FMCSA's coercion proposal ropes shippers, receivers and brokers into the mix

By David Tanner, Land Line associate editor | 5/16/2014

It would be rare to hear the words “shipper,” “receiver” and “broker” in the same sentence as “accountability” when it comes to trucking safety, and that’s mainly because the enforcement actions related to crashes and violations remain with motor carriers and vehicle operators and hardly ever cross over.

There’s a possible game-changer on the horizon, one that would broaden the scope of trucking compliance and the safety regulations to include the very entities that put pressure on drivers to drive when tired or to operate an unsafe piece of equipment.

That pressure is known as coercion, and the Federal Motor Carrier Safety Administration has a proposed rulemaking in the works to address it.

Say a driver is forced or threatened with punishment or termination for refusing to drive a truck with bad brakes or is held up at the docks and then forced to operate beyond his or her allotted drive time. The entity making the threats could be fined or have its operating license revoked under the proposal that appeared Tuesday, May 13, in the Federal Register.

“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 FMCSA states in the proposal.

To date, the FMCSA’s jurisdiction is over motor carriers. The agency has never had jurisdiction over shippers, receivers, brokers and freight forwarders.

“This necessarily confers upon FMCSA the jurisdiction over shippers, receivers, and transportation intermediaries necessary to enforce that prohibition,” the administration states.

“By forcing drivers to operate mechanically unsafe CMVs or drive beyond their allowed hours, coercion increases the risk of crashes,” the FMCSA stated.

“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.”

OOIDA supports the proposal, even as the Association locks horns with the FMCSA on other issues.

“It’s a good start to addressing the indifference of the rest of the supply chain to their role in safety,” OOIDA Executive Vice President Todd Spencer said.

“They have benefited for too long from their practices of making drivers wait with no regard for the effect it has on drivers’ schedules, the need for rest, or compliance with safety regulations. We would, however, like to know more about how the agency plans on enforcing the regulation as we continue to review the details of the proposal.”

The prohibition of coercion is one of the many mandates for the FMCSA to pursue as part of the 2012 highway law MAP-21, Moving Ahead for Progress in the 21st Century.

“Economic pressure in the motor carrier industry affects commercial drivers in ways that can affect safety adversely,” the FMCSA stated. “For years, drivers have voiced concerns that other parties in the logistics chain are frequently indifferent to the operational limits imposed on them by the (safety regs).”

If and when the proposal becomes a final rule, commercial drivers will be provided with an avenue to report coercion that includes whistleblower protections.

A driver making a complaint would supply personal information, list the regulations that he or she was pressured to violate, and provide a “concise but complete statement of the facts relied upon to substantiate each allegation of coercion, including the date of each alleged violation.”

Under the proposal, the FMCSA would be able to levy a civil penalty of up to $11,000 per occurrence of coercion.

The FMCSA initiated a 60-day comment period that lasts through July 12.

As the proposal moves along, the FMCSA says it will take into account the results of a pending survey of commercial drivers on the issue of electronic logs and driver harassment.

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