Memorandum of Understanding
between
The Federal Motor Carrier Safety Administration
U.S. Department of Transportation
and
The Occupational Safety and Health Administration
U.S. Department of Labor

1. PURPOSE

   The primary purpose of this Memorandum of Understanding (MOU) is to facilitate coordination and cooperation between the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) and the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) concerning the anti-retaliation provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, the anti-coercion provision set forth in 49 U.S.C. § 31136(a)(5), and the anti-harassment provision set forth in 49 U.S.C. § 31137(a)(2). The secondary purpose of this MOU is to facilitate the exchange of safety and health allegations, when received by one agency, which are under the authority of the other.

2. PREVIOUS MEMORANDA

   This MOU modifies and supersedes the 2014 MOU of the same. subject and signed by the same parties.

3. BACKGROUND

   Under STAA's employee protection provision, 49 U.S.C. § 31105, enforced by OSHA, a covered employee, i.e., a private-sector driver of a commercial motor vehicle (CMV), including an independent contractor when operating a vehicle, or a driver, mechanic, freight handler, or another individual who directly affects CMV safety or security, is protected from discharge, discipline, or discrimination for engaging in certain protected activities, including:

   • Filing a complaint or beginning a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or testifying in such a proceeding;
   • Refusing to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security,or the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition;
   • Accurately reporting hours on duty pursuant to chapter 315 of Title 49;
   • Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
   • Furnishing information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

   Under 49 C.F.R. § 390.6, the FMCSA regulation issued pursuant to the anti-coercion provision, 49 U.S.C. § 31136(a)(5), motor carriers, shippers, receivers, and transportation intermediaries may not coerce CMV drivers to operate a CMV in violation of certain Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and Federal Motor Carrier Commercial Regulations (FMCCRs), nor take such actions to punish drivers for refusing to operate a CMV in violation of those regulations.

   Under 49 C.F.R. § 390.36, the FMCSA regulation promulgated pursuant to the anti­ harassment provision set forth in 49 U.S.C. § 31137(a)(2), no motor carrier may harass a driver. Harassment is defined as using information from an electronic logging device (ELD) or other technology used in combination with and not separable from the ELD, to engage in harassment of the driver that the motor carrier knew, or should have known, would result in the driver violating 49 C.F.R. § 392.3 (ban on driving while ill or fatigued) or 49 C.F.R. Part 395 (hours-of­ service rules).

   The FMCSA and OSHA each have complementary responsibilities in the area of CMV safety and security and employee protection. OSHA has the responsibility under Section 31105 to investigate employee complaints of violations under this section and may, after an investigation or hearing, as the statute requires: (i) order a violator to take affirmative action to abate the violation; (ii) reinstate the complainant to his or her former position; (iii) award compensatory damages, including back pay with interest, and/or punitive damages, and (iv) award reasonable attorney fees. The Secretary of Transportation has delegated the responsibilities under 49 U.S.C. § 31136(a)(5), 49 U.S.C. § 31105, and 49 U.S.C. § 31137(a)(2) to the FMCSA under 49 CFR § 1.87(f). The FMCSA has the responsibility to take appropriate enforcement action against a commercial motor carrier which violates the safety and security requirements of the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, as codified in 49 C.F.R. Parts 40, 325, 350, and 355 through 399, and the Hazardous Materials Regulations, 49 C.F.R. Parts 171-180. FMCSA enforcement action may include (i) issuing a Notice of Violation to the responsible commercial motor carrier, contractor, and/or individual; (ii) imposing a civil penalty; (iii) issuing an order removing the responsible individual from FMCSA-regulated activities; and/or (iv) denying, suspending, modifying, or revoking a FMCSA-granted privilege. See 49 C.F.R. Part 386.

   Although each agency will carry out its statutory responsibilities independently , the agencies agree that administrative efficiency and the effective implementation of sound enforcement policies will be maximized by cooperation and the timely exchange of other safety allegations that relate to each agency's mission.

4. AREAS OF COOPERATION

   This MOU sets forth the areas of cooperation and a process that FMCSA and OSHA agree to follow.

   When an individual notifies the FMCSA of alleged retaliation because the individual engaged in STAA-protected activity which involves commercial motor vehicle safety and/or security, the FMCSA shall promptly inform the individual that a personal remedy for retaliation is available through OSHA, rather than FMCSA, and that the individual should personally contact OSHA. FMCSA will provide the individual with appropriate contact information for OSHA and will advise the individual that the law requires that complaints be filed with OSHA within 180 days of the alleged retaliation. Contact information for OSHA is listed in Appendix B and can be found online at http://www.whistleblowers.gov/complaint_page.html.

   OSHA, in tum, agrees to promptly notify complainants using OSHA channels that complaints concerning STAA-protected activities involving CMV safety should also be submitted by the complainant to FMCSA via the National Consumer Complaint Database (NCCDB) web site or via written/signed complaint to the appropriate FMCSA Division Administrator. OSHA will refer the individual to submit a complaint via the NCCDB web site at http://nccdb.fmcsa.dot.gov or provide the individual with the mailing address for the appropriate FMCSA Division Administrator. Contact information for FMCSA is listed in Appendix B and can be found online at https://www.fmcsa.dot.gov/mission/field-offices .

   If an individual complains to OSHA of coercion prohibited under 49 C.F.R. § 390.6 or of harassment prohibited by 49 C.F.R. 390.36 OSHA will repeat the steps above for STAA-protected activities involving CMV safety.

   If an individual notifies OSHA instead of FMCSA of safety concerns arising from the operations of a commercial motor carrier, without any related complaint of retaliation, coercion, or harassment, OSHA will provide the individual with the FMCSA complaint hotline number and/or the NCCDB web site address. This information is found in Appendix B. "Other, FMCSA-specific safety allegations arising from the operations of a commercial motor carrier" is defined as allegations under the purview of FMCSA (e.g., unsafe tractor-trailers being used in interstate commerce; unsafe transportation of hazardous material; willful disobedience of rules requiring rest for a commercial vehicle driver after a certain amount of time ("the hours of service rules")).

   FMCSA and OSHA agree to cooperate with each other to the fullest extent possible in every case of alleged retaliation involving employees, and in every case of alleged coercion involving CMV drivers. Upon request of the other agency, each agency agrees to share all information it obtains concerning a particular allegation, and, to the extent permitted by law, will protect information identified as confidential that has been supplied to it by the other agency. This mutual agreement encourages, but does not require, either agency to share information gathered during an investigation until the investigation is complete. This agreement to cooperate includes coordination during any parallel investigations.

   Each agency may ask the other agency for desired data from the other agency's databases, and the other agency will provide the desired data as expeditiously as practicable and to the fullest extent possible. Appendix A to this MOU lists relevant FMCSA databases for this purpose. OSHA should provide the motor carrier's name and USDOT number to the FMCSA Strategic Planning and Program Evaluation Division, which will coordinate the transfer of appropriate information from FMCSA databases. Each agency shall endeavor to provide the requested data within two business days. If the desired data pertains to an individual and will come from a Privacy Act-protected system of records on that individual, OSHA and FMCSA agree that:

   1. The requesting agency makes the request to further a statutory law enforcement activity;
   2. The purpose behind the request is compatible with why the other agency keeps the information (e.g., both relate to motor carrier safety);
   3. The requesting agency shall make the request in writing (if via e-mail, using an official agency e-mail address; if via hard copy mail, using agency letterhead);
   4. The request shall specify the records requested and shall cite the need to implement 49 U.S.C. § 31105; and
   5. The appropriate section chief for the requesting agency shall make the request. For OSHA, appropriate section chiefs are the Director, Directorate of Whistleblower Protection Programs (The Director can further delegate request authority within the Directorate) and the Regional Administrators.

   Each agency shall designate and maintain points of contact within its headquarters for purposes of implementing this MOU and continued program oversight (see Appendix B). If the point of contact changes at any time, the agency will promptly notify the point of contact for the other agency, and provide the contact information for the new point of contact. Matters affecting program procedures and policy issues will be handled by the respective national headquarters office of each agency.

   The agencies agree that training and education are important for this MOU. To the fullest extent possible, each agency will provide training to appropriate personnel from the other agency. FMCSA will endeavor to train appropriate OSHA personnel on how to recognize violations of FMCSA safety regulations and allegations of coercion that should be referred to FMCSA. OSHA will endeavor to train appropriate FMCSA personnel on how to recognize allegations of retaliation or reprisal that should be referred to OSHA, and how to recognize other safety-related allegations that should be referred to OSHA.

   For FMCSA, the Strategic Planning and Program Evaluation Division of the Office of Policy, Strategic Planning, and Regulations shall be the FMCSA point of contact for implementing and overseeing this MOU. OSHA shall make the above-mentioned notifications and request for records to this Division. For OSHA, the Directorate of Whistleblower Protection Programs shall be the OSHA point of contact for implementing and overseeing this MOU.

5. REPORTING

   No later than December 31, FMCSA will annually provide OSHA with a report of actions taken on STAA complaints provided to FMCSA during the previous fiscal year and OSHA will provide FMCSA with a report regarding OSHA's processing of STAA complaints during the previous fiscal year.

6. IMPLEMENTATION

   The FMCSA official responsible for the overall implementation of this agreement is the FMCSA Administrator. The FMCSA Administrator executes this agreement under the authority of 49 C.F.R. § 1.81(a)(23).

   The OSHA official responsible for the overall implementation of this agreement is the Assistant Secretary for Occupational Safety and Health. The Assistant Secretary executes this agreement under the authority of 29 U.S.C. § 656(c)(2), 29 U.S.C. § 657, 29 U.S.C. § 660(c), and 49 U.S.C. § 31105(b).

7. AMENDMENT AND TERMINATION

   This Agreement may be amended or modified upon written agreement by both parties to the Agreement. The Agreement may be terminated upon ninety (90) days written notice by either party.

8. LEGAL EFFECT

   Nothing in this MOU is intended to diminish or otherwise affect the authority of either agency to implement its respective statutory functions, including OSHA's authority under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., or the whistleblower provision of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, nor is it intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any other person. This MOU is effective upon signature by both parties.

   This agreement does not itself authorize the expenditure or reimbursement of any funds. Nothing in this agreement obligates the parties to expend appropriations or enter into any contract or other obligations.

9. RESOLUTION OF DISAGREEMENTS

   Should disagreements arise about the interpretation of the provisions of this agreement or amendments and/or revisions thereto that cannot be resolved at the operating level, the area(s) of disagreement shall be stated in writing by each party and presented to the other party for consideration.

   If agreement or interpretation is not reached within 30 days, the parties shall forward the written presentation of the disagreement to respective higher officials for appropriate resolution.

Attachments

APPENDIX A

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION MANAGEMENT INFORMATION SYSTEMS UNDER THIS MOU

Driver Information Resource (DIR)

The Driver Information Resource (DIR) provides a web- based lookup capability that allows FMCSA and State enforcement personnel to search, via a secure password, a driver's crash and inspection history by driver name or commercial driver license number. A driver's crash and/or violation data will be displayed if the driver had an inspection within 3 years or a crash within 5 years. All crash and inspection events that meet these criteria will be included and associated with both the driver and motor carrier for whom the driver was operating. The system will also allow users to search by U.S. DOT number or carrier name to obtain a list of all drivers affiliated with the specified carrier that had an inspection within 3 years or a crash within 5 years. The information provided in Driver Information Resource is based on the Motor Carrier Management Information System (MCMIS) inspection, crash and census data and is updated monthly. Potential future enhancements include the addition of other FMCSA and State data sources.

Motor Carrier Management Information System (MCMIS)

The Federal Motor Carrier Safety Administration (FMCSA) operates and maintains the MCMIS. MCMIS contains information on the safety fitness of commercial motor carriers and hazardous material (HM) shippers subject to the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMRs). MCMIS is a collection of safety information including state-reported crashes, compliance review and roadside inspections results, enforcement data, and motor carrier census data. The MCMIS Census data contain records for several hundred thousand active entities, i.e., motor carriers, and hazardous materials shippers. In order to identify each entity, MCMIS assigns a unique number to each entity record. This number is referred to as the record census number. This is also the number supplied to an entity as its USDOT number. The Crash Profile Reports use the MCMIS Census data as of December 2008. The MCMIS Crash data includes crashes that are reported by states to the FMCSA through the SAFETYNET computer reporting system.

Enforcement Management Information System (EMIS)

EMIS is a web-based application used to monitor, track, and store information related to FMCSA enforcement actions. EMIS manages and tracks all data associated with notifying the motor carrier, monitoring the motor carrier's response, determining whether further compliance action is required, and generating reports for various Headquarters, Service Center, and Division staff. It is the authoritative source for FMCSA enforcement data. Inputs include data from CaseRite and data entry.

Commercial Driver License Information System (CDLIS)

CDLIS is a statutorily mandated system for exchanging commercial driver license (CDL) information among all the States. It includes the CDL databases of fifty-one licensing jurisdictions and the CDLIS Central Site, all connected by a telecommunications network. CDLIS helps implement the fundamental principles that (i) no person who operates a commercial motor vehicle shall at any time have more than one CDL; (ii) one CDL shall contain that person's complete driving record; and (iii) the licensing State shall be notified of any convictions of violations of any motor vehicle control laws in any other State. CDLIS does so by providing the Central Site, the telecommunications network, and the operating protocols that States need to exchange commercial driver license, conviction and safety information on individual CDL drivers. Drivers who wish to review and, if necessary, correct information about them in CDLIS must contact the State agency that issued their licenses.

National Consumer Complaint Database (NCCDB)

The NCCDB receives and keeps complaints relating to motor carriers and household goods carriers in particular. The complaints may be: (i) Safety Violation complaints, i.e., consumers, commercial motor vehicle drivers, and others can report violations of Federal Motor Carrier Safety Regulations (FMCSRs); (ii) Household Goods (HHG) complaints, i.e., consumers can report complaints related to the contracting and moving of HHG; and (iii) Hazardous Materials and Cargo Tank complaints, i.e., consumers can report complaints related to hazardous materials and cargo tanks. FMCSA can use the data collected by the NCCDB to identify problematic motor carriers in order to take enforcement actions and to promote compliance with FMCSRs. The NCCDB can also be used to alert consumers of those motor carriers with a history of complaints related to transporting HHGs and to provide guidance to the public on how to avoid being victimized by unscrupulous moving companies. Motor carriers can use the NCCDB to assist with complaint reconciliation. After being informed of a complaint, the respondent motor carrier is encouraged to resolve the complaint with the complainant. The NCCDB is a Privacy Act-protected system of records and its information may be shared with congressional offices and Federal, State, and local government agencies for the purposes of enforcing the safety of motor carriers and HHG transporters.

APPENDIX B

POINTS OF CONTACT UNDER THIS MOU

1. Points of Contact for Implementation of MOU under Section III:

2. OSHA Contact Information for Referral of STAA Complaints

Phone Number: 1-800-321-0SHA
Web Site: http://www.whistleblowers.gov/complaint_page.html

3. OSHA Regional Administrators:

4. FMCSA Web Site for Referral of STAA Complaints:
    
   NCCDB Web Site: http://nccdb.fmcsa.dot.gov

5. FMCSA Division Administrators for Referral of Written/Signed STAA Complaints:

6. FMCSA Contact Information for Referral of Non-STAA-Related Complaints that are FMCSA-Specific Safety Allegations ¹

FMCSA Complaint Hotline: 1-888-368-7238 (1-888-DOT-SAFT)

NCCDB Web Site: http://nccdb.fmcsa.dot.gov

¹ 49 C.F.R. § 386.12 (Complaint)

1. Complaint of substantial violation. Any person may file a written complaint with the Assistant Administrator alleging that a substantial violation of any regulation issued under the Motor Carrier Safety Act of 1984 is occurring or has occurred within the preceding 60 days. A substantial violation is one which could reasonably lead to, or has resulted in, serious personal injury or death. Each complaint must be signed by the complainant and must contain:
   1. The name, address, and telephone number of the person who files it;
   2. The name and address of the alleged violator and, with respect to each alleged violator, the specific provisions of the regulations that the complainant believes were violated; and
   3. A concise but complete statement of the facts relied upon to substantiate each allegation, including the date of each alleged violation.
2. Action on complaint of substantial violation. Upon the filing of a complaint of a substantial violation under paragraph (a) of this section, the Assistant Administrator shall determine whether it is non-frivolous and meets the requirements of paragraph (a) of this section. If the Assistant Administrator determines the complaint is non-frivolous and meets the requirements of paragraph (a), he/she shall investigate the complaint. The complainant shall be timely notified of findings resulting from such investigation. The Assistant Administrator shall not be required to conduct separate investigations of duplicative complaints. If the Assistant Administrator determines the complaint is frivolous or does not meet the requirements of the paragraph (a), he/she shall dismiss the complaint and notify the complainant in writing of the reasons for such dismissal.
3. Notwithstanding the provisions of section 552 of title 5, United States Code, the Assistant Administrator shall not disclose the identity of complainants unless it is determined that such disclosure is necessary to prosecute a violation. If disclosure becomes necessary, the Assistant Administrator shall take every practical means within the Assistant Administrator's authority to assure that the complainant is not subject to harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of such disclosure.