Editor's note: This is the first part of a story about the FMCSA’s request for comments on its proposal to change hours-of-service rules. The next part will be published later this week.
Perhaps no one with deep trucking industry knowledge is more qualified than Steve Viscelli to voice opinions on the pending changes being considered to hours of service (HOS) regulations by the U.S. Department of Transportation (DOT).
The Federal Motor Carrier Safety Administration, a division of the DOT, first published an advance notice of proposed rulemaking (ANPRM) in August 2018, then sought public comments on how HOS provisions could be improved. This came after the electronic logging device (ELD) requirement took effect in late 2017, making HOS record keeping more accurate.
FMCSA was likely not expecting a 10-page, footnoted white paper, which is what Viscelli presented.
“There was a call for comments and I submitted them as part of that,” he told Fleet Owner. “I never received a response, which I think is standard, as they received lots of comments (over 5,200). There was a point when they said that they were going through them all, but I don't think there was an actual summary.”
Viscelli’s comments to FMCSA included this opening statement:
“The foundation of any change in hours of service regulations should be greater accuracy in reporting. In major segments of the industry significant underreporting of hours remains despite the adoption of electronic logs. The single most important area of underreporting is time spent on customer locations improperly logged as off-duty. There are a number of straightforward ways this problem could be addressed using existing electronic logs and clarification of existing rules. Addressing this issue would ultimately have tremendous benefits, including the more efficient use of driver time by customers and overall safety. Without accurate recording of time at customer locations, the Agency should not consider adding additional flexibility to hours of service.”
Viscelli is in a unique position, with a broad perspective few others can claim to have. A Ph.D., sociologist and author of The Big Rig: Trucking & the Decline of the American Dream, Viscelli spent over a decade studying the industry and interviewing truckers. He obtained a CDL and drove full-time for six months to experience a driver’s life. He is a Senior Fellow at the Kleinman Center for Energy Policy at the University of Pennsylvania.
His current research is on the potential impacts of autonomous trucks on work and labor markets of trucking. In addition, he has served as an expert witness in lawsuits involving long-haul drivers. That often requires extensive evaluation and estimation of the hours worked by drivers.
In essence, Viscelli feels there are root problems in the industry affecting drivers that need to be addressed before HOS flexibility changes.
“Widespread underreporting of on-duty hours remains throughout much of the long-haul truckload segment,” he wrote. “Drivers in this segment are typically not paid hourly and so, in an effort to preserve driving time, have historically underreported their work hours. Electronic logging has greatly reduced, though not eliminated, the underreporting of hours that should be recorded as on-duty - driving.
“Like other ‘pieceworkers’ - workers paid based directly on the units of work they produce - truckers try to find the most efficient ways to organize their work tasks in order to increase their pay. For drivers, this means increasing the miles they drive. Unfortunately for many drivers, much of their workday is spent doing work other than driving paid miles. In fact, on many days a long-haul trucker will spend a majority of work time performing tasks other than driving paid miles.”
List of issues
Viscelli compiled a lengthy list of activities truckers perform or must accept that add up to unpaid hours:
- Waiting to be assigned a load
- Waiting for information required to complete an assigned load
- Attending a truck and trailer to ensure security of load and truck
- Waiting to enter a dock or facility
- Communicating with the shipper and consignees’ employees
- Qualcomm and/or phone communications with carrier (e.g. driver manager)
- Logging hours of service
- Completing and mailing shipment paperwork
- Unloading or assisting in the unloading of a trailer (e.g. counting freight)
- Attending while a truck is loaded or unloaded.
- Hiring and managing labor to unload a trailer
- Cleaning a trailer interior
- Preparing trailers for loading (e.g. pre-cooling a refrigerated trailer)
- Loading or unloading empty pallets, racks or other equipment
- Scaling loads
- Placarding loads containing hazardous materials
- Travel route planning
- Work schedule planning
- Finding parking using guides, CB radio, internet or other means
- Mandatory pre-trip inspections of truck and trailer
- Completing trailer inspection forms
- Less frequent inspections of tractor and trailer in the course of work
- Post-trip inspections
- Fueling the truck, checking engine oil, washing windows and mirrors
- Monitoring and securing of freight and trailer conditions (e.g. checking trailer temperature)
- Making minor repairs to the truck (e.g. blown lights)
- Taking the truck in for repairs and maintenance (e.g. new tires, oil changes, etc.)
- Filling out reimbursement paperwork
- Washing, cleaning and organizing their tractor
- Purchasing supplies
- Record keeping
“Shippers and receivers often have little, if any, incentive to use drivers’ time efficiently and do little to get drivers in and out of their facilities quickly,” wrote Viscelli. “The shipper’s interest is in using the time and space of their dock and staff efficiently, not that of the truck driver. In fact, it can be in customers’ interest to deliberately waste truckers’ time. Customers may tell truckers to be available far in advance of when a load or dock space is likely to be ready, so that their truck will be available as soon as freight can be loaded. Likewise, customers may deliberately delay the final delivery of loads to use a trucker’s trailer as free storage space until scarce warehouse space and/or labor is available.
“Drivers in the long-haul truckload dry van or refrigerated segments can easily spend 80 hours or more per week performing work that should be logged as ‘on-duty’ without appearing to violate HOS on electronic logs. An essential strategy for maximizing productivity for drivers is systematically underreporting non-driving work hours to ensure that they have time to drive.
“Most drivers simply believe HOS make no sense given the flexibility required of them by carriers and shippers. Drivers understand that not preserving hours so that they can get the load there on time puts them at risk of displeasing customers and managers, even losing their jobs. As a result, drivers commonly misclassify much of the time they spend dealing with a shipper or consignee, filling out paperwork, or waiting while their truck is being loaded as ‘off-duty’ or ‘sleeper berth,’ even though, for most of these drivers, nearly all of these hours should be logged as ‘on-duty not-driving.’ Most drivers also don’t count idling while in line to enter a facility, slow-speed driving into or around facilities, backing into docks, or hooking or unhooking trailers as ‘on-duty – driving’ time.
“Underreporting what should be ‘on-duty – driving’ time adds significantly to the number of hours truckers can work under the 70-hour rule. These practices are so ingrained in their routine, that most drivers don’t even consider them real violations of HOS at all. While some drivers committing regular serious violations consciously think about how to avoid detection, for the vast majority of drivers, daily regular violations of HOS regarding on-duty – not driving time are a routine part of simply doing their job.”
Viscelli’s commentary to FMCSA included his offering answers to problems.
“The first step in getting drivers to log customer time properly is to end carriers’ use of vague training manuals and instruction,” he wrote. “FMCSA should produce standardized training materials for drivers that are unambiguous on key points on which drivers inaccurately log, such as on-duty time while attending a vehicle being loaded or unloaded.
“The second step would be to include customer location data in log audits and ensure that drivers log as on-duty while at customer locations as appropriate.
“Finally, FMCSA should require automatic logging of time on customer locations as work time, either using GPS and geofencing, or by simply requiring that drivers note when they are at a customer location. Provisions should be made for drivers to manually log as off-duty on customer locations when appropriate.
“Right now, many drivers spend lots of time unpaid sitting at docks, with serious implications for safety. This will continue until drivers’ time is valued and that, in turn, will not happen until it is accurately recorded. Given the existing capacity issues and driver shortage, the efficient use of driver time is critical. Ensuring time at customer facilities is properly logged is the best first step in that direction.”
This is the first part of a story about the FMCSA’s request for comments on its proposal to change hours-of-service rules. The next part will be published later this week.