A regulatory overreach

  • September 30, 2014
BrandonFried-med.jpg

When the Federal Motor Carrier Safety Administration recently proposed a regulation prohibiting coercion of commercial truck drivers, airfreight forwarders were initially inclined to accept the measure as a reasonable way to promote safety in the supply chain. At a time when several high-profile traffic accidents involving commercial trucks have raised public concerns about lengthy shifts and tired drivers, none of us wants to see truck drivers being pressured into breaking safety rules when hauling shipments around airports or around the country.

But, after a closer look, it is clear that this proposed rule has a number of serious shortcomings. 

It comes from a section in the MAP-21 surface transportation legislation directing the FMCSA to prescribe regulations ensuring that a motor carrier, shipper, receiver or intermediary company does not coerce the driver of a commercial motor vehicle to operate that vehicle in violation of the law. This pressure can be explicit or implied loss of a job, denial of subsequent loads, reduced payment or denied access to the best trips.

Once the regulation goes into effect, the FMCSA could impose a civil penalty of US$11,000 (8,376 euros) per offense and suspend or revoke the operating authority of a shipper, motor carrier or freight forwarder that coerces a driver.

Our problem with the rule is this: By placing potential liability on the freight forwarder, many of whom do not own any trucks and therefore do not employ truck drivers, the FMCSA would be holding responsible those who are neither well-positioned nor capable of ensuring that drivers comply with safety regulations. Our transactions as freight forwarders are typically not with the driver but rather with the driver’s employer, the motor carrier company, which assigns the driver to the pickup point.

Accordingly, the forwarder rarely has input into the driver selection process and typically has little or no knowledge of how long that driver has been on duty, or whether any driver is about to or has already exceeded the maximum allowable hours of service. Nor, in most cases, is the freight forwarder even in a position to coerce the drive to do anything. That driver answers to his employer.

To be sure, we understand where FMCSA is coming from. Forwarders compete in a “time is money” market where on-time performance is a vital key to success, and the agency is concerned that this can trickle down through the motor carrier company and result in coercion.

In reality, however, forwarders and other transportation intermediaries deal with the market’s time-critical nature by hiring motor carrier firms that can do the job within the allotted scheduling parameters. We have to assume that the trucking company provides a driver that can lawfully handle the load within the FMCSA regulatory framework. If such a driver is unavailable, forwarders expect their selected motor carriers to advise whether or not the delivery can be performed to the destination within the allotted time.

The absurdity of holding freight forwarders responsible for any coercion is readily apparent when it comes to enforcing the maximum permissible hours of service that federal regulations stipulate for truck drivers. The FMCSA’s rule contemplates that a truck driver, when arriving to pick up a shipment, would tell the forwarder that he is in violation of hours of service regulations and cannot legally take the shipment right away. In that case, based on a common law principle, a forwarder who persists with the expectation of the pickup and delivery schedule that he arranged with the motor carrier company is, in effect, acting as the driver’s employer and therefore is subject to violating the proposed coercion rule.

But that just doesn’t make sense. It is the motor carrier company that agrees to the pickup and delivery schedule and then assigns the driver, and forwarders typically have no visibility into that process. If we insist on meeting a pick-up and delivery schedule, our beef is with the company and it is that company’s responsibility to comply with hours of service regulations on the drivers it employs.

The goal of enhancing compliance with the federal motor carrier safety rules is important in increasing safety and working conditions for commercial motor vehicle drivers on our nation’s highways. Unfortunately, holding forwarders responsible for coercing trucking company employees will not only complicate various industry roles but inappropriately place liability into the hands of those who have no control and are not in the position to enforce and ensure compliance with these regulations.

We say “thumbs down” to this unworkable regulatory overreach.

 

 

  Like This Post
Current Issue Magazine Cover
Sign Up Email List