How the FMCSA Driver Coercion Rule is Impacting the Transportation Industry
By: Gail Rutkowski, the National Shippers Strategic Transportation Council (NASSTRAC) Executive Director
On January 29, 2016, the Federal Motor Carrier Safety Administration’s (FMCSA) driver coercion rule, known as the “Prohibiting Coercion of Commercial Motor Vehicles became effective. This regulation prohibits motor carriers, shippers, receivers or brokers from coercing drivers to operate motor vehicles in violation of FMCSA regulations that include hours of service, CDL regulations, drug and alcohol testing rules, and HAZ-MAT regulations. The rule also prohibits anyone who operates a commercial motor vehicle in interstate commerce from coercing a driver to violate the commercial regulations.
Ever since the FMCSA issued a notice of proposed rulemaking request for comments in May of 2014 there has been a lot of confusion as to how this rule would work. While the final rule clarified some of the questions, much of that confusion still exists. As John Cutler, the NASSTRAC’s legal counsel noted: “We are pleased to see that the agency dropped several of the worst features of the rule,” said Cutler. “The final rule no longer imposes on shippers, intermediaries or receivers a ‘duty to inquire’ whether drivers can comply with all safety requirements (HOS, safe tractors and trailers, working brake lights, etc., etc.) for the services requested. In addition, the final rule drops the ‘respondent superior’ legal theory under which shippers, intermediaries and receivers might have been considered ‘employers’ of the drivers who work for the motor carriers. That theory could have caused a great deal of trouble for defendants in ‘negligent hiring’ lawsuits. These are positive developments, and the comments that NASSTRAC and others filed seem to have done some good.”
While NASSTRAC, along with many industry groups endorse the intent of the rulemaking…no one defends coercing drivers to violate safety rules, FMCSA clarified in response to a NASSTRAC comment that there is nothing wrong with a shipper saying it will stop using a trucking company that sends in a driver with 4 hours of driving time left on the clock when the haul will require 7 hours. It is legal to decide not to use a carrier that does not dispatch drivers who can meet the agreed upon delivery schedule. Further clarifications include:
- Brokers are not allowed to directly communicate with drivers and are not employees of a motor carrier, and if a broker communicates directly with a driver, they could be held liable for vicarious liability and coercion; and
- The deadline to file coercion complaints will work off of a 90-day filing deadline to ensure drivers have a sufficient time to prepare and submit a coercion complaint
Unfortunately, these clarifications are not contained in the rule itself, but in the explanatory text which means shippers need to either remember what the explanatory text says or keep a copy of the Federal Register notice handy. This rule also carries stiff penalties up to $16,000 per occurrence if a shipper, receiver or intermediary makes threats to a driver.
According to John Cutler, “The exposure to penalties is there whether or not the driver actually violates any regulations. In addition, what does it mean for the driver to have “stated’ that the service called for could not be provided in compliance with regulations? Stated how, and to whom? A night watchman or a yard jockey? FMCSA refused to require documentation.”
So, where do we stand now? We don’t know how the rule will be applied or who will be believed when a driver says one thing and the shipper says another. Shippers, receivers and brokers may need to consider adding no-coercion sign-offs from truck drivers to their shipment documentation.
What else should shippers do? Make sure you have good procedures in place; don’t talk directly to drivers to avoid vicarious liability; and if there is an issue, work with the motor carrier.
NASSTRAC will be watching how enforcement is done, particularly in resolving “he said, she said” issues. No one in the industry believes drivers should be coerced into doing anything illegal, but creating a situation where shippers or brokers get unfairly put into a situation resulting in a $16,000 fine over something they had no control over isn’t good regulation…or good business.
While the Driver Coercion rule has been at the forefront of issues shippers are facing, here are a few other regulations that may impact your transportation operations:
- Electronic Logging Devices. Most paper logbooks should soon (by 12/17) give way to ELDs. Many carriers which already use them will get extra time for updates. The ELDs will automatically record engine hours, miles driven, locations, etc. They are projected to increase safety (by reducing HOS violations) and improve efficiency (by reducing paperwork and permitting better performance monitoring).
- Revision of DOT Ratings. The FMCSA has proposed new High Risk Motor Carrier test and new unfit safety rating to replace older Satisfactory, Conditional and Unsatisfactory.
- Speed Limiters. No proceeding yet, but 65 mph may be proposed. This will reduce capacity, but may be safer. Many large carriers already use limiters.
- Loading and Unloading Delays. FMCSA (and carriers) complain about shippers and receivers who take too long to load and unload trailers. FAST Act sets parameters for study of this issue, which could bring new rules.
- Insurance. FAST Act provides that if FMCSA wants changes in required liability insurance, it must study impacts on safety and the trucking industry, and the insurance industry’s ability to provide more coverage
- Driver Training. New call for 30 hours behind the wheel for Class CDLs.
- Driver health, substance abuse testing, broker and forwarder licensing.
These changes may require changes in contracts and selection criteria. Our advice remains the same: DO NOT USE UNSAFE CARRIERS. We all need safer highways and “negligent hiring” lawsuits continue to proliferate. What are you doing to protect your company?
Short for the National Shippers Strategic Transportation Council, NASSTRAC is the association for transportation and logistics professionals who manage freight across all modes. NASSTRAC represents freight decision-makers who are mid- to upper-level management across many industries, from manufacturers and retailers to wholesalers and distributors throughout the U.S. Many industries are represented, including food and beverage, consumer goods, retail, manufacturing, pharmaceutical and industrial products. Whether you manage freight moving via truckload, LTL, parcel, rail, ocean or air, you’ll find value in belonging to NASSTRAC. Membership offers resources to meet these challenges head on: rising costs of transportation, regulatory issues, legislative decisions, securing adequate capacity for shipments, senior management education and more. Learn more at www.nasstrac.org/BDP.