The FMCSA today published its proposed coerion rule. The rule will prohibit carriers, shippers and receivers from harassing or threatening drivers.
The proposed rule would prohibit motor carriers, shippers, receivers and transportation intermediaries from threatening drivers with the loss of work or other economic opportunities for refusing to operate in violation of federal regulations.
“Economic pressure in the motor carrier industry affects commercial drivers in ways that can affect safety adversely. 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 HOS rule making. 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 proposed rule states.
The bill would prohibit carriers, shippers, receivers and transportation “intermediaries” from coercing drivers to violate HOS rules and would provide the FMCSA with jurisdiction over such entities to enforce the rule and punish its violators.
The rule would allow the FMCSA to enforce civil penalties against those how knowing coerce or threaten drivers to violate HOS rules. “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  ) 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,” the proposed rule states.
The FMCSA says that because a carrier is responsible for its drivers’ compliance with HOS regulations, the carrier has an “affirmative duty” to ensure, before assigning a trip, that the driver has sufficient driving time available to complete the 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,” the proposed rule states.
The FMCSA says that the the act of coercion DOES NOT excuse a driver of his or her responsibility of complying with safety regulations, such as HOS. In addition, a threat would NOT constitute coercion unless the driver objects, rejects or attempts to object to violate such safety rules. (Drivers, get everything you can in writing!)
“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 rule states.
The FMCSA says it will survey drives and carriers on the issue of harassment and coercion through the use of electronic logs.
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.
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 http://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 81/2by 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.