Coercion of Commercial Motor Vehicle Drivers; Prohibition, 27265-27274 [2014-10722]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 79, Number 92 (Tuesday, May 13, 2014)]
[Proposed Rules]
[Pages 27265-27274]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10722]



[[Page 27265]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386 and 390

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


Coercion of Commercial Motor Vehicle Drivers; Prohibition

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

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: FMCSA proposes to adopt 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 and 
the commercial driver's license (CDL) regulations and associated drug 
and alcohol testing rules--or the Hazardous Materials Regulations 
(HMRs). In addition, the NPRM would prohibit anyone who operates a CMV 
in interstate commerce from coercing a driver to violate the commercial 
regulations. This NPRM includes procedures for drivers to report 
incidents of coercion to FMCSA, rules of practice the Agency would 
follow in response to allegations of coercion, and describes penalties 
that may be imposed on entities found to have coerced drivers. This 
proposed 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: You may submit comments by August 11, 2014.

ADDRESSES: You may submit comments identified by the docket number 
FMCSA-2012-0377 using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov.
     Fax: 1-202-493-2251.
     Mail: Docket Services, U.S. Department of Transportation, 
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building, 
1200 New Jersey Avenue SE., Washington, DC 20590 between 9 a.m. and 5 
p.m. e.t., Monday through Friday, except Federal holidays.

To avoid duplication, please use only one of these four methods. See 
the ``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

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., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION: This NPRM is organized as follows.

Table of Contents

I. Public Participation and Request for Comments
II. Executive Summary
III. Acronyms and Abbreviations
IV. Legal Basis for This Rulemaking
V. Background
VI. FMCSA Proposal
VII. Section-by-Section Description
VIII. Regulatory Analyses

I. Public Participation and Request for Comments

    FMCSA invites you to participate in this rulemaking by submitting 
comments and related materials.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2012-0377), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to https://www.regulations.gov and 
in the search box insert the docket number ``FMCSA-2012-0377'' and 
click the search button. When the new screen appears, click on the blue 
``Comment Now!'' button and type your comment into the text box in the 
following screen. Choose whether you are submitting your comment as an 
individual or on behalf of a third party and then submit. If you submit 
your comments by mail or hand delivery, submit them in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying and 
electronic filing. If you submit comments by mail and would like to 
know that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble as being available in the docket online, go to https://www.regulations.gov and in the search box insert the docket number 
``FMCSA-2012-0377'' in the Keyword box and click ``Search.'' Next, 
click ``Open Docket Folder'' and you will find all documents and 
comments related to the proposed rulemaking. If you do not have access 
to the Internet, you may view the docket online by visiting the Docket 
Services in Room W12-140 on the ground floor of the Department of 
Transportation West Building, 1200 New Jersey Avenue SE., Washington, 
DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays.

C. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the DOT 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on December 29, 2010 (75 FR 82132), 
or you may visit https://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.

II. Executive Summary

Purpose and Summary of the Major Provisions

    Congress mandated that FMCSA ensure that any regulations adopted 
pursuant to the Motor Carrier Safety Act of 1984 (MCSA), as amended the 
Moving Ahead for Progress in the 21st Century Act (MAP-21), do not 
result in coercion of drivers by motor carriers, shippers, receivers, 
or transportation intermediaries. This MAP 21 provision authorizes 
FMCSA to prohibit these entities from coercing drivers to operate CMVs 
in violation of certain provisions of the FMCSRs or the HMRs. That part 
of the proposed rulemaking is authorized by sec. 32911 of MAP-21. FMCSA 
proposes to utilize the broad authority of MCSA [49 U.S.C. 31136(A)(1)-
(4)] and authorities transferred from the former Interstate Commerce 
Commission (ICC) under the ICC Termination Act [49 U.S.C. 13301(a)] to 
prohibit operators of CMVs from coercing drivers to violate certain

[[Page 27266]]

provisions of the Agency's commercial regulations.
    The major provisions of this NPRM include prohibitions of coercion, 
procedures for drivers to report incidents of coercion to FMCSA, and 
rules of practice the Agency would follow in response to allegations of 
coercion.

Benefits and Costs

    The FMCSA believes that this rulemaking would not create an 
economically significant impact. The motor carriers, freight 
forwarders, brokers and transportation intermediaries that previously 
engaged in acts of coercion against truck or bus drivers will incur 
compliance cost to operate in accordance with regulations, and they 
would lose whatever economic benefit that the coercion had gained them. 
There would be safety benefits from that increased compliance with 
regulations and driver health benefits if hours of service violations 
decreased. By foregoing acts of coercion, the drivers would conduct 
their safety-sensitive work in a manner consistent with the applicable 
Federal regulations. During the four-year period from 2009 through 
2012, there were 253 OSHA whistleblower complaints with merit and 20 
Office of the Inspector General (OIG) investigations concerning acts of 
coercion by motor carriers. This is an average of 68.25 acts of 
coercion per year during the four-year period. The Agency estimates it 
would be less than the $100 million threshold required for economic 
significance under E.O. 12866.

III. Acronyms and Abbreviations

CDL Commercial Driver's License
CMV Commercial Motor Vehicle
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
HOS Hours of Service
HMRs Hazardous Materials Regulations
ICC Interstate Commerce Commission
MAP-21 Moving Ahead for Progress in the 21st Century
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

IV. Legal Basis for This Rulemaking

    This proposed rule is based on the authority of the Motor Carrier 
Safety Act of 1984 (MCSA or 1984 Act) [49 U.S.C. 31136(a)], as amended 
by the Moving Ahead for Progress in the 21st Century Act (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 (ICCTA) 
[Pub. L. 104-88 (Dec. 29, 1995) [Pub. L. 104-88, 109 Stat. 803, 
December 29, 1995].
    The 1984 Act confers on the Department of Transportation (DOT) 
authority to regulate drivers, motor carriers, and vehicle equipment.

    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)].
    The NPRM includes two separate prohibitions. One would prohibit 
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 hazardous material regulations). This is required by 
49 U.S.C. 31136(a)(5).
    A second provision would prohibit 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 broad authority transferred from 
the former Interstate Commerce Commission to prescribe regulations to 
carry out Part B of Subtitle IV of Title 49, U.S.C. 13301(a). This 
prohibition would apply 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 would ensure against most kinds of 
coercion drivers might encounter.
    This proposed rule would also adopt procedures for drivers to 
report coercion and rules of practice the Agency would follow.
    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 proposed rule.

V. 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 whose actions have an impact on CMV 
safety.
    Economic pressure in the motor carrier industry affects commercial 
drivers in ways that can affect safety adversely. For years, drivers 
have

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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 
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 on a schedule that would be impossible to meet 
without violating HOS or other regulations. Drivers may 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.
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    \1\ See 76 FR 81162.
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    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 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 the Agency inherited in the ICC Termination Act of 1995, 
FMCSA proposes to adopt such 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 Motor Carrier Safety 
Act of 1984 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'' would be this 
NPRM'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 proposed 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 Interstate 
Commerce Commission, 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.

    The proposed prohibitions on coercion would be issued under 
subchapter III of chapter 311--namely 49 U.S.C. 31136(a)--and the 
statutory penalty in sec. 521(b)(2)(A) would therefore be applicable. 
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 inflation-adjusted civil penalty per offense would be $11,000 49 
CFR part 386, App. B, Paragraph (a)(3).

VI. FMCSA Proposal

    The Agency's proposal would add Sec.  390.6(a)(1) to 49 CFR part 
390. It would prohibit motor carriers, shippers, receivers, and 
transportation intermediaries from threatening drivers with loss of 
work or other economic opportunities for refusing to operate a CMV 
under circumstances that those entities knew, or should have known, 
would require the driver to violate 49 CFR parts 171-173, 177-180, 380-
383, or 390-399, or Sec. Sec.  385.105(b), 385.111(a), (c)(1), or (g), 
or 385.415, or 385.421. Section 390.6(a)(2) would prohibit motor 
carriers from using those threats to compel drivers to operate such 
vehicles in violation of 49 CFR parts 356, 360, or 365-379.
    The standard ``knew, or should have known'' 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). In most cases, FMCSA holds motor carriers 
responsible for the actions of their drivers (see, Sec.  390.11). 
Because a carrier is responsible for its drivers' compliance with the 
hours of service (HOS) regulations, it has an affirmative duty before 
assigning a trip to ensure that the driver has sufficient time left 
under the HOS rules to complete that run. When a shipper, receiver, or 
transportation intermediary directs a driver to complete a run within a 
certain time, it has assumed the role normally reserved to the driver's 
employer. As such, it may commit coercion if it fails to heed a 
driver's objection that the request would require him/her to break the 
rules. The shipper, receiver, or transportation intermediary will not 
be excused from liability for coercion because it did not inquire about 
the driver's time remaining or pretended not to hear the objection. 
When directing the driver's actions, these entities ``should have 
known'' whether the driver could complete the run without violating the 
FMCSRs.
    An act of coercion by a carrier, shipper, receiver, or 
transportation intermediary does not absolve the driver of his 
responsibility to comply with safety regulations, including the HOS 
rules. Furthermore, FMCSA's definition of coercion prohibits threats by 
carriers, shippers, receivers, or transportation intermediaries to 
withhold future business from a driver for objecting to

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operate a vehicle in violation of the safety regulations. A threat 
would not constitute coercion unless the driver objects or attempts to 
object to the operation of the vehicle for reasons related to the HOS 
(or other) regulations. FMCSA invites comments on whether--and, if so, 
how--drivers may modify their interactions with shippers, receivers, 
and transportation intermediaries in response to this rule.
    In cases of coercion, FMCSA could impose a civil penalty not to 
exceed $11,000 per offense. In addition, FMCSA is authorized to 
suspend, amend, or revoke the operating authority registration of a 
for-hire motor carrier, broker, or freight forwarder for ``willful 
failure to comply with . . . an applicable regulation or order of the 
Secretary . . .'' [49 U.S.C. 13905(d)]. One of the ``applicable 
regulation[s]'' that could trigger the suspension or revocation of 
operating authority is proposed 49 CFR 390.6. The proposed rule against 
coercion, of course, would apply as well to private motor carriers that 
do not need operating authority registration; the only available 
penalties in that case would be financial.
    The Agency has announced plans to conduct a survey of drivers and 
carriers that addresses the issue of harassment and coercion through 
the use of electronic logging devices (ELDs) and related technologies 
(77 FR 74267, May 28, 2013). The Agency will consider the results of 
the survey as part of its efforts to ensure that the ELD rulemaking 
does not increase the likelihood of harassment or coercion of drivers, 
as required by sec. 32301(b) of MAP-21. Today's rulemaking proposal 
deals with coercion in a context broader than electronic logging 
devices. It is important that comments specific to the supplemental 
NPRM on electronic logging devices, which was published March 28, 2014 
(79 FR 17656), are directed to that rulemaking (docket  FMCSA-
2010-0167).
    The Agency specifically welcomes your comments on what types of 
coercion are likely to occur. FMCSA believes most allegations of 
coercion will involve the HOS regulations or vehicle maintenance, but 
welcomes comments on any kind of coercion that this rule may address.
    Motor carriers that operate CMVs must be aware that they may not 
coerce drivers to violate the commercial regulations specified in Sec.  
390.6(a)(2).
    There may be some overlap between the anti-coercion provisions of 
this proposed rule and the employee protection provision of the Surface 
Transportation Assistance Act (STAA), administered by the Labor 
Department (see, 49 U.S.C. 31105, 29 CFR 1978.100, et seq.). STAA and 
the regulations prohibit, among other things, the discharge or 
discipline of, or discrimination against, a driver concerning pay or 
terms or privileges of employment when a driver refuses to operate a 
vehicle because it violates a U.S. CMV safety or health standard or 
because the driver has a reasonable apprehension of serious injury to 
him- or herself or the public as a result of the vehicle's unsafe 
condition [49 U.S.C. 31105(a)(1)]. If the Labor Department determines 
that a driver was fired or suffered any adverse action for thus 
refusing to compromise safety, it can order the employer to reinstate 
the driver, pay back pay and compensatory damages, pay punitive damages 
up to $250,000 where warranted, and take other remedial actions.
    The Labor Department's mandate under 49 U.S.C. 31105 is to protect 
drivers from discharge or other discrimination based on a driver's 
refusal to violate safety regulations, among other things, and it has 
broad authority to pursue that goal. FMCSA's mandate is safety. Under 
sec. 32911 and the broad provisions of the 1984 Act, as amended by MAP-
21, FMCSA has a mandate to protect drivers by deterring coercion to 
violate the FMCSRs but the Agency has no authority to compensate 
drivers who experience coercion. The remedies available to FMCSA are 
civil penalties in all cases and the suspension or revocation of 
operating authority in some cases. A driver who files a complaint about 
discharge or other discrimination with OSHA may be able to file a 
complaint about coercion with FMCSA.
    Drivers alleging illegal discrimination or discipline under 29 CFR 
1978.100, et seq., or coercion under 49 CFR 390.6, bear a substantial 
burden of proof. Neither OSHA nor FMCSA can proceed without evidence 
and the driver will have to provide much of that evidence. The proposed 
new complaint procedures in 49 CFR 386.12(e) and 390.6(b) allow drivers 
to present whatever evidence they have to substantiate an allegation of 
coercion.
    Parties that violate the prohibition of coercion would be subject 
to a maximum civil penalty of $11,000 per violation. Furthermore, a 
violation of section 390.6 by a motor carrier would be an acute 
violation under Appendix B, section VII of part 385, and thus could 
potentially affect the carrier's safety fitness rating.
    In determining the amount of any civil penalty, Congress instructed 
FMCSA to consider a number of factors, including the nature, 
circumstances, extent, and gravity of the violation committed, as well 
as the degree of culpability, history of prior offenses, effect on the 
ability to continue to do business, and other such matters as justice 
and public safety may require. Congress instructed FMCSA to calculate 
each penalty to induce further compliance [49 U.S.C. 521(b)(2)(D)]. 
Congress, however, entrusted FMCSA with the responsibility to ensure 
motor carriers operate safely by imposing penalties designed to ensure 
prompt and sustained compliance with safety laws (section 222 of the 
Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 
113 Stat. 1769, Dec. 9, 1999, 49 U.S.C. 521 note].

VII. Section-by-Section Description

A. Part 385

    The rule would make Sec.  390.6(a)(1) and (2) ``acute'' regulations 
in section VII of Appendix B to 49 CFR part 385.

B. Part 386

    Section 386.1, ``Scope of the rules in this part,'' would be 
amended by adding a new paragraph (c) referring to the filing and 
handling of coercion complaints under new Sec.  386.12(e).
    The title of Sec.  386.12 would be changed to ``Complaint of 
substantial violation,'' which is the subject of that section. A new 
Sec.  386.12(e), ``Complaint of coercion,'' would be added. The 
procedures to file and handle coercion complaints would be essentially 
the same as those for substantial violations, except that the complaint 
would be filed with the FMCSA Division Administrator of the State where 
the driver was when the alleged coercion occurred.

C. Part 390

    Section 390.3(a) would be 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 would be 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'' would 
make these entities 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

[[Page 27269]]

and contract with motorcoach operators for transportation services. 
Such intermediaries and their agents are subject to the prohibition on 
coercion. Because the hazardous materials regulations 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.
    Section 390.6(a)(1) would be 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.  385.105(b), 385.111(a), (c)(1), or (g), 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 hazardous 
materials regulations applicable to highway transportation that were 
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 adopted 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) would be 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) would describe the procedures for a driver to file 
a complaint of coercion with FMCSA.

VIII. Regulatory Analyses

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

    FMCSA has determined preliminarily that this proposed 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 proposed rule would not exceed the $100 million annual 
threshold (as explained below). The Agency expects the proposed rule to 
have substantial congressional and public interest because it would 
potentially impose civil penalties on entities not previously subject 
to the Agency's jurisdiction (shippers, receivers, and transportation 
intermediaries).
    This NPRM would prohibit motor carriers, shippers, receivers and 
transportation intermediaries from threatening drivers who refuse to 
operate a CMV under certain circumstances with loss of employment, 
future business, or other economic harm. Additionally, it would 
prohibit operators of CMVs from making the same threats to induce 
drivers to violate 49 CFR parts 356, 360, or 365-379. FMCSA is 
proposing to add to Appendix B in 49 CFR part 385 new paragraphs that 
would define Sec.  390.6(a)(1) and (2) as acute regulations with 
respect to motor carriers.
Extent of Economic Impact
    The 1982 Surface Transportation Assistance Act (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 between FY 2009 and FY 
2012.\3\ OSHA found that 253 of them (22 percent) had merit.\4\ 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.\5\ The average number 
of verified complaints for that 4-year period was therefore 68.25 per 
year [253 + 20/4 = 68.25].
---------------------------------------------------------------------------

    \3\ U.S. Department of Labor, Occupational Safety & Health 
Administration (OSHA), Whistleblower Protection Program: 
Investigative Data Fact Sheets. Available at https://www.whistleblowers.gov/wb_data_FY05-12.pdf.
    \4\ Ibid., Footnote 3.
    \5\ 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 https://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 would 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 proposed 
rule has that effect--and incurring the higher costs of compliance, 
would also be low. 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 chilling 
effect on entities considering coercion.
    The roughly 68 annual complaints estimated 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 small, and 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 of 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.
Costs
    This rule, as an enforcement measure, would impose compliance costs 
on carriers and other business entities in the trucking industry. If 
drivers now operate CMVs in violation of hours of service rules, or if 
coercion had caused drivers with mechanical defects, carriers would 
potentially have to reorganize

[[Page 27270]]

their schedules or hire new drivers to operate in compliance. 
Maintenance and other costs might also increase as a result of this 
rule. 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 claims deemed to have merit will not have a large cost.
    If, as a result of this rule, shippers, receivers, and 
transportation intermediaries begin to inquire about drivers' available 
hours under the HOS rules when they had not previously done so, there 
may be additional costs to those parties that FMCSA has not calculated 
and cannot estimate. The Agency invites comments and solicits 
information on this question.
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 due to the small number of 
expected cases each year. Therefore, the Agency believes that the 
proposed rule will not be economically significant. FMCSA welcomes the 
submission of any relevant comments, data, or other materials. This 
proposed rule has been reviewed by the Office of Management and Budget 
(OMB).

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.\6\ 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.
---------------------------------------------------------------------------

    \6\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see 
National Archives at https://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 proposed 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 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 $25.5 
million \7\ 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 $14 
million.\8\
---------------------------------------------------------------------------

    \7\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
System Codes (NAICS), effective January, 2012. See NAIC subsector 
484 (Truck Transportation) and 488 Support Activities for 
Transportation).
    \8\ The Small Business Administration increased the annual 
revenue small business threshold for passenger carriers from $7 
million to $14 million in a final rule titled, ``Small Business 
Standards: Transportation and Warehousing (77 FR 10943, February 24, 
2012).
---------------------------------------------------------------------------

    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 $14 million threshold, there is an exception for 
``non-vessel household goods forwarders.'' This exception stipulates 
that the revenue threshold, for this sub-set of freight forwarders in 
the trucking industry is $25.5 million. As indicated in the above, 
fewer than 70 coercion complaints per year have been filed with OSHA 
and FMCSA in the past few years. We have no reason to believe that 
number will increase significantly under the rule. In fact, the 
potential penalty for coercing a driver should have a deterrent effect. 
Even if the penalty assessed might have a ``significant economic 
impact'', the limited number of recent coercion complaints suggests 
that the penalty would not affect ``a substantial number of small 
entities'' given that there are nearly 500,000 firms in the industry 
that qualify as small entities.
    This rule does not affect industry productivity by requiring new 
documentation, affecting labor productivity or availability, or 
increased expenditures on maintenance or new equipment. The fines that 
are the only impact 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 its 
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 
proposed action would not have a significant economic impact on a 
substantial number of small entities.
---------------------------------------------------------------------------

    \9\ Includes interstate motor carriers and intrastate hazardous 
materials motor carriers.
    \10\ The results show that 99 percent of all carriers with 
recent activity have 148 PUs or fewer.
    The SBA increased the annual revenue small business threshold 
for passenger carriers from $7 million to $14 million in a final 
rule titled, ``Small Business Standards: Transportation and 
Warehousing. (77 FR 10943, February 24, 2012). This based on a 
supposition that a passenger carrying CMV generates annual revenues 
of $150,000. The analysis concluded that passenger carriers with 93 
PUs or fewer ($14 million/$150,000/PU) = 93.3 PUs.
    \12\ U.S. Department of Commerce, U.S. Census Bureau: 2007 
Economic Census--Transportation and Warehousing Available at https://www.census.gov/econ/industry/hierarchy/i488510.htm for NAICS code 
4885.

[[Page 27271]]



                            Table 1--Total Number of Entities and Determination, 2012
----------------------------------------------------------------------------------------------------------------
               Type of entity                    Number                         Determination
----------------------------------------------------------------------------------------------------------------
Motor carriers (property)..................     \9\ 519,558  99% below $25.5 million.\10\
Motor carriers (passenger).................          27,666  99% below $14 million.\11\
Freight forwarders.........................     \12\ 21,809  97% below $25.5 million.
Property brokers...........................          21,565  99% below $25.5 million.
----------------------------------------------------------------------------------------------------------------
Source: Motor carrier property, passenger, and property broker numbers provided by FMCSA's, CMV facts sheet
  March 2013. Available at https://www.fmcsa.dot.gov/documents/facts-research/CMV-Facts.pdf. Freight Forwarder
  source in footnote below.

Assistance for Small Entities

    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 proposed rule so that they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the proposed rule would affect 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 proposed 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.

Unfunded Mandates Reform Act of 1995

    This proposed rule would 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 $143.1 
million (which is the value of $100 million in 2010 after adjusting for 
inflation) or more in any 1 year.

E.O. 13132 (Federalism)

    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 proposed 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 
proposal would not have substantial direct costs on or for States nor 
would it limit the policymaking discretion of States. Accordingly, this 
rulemaking does not have Federalism implications.

E.O. 12988 (Civil Justice Reform)

    This proposed 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.

E.O. 13045 (Protection of Children)

    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 proposed 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.

E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed 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.

Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a Privacy Impact Assessment (PIA) of a regulation that will 
affect the privacy of individuals. In accordance with this Act, a 
privacy impact analysis is warranted to address the collection of 
personally identifiable information contemplated in the proposed 
Coercion rulemaking. The Agency submitted a Privacy Threshold 
Assessment analyzing the proposed collection of personal information to 
the Department of Transportation, Office of the Secretary's Privacy 
Office.
    For the purposes of both transparency and efficiency, the privacy 
analysis will take the form of 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 NPRM. The 
PIA will address the rulemaking, associated business processes 
contemplated in the proposed rule and any information known about the 
systems or existing systems to be implemented in support of the final 
rulemaking. The PIA will be 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.
    Per the Privacy Act, FMCSA will publish a system of records notice 
(SORN) in the Federal Register not less than 30 days before the Agency 
is authorized to collect or use PII retrieved by unique identifier.

E.O. 12372 (Intergovernmental Review)

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

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. There is no

[[Page 27272]]

information collection requirement with this proposed rule.

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this proposed 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 CMV driver population, 
these impacts would be very small and FMCSA does not expect any 
significant impacts to the environment from the proposals in this rule. 
The environmental assessment has been placed in the rulemaking docket. 
FMCSA requests comments on this assessment.
    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).

E.O. 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this proposed rule in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``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.

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

    FMCSA has analyzed this proposed 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.

E.O. 13175 (Indian Tribal Governments)

    This proposed 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.

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 proposed rule 
does not use technical standards. Therefore, we did not consider the 
use of voluntary consensus standards.

List of Subjects

49 CFR Part 385

    Administrative practices and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

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 proposes to amend 
parts 385, 386 and 390 in 49 CFR chapter III, subchapter B, as follows:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 is amended to read as follows:

    Authority:  49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec. 
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L. 
107-87; and 49 CFR 1.81, 1.81a and 1.87.

0
2. Amend the list of acute and critical regulations in section VII of 
Appendix B to part 385 by adding two entries for Sec.  390.6 in 
numerical order to read as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *
Sec.  390.6(a)(1) Coercion of a driver by a motor carrier, shipper, 
receiver, or transportation intermediary to operate a commercial 
motor vehicle in violation of 49 CFR parts 171-173, 177-180, 380-383 
or 390-399, or Sec. Sec.  385.105(b), 385.111(a), (c)(1), or (g), 
385.415, or 385.421 (acute).
Sec.  390.6(a)(2) Coercion of a driver by the operator of a 
commercial motor vehicle to operate that vehicle in violation of 49 
CFR parts 356, 360, or 365-379 (acute).
* * * * *

PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS

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

    Authority: 49 U.S.C. 113, chapters 5, 51, 131-141, 145-149, 311, 
313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 
U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; 
Sec. 206, Pub. L. 106-159, 113 Stat.1763; subtitle B, title IV of 
Pub. L. 109-59; and 49 CFR 1.81 and 1.87.

0
4. Revise the heading of part 386 as set forth above.
0
5. 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

[[Page 27273]]

the appropriate Division Administrator of complaints of coercion in 
violation of Sec.  390.6 of this subchapter.
0
6. Amend Sec.  386.12 as follows:
0
a. Revise the section heading;
0
b. Add and reserve paragraph (d); and
0
c. Add a new paragraph (e).


Sec.  386.12  Complaint of substantial violation.

* * * * *
    (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 of coercion within 60 days after the event with the FMCSA 
Division Administrator for the State where the incident occurred or 
where the party alleged to have coerced the driver has its principal 
place of business. Allegations brought to the attention of other 
officials in the Agency through letter, email, social media, phone 
call, or other means will be referred to the Division Administrator for 
the principal place of business of the entity alleged to have coerced 
the driver. Delays involved in transferring the allegation to the 
appropriate Division Administrator do not stay the 60-day period for 
filing a written complaint. 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 specific 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) of this 
section. 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. 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. If 
after investigation the Division Administrator determines that a 
violation has occurred, the Division Administrator may issue a Notice 
of Violation under Sec.  386.11(b) or a Notice of Claim under Sec.  
386.11(c).
    (c) 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.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
7. 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. 114, 1745; and 49 CFR 
1.81, 1.81a and 1.87.

0
8. 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, which 
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
9. Amend Sec.  390.5 by adding definitions of ``Coerce or Coercion,'' 
``Receiver or cosignee,'' ``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, or the actual withholding of, current or 
future business, employment, or work opportunities from a driver for 
objecting to the operation of a commercial motor vehicle under 
circumstances which the motor carrier, shipper, receiver, or 
transportation intermediary, or their respective agents, officers, or 
representatives, knew, or should have known, would require the driver 
to violate 49 CFR parts 171-173, 177-180, 380-383, or 390-399, or 
Sec. Sec.  385.105(b), 385.111(a), (c)(1), or (g), 385.415, or 385.421; 
or
    (2) A threat by a motor carrier, or its agents, officers or 
representatives, to withhold, or the actual withholding of, current or 
future business, employment, or work opportunities from a driver for 
objecting to the operation of a commercial motor vehicle, or to taking 
other action or to the failure to act, under circumstances which the 
motor carrier, or its agents, officers or representatives knew, or 
should have known would require the driver to violate 49 CFR parts 356, 
360, or 365-379.
* * * * *
    Receiver or consignee means a person who takes delivery from a 
motor carrier or driver of a commercial motor vehicle of property 
transported in interstate commerce or hazardous materials transported 
in interstate or intrastate commerce.
* * * * *
    Shipper means a person who tenders property to a motor carrier or 
driver of a commercial motor vehicle for transportation in interstate 
commerce, or who tenders hazardous materials to a motor carrier or 
driver of a commercial motor vehicle for transportation in interstate 
or intrastate commerce.
* * * * *
    Transportation intermediary means a person who arranges the 
transportation of property or passengers by commercial motor vehicle in 
interstate commerce, or who arranges the transportation of hazardous 
materials by commercial motor vehicle in interstate or intrastate 
commerce, including but not limited to brokers and freight forwarders.
* * * * *
0
10. Add a new 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.  385.105(b), 385.111(a), 
(c)(1), or (g), 385.415, or 385.421;
    (2) A motor carrier or its agents, officers, or representatives, 
may not coerce a driver of a commercial motor

[[Page 27274]]

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 specific action that the driver claims constitutes 
coercion and identify the specific 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: May 5, 
2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-10722 Filed 5-12-14; 8:45 am]
BILLING CODE 4910-EX-P