Earlier today the final rule for the Federal Motor Carrier Safety Administration’s “Prohibiting Coercion of Commercial Motor Vehicle Drivers,” which is more commonly known as the driver coercion rule, was published in the Federal Register.
The rule, which will take effect on January 29, 2016, adopts regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles (CMVs) in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs)—including drivers’ hours-of-service limits; the commercial driver’s license (CDL) regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations (HMRs), according to the Federal Register. And it added that the rule prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations.
When the FMCSA initially issued a notice of proposed rulemaking request for comments for a rule entitled “Coercion of Commercial Motor Vehicle Drivers in May 2014, there was significant confusion as to how the rule would work among shippers, carriers, receivers, 3PLs and brokerages, and other industry stakeholders. What’s more, it included various moving parts that were viewed as fundamentally changing multiple aspects of how freight is moved by motor carriers, tendered, and brokered.
In the initial rulemaking, FMCSA said that the rule would prohibit anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations, adding that the rule includes procedures for drivers to report incidents of coercion to the FMCSA, which the agency would follow in response to allegations of coercion.
And it added that an act of coercion by a carrier, shipper, receiver, or transportation intermediary does not absolve the driver of responsibility to comply with safety regulations, including HOS rules. It went on to explain that the FMCSA definition of coercion prohibits threats by the aforementioned parties to withhold future business from a driver for objecting to operate a vehicle in violation of safety regulations. What’s more, FMSCA explained a threat would not constitute coercion unless the driver objects or attempts to object to the operation of a vehicle for reasons related to HOS or other regulations. Violations of the driver coercion rule would result in a fine of up to $16,000, said the FMCSA, coupled with the agency able to suspend, amend, or revoke the operating authority registration of a for-hire motor carrier, broker, or freight forwarder.
The rule in that form raised many concerns from industry stakeholders, with Transportation Intermediaries Association President and CEO Bob Voltmann saying earlier this year that “it changed the presumption to what you knew to what you should have known and it puts that onus on every shipper and receiver and anybody who engages a truck. It is what you should now about the driver, which means you have to ask and means you are increasing their vicarious liability because now you have to know it creates a Catch-22 situation.”
As an example, Voltmann said that if a shipper calls a carrier to move a shipment, and the carrier says that can be handled, a situation can occur in which a driver arrives and tells the shipper he does not have enough hours to make this run, meaning that the shipper was not correctly informed.
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