FMCSA to consider addressing driver coercion in HOS regulations

Drivers who fear being coerced by their companies – as well as by shippers and receivers – into driving longer periods if new hours of service rules are adopted could be provided some relief if regulators agree to insert changes into the proposal.

As was the case during the first listening session hosted by the Federal Motor Carrier Safety Administration (FMCSA) at the Great American Trucking Show in Dallas, Texas, on Aug. 23, driver coercion and the use of "forced dispatch" by employers was a hot topic at the second session, held in Washington, DC on Sept. 17.

"It's not illegal for a company to fire me for not delivering a load on time if I could have delivered the load through a legal manipulation of hours of service regulations," Bob Stanton, who represents truck drivers with obstructive sleep apnea, told FreightWaves at the session.

"Being told by an employer to take your split [sleeper berth time] now so that you can work an extra three hours is not technically a violation of the rule – you have to have a violation of hours of service to violate the coercion rule. So unless they put language in the rule that says you can't be told when and where to take a split, there's no coercion."

Stanton's concerns were repeated by several others during the two-hour session, held at U.S. Department of Transportation headquarters. They weren't overlooked by FMCSA Chief Counsel Jim Mullen, who also attended.

"While there's already some guidance and procedures for dealing with that issue within current federal regulations, the suggestions were well taken, and it's essentially something we would consider – whether there ought to be regulations-text language addressing that issue," Mullen told FreightWaves following the session.

Mullen cautioned, however, that his agency does not have regulatory authority over shippers and receivers. So to the extent that shippers and receivers could use any new flexibility written into the hours of service regulations to hold up drivers at loading and unloading facilities, "inserting language that says taking advantage of split breaks is entirely at the discretion of the driver – that would not cure the ill," Mullen said. "Any regulatory text we would put in would only apply to the carriers and the drivers."

In addition to calls to address driver coercion, insurance industry advocates underscored recent concerns with data used by regulators to produce the proposed HOS changes. Eric Teoh, senior statistician for the nonprofit Insurance Institute for Highway Safety, commented that the proposal to modify the adverse driving conditions exception by extending it an extra two hours "cannot be counted on to reduce driver fatigue – we recommend abandoning it entirely."

Much of the support at the listening session for the flexibility that the proposed rules promise to bring to the industry came from those representing drivers hauling for specific industries, such as construction, livestock, food, and chemicals, with some calling for adjustments.

Allison Rivera of the National Cattlemen's Beef Association said the HOS proposal is a "net positive," however, "they don't address the unique needs of livestock haulers." She suggested, among other things, that the rules expand the definition of what constitutes an "adverse condition" to address livestock. "Make it broad enough so that livestock haulers find it useful to safeguard the well-being of cattle during hot and humid periods," she said.

The American Road & Transportation Builders Association (ARTBA) asked for a general exemption for construction drivers. Construction firms work long hours over short periods of time, which puts regulations governing certain highway projects in conflict with the HOS proposal, an ARTBA representative said.

A representative from EROAD, which manufacturers electronic logging devices (and partners with FreightWaves on weekly surveys tracking migration from automatic onboard recording devices), requested that the agency provide a minimum of six months and up to a year from the adoption of any rules to time of enforcement to allow ELD manufacturers to make product development changes based on the new rules.

FMCSA announced at the session that the deadline for submitting comments has been extended from Oct. 7 to Oct. 21.

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