FMCSA's Ferro tackles detention time at congressional hearing on HOS

By Jami Jones, Land Line managing editor | Thursday, November 21, 2013

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.

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 the trucking industry – detention time.

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

“I want to draw on my very recent experience – and a real treasured one – where I had the opportunity to ride along for two days with Leo Wilkins, a professional owner-operator,” Ferro told committee members. “My time with this remarkable small-business owner helped me better understand the challenges truck drivers face and to experience firsthand what the agency’s safety rules mean to a driver’s daily life.”

It became apparent that Ferro sees the fundamental problem in the industry and called on Congress to help address it.

“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 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 if they were even necessary.

Many of the arguments raised by lawmakers echo the criticism 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 were 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 various portions of the rule have in his day-to-day 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 told committee members 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 in the hearing, 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.

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.”

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