NCBFAA Says Proposed Trucking Rules Add Liability for Brokers and Forwarders, Halt Commerce
A proposal by the Federal Motor Carrier Safety Administration to prohibit the coercion of drivers to violate trucking rules would “open a Pandora's box of unintended consequences” for customs brokers and forwarders, said the National Customs Brokers & Forwarders Association of America in comments dated Aug. 7. Because refusing drivers that are about to violate hours of service limits could be considered coercion under the proposal, the end result would be cargo sitting at docks because the driver wouldn’t be able to move it and the arranger of transportation wouldn’t be able to call the trucking company to get a new driver, said NCBFAA.
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The comments address a proposed rule issued by the FMCSA on May 13 aimed at preventing transportation intermediaries from coercing truck drivers to violate the Federal Motor Carrier Safety Regulations. Under the proposal, transportation intermediaries -- defined as the arrangers of transportation in interstate commerce -- could be read to include ocean forwarders, non-vessel operating common carriers (NVOCCs), air forwarders, and even customs brokers when they hire trucks to move cargo off piers and airports, said NCBFAA. These entities would be prohibited from threatening to withhold work from a truck driver if they know the work would force the driver to violate trucking rules.
The way the proposal is currently drafted, that would apply in situations where the trucking company assigns a driver about to reach his or her hours of service (HOS) limits. Brokers and forwarders would be unable to call the trucking company to request a new driver, because it would in effect be withholding work. They couldn’t have the driver move the shipment either, because that would be aiding and abetting an hours of service violation, it said. Worse still, the proposal would assume that brokers and forwarders should know how close drivers are to reaching their hours limits because, as a party directing the driver to deliver the merchandise by a certain date, the transportation intermediary is in effect the driver’s employer. That could expose transportation intermediaries to liability for the actions of truck drivers they cannot control, said NCBFAA.
“Such a circumstance would prevent an NCBFAA member from replacing an HOS limited driver because the FMCSA could construe it to be ‘coercion’ of an HOS limited driver who refuses to violate the agency’s safety rules,” said the trade association. “Such inability to replace an ineligible driver would bring commerce to a halt. The NCBFAA’s view is that members hire the trucking company, not the driver, and responsibility for monitoring compliance with [trucking regulations] falls on the trucking company,” it said.
Email ITTNews@warren-news.com for a copy of NCBFAA’s comments.