Federal Update
‘Why aren’t you rolling?’
Electronic logs, Qualcomm and other tracking technologies lead to constant contact with carriers, who are more than happy to dish out guilt trips, force drivers to respond and keep the wheels turning even if a driver is tired or in need of a break.

By David Tanner, associate editor

For the fourth time during a single mandatory rest break in August, a professional trucker emerged from his bunk to respond to a message from his carrier.

“Hey guys, I need to know if everyone is going to be good for (on-time delivery) on all loads between now and tomorrow morning,” the message read. It demanded a response.

The truck driver, a company driver that Land Line will refer to as “John” had been attempting to rest during a mandatory 10-hour break from the road, but the constant interruptions meant no meaningful rest on this day. Each time he failed to answer the message, John received an additional “ping” from the Qualcomm unit seeking a response.

“They knew I was in the bed, asleep,” John told Land Line.

One month earlier
In July, John was sparring in a message war with his carrier. He had run out of hours and was taking a rest break in his sleeper when the following string of messages occurred:

12:57 p.m. Carrier: Are you headed to delivery?

1:02 p.m. Carrier: Please call.

2:33 p.m. Carrier: What is your ETA to delivery?

2:34 p.m. Carrier: Need you to start rolling.

2:35 p.m. Carrier: Why have you not called me back?

3:25 p.m. John:     I can’t talk and sleep at the same time.

3:37 p.m. Carrier: Why aren’t you rolling? You have hours and are going to service fail this load.

3:44 p.m. Carrier: You have hours now and the ability to roll – that is a failure when you are sitting and refusing to roll to the customer.

3:51 p.m. Carrier: Please go in and deliver. We need to service our customers. Please start rolling. They will receive you up to 11:30. Please do not be late.

4:14 p.m. John:      Bad storm. Can’t roll now.

4:34 p.m. Carrier: Weather Channel is showing small rain shower in your area, 1-2 inches of rain and 10 mph winds ???

In this circumstance, John says he couldn’t care less about what the Weather Channel said. He was the one behind the wheel at that moment and felt his ability to operate safely was impaired at that time. He fully admits the exchange got under his skin.

As he got ready to go, the weather got bad, John told Land Line afterward.

“That’s when they sent me that message.”

John said he still arrived before the 11:30 p.m. deadline and delivered his load.

Tug of war
When asked if he considered the Qualcomm exchanges to be a form of driver harassment, he answered, “I think it is, yes.”

John’s exchanges are an example of the tug of war going on in the trucking industry between productivity and safe operation.

Carriers, dispatchers, brokers, shippers and receivers are always looking for ways to reduce their costs and make profit. On the other side of the coin, the hours-of-service rules prohibit a driver from operating a commercial vehicle when fatigued or on a mandated break.

“The regulations say that if you’re tired, you’ve got to rest, you’ve got to quit driving,” said OOIDA Executive Vice President Todd Spencer. “And you cannot be retaliated against. There are penalties (for retaliation) but they are not an effective deterrent.”

Fatigue is a human factor that relies on the judgment of the driver. No carrier, dispatcher, broker, shipper or receiver checking on a driver or load from a back office can know for sure whether a driver is fatigued or not.

Technology has made the discussion more interesting and brought a whole new set of issues to light.

“This whole issue got started off on the wrong foot when carriers began using technology to enhance productivity,” Spencer said. “These devices do not take into account when a trucker needs to stop or is in need of a break due to hours of service, weather or congestion.”

As in John’s case, the constant communication with the back office put extra pressure on the trucker to perform even when he was tired. Pressure is the reason he said he felt harassed by his carrier. The technology was another tool for his carrier to carry out that form of harassment, he said.

OOIDA has raised numerous concerns with the Federal Motor Carrier Safety Administration’s attempts to require electronic onboard recorders, also known as electronic logging devices, on commercial vehicles.

The issue of driver harassment was all it took for the Seventh Circuit Court of Appeals to rule against the FMCSA and force the agency to vacate its 2010 final rule that would have required EOBRs on carriers that demonstrated unsatisfactory safety and compliance ratings.

However, the current highway bill known as MAP-21, Moving Ahead for Progress in the 21st Century, requires the FMCSA to try again with another rulemaking, this time making sure that the electronic logging devices cannot be used to harass drivers.

OOIDA Chief Operations Officer Rod Nofziger says the FMCSA has been trying to tie compliance with safety through numerous channels – CSA and the recent hours-of-service rule change among them.

“Within their analysis is that electronic logs will ensure compliance and therefore improve safety, reduce crashes, and save lives,” Nofziger said. “They have some faulty math in their cost-benefit analysis for electronic logs.”

Besides a call for the FMCSA to produce a harassment-free electronic logging mechanism – which OOIDA views as a very tall task for the agency – MAP-21 contains another important provision, this one pertaining to coercion.

The law makes it illegal for a carrier, shipper or receiver to force commercial drivers to violate the hours-of-service regulations. It is the first ever attempt by the FMCSA to hold shippers and receivers accountable for their role in highway safety.

A House transportation subcommittee hearing held in March 2013 revealed that the anti-coercion provision in MAP-21 could help truckers in the battle against lengthy and largely uncompensated detention time at the shipping docks – time that cuts into truckers’ drive time and pits them against the hours-of-service clock.

“MAP-21 incorporates a provision on the prohibition on coercion, which doesn’t speak directly to detention time, but does speak to the agency’s now new opportunity to take action in cases where a driver files a complaint that a shipper or receiver or another party is exercising some sort of leverage or coercion through economic withholding or perhaps even physical harm at the point of loading and unloading,” FMCSA Administrator Anne Ferro stated during the hearing.

But what do truckers do if they believe they are being harassed or coerced?

The U.S. Department of Transportation has numbers to call to report safety issues and violations of federal regulations. That number is 888-DOT-SAFT, or 888-368-7238.

“Don’t be satisfied with just one answer,” OOIDA’s Todd Spencer says. “You should document that you called the hotline and let your member of Congress know as well.”

Editor’s note: Qualcomm is completing the process of selling Omnitracs, the fleet management portion of Qualcomm’s business, to Vista Equity Partners. The sale is expected to be completed in the first quarter of Qualcomm’s fiscal year 2014.

By Jami Jones, managing editor

The changes in the hours-of-service regulations implemented in July continue to draw sharp criticism. And the industry, from the owner-operators to large motor carriers, says the changes are hurting flexibility, productivity, rest and compensation.

The changes to the hours-of-service were examined in a November hearing held by the House Small Business Committee Contracting and Workforce Subcommittee.

While the criticisms of the mandatory 30-minute rest breaks and the changes to the voluntary 34-hour-restart provision were plentiful, the surprise of the hearing came from Administrator Anne Ferro with the Federal Motor Carrier Safety Administration in her opening remarks.

While Ferro defended the changes to the regulations and explained that the agency was not obligated to delay implementation of the rule while a field study on the voluntary restart provision is completed, she turned the hearing to a much larger issue in trucking – detention time.

“I want to draw on my very recent experience where I had the opportunity to ride along for two days with Leo Wilkins, a professional owner-operator,” Ferro told committee members As she continued, it was apparent that Ferro sees the fundamental problem in the industry and called on Congress to help address it.

Survey says

The OOIDA Foundation surveyed the Association’s membership on the recent HOS changes. The results point to a big “thumbs down” to the changes.

Only 3 percent said they felt less fatigued with the changes in place;

46 percentof respondents felt more fatigued after the changes;

79 percent have reduced ability to use the restart;

65 percent have seen lost income; and

More than half have experienced reduced loads and mileage.

“I also saw how the shipper and receiver drive the unpredictability that plagues the trucking industry. Exempt from the Fair Labor Standards Act for more than seven decades, truck drivers by and large are paid by the mile or by the load, and the hours a driver might spend waiting for a load could cost that driver a day’s pay,” she told the committee.

“Driver pay and extreme loading dock delays have a significant impact on drivers’ ability to be efficient, professional and safe. In short, uncompensated delays force drivers to press legal and physical limits to capture that day’s pay. The logistics industry gets this time free on the backs of the drivers, and on the backs of small business. Uncompensated detention time needs your attention because what makes the job better, often makes the job and the driver safer.”

In spite of Ferro’s comments on detention time, the majority of the questions from lawmakers centered on why the changes to the hours-of-service regulations were made and whether they were even necessary.

Many of the arguments raised by lawmakers echo the criticisms from the Owner-Operator Independent Drivers Association.

Arguments such as whether the changes will make the highways any safer; crash statistics used to justify the changes are not based on fault; and the changes reduce flexibility and take decisions like when a driver wants to drive away from them.

None of the arguments were met with answers that satisfied the lawmakers.

Once the lawmakers finished grilling Ferro over the issues, a second panel of witnesses was seated. Representatives of large motor carriers, brokers and academia took the table with one lone truck driver – OOIDA Life Member Tilden Curl.

Curl’s real-world experience and his straightforward answers made him a popular witness with lawmakers. He was routinely asked time and time again for the real effect that the rule has on his life.

“As professional drivers, we need flexibility to balance countless demands. Loss of flexibility has an economic impact for small-business truckers, and over time changes to HOS regulations have reduced that flexibility. Less flexibility makes it more difficult to stop for rest, avoid traffic, or keep a schedule after being delayed by a shipper or receiver,” he said in his opening statement.

“What should be done? FMCSA itself can act by returning flexibility to HOS, including allowing truckers to pause the duty clock with rest breaks.”

Curl’s straight talk didn’t stop with his opening statements.

At one point, the retention of the 11th hour of driving time came under fire. The witness from the University of Pennsylvania spoke in general terms against the 11th hour, saying it was inherently more unsafe than the 10th hour of driving.

Curl responded with hard statistics from the American Transportation Research Institute that show that the 11th hour of driving is not when the majority of truck-related crashes happen. They happen in the first hour of driving.

Toward the end of the hearing, Curl drove home the point that fatigue is speculative and really cannot be regulated.

“When we’re talking about fatigue, we’re talking about something – that I can look up here at this panel and see fatigue,” Curl said. “It begs the question, how do you quantify fatigue? I know there are people involved in lots of studies that try to identify that.

“If you stay up late and watch the football game one night, you may come into work the next day maybe somewhat fatigued, but it doesn’t mean you can’t conduct your duties safely and efficiently as necessary. Fatigue is a relative factor.

“Working short-haul day-to-day, sometimes I’m more fatigued by it because it’s a lot of work. Again you have to go back to giving the drivers themselves the control. … To have a blanket law that covers everybody, it’s going to help a few, but it’s going to hurt a lot more.”  LL