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Driver detention review considered likely in Biden’s FMCSA

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.”

This article originally appeared on Freight Waves

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