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Too narrow
OOIDA says FMCSA’s anti-coercion proposal for carriers, shippers and brokers does not go far enough to address real-world conditions faced by drivers.

By David Tanner, senior editor

OOIDA gives credit to the FMCSA for addressing the issue of coercion of drivers by motor carriers, shippers, receivers and brokers. However, OOIDA remains concerned that the anti-coercion proposal is too narrow to reach the heart of the issue and relies solely on drivers to bring forward their claims.

In comments to the Federal Motor Carrier Safety Administration filed on Aug. 11, OOIDA leadership applauds the intent of the administration’s notice of proposed rulemaking that would “prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles in violation of certain provisions of the Federal Motor Carrier Safety Regulations.”

In the proposal, FMCSA recognizes the marketplace demands of on-time delivery schedules and the economic pressures placed on commercial drivers.

“This is the first time this agency has attempted to address the causes of violations of the motor carrier safety rules, rather than merely interdicting violations after they have occurred,” OOIDA stated in comments signed by President and CEO Jim Johnston. “This is a completely untapped area for substantial improvements in motor carrier safety.”

FMCSA initiated the anti-coercion proposal in July 2012, and the notice was published in the Federal Register nearly two years later. The administration has not yet identified a timeline for a final rule.

OOIDA offers up the real-world experiences of its members to the administration, and encourages the FMCSA to dig in and find out more about the specific and diverse forms of coercion in order to get the best rule possible in place.

“This includes penalties or non-payment for being late – even if on-time delivery would have violated the hours-of-service rules, and penalties for refusing to drive a vehicle in a condition of ill-repair that is unsafe,” OOIDA said.

OOIDA believes the anti-coercion proposal fails to take day-to-day experiences of drivers into account, such as a receiver denying a signature until a driver agrees to terms about lumping or detention time, or a carrier forcing a driver to break with hours-of-service rules or operate unsafe equipment.

“FMCSA must recognize that coercion often occurs before the driver gets behind the wheel of a truck, when a driver is dispatched on a delivery deadline that cannot be accomplished within the HOS rules, or the driver is assigned equipment known not to meet FMCSA equipment standards,” OOIDA said.

The proposal does not take hazardous or unsafe road conditions into account, nor does it spend any ink on drivers who must use their own judgment when they are too ill or fatigued to operate.

Further, the proposal as stated places the burden solely on drivers to bring a coercion complaint forward and see it through.

“This proposal puts drivers in a ‘Catch 22’ situation in instances where voicing objections to coercive requests may bring economic retaliation or the termination of a relationship,” OOIDA stated.

OOIDA believes a future rule “should not rely upon a mandate that the driver voice an objection as a necessary condition for finding a violation.”

OOIDA says FMCSA should conduct outreach sessions with professional drivers to better understand coercion.

Periodic reviews of driver communication data held by carriers, shippers, receivers and transportation intermediaries could help determine those entities’ compliance with the coercion provisions and provide the FMCSA with a record, OOIDA says.

OOIDA believes that getting the coercion rule right can benefit trucking by retaining good, qualified drivers.

“Resistance to coercion 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,” OOIDA said. “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.”

In its comments, OOIDA says FMCSA has a duty to seek comments and review all existing rules, such as hours of service and electronic logging devices, to determine “whether they may be rewritten to prevent coercion.” LL