Burden of Proof
Two trade associations, ATA and NITL, Advocates, Mr. Wayne Yoder,
who is a carrier, and four anonymous individuals commented on who
should bear the burden to prove coercion. Among these commenters, ATA
and two individuals argued that the driver should bear the burden of
proof in coercion cases. The individuals said it must be the driver's
responsibility because only the driver controls the information on his
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
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
When imposing a civil penalty for coercion, the government has the
burden of proof. The driver, however, is typically the only person in a
position to provide the critical evidence needed to sustain the action
against a carrier, shipper, receiver, or transportation intermediary.
The NPRM simply acknowledged this reality. While it may sometimes be
difficult for the driver to provide relevant evidence, as OOIDA and
others argued, there is no realistic alternative. The Agency will not
require motor carriers to record all phone conversations and other
communications with drivers, a far-reaching requirement which was not
proposed for public comment in the NPRM. FMCSA will investigate timely
complaints that meet the standards outlined in Sec. 386.12 and may be
able to locate or generate additional information, but the driver must
supply the essential facts.
There is no good reason to adopt a ``clear and convincing''
evidentiary standard for coercion cases when the ``preponderance''
standard is used for all other motor carrier enforcement actions. The
potential penalties applicable to a violation of 49 U.S.C. 31136(a)(5)
and this rule's implementing regulations are the same as those
applicable to a violation of 49 U.S.C. 31136(a)(1)-(4) and the
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.
Application to Governmental Entities
NASSTRAC commented that ``FMCSA has asserted that state and local
governments would be unaffected, as would Indian Tribal Governments.
However, Indian Tribal Governments, and state and local governments
(and federal government entities) are shippers and receivers of freight
transported by CMVs. The Department of Defense ships and receives large
volumes every year. All of these shippers would apparently have a duty
to inquire as to HOS and other compliance by every driver, even though
many probably have no idea that HOS rules even exist.''
TIA provided a similar comment: ``TIA urges the Agency . . . to
clearly define the scope of this rule to include the Department of
Defense (DOD), the General Services Administration (GSA), Port Terminal
Operators, and all other applicable entities that contract with motor
carriers to haul their specific goods along the transportation supply-
The MAP-21 prohibition on coercion amended 49 U.S.C. 31136(a), a
provision originally enacted by the MCSA. Under the MCSA, the term
``employer'' ``(A) means a person engaged in a business affecting
interstate commerce that owns or leases a commercial motor vehicle in
connection with that business, or assigns an employee to operate it;
but (B) does not include the [Federal] Government, a State, or a
political subdivision of a State.'' [49 U.S.C. 31132(3) (emphasis
added)]. MAP-21 subjected motor carriers, shippers, receivers, and
transportation intermediaries to the prohibition on coercion [Sec.
31136(a)(5)], but it did not limit the governmental exemption in Sec.
31132(3). FMCSA has no authority to apply this final rule to Federal,
State or local governmental entities. Whether a terminal operator
qualifies as a political subdivision of a State will require a case-by-
Deadline To File Coercion Complaints
OSHA recommended that the proposed 60-day filing deadline be
extended to 180 days. ``The 60-day filing period for the anti-coercion
rule would greatly limit the ability of DOT to act on valid complaints
of coercive activity that drivers have timely filed under the STAA
[i.e., 49 U.S.C. 31105, enacted by the Surface Transportation
Assistance Act of 1982 (STAA)]. Consequently, the short period
decreases the effectiveness of the statute and weakens its overall
deterrence value. The Department of Labor/OSHA has found that by
providing workers with a filing period of 180 days [as authorized by 49
U.S.C. 31105], it is able to pursue a greater number of meritorious
complaints and more fully fulfill its mandate under STAA.'' An
individual, Lisa Pate, also noted the inconsistency between FMCSA's
proposed 60-day deadline and OSHA's 180-day deadline.
OSHA recommended ``tolling of the filing deadline, in case there
are delays in transferring the allegation to the appropriate Division
Administration.'' Similarly, the Advocates wrote that ``[v]ictims of
coercion should not be time-barred from seeking an appropriate remedy
under the law for the failure of FMCSA to promptly request further
information or transfer the complaint to the appropriate Division
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.
Criteria To Evaluate Coercion Claims
OSHA commented that ``the proposed requirement that the complaint
be `non-frivolous' is overly vague and should be eliminated. The
current proposed requirement of `non-frivolity' would allow for
enormous amounts of discretion across FMCSA Divisions. Gross discretion
will undoubtedly lead to regional disparities in the enforcement of the
provision and severely limit the overall effectiveness of the
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
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
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
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
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
As for Mr. Duvall's recommendation, ``All penalties and fines
collected under this section shall be deposited into the Highway Trust
Fund (other than the Mass Transit Account)'' in the U.S. Treasury [49
U.S.C. 521(b)(10)]. The Agency cannot pay drivers the civil penalties
it collects for incidents of coercion. And unlike OSHA, FMCSA has no
authority to require the violator to compensate the driver for injuries
he or she has suffered.
Coercion as an Acute Violation
ATA argued that a violation of proposed Sec. 390.6, which
prohibits coercion, should not necessarily be classified as an acute
violation in Appendix B, section VII of Part 385, as proposed in the
NPRM. Instead, coercion should be acute, critical, or neither,
depending on the classification of the regulation the driver was
coerced to violate.
FMCSA agrees that a carrier's safety fitness should be determined
on the basis of the regulations it violates or coerces a driver to
violate. In other words, coercion itself should not be treated as acute
(or critical). The final rule therefore eliminates the NPRM's proposed
amendments to Appendix B of 49 CFR part 385. This is consistent with
the Agency's practice of limiting acute and critical classifications to
regulations which, if violated, are likely to increase the risk of
crashes. Because FMCSA currently has no data showing a link between
coercion and crashes, it seems appropriate not to classify coercion as
acute. If new data or further analysis shows such a link, the Agency
may revisit this decision. As indicated above, however, FMCSA will
impose significant penalties when reports of coercion can be proved.
Coercion of Carriers
NASSTRAC described a hypothetical situation where Shipper A hires
Carrier B to deliver a load on a reasonable schedule. However, when
Carrier B's driver arrives to pick up the load, he tells Shipper A that
he has to go off duty in a few hours under the HOS regulations, making
it impossible to meet Shipper A's delivery schedule. ``Shipper A says
in frustration, `That's the last time I use Carrier B.' Is Shipper A
subject to a penalty of up to $11,000 just for saying those words, even
if no safety violation occurs? How many penalties could Shipper A face
if it makes no more use of Carrier B?''
ATA urged ``FMCSA to consider amending the proposed definition in
section 390.5 to cover not only the driver as the target of withholding
or coercion, respectively, but also his/her employer.''
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
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
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
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  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); . . .  require the driver to break down
pallets and sort and stack freight.'' OOIDA also described situations
where drivers are held at a receiver's dock past the 14th hour after
coming on duty, and then forced to drive away from the receiver's
facility in violation of Sec. 395.3(a)(2).
While the situation OOIDA described involving a signature or
receipt was not discussed in the NPRM, withholding a delivery receipt
might be used to coerce a driver to violate the FMCSRs. A receiver that
forces a driver to leave its premises is not threatening the driver
with an adverse employment action; it is asserting its right as a
property owner to control access to the property.
Comments on Issues Outside the Scope of This Rulemaking
Fourteen commenters raised issues beyond the scope of this
rulemaking, involving lack of adequate parking; detention time and
detention pay; and various HOS provisions. Because none of these issues
was related to coercion of drivers to violate FMCSA regulations, the
Agency will not comment on them in this document.
VI. Section-by-Section Description
A. Part 386
Section 386.1, ``Scope of the rules in this part,'' is amended by
adding a new paragraph (c) referring to the filing and handling of
coercion complaints under new Sec. 386.12(e).
The NPRM's Sec. 386.12(e) is called ``Complaint of coercion.'' The
procedures to file and handle coercion complaints outlined in the NPRM
have been revised. The complaint must be filed within 90 days after the
event with the Agency's on-line National Consumer Complaint Database
(http://nccdb.fmcsa.dot.gov), or with the Division Administrator where
the driver is employed. FMCSA may reassign the complaint to the
Division Administrator best situated to investigate it. In addition,
the final rule removes a sentence included in the NPRM stating that the
Division Administrator may issue a Notice of Claim or Notice of
Violation when appropriate. Because that statement could be read as a
limitation on the Agency's enforcement options, it has been deleted.
B. Part 390
Section 390.3(a) is amended to include a reference to the coercion
provisions in Sec. 386.12(e) and Sec. 390.6, and describe the
applicability of those provisions.
Section 390.5 is amended to add definitions of ``Coerce or
coercion,'' ``Receiver or consignee,'' ``Shipper,'' and
``Transportation intermediary.'' The definitions of ``Receiver or
consignee,'' ``Shipper,'' and ``Transportation intermediary'' make
subject to the prohibition on coercion in Sec. 390.6 only when
shipping, receiving or arranging transportation of property (and in the
case of ``transportation intermediaries,'' passengers) in interstate
commerce. Although the term ``transportation intermediary'' is commonly
associated with brokers and freight forwarders, it also includes travel
agents and similar entities that arrange group tours or trips and
contract with motorcoach operators for transportation services. Such
intermediaries and their agents are subject to the prohibition on
coercion. Because the HMRs apply to transportation in intrastate
commerce, the definitions make clear that the prohibition on coercion
applies to parties that ship, receive, or arrange transportation of
hazardous materials in interstate or intrastate commerce. The NPRM's
definition of ``coerce or coercion'' has been amended (1) by removing
the reference to ``current or future'' business; (2) adding a
prohibition on ``any adverse employment action against a driver,'' and
(3) deleting references to violations of Sec. Sec. 385.105(b),
385.111(a), (c)(1), or (g), which were erroneously included.
Section 390.6(a)(1) is added to prohibit motor carriers, shippers,
receivers, or transportation intermediaries, or the agents, officers,
or representatives of such entities, from coercing drivers to operate
CMVs in violation of 49 CFR parts 171-173, 177-180, 380-383, or 390-
399, or Sec. Sec. 385.415 or 385.421. These parts correspond to the
statutory language in 49 U.S.C. 31136(a)(5). Parts 171-173 and 177-180
are the HMRs applicable to highway transportation promulgated under 49
U.S.C. chapter 51. Parts 382-383 are the commercial driver's license
(CDL) and drug and alcohol testing regulations promulgated under 49
U.S.C. chapter 313. Parts 390-399 are those portions of the FMCSRs
promulgated under the authority (partial or complete) of 49 U.S.C.
31136(a). The other parts or sections listed are based on one or more
of the statutes referenced in 49 U.S.C. 31136(a)(5).
Section 390.6(a)(2) is added to prohibit operators of CMVs or their
agents, officers, or representatives, from coercing drivers to violate
49 CFR parts 356, 360, or 365-379. This subsection is based on the
authority of 49 U.S.C. 31136(a)(1)-(4) and 49 U.S.C. 13301(a).
Section 390.6(b) describes the procedures for a driver to file a
complaint of coercion with FMCSA.
VII. Regulatory Analyses
A. Regulatory Planning and Review and DOT Regulatory Policies (E.O.
12866) and Procedures as Supplemented by E.O. 13563)
FMCSA has determined that this rule is a significant regulatory
action under E. O. 12866 (58 FR 51735, October 4, 1993), as
supplemented by E. O. 13563 (76 FR 3821, January 21, 2011), and
significant within the meaning of the DOT regulatory policies and
procedures (44 FR 11034, February 26, 1979). The estimated economic
costs of the rule will not exceed the $100 million annual threshold (as
Extent of Economic Impact
The 1982 STAA includes whistleblower protections for motor carrier
employees (49 U.S.C. 31105). OSHA, which administers the complaint
process created by section 31105, received 1,158 complaints from CMV
drivers between FY 2009 and FY 2012.\7\ OSHA found that 253 of them (22
percent) had merit.\8\ Between FY 2009 and FY 2012, the OIG hotline
received 91 complaints alleging that motor carriers had coerced or
retaliated against drivers. FMCSA determined that 20 of these
complaints had merit.\9\ The average number of verified complaints for
that 4-year period was therefore 68.25 per year [(253 + 20)/4 = 68.25].
\7\ U.S. Department of Labor, Occupational Safety & Health
Administration (OSHA), Whistleblower Protection Program:
Investigative Data Fact Sheets. Available at http://www.whistleblowers.gov/wb_data_FY05-12.pdf.
\8\ Ibid., Footnote 3.
\9\ U.S. Department of Transportation, Office of the Inspector
General (OIG). This averaged 23 complaints per year, (with 44 in
2010), which the OIG referred to FMCSA. FMCSA substantiated 20
complaints (22 percent) of violations of acute and critical
regulations due to driver allegations of unlawful discrimination or
discipline (See 29 CFR 1978.100 et seq.). Available at http://www.oig.dot.gov/Hotline.
Some unknown portion of the 253 complaints filed with OSHA during
that period almost certainly dealt with coercion or similar actions.
Even if all of them were coercion-related, this number--combined with
the 20 substantiated complaints filed with the OIG--remains small
compared to the total population of CMV drivers. Section 31105,
however, applies only to employers (basically motor carriers) while
this rule will also cover shippers, receivers, and transportation
intermediaries. The Agency is unable to estimate the number of coercion
allegations it may receive, whether triggered by actions of motor
carriers or other entities made subject to this rule by MAP-21.
In view of the small number of coercion-related complaints filed
with OSHA and DOT's OIG, the aggregate economic value to motor carriers
of these coercion-related incidents is likely to be low. Therefore, the
cost to carriers of eliminating those incidents--assuming the rule has
that effect--and incurring the higher costs of compliance, would also
be low; however, the cost of compliance with existing regulations has
already been captured in the analysis supporting the implementation of
those regulations, so we do not consider them here. We believe that the
application of this rule to shippers, receivers, brokers, freight
forwarders, and other transportation intermediaries will not
significantly increase the number of coercion complaints, since drivers
generally have more frequent and direct contacts with their employers
than with these other parties. In addition, even though the rule
applies to a larger population, FMCSA also notes that the rule should
have a deterrent effect on entities considering coercion.
The roughly 68 annual complaints noted above is the only available
estimate of coercion in the trucking industry now. This rule would be
expected to reduce the amount of coercion that takes place, but there
is no available measure of the effectiveness of the rule. The
relatively low number of complaints suggests that the overall economic
impact will be less than the $100 million threshold of economic
significance under E.O. 12866.
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
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.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of their regulatory
actions on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
as well as governmental jurisdictions with populations of less than
50,000.\10\ Accordingly, DOT policy requires an analysis of the impact
of all regulations on small entities and mandates that agencies strive
to lessen any adverse effects on these businesses.
\10\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see
National Archives at http://www.archives.gov/federal-register/laws/regulatory-flexibility/601.html.
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121,
110 Stat. 857), the rule is not expected to have a significant economic
impact on a substantial number of small entities. As indicated above,
OSHA found merit in only 253 complaints filed by CMV drivers over a 4-
year period, or about 63 per year. Even if all of the complaints were
classified as coercion-related, that number would be very small when
compared to the size of the driver population and motor carrier
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
\11\ U.S. Small Business Administration Table of Small Business
Size Standards matched to North American Industry Classification
System Codes (NAICS), See NAIC subsector 484 (Truck Transportation)
and 488 Support Activities for Transportation).effective July, 2012.
The Small Business Size Standards used in the Initial Regulatory
Flexibility Act analysis (IRFA) were released by the Small Business
Administration in January 2012. The SBA issued revised Small
Business Standards in July 2014. See downloadable PDF file at
Table 1 presents a breakdown of FMCSA's revenue estimates for the
populations in various categories. By SBA standards, the vast majority
of all businesses in the motor carrier and related industries are
``small entities.'' Although general freight transportation arrangement
firms fall under the $15 million threshold, there is an exception for
``non-vessel household goods forwarders.'' \12\ This exception
stipulates that the revenue threshold, for this sub-set of freight
forwarders in the trucking industry is $27.5 million. As indicated
above, fewer than 70 coercion complaints per year have been filed with
OSHA and FMCSA in the past few years. We have no reason to believe that
number will increase significantly under the rule. In fact, the
potential penalty for coercing a driver should have a deterrent effect.
Even if the penalty assessed might have a ``significant economic
impact,'' the limited number of recent coercion complaints suggests
that the penalty would not affect ``a substantial number of small
entities,'' given that there are nearly 500,000 firms in the industry
that qualify as small entities.
\12\ According to the 2007 Economic Census data, 2,221
establishments were classified as non-vessel common carriers. These
establishments accounted for 10.2 percent of the number of, and 5.2
percent of the annual revenue for, the total number of
establishments classified under NAICS Code 488510-Freight
Transportation Arrangement. In 2007, the average revenue for all
entities classified to NAICS Code 488510 was $1.8 million.
Therefore, the results of the analysis are the same regardless of
whether the Small Business Standard is $15 million or $27.5 million.
This rule does not affect industry productivity by requiring new
documentation, affecting labor productivity or availability, or
increasing expenditures on maintenance or new equipment. The fines,
which are the only impact (unless the carrier's operating authority is
suspended or revoked), can be avoided by not coercing drivers into
violating existing regulations. Furthermore, by regulation, the
Agency's fines are usually subject to a maximum financial penalty limit
of 2 percent of a firm's gross revenue. For the vast majority of small
firms, a fine at this level would not be ``significant'' in the sense
that it would jeopardize the viability of the firm.
The table below excludes shippers and receivers subject to the
prohibition on coercion, a group which is a large portion of the entire
U.S. population, because anyone who sends or receives a package would
be considered a shipper or receiver. However, compliance with the
prohibition on coercion of drivers is not expected to have significant
economic impact on many of them. Consequently, because they are not
expected to be in a position to coerce a driver, I certify that the
action will not have a significant economic impact on a substantial
number of small entities.
Table 1--Total Number of Entities and Determination, 2012
Type of entity Number Determination
Motor carriers (property)......... \13\ 523,239 99% below 27.5
Motor carriers (passenger)........ 12,184 99% below $15
Freight forwarders................ \16\ 14,319 97% below $27.5
Property brokers.................. 21,565 99% below $27.5
Source: Motor carrier (passenger), and property broker numbers is
updated from the Initial Regulatory Flexibility Act analysis (IRFA) to
reflect revisions reported in ``2014 Pocket Guide to Large Truck and
Bus Statistics,'' Federal Motor Carrier Administration, October 2014.
The 2014 Pocket Guide is available at http://www.fmcsa.dot.gov/safety/data-and-statistics/commercial-motor-vehicle-facts.
C. Assistance for Small Entities
\13\ Includes interstate motor carriers and intrastate hazardous
materials motor carriers.
\14\ The results show that 99 percent of all motor carriers
(property) with recent activity have 148 PUs or fewer.
\15\ The methodology used to determine the percentage of motor
carriers (property and passenger) is the same methodology described
in detail at pages 31 through 34 of the September 2014 Initial RFA
prepared for the proposed rule on Motor Carrier Safety Fitness
\16\ The number of freight forwarders reported (21,809) in the
IFRA was obtained from the U.S Census Bureau 2007 Economic Census.
The 21,809 entities are the number of establishments, not the number
of firms that operated for all or part of 2007. An establishment is
a place of business. A firm may operate out of more than one
establishment. Hence, the number of firms is a subset of the number
of establishment. In the 2007 Economic Census, 15,180 firms were
classified to NAICS Code 488510-Freight Transportation Arrangement.
The number of firms that operated for all or part of the year
accounted for 69.6 percent of establishments (15,180 / 21,809). The
product of 69.9 percent and 20,573 establishments reported the 2012
Economic Census yielded an estimated 14,319 firms in 2012. These
data are available on the Census Bureau American Fact Finder Web
site at http://factfinder.census.gov/faces/nav/jsf/pages/searchresults.xhtml?refresh=t.
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the rule
affects your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please consult the FMCSA point of contact, Mr. Charles
Medalen, listed in the FOR FURTHER INFORMATION CONTACT section of this
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the SBA's Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy ensuring the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.
D. Unfunded Mandates Reform Act of 1995
This rule will not impose an unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.),
that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $155
million (which is the value of $100 million in 2015 after adjusting for
inflation) or more in any 1 year.
E. Federalism (E.O. 13132)
A rulemaking has implications for Federalism under section 1(a) of
E.O. 13132 if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on State or local governments. FMCSA analyzed
this action in accordance with E.O. 13132. This rule does not preempt
or modify any provision of State law, impose substantial direct
unreimbursed compliance costs on any State, or diminish the power of
any State to enforce its own laws. FMCSA has determined that this rule
will not have substantial direct costs on or for States nor will it
limit the policymaking discretion of States. Accordingly, this
rulemaking does not have Federalism implications.
F. Civil Justice Reform (E.O. 12988)
This rule meets applicable standards in sections 3(a) and 3(b) (2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
G. Protection of Children (E.O. 13045)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, the Agency does not anticipate that this
regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
H. Taking of Private Property (E.O. 12630)
FMCSA reviewed this rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have takings implications.
I. Privacy Impact Assessment
FMCSA conducted a privacy impact assessment (PIA) of this rule as
required by section 522(a)(5) of division H of the FY 2005 Omnibus
Appropriations Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004).
The assessment considered impacts of the final rule on the privacy of
information in an identifiable form and related matters. The final rule
will impact the handling of personally identifiable information (PII).
FMCSA has evaluated the risks and effects the rulemaking might have on
collecting, storing, and sharing PII and has evaluated protections and
alternative information handling processes in developing the final rule
in order to mitigate potential privacy risks.
For the purposes of both transparency and efficiency, the privacy
analysis conforms to the DOT standard Privacy Impact Assessment (PIA)
and will be published on the DOT Web site at www.dot.gov/privacy
concurrently with the publication of the rule. The PIA addresses the
rulemaking, associated business processes contemplated in the rule and
any information known about the systems or existing systems to be
implemented in support of the final rulemaking. A PIA for the Coercion
NPRM was previously developed and is
currently available to the public on the DOT Web site at www.dot.gov/privacy. The PIA has been reviewed, and revised as appropriate, to
reflect the final rule and will be published not later than the date on
which the Department initiates any of the activities contemplated in
the Final Rule determined to have an impact on individuals' privacy and
not later than the date on which the system (if any) supporting
implementation of the Final Rule is updated.
As required by the Privacy Act, FMCSA and the Department will
publish, with request for comment, a revised system of records notice
(SORN) that will cover the collection of information that is affected
by this final rule. Since coercion complaints will be stored in the
National Consumer Complaint Database (NCCDB), the SORN for the NCCDB
(DOT/FMCSA 004--National Consumer Complaint Database (NCCDB)--75 FR
27051--May 13, 2010) will be revised to reflect the new collection of
information and published in the Federal Register not less than 30 days
before the Agency is authorized to collect or use PII retrieved by
unique identifier. Additionally, FMCSA will revise the PIA for NCCDB
(formally the Safety Violations and Household Goods Consumer Complaint
Hotline Database) posted on June 6, 2006 and an updated PIA will be
available to the public on the DOT Web site at www.dot.gov/privacy.
The privacy risks and effects associated with the cases resulting
from this rule are not unique and have previously been addressed by the
enforcement case file storage requirements in the Electronic Document
Management System (EDMS) PIA posted on June 6, 2006 and the DOT/FMCSA
005--Electronic Document Management System SORN (71 FR 35727) published
on June 21, 2006.
J. Intergovernmental Review (E.O. 12372)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
K. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the OMB for each
collection of information they conduct, sponsor, or require through
regulations. Information submitted by drivers alleging coercion is
exempt from PRA requirements because it is collected pursuant to ``an
administrative action or investigation involving an agency against
specific individuals or entities'' [44 U.S.C. 3518(c)(1)(B)(ii)].
L. National Environmental Policy Act and Clean Air Act
FMCSA analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). FMCSA
conducted an environmental assessment and determined that the rule has
the potential for minor environmental impacts. Based on the limited
data FMCSA has concerning the extent of the affected CMV driver
population, these impacts would be very small and FMCSA does not expect
any significant impacts to the environment from this rule. The
environmental assessment has been placed in the rulemaking docket.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. The additional contributions to air
emissions from any of the alternatives are expected to fall below the
CAA de minimis thresholds as per 40 CFR 93.153 and are, therefore, not
expected to be subject to the Environmental Protection Agency's General
Conformity Rule (40 CFR parts 51 and 93).
M. Environmental Justice (E.O. 12898)
FMCSA evaluated the environmental effects of this rule in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor is
there any collective environmental impact resulting from its
promulgation. Environmental justice issues would be raised if there
were a ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. None of the alternatives analyzed in the
Agency's EA, discussed under National Environmental Policy Act, would
result in high and adverse environmental impacts.
N. Energy Supply, Distribution, or Use (E.O. 13211)
FMCSA has analyzed this rule under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. The Agency has determined that it is not a ``significant energy
action'' under that order because it is not a ``significant regulatory
action'' likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, it does not require a
Statement of Energy Effects under E.O. 13211.
O. Indian Tribal Governments (E.O. 13175)
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
P. National Technology Transfer and Advancement Act (Technical
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This rule does not use
technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
List of Subjects
49 CFR Part 386
Administrative practice and procedures, Brokers, Freight
forwarders, Hazardous materials transportation, Highway safety, Motor
carriers, Motor vehicle safety, Penalties.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, FMCSA amends parts 386 and
390 in 49 CFR chapter III, subchapter B, as follows:
PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS
1. The authority citation for part 386 continues to read as follows:
Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149,
311, 313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49
U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767;
Sec. 206, Pub. L.
106-159, 113 Stat.1763; subtitle B, title IV of Pub. L. 109-59; and
49 CFR 1.81 and 1.87.
2. Revise the heading of part 386 as set forth above.
3. Amend Sec. 386.1 by revising paragraph (a) and adding paragraph (c)
to read as follows:
Sec. 386.1 Scope of the rules in this part.
(a) Except as indicated in paragraph (c) of this section, the rules
in this part govern proceedings before the Assistant Administrator, who
also acts as the Chief Safety Officer of the Federal Motor Carrier
Safety Administration (FMCSA), under applicable provisions of the
Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350-
399), including the commercial regulations (49 CFR parts 360-379), and
the Hazardous Materials Regulations (49 CFR parts 171-180).
* * * * *
(c) The rules in Sec. 386.12(e) govern the filing by a driver and
the handling by the appropriate Division Administrator of complaints of
coercion in violation of Sec. 390.6 of this subchapter.
4. Amend Sec. 386.12 as follows:
a. Revise the section heading;
b. Add and reserve paragraph (d); and
c. Add paragraph (e).
Sec. 386.12 Complaints.
* * * * *
(e) Complaint of coercion. (1) A driver alleging a violation of
Sec. 390.6(a)(1) or (2) of this subchapter must file a written
complaint with FMCSA stating the substance of the alleged coercion no
later than 90 days after the event. The written complaint, including
the information described below, must be filed with the National
Consumer Complaint Database at http://nccdb.fmcsa.dot.gov or the FMCSA
Division Administrator for the State where the driver is employed. The
Agency may refer a complaint to another Division Administrator who the
Agency believes is best able to handle the complaint. Information on
filing a written complaint may be obtained by calling 1-800-DOT-SAFT
(1-800-368-7238). Each complaint must be signed by the driver and must
(i) The driver's name, address, and telephone number;
(ii) The name and address of the person allegedly coercing the
(iii) The provisions of the regulations that the driver alleges he
or she was coerced to violate; and
(iv) A concise but complete statement of the facts relied upon to
substantiate each allegation of coercion, including the date of each
(2) Action on complaint of coercion. Upon the filing of a complaint
of coercion under paragraph (e)(1) of this section, the appropriate
Division Administrator shall determine whether the complaint is non-
frivolous and meets the requirements of paragraph (e)(1).
(i) If the Division Administrator determines that the complaint is
non-frivolous and meets the requirements of paragraph (e)(1) of this
section, he/she shall investigate the complaint. The complaining driver
shall be timely notified of findings resulting from such investigation.
The Division Administrator shall not be required to conduct separate
investigations of duplicative complaints.
(ii) If the Division Administrator determines the complaint is
frivolous or does not meet the requirements of paragraph (e)(1) of this
section, he/she shall dismiss the complaint and notify the driver in
writing of the reasons for such dismissal.
(3) Protection of complainants. Because prosecution of coercion in
violation of Sec. 390.6 of this subchapter will require disclosure of
the driver's identity, the Agency shall take every practical means
within its authority to ensure that the driver is not subject to
harassment, intimidation, disciplinary action, discrimination, or
financial loss as a result of such disclosure. This will include
notification that 49 U.S.C. 31105 includes broad employee protections
and that retaliation for filing a coercion complaint may subject the
alleged coercer to enforcement action by the Occupational Safety and
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
5. Revise the authority citation for part 390 to read as follows:
Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144,
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678;
sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767;
sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended
by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-
1744), sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; and 49 CFR
1.81, 1.81a and 1.87.
6. Revise Sec. 390.3(a) to read as follows:
Sec. 390.3 General applicability.
(a)(1) The rules in subchapter B of this chapter are applicable to
all employers, employees, and commercial motor vehicles that transport
property or passengers in interstate commerce.
(2) The rules in 49 CFR 386.12(e) and 390.6 prohibiting the
coercion of drivers of commercial motor vehicles operating in
(i) To violate certain safety regulations are applicable to all
motor carriers, shippers, receivers, and transportation intermediaries;
(ii) To violate certain commercial regulations are applicable to
all operators of commercial motor vehicles.
* * * * *
7. Amend Sec. 390.5 by adding definitions of ``Coerce or Coercion,''
``Receiver or consignee,'' ``Shipper,'' and ``Transportation
intermediary,'' in alphabetical order, to read as follows:
Sec. 390.5 Definitions.
* * * * *
Coerce or Coercion means either--
(1) A threat by a motor carrier, shipper, receiver, or
transportation intermediary, or their respective agents, officers or
representatives, to withhold business, employment or work opportunities
from, or to take or permit any adverse employment action against, a
driver in order to induce the driver to operate a commercial motor
vehicle under conditions which the driver stated would require him or
her to violate one or more of the regulations, which the driver
identified at least generally, that are codified at 49 CFR parts 171-
173, 177-180, 380-383, or 390-399, or Sec. Sec. 385.415 or 385.421, or
the actual withholding of business, employment, or work opportunities
or the actual taking or permitting of any adverse employment action to
punish a driver for having refused to engage in such operation of a
commercial motor vehicle; or
(2) A threat by a motor carrier, or its agents, officers or
representatives, to withhold business, employment or work opportunities
or to take or permit any adverse employment action against a driver in
order to induce the driver to operate a commercial motor vehicle under
conditions which the driver stated would require a violation of one or
more of the regulations, which the driver identified at least
generally, that are codified at 49 CFR parts 356, 360, or 365-379, or
the actual withholding of business, employment or work opportunities or
the actual taking or permitting of any adverse employment action to
punish a driver for refusing to engage in such operation of a
commercial motor vehicle.
* * * * *
Receiver or consignee means a person who takes delivery from a
motor carrier or driver of a commercial motor vehicle of property
transported in interstate commerce or hazardous materials
transported in interstate or intrastate commerce.
* * * * *
Shipper means a person who tenders property to a motor carrier or
driver of a commercial motor vehicle for transportation in interstate
commerce, or who tenders hazardous materials to a motor carrier or
driver of a commercial motor vehicle for transportation in interstate
or intrastate commerce.
* * * * *
Transportation intermediary means a person who arranges the
transportation of property or passengers by commercial motor vehicle in
interstate commerce, or who arranges the transportation of hazardous
materials by commercial motor vehicle in interstate or intrastate
commerce, including but not limited to brokers and freight forwarders.
* * * * *
8. Add Sec. 390.6 to read as follows:
Sec. 390.6 Coercion prohibited.
(a) Prohibition. (1) A motor carrier, shipper, receiver, or
transportation intermediary, including their respective agents,
officers, or representatives, may not coerce a driver of a commercial
motor vehicle to operate such vehicle in violation of 49 CFR parts 171-
173, 177-180, 380-383 or 390-399, or Sec. Sec. 385.415 or 385.421;
(2) A motor carrier or its agents, officers, or representatives,
may not coerce a driver of a commercial motor vehicle to operate such
vehicle in violation of 49 CFR parts 356, 360, or 365-379.
(b) Complaint process. (1) A driver who believes he or she was
coerced to violate a regulation described in paragraph (a)(1) or (2) of
this section may file a written complaint under Sec. 386.12(e) of this
(2) A complaint under paragraph (b)(1) of this section shall
describe the action that the driver claims constitutes coercion and
identify the regulation the driver was coerced to violate.
(3) A complaint under paragraph (b)(1) of this section may include
any supporting evidence that will assist the Division Administrator in
determining the merits of the complaint.
Issued under the authority of delegation in 49 CFR 1.87 on:
November 23, 2015.
T.F. Scott Darling, III,
[FR Doc. 2015-30237 Filed 11-27-15; 8:45 am]
BILLING CODE 4910-EX-P
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