If You Set That Delivery Window, You May Have Required a Federal Violation

Three years ago I ran a Chicago-to-Atlanta load with a carrier whose HOS Compliance BASIC was sitting at the 77th percentile. Good carrier on dry van, good service history with us, fair rate. Dispatch confirmed pickup at 8 AM. I put an arrival window of 6 PM.

Then, later that afternoon, I actually did the math. Chicago to Atlanta is around 720 miles. You're looking at a minimum 11 hours of drive time under realistic highway conditions, plus fuel, plus a pre-trip inspection at origin, plus shipper loading time. The Part 395 math didn't fit a 10-hour window without someone cutting corners on hours. And I'd just tendered this to a carrier that had two driver OOS violations for HOS in their last 24-month inspection history.

The load ran fine. But that's not the point. The point is I'd set conditions that structurally required a violation — to a carrier that had already demonstrated an HOS problem. That evening I looked up 49 CFR § 390.13 for the first time.

I hadn't thought about it since I started in freight. Most brokers haven't.

What § 390.13 Actually Says

The regulation is one sentence. "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."

"This chapter" is Subchapter B of Title 49 — every FMCSA safety regulation from Part 350 through Part 399. Hours of service (Part 395). Driver qualification (Part 391). Vehicle maintenance (Parts 393 and 396). Drug and alcohol testing (Part 382). Cargo securement (Parts 392 and 393). The whole catalog.

"No person" doesn't say "no motor carrier." It says no person. That covers your brokerage. Your dispatcher. Anyone who structured the tender.

Now read the verbs: aid, abet, encourage, or require. That list runs from passive to active. It covers everything from looking the other way (aiding) to explicitly demanding a result that can only be achieved by violating federal law (requiring). A broker who tenders a load with a delivery window that can only be met by a driver exceeding the Part 395 driving limit has, under the plain reading of this regulation, required a federal safety violation.

What "Require" Means at the Load-Tender Level

A driver is capped at 11 hours of driving after 10 consecutive hours off duty, and 14 total on-duty hours before they must stop, under 49 CFR § 395.3. Those limits aren't adjustable by contract. No carrier agreement, no shipper SLA, no broker tender can modify them. They exist because driver fatigue causes fatal crashes and FMCSA has been documenting that relationship for decades.

When you construct a tender — a pickup time, a delivery window, a lane — you are implicitly setting a schedule. If that schedule can only be executed by a solo driver within legal limits if conditions are perfect and no buffer exists, you've created the conditions for a violation. If the carrier tells you hours might be tight and your answer is "make it work," you've moved from "require" into "encourage." If your tender language says late delivery incurs penalties, and the math means the driver has to choose between penalties and HOS compliance, you've potentially required the violation.

I'm not saying every aggressive transit time is a § 390.13 violation. I'm saying the math needs to be in your file. If a carrier can't make the window legally, the file needs to show you knew that — and either adjusted the window or documented why you believed the lane was achievable.

The Math That Takes Three Minutes

Before you tender a time-sensitive load, run these numbers:

Miles, divided by average long-haul speed (55 mph is a reliable planning number for most corridors). Add: minimum 30 minutes for pre-trip inspection under 49 CFR § 396.13, at least 30 minutes for shipper check-in and loading, the mandatory 30-minute break after 8 hours of driving under § 395.3(a)(3)(ii), plus pickup-location-to-highway ramp time. Compare that total against your delivery window.

If it doesn't fit under the 11-hour driving cap with any buffer, you have a decision to make. Either extend the window, document why the specific carrier/lane is achievable within HOS (two-driver team, shorter actual route, relay point), or don't tender. What you shouldn't do is put the load on the board and assume the carrier will figure it out. When the carrier "figures it out," they sometimes do it by skipping the 30-minute break or running 12 hours instead of 11. That's on you as much as them when it shows up in the crash investigation.

Carriers who have demonstrated HOS problems — meaning their HOS Compliance BASIC is at or above the 65th percentile, meaning inspectors are already catching their drivers over hours at roadside — are exactly the carriers that won't push back on a tight window. They want the freight. The responsibility to think about whether the lane is achievable within Part 395 limits doesn't disappear just because the carrier accepted the tender.

Where This Hits Different After Montgomery

The Supreme Court's May 2026 ruling in Montgomery v. Caribe Transport II, LLC held that the FAAAA doesn't preempt state-law negligent selection claims against freight brokers. Before that decision, brokers in certain circuits had an argument that federal preemption blocked state tort claims. That argument is gone.

What that creates, post-Montgomery, is two separate exposure tracks on the same tender decision.

Track one is the state-law negligent selection claim: did you exercise reasonable care in selecting this carrier? Did you check their CSA scores? Did you know about the HOS BASIC before you tendered?

Track two is § 390.13 federal regulatory exposure: did you create conditions that required or encouraged a violation of Part 395?

These are not the same theory, and they're not mutually exclusive. A plaintiff's attorney doesn't need to win on both. They need to establish one in front of a jury that's watching dashcam footage of a fatigued driver failing to react to stopped traffic at 4 PM on a Tuesday.

Before Montgomery, the preemption argument at least gave brokers a procedural shield at the motion-to-dismiss stage. That shield is gone at the federal level for negligent selection. § 390.13 was never preempted — it's a federal regulation, not a state tort. It always applied. Most brokers just never read it.

The Scenario That Should Get Your Attention

Carrier with a 71st percentile HOS Compliance BASIC. You've used them on dry van before. You put a 700-mile load on them — midwest to southeast — with a 6 AM pickup and an 8 PM delivery. 14-hour window. Their dispatch accepts it without comment.

At 3:30 PM the driver rear-ends a passenger vehicle on I-65 in Tennessee. Police report notes the driver appeared fatigued. ELD records show 13.5 hours on duty with 11.3 hours of driving at the time of crash. He'd been over the Part 395 driving limit for just under 20 minutes. Over the 14-hour on-duty cap for more than an hour.

Discovery produces your carrier file and tender records. The tender shows 700 miles with a 14-hour window. Plaintiff's liability expert testifies that a solo driver covering 700 miles of highway transit, with standard pre-trip, break, and border-crossing time, has a realistic minimum transit of 13 to 15 hours — and that a 14-hour window made compliance with § 395.3 essentially impossible. Your file shows you knew the carrier had an elevated HOS BASIC. Your file shows no documentation that you modeled whether the lane was achievable within legal hours.

The question the jury hears: "When you set this delivery window, did you understand that a solo driver could not legally meet it?"

That question is what § 390.13 puts in front of you before you tender. Not after.

What Elevated HOS BASIC Actually Means

The HOS Compliance BASIC above 65th percentile is the threshold where FMCSA considers carrier intervention. It means this carrier's drivers, compared to similar-sized carriers, are being flagged for hours violations at roadside at an elevated rate. Some of those carriers have a genuine safety culture problem. Some are carriers who run legal but close to the edge and get caught in inspection blitzes.

The distinction matters. But you can only know it by asking — specifically, by asking the carrier to walk you through how they plan hours on longer lanes. A carrier with an elevated HOS BASIC who can explain their planning process clearly, who checks driver log status before dispatch, who doesn't just accept a load and hope for the best — that carrier might be fine on your lane. A carrier with an elevated HOS BASIC who says "our drivers figure it out" is telling you something.

For any carrier above the 65th percentile HOS, document what you learned when you asked. For any lane where the math is tight, document the math.

How I Document This

For any load where service time is tighter than I'd like, here's what goes in the file:

Transit calculation: miles, assumed average speed, calculated minimum drive time, whether that fits under § 395.3's 11-hour driving cap with buffer. Written. Not assumed.

Carrier HOS BASIC status: percentile at time of tender, whether it's above the FMCSA intervention threshold, and whether I verified the assigned driver's rest status with dispatch before the load moved.

If the carrier raised hours concerns: what they said, what I offered (extended window, team option, relay), and how it resolved. If I extended a window because the carrier flagged hours, that accommodation — and the fact that I made it — goes in the file. It shows I took the concern seriously instead of telling them to figure it out.

If the window was borderline: a note confirming I received verbal or written confirmation from the carrier that the driver was legally available for the run. "Driver confirmed fresh, last off duty 10 hours, pre-tripping at origin" is a document. "We confirmed availability" is not.

§ 390.13 exposure lives in the gap between your tender terms and the carrier's operating capacity. Narrow that gap in writing before the truck moves.

— Mason Lavallet

Founder, DOTScreener.com