There have been conversations for years about the involvement of shippers, receivers and brokers in transportation and what government agency, if any, has the enforcement authority over them when they violate Federal Motor Carrier Safety Regulations (FMCSRs) or perhaps encourage drivers to violate them. For years, I have sat through meetings in which this predicament was candidly discussed and concluded with question marks. For years, even government entities openly expressed their quandary with this issue. Finally, after TCA members listened to Administrator Anne Ferro speak at a recent event, the issue of coercion of drivers by shippers, receivers and transportation intermediaries is being vetted by the agency inside MAP-21, the recent Highway Reauthorization Bill.
If you’re like me, then you just envisioned a Men in Black scenario in which a badged DOT agent knocks on the door of a shipper, receiver or broker and looks to pass some citations along their way. After first thought, I am certain that it won’t be anything like that; however, if this rule were to ever come to fruition, the financial penalties at stake for these businesses could certainly build up as the Federal Motor Carrier Safety Administration (FMCSA) seeks to curb the practice of coercion.
Listed in the Significant Rulemakings Report, the agency has titled this proposal the Prohibition of Coercion notice of proposed rulemaking (NPRM) and even hopes to fast track the item because of its impact on current and future rulemakings. The MAP-21 language that brought about the rulemaking reads as follows: Section 32911 of MAP-21 amended 49 U.S.C. § 31136(a) to require that regulations governing commercial motor vehicle safety “ensure ... an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial vehicle in violation of a regulation promulgated under 49 U.S.C. § 31136 or chapters 51 or 313 of title 49, U.S.C.”
In theory, or even written above, prohibiting coercion is a good idea. In reality, though, defining coercion and actually finding proof that it occurs may be entirely different. The Merriam-Webster Dictionary defines coercion as “to compel to an act or choice,” which certainly does not seem to clear things up. As we all know, when it comes to regulatory matters, gray areas do not really help much.
Reading between the lines, this issue is not about pointing fingers. I am merely highlighting that part of this regulation, as it appears to be the agency’s first foray into regulation of this type under the auspices of the FMCSRs. For those of you wondering when we can expect such a proposal, the schedule points to the end of the year for the NPRM issuance, although it will certainly be some time before this issue is fully vetted and commented on by many more than just the trucking industry.
While we as an industry, including the shippers, receivers and brokers, are often cast into the light of the relatively small number of bad influences, the time has come for such a rule to protect the industry’s most valuable assets—its drivers. The hope is that this rule will finally put an end to that enforcement discussion that the agency has faced for years and allow FMCSA to actually govern all entities of the industry