In May of 2013 the Federal Motor Carrier Association (FMCSA) issued a notice of proposed rule making entitled “Coercion of Commercial Motor Vehicle Drivers.” At the time there was a fair amount of confusion surrounding the rule.
With the FMCSA set to unveil the final version of its rule in September, has the confusion abated? Furthermore, what exactly is this new policy commonly referred to as the “driver coercion rule?”
When this rule was first proposed, as it was written, there were various moving parts that could potentially change certain aspects of how freight is moved, tendered, and brokered by motor carriers. How these changes will end up being interpreted in the final rule is still a question.
The exact verbiage of the rule proposes to “adopt regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles (CMV) in violation of certain provisions of the Federal Motor Carrier Safety Regulations, including truck drivers’ hours-of-service (HOS) limits and the commercial drivers’ license regulations and associated drug and alcohol testing rules or the hazardous materials regulations.”
Though the outcome of this rule is now somewhat clouded by the reversal of the hours-of-service rule earlier this year, there are other questions that remain. The hours of service tie-in to the coercion rule is not the only piece that still needs to be ironed out.
The Current Questions
Though the 10 page rule is filled with bureaucratic language, parsing it reveals the methodology used. In one section it adds that an act of coercion by a carrier, shipper, receiver, or transportation intermediary doesn’t mean the driver no longer has to comply with the rule, which makes sense.
Then it goes on to explain that the definition of coercion prohibits the aforementioned parties from withholding future business from a driver if he or she objects to operating while in violation of safety regulations. This threat to withhold business wouldn’t constitute coercion unless the driver objects to operating the vehicle for reasons related to hours of service and other regulations.
Here’s an example of how this rule could be put into practice. A shipper calls a motor carrier about a shipment and the carrier agrees to the run. Let’s say a driver then arrives and tells the shipper that he doesn’t have enough hours to make the run. This then puts the shipper in a predicament.
What responsibility will a shipper have for validating that the driver has sufficient time to fulfill the commitment? If the shipper asks the driver to still take the run, this could be viewed as coercion. If the shipper intends to call another carrier to handle the load, this could also be viewed as coercion by financial threat.
Many in industry are speculating as to what level of severity the onus to “know what you should have known” is placed on the shipper, receiver or anyone else engaging with the truck.
Some analysts predict that this rule could prevent brokers and shippers from pushing carriers to break the rules and speed limits. They purport that this would impact small carriers, reduce capacity, and drive labor away.
Others feel that it might actually increase freight brokerage because shippers are going to want to put as much distance between them and the rules as possible. At this juncture neither side is sure how it will all play out.
The FMCSA has not articulated how the suspension of the hours of service rule now affects the coercion rule. There may be little change considering HOS isn’t the only safety regulation that could potentially be violated during the course of a job.
Violations of the truck driver coercion rule could result in fines of up to $11,000. The agency would also reserve the right to suspend, amend, or revoke the registration for a for-hire carrier, broker, or forwarder. As we get closer to September, more information regarding how the agency plans to roll out the rule should be forthcoming.