Hours of Service History
For years, transportation managers relied on a set of rules that dictated the productivity of truck drivers. Many successful trucking businesses gauged their productivity by understanding how those rules controlled one resource—the hours a driver could operate. Hours of Service (HOS) rules define the number of daily and weekly hours a driver can spend driving, working, and resting between shifts.
Speaking with general business managers and supply chain managers, I have noticed a failure to understand how changes in the HOS will affect business. That is dangerous. It is important for any US-based logistics manager to understand the impact of the HOS rules on their supply chain network and on the overall economics of our trade. Failure to understand how these rules affect the economics of trucking companies, of drivers, and the overall economy of the United States can be fatal to a business—and potentially to our economy.
Politics is involved with any government regulation. There are always those on opposite sides of any issue who will distort the facts to support their cause. These special interests usually gain wealth and power at the expense of the majority who have to work to pay for the regulation.
We practitioners have watched the ongoing struggle and voiced our opinions about the HOS. As with any political discourse, the debate tends to be controlled by polar opposites. Our goal with this series about HOS regulations is to educate logistics practitioners and the general business community about the realities of HOS regulations, and about how changes to these regulations affect the success of businesses and the nation's economy.
We have a fundamental goal we are trying to achieve and an agenda to meet this goal. We believe that there is still insufficient data to support a change to fewer hours per day. It is our belief that the relentless efforts of safety advocacy groups to reduce commercial drivers’ hours, while noble and well-intentioned, are overzealous and misguided. We believe that transportation labor unions, specifically the Teamsters, are motivated to press for reduction in hours. On the opposite end of the spectrum, nonunion drivers, independent businesspersons, owner-operators, trucking companies, and the shipping community wish to gain as much productivity as possible while maintaining safety.
These articles will focus on the reality behind the arguments. We believe that with thorough and complete education, reasonable people can arrive at a reasonable agreement that properly balances safety and economics.
Our goal is to energize and motivate shippers to take an interest in this subject and to become alert to the interest groups that are pressing for regulation changes that will harm our economic strength without improving our highway safety.
We want to motivate you to take action. We believe that once shippers understand the facts, the impact of the proposed changes, and the potential pressures on the market, they will become angry and take action. These changes will make life as a shipper more difficult and will take money out of the pockets of almost everyone involved in the transportation and logistics industries. We also believe that these changes will not improve our environment, but will actually prove to be destructive.
Before taking action, we urge you to read the following essays. As businesspeople and citizens involved in the commerce it is incumbent upon you to rise up and make your voices heard by the regulators, the courts, and Congress. If we do not make our views heard and understood by the regulators, there is little chance that we will win our cause.
Congress designed the Interstate Commerce Act of 1887 to regulate the railroad industry. The act was meant to keep railroad rates reasonable and just, but it did not empower the government to fix specific rates. The act created a federal regulatory agency, the Interstate Commerce Commission (ICC), which was charged with monitoring railroads and ensuring compliance with the new regulations. It is important to understand that this was the first federal law to regulate private industry in the United States.
By the late nineteenth century, railroads had become the principal form of transportation for both people and goods. The railroads greatly influenced the general welfare of individuals and businesses through the prices that they charged. As a reaction to the perception that the railroads abused their power because they had too little competition, various constituencies lobbied Congress to regulate the railroads. In the vacuum of federal law, various states passed laws that were designed to curb railroad abuses. The Grange Movement lobbied Congress on behalf of farmers, who were greatly affected by the rates charged by the railroads. Congress declined to step in and take action, leaving the matter to the states.
In 1886, the US Supreme Court ruled that state laws regulating interstate railroads violated the commerce clause of the U.S. Constitution. The court's action in the Wabash v. Illinois case created a void that Congress soon filled with the passage of the Interstate Commerce Act.
Throughout the early twentieth century, Congress passed amendments to the act that continued to increase the power of the Interstate Commerce Commission. These various amendments not only authorized the ICC to set maximum railroad rates, but also extended the agency’s authority to covered bridges, terminals, ferries, sleeping cars, express companies, and oil pipelines. Additional powers expanded ICC jurisdiction to include regulation of the telephone, telegraph, and cable companies. In 1935, Congress passed the Motor Carrier Act, which amended the Interstate Commerce Act to allow the ICC to regulate bus lines and trucking companies as common carriers.
The Motor Carrier Act was one of many statutes enacted during the Great Depression that focused on government regulation of business, and it was fueled by a belief in an unregulated marketplace—which led to the Great Depression. In the years leading up to the depression, the trucking industry grew like many others, with great risk and failure. There was concern that the industry was economically unstable when small companies were unable to satisfy even minimal standards of safety or financial responsibility. Supporters of regulatory statutes argued that bringing the trucking industry under the regulatory control of the ICC was necessary to maintain a stable transportation industry. Not unlike today, different partisan forces lobbied Congress, and a wave of regulation was created in the Depression era when Congress passed the Motor Carrier Act of 1935, giving the ICC jurisdiction to control interstate trucking.
In 1938 the ICC began to enforce the first HOS rules. Until that time, trucking companies and drivers created their own sets of rules—which of course meant that there were no rules. In the 1930s, an interstate truck could average about 25 miles an hour at best because of the technological limitations of the vehicles and the condition of the highways. The expectations placed on drivers by both shippers and trucking companies were unrealistic. These conditions and stories of management abuse of drivers, both real and imagined, created regulatory motivation.
The 1930 rule limited drivers to 12 hours of work within a 15-hour period. The rules defined work as “loading, unloading, driving, handling freight, preparing reports, preparing vehicles for service, or performing any other duties pertaining to the transportation of passengers or property.” The three hours of difference between the 15 hours on duty and the 12 hours of work were meant to be used for meals and rest breaks. The rule established a weekly maximum of 60 hours over seven days, equating to nine hours of rest and three hours of breaks within a 24-hour day.
It did not take very long for organized labor, including the American Federation of Labor, the Teamsters, and the International Association of Mechanists, to petition for a stay on the regulations. A few motor carriers also petitioned, and the ICC accepted the petitions and agreed to listen to oral arguments. The AFL wanted HOS limits of eight hours per day and 48 hours per week. At that time the ICC found that there was “no statistical or other information which would enable them to say definitively how long a driver can safely work." They also said, "the evidence before us clearly does not suffice to enable us to conclude that duty as low as eight hours in a 24 hour period is required in the interest of safety."
While the ICC could not find statistical evidence to justify reducing driving time to a maximum of eight hours, a compromise was reached that reduced the 12 hour work limit per 24 hours to a 10 hour work limit per 24 hours. The 15-hour on-duty limit disappeared. Motor carriers were required to give drivers eight consecutive hours off-duty each day. The effect of these changes allowed for 10 hours of driving and eight hours of rest within a 24 hour day.
This rule change remained in effect for the next 23 years.
A big benefit of both these technological advances was that the physical demands of driving a truck eased. More powerful engines reduced the need for constant gear shifting. Air brakes allowed trucks to stop within shorter distances. Interstate highways cut through terrain to reduce the grades the trucks would need to climb. Power steering became available. Trucks began to be built with longer frames and sleeper berths that allowed drivers to get some rest without having to check into a hotel. The combination of all of these improvements changed the nature of the trucking industry from short haul to long haul.
In 1962, the ICC modified the rules and eliminated the 24 hour cycle limit and replaced it with the 15-hour on-duty limit. This rule change allowed drivers to press more miles into a shorter period of days before they would hit the mandatory 60-hour-per-week limit. A driver could drive 10 hours, take an eight-hour rest break, and then drive the remainder of that 24-hour period. This alteration to the rule reduced the total cycle time from 24 hours to 18. Drivers could then exhaust their weekly limits in as little as five days. In addition, drivers would also become exhausted if they ran the cycle too long.
While some may claim that the ICC never clearly explained these changes, the truth is that the economics of the new conditions inspired a series of lobbying efforts to instigate the 1963 rule change. With the new interstate highway system and recent improvements in truck technology, it was possible for a driver to traverse the United States, coast-to-coast, in under five days. Shippers found this attractive because it increased the speed of commerce. Truck carriers embraced the rule change and began to offer fast, coast-to-coast service.
Another rule change in the early 1960s added an exception for trucks equipped with sleeper berths. The statute allowed a driver to split the eight-hour off-duty shift into two parts. A driver could now break his rest period into two pieces and effectively "stop the clock" by doing so.
The split-berth provision allowed drivers and carriers to increase the driver’s productivity. An excessively tired driver at either a loading origin point or unloading delivery point could elect to go "off-duty" while waiting for his truck to be loaded or unloaded. In theory, the driver could climb into his sleeping birth and catch a few hours of sleep while the shippers were busy with their business in the back of the truck. In reality, drivers would not necessarily get any sleep, but would sometimes engage in other activities they found entertaining. Sometimes they waited and then elected to go off-duty, not really getting any rest.
Numerous proposals attempted to change the HOS rules between 1962 and 2003, but none were ever finalized. When congress abolished the Interstate Commerce Commission, the regulations managed by the different divisions of the ICC dispersed to other federal departments. The Federal Motor Carrier Safety Administration (FMCSA) became part of the Department of Transportation and the FMCSA became the new administrator of the HOS rules.
While the ICC was still in power, the length and maximum weight of heavy-duty trucks was regulated and limited. The interstate highway system allowed for much heavier freight vehicles, and in the 1970s we saw the development of what is now the modern semi tractor-trailer truck. An overall length limitation of 65 feet for both tractor and trailer dictated the loading capacity of a trailer. In order to increase freight capacity, longer trailers were developed. The industry embraced the use of "cab over engine" tractors as well, to reduce the length of the tractor unit and allow the use of longer trailers while maintaining the maximum 65-foot vehicle length. Eventually, with the elimination of the ICC, limitations on overall vehicle length were dropped. Technology continued to develop more powerful engines and lighter-weight components that would allow semi-trucks to carry more cargo while maintaining their 80,000-pound gross vehicle weight.
At the same time, however, the highways became more congested. Americans’ love for the automobile continued to grow despite rising fuel costs created by the oil crisis of the 1970s; more cars and trucks continued to fill our highways. Our economy continued to grow, which created more demand for truck transportation capacity. Our population expanded and filled in the space around the cities, creating large suburban territories. Smaller towns and rural areas also grew in size, creating even more demand for freight capacity. Continuing regulation hobbled other forms of freight transportation, and railroads were now unable to service the point-to-point nature of our modern economy effectively.
Naturally, with the increase in the number of automobiles and trucks on the road, more vehicle accidents occurred. Fatality rates went up. Larger, heavier trucks could move as fast as automobiles, and they proved deadly when their drivers lost control. Accident rates for heavy-duty trucks continued to climb.
Many causes contribute to an accident: speed is clearly one contributor, along with intoxication, traffic congestion, and driver fatigue. Starting with the efforts of Ralph Nader in the 1960s, highway safety groups began to form to lobby for changes. Seat-belts, airbags, antilock brakes, cell-phone bans, and stiffer DWI laws have all contributed to an overall awareness of highway safety and are a direct result of the work of these highway safety groups. Highways are now built with more forgiving guardrails and barriers. Barriers now exist where horrific head-on crashes happened 20 years ago.
Still, you cannot alter the laws of physics, and when trucks hit smaller vehicles, the results can be devastating. One of the areas of increased safety focus was driver fatigue as a causal factor. That focus resulted in the 2003 changes to the HOS rules.
Our highways did not really grow in capacity. Although some roads did gain a lane or two, new exit ramps appeared, and some roads transformed from two-way single strips to multilane divided highways, the pace of road-infrastructure improvement never did keep up with the expansive growth.
Now add in the use of cell phones and increased driver distraction, and you have more crashes. More cars and trucks, many of them operated by people on cell phones, traveling more miles than the roads can support.
Something had to change. While some lawmakers focused on driver behavior, and other lawmakers focused on cell-phone use, a group of safety advocates and labor unions began to pay close attention to the accident rates of trucks. They began to lobby for changes to the hours of service regulations. The idea was that truck drivers were spending too much time behind the wheel and not enough time resting. These groups started to press the idea that driver fatigue was a major contributor to the increased accident rate.
Congress directed the Department of Transportation (DOT) to establish new rules for commercial vehicle drivers’ hours of service in 1995. The Congressional mandate directed the DOT to ensure that the rules took into account the latest science on human fatigue and alertness.
On May 2 of 2000, the Federal Motor Carrier Safety Administration (FMCSA) posted the very first notice of proposed rule-making in the Federal Register. The goal was to provide drivers with better opportunities to sleep, and thereby reduce the incidence of crashes caused by driver fatigue. FMCSA estimated that 755 fatalities and 19,700 injuries occurred each year because of drowsy, fatigued commercial motor-vehicle drivers.
A summary of the proposed rule changes included:
Revert to an eleven-hour daily cycle and a seven-day weekly cycle.
Adjust the work-rest requirements for various types of operations.
Emphasize rest. Require long-haul and regional drivers to spend ten consecutive hours off duty within each eleven-hour cycle, and to take two additional hours of time off in each fourteen-hour work period within each eleven-hour cycle.
Require weekends, or their functional equivalent, with a minimum rest period including two consecutive periods from 11:00 p.m. to 7:00 a.m.
Require the use of electronic on-board recorders (EOBRs) in CMVs used by drivers in long-haul and regional operations.
While everyone could agree that the HOS rule should be improved, reaching a consensus proved difficult because the root causes of accidents were unclear. Jim Hall, then the chair of the National Transportation Safety Board, highlighted the issue in a letter that he sent to then Department of Transportation Sec. Rodney Slater. In that letter, Mr. Hall highlighted "the difficulty in determining the incidence of fatigue-related accidents is due, at least in part, to the difficulty in identifying fatigue as a casual or contributing factor in accidents. There is no comparable chemical test for identifying the presence of fatigue as there is for identifying the presence of drugs or alcohol; hence, it is often difficult to conclude on each equivalently that fatigue was a casual or contributing factor in an accident."
For a long time the transportation industry recognized that fatigue was a contributing factor in accidents. Jury awards in civil lawsuits for negligence were rising. The major trucking companies were concerned about their potential liability and about the risk of loss. The captains of the transportation industry understood the need for changes to address the growing accident rate. The major players invested in additional safety programs to increase driver awareness. Major fleet operators such as Walmart invested both personnel and money into assisting in the accident research.
Regulators and the transportation company executives faced the challenge of a serious lack of solid data on the relationship between fatigue and accidents. The studies published at the time differed significantly in their estimates of the number and proportion of fatigue-related truck accidents. Different studies used different analytical approaches, specifically in the analysis of the causes of crashes. The data fell into two classes: large-scale accident data files and data that came from intensive analysis of smaller samples of crashes. Real fundamental data that could tie accident rates to fatigue did not exist.
It is important to understand that this lack of data and the difference of opinion in the validity of the data continue to this day. The accuracy of the studies has often been questioned in the legal maneuvering that started soon after the 2003 rule changes went into effect. Arguments about the models, the data used in the models, how the models work, and the relative economic impact studies are constantly challenged in court cases, as the next installment of this series will illustrate.
- FMCSA introduces the first major revisions to the HOS rules in April 2003, effective January 2004. These new published rules address the Congressional directive issued in 1995. The new rule extends the time a driver can drive from ten hours to eleven hours, but reduces the on-duty time from fifteen hours to fourteen hours. The biggest change is the off-duty rule; under the new rule, once a driver goes off-duty they must stay off duty for a full ten hours. This rule eliminates a driver’s ability to “stop the clock” when a pick-up or delivery takes too long. Carriers are not happy about several aspects of the change, and independent owner operators are some of the loudest opponents. Many carriers use the change to pressure shippers and consignees about driver delay at load and unload. By January 2004 every major truckload carrier introduces into their rate tariffs a “free time” limit at pickup and delivery.
- The US Court of Appeals for the District of Columbia circuit overturns the April 2003 rules in July 2004. A collection of advocacy groups—including Advocates for Highway and Auto Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalition—files a joint complaint to stop the rule. The collection of special-interest groups, identified in the court filings as “Advocates et al.,” asserts that the Department of Transportation overlooked a legally mandated analysis concerning driver health. In the ruling the court expresses concern about each of the key areas of the rule including:
o Eleven-hour drive time in a tour of duty versus ten hours
o Allowing more on-duty hours in a week under the new restart provisions
o Allowing drivers to split their off-duty periods into two parts through the use of sleeper berths
o Failing to consider the use of electronic onboard recorders.
While the courts vacated the rule, Congress acted to extend the 2003 HOS rules for year to give the FMCSA a chance to revisit and revise the rules.
- In August 2005, DOT issues new HOS rules that are identical to the April 2003 rules, with one exception: a significant change to the sleeper berth rule. Under the change, drivers must use the sleeper berth at least eight consecutive hours and then take an additional two hours off either off-duty or by remaining in the sleeper berth for ten straight hours.
- The rule travels back into the DC Circuit Court again in 2007, when the court vacates the eleven-hour drive time and thirty-four-hour restart provisions in the case of Owner–Operator Independent Drivers Association vs. FMCSA. Public Citizen and the rest of the Advocates et al., including the Teamsters, assert FMCSA violated the Administrative Procedures Act requirement to provide opportunity for public comment on the methodology of the agency’s operator-fatigue models. The court finds in particular that the agency did not adequately disclose and make available for review the modifications made to the 2003 operator fatigue model to account for Time-on-Task (TOT) effects. The court concludes that the methodology did not remain constant and because of the TOT element change rules the model defective. Public Citizen, the Teamsters, and the rest of Advocates et al. claim FMCSA failed to provide an adequate explanation for certain critical elements in the models methodology. The court vacates the increase in driving time to eleven hours, stating that it “found arbitrary and capricious the manner and methodology in which crash risk as a function of DOT per hours of driving was calculated.” The court also vacates the thirty-four-hour restart provision, again based on the technicalities of the operator fatigue model.
- FMCSA publishes an Interim Final Rule (IFR) on December 17, 2007, amending the federal motor carrier safety regulations. The new rule becomes effective on December 27, allowing commercial drivers up to eleven hours of driving time within a fourteen-hour non-extendable window from the start of the workday, followed by ten consecutive hours off duty. The IFR also allows motor carriers and drivers to restart calculation of the weekly on-duty time limits after the driver has at least thirty-four hours of consecutive off-duty. FMCSA explains that the IFR reinstating the eleven-hour time limit and thirty-four-hour restart was necessary to prevent disruption to enforcement and compliance of the HOS rule and to ensure that a familiar and uniform set of national rules governs motor-carrier transportation. By this time carriers, drivers and law enforcement have been using the same rules, with minor modifications, for almost four years. Many major truckload carriers have invested significant time and expense to create and modify optimization software tailored to the new rules that managed and assigned drivers. Carriers and drivers alike are now used to the new rules, and shippers are more aware of the need to keep the driving resource driving. Shippers have also invested in expensive sophisticated Transportation Management and Routing Systems that use the new hours of service rules.
- Advocates et al. (Public Citizen, the International Brotherhood of Teamsters, et al.) immediately asks the DC Circuit Court to invalidate the IFR. The court denies the request on January 23, 2008 by issuing a per curium order, and so on November 19, 2008 FMCSA adopts the provisions of the IFR as the Final Rule. This is the still current HOS rule as of February, 12, 2011.
- One month later, just before the inauguration of Barack Obama as the new president, the same Advocates et al. (Advocates for Highway and Automotive Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalitions) petition FMCSA to reconsider the research and crash data justifying the eleven-hour driving role in the thirty-four-hour restart provision. FMCSA denies the petition.
- So on March 9, 2010 Advocates et al. (Advocates for Highway and Automotive Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalitions) file a petition for review of the 2008 rule in the DC Circuit Court. On August 27, they file their opening brief. In October of 2009 DOT, FMCSA, and Advocates et al. reach a settlement agreement. DOT and FMCSA agree to submit a new HOS Notice of Proposed Rule Making (NPRM) to the office of Management and Budget by July 26, 2010, and to publish a final rule by July 26, 2011. The parties file a joint motion to hold the 2009 lawsuit in abeyance, pending the publication of the notice to publish.
- In the first half of 2010 the FM CSA and the Office of Management and Budget coordinate multiple analysis efforts to create a regulatory impact analysis (RIA). The RIA provides an assessment of the costs and benefits of potential changes to the hours of service regulations. The July 26, 2010 deadline for the posting of the NPRM passes without a posting. The storyline focuses on how the RIA was talking more time. The story moves again when the White House wants to review the proposed rules. On December 29, 2010, FMCSA releases the twenty-nine-page NPRM on the Federal Register—along with the 119-page RIA and the sixty-nine-page Environmental Impact Studies report.
That brings the history to today. Next we will look at what drivers and trucking companies are saying.
Articles in This Series
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