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Prohibiting Coercion of Commercial Motor Vehicle Drivers

American Government Special Collections Reference Desk

American Government

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]
[Pages 74695-74710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30237]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 386 and 390

[Docket No. FMCSA-2012-0377]
RIN 2126-AB57


Prohibiting Coercion of Commercial Motor Vehicle Drivers

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

ACTION: Final rule.

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SUMMARY: FMCSA adopts regulations that prohibit motor carriers, 
shippers, receivers, or transportation intermediaries from coercing 
drivers to operate commercial motor vehicles (CMVs) in violation of 
certain provisions of the Federal Motor Carrier Safety Regulations 
(FMCSRs)--including drivers' hours-of-service limits; the commercial 
driver's license (CDL) regulations; drug and alcohol testing rules; and 
the Hazardous Materials Regulations (HMRs). In addition, the rule 
prohibits anyone who operates a CMV in interstate commerce from 
coercing a driver to violate the commercial regulations. This rule 
includes procedures for drivers to report incidents of coercion to 
FMCSA, establishes rules of practice that the Agency will follow in 
response to reports of coercion, and describes penalties that may be 
imposed on entities found to have coerced drivers. This rulemaking is 
authorized by section 32911 of the Moving Ahead for Progress in the 
21st Century Act (MAP-21) and the Motor Carrier Safety Act of 1984 
(MCSA), as amended.

DATES: This final rule is effective January 29, 2016.
    Petitions for Reconsideration of this final rule must be submitted 
to FMCSA Administrator no later than December 30, 2015.

ADDRESSES: 

Availability of Rulemaking Documents

    For access to docket FMCSA-2012-0377 to read background documents 
and comments received, go to http://www.regulations.gov at any time, or 
to Docket Services at U.S. Department of Transportation, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Regulatory 
Affairs Division, Office of Chief Counsel, (202) 493-0349. FMCSA office 
hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Abbreviations and Acronyms
II. Executive Summary
III. Legal Basis for This Rulemaking
IV. Background
V. Discussion of Comments
VI. Section-by-Section Description
VII. Regulatory Analyses

I. Abbreviations and Acronyms

CDL Commercial Driver's License
CMV Commercial Motor Vehicle
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations

[[Page 74696]]

HOS Hours of Service
HMRs Hazardous Materials Regulations
ICC Interstate Commerce Commission
MAP-21 Moving Ahead for Progress in the 21st Century Act
MCSA or 1984 Act Motor Carrier Safety Act of 1984
NAICS North American Industry Classification System
OIG Office of Inspector General
OSHA Occupational Safety and Health Administration
SBA Small Business Administration
STAA Surface Transportation Assistance Act of 1982

II. Executive Summary

Purpose and Summary of the Major Provisions

    Congress required FMCSA to ensure that the regulations adopted 
pursuant to the MCSA, as amended by MAP-21, do not result in coercion 
of drivers by motor carriers, shippers, receivers, or transportation 
intermediaries to operate CMVs in violation of certain provisions of 
the FMCSRs and the HMRs.
    The major provisions of this rule include prohibitions of coercion, 
procedures for drivers to report incidents of coercion to FMCSA, and 
rules of practice that the Agency will follow in response to reports of 
coercion.

Benefits and Costs

    The FMCSA believes that this rule will not have an economically 
significant impact. The motor carriers, shippers, receivers, freight 
forwarders, brokers and transportation intermediaries that previously 
engaged in acts of coercion against truck or bus drivers will incur 
compliance costs to operate in accordance with the regulations, and 
they will lose whatever economic benefit coercion provided; however, 
the cost of compliance with existing regulations has already been 
captured in the analysis supporting the implementation of those 
regulations, so we do not consider them here. There will be safety 
benefits from increased compliance with the regulations and driver 
health benefits if HOS violations decrease. In the absence of coercion, 
the drivers will conduct their safety-sensitive work in a manner 
consistent with the applicable Federal regulations. During the four-
year period from 2009 through 2012, OSHA determined that 253 
whistleblower complaints from CMV drivers had merit. In the same 
period, FMCSA validated 20 allegations of motor carrier coercion of 
drivers that were filed with DOT's OIG. This is an average of 68.25 
acts of coercion per year during the four-year period. The Agency 
estimates that the cost of eliminating this level of coercion would be 
less than the $100 million threshold required for economic significance 
under E.O. 12866.

III. Legal Basis for This Rulemaking

    This rule is based on the authority of MCSA [49 U.S.C. 31136(a)], 
as amended by MAP-21 [Pub. L. 112-141, section 32911, 126 Stat. 405, 
818, July 6, 2012] and on 49 U.S.C. 13301(a), as amended by the ICC 
Termination Act of 1995 [Pub. L. 104-88, 109 Stat. 803, December 29, 
1995].
    The 1984 Act confers on DOT authority to regulate drivers, motor 
carriers, and vehicle equipment. The 1984 Act stated that at a minimum, 
the regulations shall ensure that--(1) commercial motor vehicles are 
maintained, equipped, loaded, and operated safely; (2) the 
responsibilities imposed on operators of commercial motor vehicles do 
not impair their ability to operate the vehicles safely; (3) the 
physical condition of operators of commercial motor vehicles is 
adequate to enable them to operate the vehicles safely; and (4) the 
operation of commercial motor vehicles does not have a deleterious 
effect on the physical condition of the operators [49 U.S.C. 31136(a)].
    Section 32911 of MAP-21 enacted a fifth requirement, i.e., that the 
regulations ensure that ``(5) an operator of a commercial motor vehicle 
is not coerced by a motor carrier, shipper, receiver, or transportation 
intermediary to operate a commercial motor vehicle in violation of a 
regulation promulgated under this section, or chapter 51 or chapter 313 
of this title'' [49 U.S.C. 31136(a)(5)].
    The 1984 Act also includes more general authority to ``(10) perform 
other acts the Secretary considers appropriate'' [49 U.S.C. 
31133(a)(10)].
    This rule includes two separate prohibitions. One prohibits motor 
carriers, shippers, receivers, or transportation intermediaries from 
coercing drivers to violate regulations based on section 31136 (which 
is the authority for many parts of the FMCSRs), 49 U.S.C. chapter 313 
(the authority for the commercial driver's license (CDL) and drug and 
alcohol regulations), and 49 U.S.C. chapter 51 (the authority for the 
HMRs). This is required by 49 U.S.C. 31136(a)(5).
    A second provision prohibits entities that operate CMVs in 
interstate commerce from coercing drivers to violate the commercial 
regulations. As explained more fully below, this provision is based on 
the broad general authority of 49 U.S.C. 31136(a)(1)-(4), especially 
paragraphs (a)(1) and (2). Banning coercion to violate the safety-
related commercial regulations is well within the scope of section 
31136(a)(1)-(4). Applying the same ban to commercial provisions that 
are not immediately related to safety is nonetheless consistent with 
the goals of section 31136 and will help to inhibit the growth of a 
culture of indifference to regulatory compliance, a culture known to 
contribute to unsafe CMV operations. Banning coercion to violate the 
commercial regulations is also within the broad authority transferred 
from the former ICC to prescribe regulations to carry out Part B of 
Subtitle IV of Title 49, United States Code (49 U.S.C. 13301(a)). This 
prohibition applies to operators of CMVs, which are mainly motor 
carriers, but not to shippers, receivers, or transportation 
intermediaries, since they are not subject to section 31136(a)(1)-(4) 
or section 13301.
    Together, these two provisions cover most kinds of coercion drivers 
might encounter.
    This rule also adopts procedures for drivers to report coercion and 
rules of practice the Agency will follow in addressing such reports.
    FMCSA believes the reduction of regulatory violations caused by 
coercion will prove conducive to improved driver health and well-being, 
consistent with the objectives of section 31136(a)(2)-(4).
    Before prescribing any regulations, FMCSA must consider their 
``costs and benefits'' [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those 
factors are discussed in this rule.

IV. Background

    Section 32911 of MAP-21 is the most recent example of Congress' 
recognition of the important role the public plays in highway safety. 
In the 1980s, Congress implemented new financial responsibility 
requirements for motor carriers of property and passengers to encourage 
the insurance industry to exercise greater scrutiny over the operations 
of motor carriers as one method to improve safety oversight (section 30 
of the Motor Carrier Act of 1980 (Pub. L. 96-296) and section 18 of the 
Bus Regulatory Reform Act of 1982 (Pub. L. 97-261)).
    Section 32911 of MAP-21 represents a similar congressional decision 
to expand the reach of motor carrier safety regulations from the supply 
side (the drivers and carriers traditionally regulated by the Federal 
government) to the demand side--the shippers, receivers, brokers, 
freight forwarders, travel groups and others that hire motor carriers 
to provide transportation and

[[Page 74697]]

whose actions have an impact on CMV safety.
    Economic pressure in the motor carrier industry affects commercial 
drivers in ways that can adversely affect safety. For years, drivers 
have voiced concerns that other parties in the logistics chain are 
frequently indifferent to the operational limits imposed on them by the 
FMCSRs. Allegations of coercion were submitted in the docket for the 
Agency's 2010-2011 HOS rulemaking.\1\ Also, drivers and others who 
testified at FMCSA listening sessions and before Congress said that 
some motor carriers, shippers, receivers, tour guides, and brokers 
insist that a driver deliver a load or passengers on a schedule that 
would be impossible to meet without violating the HOS or other 
regulations. Drivers may also be pressured to operate vehicles with 
mechanical deficiencies, despite the restrictions imposed by the safety 
regulations. Drivers who object that they must comply with the FMCSRs 
are sometimes told to get the job done despite the restrictions imposed 
by the safety regulations. The consequences of their refusal to do so 
are either stated explicitly or implied in unmistakable terms: Loss of 
a job, denial of subsequent loads, reduced payment, denied access to 
the best trips, etc.
---------------------------------------------------------------------------

    \1\ See 76 FR 81162.
---------------------------------------------------------------------------

    Although sec. 32911 of MAP-21 amended 49 U.S.C. 31136(a), it did 
not amend the jurisdictional definitions in 49 U.S.C. 31132, which 
specify the reach of FMCSA's authority to regulate motor carriers, 
drivers, and CMVs. Thus, it appears that Congress did not intend to 
apply all of the FMCSRs to shippers, receivers, and transportation 
intermediaries that are not now subject to those requirements. (Motor 
carriers, of course, have always been subject to the FMCSRs.) Instead, 
sec. 32911 prohibited these entities from coercing drivers to violate 
most of the FMCSRs. This necessarily confers upon FMCSA the 
jurisdiction over shippers, receivers, and transportation 
intermediaries necessary to enforce that prohibition.
    Although MAP-21 did not address coercion to violate the commercial 
regulations that the Agency inherited in the ICC Termination Act of 
1995, FMCSA is adopting a rule in order to ensure that there is no 
significant gap in the applicability of the coercion prohibition. As 
discussed above in the Legal Basis section, the MCSA gives the Agency 
broad authority to ensure that CMVs are maintained, equipped, loaded, 
and operated safely, and that the responsibilities imposed on drivers 
do not impair their ability to operate CMVs safely [49 U.S.C. 
31136(a)(1)-(2)]. Some of the commercial regulations have effects 
related to safety. Designation of a process agent under 49 CFR part 366 
ensures that parties injured in a CMV crash can easily serve legal 
documents on the carrier operating the CMV, wherever the location of 
its corporate offices. Registration as a for-hire motor carrier under 
49 CFR part 365, or as a broker under 49 CFR part 371, ensures that an 
applicant has met the minimum standards for safe and responsible 
operations. Coercion of drivers to violate requirements such as these 
could have an effect on their ability to operate CMVs safely, e.g., 
requiring a driver to operate a vehicle in interstate commerce when the 
owner had neither obtained operating authority registration from FMCSA 
nor filed proof of insurance.
    The minimum requirement to obtain FMCSA authority to operate as a 
for-hire motor carrier, freight forwarder, or broker under 49 U.S.C. 
13902, 13903, or 13904, respectively, is willingness and ability to 
comply with ``this part and the applicable regulations of the Secretary 
. . . .'' Among those ``applicable regulations'' are this rule's ban on 
coercing drivers to violate the commercial regulations. For-hire motor 
carriers are subject to an even more explicit requirement to observe 
``any safety regulations imposed by the Secretary'' [49 U.S.C. 
13902(a)(1)(B)(i)], including Sec.  390.6(a)(2). Moreover, independent 
of MAP-21, FMCSA has statutory authority under 49 U.S.C. 13301(a), 
formerly vested in the ICC, to prescribe regulations to carry out 
chapter 139 and the rest of Part B of Subtitle IV of Title 49. The 
prohibition on coercing drivers to violate the commercial regulations 
is within the scope of this authority.
    Because both of the coercion prohibitions described above are based 
on 49 U.S.C. 31136(a), codified in subchapter III of chapter 311, 
violations of those rules would be subject to the civil penalties in 49 
U.S.C. 521(b)(2)(A), which provides that any person who is determined 
by the Secretary, after notice and opportunity for a hearing, to have 
committed an act that is a violation of the regulations issued by the 
Secretary under subchapter III of chapter 311 (except sections 31138 
and 31139 \2\) or section 31502 of this title shall be liable to the 
United States for a civil penalty in an amount not to exceed $10,000 
for each offense.
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    \2\ Sections 31138 and 31139 prescribe minimum financial 
responsibility standards for the transportation of passengers and 
property, respectively.
---------------------------------------------------------------------------

    However, pursuant to the Debt Collection Improvement Act of 1996 
[Pub. L. 104-134, title III, chapter 10, sec. 31001(s), 110 Stat. 1321-
373], the maximum inflation-adjusted civil penalty per offense is 
$16,000 (49 CFR part 386, App. B, Paragraph (a)(3)).

V. Discussion of Comments

Overview

    On May 13, 2014, the Agency published a notice of proposed 
rulemaking (NPRM) (79 FR 27265) to implement the MAP-21 prohibition of 
coercion.
    Between May 13 and September 4, 2014, 94 submissions were posted to 
the docket. One of the submissions was a duplicate,\3\ and three were 
non-responsive,\4\ leaving 90 submissions from the following:
---------------------------------------------------------------------------

    \3\ Submission number 0080 is a duplicate of number 0089.
    \4\ Submission numbers 0010, 0015, and 0016.
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     One Federal agency: OSHA.
     Six motor carriers: Kimberly Arnold, Louisiana Transport, 
Inc., Mason/Dixon Lines, Inc., Schneider National, Inc., Wayne Yoder, 
one anonymous company, and the Motor Carrier Coalition comprised of 12 
additional motor carriers.
     Ten industry associations: American Trucking Associations 
(ATA), Association of Independent Property Brokers & Agents (AIPBA), 
Institute of Makers of Explosives (IME), National Customs Brokers and 
Forwarders Association of America, Inc.(NCBFAA), National Grain and 
Feed Association (NGFA), National Industrial Transportation League (NIT 
League), National Shippers Strategic Transportation Council, Inc. 
(NASSTRAC), Owner-Operator Independent Drivers Association, Inc. 
(OOIDA), Snack Food Association, and Transportation Intermediaries 
Association (TIA).
     Two advocacy organizations: Advocates for Highway and Auto 
Safety (Advocates) and Road Safe America.
     One labor union: Transportation Trades Department, AFL-CIO 
(TTD).
     One transportation intermediary: Armada.
     One commercial carrier consultant: Richard Young; and
     67 individuals including 15 who self-identified as drivers 
and 2 owner operators.

Comments Supporting the Rulemaking

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

[[Page 74698]]

support for the proposed rule. Road Safe America and Advocates support 
the Agency's efforts to end the practice of coercion, but Advocates 
recommended that FMCSA take additional steps, such as investigating all 
reported incidents of coercion, and exercise its authority to suspend 
the registration of those that engage in documented instances of 
coercion. ATA and AIPBA support prohibiting coercion, but expressed 
reservations about the potential impact the proposed rule would have on 
commercial relations between motor carriers and shippers, receivers, 
and intermediaries. OSHA, which is responsible for enforcing the 
whistleblower protection provisions of the Surface Transportation 
Assistance Act of 1981 (STAA) and 21 other statutes, supports the 
proposal and offered suggestions to make it more effective. TTD, a 
driver, an owner-operator, and seven individuals expressed strong 
support for the NPRM. Many of these commenters stated that the rule 
would finally make shippers, receivers and transportation 
intermediaries accountable for their actions.

Comments in Opposition to the Rulemaking

    Eighteen commenters, including nine individuals, seven trade 
associations and two drivers expressed their general disapproval of the 
NPRM. Many of these commenters stated that they agree with FMCSA that 
CMV drivers should not be coerced into violating any laws or 
regulations; however, they believe the requirements proposed in the 
NPRM will lead to unintended consequences. Several commenters stated 
there is no need for this regulation because existing regulations 
already prohibit coercion. Three trade associations contend that the 
NPRM misapplies the legal doctrine of respondeat superior \5\ in 
attempting to hold shippers and receivers legally responsible for 
drivers that they do not hire, direct or manage. NASSTRAC stated the 
proposed rules are ``arbitrary and capricious, contrary to law, 
impracticable and certain to do more harm than good.'' Another 
commenter argued that the Agency has not accurately assessed the cost 
of these requirements, and expressed concern that the complaint 
reporting process is highly subjective. Two drivers wrote that new 
regulations are not necessary; instead drivers need to stand up to 
anyone trying to coerce them into violating the rules. Two individuals 
commented that this NPRM does not impose any new requirements on 
shippers or receivers that will prevent them from detaining a driver 
for hours and then requiring the driver to leave the property even if 
the driver is out of hours.
---------------------------------------------------------------------------

    \5\ `Respondeat superior' is a legal concept meaning that an 
employer is responsible for the wrongful acts of its employees or 
agents who are acting within the scope of their employment or 
agency.
---------------------------------------------------------------------------

FMCSA Response

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

Definition of Coercion

    OSHA commented that ``coercion is broader than just threats related 
to loss of work, future business, or other economic opportunities. 
Coercion and coercive tactics may also include threats of violence, 
demotion, reduction of pay, and withdrawal or reduction of benefits, or 
any action that is capable of dissuading a reasonable employee from 
engaging in whistleblowing activity.'' OSHA therefore recommended that 
the proposed definition of coercion, which referred to ``a threat . . . 
to withhold, or the actual withholding of, current or future business, 
employment, or work opportunities from a driver . . .'' be amended to 
refer to ``a threat . . . to take or permit any adverse employment 
action against a driver . . .''
    NCBFAA pointed out that if a shipper, receiver, or transportation 
intermediary discovered an ``HOS issue--which would likely only be the 
case because the driver happened to say something about it--any 
decision to refuse to tender the shipment could be construed as 
violating the proposed regulation. For then, it would be knowingly 
`withholding . . . work opportunities from a driver' when it `knew' the 
driver was unable to lawfully handle the load. In that case, because 
the motor carrier elected to dispatch a driver that could not lawfully 
handle the load, the cargo would not be able to move until such time as 
the driver in question was again able to operate the equipment.'' ``The 
NCBFAA believes that where a shipper or transportation intermediary 
learns that a driver may not haul a load because he/she does not have 
the available hours, it should be able to freely advise the trucker of 
the situation so it can provide another driver who does have available 
hours to complete the haul in a timely manner. Alternatively, the 
shipper/transportation intermediary should be able to use another 
carrier entirely, particularly one that is sufficiently responsible and 
knowledgeable about the status of its drivers.''
    TIA made the same point. ``Read literally, the definition would now 
make it a violation for a shipper or transportation intermediary to 
refuse a load to a driver if it `knew or should have known' that the 
driver was about to exceed or already had exceeded the HOS regulations. 
Yet, the shipper or transportation intermediary could not properly 
request that the driver perform the transportation, as it would then be 
both `coercing' the driver and aiding and abetting the HOS violation. 
So, if a driver assigned by a motor carrier shows up to pick up a load 
and advises the shipper or transportation intermediary that he or she 
cannot lawfully handle the load due to HOS or other concerns, the 
shipper or transportation intermediary would not be able to contact the 
carrier and request that they replace the driver. Instead the load 
would just sit. This is a catch 22 . . .''
    NIT League offered a similar comment. ``If a shipper attempts to 
confirm a delivery appointment with the driver, does that equate to 
directing `a driver to complete a run in a certain time'? It may not in 
the mind of the shipper but what if the driver has a different 
interpretation? If the driver objects to meeting that appointment due 
to HOS rules and the shipper gives the load to another carrier who can 
timely make the delivery, does that loss of business equate to 
coercion? What if the driver associates the selection of an alternative 
carrier with its objection but the shipper simply needed to meet its 
delivery requirements? The answers to these questions are far from 
clear. . . . [T]he League suggests that FMCSA modify its proposal to 
require the driver to inform the shipper of the potential safety 
violation at the time he/she lodges the objection and to promptly 
record the alleged coercion event. Specifically, the League suggests 
that FMCSA require a driver who is concerned about violating a safety 
rule to take the following steps before accepting the load: (1) Clearly 
articulate the objection to the allegedly coercing party and such 
objection must identify the specific FMCSA regulation that will be 
violated; and (2) record in a contemporaneous writing his/her objection 
and the facts and circumstances associated with the alleged coercion 
incident.''
    ATA also recommended ``that the rule require a driver alleging 
coercion to make the objection at a time contemporaneous with the 
incident in a writing that identifies the regulation(s) that would be 
violated if the driver operated the CMV.''

[[Page 74699]]

FMCSA Response

    FMCSA has revised and clarified the NPRM's definition of 
``coercion.'' Readers may find it helpful to keep in mind the new 
definition (see Sec.  390.5) as they review the Agency's response to 
specific comments.
    Although the language proposed by OSHA is similar to that used in 
the NPRM, FMCSA agrees that OSHA's recommendation would clarify the 
intended scope of the definition. The Agency has therefore included the 
phrase ``take or permit any adverse employment action,'' which has the 
added benefit of resolving other concerns about the definition.
    The NCBFAA, TIA, and NIT League comments correctly identified an 
unintended consequence of the proposed definition of ``coercion.'' 
Obviously, a shipper or transportation intermediary should not be 
liable for withholding a load from a driver who has stated that he or 
she could not make the trip without violating the FMCSRs. In that 
situation, both the driver and the shipper or transportation 
intermediary are acting appropriately. The Agency has therefore amended 
the reference to the withholding of ``current or future business, 
employment, or work opportunities'' by striking the reference to 
``current or future'' business and adding the phrase ``take or permit 
any adverse employment action.'' The revised definition thus allows the 
shipper or transportation intermediary to take either of the actions 
that NCBFAA proposed without violating the rule, i.e., to call the 
motor carrier and request another driver or to give the load to a 
different motor carrier. Neither action would attempt to force a driver 
to violate the FMCSRs, nor would it involve a threat to take other 
adverse employment action against the driver.
    The removal of the word ``current'' resolves most of the TIA's and 
NIT League's concerns. There is no coercion to violate the FMCSRs when 
a shipper gives a load to another carrier after the original driver 
states that he or she cannot meet the requested delivery schedule 
without an HOS or other violation. On the contrary; that change of 
carriers is an attempt to ensure that no such regulatory violation 
occurs.
    The Agency has also revised the definition of ``coercion'' to 
require the driver to identify ``at least generally'' the rules that he 
or she would have to violate in the course of the delivery. FMCSA is 
not requiring drivers to ``identify the specific FMCSA regulation that 
will be violated,'' as the NIT League and ATA requested. The FMCSRs are 
complex and drivers cannot be expected to have full command of 
regulatory citations. Nonetheless, the driver must be able to identify 
the problem clearly enough to enable FMCSA personnel to determine that 
it falls within a requirement or prohibition of the Agency's 
regulations. It will be sufficient, for example, if the driver 
indicates that he or she objects to a particular trip because of an HOS 
problem (``they told me to keep driving even when I hit 11 hours''), a 
maintenance issue (``the last inspection certificate was 3 years 
old''), or bad tires (``there was no tread on the front tires; I could 
see the ply in a couple of places'').
    Similarly, the Agency will not require the driver to record his 
objection in ``a contemporaneous writing.'' On the other hand, if the 
shipper or transportation intermediary attempts to coerce the driver to 
take the load after hearing the objection, it would be in the driver's 
best interests to document that attempt as soon as practicable.

Additional Burdens Created by Rule

    Many of the commenters believe shippers would have to adopt 
extensive and burdensome procedures to comply with the proposed rule. 
NASSTRAC wrote that ``[t]he aspect of the proposed rules that will cost 
the most (far more than the zero dollars FMCSA projects), and which is 
most contrary to established law, is the `duty to inquire.' . . . It 
remains the case that every shipper would have to discuss HOS status 
for every scheduled shipment with every driver.''
    The TIA commented that ``[t]he NPRM would place the shipper and 
transportation intermediary into the role of employee management having 
to ask about hours of service availability.''
    NGFA noted that ``[i]n current operations, a shipper or receiver . 
. . does not check a driver's hours-of-service (HOS) log or inspect the 
driver's commercial motor vehicle--and it could be argued that the 
shipper or receiver does not have a duty or even a right to do so--if 
the driver is employed by another company. . . . Even if drivers and 
their employers are fully cooperative in this respect, the resulting 
burden and added costs for shippers and receivers would be 
tremendous.''
    The NIT League objected to ``FMCSA's apparent intent to impose a 
duty on the shipper or receiver to inquire as to a for-hire driver's 
compliance with the HOS rules.''
    Schneider National, on the other hand, wrote that ``[i]f we 
understand FMCSA's proposal correctly, exposure for a claim of coercion 
is triggered by an objection from a driver under circumstances which 
the intermediary `knew or should have known' would require the driver 
to violate the safety regulations. Thus, it would appear that absent a 
driver's objection, there is no obligation on the part of those other 
than the motor carrier to whom the driver is directly employed or 
leased to independently assure compliance with the hours of service or 
other regulations.'' IME also interpreted the language of the NPRM as 
requiring the driver to object before a finding of coercion could be 
made.

FMCSA Response

    Schneider National and IME are correct. This final rule does not 
require shippers, receivers, and transportation intermediaries (unlike 
motor carriers) to monitor a driver's compliance with the HOS rules or 
other regulations. As the preamble to the NPRM stated, a shipper, 
receiver, or transportation intermediary ``may commit coercion if it 
fails to heed a driver's objection that the request would require him/
her to break the rules'' (79 FR 27267, emphasis added). There would be 
no requirement or even occasion to inquire into the driver's available 
hours unless the driver had raised an objection to the delivery 
schedule; and an inquiry would not be necessary if the shipper or 
transportation intermediary agreed to change the delivery schedule to 
match the driver's available hours or arranged with the motor carrier 
to have a different driver take the load.
    Nevertheless, because many shippers, receivers, and transportation 
intermediaries believe that, in order to avoid potential liability, 
they must inquire about HOS compliance, and perhaps document all of 
their interactions with drivers, the Agency has amended the definition 
of ``coercion'' to make clear that the driver has an affirmative 
obligation to inform the motor carrier, shipper, receiver, or 
transportation intermediary when he or she cannot make the requested 
trip without violating one or more of the regulations listed in the 
definition. Motor carriers, shippers, receivers, and transportation 
intermediaries cannot commit coercion under the final rule unless and 
until they have been put on notice by the driver that he or she cannot 
meet the proposed delivery schedule without violating the HOS limits or 
other regulatory requirements. The purpose of that notice is, of 
course, to ensure that the driver is not coerced to commit such 
violations.

Agents, Officers, or Representatives

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

[[Page 74700]]

principals, but also to ``their respective agents, officers or 
representatives.'' Many commenters focused on this issue. A coalition 
of 12 motor carriers \6\ (hereafter Coalition) described a hypothetical 
situation where ABC Transportation, Inc. hires John Doe Trucking, an 
independent owner-operator, which coerces one of its drivers to violate 
the HOS rules without the knowledge or approval of ABC Transportation. 
The Coalition asked ``[a]gainst which entity in this scenario and under 
the proposed regulation would FMCSA take enforcement action? One would 
expect John Doe Trucking. After all, it is the entity responsible for 
the coercive behavior. But if John Doe Trucking is considered an 
`agent, officer, or representative' of ABC Transportation, Inc., ABC 
could, in fact, be on the hook. . . . In order to avoid the inequitable 
situation described above, the FMCSA . . . should consider narrowly 
defining the terms `agents,' `officers,' and `representatives' to 
specifically exclude independent contractors with whom motor carriers 
contract to haul freight and who are not specifically authorized to act 
on their behalf.''
---------------------------------------------------------------------------

    \6\ C.R. England, Inc.; CRST International, Inc.; Central 
Refrigerated Service, Inc.; Cowan Systems, LLC; Dart Transit 
Company; Greatwide Truckload Management; Liquid Transport Corp.; 
National Carriers, Inc.; Oakley Trucking, Inc.; PGT Trucking, Inc.; 
Roadrunner Transportation Systems, Inc.; and Schneider National, 
Inc.
---------------------------------------------------------------------------

    ATA agreed with the Coalition's comments and urged the Agency ``to 
clarify that, for purposes of the definition of `coercion' and proposed 
section 390.6, a motor carrier's agents, officers or representatives 
only include anyone who is authorized to act on behalf of a motor 
carrier. In the instance where an independent contracting entity 
engaged in the act of coercion against one of its drivers, only that 
entity should be liable under proposed section 390.6--not the motor 
carrier to whom the equipment and driver are leased.''
    Schneider National commented that it ``utilizes the services of 
approximately 2,000 independent contractors including a number of fleet 
owners. As such, Schneider shares the concerns raised in such comments 
relative to the use of terms `agents,' `officers' and `representatives' 
used in conjunction with the term `motor carrier' in Sec.  390.6(a)(2), 
and adopts their comments as filed. . . . [S]imilar issues may arise in 
the context of brokerage operations. Consider, for example, a motor 
carrier contracted by a broker with respect to a particular shipment. 
In the normal circumstance, the broker would arrange for the 
transportation on a schedule which can be accomplished consistent with 
the hours of service regulations, provided the involved motor carrier 
has an available driver with appropriate `hours'. The broker would not 
normally be privy to the motor carrier's driver/load assignment 
process. Under this circumstance, is the motor carrier, by virtue of 
the typical broker/carrier arrangement, an `agent' or `representative' 
of the broker such that the broker would be liable under the proposed 
rule for any motor carrier violation? The use of the terms `agent', 
`officers' and `representatives' might suggest that liability in the 
foregoing circumstances could be attributed to the broker. Such a 
result would be inequitable.''

FMCSA Response

    The issues raised by these comments were resolved by Congress in 
the MCSA of 1984. The prohibition on coercion is codified in the 
amended version of that statute at 49 U.S.C. 31136(a)(5). For purposes 
of the MCSA, `` `employee' means an operator of a commercial motor 
vehicle (including an independent contractor when operating a 
commercial motor vehicle), a mechanic, a freight handler, or an 
individual not an employer, who--(A) directly affects commercial motor 
vehicle safety in the course of employment; and (B) is not an employee 
of the United States Government, a State, or a political subdivision of 
a State acting in the course of the employment by the Government, a 
State, or a political subdivision of a State'' [49 U.S.C. 31132(2)].
    Independent owner operators employed by a motor carrier are 
statutorily defined as employees of that carrier for purpose of the 
FMCSRs, including this final rule. In the hypothetical situation 
described by the Coalition, the independent owner operator who owns 
John Doe Trucking is an employee of ABC Transportation. Any attempt by 
John Doe Trucking to coerce one of its drivers is therefore an attempt 
by ABC Transportation, through one of its employees, to coerce one of 
its drivers.
    FMCSA published regulatory guidance on this issue on April 4, 1997 
[62 FR 16370, 16407]:

    Question 17: May a motor carrier that employs owner-operators 
who have their own operating authority issued by the ICC or the 
Surface Transportation Board [authority that is now issued by FMCSA] 
transfer the responsibility for compliance with the FMCSRs to the 
owner-operators?
    Guidance: No. The term ``employee,'' as defined in Sec.  390.5, 
specifically includes an independent contractor employed by a motor 
carrier. The existence of operating authority has no bearing upon 
the issue. The motor carrier is, therefore, responsible for 
compliance with the FMCSRs by its driver employees, including those 
who are owner-operators.

    Brokers, however, are not employees of a motor carrier, nor are 
motor carriers agents or representatives of brokers. In a normal arms-
length transaction, the broker deals with a motor carrier, not an 
individual driver. The motor carrier has an obligation to comply with 
the FMCSRs and thus to assign a driver who has sufficient hours to 
complete the trip on the schedule outlined by the broker and to provide 
equipment that meets applicable standards. Any coercion that occurred 
would typically be committed by the motor carrier that employed the 
driver. However, as TIA pointed out, a State court has held that where 
a broker contracted with a motor carrier but in fact exercised direct 
control over the driver, that broker was liable for a tort committed by 
the driver [Sperl v. C. H. Robinson Worldwide, Inc., 946 NE.2d 463 
(2011)]. A broker could be found liable for coercion if it interacted 
directly with a driver, instead of with the carrier, and attempted to 
force the driver to make a delivery on a schedule that would require a 
violation of the FMCSRs. The Agency has no information about how often 
direct interactions between transportation intermediaries and drivers 
may occur.

Respondeat Superior

    Many commenters objected to the NPRM's assertion that the ``knew or 
should have known'' standard in the definition of coercion ``is 
essentially a restatement of the common law principle of `respondeat 
superior,' which holds the `master' (employer) liable for the acts of 
his `servant' (employee).'' Schneider National offered a brief critique 
that captures the general reaction: ``FMCSA should retract its 
discussion on respondeat superior and make clear that it is basing the 
rulemaking on MAP-21. At the very least, it need[s to] make clear that 
its regulations are limited to dealing with the issue of possible 
driver coercion and such regulations or any enforcement actions 
thereunder are not a re-characterization of the employment relationship 
generally. Absent this, those against whom an enforcement action is 
brought may have greatly enhanced incentive to fully litigate every 
citation, unduly burdening FMCSA's enforcement effectiveness.''

[[Page 74701]]

FMCSA Response

    FMCSA agrees with Schneider National's comment. This final rule is 
based on the authority of 49 U.S.C. 31136(a)(5). The discussion of 
``respondeat superior'' in the NPRM was not intended to make shippers, 
receivers, and transportation intermediaries vicariously liable, 
because Congress made them directly liable through section 32911 of 
MAP-21. FMCSA emphasizes that any evidence gathered in response to a 
written complaint by a driver would point to specific individuals and 
that persons at higher levels in the organization would not necessarily 
be implicated.
    In any case, the revised definition of coercion adopted in this 
final rule eliminates the ``knew or should have known'' standard by 
emphasizing more strongly the driver's duty to object as a predicate 
for any subsequent allegation of coercion.

Coercion That Fails

    NASSTRAC objected to FMCSA's intent to ``penalize unsuccessful 
coercion, i.e., customer requests that a driver ignores.'' NASSTRAC 
argued that ``[p]enalizing coercion resulting in violations better 
addresses the conduct Congress wanted to discourage. FMCSA has cited no 
analogous regulatory program that would penalize millions of Americans' 
words or requests even if they produce no actions. The Foreign Corrupt 
Practices Act and similar anti-bribery laws penalize inducements to 
violate laws, but they generally require some direct or indirect 
payment in addition to an oral or written request. In addition, 
penalizing shippers, receivers and intermediaries for words that 
produce no actions, let alone violations, implicates First Amendment 
considerations, as well as concerns about overkill.''

FMCSA Response

    Drivers of CMVs are required to comply with all applicable 
regulatory standards. Those who resist coercion do not lose the benefit 
of this rule. The act of coercion is complete when the attempt is made; 
it does not require success. If Congress had wished to impose limits on 
the common understanding of coercion, it would have said so in 49 
U.S.C. 31136(a)(5). Coercion does, however, require some kind of 
threat; merely asking a driver to make a trip that would violate a 
regulation would not constitute coercion. If the driver refused to make 
such a trip, a further discussion of his or her response and related 
issues might or might not cross the line into coercion. The answer 
would depend on the substance of the conversation and the existence of 
a threat, explicit or implied, to make the driver pay an economic price 
for refusing to violate an FMCSA regulation.

Burden of Proof

    Two trade associations, ATA and NITL, Advocates, Mr. Wayne Yoder, 
who is a carrier, and four anonymous individuals commented on who 
should bear the burden to prove coercion. Among these commenters, ATA 
and two individuals argued that the driver should bear the burden of 
proof in coercion cases. The individuals said it must be the driver's 
responsibility because only the driver controls the information on his 
logs.
    On the other hand, Advocates stated that ``once a complaint is 
determined by FMCSA to meet the substantive criteria outlined in 
Section 386.12(e) of the NPRM a prima facie showing of coercion has 
been made under the proposed regulations. As such, the burden of proof 
should shift to the alleged offender to demonstrate that there was a 
valid reason for the actions in dispute as is the current legal 
framework applied in cases alleging employment discrimination in 
violation of Title VII of the Civil Rights Act of 1964.''
    A carrier and three individuals (Mr. Nick Scarabello and two 
anonymous people) noted the driver is not well positioned to provide 
evidence of coercion. The carrier responding to the NPRM stated that a 
motor carrier is better able to provide evidence by way of rate 
agreements, contracts, orders, or bills of lading from the customer, 
but the driver has no way of printing or saving messages sent via 
company-owned and installed communication devices. An anonymous 
individual suggested that trucking companies should be required to 
record all phone conversations with drivers as a way to prevent or 
provide evidence of coercion. A commenter stated after a driver files a 
report of an incident, FMCSA should request written transcripts of the 
conversation and supporting documents. An anonymous commenter wrote 
that ``if you don't put the burden of proof on the carrier or 
dispatcher[,] then it's the driver[']s word against the company and the 
driver still ends up being punished.''
    OOIDA stated that FMCSA places the enforcement burden on drivers to 
prove a violation of the law that results in the issuance of penalties 
and fines for the government. OOIDA argued FMCSA should take the lead 
in coercion enforcement activities instead of placing the 
responsibility to initiate and prove incidents of coercion upon those 
least able to deal with the problem directly, the target of the 
coercion.
    ATA and the NIT League recommended that the Agency adopt a standard 
of ``clear and convincing evidence,'' rather than ``preponderance of 
the evidence.'' The NIT League argued that this standard is appropriate 
because of the significant consequences associated with a violation of 
the coercion prohibition, which include potential monetary penalties 
and suspension or revocation of the registration of an offender. 
Conversely, OOIDA stated FMCSA should not weaken the rule by adopting 
an evidentiary standard that exceeds the standard for determining other 
safety violations.

FMCSA Response

    When imposing a civil penalty for coercion, the government has the 
burden of proof. The driver, however, is typically the only person in a 
position to provide the critical evidence needed to sustain the action 
against a carrier, shipper, receiver, or transportation intermediary. 
The NPRM simply acknowledged this reality. While it may sometimes be 
difficult for the driver to provide relevant evidence, as OOIDA and 
others argued, there is no realistic alternative. The Agency will not 
require motor carriers to record all phone conversations and other 
communications with drivers, a far-reaching requirement which was not 
proposed for public comment in the NPRM. FMCSA will investigate timely 
complaints that meet the standards outlined in Sec.  386.12 and may be 
able to locate or generate additional information, but the driver must 
supply the essential facts.
    There is no good reason to adopt a ``clear and convincing'' 
evidentiary standard for coercion cases when the ``preponderance'' 
standard is used for all other motor carrier enforcement actions. The 
potential penalties applicable to a violation of 49 U.S.C. 31136(a)(5) 
and this rule's implementing regulations are the same as those 
applicable to a violation of 49 U.S.C. 31136(a)(1)-(4) and the 
implementing FMCSRs.
    Title VII of the Civil Rights Act of 1964 prohibits certain 
employers from discriminating against employees on the basis of race, 
color, religion, sex, or national origin. There is nothing in MAP-21 to 
indicate that Congress intended to make CMV drivers who are subject to 
coercion a protected class in the same sense as individuals subject to

[[Page 74702]]

racial, religious, sexual, or other discrimination. The shifting of the 
burden of proof under Title VII is therefore not indicative of a 
similar legislative intent to shift the burden to carriers, shippers, 
receivers or transportation intermediaries after a driver files a non-
frivolous coercion complaint. The burden of proof in coercion cases 
remains with FMCSA.

Application to Governmental Entities

    NASSTRAC commented that ``FMCSA has asserted that state and local 
governments would be unaffected, as would Indian Tribal Governments. 
However, Indian Tribal Governments, and state and local governments 
(and federal government entities) are shippers and receivers of freight 
transported by CMVs. The Department of Defense ships and receives large 
volumes every year. All of these shippers would apparently have a duty 
to inquire as to HOS and other compliance by every driver, even though 
many probably have no idea that HOS rules even exist.''
    TIA provided a similar comment: ``TIA urges the Agency . . . to 
clearly define the scope of this rule to include the Department of 
Defense (DOD), the General Services Administration (GSA), Port Terminal 
Operators, and all other applicable entities that contract with motor 
carriers to haul their specific goods along the transportation supply-
chain.''

FMCSA Response

    The MAP-21 prohibition on coercion amended 49 U.S.C. 31136(a), a 
provision originally enacted by the MCSA. Under the MCSA, the term 
``employer'' ``(A) means a person engaged in a business affecting 
interstate commerce that owns or leases a commercial motor vehicle in 
connection with that business, or assigns an employee to operate it; 
but (B) does not include the [Federal] Government, a State, or a 
political subdivision of a State.'' [49 U.S.C. 31132(3) (emphasis 
added)]. MAP-21 subjected motor carriers, shippers, receivers, and 
transportation intermediaries to the prohibition on coercion [Sec.  
31136(a)(5)], but it did not limit the governmental exemption in Sec.  
31132(3). FMCSA has no authority to apply this final rule to Federal, 
State or local governmental entities. Whether a terminal operator 
qualifies as a political subdivision of a State will require a case-by-
case evaluation.

Deadline To File Coercion Complaints

    OSHA recommended that the proposed 60-day filing deadline be 
extended to 180 days. ``The 60-day filing period for the anti-coercion 
rule would greatly limit the ability of DOT to act on valid complaints 
of coercive activity that drivers have timely filed under the STAA 
[i.e., 49 U.S.C. 31105, enacted by the Surface Transportation 
Assistance Act of 1982 (STAA)]. Consequently, the short period 
decreases the effectiveness of the statute and weakens its overall 
deterrence value. The Department of Labor/OSHA has found that by 
providing workers with a filing period of 180 days [as authorized by 49 
U.S.C. 31105], it is able to pursue a greater number of meritorious 
complaints and more fully fulfill its mandate under STAA.'' An 
individual, Lisa Pate, also noted the inconsistency between FMCSA's 
proposed 60-day deadline and OSHA's 180-day deadline.
    OSHA recommended ``tolling of the filing deadline, in case there 
are delays in transferring the allegation to the appropriate Division 
Administration.'' Similarly, the Advocates wrote that ``[v]ictims of 
coercion should not be time-barred from seeking an appropriate remedy 
under the law for the failure of FMCSA to promptly request further 
information or transfer the complaint to the appropriate Division 
Administrator.''
    The NIT League, on the other hand, wrote that ``because the 
allegations of coercion will often involve verbal communications at 
freight pick-up locations, . . . it will be critical for complaints to 
be filed promptly and for the accused party to be provided with prompt 
notice of the complaint. This would help ensure that any internal 
investigation of the driver's allegations either by the driver's 
employer or the alleged coercer can be conducted expeditiously, any 
relevant evidence can be preserved, and witnesses can be interviewed 
before memories fade. Thus, the NIT League suggests that the time 
period for drivers to file complaints be reduced to 30 days and that 
any party accused of coercion be served with the complaint upon its 
filing with FMCSA.''

FMCSA Response

    OSHA regulations (29 CFR 1978.100 et seq.) and the underlying 
statute (49 U.S.C. 31105) protect employees who are discharged, 
disciplined, or discriminated against under certain circumstances. 
Those actions are likely to generate records that can be reviewed 
months later. Coercion, on the other hand, may occur without leaving 
clear documentary evidence. FMCSA continues to believe that a deadline 
shorter than 180 days is appropriate to ensure that a complaint is 
filed while the recollections of both the driver and the alleged 
coercer are fresh. However, the Agency considers the 30-day deadline 
proposed by the NIT League to be unfair to drivers, some of whom are on 
the road for weeks at a time and may not be in a position to file a 
complaint that quickly. In order to ensure that drivers have sufficient 
time to prepare and submit a coercion complaint, the final rule extends 
the 60-day period proposed in the NPRM to 90 days.

Criteria To Evaluate Coercion Claims

    OSHA commented that ``the proposed requirement that the complaint 
be `non-frivolous' is overly vague and should be eliminated. The 
current proposed requirement of `non-frivolity' would allow for 
enormous amounts of discretion across FMCSA Divisions. Gross discretion 
will undoubtedly lead to regional disparities in the enforcement of the 
provision and severely limit the overall effectiveness of the 
provision.''
    The NIT League suggested that the Agency clarify the criteria that 
will be used in evaluating reported incidents of coercion. IME 
expressed concern over the burden imposed on carriers, shippers, 
receivers, and transportation intermediaries to defend against driver 
complaints. IME argued that the proposed rule is, ``by its very nature, 
. . . fraught with subjectivity. In order to avoid or defend against 
complaints of coercion, carriers, shippers and receivers will be 
compelled to memorialize every significant interaction they have with 
drivers.''

FMCSA Response

    The MCSA includes the following: ``(a) Investigating complaints.--
The Secretary of Transportation shall conduct a timely investigation of 
a nonfrivolous written complaint alleging that a substantial violation 
of a regulation prescribed under this subchapter is occurring or has 
occurred within the prior 60 days'' [49 U.S.C. 31143(a)]. The 
``nonfrivolous'' standard has been used in 49 CFR 386.12(b) for many 
years without the adverse consequences OSHA predicted, and the Agency 
believes its use in 49 CFR 386.12(e)(2) will be comparably 
straightforward and effective.
    FMCSA does not agree with commenters' assessment of the burden 
involved in defending against driver complaints. The ``subjectivity'' 
that IME feared has been virtually eliminated by the revised definition 
adopted in this final rule, which requires the driver to state 
explicitly that he or she cannot deliver the load without violating the

[[Page 74703]]

applicable regulations, and why that is the case. There can be no 
coercion unless the shipper, receiver, or transportation intermediary 
responds with an equally explicit threat to force the driver to make 
the delivery despite the regulatory violation it would entail. While 
groundless allegations of coercion are possible, such accusations are 
also possible under OSHA's whistleblower rules, yet they appear to be a 
relatively minor problem and are readily dismissed for want of 
evidence.

Penalties

    Advocates argued that the Agency should suspend the operating 
authority of motor carriers found to have committed coercion, rather 
than just issue ``meaningless fines.'' Coercion involving private 
carriers should be reported to the relevant States ``so that the state 
licensing authority may take the appropriate action as well as have a 
complete record of the entities they are responsible for monitoring.'' 
Advocates noted that an $11,000 fine (since increased to $16,000) 
``pales in comparison to the $250,000 punitive fine that can be levied 
against a company by the Department of Labor under the Surface 
Transportation Assistance Act (STAA) after a finding that a driver was 
dismissed for refusing to compromise a health or safety standard.''
    An individual commenter, Jim Duvall, wrote that ``Any fine or 
monetary penalty should directly benefit the driver(s) harmed in the 
action.''
    Three commenters stated that the final rule should impose penalties 
against drivers who make false claims of coercion. One commenter said 
there should be a penalty for drivers who make false accusations 
because they either refuse to take responsibility for their own failure 
to properly calculate their hours or knowingly violate the HOS rules 
because they do not want to ``miss the load.'' Two other individuals 
stated that there should be penalties for drivers who are disgruntled 
and file baseless coercion complaints to get back at their employer. 
AIPBA noted that the imposition of significant penalties against 
drivers who are found to have falsely accused a broker will deter 
``such improper and fraudulent conduct by unscrupulous drivers.''

FMCSA Response

    FMCSA will take aggressive action when a violation of the 
prohibition against coercion can be substantiated. This action will 
include civil penalties consistent with the regulations, and may 
include initiation of a proceeding to revoke the operating authority of 
a for-hire motor carrier. Under 49 U.S.C. 13905, a carrier that engages 
in willful non-compliance with an Agency regulation or order may have 
its operating authority revoked. FMCSA's policy on revocation was set 
forth in a notice published on August 2, 2012 (77 FR 46147). The Agency 
agrees that coercion is the type of violation that may fall into this 
category.
    Some commenters appear to regard a coercion allegation that cannot 
be substantiated as a false accusation. That is not necessarily true. 
Despite its best efforts, FMCSA may not be able adequately to document 
some allegations that are in fact correct. In any case, neither section 
32911 of MAP-21 nor the Agency's general civil penalty statute 
authorizes penalties against drivers who make false accusations of 
coercion.
    As for Mr. Duvall's recommendation, ``All penalties and fines 
collected under this section shall be deposited into the Highway Trust 
Fund (other than the Mass Transit Account)'' in the U.S. Treasury [49 
U.S.C. 521(b)(10)]. The Agency cannot pay drivers the civil penalties 
it collects for incidents of coercion. And unlike OSHA, FMCSA has no 
authority to require the violator to compensate the driver for injuries 
he or she has suffered.

Coercion as an Acute Violation

    ATA argued that a violation of proposed Sec.  390.6, which 
prohibits coercion, should not necessarily be classified as an acute 
violation in Appendix B, section VII of Part 385, as proposed in the 
NPRM. Instead, coercion should be acute, critical, or neither, 
depending on the classification of the regulation the driver was 
coerced to violate.

FMCSA Response

    FMCSA agrees that a carrier's safety fitness should be determined 
on the basis of the regulations it violates or coerces a driver to 
violate. In other words, coercion itself should not be treated as acute 
(or critical). The final rule therefore eliminates the NPRM's proposed 
amendments to Appendix B of 49 CFR part 385. This is consistent with 
the Agency's practice of limiting acute and critical classifications to 
regulations which, if violated, are likely to increase the risk of 
crashes. Because FMCSA currently has no data showing a link between 
coercion and crashes, it seems appropriate not to classify coercion as 
acute. If new data or further analysis shows such a link, the Agency 
may revisit this decision. As indicated above, however, FMCSA will 
impose significant penalties when reports of coercion can be proved.

Coercion of Carriers

    NASSTRAC described a hypothetical situation where Shipper A hires 
Carrier B to deliver a load on a reasonable schedule. However, when 
Carrier B's driver arrives to pick up the load, he tells Shipper A that 
he has to go off duty in a few hours under the HOS regulations, making 
it impossible to meet Shipper A's delivery schedule. ``Shipper A says 
in frustration, `That's the last time I use Carrier B.' Is Shipper A 
subject to a penalty of up to $11,000 just for saying those words, even 
if no safety violation occurs? How many penalties could Shipper A face 
if it makes no more use of Carrier B?''
    ATA urged ``FMCSA to consider amending the proposed definition in 
section 390.5 to cover not only the driver as the target of withholding 
or coercion, respectively, but also his/her employer.''

FMCSA Response

    NASSTRAC has described a normal and completely legal business 
response to inadequate service. Shipper A has not coerced the driver to 
violate the HOS rules, nor has it coerced Carrier B to put pressure on 
the driver to violate the rules. It has simply decided not to use a 
carrier that does not dispatch drivers who can meet the agreed upon 
delivery schedule.
    Section 32911 of MAP-21 applies only to the coercion of drivers, 
not to the coercion of motor carriers. Under 49 U.S.C. 31136(a)(5), the 
Agency's regulations must ensure that ``(5) an operator of a commercial 
motor vehicle is not coerced by a motor carrier, shipper, receiver, or 
transportation intermediary . . .'' (emphasis added). Because an 
``operator'' is distinct from a ``motor carrier,'' the term 
``operator'' necessarily refers only to drivers. While shippers may 
sometimes coerce motor carriers to pressure their drivers to violate 
the FMCSRs, the coercion of motor carriers is not covered by MAP-21 or 
this rule.

Miscellaneous Comments

    Driver Confidentiality. OOIDA argued that FMCSA must have 
whistleblower protections in place. ``This includes a guarantee of a 
certain amount of confidentiality in driver communications with the 
agency, and procedures at the agency to take action against parties who 
retaliate against drivers who submit good faith allegation[s] of 
coercion to the agency.''

[[Page 74704]]

FMCSA Response
    FMCSA is required by 49 U.S.C. 31143(b) to keep the identity of a 
complainant confidential unless ``disclosure is necessary to prosecute 
a violation.'' Because a party accused of coercion cannot defend itself 
without knowing the name of the accuser, and when and where the alleged 
incident occurred, the driver's identity cannot be confidential. 
Retaliation for reporting incidents that, for whatever reason cannot be 
substantiated, is not covered by this rule. OSHA, however, may be able 
to provide relief.
    Communications with Drivers. ``OOIDA suggests that FMCSA require 
all parties providing drivers with instructions, rules, or other 
conditions on the transportation to maintain all such communications as 
they do supporting documents under the HOS rules. OOIDA is aware that 
many motor carriers, brokers and third parties already retain such 
communication, and so this requirement should not be a significant 
burden. Such records should be regularly reviewed during safety audits 
and compliance reviews. The potential safety benefits of motor carriers 
knowing that these records will be available to enforcement would 
outweigh any added burden.''
FMCSA Response
    The Agency could not act on such a far-reaching and controversial 
proposal without first publishing it for notice and comment. The NPRM 
proposed no such requirement, and it is not included in this final 
rule.
    Notifying Carriers and Consumer Reporting Agencies. OOIDA commented 
that, ``One form of coercion and retaliation against drivers is the 
reporting of negative information about a driver in an employment 
history submitted to a consumer reporting agency. Other motor carriers 
purchase that employment history from the consumer reporting agency to 
fulfill their FMCSR hiring requirements, and they often make negative 
hiring decisions based on those reports. On their face, some of the 
information reported appears performance related, such as `late pick-
up/delivery.' But there is nothing to protect drivers from being tagged 
with a negative mark on their employment history if the late pickup or 
delivery resulted from conditions or circumstances that caused the 
driver to run out of legal hours to make the delivery on time. 
Resistance to coercion (i.e., the driver objections proposed by the 
Notice) may be reported as `refused dispatch' or `insubordination.' 
These employment records can effectively disqualify a driver from being 
considered for employment by motor carriers or make it much harder for 
the driver to find employment. The result is that safety-conscious 
drivers who do the right thing and resist coercion get bad employment 
reports and are driven out of the industry. Other drivers who 
capitulate to demands to violate the rules and save their jobs can keep 
fairly clean employment records and stay in the industry. . . . FMCSA 
should impose penalties upon motor carriers who submit such information 
to consumer reporting agencies and who refuse to remove such 
information after it is submitted.''
FMCSA Response
    Negative reports about a driver by a motor carrier could constitute 
``adverse employment actions'' prohibited by this final rule. However, 
there would be significant evidentiary obstacles to making a coercion 
case in these situations. A late pickup or delivery may not have been 
caused by unrealistic demands the driver was coerced to meet. Bad 
planning on the part of the driver or carrier, unexpected traffic 
congestion, or other factors could also explain some delays. Tracing 
reports of ``insubordination'' back to the driver's refusal to be 
coerced would inevitably involve a detailed examination of one or more 
incidents and conflicting accounts of the reason for the alleged 
insubordination. While FMCSA will review all reported incidents, the 
Agency cannot take action against a carrier for coercion unless there 
is evidence that an unfavorable report on a driver was motivated by a 
desire to punish the driver for refusal to be coerced.
    The Rule Should Govern the Demands of Receivers. OOIDA argued that 
``[t]he most powerful tool that receivers have over drivers is the 
withholding of a signature or receipt from the driver acknowledging 
receipt of the freight--a document the driver needs as a condition for 
being compensated by their carrier or third-party and that the driver 
must obtain before driving away to get rest or new business. 
Withholding such receipt is commonly used by receivers to coerce 
drivers to [1] accept the receiver's schedule to unload a vehicle (no 
matter when the driver arrived at the docks, when the driver's next 
scheduled pickup or delivery may be, or what the driver's Hours of 
Service status may be); . . . [3] require the driver to break down 
pallets and sort and stack freight.'' OOIDA also described situations 
where drivers are held at a receiver's dock past the 14th hour after 
coming on duty, and then forced to drive away from the receiver's 
facility in violation of Sec.  395.3(a)(2).
FMCSA Response
    While the situation OOIDA described involving a signature or 
receipt was not discussed in the NPRM, withholding a delivery receipt 
might be used to coerce a driver to violate the FMCSRs. A receiver that 
forces a driver to leave its premises is not threatening the driver 
with an adverse employment action; it is asserting its right as a 
property owner to control access to the property.

Comments on Issues Outside the Scope of This Rulemaking

    Fourteen commenters raised issues beyond the scope of this 
rulemaking, involving lack of adequate parking; detention time and 
detention pay; and various HOS provisions. Because none of these issues 
was related to coercion of drivers to violate FMCSA regulations, the 
Agency will not comment on them in this document.

VI. Section-by-Section Description

A. Part 386

    Section 386.1, ``Scope of the rules in this part,'' is amended by 
adding a new paragraph (c) referring to the filing and handling of 
coercion complaints under new Sec.  386.12(e).
    The NPRM's Sec.  386.12(e) is called ``Complaint of coercion.'' The 
procedures to file and handle coercion complaints outlined in the NPRM 
have been revised. The complaint must be filed within 90 days after the 
event with the Agency's on-line National Consumer Complaint Database 
(http://nccdb.fmcsa.dot.gov), or with the Division Administrator where 
the driver is employed. FMCSA may reassign the complaint to the 
Division Administrator best situated to investigate it. In addition, 
the final rule removes a sentence included in the NPRM stating that the 
Division Administrator may issue a Notice of Claim or Notice of 
Violation when appropriate. Because that statement could be read as a 
limitation on the Agency's enforcement options, it has been deleted.

B. Part 390

    Section 390.3(a) is amended to include a reference to the coercion 
provisions in Sec.  386.12(e) and Sec.  390.6, and describe the 
applicability of those provisions.
    Section 390.5 is amended to add definitions of ``Coerce or 
coercion,'' ``Receiver or consignee,'' ``Shipper,'' and 
``Transportation intermediary.'' The definitions of ``Receiver or 
consignee,'' ``Shipper,'' and ``Transportation intermediary'' make 
these entities

[[Page 74705]]

subject to the prohibition on coercion in Sec.  390.6 only when 
shipping, receiving or arranging transportation of property (and in the 
case of ``transportation intermediaries,'' passengers) in interstate 
commerce. Although the term ``transportation intermediary'' is commonly 
associated with brokers and freight forwarders, it also includes travel 
agents and similar entities that arrange group tours or trips and 
contract with motorcoach operators for transportation services. Such 
intermediaries and their agents are subject to the prohibition on 
coercion. Because the HMRs apply to transportation in intrastate 
commerce, the definitions make clear that the prohibition on coercion 
applies to parties that ship, receive, or arrange transportation of 
hazardous materials in interstate or intrastate commerce. The NPRM's 
definition of ``coerce or coercion'' has been amended (1) by removing 
the reference to ``current or future'' business; (2) adding a 
prohibition on ``any adverse employment action against a driver,'' and 
(3) deleting references to violations of Sec. Sec.  385.105(b), 
385.111(a), (c)(1), or (g), which were erroneously included.
    Section 390.6(a)(1) is added to prohibit motor carriers, shippers, 
receivers, or transportation intermediaries, or the agents, officers, 
or representatives of such entities, from coercing drivers to operate 
CMVs in violation of 49 CFR parts 171-173, 177-180, 380-383, or 390-
399, or Sec. Sec.  385.415 or 385.421. These parts correspond to the 
statutory language in 49 U.S.C. 31136(a)(5). Parts 171-173 and 177-180 
are the HMRs applicable to highway transportation promulgated under 49 
U.S.C. chapter 51. Parts 382-383 are the commercial driver's license 
(CDL) and drug and alcohol testing regulations promulgated under 49 
U.S.C. chapter 313. Parts 390-399 are those portions of the FMCSRs 
promulgated under the authority (partial or complete) of 49 U.S.C. 
31136(a). The other parts or sections listed are based on one or more 
of the statutes referenced in 49 U.S.C. 31136(a)(5).
    Section 390.6(a)(2) is added to prohibit operators of CMVs or their 
agents, officers, or representatives, from coercing drivers to violate 
49 CFR parts 356, 360, or 365-379. This subsection is based on the 
authority of 49 U.S.C. 31136(a)(1)-(4) and 49 U.S.C. 13301(a).
    Section 390.6(b) describes the procedures for a driver to file a 
complaint of coercion with FMCSA.

VII. Regulatory Analyses

A. Regulatory Planning and Review and DOT Regulatory Policies (E.O. 
12866) and Procedures as Supplemented by E.O. 13563)

    FMCSA has determined that this rule is a significant regulatory 
action under E. O. 12866 (58 FR 51735, October 4, 1993), as 
supplemented by E. O. 13563 (76 FR 3821, January 21, 2011), and 
significant within the meaning of the DOT regulatory policies and 
procedures (44 FR 11034, February 26, 1979). The estimated economic 
costs of the rule will not exceed the $100 million annual threshold (as 
explained below).
Extent of Economic Impact
    The 1982 STAA includes whistleblower protections for motor carrier 
employees (49 U.S.C. 31105). OSHA, which administers the complaint 
process created by section 31105, received 1,158 complaints from CMV 
drivers between FY 2009 and FY 2012.\7\ OSHA found that 253 of them (22 
percent) had merit.\8\ Between FY 2009 and FY 2012, the OIG hotline 
received 91 complaints alleging that motor carriers had coerced or 
retaliated against drivers. FMCSA determined that 20 of these 
complaints had merit.\9\ The average number of verified complaints for 
that 4-year period was therefore 68.25 per year [(253 + 20)/4 = 68.25].
---------------------------------------------------------------------------

    \7\ U.S. Department of Labor, Occupational Safety & Health 
Administration (OSHA), Whistleblower Protection Program: 
Investigative Data Fact Sheets. Available at http://www.whistleblowers.gov/wb_data_FY05-12.pdf.
    \8\ Ibid., Footnote 3.
    \9\ U.S. Department of Transportation, Office of the Inspector 
General (OIG). This averaged 23 complaints per year, (with 44 in 
2010), which the OIG referred to FMCSA. FMCSA substantiated 20 
complaints (22 percent) of violations of acute and critical 
regulations due to driver allegations of unlawful discrimination or 
discipline (See 29 CFR 1978.100 et seq.). Available at http://www.oig.dot.gov/Hotline.
---------------------------------------------------------------------------

    Some unknown portion of the 253 complaints filed with OSHA during 
that period almost certainly dealt with coercion or similar actions. 
Even if all of them were coercion-related, this number--combined with 
the 20 substantiated complaints filed with the OIG--remains small 
compared to the total population of CMV drivers. Section 31105, 
however, applies only to employers (basically motor carriers) while 
this rule will also cover shippers, receivers, and transportation 
intermediaries. The Agency is unable to estimate the number of coercion 
allegations it may receive, whether triggered by actions of motor 
carriers or other entities made subject to this rule by MAP-21.
    In view of the small number of coercion-related complaints filed 
with OSHA and DOT's OIG, the aggregate economic value to motor carriers 
of these coercion-related incidents is likely to be low. Therefore, the 
cost to carriers of eliminating those incidents--assuming the rule has 
that effect--and incurring the higher costs of compliance, would also 
be low; however, the cost of compliance with existing regulations has 
already been captured in the analysis supporting the implementation of 
those regulations, so we do not consider them here. We believe that the 
application of this rule to shippers, receivers, brokers, freight 
forwarders, and other transportation intermediaries will not 
significantly increase the number of coercion complaints, since drivers 
generally have more frequent and direct contacts with their employers 
than with these other parties. In addition, even though the rule 
applies to a larger population, FMCSA also notes that the rule should 
have a deterrent effect on entities considering coercion.
    The roughly 68 annual complaints noted above is the only available 
estimate of coercion in the trucking industry now. This rule would be 
expected to reduce the amount of coercion that takes place, but there 
is no available measure of the effectiveness of the rule. The 
relatively low number of complaints suggests that the overall economic 
impact will be less than the $100 million threshold of economic 
significance under E.O. 12866.
Benefits
    If coercion creates situations where CMVs are operated in an unsafe 
manner, then there are consequences for safety and driver health risks. 
By forcing drivers to operate mechanically unsafe CMVs or drive beyond 
their allowed hours, coercion increases the risk of crashes. Reduction 
of these behaviors because of this rule would generate a safety 
benefit. Additionally, the operation of CMVs beyond HOS limits has been 
shown to have negative consequences for driver health. A reduction of 
this practice would create an improvement in driver health. The Agency 
lacks data to quantify the safety or health benefits attributable to 
the rule.
Costs
    This rule, as an enforcement measure, would impose compliance costs 
on carriers and on other business entities utilizing the motor carrier 
industry. If drivers now operate CMVs in violation of HOS rules, or if 
coercion had caused drivers to operate their CMV even

[[Page 74706]]

though there were mechanical defects, carriers would potentially have 
to reorganize their schedules or hire new drivers to operate in 
compliance. Maintenance costs might also accelerate as a result of this 
rule, as the industry improves compliance with the existing safety 
standards resulting from increased risk of enforcement action. 
Additionally, the entities that practice coercion would lose the 
economic benefit of that coercion. This economic benefit could be time-
related (if drivers are coerced into driving when they should stop and 
rest, stop and wait for CMV maintenance, or drive a vehicle they are 
not qualified to operate rather than wait for a qualified driver).
    Drivers alleging coercion will have to provide a written statement 
describing the incident along with evidence to support their charges. 
This total paperwork burden is difficult to estimate but is not likely 
to be very large. Similarly the Agency believes that the investigation 
of those reports will not have a large cost.
Summary
    The Agency does not believe that the benefits and costs of this 
rule would create a large economic impact. The safety benefits and 
compliance costs are likely to be very small based on the small number 
of expected cases each year. Therefore, the Agency believes that the 
rule will not be economically significant.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires Federal agencies to consider the effects of their regulatory 
actions on small business and other small entities and to minimize any 
significant economic impact. The term ``small entities'' comprises 
small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
as well as governmental jurisdictions with populations of less than 
50,000.\10\ Accordingly, DOT policy requires an analysis of the impact 
of all regulations on small entities and mandates that agencies strive 
to lessen any adverse effects on these businesses.
---------------------------------------------------------------------------

    \10\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see 
National Archives at http://www.archives.gov/federal-register/laws/regulatory-flexibility/601.html.
---------------------------------------------------------------------------

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 
110 Stat. 857), the rule is not expected to have a significant economic 
impact on a substantial number of small entities. As indicated above, 
OSHA found merit in only 253 complaints filed by CMV drivers over a 4-
year period, or about 63 per year. Even if all of the complaints were 
classified as coercion-related, that number would be very small when 
compared to the size of the driver population and motor carrier 
industry.
    The Small Business Administration (SBA) classifies businesses 
according to the average annual receipts. The SBA defines a ``small 
entity'' in the motor carrier industry [i.e., general freight truck 
transportation, subsector 484 of the North American Industry 
Classification System (NAICS)] as having revenues of less than $27.5 
million per firm. Likewise, transportation intermediaries (i.e., 
subsector 488 of NAICS) which include brokers and freight forwarders, 
are classified as small if their annual revenue is under $15 
million.\11\
---------------------------------------------------------------------------

    \11\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
System Codes (NAICS), See NAIC subsector 484 (Truck Transportation) 
and 488 Support Activities for Transportation).effective July, 2012. 
The Small Business Size Standards used in the Initial Regulatory 
Flexibility Act analysis (IRFA) were released by the Small Business 
Administration in January 2012. The SBA issued revised Small 
Business Standards in July 2014. See downloadable PDF file at 
https://www.sba.gov/content/small-business-size-standards.
---------------------------------------------------------------------------

    Table 1 presents a breakdown of FMCSA's revenue estimates for the 
populations in various categories. By SBA standards, the vast majority 
of all businesses in the motor carrier and related industries are 
``small entities.'' Although general freight transportation arrangement 
firms fall under the $15 million threshold, there is an exception for 
``non-vessel household goods forwarders.'' \12\ This exception 
stipulates that the revenue threshold, for this sub-set of freight 
forwarders in the trucking industry is $27.5 million. As indicated 
above, fewer than 70 coercion complaints per year have been filed with 
OSHA and FMCSA in the past few years. We have no reason to believe that 
number will increase significantly under the rule. In fact, the 
potential penalty for coercing a driver should have a deterrent effect. 
Even if the penalty assessed might have a ``significant economic 
impact,'' the limited number of recent coercion complaints suggests 
that the penalty would not affect ``a substantial number of small 
entities,'' given that there are nearly 500,000 firms in the industry 
that qualify as small entities.
---------------------------------------------------------------------------

    \12\ According to the 2007 Economic Census data, 2,221 
establishments were classified as non-vessel common carriers. These 
establishments accounted for 10.2 percent of the number of, and 5.2 
percent of the annual revenue for, the total number of 
establishments classified under NAICS Code 488510-Freight 
Transportation Arrangement. In 2007, the average revenue for all 
entities classified to NAICS Code 488510 was $1.8 million. 
Therefore, the results of the analysis are the same regardless of 
whether the Small Business Standard is $15 million or $27.5 million.
---------------------------------------------------------------------------

    This rule does not affect industry productivity by requiring new 
documentation, affecting labor productivity or availability, or 
increasing expenditures on maintenance or new equipment. The fines, 
which are the only impact (unless the carrier's operating authority is 
suspended or revoked), can be avoided by not coercing drivers into 
violating existing regulations. Furthermore, by regulation, the 
Agency's fines are usually subject to a maximum financial penalty limit 
of 2 percent of a firm's gross revenue. For the vast majority of small 
firms, a fine at this level would not be ``significant'' in the sense 
that it would jeopardize the viability of the firm.
    The table below excludes shippers and receivers subject to the 
prohibition on coercion, a group which is a large portion of the entire 
U.S. population, because anyone who sends or receives a package would 
be considered a shipper or receiver. However, compliance with the 
prohibition on coercion of drivers is not expected to have significant 
economic impact on many of them. Consequently, because they are not 
expected to be in a position to coerce a driver, I certify that the 
action will not have a significant economic impact on a substantial 
number of small entities.

[[Page 74707]]



        Table 1--Total Number of Entities and Determination, 2012
------------------------------------------------------------------------
          Type of entity                Number          Determination
------------------------------------------------------------------------
Motor carriers (property).........    \13\ 523,239  99% below 27.5
                                                     million.\14\
Motor carriers (passenger)........          12,184  99% below $15
                                                     million.\15\
Freight forwarders................     \16\ 14,319  97% below $27.5
                                                     million.
Property brokers..................          21,565  99% below $27.5
                                                     million.
------------------------------------------------------------------------
Source: Motor carrier (passenger), and property broker numbers is
  updated from the Initial Regulatory Flexibility Act analysis (IRFA) to
  reflect revisions reported in ``2014 Pocket Guide to Large Truck and
  Bus Statistics,'' Federal Motor Carrier Administration, October 2014.
  The 2014 Pocket Guide is available at http://www.fmcsa.dot.gov/safety/data-and-statistics/commercial-motor-vehicle-facts.

C. Assistance for Small  Entities
---------------------------------------------------------------------------

    \13\ Includes interstate motor carriers and intrastate hazardous 
materials motor carriers.
    \14\ The results show that 99 percent of all motor carriers 
(property) with recent activity have 148 PUs or fewer.
    \15\ The methodology used to determine the percentage of motor 
carriers (property and passenger) is the same methodology described 
in detail at pages 31 through 34 of the September 2014 Initial RFA 
prepared for the proposed rule on Motor Carrier Safety Fitness 
Determination.
    \16\ The number of freight forwarders reported (21,809) in the 
IFRA was obtained from the U.S Census Bureau 2007 Economic Census. 
The 21,809 entities are the number of establishments, not the number 
of firms that operated for all or part of 2007. An establishment is 
a place of business. A firm may operate out of more than one 
establishment. Hence, the number of firms is a subset of the number 
of establishment. In the 2007 Economic Census, 15,180 firms were 
classified to NAICS Code 488510-Freight Transportation Arrangement. 
The number of firms that operated for all or part of the year 
accounted for 69.6 percent of establishments (15,180 / 21,809). The 
product of 69.9 percent and 20,573 establishments reported the 2012 
Economic Census yielded an estimated 14,319 firms in 2012. These 
data are available on the Census Bureau American Fact Finder Web 
site at http://factfinder.census.gov/faces/nav/jsf/pages/searchresults.xhtml?refresh=t.
---------------------------------------------------------------------------

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this rule so that they can better evaluate its effects 
on themselves and participate in the rulemaking initiative. If the rule 
affects your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult the FMCSA point of contact, Mr. Charles 
Medalen, listed in the FOR FURTHER INFORMATION CONTACT section of this 
rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the SBA's Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy ensuring the rights of small entities to 
regulatory enforcement fairness and an explicit policy against 
retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

    This rule will not impose an unfunded Federal mandate, as defined 
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.), 
that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $155 
million (which is the value of $100 million in 2015 after adjusting for 
inflation) or more in any 1 year.

E. Federalism (E.O. 13132)

    A rulemaking has implications for Federalism under section 1(a) of 
E.O. 13132 if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on State or local governments. FMCSA analyzed 
this action in accordance with E.O. 13132. This rule does not preempt 
or modify any provision of State law, impose substantial direct 
unreimbursed compliance costs on any State, or diminish the power of 
any State to enforce its own laws. FMCSA has determined that this rule 
will not have substantial direct costs on or for States nor will it 
limit the policymaking discretion of States. Accordingly, this 
rulemaking does not have Federalism implications.

F. Civil Justice Reform (E.O. 12988)

    This rule meets applicable standards in sections 3(a) and 3(b) (2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

G. Protection of Children (E.O. 13045)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this rule is not economically 
significant. Therefore, no analysis of the impacts on children is 
required. In any event, the Agency does not anticipate that this 
regulatory action could in any respect present an environmental or 
safety risk that could disproportionately affect children.

H. Taking of Private Property (E.O. 12630)

    FMCSA reviewed this rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have takings implications.

I. Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment (PIA) of this rule as 
required by section 522(a)(5) of division H of the FY 2005 Omnibus 
Appropriations Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004). 
The assessment considered impacts of the final rule on the privacy of 
information in an identifiable form and related matters. The final rule 
will impact the handling of personally identifiable information (PII). 
FMCSA has evaluated the risks and effects the rulemaking might have on 
collecting, storing, and sharing PII and has evaluated protections and 
alternative information handling processes in developing the final rule 
in order to mitigate potential privacy risks.
    For the purposes of both transparency and efficiency, the privacy 
analysis conforms to the DOT standard Privacy Impact Assessment (PIA) 
and will be published on the DOT Web site at www.dot.gov/privacy 
concurrently with the publication of the rule. The PIA addresses the 
rulemaking, associated business processes contemplated in the rule and 
any information known about the systems or existing systems to be 
implemented in support of the final rulemaking. A PIA for the Coercion 
NPRM was previously developed and is

[[Page 74708]]

currently available to the public on the DOT Web site at www.dot.gov/privacy. The PIA has been reviewed, and revised as appropriate, to 
reflect the final rule and will be published not later than the date on 
which the Department initiates any of the activities contemplated in 
the Final Rule determined to have an impact on individuals' privacy and 
not later than the date on which the system (if any) supporting 
implementation of the Final Rule is updated.
    As required by the Privacy Act, FMCSA and the Department will 
publish, with request for comment, a revised system of records notice 
(SORN) that will cover the collection of information that is affected 
by this final rule. Since coercion complaints will be stored in the 
National Consumer Complaint Database (NCCDB), the SORN for the NCCDB 
(DOT/FMCSA 004--National Consumer Complaint Database (NCCDB)--75 FR 
27051--May 13, 2010) will be revised to reflect the new collection of 
information and published in the Federal Register not less than 30 days 
before the Agency is authorized to collect or use PII retrieved by 
unique identifier. Additionally, FMCSA will revise the PIA for NCCDB 
(formally the Safety Violations and Household Goods Consumer Complaint 
Hotline Database) posted on June 6, 2006 and an updated PIA will be 
available to the public on the DOT Web site at www.dot.gov/privacy.
    The privacy risks and effects associated with the cases resulting 
from this rule are not unique and have previously been addressed by the 
enforcement case file storage requirements in the Electronic Document 
Management System (EDMS) PIA posted on June 6, 2006 and the DOT/FMCSA 
005--Electronic Document Management System SORN (71 FR 35727) published 
on June 21, 2006.

J. Intergovernmental Review (E.O. 12372)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

K. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. Information submitted by drivers alleging coercion is 
exempt from PRA requirements because it is collected pursuant to ``an 
administrative action or investigation involving an agency against 
specific individuals or entities'' [44 U.S.C. 3518(c)(1)(B)(ii)].

L. National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rule in accordance with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). FMCSA 
conducted an environmental assessment and determined that the rule has 
the potential for minor environmental impacts. Based on the limited 
data FMCSA has concerning the extent of the affected CMV driver 
population, these impacts would be very small and FMCSA does not expect 
any significant impacts to the environment from this rule. The 
environmental assessment has been placed in the rulemaking docket.
    In addition to the NEPA requirements to examine impacts on air 
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) 
also requires FMCSA to analyze the potential impact of its actions on 
air quality and to ensure that FMCSA actions conform to State and local 
air quality implementation plans. The additional contributions to air 
emissions from any of the alternatives are expected to fall below the 
CAA de minimis thresholds as per 40 CFR 93.153 and are, therefore, not 
expected to be subject to the Environmental Protection Agency's General 
Conformity Rule (40 CFR parts 51 and 93).

M. Environmental Justice (E.O. 12898)

    FMCSA evaluated the environmental effects of this rule in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor is 
there any collective environmental impact resulting from its 
promulgation. Environmental justice issues would be raised if there 
were a ``disproportionate'' and ``high and adverse impact'' on minority 
or low-income populations. None of the alternatives analyzed in the 
Agency's EA, discussed under National Environmental Policy Act, would 
result in high and adverse environmental impacts.

N. Energy Supply, Distribution, or Use (E.O. 13211)

    FMCSA has analyzed this rule under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. The Agency has determined that it is not a ``significant energy 
action'' under that order because it is not a ``significant regulatory 
action'' likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, it does not require a 
Statement of Energy Effects under E.O. 13211.

O. Indian Tribal Governments (E.O. 13175)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

P. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

List of Subjects

49 CFR Part 386

    Administrative practice and procedures, Brokers, Freight 
forwarders, Hazardous materials transportation, Highway safety, Motor 
carriers, Motor vehicle safety, Penalties.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, FMCSA amends parts 386 and 
390 in 49 CFR chapter III, subchapter B, as follows:

PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS

0
1. The authority citation for part 386 continues to read as follows:

    Authority:  49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 
311, 313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 
U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; 
Sec. 206, Pub. L.

[[Page 74709]]

106-159, 113 Stat.1763; subtitle B, title IV of Pub. L. 109-59; and 
49 CFR 1.81 and 1.87.

0
2. Revise the heading of part 386 as set forth above.

0
3. Amend Sec.  386.1 by revising paragraph (a) and adding paragraph (c) 
to read as follows:


Sec.  386.1  Scope of the rules in this part.

    (a) Except as indicated in paragraph (c) of this section, the rules 
in this part govern proceedings before the Assistant Administrator, who 
also acts as the Chief Safety Officer of the Federal Motor Carrier 
Safety Administration (FMCSA), under applicable provisions of the 
Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350-
399), including the commercial regulations (49 CFR parts 360-379), and 
the Hazardous Materials Regulations (49 CFR parts 171-180).
* * * * *
    (c) The rules in Sec.  386.12(e) govern the filing by a driver and 
the handling by the appropriate Division Administrator of complaints of 
coercion in violation of Sec.  390.6 of this subchapter.

0
4. Amend Sec.  386.12 as follows:
0
a. Revise the section heading;
0
b. Add and reserve paragraph (d); and
0
c. Add paragraph (e).


Sec.  386.12  Complaints.

* * * * *
    (d) [Reserved]
    (e) Complaint of coercion. (1) A driver alleging a violation of 
Sec.  390.6(a)(1) or (2) of this subchapter must file a written 
complaint with FMCSA stating the substance of the alleged coercion no 
later than 90 days after the event. The written complaint, including 
the information described below, must be filed with the National 
Consumer Complaint Database at http://nccdb.fmcsa.dot.gov or the FMCSA 
Division Administrator for the State where the driver is employed. The 
Agency may refer a complaint to another Division Administrator who the 
Agency believes is best able to handle the complaint. Information on 
filing a written complaint may be obtained by calling 1-800-DOT-SAFT 
(1-800-368-7238). Each complaint must be signed by the driver and must 
contain:
    (i) The driver's name, address, and telephone number;
    (ii) The name and address of the person allegedly coercing the 
driver;
    (iii) The provisions of the regulations that the driver alleges he 
or she was coerced to violate; and
    (iv) A concise but complete statement of the facts relied upon to 
substantiate each allegation of coercion, including the date of each 
alleged violation.
    (2) Action on complaint of coercion. Upon the filing of a complaint 
of coercion under paragraph (e)(1) of this section, the appropriate 
Division Administrator shall determine whether the complaint is non-
frivolous and meets the requirements of paragraph (e)(1).
    (i) If the Division Administrator determines that the complaint is 
non-frivolous and meets the requirements of paragraph (e)(1) of this 
section, he/she shall investigate the complaint. The complaining driver 
shall be timely notified of findings resulting from such investigation. 
The Division Administrator shall not be required to conduct separate 
investigations of duplicative complaints.
    (ii) If the Division Administrator determines the complaint is 
frivolous or does not meet the requirements of paragraph (e)(1) of this 
section, he/she shall dismiss the complaint and notify the driver in 
writing of the reasons for such dismissal.
    (3) Protection of complainants. Because prosecution of coercion in 
violation of Sec.  390.6 of this subchapter will require disclosure of 
the driver's identity, the Agency shall take every practical means 
within its authority to ensure that the driver is not subject to 
harassment, intimidation, disciplinary action, discrimination, or 
financial loss as a result of such disclosure. This will include 
notification that 49 U.S.C. 31105 includes broad employee protections 
and that retaliation for filing a coercion complaint may subject the 
alleged coercer to enforcement action by the Occupational Safety and 
Health Administration.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
5. Revise the authority citation for part 390 to read as follows:

    Authority:  49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; 
sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; 
sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended 
by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-
1744), sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; and 49 CFR 
1.81, 1.81a and 1.87.

0
6. Revise Sec.  390.3(a) to read as follows:


Sec.  390.3  General applicability.

    (a)(1) The rules in subchapter B of this chapter are applicable to 
all employers, employees, and commercial motor vehicles that transport 
property or passengers in interstate commerce.
    (2) The rules in 49 CFR 386.12(e) and 390.6 prohibiting the 
coercion of drivers of commercial motor vehicles operating in 
interstate commerce:
    (i) To violate certain safety regulations are applicable to all 
motor carriers, shippers, receivers, and transportation intermediaries; 
and
    (ii) To violate certain commercial regulations are applicable to 
all operators of commercial motor vehicles.
* * * * *

0
7. Amend Sec.  390.5 by adding definitions of ``Coerce or Coercion,'' 
``Receiver or consignee,'' ``Shipper,'' and ``Transportation 
intermediary,'' in alphabetical order, to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Coerce or Coercion means either--
    (1) A threat by a motor carrier, shipper, receiver, or 
transportation intermediary, or their respective agents, officers or 
representatives, to withhold business, employment or work opportunities 
from, or to take or permit any adverse employment action against, a 
driver in order to induce the driver to operate a commercial motor 
vehicle under conditions which the driver stated would require him or 
her to violate one or more of the regulations, which the driver 
identified at least generally, that are codified at 49 CFR parts 171-
173, 177-180, 380-383, or 390-399, or Sec. Sec.  385.415 or 385.421, or 
the actual withholding of business, employment, or work opportunities 
or the actual taking or permitting of any adverse employment action to 
punish a driver for having refused to engage in such operation of a 
commercial motor vehicle; or
    (2) A threat by a motor carrier, or its agents, officers or 
representatives, to withhold business, employment or work opportunities 
or to take or permit any adverse employment action against a driver in 
order to induce the driver to operate a commercial motor vehicle under 
conditions which the driver stated would require a violation of one or 
more of the regulations, which the driver identified at least 
generally, that are codified at 49 CFR parts 356, 360, or 365-379, or 
the actual withholding of business, employment or work opportunities or 
the actual taking or permitting of any adverse employment action to 
punish a driver for refusing to engage in such operation of a 
commercial motor vehicle.
* * * * *
    Receiver or consignee means a person who takes delivery from a 
motor carrier or driver of a commercial motor vehicle of property 
transported in interstate commerce or hazardous materials

[[Page 74710]]

transported in interstate or intrastate commerce.
* * * * *
    Shipper means a person who tenders property to a motor carrier or 
driver of a commercial motor vehicle for transportation in interstate 
commerce, or who tenders hazardous materials to a motor carrier or 
driver of a commercial motor vehicle for transportation in interstate 
or intrastate commerce.
* * * * *
    Transportation intermediary means a person who arranges the 
transportation of property or passengers by commercial motor vehicle in 
interstate commerce, or who arranges the transportation of hazardous 
materials by commercial motor vehicle in interstate or intrastate 
commerce, including but not limited to brokers and freight forwarders.
* * * * *

0
8. Add Sec.  390.6 to read as follows:


Sec.  390.6  Coercion prohibited.

    (a) Prohibition. (1) A motor carrier, shipper, receiver, or 
transportation intermediary, including their respective agents, 
officers, or representatives, may not coerce a driver of a commercial 
motor vehicle to operate such vehicle in violation of 49 CFR parts 171-
173, 177-180, 380-383 or 390-399, or Sec. Sec.  385.415 or 385.421;
    (2) A motor carrier or its agents, officers, or representatives, 
may not coerce a driver of a commercial motor vehicle to operate such 
vehicle in violation of 49 CFR parts 356, 360, or 365-379.
    (b) Complaint process. (1) A driver who believes he or she was 
coerced to violate a regulation described in paragraph (a)(1) or (2) of 
this section may file a written complaint under Sec.  386.12(e) of this 
subchapter.
    (2) A complaint under paragraph (b)(1) of this section shall 
describe the action that the driver claims constitutes coercion and 
identify the regulation the driver was coerced to violate.
    (3) A complaint under paragraph (b)(1) of this section may include 
any supporting evidence that will assist the Division Administrator in 
determining the merits of the complaint.

    Issued under the authority of delegation in 49 CFR 1.87 on: 
November 23, 2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-30237 Filed 11-27-15; 8:45 am]
 BILLING CODE 4910-EX-P

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