Issues & Positions
HOS: Here we go again!

Jim Johnston
OOIDA President

Hours-of-service regulations, since first implemented back in the late 1930s, have been among the most controversial and difficult to enforce regulations ever imposed on the trucking industry. Many, if not the majority, of truckers have viewed the regulations as impractical and an unwelcome, unnecessary intrusion in their lives.

For the most part, during the early years and through the ’50s, ’60s and ’70s, the regulations were not much more than an annoyance. Compliance was spotty at best, with most drivers operating under common sense judgment and the dictates of their own body clock.

Log sheets were filled out as and when needed to show compliance.

As some would say, “To avoid penalties and allow the regulators that warm comfortable feeling that they had really accomplished something.”

Enforcement capabilities during this period were also pretty spotty and in most cases also applied with common sense judgment. This began to change dramatically, however, with the debate over economic deregulation of the trucking industry in the late ’70s.

Motor carriers seeking to maintain their monopolies raised the specter of death and destruction on the highways that would surely result if the industry were to be deregulated. The rest is history.

Congress responded not by maintaining economic regulation, but by increasing the focus and funding for commercial vehicle safety regulation and enforcement. The state and federal bureaucracies that evolved from this new focus — as bureaucracies are prone to do — immediately began seeking expanded authority, resources and funding, which has grown consistently during the past two and a half decades. It was about self-perpetuation and had little to do with whether or not any worthwhile objectives were being accomplished.

During the ’80s, almost all of the enforcement effort was directed at drivers out on the road. Motor carriers applauded this effort and called for even more funding and enforcement because they faced little, if any, exposure to the consequences. They could appear to be good, safety conscious citizens, and as an added bonus, they had a nationwide police force overseeing drivers out on the road.

While there had been some effort at revisions to the HOS regulations over the years, motor carriers remained pretty complacent on the subject, and no significant changes occurred. Then in the early ’90s, the focus of enforcement began to shift some from the highways to the motor carrier corporate offices. Significant fines started being levied against motor carriers themselves for allowing or requiring their drivers to violate the HOS regulations, and a safety rating system was put in place to target carriers with above-average violation records. This opened up a whole new viewpoint for many carriers who quickly decided that maybe there were some problems with the regulations after all.

This is when efforts to revise the outdated regulations began in earnest; after almost 10 years of studies and debate, the FMCSA came out with proposed rules changes in 2000. Those proposed changes turned out to be so restrictive, cumbersome and impractical that the enormous outcry from the industry caused the U.S. Congress to intervene and send the agency back to the drawing board.

On April 28, 2003, the FMCSA published its final HOS rules changes, effective in January 2004. Almost no one was pleased with the new regulations, but most breathed a sigh of relief because the original proposal had been much worse.

One provision of particular concern to both drivers and motor carriers included in the 2000 proposal but omitted from the final rule was the black box requirement. It would have required electronic monitoring systems to be installed on most trucks for the purpose of monitoring and enforcing compliance with hours-of-service regulations.

With this bit of background on the history of HOS regulations and their enforcement, it’s important to note that we are beginning to see a change in attitude among many truckers toward the regulations. I also have to admit that my own attitude is changing some as well.

Back in 1973 when OOIDA was first founded, one of my strongest personal objectives was to do away completely with HOS regulations and logbooks. I envisioned a huge bonfire made up of burning logbooks in celebration. Since then, we have taken every opportunity to work toward that goal or to at least lessen the intrusiveness of the regulations to allow drivers the flexibility to operate more in accordance with their own natural rest and work cycles. In other words, to build common sense flexibility into the regulations.

My changing attitude, and I think that of many of the members we have heard from, stems mostly from operational changes that have gradually occurred within the industry over the years. In the past, drivers would stretch the limits of the regulations on their own initiative to spend a little more time at home, or to reach a location where they preferred to stop, or simply to put in a few more miles when they felt rested and were not ready to shut down for the day.

Unfortunately, more and more in recent years, the industry has sought to take advantage of the willingness of drivers to put in long hours. Compensation has consistently been adjusted downward or remained static amid rising costs to a point where, for many, putting in the extra hours is not an option but a necessity for economic survival. If not done voluntarily, intimidation and threats are not at all unusual to force compliance with unrealistic schedules. While this may not be the case for many of the old hands, new drivers are particularly vulnerable to these pressures, and the ripple effect touches everyone.

Another reason for the changing attitudes is the beginnings of change we are now seeing as a result of the new regulations. The 14-hour day and reduced opportunity to extend available hours by concealing on-duty, non-driving time — logging it as off-duty — has finally begun to create awareness that a real value must be placed on the driver’s time.

We all know the full impact of the new regs, and recognize the true value of the enormous amount of uncompensated time wasted on non-driving responsibilities is still significantly obscured because many drivers are still willing to push the limits. Even with this partial impact, the changes are significant.

Those who depend on trucks to move their freight are increasingly aware of the need to streamline the processes at shipping and receiving docks. More and more carriers are insisting on detention fees and accessorial charges for trucks that are delayed; both rates and compensation are beginning to increase.

A truck transportation shortage is rapidly developing. In fact, it would have already reached crisis proportions if all drivers were operating in full compliance.

That brings us to the “here we go again” part. The most recent development is the appeals court ruling overturning the new HOS regulations. This was followed by congressional action to keep them in place for one more year while FMCSA makes the revisions ordered by the court. The court overturned the regulations based on the agency’s failure to assure that the regulations did “not have a deleterious effect on the physical condition of the operators” as required by legislation.

The court also expressed concern about other parts of the regulation, including the split sleeper berth provision, the 34-hour restart and FMCSA’s failure to consider electronic monitoring systems (the black box). While all these provisions and others that we hope to have included are very important, black boxes will no doubt be the center of the greatest controversy.

As discussed in detail in the article by Steve Miller on Page 28, the term “black box” can apply to many functions. The relevant definition here is more accurately described as electronic monitoring or surveillance for purposes of law enforcement.

The combination of black box technology and compatible HOS regulations could in fact make it virtually impossible for anyone to violate the hours-of-service regulations, or even the speed limit.

If this did occur, there is absolutely no doubt in my mind that working conditions and compensation in the industry would improve dramatically. The days of undervaluing the driver and giving away your time for free would be over. It would take years and substantially higher compensation to attract the new drivers necessary to fill the void of lost productivity. We were in fact reaching for this same result on a voluntary basis by encouraging strict compliance for June Safety Month.

Considering this, it’s understandable that some with the foresight to see the upside would welcome the concept of black boxes as a last resort to turn around the industry’s downward slide. Refer to OOIDA member Henry Albert’s letter on Page 10. While the upside could be very significant, the downside would be the most enormous erosion of personal rights and freedoms ever imposed on any segment of American society.

The key to generating compliance with regulations is not the elimination of constitutional rights. It’s the development of reasonable, practical regulations that would gain voluntary compliance from the majority of those subject to them. We will be working on this objective during the next year as the regulations are revised.

We as a country have a long history of fighting for our rights and freedom against outsiders who would seek to deprive us of those values, and we should never freely surrender them even, and maybe especially, when the threat comes from our own government. OOIDA will strongly oppose black boxes in FMCSA’s rulemaking process and, if necessary, in the courts. I hope we will have your support.