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Proposed Rule TARGETS DRIVER COERCION

New legislation aims to reduce driver fatigue by penalizing motor carriers that coerce drivers into maintaining unreasonable schedules.
By Janet Kozak

Sleep deprivation and coercion to bend or break safety regulations for truckers came into the national spotlight again after a speeding Walmart truck, driven by Kevin Roper, rear-ended actor and comedian Tracy Morgan’s limo van. The van was carrying seven people and was struck shortly before 1 a.m. on the New Jersey Turnpike on June 7, 2014. Morgan suffered a serious brain injury and broken bones, while his long-time friend James ‘Jimmy Mack’ McNair was killed in the rear-end collision. McNair, Morgan and others in the passenger compartment of a limo van weren’t wearing seat belts or using properly adjusted head restraints – a factor that contributed to the severity of their injuries.

Walmart and the families of McNair and Morgan have reached settlements for the incident, but the accident added fuel to the fire in a national debate on the rules and regulations governing driver fatigue and driver coercion. Advocacy groups in all corners of the industry were quick to note that some drivers do forgo sleeping and ignore other regulatory measures to make their deliveries quicker. Reportedly, Roper, the truck driver in the incident, had not slept in over 28 hours and failed to observe slow-moving traffic in time to avoid rear-ending and flipping the limo van.

According to Michael E. Hammond in a legal news update for Landrum & Shouse LLP:

“The Federal Motor Carrier Safety Administration (FMCSA) has proposed a new regulation that would prohibit motor carriers from coercing their drivers into violating certain provisions of the Federal Motor Carrier Safety Regulations (FMCSR). The FMCSA proposed a rule entitled “Prohibition of Coercion” on May 13, 2014. The “Truck Driver Coercion Rule” would make it a regulatory violation for a carrier, shipper, receiver, etc. to coerce drivers into violating hours-of-service limitations, drug and alcohol testing rules, licensing regulations, or hazardous materials regulations. In addition, the rule would prohibit anyone operating a commercial motor vehicle (CMV) in interstate commerce from coercing a driver to violate commercial regulations.

The intent of the rule is to eliminate any economic benefit that a carrier might gain by coercing drivers to violate safety regulations. The increased compliance with regulations is aimed toward safety benefits from fewer hours of service violations, drug and alcohol violations, and lapses in licensing oversight. Each violation could result in a penalty of $11,000 or, worse, the consideration of a work stoppage for the company.”

The FMCSA’s proposed rule has not yet become law. If and when it is enacted, the federal regulations (FMCSR) apply only to companies and drivers engaged in interstate commerce, though many local statutes tend to adopt these regulations for intrastate commerce as well. There have been mixed reactions to the proposed rule modifications.

According to the Office of the Federal Register:

“The FMCSA believes that this rulemaking would not create an economically significant impact. The motor carriers, freight forwarders, brokers and transportation intermediaries that previously engaged in acts of coercion against truck or bus drivers will incur compliance cost to operate in accordance with regulations, and they would lose whatever economic benefit that the coercion had gained them. There would be safety benefits from that increased compliance with regulations and driver health benefits if hours of service violations decreased. By foregoing acts of coercion, the drivers would conduct their safety-sensitive work in a manner consistent with the applicable Federal regulations. During the four-year period from 2009 through 2012, there were 253 OSHA whistleblower complaints with merit and 20 Office of the Inspector General (OIG) investigations concerning acts of coercion by motor carriers. This is an average of 68.25 acts of coercion per year during the four-year period. The Agency estimates it would be less than the $100 million threshold required for economic significance under E.O. 12866.”

However, the National Shippers Strategic Transportation Council (NASSTRAC), an advocacy group for transportation and supply chain operators, filed comments with the FMCSA in response to the FMCSA’s draft of its 2011-2016 strategic plan.
While saying that they have no sympathy for shippers or intermediaries who try to pressure truckers into violating safety regulations, NASSTRAC said FMCSA’s proposal is a stunning overreach and abuse of its regulatory power.

“In effect, FMCSA seeks to deputize virtually all American businesses, along with federal, state and local governments, and individuals shipping personal property and household goods, as unofficial compliance personnel regulated by this agency,” NASSTRAC said in its comments. Additionally, they noted that the FMCSA already has the authority to penalize coercion.
In the official opinion of the NASSTRAC on FMCSA Overreach into Shipper Operations they noted their ceaseless work to grow the industry all while decreasing fatalities:

“…Shippers, receivers and intermediaries have worked closely with motor carriers to minimize inventories, streamline supply chains, drive down costs and prices, and increase economies during a time period of rising truck miles traveled and decreased highway crash and fatality rates involving trucks. In fact, the Department of Transportation recently announced [in 2009] that the rate of highway fatalities from accidents involving large trucks had declined to the lowest level since 1975, when recording on such statistics began. These developments show a marketplace that meets the economic goals of Congress when it deregulated the trucking industry in 1980, and promotes increased highway safety.”

“Clearly, our marketplace has no need for, nor would it benefit from, a massive expansion of FMCSA regulation,” said John Cutler, NASSTRAC’s legal counsel.
However, the Insurance Institute for Highway Safety (IIHS) shows that the number of fatalities has grown since that 2009 low – arguably due more to economic constrictions as a part of the overall recession, rather than an indicator of tighter adherence to safety regulations. In fact, advocacy groups warn that current trucking trends and lobbying are creating a more worrisome environment on the nation’s motorways.

“We have special trucking interests pushing legislation that will result in overweight, oversized trucks being driven by overworked, underage truck drivers that are inadequately insured,” said President of Advocates for Highway and Auto Safety Jackie Gillan to Fair Warning correspondent Brian Joseph. “All this with the backdrop of truck crash deaths and injuries climbing significantly and steadily.”

The IIHS notes that truck driver fatigue is a known crash risk:

“Under federal hours-of-service regulations, drivers of large trucks are allowed to be behind the wheel for as long as 11 hours at a stretch. Surveys indicate that many drivers violate the regulations and work longer than permitted. Requiring electronic onboard recorders for all commercial trucks would improve compliance with federal work rules by automatically recording when a truck is driven. The recorders would replace the easily falsified handwritten logbooks drivers keep to catalog their work hours.”
However, the fault in fatalities in crashes involving large truck drivers are not to be placed solely on the truckers. Vehicle crashes usually have multiple contributing factors.
Fatigued and distracted passenger car drivers and other motorists are also to blame for drifting into oncoming traffic, failing to stop, speeding, or driving under the influence. Causation is addressed in the comprehensive 2007 Large Truck Crash Causation Study (LTCCS), a joint report of the The Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Administration (NHTSA):
“Motor vehicle crashes are complex events. Usually they involve two or more vehicles. Elements that influence the occurrence of a crash may take place hours, days, or months before the crash. They include driver training and experience, vehicle design and manufacture, highway condition and traffic signaling, and weather conditions. Other elements may take place immediately before a crash, such as a decision to turn in traffic, a tire blowout, or snow. Crash reconstruction experts rarely conclude that crashes are the result of a single factor.

Fatigue, drinking alcohol, and speeding are major factors in motor vehicle crashes overall. Although their presence does not always result in a crash, these three factors, as well as other driver, vehicle, and environmental factors, can increase the risk that a crash will occur. In the LTCCS, ‘causation’ is defined in terms of the factors that are most likely to increase the risk that large trucks will be involved in serious crashes.”

The injuries and fatality in the Morgan/McNair crash attests to this notion of a perfect storm of driver impairment and speeding – as does the exacerbated extensive injuries due to being un-restrained in their limo van at the time of the crash. It remains to be seen whether these new regulations will go into effect, or if enacted, will contribute positively towards decreasing fatalities in large truck collisions. Other more comprehensive measures, like the aforementioned elimination of hand-written logs would go a longer way towards ensuring widespread compliance and understanding between everyone in supply chain operations and lessen the need for claims of coercion.

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