Comments to FMCSA on Detention

Notice: Request for Information: Concerning Commercial Motor Vehicle Driver Detention Times During Loading and Unloading

Docket ID: FMCSA-2019-0054

https://www.regulations.gov/comment?D=FMCSA-2019-0054-0001

Written on September 9, 2019, by

Vicki Simons, President
NKBJ InfoNet, LLC
Truck-Drivers-Money-Saving-Tips.com

Having nearly 3 years of experience in driving a commercial motor vehicle; having been married to a man who has driven professionally for over 16 years; and having for over 10.5 years published information online that is geared to helping professional truck drivers save money (which is distributed to thousands of readers); I am commenting on the FMCSA’s Request for Information: Concerning Commercial Motor Vehicle Driver Detention Times During Loading and Unloading.

ATRI DETENTION STUDY

On September 4, 2019, the American Transportation Research Institute (ATRI) released their study entitled “Driver Detention Impacts on Safety and Productivity” — accessible through their online form — which summarized data regarding detention of professional truck drivers collected in 2014 and 2018.

I provide the following quotes from the study that I consider to be important:

• “detention times and the frequency of detention have both increased”;

• “delay lengths of two or more hours increased 11.2 percent … with a 27.4 percent increase in delays of six or more hours”;

• “the most significant increase (39.6%) [came] from drivers who reported that more than 70 percent of their pick-ups and deliveries were delayed over the past 12 months due to customer actions”;

• “women were 83.3 percent more likely than men to be delayed six or more hours”;

• “customer detention times… significantly influence driver and carrier productivity, and compliance with federal regulations”;

• “refrigerated trailers and bulk/food haulers were detained for the greatest duration”;

• “the majority of drivers and carriers agreed that detention time of more than two hours was considered excessive”;
• “[the] majority of drivers reported that they had run out of available Hours-of-Service at a customer facility due to detention”; and

• “detention had a significant impact on their ability to comply with the HOS rules”.

FOUNDATION AND MINDSET

Once trailers are backed into docks, shippers and receivers may look upon them as extra storage units that they need not be in a hurry to handle. For that reason, the person in charge of transporting the trailer — the trucker — may be looked upon as a willing unpaid or poorly paid hostage or prisoner, accepting whatever is imposed upon them by the detainers.

It is never right when one group of workers is exploited at the hands of another group of workers who are never held accountable for their actions.

Professional truck drivers’ work time is more limited than that of many other workers because of the restrictions imposed by the federal Hours of Service regulations.

Furthermore, truckers’ income is often limited by many factors outside their control, including not being eligible for overtime — the statutory overtime rate of 1½ times regular wages for hours worked in excess of 40 in a single workweek — because of the Motor Carrier Exemption under the Fair Labor Standards Act (FLSA).
askthetrucker.com/overtime-pay-for-truck-drivers/ (no longer online)

Because an overwhelmingly large percentage of freight is moved by truck in the USA, we must agree that both the truckers’ time — and the utilization of the equipment they drive or haul — is valuable.

Great conflict also arises when a trucker’s Hours of Service run out due to detention, but the shipper/receiver does not provide adequate parking.

I am glad that the FMCSA is concerned enough about detention — including its impact on driver fatigue and compliance with the Hours of Service regulations — that it has requested these comments. All submitted comments from drivers need to be taken seriously and in conjunction with the proposed change to the Hours of Service regulations.

PERSONAL EXPERIENCE

The longest detention delay that my husband Mike has ever experienced as a professional truck driver occurred

• when I was traveling with him as his full-time passenger,
• at a receiver’s warehouse that was being used by a logistics company near Nashville, Tennessee.

Mike’s total wait time was 26 hours, 23 minutes from the time we arrived at the receiver until the time the trailer was empty.

He was paid only a fraction of what he should have earned, had he

• Either been paid an hourly rate for each hour he was detained by the receiver;
• Or had his load unloaded in a timely manner so that he could have been available to pick up another load.

Many other truckers were also delayed at that receiver at the same time, pointing clearly to a problem inside the facility regarding organization and efficiency.

LACK OF EFFICIENCY AT SHIPPERS AND RECEIVERS

Underscoring the point above, we learn from the ATRI study the following:

• “Carriers and drivers noted that shippers/receivers may not care about HOS constraints on the driver, likely do not understand the HOS regulations and are not held accountable for excessive delays – all of which further aggravates the issue of detention impacts on safety and productivity.”

• “This implies that shipping and receiving facilities have made little to no improvements to run more efficiently across the four-year time period.”

As a point of reference, the Department of Labor’s website states, “Some of the statutes and regulations enforced by the U.S. Department of Labor (DOL) require that notices be provided to employees and/or posted in the workplace.”

While I assert that it is not government’s place to tell private businesses how they should be run or improved, the FMCSA can certainly work with the Department of Labor to institute the requirement that shippers and receivers receive education about truck driver detention matters on a posted or regular basis.

Even so, what “teeth” would such education have? How would shippers and receivers be held accountable for their actions?

ANSWERING THE FMCSA’S QUESTIONS

The FMCSA has specifically requested answers to a number of questions, which I will answer here:

1. Are data currently available that can accurately record loading, unloading, and delay times?

If commercial motor vehicles are outfitted with properly working Electronic Logging Devices (ELDs) and if the professional truck drivers are properly trained on how to use these devices, then, yes, data has been (and is being) collected on loading, unloading and delay times.

2. Is there technology available that could record and delineate prompt loading and unloading times versus the extended delays sometimes experienced by drivers?

Without defining “prompt loading and unloading times” and “extended delays,” it will be impossible to determine how to delineate between the two.

Theoretically, if an Electronic Logging Device (ELD) has the functionality — or is connected with a system — that documents pickup and/or delivery appointment times or windows, then these devices could be programmed to record when loading/unloading times go beyond an agreed upon length of time.

3. How can delay times be captured and recorded in a systematic, comparable manner?

Again, Electronic Logging Devices may be programmed to record the times when a trucker arrives at a facility for his/her appointment.

If the trucker is early, it is between him/her and his/her trucking company as to any compensation that should be due before the stated appointment time.

The only capture and recording of delay times that I can envision being done in a “systematic, comparable manner” is if all Electronic Logging Devices capture exactly the same data and make it available in exactly the same way. This is most likely not going to happen since ELD manufacturers have their own proprietary hardware and software.

4. Could systematic collection and publication of loading, unloading, and delay times be useful in driver or carrier business decisions and help to reduce loading, unloading, and delay times?

Yes, it can be. However, there are several aspects to consider:

1. Shippers and receivers need to be educated about the impact of detention on truckers who service their needs.

1. As the ATRI study stated:

In the motor carrier survey, 79.8 percent of fleets reported charging detention fees, which aligns with the driver responses across both years. Carriers not charging detention fees listed the following as reasons for not doing so:

• Contract or account terms;
• Customer refusal to pay for past detention fees;
• Use of brokerage services that do not attempt to collect detention fees;
• To remain competitive and maintain good relationships with current customers.

1. Some trucking companies seem to be content with accepting contracts from shippers and receivers that keep their truckers and their equipment in exploitative situations, which in and of itself is a problem.

5. What should FMCSA use as an estimate of reasonable loading/unloading time? Please provide a basis for your response.

According to the ATRI survey, “the majority of drivers and carriers agreed that detention time of more than two hours was considered excessive”.

The answer as to what constitutes “reasonable loading/unloading time” also hinges on the nature of the transported products.

For example, loads that need to be “fingerprinted” piece-by-piece by a lumper will almost certainly require more time for unloading than palletized loads that can be moved on or off a trailer quickly by a forklift.

My husband Mike and I once watched in amazement as an extremely skilled forklift driver moved an entire truckload of palletized sports drinks onto our trailer in 11 minutes!

As a point of reference, insurance companies issue policies with certain deductibles, at certain premium price points, with the understanding that the policy covers only certain kinds of policyholder claims and to what extent.

As another point of reference, the National Education Association has this to say about “Weighted Student Formula” (WSF):(1)

“The basics of WSF relate to the method of allocating resources to the schools within a district based on certain characteristics of the student population and not on the traditional method based on the number of students and/or personnel. … Resources for the school are not determined by the traditional full-time equivalent (FTE) count but by the actual demographic characteristics of the students within the school.”

In a manner similar to those described above as used in insurance and education, it would be wise for the FMCSA — or an associated agency or organization — to determine a standard amount of time that is required for loading and unloading each kind of freight.

Once a timetable or schedule is established, this information should be included in the education given to shippers and receivers.

With this timetable or schedule in hand, motor carriers and truckers will have the basis upon which to hold shippers and receivers financially accountable for their efficiency — or the lack thereof — for trailer loading/unloading.

6. How do contract arrangements between carriers and shippers address acceptable wait times? Do these arrangements include penalties for delays attributable to a carrier or shipper?

Professional truck drivers who drive for a trucking company — but are not owner-operators — never get to see or have input on the contracts between carriers and shippers/receivers.

In recent years, some shipping contracts have included stipulations that fines will be imposed on drivers arriving late to appointments, and yet shippers and receivers who detain truckers unreasonably are not held responsible for their actions.

Perhaps the FMCSA can develop written guidance for motor carriers on how to help keep their truckers and trucks from being held hostage in docks.

This same guidance can be provided to owner-operators and independent truckers.

7. What actions by FMCSA, within its current statutory authority, would help to reduce loading, unloading, and delay times?

Citing the FMCSA’s website:

“To accomplish these activities, the Administration works with Federal, State, and local enforcement agencies, the motor carrier industry, labor and safety interest groups, and others.”

It may be beyond the FMCSA’s “current statutory authority” to directly reduce loading, unloading or delay times, but it would certainly be advisable for the agency to work with other entities to

• educate shippers and receivers about this issue and the need to move freight in an expeditious manner;
• work with motor carriers regarding paying their drivers well for all time worked; and
• come to an agreement among all shippers and receivers that professional truck drivers need to be respected for the work that they do and compensated on an hourly basis for all of their time spent waiting to have freight loaded onto or off their trailers.

Hourly pay rates may need to be based on a sliding scale similar to the cost of living calculator with data based upon locations across the USA.

ADDITIONAL THOUGHTS

I have always found it valuable when doing business to remember the Golden Rule:

If shippers or receivers would not like to be held up in unaccountable ways without proper compensation, then they should not do the same to others.

The term “proper compensation” will vary, but this is an opportunity for shippers and receivers to “up their game” when it comes to winning freight contracts.

As a point of reference, we have seen hospitals advertising their low emergency room waiting times. They do this to attract new urgent care business away from hospitals where people wait a long time to be seen.

When a prospective urgent care patient has to choose between two local hospitals that provide equitable care, the patient can choose the hospital where he/she will be seen by a health care professional faster.

Likewise, imagine what would happen if shippers and receivers implemented efficiency procedures and started to advertise

• Their efficient or ultra-low average loading/unloading times; and
• Their no-hassle hourly driver detention pay rate, starting one hour following truckers’ appointment times.

Were they to do that, shippers and receivers would most likely see motor carriers clamoring for their business!

That kind of epic shift in the transportation industry would most likely put at least a measure of pressure on other shippers and receivers to follow suit or get left behind when it comes having their needs met.

Vicki Simons, President
NKBJ InfoNet, LLC
Truck-Drivers-Money-Saving-Tips.com

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References:

1. www.nea.org/assets/docs/HE/formula.pdf (no longer online)