- Henry Seaton
FMCSA rule bars driver coercion
Carriers, shippers, receivers and brokers face penalties of up to $16,000 for coercing drivers to violate several key regulations under a new rule issued by the Federal Motor Carrier Safety Administration. The rule, published in the Nov. 30 Federal Register implements a provision of the 2012 highway program law known as MAP-21.
The new regulations, which take effect Jan. 29, 2016, prohibit motor carriers, shippers, receivers and transportation intermediaries from coercing drivers to operate commercial motor vehicles (CMVs) in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs):
Transportation of hazardous materials (Parts 171-173, 177-180, 397, 385.415 and 385.421)
Training requirements (Part 380)
Waivers, exemptions and pilot programs (Part 381)
Drug and alcohol testing rules (Part 382)
Commercial driver’s license (CDL) regulations (Part 383)
General regulations (Part 390)
Regulations related to drivers and driving (Parts 391-392)
Regulations related to vehicles (Parts 393, 396 and 399)
Drivers’ hours-of-service limits (Part 395)
Transportation of migrant workers (Part 398)
The rule also prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate FMCSA's commercial regulations in parts 356, 360 and 365-379.
The term “transportation intermediary includes not only property brokers and freight forwarders but also travel agents and similar entities that arrange group tours or trips and contract with motorcoach operators for transportation services.
Procedures The complaint including specific information must be filed within 90 days after the event with the agency’s on-line National Consumer Complaint Database (http://nccdb.fmcsa.dot.gov) or with the division administrator where the driver is employed.
Upon the filing of a complaint of coercion, the appropriate division administrator shall determine whether the complaint is non-frivolous. If so, the division administrator shall investigate.
Violations of the prohibition against coercion carry a civil penalty of $16,000.
The rulemaking was authorized by Section 32911 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Motor Carrier Safety Act of 1984 (MCSA), as amended.
Key changes from the NRPM
Definition of coercion Based on comments filed by several parties, FMCSA changed the definition of coercion five substantive respects:
Adding the phrase “take or permit any adverse employment action” to the list of actions that are prohibited. The Occupational Health and Safety Administration contended that the list of prohibited activities wasn’t broad enough. In the preamble, FMCSA acknowledged that “adverse employment action” could include negative information about a driver in an employment history submitted to a consumer reporting agency – a protection sought by the Owner-Operator Independent Drivers Association. “However, there would be significant evidentiary obstacles to making a coercion case in these situations,” FMCSA said.
Deleting reference to “current or future” business. Several shipper and broker organizations had argued that a strict reading of the definition would have barred shippers or brokers from requesting that a load be reassigned or another carrier used if it was discovered that a driver’s operation would violation specified regulations.
Requiring drivers to inform carriers, shippers, receivers and/or brokers that an operation would violate regulations. Although FMCSA believed that the reference to driver objections in the NRPM likely was sufficient, it agreed to make the driver’s obligation stronger. Shipper and broker groups were concerned that they would have to keep records on all drivers. However, FMCSA declined to require the notice to be in writing as some had requested.
Requiring drivers to identify “at least generally” what regulations would be violated. The National Industrial Transportation League (NIT League) or the American Trucking Associations (ATA) had recommended that drivers be required to specify specific regulations, FMCSA responded that the FMCSRs “are complex, and drivers cannot be expected to have full command of regulatory citations.” However, the agency agreed that the driver must be able to identify the problem clearly enough to allow FMCSA personnel to determine that it falls within a requirement or prohibition of the agency’s regulations.
Deleting the “knew or should have known” standard. Several groups objected to the language as a restating of the common law principle of respondeat superior, which holds employers accountable for the actions of their employees. They were concerned that the language could invite broader liability claims than just FMCSA enforcement. FMCSA agreed, adding that the phrase was deleted in any event as part of the revisions to emphasize a driver’s duty to object.
Deadline to file coercion complaints The NPRM would have required that complaints be filed within 60 days of the alleged coercion. OSHA argued for 180 days while NIT League wanted 30 days. FMCSA rejected 30 days as too short given that drivers often are on the road for weeks at a time, but it said 180 days was too long. However, it added 30 days to the timeframe for 90 days.
Coercion as an acute violation The NPRM classified coercion as an acute violation, but ATA argued that coercion should instead be classified as acute, critical or neither depending on the classification of the regulation the driver was coerced to violate. FMCSA agreed, saying the change is consistent with its practice of limiting acute and critical classifications to regulations that, if violated, are likely to increase the risk of crashes. “Because FMCSA currently has no data showing a link between coercion and crashes, it seems appropriate not to classify coercion as acute,” FMCSA said in the preamble.
For more information on FMCSA's rule, go to https://www.fmcsa.dot.gov/safety/coercion