Note. A second provision of the rule prohibits motor carriers that operate CMVs in interstate commerce from coercing drivers to violate the commercial regulations that are not specifically safety-related. FMCSA cites authority to do so and states that applying the same ban to commercial provisions that are not immediately related to safety will help to inhibit the growth of what the agency considers a culture of indifference to regulatory compliance that contributes to unsafe CMV operations.
Get Your Comments In
This rule is slated to be effective January 29, 2016. FMSCA will be taking petitions for reconsideration until December 30, 2015.
Why the New Rule?
FMCSA claims that drivers have complained for years that some motor carriers, shippers, receivers, tour guides, and brokers insist that a driver deliver a load or passengers on a schedule that would be impossible to meet without violating hours of service (HOS) limits and other regulations related to mechanical deficiencies. Drivers who refuse to violate applicable HOS limits and safety rules claim they are subject to consequences such as loss of a job, reduced payment, and denial of subsequent loads and access to the best trips.
The provision of the new rule concerning safety-related regulations applies to:
- Motor carriers;
- Receivers; and
- Transportation intermediaries (e.g., brokers, freight forwarders, travel agents, and similar companies that arrange group tours or trips).
What Is the New Definition of ‘Coercion’?
This new rule does not require that shippers, receivers, and transportation intermediaries (unlike motor carriers) monitor a driver’s compliance with HOS rules or other regulations. They may commit coercion when they do not heed a driver’s objection that the request would require the driver to break the rules.
However, according to FMCSA, many shippers, receivers, and intermediaries felt that they had to inquire about HOS compliance in order to avoid potential liability. So, FMCSA amended the definition of “coercion” to make it clear that the driver has an affirmative obligation to inform the motor carrier, shipper, receiver, or intermediary when he or she cannot make a requested trip without violating one or more of the safety-related regulations. So, under the final rule, employers cannot commit coercion unless they have received such notice from the driver.
What Are the Safety-Related Regulations Affected?
The specific safety-related regulations that are affected by the new rule are:
- General FMCSA safety regulations at 49 CFR 390–399—of particular concern are HOS limits at 49 CFR 395;
- Commercial driver’s license and drug and alcohol testing rules at 49 CFR 380–383;
- Hazardous materials safety permits rules at 49 CFR 385.415 and 49 CFR 385.421; and
- Hazardous Materials Regulations (HMRs) applicable to motor carriers at 49 CFR 171–173 and 49 CFR 177–180.
Note. Because the HMRs also apply to intrastate commerce, the new rule makes it clear that the prohibition on coercion applies to parties that ship, receive, or arrange transportation of hazardous materials in both interstate and intrastate commerce.
How Will Drivers Report Coercion?
Drivers who allege a coercion violation must file a written complaint with FMCSA stating the details of the coercion no later than 90 days after the event. The complaint must be filed with either FMCSA’s National Consumer Complaint Database or the FMCSA division for the state where the driver is employed.
The complaint must be signed by the driver and must contain:
- The driver’s name, address, and telephone number;
- The name, address, and telephone number of the person allegedly coercing the driver;
- The provisions of the regulations the driver alleges he or she was coerced to violate; and
- A concise but complete statement of the facts relied on to substantiate each allegation of coercion, including the date of each alleged coercion.
What Will FMCSA Do?
FMCSA must first determine if the complaint is nonfrivolous and, if so, must investigate the complaint and notify the driver of the findings. If the agency determines that the complaint is frivolous, it must dismiss the complaint and notify the driver of the reasons for the dismissal.
One of the concerns of some drivers’ advocates is that the driver’s name is disclosed in the process. Under the new rule, FMCSA is charged with doing what it can to protect the driver from retaliation, but that that is small comfort to some drivers’ groups who are afraid the coercion complaint process will not be used because of the disclosure provision.