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Driver detention review considered likely in Biden’s FMCSA

Regulating shippers as part of any review may be a stretch, according to trucking lobbyist

Study found drivers can lose billions in profits while waiting to load/unload. (Photo: Jim Allen/FreightWaves)

A proposed regulation to limit the amount of time a truck driver can be detained by a shipper without compensating the driver could gain more traction in the Biden administration and on Capitol Hill, according to a trucking industry lobbyist.

The detention time rulemaking was included in the Moving Forward Act, a transportation reauthorization bill that passed the U.S. House of Representatives last summer but failed to get taken up in the Republican-controlled Senate.

The proposal followed a request for information (RFI) issued in 2019 by the Federal Motor Carrier Safety Administration (FMCSA) to collect data on driver detention time. The RFI, which generated close to 600 comments, was itself prompted by a 2018 report by the U.S. Department of Transportation’s Office of Inspector General (OIG) urging FMCSA to better understand the cause of loading and unloading delays, and whether such delays affect safety. The OIG highlighted driver detention as a “top management challenge” for the agency in 2020.

Transportation consultant Randy Mullett, head of Mullett Strategies LLC, believes the new Congress and/or Biden’s FMCSA will take up the cause again.

“The issue isn’t dead, but I think it’s a stretch to think about taking the FMCSA to where it’s going to regulate shippers as well,” said Mullett, speaking during a panel discussion on Wednesday hosted by SMC3, a data company specializing in less-than-truckload freight.

“That gets into contracts and pricing that are difficult for the government to get involved in. But I look for them to revive the study of detention and what that actually means for truck driver safety and wages. There’s a lot of people that want to figure out how to avoid delaying drivers in a way that’s unpaid.”

Costs attributed to time spent by drivers waiting to load and unload are significant. The OIG’s 2018 report estimated that driver detention can cut earnings for truckload drivers by $1.1 billion to $1.3 billion, with annual net income for carriers reduced by $250.6 million to $302.9 million.

Some respondents to the FMCSA’s 2019 RFI, including the American Trucking Associations and the International Warehouse Logistics Association, support letting the market address operational issues caused by driver detention — through commercial agreements between carriers and their customers — versus a regulatory fix.

However, “although most drivers and owner-operators are weary of more regulations, several members have recommended introducing language into the federal regulations requiring either penalties for shippers, receivers, and carriers who do not compensate for detention, or establishing a fixed hourly wage, or both,” said Owner-Operator Independent Drivers Association (OOIDA) President and CEO Todd Spencer in comments to FMCSA.

A study conducted in 2018 by the OOIDA Foundation found that drivers able to receive detention pay to compensate for lost time collect approximately $50 per hour on average — half of what owner-operators consider to be a fair hourly rate, the foundation asserted.

The regulatory discussion at SMC3 also addressed technology, and whether advanced telematics should be used to regulate trucks.

“From our perspective, being a large consumer of commercial vehicles, once we buy that vehicle, the telematic information that comes from operating that vehicle belongs to us, the owner of the vehicle — not the manufacturer or the government,” asserted Tom Jensen, senior vice president of transportation policy at UPS (NYSE: UPS).

While there may be interest in the Biden administration taking a closer look at data generated by such devices, “I think [the trucking industry] is going to push back — we’re hoping it won’t be an area of focus on the enforcement side. I’m fairly certain the owner-operator community will get fired up if that’s the trend,” Jensen said.

“I’d like to see them spend a little bit of time figuring out if [electronic logging devices] made a difference with regard to safety,” Mullett said. “We know they made a compliance difference. But I don’t think there’s any data yet that shows they’ve made a safety difference.”

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    Trucking companies have been mandated to have ELD in every truck which has an associated cost up front and monthly. Shippers, manufactures, receivers, brokers etc have not been forced to produce out of pocket expenses while continuing to generate healthy profits. The only recourse trucking companies have is to raise the rates and that is not as easy as it seems. Sure you could refuse a load although that does not help to create revenue. Detention is at nearly 1/2 of the loads we haul. I run 31 reefers daily and daily I have to chase down brokers for detention just to hear the same story, we have to ask or customer for approval then you need to follow up daily just so they don’t get away without paying anything. The contract we make is with the broker not the customer so why do they need the customers approval??????????? Truckers suffer from down time not paid, hours ticking away without concern by the warehouses and commonly without any detention paid. Brokers rely on illustration on their paperwork showing no detention will be paid to cover themselves, how’s that for good business. The take it or leave tactic is not working. Warehouses should be mandated to have some standardized clock that the drivers would have a card for to show in and out times that the warehouse would be penalized for by some means, ie taxes, detention, fines etc. The ELD has not done any good as the hours tick away and lead to late deliveries and losing time on their 70 hours. Sitting at a warehouse should not count towards their hours and PC or some other form of movement should be allowed while under a load without being penalized when a driver is forced to stay off property of the shipper or receiver until an appointment time. The last part is important, time starts as soon as you move the truck, that is just wrong to have to start your hours at let’s say 1:30am for an appointment that is 3:30am because the nearest truck stop or safe haven is an hour away and you have to check in at least 30 mins before your appointment, then what empty or loaded at 4am with no reload and again your hours are just ticking away. ELD SUCKS
    With that being said and so much more needs to be, there it is in a nutshell.

  2. BILL


  3. Kenm

    Wait… A driver approximately gets $50 per hour for what… Are you kidding me! Remove the get out of jail word approximately and you come up with the L word. So some drivers get more that 50$ an hour and 90% every other driver gets an L response like… When the shipper/receiver pays us we will pay you? LIE! Pay us $25 an hour and we will be safer because all work will be on duty. Drivers on a 65-70hr 6 day of an on duty work week works 10 to 20 hrs or more of not logged in work. We all break the law to eat and the only ones that don’t know this is the newest FMCSA boot licker.

  4. Steven

    At $140 or higher at just about any dealership on Northeast coast and equipment prices are skyrocketed plus fuel and tolls….and many brokers are still paying $40 or less per hour sitting at dock and many brokers are still paying under $1.5 per mile….the hell with this business.
    $150 layover with Convoy for example…not to mention many other….one hundred fifty dollars per day for an equipment sitting at customer 24 hours…..ridiculous.
    No wonder small carriers never gets ahead of this game.
    Do I like Government control?
    But do I like so many abuses in this industry?
    For some is ok the way it is because for the moment they are ok but never know when the clock is turning against them.

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John Gallagher

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.