HOS Rules: Ethics and Social Responsibility in Trucking

Introduction: The New Hours of Service Rule

The U.S. Federal Motor Carrier Safety Administration (FMCSA) issued a new trucking hours of service (HOS) rule, most provisions of which were scheduled to become effective July 1, 2013. Some changes, such as the definitions of "egregious violations" and "on-duty time," became effective February 27, 2012 (Smith, 2012). In reality, the new rules did not substantively affect existing driving regulations for most drivers. For example, the 11-hour driving rule remained in place, and drivers' work weeks within a 7-day period continued to be limited to 70 hours (Smith, 2012). Drivers would not be allowed to operate commercial motor vehicles (CMVs) following an 8-hour work period until completing a 30-minute minimum rest break, though drivers retained the discretion to take that break at any point during the 8-hour period (Smith, 2012).

Although these provisions remained in place, the new rules introduced important changes to the 34-hour restart provision. According to Smith, "Professional truck drivers who maximize their 70-hour work week will be required to take at least two rest periods between the hours of 1:00 a.m. and 5:00 a.m. home terminal time. Furthermore, the final rule will allow drivers to use the 34-hour restart provision only once during a 7-day period" (2012, para. 2). The new rules applied to most commercial vehicle drivers in the United States (Smith, 2012).

These are important considerations given the enormity of the U.S. trucking industry. Nearly 9 million people are employed in American trucking, with about 3.5 million of those being truck drivers. More than 70% of all cargo is delivered by trucks, representing $671 billion in manufactured and retail goods in the U.S. alone (Trucking statistics, 2012).

With all of this tonnage being transported cross-country, the nation's 15.5 million trucks and 2 million tractor-trailers are involved in their share of accidents, many involving injuries or fatalities. Current statistics show that in the United States:

Current estimates indicate that about 16% of accidents involve driver fatigue — an alarming statistic that was the driving force behind the original hours of service regulations promulgated in 1935 and subsequently amended in 1937 and 1962, in an effort to limit the number of hours commercial motor vehicle drivers could work without a break (Dilger, 2003). More recently, the trucking industry has reported that the percentage of accidents attributable to driver fatigue has decreased to 4% (Trucking statistics, 2012). Each of these deaths, however, affects American families in profound and lasting ways. According to Advocates for Highway and Auto Safety (2012), "When commercial drivers become fatigued from excessive daily and weekly work hours, they substantially increase the risk of crashes that result in death or serious injuries. More than 750 people die and 20,000 more are injured each year due directly to fatigued commercial vehicle drivers" (Truck driver fatigue, 2012, para. 2).

Generally, vehicles are considered commercial motor vehicles when they are used as part of a business engaged in interstate commerce and satisfy any of the following criteria:

Table 1 below summarizes the differences between the previous HOS rule and the newly published Hours of Service Final Rule.

Table 1: Summary of Changes in the Hours of Service Final Rule Published in December 2011

Provision: Limitations on minimum "34-hour restarts"
Prior Rule: None.
Final Rule (Compliance Date: July 1, 2013): (1) Must include two periods between 1 a.m. and 5 a.m. home terminal time. (2) May only be used once per week.

Provision: Rest breaks
Prior Rule: None, except as limited by other rule provisions.
Final Rule: May drive only if 8 hours or less have passed since the end of the driver's last off-duty period of at least 30 minutes. [HM 397.5 mandatory "in attendance" time may be included in the break if no other duties are performed.]

Provision: On-duty time
Prior Rule: Includes any time in a CMV except the sleeper berth.
Final Rule (Compliance Date: February 27, 2012): Does not include any time resting in a parked vehicle (also applies to passenger-carrying drivers). In a moving property-carrying CMV, does not include up to 2 hours in the passenger seat immediately before or after 8 consecutive hours in the sleeper berth.

Provision: Penalties
Prior Rule: "Egregious" hours of service violations not specifically defined.
Final Rule: Driving (or allowing a driver to drive) 3 or more hours beyond the driving-time limit may be considered an egregious violation and subject to maximum civil penalties. Also applies to passenger-carrying drivers.

Provision: Oilfield exemption
Prior Rule: "Waiting time" for certain drivers at oilfields must be recorded and available to the FMCSA, but no method or details for recordkeeping are specified.
Final Rule: "Waiting time" for certain drivers at oilfields must be shown on the logbook or electronic equivalent as off duty and identified by annotations in "remarks" or a separate line added to the "grid."

While companies were gearing up to comply with these provisions, they also had to conform to existing regulatory requirements. Table 2 below summarizes the HOS regulations that remained valid until July 1, 2013, for both property-carrying and passenger-carrying commercial vehicle drivers.

Legal Framework and Challenges

Table 2: Summary of HOS Regulations (Valid Until July 1, 2013)

Property-Carrying CMV Drivers
11-Hour Driving Limit: May drive a maximum of 11 hours after 10 consecutive hours off duty.
14-Hour Limit: May not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty. Off-duty time does not extend the 14-hour period.
60/70-Hour On-Duty Limit: May not drive after 60/70 hours on duty in 7/8 consecutive days. A driver may restart a 7/8 consecutive-day period after taking 34 or more consecutive hours off duty.
Sleeper Berth Provision: Drivers using the sleeper berth provision must take at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two.

Passenger-Carrying CMV Drivers
10-Hour Driving Limit: May drive a maximum of 10 hours after 8 consecutive hours off duty.
15-Hour On-Duty Limit: May not drive after having been on duty for 15 hours, following 8 consecutive hours off duty. Off-duty time is not included in the 15-hour period.
60/70-Hour On-Duty Limit: May not drive after 60/70 hours on duty in 7/8 consecutive days.
Sleeper Berth Provision: Drivers using a sleeper berth must take at least 8 hours in the sleeper berth and may split the sleeper-berth time into two periods, provided neither is less than 2 hours.

Source: Smith, 2011.

The purpose of this paper is to use a three-value system comprised of law, morality, and social responsibility — applying different ethical principles — to analyze the response by Swift Transportation and Werner Enterprise to the new hours of service rule scheduled to take effect on July 1, 2013.

Compliance with human-made laws is frequently confounded and complicated by individual interpretations and applications of natural law. In those cases where the conflict is sufficiently pronounced, the legal, ethical, and social responsibilities of organizations must respond in some fashion in order to resolve it. This resolution can be constrained by the relative importance each of these three values holds for the organization, its leadership team, and its employees, as discussed further below.

Although the new rules met with stiff resistance from some quarters and legal challenges were anticipated (Patton, 2012), the new Hours of Service of Drivers Final Rule was published in the Federal Register on December 27, 2011 and became the law of the land for commercial motor vehicle operators in the United States. Trucking companies and their operators that ignore or allow driver fatigue to contribute to accident rates are liable for civil and criminal penalties (Belz, Robinson & Casali, 2004). According to the law firm Morgan & Morgan (2012), "Because truck driver fatigue can increase the trucker's risk of being involved in a crash, federal regulations have been established to restrict the amount of time a truck driver can be on the road. A trucker who chooses to disregard these regulations and their duty to drive responsibly may be considered negligent if a truck accident occurs" (Truck drivers and fatigue, 2012, para. 2).

The overarching legal principle underlying the new HOS rule is found in the Commerce Clause, which grants Congress the fundamental authority to ensure the unrestricted interstate flow of goods and services (Redish, 1995). According to Black's Law Dictionary (1991), the Commerce Clause consists of those "provisions of U.S. Constitution (Article I, Section 8, clause 3) which give Congress exclusive powers over interstate commerce" (p. 269). These provisions extend to the interstate operation of commercial motor vehicles (Redish, 1995). The federal agency tasked with administering interstate commercial motor vehicle commerce is the U.S. Department of Transportation (DOT), which is responsible for the oversight of "federal highway, air, railroad, and maritime and other transportation administration functions" (About DOT, 2012, para. 2).

The legality of the new rules was challenged at the federal appellate level. Patton (2012) reports that the American Trucking Association (ATA) filed a lawsuit in the U.S. Circuit Court of Appeals for the District of Columbia, seeking to have the FMCSA rule set aside as "arbitrary and capricious" (para. 2). The challenges rested on several grounds, the most salient of which include the following:

First, the assumptions and analytical methods used by the FMCSA to formulate the new rules were alleged to be flawed. According to Patton, "The law is clear about what steps FMCSA must undertake to change the rules and we cannot allow this rulemaking, which was fueled by changed assumptions and analyses that do not meet the required legal standards, to remain unchallenged" (2012, para. 3).

Second, the potential beneficial outcomes of the new regulations were said to be overstated. An ATA representative cautioned that "the agency overstated the safety benefits of the new rule, and that the costs outweigh the claimed benefits. We need this issue to be resolved in a credible manner, taking into account the undisputed crash reduction since 2004, so we can focus limited government and industry resources on safety initiatives that will have a far greater impact on highway safety" (cited in Patton, 2012, para. 3).

Third, the new rules were likely to be revised again, causing unnecessary expense and confusion. Patton reports that "a highway bill in the House of Representatives contains a provision that would require FMCSA to study and possibly rewrite the 34-hour restart provision of the rule, which limits the restart to once a week with two sleep periods from 1 a.m. to 5 a.m. Whether or not the bill will pass in its present form is anyone's guess, however" (para. 4).

It also remained uncertain whether the Teamsters and truck safety consumer advocacy organizations would challenge the new rules, but all signs indicated that the likelihood of such future lawsuits was high (Patton, 2012). According to Patton:

Utilitarian and Kantian Ethical Analysis

"Truck safety advocacy groups and the Teamsters union have yet to say if they will renew their own legal action against the new rule, although they have indicated strongly that they will. It was their suit against the rule that pushed the Department of Transportation to do the rewrite that came out last December. They agreed to suspend their suit while the agency reviewed the rule, but reserved the right to renew their suit if the rewrite was not satisfactory to them" (2012, para. 4).

Although the revisions in the new rules were intended to further promote public safety by restricting the overall number of hours worked by CMV operators, it remained controversial whether the expected overall benefits would be worth the adverse impact on interstate commerce. Patton advises: "The key issue for them is the 11-hour daily driving limit, which the new rule preserves. The agency said that while it will continue to study a cutback in the 11-hour limit to 10 hours, at this point there is no 'compelling scientific evidence' that the 10-hour limit produces enough safety benefits to outweigh the higher net benefits of the 11-hour limit" (2012, para. 4).

Other organizations indicated concern about the extra hour of work allowed under the revised rules. According to Patton, "Advocates for Highway and Auto Safety has indicated that it may resume its challenge of the 11-hour limit. Last December when the rule came out, the group said it is confident that since the appeals court has twice rejected the 11-hour provision it will do so again. Henry Jasny, the group's vice president and general counsel, said that barring the unexpected the group probably will renew its suit" (2012, para. 3).

Taken together, the foregoing suggests that unless and until these advocacy groups and union organizations aggressively pursue legal challenges, the new rules would take effect as planned in 2013. Whether these changes are ethical is examined in the sections that follow.

The key issue for utilitarian ethical theorists is the degree of happiness that a given act produces. As Ashmore and Staff (1994) explain, "Utilitarian ethical theory is the theory that states that one ought always to act in such a way that the happiness of all concerned is maximized" (p. 165). From this perspective, any proposed change in the operating rules for CMV operators would be evaluated based on its ultimate effect on the environment in which it was made. For instance, Ashmore and Staff add that "Utilitarian ethical theory assesses the moral character of an intended action, in light of the intended action's projected consequences on all who are likely to be affected by the intended action" (p. 165).

This means that if the proposed changes represented a threat to public safety in the United States while helping corporations close a competitive gap with foreign operators, the tradeoff might be justifiable from a strictly pragmatic perspective. However, such a tradeoff would demand a thoughtful analysis of how these effects would also impact a corporation's ability to recruit and retain qualified CMV operators. Ashmore and Staff emphasize that "It is improper to claim that ethical decision making in business settings is totally subjective" (1994, p. 165). Making an ethical decision using a utilitarian approach therefore requires taking into account the following two major classes of business decisions:

The table below summarizes the utilitarian ethical analysis of compliance with existing and new HOS requirements for Swift Transportation and Werner Enterprise.

Table 3: Utilitarian Ethical Analysis of Compliance with Existing and New Hours of Service Rules

Trucking Companies: Will be placed at a competitive disadvantage relative to foreign competitors if required to limit the number of hours their drivers can work.
General Public: Will benefit, slightly and incrementally, from limiting the number of hours truck drivers are allowed to work without taking a break or sleeping.
Shareholders: Will suffer for the same reasons cited for trucking companies above.
Federal Government: The federal government, and the DOT in particular, has a mandate to develop and administer policies that promote public safety on the nation's highways.
State Governments: To the extent that interstate commerce is restricted, tax revenues may be correspondingly diminished.

On one hand, the safety and welfare of CMV operators represents a high-objectivity factor, and any competitive advantage gained by increasing allowable work hours would generate additional surplus corporate wealth. On the other hand, given skyrocketing fuel costs, it is doubtful that most trucking companies enjoy any "surplus corporate wealth" to distribute in the first place, making an additional analytical perspective useful.

According to Bielefeldt (2003), "In his philosophical writings, Kant mentions various ideas of reason in which a totality or something unconditioned comes to the fore, such as eternity, infinity, immortality of the human soul, or the 'highest good' in which virtue and happiness are reconciled in accordance with the requirement of justice" (p. 46). Central to Kant's philosophy is the notion of "ideas" that can shape human responses to environmental changes. Bielefeldt reports that God as the creator and ruler of the world is also called an idea by Kant, and that these ideas of reason have a "regulative" function for the acquisition of knowledge and the development of the sciences (2003, p. 46).

The rules of action comprising Kant's categorical imperative are intended to provide the following:

The first rule of action suggests that if American truckers extend their working schedules to levels comparable to those of foreign competitors, or vice versa, they must do so while taking into account the second and third rules — particularly the effect these changes would have on all affected stakeholders. Although this perspective offers a way to level the playing field, Kant fails to explain how the three rules of the categorical imperative relate to each other. As Rashdall (1907) notes, "Kant does not offer any explanation concerning the relation in which the three rules are supposed to stand towards one another, nor does he ever bring them into close contact with one another; but in different parts of his ethical writings each one of them is treated as the fundamental principle of Morality. In practice he uses one or the other of them just as may be most convenient for the purpose of proving the particular duty with which he is dealing" (p. 109).

Notwithstanding this lack of clarity, Kant's rules of action do provide a framework within which the choices available to CMV operators exist — either to comply with the regulatory guidance and set aside personal moral objections, or to seek employment in another field. Bielefeldt emphasizes that "Although freedom of the will necessarily includes freedom of choice, which is the negative precondition of a free will, the freedom of the will, positively speaking, must be more than the faculty of free choice. What constitutes the freedom of the will positively is the identity of the will with practical reason, an identity that makes it possible that the will proceeds in accordance with its own self-legislated law" (2003, p. 45).

This "self-legislated law" is especially salient for experienced over-the-road truckers, who operate in an environment far different from that of commercial pilots. The U.S. Department of Transportation notes that "Commercial truck drivers face an environment where they are required to share the highways with drivers who have not received specialized training nor are they subject to the same regulatory constraints that pilots are subject to" (Hours of service of drivers, 2011, p. 81135). The analysis of the legal, moral, and social responsibility aspects of the new rules therefore involves a far wider range of variables than a casual review can capture, making the inclusion of an ethical egoist analysis appropriate.

Conclusion: Values, Opinions, and Predictions

The research showed that commercial enterprises have legal, moral, and social responsibilities. The manner in which companies balance these three values shapes their response to changes in the larger society in which they compete, extending to the global level for many multinational corporations. Remaining viable in an increasingly competitive marketplace demands a thoughtful approach to developing a sustainable balance among these three values, since companies that fail to generate a profit will not remain in business long enough to make a difference. Likewise, companies that generate their profits at the expense of their employees and the environment may enjoy a short-term competitive advantage, but given the increasing global focus on employment practices and environmental responsibilities, this business model is no longer sustainable. The research also demonstrated that social responsibility need not mean economic sacrifice; many companies are reaping the benefits of socially responsive initiatives in terms of goodwill and even profit-generating, environmentally responsible practices.