May 2015

Fleet Management News & Business Info | Commercial Carrier Journal

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6 COMMERCIAL CARRIER JOURNAL | MAY 2015 I t has been one year since the Federal Motor Carrier Safety Administration published its notice of pro- posed rulemaking prohibiting coercion of commercial vehicle drivers. The proposed rule is set to go to the Office of Management and Budget next month, and if and when the final rule is published later this year – currently slated for September – it could have far-reaching consequences by placing new burdens on shippers and brokers. According to the NPRM, it will be illegal for carriers, shippers, receivers or intermediaries to coerce drivers by threatening them "with loss of work or other economic opportunities for refusing to operate a commercial mo- tor vehicle under circumstances that those entities knew or should have known would require a driver" to violate FMCSA's hours limits. The regulation would impose up to $11,000 in fines per violation and even revoke authority from carriers and brokers. Other than a few areas of clarification, the American Trucking Associations generally stands in support of the proposed rule. Currently, motor carriers and individual drivers are the only groups in the supply chain with any visibility of drivers' hours-of-duty status, and the pend- ing electronic logging device mandate will provide even greater clarity. If a driver alleges coercion by an employer to deliver a load outside of his available hours, any griev- ance quickly can be proven or disproven. But the waters become much murkier for shippers and brokers, who in essence will be forced to ascertain each driv- er's ability to deliver a load for every load that is shipped. Under the NPRM, shippers and agents essentially will have to ask the driver if he has enough hours to deliver the load to remain in compliance. Not surprisingly, associations like the Transportation Intermediaries Association and the National Shippers Strategic Transpor- tation Council vehemently oppose the NPRM, calling it "impractical," "arbitrary" and "capricious." NASSTRAC says the NPRM will do more harm than good, saying FMCSA's new rule requires that every trucking company customer must inquire about available hours for every shipment made by a commercial motor vehicle for which there is a requested timetable. "The proposed rules constitute a stunning overreach and abuse of regulatory power. In effect, FMCSA seeks to deputize virtually all American businesses, along with federal, state and local governments, and individuals ship- ping personal property and household goods, as unofficial compliance personnel regulated by this agency." TIA says the proposed rule would create new liabilities for shippers and transportation intermediaries, require the groups to perform employment-related functions between them and the driver, and create greater confusion in general. TIA goes so far as to argue that the definition would now make it a violation for a shipper or transportation interme- diary to refuse a load to a driver if it "knew or should have known" that the driver was about to exceed or already had exceeded the HOS regulations. "Yet, the shipper or trans- portation intermediary could not properly request that the driver perform the transportation, as it would then be both 'coercing' the driver and aiding and abetting the HOS viola- tion," said TIA in its comments to FMCSA. Carriers and shipper groups do agree on one aspect in question of the NPRM, namely the potential for abuse of the complaint process for drivers. Currently, the proposed rule allows drivers a 60-day window to file complaints. ATA said complaints should be required immediately. NASSTRAC says drivers caught willingly violating HOS regulations could falsely blame shippers and brokers after the fact. If the rule works as intended and a shipper determines a driver doesn't have the available hours to deliver a load legally, it will have to wait until the driver has hours avail- able or call the carrier to send another driver to deliver the load. In this way, like most of FMCSA's current rules, the driver coercion rulemaking has the potential to impact productivity negatively and reduce capacity even further. And that's something that the transportation industry – carriers and shippers alike – can ill-afford. UPFRONT Questions remain as driver coercion rulemaking nears an end BY JEFF CRISSEY Anti-coercion proposed rule muddies the waters for shippers, brokers JEFF CRISSEY is Editor of Commercial Carrier Journal. E-mail

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