FMCSA to publish coercion rulemaking
In proven cases of coercion, the FMCSA could impose a civil penalty not to exceed $11,000 per offense.
The Trucker News Services
WASHINGTON — The Federal Motor Carrier Safety Administration Tuesday will publish a notice of proposed rulemaking that will explicitly 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 (FMCSRs), including drivers’ Hours of Service limits and the commercial driver’s license 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.
The anti-coercion rulemaking was mandated by Congress in MAP-21, the surface transportation legislation set to expire later this year.
The NPRM says that MAP-21 is the most recent example of Congress’ recognition of the important role the public plays in highway safety and 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,” the NPRM reads. “For years, drivers have voiced concerns that other parties in the logistics chain are frequently indifferent to the operational limits imposed on them by the FMCSRs. Allegations of coercion were submitted in the docket for the 2010-2011 Hours of Service rulemaking. 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.”
The NPRM says that 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.
In cases of coercion, FMCSA could impose a civil penalty not to exceed $11,000 per offense. In addition, the rule would authorize the FMCSA 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 (of Transportation)…”
The proposed rulemaking says the driver who is alleging coercion would bear a “substantial” burden of proof.
Claims of coercion would be made directly to the assistant administration of FMCSA.
Click here to read the entire proposed rulemaking.
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