[Federal Register Volume 65, Number 85 (Tuesday, May 2, 2000)]
[Proposed Rules]
[Pages 25540-25611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10703]



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Part II





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Parts 350, et al.



Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations; 
Proposed Rule

  Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed 
Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 390, 394, 395, and 398

[Docket No. FMCSA-97-2350; formerly FHWA-97-2350 and MC-96-28]
RIN 2126-AA23


Hours of Service of Drivers; Driver Rest and Sleep for Safe 
Operations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FMCSA is proposing to revise its hours-of-service (HOS) 
regulations to require motor carriers to provide drivers with better 
opportunities to obtain sleep, and thereby reduce the risk of drivers 
operating commercial motor vehicles (CMVs) while drowsy, tired, or 
fatigued to reduce crashes involving these drivers. This action is 
necessary because the FMCSA estimates that 755 fatalities and 19,705 
injuries occur each year on the Nation's roads because of drowsy, 
tired, or fatigued CMV drivers. The regulations proposed in this 
document would:
    First, revert to a 24-hour daily cycle, and a 7-day weekly cycle.
    Second, adjust the work-rest requirements for various types of 
operations.
    Third, emphasize rest. Require for long-haul and regional drivers a 
period of 10 consecutive hours off duty within each 24-hour cycle, and 
two hours of additional time off in each 14-hour work period within 
each 24-hour cycle.
    Fourth, require weekends, or their functional equivalent, to 
include at a minimum a rest period that includes two consecutive 
periods from 11:00 p.m. to 7:00 a.m.
    Fifth, require the use of electronic on-board recorders (EOBRs) in 
CMVs used by drivers in long-haul and regional operations.

DATES: You must submit your comments to this NPRM no later than July 
31, 2000; however, late comments will be considered to the extent 
practicable.

ADDRESSES: Signed, written comments should refer to the docket number 
appearing at the top of this document and must be submitted to the 
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. Written comments and data may also be 
submitted electronically by using the submission form at http://dmses.dot.gov/submit/BlankDSS.asp. All comments received will be 
available for examination at the above address between 9 a.m. and 5 
p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self-
addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: For information on the proposed rule: 
Mr. David Miller or Ms. Deborah Freund, Federal Motor Carrier Safety 
Administration, (202) 366-1790, and Mr. Charles Medalen, Office of the 
Chief Counsel, Federal Highway Administration, (202) 366-1354. For 
information on the public hearings: Mr. Stan Hamilton, Federal Motor 
Carrier Safety Administration, (202) 366-0665. For information about 
submitting comments and data electronically: DMS Web staff at 
[email protected], Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Electronic Availability of This NPRM
II. Introduction
III. The Safety Problem
IV. A Brief History of the Hours-of-Service Rules
    A. The ICC's Original Rules
    B. Immediate Changes to the HOS Rules
    C. 1962 Amendments
    D. Exemptions
    E. Developments in the 1970's and 1980's
V. Comments to the ANPRM
VI. FMCSA Response to Comments and Research Cited
VII. HOS Regulation Development Process
    A. Research Findings
    1. The workday should be more regular: Maintenance of circadian 
rhythm
    2. The driver should be afforded more opportunity for daily and 
weekly sleep
    3. Driving hours in any duty shift should generally not exceed 
12 hours
    4. The time of day when driving is performed should be 
considered
    5. Non-compliance by drivers and motor carriers increases the 
potential for adverse safety outcomes
    B. Guiding Principles for Regulatory Improvement
    C. Types of Motor Carrier Operations
    D. Regulatory Options
    E. The Expert Panel
    F. Recordkeeping Requirements
    1. Time Records
    2. Electronic On-Board Recorders (EOBRs)
    G. Supporting Document Requirements
    1. 1998 Notice of Proposed Rulemaking
    2. Comments to Docket FHWA-98-3706 (Supporting Documents)
    3. FMCSA's Response to the Comments on the Supporting Documents 
NPRM
    4. Modified Supporting Documents Proposal
    H. Revised Regulatory Options
    I. Benefits and Costs
    1. Crash Reduction
    2. Paperwork Reduction
    3. Total Benefits
    4. Quantitative Costs
    5. Small Business Costs
    6. Qualitative Impacts
    7. Benefits and Costs Combined
    J. The Option Selected to Propose
VIII. Additional Petitions Received
IX. Implementation
X. Additional Proceedings
XI. Section-by-Section Evaluation
XII. Rulemaking Analysis and Notices
    Regulatory Identification Number
    Motor Carrier Safety Act
    Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures
    Regulatory Flexibility Act
    Unfunded Mandates Reform Act of 1995 and Executive Order 12875 
(Enhancing the Intergovernmental Partnership)
    Paperwork Reduction Act
    National Environmental Policy Act
    Executive Order 12988 (Civil Justice Reform)
    Executive Order 13045 (Protection of Children)
    Executive Order 12630 (Taking of Private Property)
    Executive Order 13132 (Federalism Assessment)
    Executive Order 12372 (Intergovernmental Review)

I. Electronic Availability of This NPRM

    Internet users may access this NPRM and all comments received by 
the U.S. DOT Dockets, Room PL-401, by using the universal resource 
locator (URL): http://dms.dot.gov. It is available 24 hours each day, 
365 days each year. Please follow the instructions online for more 
information and help.
    An electronic copy of this document may be downloaded by using a 
computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at 
(202)512-1661. Internet users may reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.
    Internet users may also find this NPRM at the FMCSA's Motor Carrier 
Regulatory Information Service (MCREGIS) website for proposed rules at: 
http://mchs.fhwa.dot.gov/rulesregs/fmcsr/rulemakings.htm#proposedrule.

II. Introduction

    There is general consensus that modifications to current HOS 
regulations would substantially improve CMV safety by reducing the 
fatigue factor in CMV-involved crashes. There is evidence that many 
crashes occur as a result of CMV driver error, that driver error is 
often the result of inattention,

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that inattention can often be the result of fatigue, that the fatigue 
which causes inattention is often related to sleep deprivation, and 
that sleep deprivation is often related to working conditions of 
drivers. This proposal would make the HOS regulations more effective by 
requiring motor carriers and drivers to adhere to the following six 
standards and enforcing them:
    1. Promote scheduling, dispatching, and operating practices 
minimizing the use of tired, inattentive drivers.
    2. Make available for each driver a consecutive minimum off-duty 
period of time each workday and workweek for the purpose of obtaining 
restorative sleep.
    3. Make available for each driver an additional minimum off-duty 
period of time each workday, during the workday or afterwards, to allow 
a driver to tend to personal necessities and rest at the driver's 
discretion.
    4. Empower the driver to accept or refuse dispatch or continuation 
of a trip based upon the driver's assessment of his/her alertness 
level.
    5. Enhance motor carriers' and CMV drivers' knowledge and use of 
safety techniques, devices, and practices that avoid driver impairment 
due to lack of sleep.
    6. Require the use of automated time EOBR technology to monitor the 
work-rest cycles of long-haul and regional drivers and compliance with 
the rules, as well as encourage the use of technology for other 
drivers.
    The basic HOS rules have been in effect in their current form since 
1962, and controversial for even longer than that. The rules allow CMV 
drivers in interstate commerce to drive up to 10 hours after 8 
consecutive hours off duty. After being on duty for 15 hours, a driver 
may not drive without taking another 8 consecutive hours off duty. 
Weekly limits provide that if a motor carrier does not operate CMVs 
every day of the week, its drivers may not drive after being on duty 60 
hours in 7 consecutive days; if the carrier operates CMVs every day, 
its drivers may not drive after being on duty 70 hours in 8 consecutive 
days (49 CFR 395.3). Although the charge is sometimes made that the 
FMCSA is pursuing an ill-conceived ``one size fits all'' policy toward 
the highly diversified motor carrier industry, the HOS rules in fact 
include a number of exceptions for specific situations or operations 
(see Sec. 395.1).
    It has become increasingly clear, however, that a complete 
reevaluation of the HOS rules is needed. America's transportation 
system has changed significantly since 1962, and even more 
fundamentally since the late 1930's, when the Interstate Commerce 
Commission (ICC) adopted the first HOS rules. Long-haul truckers in the 
1930's could average only 25 miles per hour (mph)--the top speed was 40 
mph--and the best daily run was about 250 miles (11 M.C.C. 203). The 
construction of the Interstate Highway System has contributed to 
significantly higher traffic speeds and volumes. Trucking, once a 
relatively minor adjunct to the railroads, has become the dominant form 
of transportation for most commodities. Much of the nation's truck 
traffic moves on the Interstates and other high-speed roads, sometimes 
for very long distances. Increased exposure to the risk of accidents 
follows automatically from annual increases in the number of trucks and 
other vehicles on the road and in total vehicle miles of travel (VMT). 
The high volume and speed of traffic on the Interstates and many other 
roads require a high level of driver alertness, for the sheer mass of a 
truck can make it deadly when accidents occur. Of course, trucks also 
operate in local or regional environments, often in heavy traffic, and 
drivers are required to perform an ever-wider range of duties. The 
results of scientific research into fatigue causation, sleep, circadian 
rhythms, night work, and other matters were unavailable decades ago 
when the HOS rules were formulated.
    Many people have indicated their concern over driver fatigue, and 
their concomitant belief that the present HOS regulations do not 
adequately ensure that drivers are rested. Driver fatigue was voted the 
number one safety concern of the Federal Highway Administration's 
(FHWA) 1995 Truck and Bus Safety Summit, a meeting of over 200 drivers, 
motor carrier representatives, government officials, and safety 
advocates. The National Transportation Safety Board (NTSB) has also 
asked the FMCSA to investigate driver fatigue.
    On June 1, 1999, the NTSB, recognizing that fatigue is an issue 
which affects all transportation modes, issued the following 
recommendation to the Department of Transportation:

    Require the modal administrations to modify the appropriate 
Codes of Federal Regulations to establish scientifically based 
hours-of-service regulations that set limits on hours of service, 
provide predictable work and rest schedules, and consider circadian 
rhythms and human sleep and rest requirements. Seek Congressional 
authority, if necessary, for the modal administrations to establish 
these regulations.

    The FMCSA had already devoted several years' of work toward the 
development of this NPRM at the time the NTSB issued its 
recommendation. The FMCSA believes that the revised HOS rules proposed 
today will reduce the acute and cumulative fatigue which appears to 
beset many drivers and thus prevent a significant number of crashes and 
fatalities, while limiting major compliance costs on those segments of 
the motor carrier industry that have the lowest fatigue-related CMV 
crashes and focusing the major compliance costs on those segments with 
the highest fatigue-related CMV crashes.
    The FMCSA's jurisdiction over the HOS regulations for motor 
carriers and drivers is specified in Table 1. Motor carriers and 
drivers are subject to applicable State motor vehicle and highway 
safety laws and regulations, regardless of whether the motor carriers 
or drivers are subject to any or all of the FMCSRs.
    In October, 1999, the Secretary of Transportation rescinded the 
authority previously delegated to the Federal Highway Administrator to 
perform motor carrier functions and operations, and to carry out the 
duties and powers related to motor carrier safety, that are statutorily 
vested in the Secretary. That authority was redelegated to the Director 
of the Office of Motor Carrier Safety (OMCS), a new office within the 
Department (see, 64 FR 56270, October 19, 1999, and 64 FR 58356, 
October 29, 1999). The OMCS had previously been the FHWA's Office of 
Motor Carriers (OMC).
    The Motor Carrier Safety Improvement Act of 1999 established the 
Federal Motor Carrier Safety Administration (FMCSA) as a new operating 
administration within the Department of Transportation, effective 
January 1, 2000 (Public Law 106--159, 113 Stat. 1748, December 9, 
1999). The Secretary therefore rescinded the motor carrier authority 
delegated to the Director of the OMCS and redelegated it to the 
Administrator of the FMCSA (65 FR 220, January 4, 2000).
    The staff previously assigned to the FHWA's OMC, and then to the 
OMCS, are now assigned to the FMCSA. The motor carrier functions of the 
FHWA's Resource Center's and Division (i.e., State) Offices have been 
transferred without change to the FMCSA Resource Centers and FMCSA 
Division Offices, respectively. For the time being, all phone numbers 
and addresses are unchanged. Similarly, rulemaking activities begun 
under the auspices of the FHWA and continued under the OMCS will be 
completed by the FMCSA. The recent redelegations do not affect the 
validity of the November 5, 1996, Advance Notice of Proposed

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Rulemaking (ANPRM) in this proceeding (61 FR 57252). All comments to 
that docket have been transferred to the new FMCSA docket and have been 
considered in preparing this document. The NPRM has been under 
development since the June 30, 1997, ANPRM docket closing date. 
Although the FMCSA has attempted to remove all non-relevant present-
tense references to the FHWA and the OMCS, any that remain should be 
considered references to the FMCSA.

 Table 1.--Applicability of FMCSA Hours of Service of Drivers Rulemaking
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                                       In interstate      In intrastate
         If you operate a:                commerce          commerce
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CMV--A motor vehicle(s) that has     You must comply    You are not
 any of the following four            with all FMCSA     subject to the
 characteristics:                     HOS \2\            FMCSA HOS. You
1. A GVW, GVWR or GCWR \1\ of at      requirements and   may be subject
 least 4,537 kilograms (10,001        are subject to     to proposals
 pounds); or                          proposals made     made in this
2. Is designed or used to transport   in this NPRM.      NPRM, if your
 more than 8 passengers, including                       State or local
 the driver, for compensation; or                        government
3. Is designed or used to transport                      adopts final
 more than 15 passengers, including                      rules based on
 the driver, and is not used to                          these proposals
 transport passengers for                                in order to
 compensation; or                                        participate in
4. Is used to transport hazardous                        the Motor
 materials in quantities requiring                       Carrier Safety
 the vehicle to be marked or                             Assistance
 placarded under the Hazardous                           Program, 49 CFR
 Materials Regulations (49 CFR part                      part 350.
 172, subparts D & F).
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\1\ GVW, GVWR, and GCWR are acronyms for Gross Vehicle Weight, Gross
  Vehicle Weight Rating, and Gross Combination Weight Rating,
  respectively. See 49 CFR 390.5.
\2\ As noted in Sec.  390.3(f) and specifically provided elsewhere in
  the FMCSRs, the following six categories of CMVs and drivers operating
  these CMVs are exempt from the FMCSRs, in whole or in part:
(1) The occasional transportation of personal goods by individuals not
  for compensation (such as moving your own household) are exempt from
  all the FMCSRs.
(2) The transportation of children and/or school personnel from home to
  school and from school to home are only subject to the driver CDL and
  alcohol and controlled substance requirements of 49 CFR Parts 382 and
  383.
(3) Transportation performed by the Federal government, a State, any
  political subdivision of a State, or an agency established under an
  agreement between States that has been approved by the U.S. Congress
  are only subject to the driver CDL and alcohol and controlled
  substance requirements of 49 CFR Parts 382 and 383.
(4) CMVs used wholly on private property not open to public travel (such
  as yard hostlers and yard tractors in a motor carrier's terminal) are
  exempt from all the FMCSRs.
(5) Fire trucks, ambulances, and rescue vehicles involved in emergency
  related operations, unless a State exempts driver of such vehicles
  (See 49 CFR 382.103(d) and 383.3(d)), are only subject to the driver
  CDL and alcohol and controlled substance requirements of 49 CFR Parts
  382 and 383.
(6) Transportation of human corpses and sick and injured persons.
(7) The operation of CMVs designed to transport less than 16 passengers,
  including the driver, until March 6, 2000.


BILLING CODE 4910-22-P

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[GRAPHIC] [TIFF OMITTED] TP02MY00.000


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[GRAPHIC] [TIFF OMITTED] TP02MY00.001

BILLING CODE 4910-22-C

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III. The Safety Problem

    While nearly everyone who has studied the current HOS rules agrees 
that they could and should be improved, it is difficult to reach 
consensus on alternatives because the extent and nature of the problem 
are unclear. This was acknowledged in a June 1, 1999, letter from Jim 
Hall, Chairman of the NTSB, to DOT Secretary Rodney E. Slater. Chairman 
Hall said, among other things:

    Fatigue has remained a significant factor in transportation 
accidents since the Safety Board's 1989 recommendations were issued. 
Although generally accepted as a factor in transportation accidents, 
the exact number of accidents due to fatigue is difficult to 
determine and likely to be underestimated. The difficulty in 
determining the incidence of fatigue-related accidents is due, at 
least in part, to the difficulty in identifying fatigue as a causal 
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 unequivocally that fatigue was a causal or 
contributing factor in an accident. In most instances, one or more 
indirect or circumstantial pieces of evidence are used to make the 
case that fatigue was a factor in the accidents. This evidence 
includes witness statements, hours worked and slept in the previous 
few days, the time at which the accident occurred, the regularity or 
irregularity of the operator's schedule, or the operator's admission 
that he fell asleep or was impaired by fatigue. Despite the 
difficulty in identifying fatigue as a causal factor, estimates of 
the number of accidents involving fatigue have been made for the 
different modes of transportation; the estimates vary from very 
little involvement to as high as about one-third of all accidents.
    Although the data are not available to statistically determine 
the incidence of fatigue, the transportation industry has recognized 
that fatigue is a major factor in accidents. Further, the Safety 
Board's in-depth investigations have clearly demonstrated that 
fatigue is a major factor in transportation accidents.

    The objective of this proposal is to reduce the number of fatigue-
related truck and motorcoach crashes. The overall benefit therefore 
will depend on the effect this proposal will have on reducing the 
current number of these crashes.
    For purposes of this proposal, the FMCSA has assumed that bus 
drivers operate in ways similar to truck drivers. The FMCSA requests 
comments about the accuracy of this assumption. Although there are 
research studies in the docket concerning the performance of bus 
drivers suffering from fatigue, the FMCSA could find no research 
studies on which to distribute bus drivers subject to FMCSA 
jurisdiction among different operations for the safety and benefit-cost 
analyses in the docket.
    There are significant differences in published estimates of the 
number and proportion of fatigue-related CMV crashes. Much of this 
results from the differing analytical approaches used, particularly 
differences in the set of crashes analyzed. Generally speaking, these 
studies can be divided into two classes: those relying on large-scale 
accident data files, and those based on more intensive analysis of a 
smaller number of crashes.
    The FMCSA and the National Highway Traffic Safety Administration 
(NHTSA) have conducted several fatigue-related CMV crash studies using 
large-scale data bases, primarily the Fatality Analysis Reporting 
System (FARS) and the General Estimates System (GES). These databases, 
which are managed by NHTSA, are based largely (but not exclusively) on 
police accident reports (PARs). Most police accident forms contain a 
field for driver contributing factor, and generally among the choices 
are driver fatigue, drowsiness, or asleep at the wheel. In most 
analyses, crashes in which one of these fields is checked are 
classified as fatigue-related.
    Crash analysts frequently criticize use of PARs for fatigue 
analysis, as they believe that PARs understate the true extent of 
fatigue. Police face a number of difficulties in determining whether 
fatigue contributed to a crash. First, the responding officer's primary 
concern is assisting crash victims and restoring the flow of traffic. 
Investigating the causes of the crash is often a second (or lower) 
level concern. Second, few police officers are trained in crash 
reconstruction and, consequently, they are unable to conduct a detailed 
investigation of the physical and mechanical evidence.
    Also, it is unclear what should be counted as a fatigue-related 
crash. Clearly all crashes where fatigue is cited should be included, 
but there are other crashes where fatigue may play a less direct role. 
Crashes involving inattention, distraction, or other driver failures 
may be related to fatigue, as fatigued drivers are more prone to 
various types of mental error. These errors are major causal factors in 
crashes.
    The ``Tri-Level Study of the Causes of Traffic Accidents,'' Treat 
et al. (1979), is perhaps the most in-depth study ever performed in the 
United States on crash causation. This was principally a study of 
automobile drivers and their crashes. It found that ``recognition 
failure'' was involved in 56 percent of the crash cases analyzed. 
``Recognition failure'' in this study meant: (1) Improper lookout, 
including faulty visual surveillance and ``looked but did not see;'' 
(2) inattention, including preoccupation with competing thoughts; (3) 
internal or (4) external distractions, including attention to competing 
events, activities, and objects in and out of the vehicle. While 
driver-drowsiness/fatigue was found to be a certain or probable factor 
in 2 percent of the cases, 23 percent involved faulty visual 
surveillance, 15 percent involved inattention, and 13 percent involved 
distraction. The FMCSA believes the study is generally applicable to 
CMV drivers and their crashes because the agency believes both CMV and 
automobile drivers are susceptible to driving related problems 
associated with visual surveillance, inattention, and distraction.
    More recent studies have also found high levels of inattention and 
distraction. In a study of nearly 700 Crashworthiness Data System (CDS) 
and GES crashes, Najm et al. (1995) determined that recognition errors 
were the primary causes of 45 percent of the cases studied, compared to 
3.7 percent primarily due to driver drowsiness. General Motors 
scientists reviewed over 1,000 PARs from the State of Michigan, and 
reported that 17 percent were attributable to ``daydreaming'' and 18 
percent to improper lookout, with just 1 percent due to ``dozing.'' 
Deering (May 17, 1994).
    A recent study by the United States Coast Guard also suggests that 
direct measurement of fatigue may understate its true extent, U.S. 
Coast Guard (1997)(MSC 68/INF.11). Coast Guard researchers developed a 
``fatigue index,'' based on the number of fatigue symptoms reported, 
and the number of hours worked and slept in the 24 hours prior to the 
incident. Using this formula increased the percentage of critical 
vessel cases categorized as fatigue related from 1.2 percent to 16 
percent. Critical vessel cases involve significant property damage or 
the loss of the vessel. Critical casualty cases involve personnel 
injuries. For critical casualty cases, the fatigue index resulted in an 
adjustment increase from 1.3 to 33 percent. These reports indicate the 
need to be more expansive and inclusive when defining fatigue-related 
incidents, as well as the likelihood that fatigue statistics based 
solely on accident reports underestimate the true extent of the fatigue 
problem.
    Fatigue increases the likelihood that a driver will not pay 
sufficient attention to driving or commit other mental errors. As 
discussed above, in-depth studies of crashes have found that 
inattention and other mental lapses

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contribute to as much as 50 percent of all crashes. While fatigue may 
not be involved in all these crashes, it clearly contributes to some of 
them. The agency tentatively estimates that 15 percent of all truck-
involved fatal crashes are ``fatigue-relevant,'' that is, fatigue is 
either a primary or secondary factor. This includes the 4.5 percent of 
fatal crashes where fatigue is directly cited, and another 10.5 percent 
where it contributes to other mental lapses, which then result in a 
crash. The FMCSA conducted some sensitivity analysis to determine the 
impact of different baseline levels of fatigue. Table 2 shows the 
FMCSA's estimate of the number of fatigue-related crashes by 
operational type.

                Table 2.--Estimated Annual Number of Fatigue-Related CMV Fatalities and Injuries
----------------------------------------------------------------------------------------------------------------
                                                    Local        Other      Long haul     Unknown       Total
----------------------------------------------------------------------------------------------------------------
Fatalities.....................................           61          166          480           49          755
Injuries.......................................        1,581        4,319       12,532        1,273       19,705
Fatal crashes..................................  ...........  ...........  ...........  ...........          645
Injury crashes.................................  ...........  ...........  ...........  ...........       13,519
    Total......................................        1,642        4,485       13,012        1,322       20,460
                                                ----------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------

    Long-haul operations account for two-thirds of all fatalities, 
excluding those for which the length of haul was unknown. Only one half 
of one percent of fatalities and injuries occur in a crash with a truck 
whose driver has been reported driving 12 or more hours, although, as 
discussed above, the true figure is likely to be higher.
    Other research also indicates that local drivers are less likely to 
be involved in a fatigue-related crash than long-haul drivers. An 
analysis of the fatal crash rate and mileage figures from the 
University of Michigan Transportation Research Institute's (UMTRI) 
Trucks Involved in Fatal Accidents (TIFA) database and the Bureau of 
the Census' 1992 Truck Inventory and Use Survey (TIUS) shows a dramatic 
difference in the crash experience of local and other trucks. Local, 
single-unit straight trucks had an average of 0.0022 fatigue-related 
fatal involvements per 1000 registered trucks. The comparable figure 
for long-haul tractor-trailers was 0.0781, approximately 35 times 
greater. On a per-mile basis, long-haul trucks were almost 20 times 
more likely to be involved in a fatigue-related crash. Massie et al. 
(1997).

Time of Day

    Without reliable exposure data disaggregated by operational type, 
it is difficult for the FMCSA to confirm that truck travel matches the 
crash distribution. The UMTRI analyzed the relationship between the 
risk of fatigue given a fatal accident involvement and the risk of 
fatigue per VMT, by truck body type and trip type, using VMT data from 
the TIUS. This analysis, which is partially reprinted in Appendix B to 
the Preliminary Regulatory Evaluation (PRE) that is in the docket and 
incorporated by reference in this NPRM, suggests that the relative risk 
of fatigue given a fatal accident involvement is a good predictor of 
the risk of fatigue per VMT. This is important because exposure data 
are not available for many relevant variables (such as time of day and 
hours driving).
    Chart 1 shows the distribution of trucks involved in fatal crashes. 
It generally mirrors truck traffic, with a mid-afternoon peak when the 
data show truck travel to be the highest. Chart 2 shows the 
distribution of fatigue involvement, which is quite different than 
overall involvement in crashes. Fatigue peaks between 4 a.m. and 6 a.m. 
Chart 3 combines data from both Chart 1 and 2 to show the relative risk 
of a fatigue involvement, given that a fatal crash occurs. Chart 3 
closely resembles Chart 2, indicating that the incidence of fatigue is 
more variable than that of crashes. Relative risk looks the same for 
both long-haul and other trucks. Chart 4 shows that both types of 
operations have peak relative risks between 4 a.m. and 6 a.m.
    There is no significant difference between the time of day 
distribution of straight and combination trucks.

Hours Driving

    Chart 5 shows the relative risk of a fatigue-related fatal crash by 
the number of hours of driving. Data on hours driving up to 1992 came 
from phone interviews and from the FHWA's form MCS-50T accident 
reports. Motor carriers involved in certain accidents were required to 
complete these forms up to 1992. Since elimination of the requirement 
to file MCS-50T accident reports in 1993, data on hours driving come 
entirely from phone interviews by UMTRI researchers. The interview 
source is the owner of the truck, so the agency expects some under-
reporting for hours above the current limits. About one quarter of all 
respondents refused to answer this question, much higher than the 
percent missing for any other question. Nonetheless, the data clearly 
show the impact of extra hours driving on the likelihood of fatigue 
being cited in a crash.
    Not surprisingly, risk increases with time driven. Approximately 20 
percent of the fatal crashes per year where fatigue is coded as a 
factor involve the driver being behind the wheel for 13 or more hours. 
There also appears to be a slight increase in the risk of fatigue-
related crashes at 5 hours. This is difficult to discern in the 
following chart, but becomes apparent when looking at risks for long-
haul drivers. Jovanis et al. (1991) found a similar pattern in their 
examination of crashes from one long-haul carrier, including both a 
bump at 5 hours and a more dramatic and consistent increase in crash 
risk after 8 hours. Lin et al. (1993). Lin noted a limitation in their 
analyses, and provide a caveat to the estimates of the odds ratios in 
the last driving hour category--a large number of non-crash trips are 
completed during the 8th or 9th hour of driving, but the authors' 
``assumed failure time,'' defined as the expected time of involvement 
in an accident, would occur after this trip completion time.
    As noted above, long-haul trucks are involved in about 67 percent 
of all fatigue-related truck crashes. These vehicles also have a 
greater relative risk of fatigue involvement for almost any given 
number of hours driving. Chart 5 would not appreciably change if 
vehicles were broken down by trip type, except when hours driving 
exceed 11, where the small numbers of crashes yield some extremely high 
relative risk values.
    The distribution of crashes by vehicle type is not so clear-cut. 
Two-thirds of all trucks involved in fatal crashes between 1991 and 
1996 were combination vehicles, including both tractor semi-

[[Page 25547]]

trailers and straight trucks pulling a trailer. These vehicles were 
also involved in four-fifths of all fatigue-involved fatal crashes, 
only slightly higher than the percentage of all fatal truck crashes. 
This suggests that truck body type is a good proxy for predicting 
fatigue.
    Long-haul combination vehicles account for about half of all fatal 
CMV crashes, but three-fourths of all trucks in fatigue-involved fatal 
crashes. Straight trucks in long-haul operations are more likely to be 
fatigue involved; although they represent just 7 percent of trucks 
involved in fatal crashes, they account for 14 percent of fatigue-
involved trucks. The relative risk for drivers of these vehicles is 
almost 2, while it is closer to 1.5 for drivers of combination vehicles 
in long-haul operations. This over-representation may be partly due to 
drivers of straight trucks being unaccustomed to the rigors of long-
haul operations.

Injury Crashes

    Data on non-fatal crashes are even more limited than for fatals. 
All the factors militating towards under reporting of fatigue in fatal 
crashes are even more prevalent in non-fatals. In addition, because the 
best estimate of the number of non-fatal truck-involved crashes is 
based on a sample rather than a census (as is the case with fatal 
crashes), the FMCSA is not able to segregate these crashes by carrier 
operational type. Therefore, for this analysis, the agency uses the 
ratio of all injury crashes to fatal crashes as a proxy for fatigue-
related injury crashes. The agency has also estimated that injury 
crashes follow the same patterns as fatal crashes, with overall crashes 
higher in the afternoon and fatigue-related crashes peaking between 
4:00 a.m. and 5:00 a.m.
    To evaluate the consistency between fatal and injury crashes, the 
agency examined injury-crash data from Texas. The agency chose to 
review Texas for a number of reasons. First, it typically ranks among 
the highest in terms of fatal truck crashes, ensuring that the agency 
would have a large sample to analyze. Second, Texas reports a high 
proportion of fatigue in fatal truck crashes, which suggests the State 
is better at reporting fatigue. This analysis shows that injury crashes 
generally mirror the fatal crash distribution by time of day. No data 
are available on injury crashes by hours driving. Based on Texas' 
reports and the analysis of the general mirroring of injury crashes to 
fatal crash distribution, the FMCSA has determined that the 
distribution of injury crashes, both overall and fatigue-related, would 
follow the pattern exhibited by fatal crashes. The complete analysis 
has been placed in the docket.
    This analysis does not include property damage only (PDO) crashes. 
We were not able to find any reliable information on PDO crashes by 
trip distance, hours driving, or time of day. The FMCSA also believes 
that fatigue-related crashes tend to be more severe than non-fatigue-
related crashes, so the number of fatigue-related PDO crashes is 
probably small. In any case, the damage from PDO crashes, whether 
fatigue related or not, is, by definition, minimal. In an analysis in 
another rulemaking, the FMCSA estimated that the average truck involved 
PDO crash costs society between $5,000 and $10,000. RIN (Regulatory 
Identification Number) 2125-AD27, Docket FHWA-1997-2222. To the extent 
that there are a sizable number of PDO crashes which would be affected 
by this proposal, overall benefits would be greater than the agency's 
estimate. See the PRE in the docket for a complete discussion of injury 
crashes. See the section headed ``XII. Rulemaking Analysis and 
Notices'' for more information about RINs.
    The FMCSA invites comment on any aspect of the safety problem, the 
data and estimates used by the FMCSA, and the conclusions reached as a 
result of the analyses. Please provide with your comments all data, 
studies, and reports you rely upon that you believe the FMCSA should 
use.

IV. A Brief History of the Hours-of-Service Rules

    The following is a brief history of the HOS rules. The docket 
contains a more complete discussion of the rules and their relationship 
to the Fair Labor Standards Act (FLSA) and implementing regulations.

A. The ICC's Original Rules

    The Motor Carrier Act of 1935 (MCA) (Public Law 74-255, 49 Stat. 
543, August 9, 1935), in addition to authorizing far-reaching economic 
regulation of the trucking industry, directed the ICC to establish 
qualifications and maximum hours of service for drivers working for 
private and for-hire interstate property carriers and for-hire 
interstate passenger carriers. This authority is now codified at 49 
U.S.C. 31502.
    The ICC published its safety proposals, including HOS limits, on 
July 8, 1936 (1 FR 738). In preparing its draft rules, the Commission 
examined all State HOS laws and regulations and solicited input from 
motor carriers and drivers. A formal rulemaking action, including 
hearings, was conducted before Division 5 of the ICC. (Hearings: 1 FR 
1015, August 7, 1936; 1 FR 1510, October 2, 1936; 1 FR 2161, December 
18, 1936.) On December 29, 1937, the ICC promulgated its final HOS 
regulations (effective July 1, 1938), along with detailed findings and 
explanations (3 M.C.C. 665, 3 FR 7, January 4, 1938). Concerning 
drivers' need for off-duty time, the ICC found:

    It is obvious that a man cannot work efficiently or be a safe 
driver if he does not have an opportunity for approximately 8 hours 
sleep in 24. It is a matter of simple arithmetic that if a man works 
16 hours per day he does not have the opportunity to secure 8 hours 
sleep. Allowance must be made for eating, dressing, getting to and 
from work, and the enjoyment of the ordinary recreations. 3 M.C.C. 
665, at 673 (1937).

    Under the regulations adopted by the ICC, motor carriers could not 
permit or require drivers to be on duty more than 15 hours out of 24; 
drivers were thus allowed at least 9 hours off duty every day. The 
limit was designed to give them an opportunity for a minimum of 8 hours 
of sleep. Within the 15-hour on-duty period, the ICC set a 12-hour 
maximum daily work period for drivers. Work was defined as ``loading, 
unloading, driving, handling freight, preparing reports, preparing 
vehicles for service, or performing any other duty pertaining to the 
transportation of passengers or property.'' The ICC intended the 3-hour 
difference between 15 hours on duty and 12 hours of work to be used for 
meals and rest breaks. The Commission also set a weekly on-duty limit 
of 60 hours in any 7 consecutive days or 70 hours in 8 consecutive 
days.

B. Immediate Changes to HOS Rules

    Within a short time, however, representatives of organized labor 
(including the American Federation of Labor, the Teamsters, and the 
Machinists) petitioned for a stay of the original regulations. A few 
motor carriers made a similar request. The ICC agreed, and oral 
arguments were heard again. Labor wanted HOS limits of 8 hours per day 
and 48 hours per week.
    The ICC commented that:

    [T]here was no statistical or other information which would 
enable [us] to say definitely how long a driver can safely work. 
However, at the argument before us, the labor representatives 
particularly stressed the 15-hour limitation, contrasting such a 
tour of duty with the 8-hour day which is now so generally 
recognized as the normal standard for workers. The evidence before 
us clearly does not suffice to enable us to conclude that a duty 
period as low as 8 hours in 24 is required in the interest of 
safety. We may call attention, as did the division, to the contrast 
between factory operations, generally sustained in character, and 
the operation of busses and trucks, generally characterized by 
frequent stops for refreshments, gas, or rest,

[[Page 25548]]

or because of conditions encountered in highway and street traffic. 
The monotony or nervous and physical strain of driving such vehicles 
is alleviated by these breaks in the periods devoted to driving, and 
the period of actual work is considerably below the period on duty. 
6 M.C.C. 557, at 561 (July 12, 1938)

    The Commission ultimately decided to change the 12-hour work limit 
in 24 hours to a 10-hour driving limit in 24 hours. Motor carriers were 
required to give drivers 8, rather than 9, consecutive hours off duty 
each day. That meant drivers could be kept on duty as much as 16 hours 
out of 24; the specific daily on-duty limit was rescinded. The 60- and 
70-hour limits were unchanged (3 FR 1875, July 28, 1938). The ICC 
remarked that these rules were somewhat less flexible than the original 
HOS regulations, but considerably more flexible than the standards 
requested by organized labor. ``[A]s the great bulk of the trucking 
operations covered by these regulations are conducted on a 6-day 
basis,'' the report said, ``the practical effect of the weekly 
limitation is to provide a 10-hour day.'' 6 M.C.C. 562 (1938). The 
Commission reiterated a similar point elsewhere in its report on the 
amended rules.

    [I]t was strongly urged upon us [the ICC] that the daily and 
weekly maxima prescribed by division 5 would make it difficult to 
negotiate contracts for shorter hours, or for unorganized labor to 
hold the hours it has. It was said that already carriers have used 
the regulations prescribed in the prior report as a means of 
lengthening hours. Considerations other than those with which we may 
properly deal enter here, though we look with distinct disfavor on 
carriers or others who use regulations premised on safety as a means 
of defeating employees' efforts to improve their economic status. It 
is questionable, however, whether the practice has been or will be a 
serious one. The fact that we hereinafter prescribe 60 hours on duty 
as the weekly maximum should not interfere with the negotiations by 
organized labor of contracts providing for shorter hours. 6 M.C.C. 
557, at 560 (July 12, 1938).

    The ICC's hope that the HOS rules would not be used to lengthen 
drivers' hours has not been borne out. That is a matter of some 
importance, since the FLSA, which generally required overtime pay after 
July, 1945 for more than 40 hours of work per week, included an 
exemption for motor carriers subject to the ICC's regulations. Amended 
only slightly, the exemption remains in effect today at 29 U.S.C. 
213(b):

    (b) Maximum hours requirements:
    The provisions of section 207 of this title [Maximum hours] 
shall not apply with respect to--
    (1) any employee with respect to whom the Secretary of 
Transportation has power to establish qualifications and maximum 
hours of service pursuant to the provisions of section 31502 of 
title 49 * * *.

The result is that truckers engaged in interstate commerce work some of 
the longest hours known in this country, without the opportunity for 
time-and-a-half overtime pay beyond the 40th hour.
    On October 22, 1938 (3 FR 2533), the U.S. Department of Labor's 
(DOL) Wage and Hour Division (WHD) published regulations (29 CFR part 
516) implementing section 11(c) of the FLSA (29 U.S.C. 211(c)). These 
regulations require motor carriers subject to the minimum wage 
provisions of the Act--which includes carriers subject to the 
jurisdiction of the ICC (and now the FMCSA)--to make, keep, and 
preserve time records showing when drivers start and stop work, as well 
as the total number of hours they work per day and week.

C. 1962 Amendments

    The first, and in fact the only, fundamental change to the HOS 
rules since the late 1930's occurred in 1962 (89 M.C.C. 19, March 29, 
1962, 27 FR 3553, April 13, 1962). For reasons it never explained 
clearly, the ICC retained the 8-hour off-duty requirement and the 10-
hour driving limit, but dropped the 24-hour limit. This had profound 
effects. For example, a driver who came on duty and started driving at 
12:01 a.m. Monday would have to stop driving at 10:00 a.m. If the 
driver then took 8 hours off duty, he or she could drive again from 
6:00 p.m. to midnight, for a total of 16 hours on Monday. The previous 
rule would have limited the driver to a total of 10 hours driving time 
in any 24-hour period. The unintended consequences of this change are 
described below.

D. Exemptions

    The 1938 revisions to the HOS rules were barely in place when the 
first request for an exception was filed. Several industry associations 
argued that the 10-hour driving limit should be extended when bad 
weather made it impossible to complete a normal run in 10 hours. The 
ICC allowed an extra 2 hours for ``unfavorable weather conditions.'' 
See 11 M.C.C. 203, January 27, 1939, 4 FR 475, January 31, 1939. This 
exception, slightly modified, is still available (49 CFR 395.1(b)(1) 
Adverse driving conditions). Other requests followed over the years; 
the exceptions granted by the ICC are codified at 49 CFR 395.1(b)(2) 
Emergency conditions, (c) Driver-salesperson, (d) Oilfield operations, 
(e)100 air-mile radius driver, (f) Retail store deliveries, (g) Sleeper 
berths, (h) State of Alaska, (i) State of Hawaii, and (j) Travel time.
    On July 30, 1991 (57 FR 33638), the FHWA published a final rule 
exempting motor carriers and drivers from most of the Federal Motor 
Carrier Safety Regulations (FMCSRs), including the HOS rules, while 
providing emergency relief during a declared regional or local 
emergency, and more limited relief for tow truck drivers responding to 
a police request to move wrecked or disabled vehicles (49 CFR 390.23). 
The emergency relief provision required drivers who had been on duty 
more than 60 hours in 7 days, or 70 hours in 8, while providing direct 
assistance to emergency relief efforts, to take 24 hours off duty 
before returning to normal driving in interstate commerce.
    On August 19, 1992 (57 FR 37504), the agency published a proposal 
to permit drivers to begin anew any on-duty period of 60 hours in 7 
days or 70 hours in 8 days upon taking 24 consecutive hours off duty. 
The FHWA made this proposal to provide opportunities for improved 
efficiency in operations consistent with highway safety. On February 3, 
1993 (58 FR 6937), the FHWA withdrew the proposal, having received 
virtually no substantive responses to the critical questions asked. 
Most of the 68,000 comments offered opinions unsupported by empirical 
(or even anecdotal) material. Except in general terms, there were no 
discussions of potential impacts on highway safety. The agency needed 
to know if 24 hours is sufficient time for a driver to obtain the rest 
necessary to resume driving safely after accumulating 60 to 70 on-duty 
hours in as short a period as 4.25 days. This question remained 
unanswered until the completion of Canadian studies (O'Neill, T. et al. 
(1999) and Smiley, A. & Heslegrave, R. (1997)). The agency discusses 
these studies later in this document.
    Citing the waiver authority enacted as part of the Motor Carrier 
Safety Act of 1984 (MCSA) (Public Law 98-554, October 30, 1984)(Sec. 
206(f), 98 Stat., at 2835), representatives of many industries either 
filed petitions for waivers of the HOS regulations or contacted the 
agency about the possibility. Among the carriers requesting exemptions 
were those involved in utility operations (electricity, natural gas, 
television), farming and farm supplies, construction, drilling of blast 
holes for rock quarries, highway traffic marking, custom harvesting, 
ground water drilling, and transporters of produce, cement, and ready-
mix concrete. The FHWA granted none of these requests

[[Page 25549]]

because the proponents were unable to provide the agency with 
sufficient data to show that the waiver would meet the statutory test: 
(1) Not contrary to the public interest and (2) consistent with the 
safe operation of CMVs.
    Section 345 of the National Highway System Designation Act of 1995 
(Public Law 104-59, 109 Stat. 568, 613) (NHS Act) created a statutory 
exemption from all of the HOS provisions for individuals transporting 
crops and farm supplies during planting and harvesting seasons, and a 
more limited exemption (from the 60- and 70-hour rules) for drivers of 
utility service vehicles, CMVs transporting ground water well drilling 
rigs, and construction materials and equipment. The FHWA, however, was 
authorized to conduct rulemaking on the advisability of each of these 
exemptions (except that for water well drilling rigs). If the agency 
determined that an exemption would not be in the public interest and 
would have a significant adverse impact on the safety of CMVs, the 
exemption could be blocked before it went into effect, modified or 
revoked. The NHS exemptions apply only to drivers and motor carriers 
operating in interstate commerce, and the Act specifically denied 
preemptive effect to any of the exemptions. The States, therefore, are 
free to adopt or reject any of the HOS exemptions, whether for 
interstate or intrastate commerce, without jeopardizing their 
eligibility for Motor Carrier Safety Assistance Program (MCSAP) 
funding. The FHWA adopted all of the required exemptions on April 3, 
1996 (61 FR 14677) (see 49 CFR 395.1(k) Agricultural operations, (l) 
Ground water well drilling operations, (m) Construction materials and 
equipment, and (n) Utility service vehicles), but deferred until a 
future date any rulemaking action to consider modifying or revoking 
them.
    While this notice was being prepared, the FHWA received a petition 
from the Advocates for Highway and Auto Safety (AHAS) seeking 
rulemaking to reevaluate the 1996 exemptions. By this NPRM, the agency 
is granting the AHAS petition, which has been placed in the docket. The 
agency will also be consolidating the Regulatory Identification Number 
(RIN) 2126-AA29 (formerly 2125-AE09) into this action. See the section 
headed ``XII. Rulemaking Analysis and Notices'' for more information 
about RINs. The FMCSA is proposing to modify the agricultural exemption 
and revoke all but one of the other NHS Act exemptions. Because Sec. 
345 does not authorize rulemaking to reevaluate the exemption for 
ground water well drilling rigs, it will remain in effect. The utility 
and construction exemptions, however, would be revoked, and those 
operations would be required to comply with the proposed ``weekend'' 
provisions of the HOS rules for Type 4 or 5 operations, described in 
detail below.

E. Developments in the 1970's and 1980's

    In 1970, when Congress authorized funds to be spent on research, 
the FHWA, which had then assumed the safety responsibilities previously 
exercised by the ICC, initiated inquiries into drivers' hours of 
service and fatigue. The research and subsequent rulemaking continued 
for the next ten years. On February 12, 1976, the FHWA published an 
ANPRM that discussed three possible options for regulatory revisions 
(41 FR 6275). Because the agency did not receive sufficient information 
to determine whether the HOS should be amended, it published a second 
ANPRM on May 22, 1978 (43 FR 21905) inviting comments on three 
different regulatory options. After reviewing the comments to the 
second ANPRM, as well as transcripts from six public hearings that 
generated more than 9,000 pages of testimony from 1,200 interested 
parties, the FHWA determined that none of the proposed regulatory 
options could be supported in its entirety. The FHWA then developed 
three new proposed HOS options and carried out detailed cost-
effectiveness and other regulatory analyses as required by Executive 
Order 12044 (1978).
    Option I would have reduced the 10-hour driving limit to 8 hours, 
among other things. Option II would have eliminated the differences in 
time allowances for driving time, on-duty time, and duty tour by 
specifying each have a limit of 12 hours, among other things. Option 
III would have maintained the status-quo regulations, with one 
exception: it would have banned driving between midnight and 6:00 a.m.
    The cost to society of Option I was estimated to be $11.496 billion 
and its benefits to society to be $450 million. The cost of Option II 
was estimated to be $10.642 billion and its benefits $450 million. The 
cost of Option III would have been $11.019 billion and its benefits $63 
million. The rulemaking was terminated on September 3, 1981.

V. Comments to the ANPRM

    The FHWA published an ANPRM to amend the HOS regulations on 
November 5, 1996 (61 FR 57252). This action was mandated by section 408 
of the ICC Termination Act (Public Law 104-88, December 29, 1995, 109 
Stat. 803, 958). The FHWA nearing completion of several research 
projects and sought the results of other relevant research to consider 
in this effort. The FHWA requested comments on the current HOS 
regulations and sought assistance in locating any other relevant 
information, including research, operational tests, or pilot regulatory 
programs conducted anywhere in the world, that could be used in 
developing revised HOS rules for CMV drivers.
    The agency received 1,650 comments in response to the ANPRM. The 
strongest support for amending the rules came from truck drivers, 
although no demand for major increase or decrease in hours emerged from 
their comments. Many drivers commented they wanted to work fewer hours 
without loss in annual incomes, and many other drivers wanted to drive 
longer hours and earn higher annual incomes. The only major theme that 
most agreed on was that they would like to see the agency prohibit them 
from loading and unloading cargo.
    The specific concerns or issues raised by the commenters who 
discussed technical or economic issues are addressed in the following 
sections. The respondents represented 13 advocacy groups, 3 consultants 
to the industry, 32 individuals, including concerned citizens and 
spouses of drivers, 1 insurance company, 4 labor unions, 3 law firms, 
1,159 motor carriers (including owner/operators and drivers operating 
for motor carriers), 7 motor carriers of passengers, 49 trade 
associations (including 1 motor coach association), 1 truck driving 
school, 3 universities (including specific research departments of 
various institutions), 7 federal government agencies or representatives 
(including Senators Robb, Abraham, Specter, and Helms, Representative 
Cliff Stearns, and the NTSB), 4 state government agencies, 1 local 
government, and 33 other entities (including respondents of 
indeterminate affiliation).
    Most respondents submitted comments that did not provide relevant 
scientific research or studies in support of their comments. The FMCSA 
considered additional comments submitted after the June 30, 1997, 
closing date.
    Following are general comments on information contained in the 
docket.
    1. In September 1997, after the June 1997 closing date, the docket 
contained 572 responses to the 69 specific questions asked in the 
ANPRM.
    2. Of the 572 question-specific responses, 127 included submissions 
of,

[[Page 25550]]

or references to, a specific report, study, or survey.
    3. Of the 1,650 comments analyzed, 731 were form letters to the 
docket. There were two different form letters; and none of these 
letters provided any relevant scientific research or studies to support 
the comments. The first form letter, received from 152 motor carriers 
in the construction industry, indicated that driver productivity is 
constrained by weather, the time of the year, and daylight hours. 
Furthermore, these carriers emphasized that they almost always operate 
within a localized geographical area, and concluded that drivers in the 
construction industry be exempt from the HOS regulations that govern 
over-the-road drivers. The FMCSA consolidated the figures for these 152 
carriers and found they operated 5,614 single-unit, straight trucks and 
1,734 truck tractors. See Table 3.

                                  Table 3.--152 Construction Industry Comments
----------------------------------------------------------------------------------------------------------------
               Comment                         Minimum                  Maximum            Average per carrier
----------------------------------------------------------------------------------------------------------------
Typical Trip Miles...................  2 miles................  700 miles..............  43.55 miles.
Typical Trip Time....................  0.02 hours.............  12 hours...............  1.89 hours.
Total Trips (over 3 years)...........  0 trips claimed........  1,000,000 trips........  101,107 trips.
Total Miles (over 3 years)...........  60 miles...............  21,744,000 miles.......  2,232,038.89 miles.
Accidents (over 3 years).............  0 accidents............  58 accidents...........  3.31 accidents.
----------------------------------------------------------------------------------------------------------------

    A second form letter was submitted by drivers in the form of a 
survey. All respondents submitting these form letters indicated support 
for a change in the FMCSA HOS regulations. They also provided no 
relevant scientific research or studies to supported comments.

Comments Identifying Potential Science-Based Alternatives

    All comments citing research studies as their basis for comments 
are discussed in this section. They are presented according to the 
regulatory elements they address.
Off-Duty Time
    The Insurance Institute for Highway Safety (IIHS) recommended a 
minimum of 12 to 14 hours off duty per day, citing Wylie, C.D. et al. 
(1996) (the FHWA's Driver Fatigue and Alertness Study). The IIHS 
believes the rules must require a 14-hour minimum off-duty time after a 
driver has driven in the time period midnight through 6:00 a.m.; it 
bases this comment on Miller (1993). In a meeting on September 23, 
1998, IIHS and National Safety Council officials came to the FHWA to 
discuss various HOS concerns. At that meeting, IIHS recommended a 
minimum 14-hour off-duty period, citing Lin et al. (1994, 1993), Jones 
and Stein (1987, 1989), Frith (1994), Saccomanno et al. (1996), NTSB 
(1995), and Summala and Mikkola (1994). IIHS provided copies of these 
studies and the FHWA/FMCSA filed them in the docket along with a 
summary of the meeting.
    The American Trucking Associations, Inc. (ATA) and Landstar 
Systems, Inc. support 10 hours per day off duty, also citing Wylie, 
C.D. et al. (1996). The International Brotherhood of Teamsters (IBT) 
recommends 9 hours off duty per day citing NTSB, (1995), while the 
National Sleep Foundation (NSF) presented a Department of the Army 
aviation study, Caldwell, J. (1997) and Belenky, G. (1994), suggesting 
that aviators obtain an average of 7 hours of sleep during a 24-hour 
period.
``Re-start'' Provisions (e.g., 24 Hour, 36 Hour, etc.)
    The ATA believes the FMCSA should implement a re-start provision 
and offered Woodward and Nelson (1974) and Krueger et al. (1987) to 
support its assertion that a 24-hour ``re-start'' after 36 to 48 hours 
of high workload is desirable.
Sleeper-Berth Use
    The California Highway Patrol (CHP) believes Wylie et al. (1996) 
suggest that sleeping facilities, other than sleeper-berth equipment 
meeting the requirements of 49 CFR 393.76, would make enforcement 
difficult by requiring officers to determine whether alternate 
locations qualify as adequate sleep/rest locations.
    The AHAS believes short sleeper-berth periods should not be allowed 
to count toward minimum off-duty requirements and bases that comment on 
Wylie et al. (1996). AHAS recommends that crediting split sleeper-berth 
periods toward the 8-hour off-duty period be prohibited, also based on 
its interpretation of Wylie et al. (1996).
    The ATA and the Distribution and LTL Carriers Association (DLTLCA) 
support the continuation of sleeper-berth-type provisions, i.e., split 
sleep periods or dividing a consecutive off-duty period into two or 
more smaller periods with duty in between, citing Chiles (1968). The 
National Sleep Foundation (NSF) supports the continuation of sleeper-
berth-type provisions, basing its position on work by Caldwell, J. 
(1997), Belenky, G. (1994), Bonnet (1994), and Dinges and Broughton 
(1989). The NTSB, citing research by Dinges (1989), and the IBT, citing 
NTSB (1995), however, oppose sleeper-berth-type off-duty hours.
    The Owner-Operator Independent Driver's Association (OOIDA) 
surveyed its members before it responded to the ANPRM. Its study, OOIDA 
(1997), shows 28 percent of its members split their off-duty time. A 
similar ATA survey, ATA (1997), shows that most driving teams split 
their sleep periods into 4 hours on duty and 4 hours off duty. The 
OOIDA survey shows that single drivers average 3 hours 52 minutes for 
the first sleeper berth period and 4 hours 20 minutes for the second.
    The ATA survey shows 5 percent of team drivers use the sleeper 
berth while the CMV is in operation. The OOIDA survey shows a figure of 
11 percent for team drivers, and also reports that these team drivers 
obtain an average of 5 hours 38 minutes driving and 5 hours 14 minutes 
of rest in each off-duty sleeper-berth period.
Rest Breaks or Napping
    The AHAS and the ATA recommend that the regulations require the 
practice of taking naps during long trips. AHAS cited Wylie et al. 
(1996) and ATA cited its own survey, ATA (1997).
On-Duty Time
    The OOIDA believes findings in Wylie, et al. (1996) support its 
recommendation for the FMCSA to allow a maximum of 15 hours per day on 
duty. ROCOR Transportation favors between 14 and 15 hours maximum on 
duty time, and also cites Wylie, et al. (1996). The ATA and Landstar 
Systems, Inc. recommend 14 hours on duty time with no distinction 
between the driving and on-duty times and bases its recommendation on 
Wylie, et al. (1996) and Harris, et al. (1972).
Driving Time
    The CHP believes Wylie et al. (1996) shows that 10 hours driving 
time is not

[[Page 25551]]

excessive if managed properly. Citizens for Reliable and Safe Highways 
(CRASH) recommends a maximum of 10 hours driving time in a 12-hour on-
duty time period, citing Fuller (1983), Lin et al. (1993), and Jones 
and Stein (1987). In the meeting on September 23, 1998, discussed above 
under the subheading ``off duty time,'' IIHS also recommended a maximum 
10-hour driving period, citing the same studies, Lin et al. (1994, 
1993), Jones and Stein (1987, 1989), and three additional studies, 
Frith (1994), Saccomanno et al. (1996), NTSB (1995), and Summala and 
Mikkola (1994). An IIHS official also stated during that meeting that 
the IIHS could accept an increase in driving hours if the IIHS could be 
assured the drivers would be afforded more hours off duty.
Weekly On-Duty Limits
    The OOIDA cites Wylie et al. (1996) as support for its assertion 
that the weekly on-duty limit be eliminated. Vallenduuk Tissingh 
Advocaten (VTA) of the Netherlands cited a European regulation and 
contended the FMCSA should adopt the European example of allowing 84 
hours on duty while limiting driving up to 56 hours. The ATA believes 
Wylie, et al. (1996) and Mackie and Miller (1978) support the current 
60- and 70-hour rules.
Do Wage Methods Affect HOS?
    The AHAS favors elimination of the section 13(b) exemption to the 
Fair Labor Standards Act and cites NTSB (1995), NTSB (1990), and Braver 
et al. (1992) as the basis for its assertion. The NTSB believes a link 
between payment by the mile and HOS violations is shown by its 1995 
research study. CRASH cites Beilock (1995) as support for its 
suggestions that the FMCSA should incorporate compensation systems 
allowing drivers to generate reasonable and adequate incomes while 
upholding the law. VTA cites University of Groningen research (1986) 
showing drivers in Europe who are paid monthly salaries have fewer HOS 
violations than drivers paid by distance traveled.
On-Board Monitoring Devices
    The IIHS cites its own research study, IIHS (1995), as well as 
Stein (1994) and Gronemeyer (1994), as the basis for its recommending a 
requirement for on-board monitoring devices. The NSF cites Braver et 
al. (1992), NTSB (1990), and IIHS (1995) as the basis for requiring 
such devices. The ATA cites Penn and Schoen (1995) in its assertion 
that on-board monitoring devices should not be required. Six comments 
provided cost estimates, although only two of the six comments cited 
cost estimates based on studies, specifically IIHS (1995) and Penn and 
Schoen (1995). The other four cost estimates came from the Log Truckers 
Association of Montana, John Cheeseman Trucking, Inc., ROCOR 
Transportation, and Rockwell Transportation Electronics. ROCOR stated 
it had 2,000 units in use costing about $3,000 per unit. It estimated a 
higher cost for smaller motor carriers. Though the other commenters did 
not state the basis for their estimate, the FMCSA presumes they are 
based on past business decisions or marketing and sales information.
Types of Motor Vehicles Included
    The OOIDA cites Wylie et al. (1996) in asserting that the driving 
time limits should be applicable only to motor vehicles over 4,537 kg 
(10,000 pounds). The OOIDA believes the FMCSA should not propose any 
new regulations defining ``driving time'' applicable to motor vehicles 
up to 4,537 kg, because it believes Wylie et al. (1996) found that 
hours of driving are not a strong or consistent predicator of observed 
fatigue.
Adverse Weather
    CRASH does not believe a driver should be allowed to continue to 
drive an extra two hours when the driver encounters adverse weather 
conditions after being dispatched, citing Fuller (1983), Lin et al. 
(1993), and Stein and Jones (1987). The OOIDA, on the other hand, cites 
Wylie et al. (1996) as support for its belief that the FMCSA should 
retain the ``adverse weather rule'' provision allowing drivers an extra 
two hours because, in such circumstances, drivers sometimes have 
difficulty finding adequate parking.
Bobtailing En Route
    The OOIDA believes that Wylie, C.D. et al. (1996) shows that 
drivers should be allowed to bobtail to motels and restaurants while 
off duty in the vicinity of en route stops. Bobtailing, in the context 
provided in question 17 of the ANPRM, means a single tractor CMV 
operating without a trailer coupled to it. (Bobtailing can also mean 
the operation of a straight truck in certain industries or parts of the 
country. The FHWA did not ask any specific questions regarding research 
data related to use of CMVs for travel to motels and restaurants while 
off duty in the vicinity of en route stops, although a regulatory 
interpretation currently allows the practice.)
Provisions Relating to Circadian Rhythms
    The AHAS cites Harris (1977), Hamelin (1980, 1981, 1987), Mackie 
and Miller (1979), Hertz and Eastham (1986), and Moore-Ede et al. 
(1988) as the basis for its assertion that any new FMCSA regulations 
must do the following three things:
    1. Prevent rapidly rotating shifts.
    2. Avoid scheduling that results in a long driving day ending deep 
within the early-morning circadian trough.
    3. Limit the number of consecutive hours that CMV drivers must 
drive if assigned to nocturnal driving.
    The IIHS, NTSB, and the NSF believe a circadian-based provision 
should be proposed, citing Moore-Ede et al. (1986), Gold et al. (1986), 
McDonald (1984), Tepas and Monk (1987), Caldwell (1997), and Akerstedt, 
T. (1995), but they offered no specific suggestions.
Restriction On Early-Morning Driving Time
    The ATA cites Wylie et al. (1996) as the basis for its assertion 
that the FMCSA should not restrict early-morning driving time. The IIHS 
and NSF cite Rosa and Colligan (1988), Kogi and Ohta (1975), Caldwell 
(1997), and Akerstedt, T. (1995) to support their belief that early-
morning driving time restrictions should be proposed.
Exemptions, Variations, and Customizations
    The AHAS opposes all exemptions from HOS regulations that could 
allow longer daily driving hours, shorter off-duty rest periods, or 
other relief that fails to incorporate the same health and safety 
protections afforded long-haul drivers. The AHAS cited NTSB (1995) in 
support of its argument. The AHAS contends that the FMCSA has no 
research of record on the following topics: comparisons of long-haul 
versus short-haul fatigue-related crashes; sleep quality; and other 
considerations of alertness or performance deficiencies associated with 
differences in acute or chronic sleep deprivation, including 
differences identified from a comparison of long-haul and short-haul 
CMV driving.
    The Associated General Contractors of America (AGCA) submitted AGCA 
(1997) showing that construction industry drivers have short trips and 
a short seasonal operation period. The AGCA believes this study 
supports its contention that its member firms are not engaged in long-
haul truck driving and should therefore be exempt from any HOS 
regulations. The National Ready Mixed Concrete Association (NRMCA)

[[Page 25552]]

believes that Wylie, et al. (1996) support that industry's request for 
an HOS exemption. The NRMCA also submitted its own survey (NRMCA 
(1997)) stating that drivers in its industry drive CMVs only 44 percent 
of their [working] time, that they average 22 miles per round trip and 
they drive an average of 21,024 miles per year.
    The Utility Solid Waste Activities Group and Virginia Electric and 
Power Company argue that the findings of Bowen, V. (1996) support the 
need for a utility industry exemption. They submitted both the study 
and a petition for an exemption.
Consignor and Consignee Responsibility and Accountability
    The OOIDA cites OOIDA (1997) as the basis for its support for heavy 
fines for consignors and consignees responsible for drivers violating 
the regulations.
Loading and Unloading Freight
    The AHAS cites Wylie et al. (1996) to show loading and unloading 
freight should be classified as on-duty time. It argues that 
eliminating such duties from a driver's responsibilities would justify 
reduction of total driving and duty time from 15 hours to a more 
reasonable period of time, such as 12 hours.
    The OOIDA cites OOIDA (1997) showing that 42 percent of responding 
drivers record loading and unloading time as off duty. The same survey 
shows 74 percent would record such time as on duty-not driving if the 
drivers were paid a reasonable amount for such services.
Consignor and Consignee Delays
    The OOIDA (1997) survey shows 80 percent of responding drivers are 
not paid for time waiting while delayed by consignors and consignees. 
Seventy-three percent of responding drivers record consignor and 
consignee delays as off-duty time, while 66 percent would record such 
time as on duty-not driving if they were paid a reasonable amount for 
such delays.
Performance-Based Regulation Feasibility
    The ATA believes the FMCSA should propose a program for HOS 
performance similar to the fatigue management demonstration project 
undertaken in Queensland, Australia and discussed in a paper authored 
by Gary Mahon of Queensland Transport. The ATA noted in its comments 
that the province of Alberta, Canada was also considering a fatigue 
management demonstration project. Alberta and Queensland have ongoing 
pilot programs within limited geographical areas. According to a 
discussion paper on the Queensland program that the FMCSA has received:

    The Queensland Fatigue Management Program (FMP) is designed to 
control all the factors that cause fatigue. The FMP takes into 
account more than just the number of hours spent driving. FMP 
operators enter into an accreditation agreement with Queensland 
Transport. This agreement sets out the conditions of the program and 
allows operators to operate outside the Truck Driving Hours 
Regulations. This is the incentive to take part in the program. The 
FMP Standards attempt to assist the operator with managing all of 
the factors that impact fatigue including: scheduling, rostering, 
driver health, workplace conditions, fitness for duty, time off, and 
management systems to operate the FMP etc. In order to operate under 
the FMP, the operator must develop and implement management systems 
and procedures that will allow them to meet the standards and to 
achieve the level of performance that is required. Enforcement 
occurs when operators fail to reach those standards and are 
disaccredited (sic) from the program.\1\
---------------------------------------------------------------------------

    \1\ Abstract, Australian initiatives in managing fatigue in 
transportation, by Assoc. Prof. Laurence Hartley, Institute of 
Research in Safety & Transport, Murdoch University, South Street, 
Western Australia, Australia, in the Truck Safety Symposium 99, 
Steering Committee, June 3, 1999.

    The IIHS does not believe fitness-for-duty and other performance 
measurement devices have been adequately tested and validated. They 
suggest review of Williamson et al. (1996), Mausner and Braun (1974), 
and Lilienfeld and Stolley (1994) to avoid false negatives and false 
positives, while also accounting for environmental variables such as 
traffic congestion and weather conditions, before opting for 
performance requirements.
    The NSF also does not believe fitness-for-duty and other 
performance measurement devices are feasible and operationally 
practical at the present time. The NSF suggests review of Dinges 
(1995), Horne and Reyner (1995), Valley and Broughton (1983), and 
Dinges and Kribbs (1991) before requiring ``drowsy driving detection 
devices'' and that such devices may lead to a false sense of security 
for those drivers who would rely solely on them to detect declining 
alertness. The NSF believes one does not have to fall asleep to be a 
danger to oneself and others.

VI. FMCSA Response to Comments and Research Cited

    One of the foremost goals of this rulemaking is to reduce the 
number of CMV drivers and others killed and injured in crashes. In 
formulating new rules, the FMCSA must consider persuasive evidence and 
reliable data. Most CMV drivers and other commenters did not have 
access to research concerning technical or economic aspects of fatigue, 
alertness, off-duty, on-duty, or driving time. The agency appreciates 
all the information provided by the responders, and the serious 
comments reflecting both experience and interpretations of the many 
studies, research reports, and surveys cited. It would not be useful to 
take issue with the information and comments provided in the abstract. 
Rather, the FMCSA reviewed these issues and comments in the context of 
developing its proposal. The remainder of this preamble will focus on 
those issues in relation to the development of the proposal. The 
agency, however, has not ignored the concerns of drivers and other 
commenters whose personal experiences have led them to support changes 
to the HOS regulations.
Fatigue Management Programs or Plans
    Although the FMCSA is not proposing any regulations specifically 
dealing with Fatigue Management Programs or Plans, the agency is not 
ruling them out. There is still much to learn about such alternatives 
to prescriptive HOS regulations, and the FMCSA has been very interested 
in the experience of other countries in their implementation. Within 
the DOT, moreover, the Federal Railroad Administration is initiating 
fatigue management programs for selected railroads. As suggested by the 
IIHS and the NSF above under the discussion of Performance-based 
Regulation Feasibility, more study is needed before such alternatives 
should be incorporated in the regulation of commercial highway 
operations.
    The FMCSA continues to study the technology it believes is required 
to support such programs. Projects are presently under development to 
test at least two forms of technology in regular operations during this 
fiscal year. The agency believes that careful testing within the scope 
of pilot demonstration programs authorized under 49 CFR Part 381 (49 
U.S.C. 31136[e]) would be the best way to investigate the feasibility 
of this promising approach to performance-based regulation in this 
area.

VII. Regulation Development Process

A. Research Findings

    In developing this section, the FMCSA has relied on a large body of 
research dealing with work, fatigue, alertness, sleep cycles and other 
related matters. The FMCSA reviewed over 150 research studies and other 
documents, many of which were referred to by docket commenters or 
provided as attachments to docket comments. Many

[[Page 25553]]

of the reviewed documents reported on research conducted on motor 
carriers and CMV drivers. Others, such as studies on shiftwork, sleep 
and performance, and the physiological nature of sleep, were judged 
relevant to the issue of CMV driver safety, even though they were 
conducted in other operational settings or in laboratory environments.
    It must be noted that the conclusions drawn from this research were 
done from the perspective of commercial highway transportation. 
Although there are industries seeking exemptions from the HOS rules 
citing research studies in the docket concerning the performance of 
their drivers, e.g., utility, construction, and motorcoach industries, 
the FMCSA could find no research studies showing these drivers do not 
suffer from fatigue, do not need sleep daily, and have fewer fatigue-
related crashes than other truck and bus drivers subject to FMCSA 
jurisdiction.
    For example, as stated above, the Utility Solid Waste Activities 
Group and Virginia Electric and Power Company provided the Bowen (1996) 
study stating it supports the need for an utility industry exemption. 
Motor carriers participating in the study were a mix of FMCSA-regulated 
and non-regulated public utilities. The study used a sample of drivers 
who accumulated nearly five million miles of driving. Ninety crashes 
were reported (90 divided by 5 million miles = 18 crashes per million 
vehicle miles). The author relates (on page 15 of the report) ``Based 
on this limited exposure [1731 hours of driving time reported], it 
seems that after 80 hours on duty [in a 7 day period], the accident 
rate rises precipitously.''
    The FMCSA notes that, although the Bowen study tracked exposure by 
both driving time and distance, there were no statistics presented 
aside from purely descriptive graphs and tables. No significance tests 
were discussed. No baseline data was presented. This concerns the FMCSA 
given the extremely high reported crash rate. The data was not analyzed 
to assess time-of-day effects. Bowen did not report the highway classes 
where the travel took place and this factor was not used to 
discriminate among portions of the data. The FMCSA believes that 
Bowen's study does not support that the utility industry's request for 
an exemption from the HOS rules.
    It also must be noted that the conclusions drawn from all the 
research may not be consistently applicable throughout the 
transportation modes. The FHWA convened a panel of representatives of 
several agencies within the DOT to review the draft proposal from the 
perspective of the transportation modes regulated by those agencies. 
Although those representatives took no issue with any of the 
conclusions drawn from the research cited so far as truck 
transportation was concerned, they noted that in some cases, due to the 
difference in operating conditions and required adherence to various 
laws and treaties, the conclusions may not translate directly to other 
modes. Some examples are offered in the discussions that follow.
    Studies germane to this NPRM and relied upon by the FMCSA are 
discussed in An Annotated Literature Review Relating to Proposed 
Revisions to the Hours-of-Service Regulation for Commercial Motor 
Vehicle Drivers, Freund, D.M., Office of Motor Carrier Safety, November 
1999, Publication No. DOT-MC-99-129. That review, as well as a copy of 
each research study it discusses, has been placed in the docket.
    The review sets the stage for the problem assessment with chapters 
covering research on the contribution of operator fatigue to highway 
vehicle crashes, in general, and the CMV driver fatigue contribution to 
CMV crashes, in particular. The review then focuses on research into 
the causes of drowsiness--lack of sufficient, quality sleep--and 
includes a chapter on the effects of sleep deprivation on alertness and 
performance, followed by one on naps as a sleep deprivation 
countermeasure. The review moves forward to address general 
considerations concerning HOS regulations, working conditions, and 
regulatory compliance before focusing on setting of schedules, shift 
rotation, and the special case of multi-day shifts. The final three 
chapters address outcomes of hours-of-service pilot tests and waivers, 
operational and performance models, and technological approaches to CMV 
driver alertness management.
    As O'Neill and his co-authors of ``Understanding Fatigue and Alert 
Driving,'' a training course developed by the ATA in partnership with 
the FHWA, point out, ``Fatigue has several causes: (from) inadequate 
rest, sleep loss and/or disrupted sleep; from stress; from displaced 
biological [circadian] rhythms, excessive physical activity such as 
driving or loading [cargo], or from excessive mental or cognitive 
work.'' (ATA, p. 8).
    The term ``circadian'' comes from the Latin words circa dies, or 
``about a day,'' i.e., 24 hours. Circadian rhythms become displaced as 
a result of schedule irregularity that affects the time when people 
sleep. Adverse effects of sleep deprivation can occur when the 
opportunity to take sleep is curtailed, when people try to obtain sleep 
during periods of the day when their systems are in a more-active 
physiological state (such as during the mid-morning and early evening), 
or when environmental conditions are not conducive to obtaining sleep. 
The adverse effects include slower reaction times, poor and variable 
responses, deterioration of judgment, vigilance, and attention, and 
alertness. Loss of sleep can also produce subjective feelings of 
tiredness, loss of motivation, and deterioration of mood. (ATA, p. 7).
    On the other side of the coin, long working hours (especially when 
the work demands vigilance and concentration) can contribute to fatigue 
and cause people (by their own choice, or as directed by others) to 
reduce the time they take for sleep. The converse of long duty hours is 
a shorter period of time remaining in a 24-hour period for sleep.
    The maintenance of schedule regularity was an element of the 
original HOS regulations issued by the ICC. Until 1962, the HOS 
regulations limited driving and on-duty time in a 24-hour period. 
Although the on-duty time limit of 15 hours and the 8-consecutive-hour 
off-duty period were set in 1941, it is quite possible the actual off-
duty period may have been slightly longer to comply with that 24-hour 
period. Thus, the 1962 rule change that introduced the requirement for 
driving and on-duty periods to be separated by an 8-hour off-duty 
period may have had two unintended effects: (1) It allowed drivers to 
be placed on a schedule that was irregular from a circadian standpoint 
and (2) it decreased the actual daily off-duty time provided to them.
    As several researchers point out, there is a dual predicament with 
night workers: not only are they required to perform tasks during the 
time of day they are least able to from physiological and cognitive 
standpoints, they must sleep during the time of day their bodies are 
least receptive to it.

Recommendations From the Research

    The research reviewed during the FMCSA's process of developing this 
NPRM suggests five main areas of consideration applicable to CMV 
drivers: (1) The work day should be more regular; (2) drivers should be 
afforded more opportunity for daily and weekly sleep; (3) working 
hours, including hours spent driving in any duty shift, should be 
limited to no more than 12 hours; (4) the time of day when

[[Page 25554]]

driving is performed or, conversely, when sleep may be obtained, should 
be considered; and (5) non-compliance by drivers and motor carriers 
increases the potential for adverse safety outcomes. Although not using 
identical terms, most of the comments also suggested these areas for 
prime consideration.
1. The Work Day Should Be More Regular: Maintenance of Circadian Rhythm
    It has been well established that the hours of the day and night 
are not equivalent from the perspective of human alertness and safe, 
efficient, and productive performance of workplace tasks, Wylie, et. 
al. (1996); Brown, I.D. (1994); Campbell, K. (1988); Folkard, S. 
(1997); Hildebrandt, G., Rohmert, W., & Rutenfranz, J. (1974); Wylie, 
D. (1998); Akerstedt, T. (1991); Hildebrandt, G. (1976); Rutenfranz, 
J., Knauth, P., & Colquhoun, W. (1976); Vidacek, S. et al. 
(1986); Williamson, A.M. & Sanderson, J.W. (1986); O'Neill, et al. 
(1999); Akerstedt, T. (1997). Humans are biologically programmed to 
operate on a daily cycle of just over 24 hours. The cycles of daylight 
and darkness act as synchronizers (see Duffy, J.F. et al. (1996)). If 
people suddenly shift their wake-sleep cycles (e.g., when traveling 
across time zones), they must adjust to the new ones and become re-
synchronized. This takes about one day per time zone crossed.
    Many work environments must be staffed on a 24-hour basis, so 
workers are scheduled in shifts. Shiftwork can introduce another 
problem. A nightshift worker, required to sleep during periods of 
higher physiological activity and to be awake during periods of lower 
activity, may have difficulty adjusting to an inverted wake-sleep 
schedule and can accumulate a sleep debt that can seriously affect the 
level of performance and safety. Even when a consistent schedule is 
established and wake-sleep patterns are stabilized, it is generally 
recognized that physiological and performance levels reach the low 
point of their cycles in the hours after midnight and in the early to 
mid-afternoon. Therefore, night workers are most susceptible to the 
dual predicament mentioned above. Unless the night shift worker is able 
to obtain sufficient restorative sleep on a regular basis, the risk of 
substandard and potentially unsafe performance substantially increases.
2. The Driver Should Be Afforded More Opportunity for Daily and Weekly 
Sleep
    Daily sleep. Each driver should have an opportunity for eight 
consecutive hours of uninterrupted sleep every day. The current rules 
require a minimum of eight consecutive hours off. Many motor carriers 
do not provide drivers more than the minimum 8 hours off duty, although 
the present regulations certainly allow them to do so, and many drivers 
accept tight schedules without objection. These drivers may have to 
commute home, eat one or two meals, care for family members, bathe, get 
physical exercise, and conduct other personal activities, all within 
their 8-hour off-duty period. The current rules also allow the 8-hour 
off-duty period to be split into two periods when rest is taken in a 
sleeper berth. One of the two periods may be as short as 2 hours.
    To afford the driver an opportunity to obtain a minimum period of 8 
hours to sleep, the research shows that the off-duty periods need to be 
increased. Nine hours off duty was originally required in 1937. For 
various reasons, organized labor objected to most of the original 
regulations, and upon further deliberation, the ICC reduced the 9-hour 
off-duty period to 8 hours in each 24 hours. 6 M.C.C. 557, July 12, 
1938.
    Several studies strongly suggest the FMCSA should require an even 
longer consecutive off-duty period than the 9 hours the ICC required in 
its original 1937 HOS regulations. To provide additional off-duty 
periods within the 24-hour cycle for necessary personal activities and 
rest, docket comments and research strongly suggest the need for total 
off-duty periods from 10 to 16 hours. Studies in aviation (Gander, et 
al. (1991)), rail (Thomas, et al. (1997), Moore-Ede et al. (1996)), and 
maritime environments (U.S. Coast Guard Report No. CG-D-06-97, U.S. 
Coast Guard (1997)(MCS 68/INF.11)) illustrate the same point. Studies 
of truck drivers, including Lin et al. (1993) and McCartt, et al. 
(1995), point specifically to increased crash risk and recollections of 
increased drowsiness or sleepiness after fewer than nine hours off-
duty.
    Studies performed in laboratory settings, as well as studies 
assessing operational situations, explore the relationships between the 
sleep obtained and subsequent performance (Dinges, D.F. & Kribbs, N.B. 
(1991); Bonnet, M.H. & Arand, D.L. (1995); Belenky, G. et al. (1994); 
Dinges, D.F. et al. (1997); Pilcher, J.J., & Hufcutt, A.I. (1996); 
Belenky, G. et al. (1987). The results of the studies can be summarized 
simply: a person who is sleepy is prone to perform more poorly on tasks 
requiring vigilance and decisionmaking than a person who is alert.
    The time when sleep is taken is important as well because sleep 
fragmentation can be a byproduct of the timing or the quality of the 
sleep environment (Bonnet, M.H. (1994); Roehrs, T., Zorick, F., & Roth, 
T. (1994); Mitler, M.M. et al. (1997); Wylie, D. (1998)).
    It is virtually impossible to get an adequate amount of sleep when 
time for commuting, meals, personal errands, and family/social life is 
subtracted from an 8-hour off duty period, as the ICC found in 1937. 
Wylie et al. (1996), for example, showed that drivers in the study 
obtained nearly 2 hours less sleep per principal sleep period than 
their stated ``ideal'' (5.2 hours versus 7.2 hours). However, many of 
them did not manage their off-duty time efficiently or effectively to 
obtain sufficient sleep. All commuting, meals, personal hygiene, social 
interaction within the study setting, the study protocol itself, and 
sleep had to fit into their off-duty periods. The U.S. and Canadian 
drivers participating in that study operated under schedules set up to 
allow driving up to the maximum time periods permitted under U.S. or 
Canadian regulations. The drivers returned to regular work-reporting 
locations at the end of a shift. The elapsed time between beginning and 
ending a shift included many ancillary duties and other activities in 
addition to driving so that time available for sleep was generally 
limited to 8 hours. Participants who drove a regular 10-hour daytime 
schedule every day spent 5.8 hours in bed and 5.4 hours asleep. Study 
drivers who ran a regular 13-hour schedule starting in the daytime 
spent 5.5 hours in bed and 5.1 hours asleep. This was about 2 hours 
less than the drivers would have preferred to sleep. The time-in-bed 
similarities between the 13-hour and 10-hour daytime drivers was likely 
due primarily to their proximity to the sleep center--the 13-hour 
drivers had to commute less than 10 minutes from their home terminal to 
the sleep laboratory and 10-hour drivers had to commute between 20 to 
30 minutes. (All times cited are for the principal sleep periods, and 
do not include the naps that some drivers took during their work 
shifts.) Also, the drivers in both of these daytime-driving groups were 
able to obtain their principal sleep during optimal times of the day, 
starting in late evening and ending in the early morning.
    Other studies have found that the amount of sleep obtained by CMV 
drivers is variable and often short. Arnold, P. et al. (1996), 
interviewed over 700 CMV drivers in the state of Western Australia, 
which has no formal HOS regulations. Of the drivers interviewed, about 
5 percent reported having no sleep on one day during the prior week, 
12.5 percent reported

[[Page 25555]]

obtaining less than 4 hours of sleep one or more work days in the prior 
week, and about 30 percent reported obtaining less than 6 hours of 
sleep on at least one work day. Prior to commencing their current 
trips, about two-thirds of drivers had between 6 and 10 hours of sleep, 
but about 20 percent had less than 6 hours of sleep (pp. 27-28). 
VanOuwerkerk, F. (1988) in a study based on interviews with 650 
international European Economic Community (EEC) drivers, noted that 
drivers reported a median sleep time of 6.7 hours and a median rest 
period of 7 hours. They reported that the ``minimum rest time 
[reduction from 11 hours to eight hours not more than two times per 
week, as permitted under the current EEC Council Directive] has become 
the rule'' as far as both drivers and enforcement officials were 
concerned.
    In their survey of 511 medium-and long-distance truck drivers in 
the United States, Abrams, C., Shultz, T., & Wylie, C.D. (1997), found 
no statistically significant differences in the stated rest needs among 
the categories of drivers (owner-operator, company driver, regular 
route, irregular route, solo, team): on an average day, a driver 
reported needing an average of 7 hours of sleep. There was a slight 
difference between union and non-union drivers; the former reported 
needing about 31 minutes less sleep. Just over 90 percent of the 
drivers reported that they usually used a sleeper berth while on the 
road. Almost three-fourths of the drivers reported taking their sleep 
in a single period, spending eight to nine hours in the berth. Just 
over two-thirds of the drivers who split their sleeper berth period 
reported usually spending 4 to 5 hours in the berth during one period.
    The time of day when sleep is taken can affect how long the sleep 
period lasts. Grandjean, E. (1982), cited several surveys of European 
shiftworkers. ``It appeared that daytime sleep was distinctly shorter 
than night sleep the workers took on their rest day. The average length 
of sleep in the daytime was six hours, whereas on the rest day the 
average varied between six and twelve hours, with longer sleep on the 
second of the two rest days than on the first'' (pp. 248-249). 
Grandjean cites Lille's term ``sleep debt'' to describe the longer 
sleep periods the nightshift workers took on their two between-shift 
rest days and noted that a single night's sleep was apparently 
insufficient to ``pay it back.''
    Other modal administrations within the U.S. DOT have also found 
similar findings with respect to their regulated industries. An 
aviation study documented how commercial flight crews organize their 
sleep during layovers on long-haul (trans-oceanic) trips involving the 
crossing of multiple time zones. Duty periods on the trips that were 
studied in Gander et al. (1991) averaged 10.3 hours. The duty periods 
alternated with layovers averaging 24.8 hours, and the crew members 
typically took their sleep in two periods. The authors noted that the 
sleep/wake patterns were complex, with an average pattern of sleep and 
wakefulness of 19 hours awake/5.7 hours asleep/7.4 hours awake/5.8 
hours asleep. The flight crews also reported naps on the flightdeck and 
during their off-duty periods. The authors stated: ``This study clearly 
documents that, in scheduled commercial long-haul operations, there are 
physiologically and environmentally determined preferred sleep times 
within a layover. The actual time available for sleep is thus less than 
the scheduled rest period.'' (p. 1)
    A railroad study compared two schedules, one involving fast-
backward rotations, the other, slow-backward rotations. The Thomas et 
al. (1997) study participants received a crew call two hours prior to 
going on-duty, as railroad crews do generally in their normal 
operational workdays. Under the fast-rotating schedule, the engineers' 
sleep duration averaged 4.6 hours during a 9.3-consecutive-hour off-
duty period. Under the slow-rotating schedule, the average sleep 
duration was 6.1 hours during a 12-consecutive-hour off-duty period. 
(The minimum off-duty time required was 8 consecutive hours if the 
engineer had less than 12 hours on duty.)
    Locomotive engineers participating in a survey (Moore-Ede et al. 
(1996)) were asked several questions concerning sleep needs and sleep 
obtained. The following information is drawn from Questions 67 through 
70 of the Stage II Volunteer Survey, Overall Totals. To ``feel alert 
and well rested,'' 10.8 percent stated they needed 5 or fewer hours; 
35.1 percent, 6 hours of sleep; 29.7 percent, 7 hours; and 24.3 
percent, 8 or more hours. On average, the engineers said their actual 
sleep taken on days they worked averaged: fewer than 5 hours, 21.6 
percent; 5 hours, 16.2 percent; 6 hours, 21.6 percent; 7 hours, 29.7 
percent; and 8 or more hours, 10.8 percent. On days off, the engineers 
stated they received: 7 hours, 37.8 percent; 8 or more hours, 43.2 
percent; all other amounts 6 hours or less, 18.9 percent. During 
vacations, sleep times averaged: 35.1 percent, 7 hours; 51.4 percent, 8 
or more hours; all other amounts 6 hours of less, 13.5 percent.
    A study was conducted to quantify the nature and extent of fatigue 
in mariners in the U.S. Coast Guard's ``Fatigue and Alertness in 
Merchant Marine Personnel: A Field Study of Work and Sleep Patterns,'' 
Report No. CG-D-06-97. Data in the form of work and sleep logs were 
collected for periods from 10 to 30 days from 141 mariners on eight 
different ships involved in U.S. Pacific intercoastal trade. Among the 
findings: average sleep duration at home was 7.9 hours while average 
sleep duration at sea was 6.8 hours; watchstanders slept less and rated 
their sleep to be of lower quality compared to command personnel or 
day-workers; and the work days of watchstanders are longer than for 
command and day-work personnel. The researchers also analyzed what they 
termed ``critical fatigue indicators'': the proportion of 24-hour 
periods during which total sleep was less than four hours, the 
proportion of alertness self-assessments of 3 or fewer recorded in the 
sleep log, and the proportion of sleep latencies (time between going to 
bed and falling asleep) of five minutes or less as recorded in the 
sleep log. Watchstanders fared worse than command or daywork personnel, 
and watchstanders on the 4-8 watch had a considerably higher incidence 
of sleep durations under 4 hours in a 24-hour period. The report 
concluded: ``The data clearly portray that risk factors for fatigue are 
present in maritime work schedules. The solution to this problem 
involves providing the opportunity for a longer continuous rest period, 
and motivating mariners to take advantage of that rest period for a 
single, uninterrupted sleep. A review of shipboard operational 
practices may identify various means to provide longer continuous rest 
periods and other approaches to fatigue reduction.'' (p. 6)
    Weekly sleep. For weekly off-duty periods, the research indicates 
that to negate the effect of accumulated week-long sleep deprivation 
and restore alertness to the human body it is necessary to have at 
least two consecutive nights off-duty that include the periods from 
midnight to 6:00 a.m. For long-haul CMV drivers, this ``weekend'' 
(i.e., a period to permit recovery from cumulative fatigue, not 
necessarily falling on a Saturday and Sunday) should be up to 56 hours 
long, but could be reduced to 32 hours as long as that period included 
two nights covering two periods from midnight to 6:00 a.m. The research 
suggests that drivers may need even more nights off duty if they have a 
severe sleep deficit.
    This may be a good example where the science would not change, but

[[Page 25556]]

where the same provisions cannot be provided in another transportation 
mode without creating another safety problem. It may not be possible, 
for instance, to have an ocean ship in a port for each ``weekend'' 
recovery period, and everyone could not be provided two consecutive 
nights off each week while the ship is away from port. CMV traffic is 
much more flexible.
    In his 1987 study of European heavy-goods-vehicle drivers, Hamelin 
suggests that the risk of an accident might be more dependent on 
cumulative fatigue than on the short periods of work time prior to a 
crash noted on the accident reports (the forms required an entry of 
time since the last stop, rather than the time since the beginning of a 
trip). Hamelin computed accident risk rates according to the time of 
day, the time on task, and whether the drivers were in the 
``Transport'' or ``Other'' occupational categories. For all drivers, 
the risk rate was nearly double (1.82 times baseline) after 11 hours of 
work. Hamelin found for the category labeled ``Other'' drivers, who had 
worked over 11 hours, it was over four times as high during the period 
8:00 p.m. and 7:00 a.m.
    In a study of driving patterns used by a U.S. less-than-truckload 
motor carrier, Jovanis, P. et al. (1991) also noted increased crash 
risk associated with long driving times over two or more days of a 
week. The Society of Automotive Engineers, Inc.'s ``Truck and Bus 
Industry Glossary,'' February 1988, No. SP-88/732, defines ``less-than-
truckload (LTL)'' as ``a quantity of freight less than that required 
for the application of a truckload [TL] rate.'' Jovanis and his co-
authors noted, ``The two patterns with the highest risk of an accident 
were those that contained heavy driving during the prior three days and 
consisted of driving from 3:00 p.m. to 3:00 a.m. (Pattern 1) and from 
10:00 p.m. to 10:00 a.m. (Pattern 8). The lowest risk was associated 
with driving from 8:00 p.m. to 6:00 a.m. but with limited driving on 
the prior three days.'' (p. 27)
    Wylie et al. (1996) found that although some of the performance 
data did not show a clear-cut relationship to driving time (time on 
task), drivers' self-ratings did correlate significantly with time 
since the start of the trip and with the cumulative number of trips. 
``Thus, the self-ratings were not very good indicators of drowsiness, 
but they may have been indicative of increasing stress or compensatory 
effort that signaled fatigue or loss of alertness.'' (p. 5-11).
    Smiley, A. & Heslegrave, R. (1997) cited several scientific studies 
dealing with recovery time as a portion of their review of scientific 
literature on rest and recovery requirements. The context of the review 
was an assessment of the potential adequacy of a 36-hour cumulative-
fatigue-recovery provision that had been proposed by motor carrier 
industry groups to Transport Canada. Smiley and Heslegrave cited a 1967 
study by Lille suggesting that a single day off was insufficient for 
night workers to recover after a sleep debt accumulated over five days. 
Other studies they cited indicated a preference, in terms of recovery, 
for a three-day rest period compared to a two-day period after three 
12-hour night shifts. One example was a study (Hildebrandt et al. 
(1974)) that illustrated this advantage of two days and three days off, 
compared to one day off, in operator performance (locomotive engineers' 
missed multiple in-cab warning signals that resulted in automatic 
braking being triggered) and a 1994 literature review indicating that 
two nights of recovery sleep are usually sufficient to allow near full 
recovery after extended periods of sleep loss. Smiley and Heslegrave 
concluded that, ``nevertheless, although the available research is 
sparse, it is sufficient to raise concerns about a 36 hour reset that 
would allow drivers to accumulate up to 92 hours on-duty within a 
seven-day period, particularly for night driving.'' (p. 14)
    O'Neill, T. et al. (1999) studied drivers on long (14-hour) daytime 
duty schedules in a driving simulator. The drivers did not appear to 
have accumulated significant sleep loss during the study but their 
amount of measured sleep increased and their sleep latency decreased on 
their first off-duty days. The research conditions tested found ``the 
effectiveness of a full two nights and one day off (that is, `Friday 
night' to `Sunday morning' as a minimum safe restart period--about 32 
hours off duty) under the conditions tested.'' (p. 48)
    Griffin, G., et al. (1992) assessed potential outcomes of the 
FHWA's August 19, 1992 (57 FR 37504) NPRM, concerning HOS for CMV 
drivers, termed the ``24-hour restart'' provision. As discussed above 
in today's NPRM, the FHWA withdrew the proposal on February 3, 1993. 
The authors noted, ``The implications for safety are the most difficult 
to determine . . . a search for secondary accident data that would be 
useful in addressing the implications that the 24-hour rule would have 
on safety was made at the state and federal level. No data was 
identified that would be statistically valid . . .'' (p. 37)
    Rosekind, M.R. (1997) in a major aviation conference presentation, 
advised listeners to consider cumulative fatigue effects. ``It is 
important to maintain an optimal sleep opportunity every 24 hours and 
also address the potential for cumulative effects. Therefore, 
appropriate recovery time should be allowed per week (days or rolling 
hours). Scientific studies show that two nights of recovery sleep are 
typically needed to resume baseline levels of sleep structure and 
waking performance and alertness.'' (p. 7.6). Second, the driver should 
be afforded more opportunity for daily and weekly sleep.
3. Driving in Any Duty Shift Should Generally Not Exceed 12 Hours
    The research suggests that performance degrades and crash risk 
increases markedly after the 12th hour of any duty time during a work 
shift (Hamelin (1987); Brown (1994); Campbell (1988); Rosa and Bonnet 
(1993); Rosa (1991); Rosa et al. (1989); Harris and Mackie (1972); 
Mackie and Miller (1978); U.S. Army (1983); Transportation Research and 
Marketing (1985)). The studies by Campbell, Brown, and Transportation 
Research and Marketing focused on CMV crash cases; the other studies 
were performed in actual workplaces (industrial plants, in the case of 
Rosa's studies) and over-the-road CMV operations (U.S. Army and Mackie 
and Miller). Some recent research has suggested that naps can improve 
performance later in work cycles. The use of naps was not a factor 
explored in these earlier studies. This research finding, however, 
might not apply very well to other transportation modes, where duty 
needs may encompass more than is contemplated in the duty of driving 
CMVs. Such other duty needs and considerations might include: the 
restricted environment of airplanes, locomotives, and ships; the length 
of trips away from airports, harbors, and depots; and on-board 
airplane, locomotive, and vessel needs and emergencies.
4. The Time of Day When Driving Is Performed Should Be Considered
    Research suggests that there is a higher risk of fatigue-induced 
single-vehicle accidents at night, especially between midnight and 6:00 
a.m. For example, the following eight studies are representative of the 
research. Hamelin (1987) computed accident risk rates among drivers of 
heavy-goods vehicles according to the time of day, the time on task, 
and whether the drivers were in the ``Transport'' or ``Other'' 
occupational categories. For ``Transport'' and ``Other'' categories 
combined, the accident risk rate was

[[Page 25557]]

nearly double (1.82 times the baseline) after 11 hours of work. 
However, for the category ``Other Branch'' drivers who had worked over 
11 hours, it was over four times as high during the period 8:00 p.m. 
and 7:00 a.m.
    Blower & Campbell (1998) reported that about 20 percent of all 
fatal crashes and fatalities and 10 percent of all injuries involving a 
long-haul truck (tractor pulling at least one trailer) occur between 
midnight and 6:00 a.m. Crashes at night tend to be more severe, with 
about 435 injuries per thousand crashes between midnight and 6:00 a.m., 
compared with 320 injuries per thousand for the remainder of the day. 
There are about three times as many fatalities per thousand crashes 
from midnight to 6:00 a.m. Using exposure data classifying night as 
9:00 p.m. to 6:00 a.m., truck travel during that period is associated 
with a relative risk about twice that of the rest of the day.
    Kecklund and Akerstedt (1995) examined data for all accidents 
involving an injury and all truck accidents on Swedish motorways for 
the period 1987-1991. Risk ratios were computed against a baseline time 
period of 8:00 a.m. to 4:00 p.m. Single-vehicle accidents where alcohol 
was not a factor peaked at 4:00 a.m. at 13 times the baseline level. 
The risk of a fatal accident was 35 times the baseline level at 4:00 
a.m.; severe (27 times) and minor (19 times) injury accidents also 
peaked at that time. Risk ratios for overtaking-vehicle and oncoming-
vehicle accidents also peaked at 4:00 a.m., but the ratios were 
considerably lower (3-4 times). For trucks, single-vehicle accidents 
between 3:00 a.m. and 5:00 a.m. peaked at 3.8 times the baseline risk.
    Hildebrandt, G., et al. (1974) examined one month's records of 
approximately 15,000 locomotive engineers employed by the German 
Federal Railways. They reviewed records covering 2,238 automatic 
braking incidents and nearly 20,000 second-level warning signals. The 
authors studied the relative frequency of second-level warning signals 
and of the occurrence of automatic braking by time of day and by length 
of shift and found peaks of about 125 percent of the daily average 
automatic braking incidents taking place around 3:00 a.m. and 1:00 
p.m.-2:00 p.m. They found peaks in the activation of the acoustic 
signal at around 3:00 a.m. and 3:00 p.m. The authors concluded there 
exists a 12-hour period of variation in vigilance, superimposed upon 
the 24-hour circadian period.
    Jovanis, P., et al. (1991) studied several driving schedule 
patterns in a less-than-truckload motor carrier's ``pony express'' 
operation. In this type of operation, drivers make an outbound trip 
from the home terminal to another terminal, drop their trailer, pick up 
another trailer, and return to the home terminal at the end of a work 
shift. Cumulative driving hours ranged from 7.8 to 8.4 daily, while the 
drivers' daily cycle of on duty and off duty ranged from 22.3 to 23 
hours, indicating some circadian disruption. The highest daily risk was 
found to occur from 4:00 a.m. to 6:00 a.m. Elevated risk was found from 
midnight to 8:00 a.m. According to the authors, ``The two patterns with 
the highest risk of an accident were those that contained heavy driving 
during the prior three days and consisted of driving from 3:00 p.m. to 
3:00 a.m. (Pattern 1) and from 10:00 p.m. to 10:00 a.m. (Pattern 8). 
The lowest risk was associated with driving from 8:00 p.m. to 6:00 a.m. 
but with limited driving on the prior three days.'' (p. 27)
    Dinges, D.F. et al. (1997) studied young male adults under 
conditions of partial sleep deprivation (average of 5 hours of sleep 
obtained per night). They reported that the only statistically reliable 
subjective measure of time-of-day effects (out of several measurements 
used) was the Stanford Sleepiness Scale. However, four of the five 
objective performance measures showed statistically significant 
variations by time of day (tests were administered at 10:00 a.m., 4:00 
p.m., and 10:00 p.m.). One measure of vigilance and reaction time 
(psychomotor vigilance task) also showed significant variation across 
the days of sleep restriction. Dinges and his coauthors reported the 
effects of sleep restriction on performance measures appeared to level 
off between the second and fifth day of sleep restriction; for 
subjective assessments, between the second and sixth day. The authors 
believed the subjects were undergoing an ``adaptation'' to sleep 
restriction following an initial shift to higher daytime sleepiness 
levels, and that this change may have resulted from changes to sleep 
itself during those periods (although EEG was not monitored). However, 
by the sixth to seventh day performance was deteriorating and 
subjective sleepiness was increasing again. The authors noted the 
linear nature of the trends indicated the performance changes are 
cumulative, and they did not level off.
    Wylie, et al. (1996), in their operational study of CMV drivers on 
fixed routes under one of four types of schedules, noted that the 
strongest and most consistent factor influencing driver fatigue and 
alertness was the time of day. Compared to driving at other times, 
night driving (midnight to 6:00 a.m.) was associated with more video 
observations of driver drowsiness, poorer lane-tracking, and worse 
results on tests of mental performance.
    Lin, et al. (1993), studying schedules of less-than-truckload CMV 
drivers, assessed consecutive driving time, multi-day driving patterns 
over a seven-day period that included time of day of driving and days 
driving within that period, driver age, driving experience, and hours 
off-duty prior to the trip. Out of ten driving patterns, they found the 
driving pattern with the lowest risk was ``Pattern 2,'' a highly 
regular schedule with on-duty times generally spanning the period 6:00 
a.m. to about 2:00 p.m. and off-duty times generally spanning the 
period 6:00 p.m. to 4:00 a.m. Risk in six other schedule patterns that 
included night and very early morning driving, morning and evening 
rush-hour driving, and very infrequent scheduled driving had computed 
crash risk about 1.5 times as high (p. 5). When off-duty hours were 
assessed, the risk following off-duty periods less than or equal to 9 
hours was 1.4 times higher.
    When driving time was the category of interest, Lin et al. (1993) 
found there were no statistically significant differences among the 
first four hours but the ratio increased from that time until the last 
driving hour. Lin and his collaborators noted a limitation in their 
analysis, and provide a caveat to the estimates of the odds ratios in 
the last driving hour category: a large number of non-crash trips are 
completed during the 8th or 9th hour of driving, but the authors' 
``assumed failure time,'' defined as the expected time of involvement 
in an accident, would occur after this trip completion time. (p. 5)
    A limit, however, on the driving of CMVs between midnight and 6:00 
a.m. would not necessarily result in a reduction in CMV-involved 
crashes. The benefit-cost analysis prepared for this NPRM and filed in 
the docket, as well as the section with the subheading ``Benefits and 
Costs'' later in this NPRM, discuss the issues, and additional research 
findings related to the benefit-cost, of a night-restriction option 
that the agency analyzed in more detail.
    The proposed HOS regulations will address in three ways this issue 
of higher crash risks associated with night driving. First, the amount 
of consecutive hours off-duty proposed is longer than the current 
regulatory minimum. The objective is to allow drivers to have the 
opportunity to sleep longer during their off-duty periods. Second, the 
regulatory proposal would return to the pre-1962 24-hour clock. The 
circadian disruption permitted under the current regulations

[[Page 25558]]

(if drivers or motor carriers scheduled duty cycles to touch the edges 
of the current regulatory envelope of 10 hours of driving and 8 hours 
off-duty), which also adversely affects sleep quality and quantity, 
would be mitigated. Third, the regulations would require drivers to be 
given a consecutive off-duty period spanning at least two periods 
between midnight and 6:00 a.m. in every seven consecutive days to 
obtain restorative sleep. This has two benefits: it provides the 
opportunity for sleep during circadian-optimal times and it prevents 
drivers from being required to work more than five consecutive night 
shifts.
5. Non-Compliance by Drivers and Motor Carriers Increases the Potential 
for Adverse Safety Outcomes
    While drivers who drive to the maximum number of hours allowed and 
rest to the minimum number of hours required by the HOS rules may be 
fatigued, the situation of drivers who are not in compliance is 
undeniably worse. Whatever the limitations of, for example, 5 to 6 
hours of interrupted sleep, it is clearly more restorative than little 
or no sleep as reviewed in the discussion of the studies for daily 
sleep under VII.A.2. above. Unfortunately, many drivers violate the HOS 
regulations. Braver et al. (1992) interviewed over 1,200 drivers at 
truck stops, truck inspections stations, and agricultural inspection 
stations in the early 1990s. Based on the drivers' responses, the 
authors classified 73 percent of the drivers as hours-of-service 
violators. A 1995 survey of over-the-road drivers in New York State, 
McCartt et al. (1997), found that over one-third reported driving more 
than 60 hours in a typical week, and a similar percent reported working 
70 hours in a typical week.
    A more recent survey, Belzer et al. (1999), performed by the 
University of Michigan's Trucking Industry Program (UMTIP) corroborated 
this high violation rate. Belzer and his collaborators surveyed over 
800 mostly over-the-road drivers at a number of truck stops in the 
Midwest in 1997. Only 16 percent of drivers surveyed reported that log 
books were generally accurate, and 56 percent stated that they had 
worked more hours than recorded in their records of duty status (RODS) 
in the last 30 days. Over-the-road drivers and owner-operators were 
most likely to report working more hours than recorded in the RODS, 
whereas local drivers were least likely. The average number of hours 
worked was over 63 in the previous 7 days. Twenty-five percent of 
drivers reported working at least 75 hours in the last 7 days, and 10 
percent reported working more than 90 hours. The UMTIP also reported 
that the average annual mileage was found to be 112,765, where local 
drivers at the 10th percentile reported driving 25,000 miles annually 
and long-haul drivers at the 90th percentile reported driving 170,000 
miles annually.
    Assuming drivers have two weeks of annual vacation, that leaves 351 
days per year potentially available for driving. Since the current 
rules prohibit drivers from driving after being on duty more than 70 
hours in eight consecutive days, drivers have 3,071.25 on-duty hours 
during which they could possibly drive [351 days divided by 8 days = 
43.875 periods per year  x  70 on-duty hours for driving per period]. 
If one assumes that a driver was able to average 50 mph for every on-
duty hour all year long, he or she could drive a maximum of 153,562 
miles per year [3071.25 hours  x  50 mph]. A 50 mph average for an 
entire year is highly unrealistic, yet the Belzer survey showed that 
the 90th percentile of long-haul drivers surveyed covered 170,000 miles 
per year. The only reasonable conclusions are that these drivers 
grossly violated the hours-of-service limits, significantly 
overestimated their annual mileage, or spent part or all of the year in 
team operations and counted the distances they traveled during on-duty 
not driving and sleeper-berth periods.
    Drivers who comply with the HOS regulations may not be adequately 
rested, and the significant percentage who do not comply are probably 
not rested.

B. FMCSA Principles for Regulatory Improvement

    The FMCSA determined that, based on the motor carrier and highway 
research and operational characteristics of the industry, it had to 
design regulations that incorporated the following requirements.
     Increase the 18-hour on-duty/off-duty work cycle to a 
normal 24-hour work cycle.
     Increase time off to allow sufficient time for 7 to 8 
hours of sleep.
     Require mandatory ``weekend'' recovery periods of at least 
two nights of recovery sleep to resume baseline levels of sleep 
structure and waking performance and alertness.
     Address the effects of operations between midnight and 
6:00 a.m. by requiring off-duty periods that enable restorative sleep 
by including two consecutive periods between these hours.
     Allow ``weekends'' of sufficient length to ensure safety 
and provide adequate protection for driver health and safety.
     Increase operational flexibility by offering a menu of HOS 
options customized to different major or distinct operational segments 
while still maintaining an appropriate level of safety.
    The FMCSA believes these requirements will significantly reduce 
fatigue problems related to sleep deprivation, if drivers and motor 
carriers adhere to them. The FMCSA recognizes, however, that these rule 
changes do not eliminate the potential problem the ICC described in 
1937, namely:

    We have no control over the manner in which a driver may spend 
his time off duty, although some of his spare time activities may 
tire him as much as any work would do. We can only emphasize, by 
this comment, the responsibility which is the driver's own to assure 
himself of adequate rest and sleep, in the time available for this 
purpose, to insure safety of his driving, and likewise the 
employer's responsibility to see that his drivers report for work in 
fit condition. 3 M.C.C. 665, at 689.

    Drivers must still manage their off-duty time if these, or indeed 
any, proposals are to be effective. Some drivers may continue to push 
themselves to drive more hours than this proposal allows in order to 
earn more money. Others may perform non-driving jobs during their off-
duty time; have long commutes to and from home; or engage in other 
pursuits that interfere with their obligation to obtain the proper 
sleep and be prepared to operate safely. Under this proposal, all time 
spent in any work must be counted as on-duty time, since all work can 
either induce fatigue or deprive the driver of sleep.

C. Types of Motor Carrier Operations

    The motor carrier industry is diverse. A motor carrier is any 
person who uses a commercial motor vehicle, regardless of ownership, to 
transport passengers, property, or the vehicle itself for any purpose. 
Motor freight and passenger transportation differ in many respects from 
other modes of transportation. Other modes may have different means of 
tracking hours of service of their critical employees because of the 
operating characteristics and more structured environment. Many motor 
carriers are statutorily exempt from FMCSA jurisdiction (e.g., most of 
those in intrastate commerce) or exempted by regulation (e.g., Federal, 
State, or local government vehicles (Sec. 390.3(f)).
    The FMCSA grouped motor carriers subject to its jurisdiction into 
the following 5 types whose substantial

[[Page 25559]]

operational differences might warrant more individualized consideration 
than the current HOS rules allow:
    Type 1--Long haul. These drivers are away from their normal work 
reporting location and home for more than three days at a time; in 
total, they are away from home for a large part of the year. Their 
primary task is driving, although they may well engage in other 
activities, particularly loading and unloading cargo (or helping 
passengers and moving baggage, if the driver operates a motor coach). 
Type 1 drivers may have regular or irregular wake-sleep cycles, 
depending upon the requirements placed upon them by their employers, 
their clients (if they are independent owner-operators), their personal 
preferences, or a combination of all three. Many of these drivers use 
sleeper berths, but some sleep in hotels, motels, company sleeping 
quarters, truck stops, or other accommodations. Type 1 drivers have the 
highest accident exposure (based on distance traveled) of all driver 
categories, usually over 161,000 kilometers (km) (100,000 miles) per 
year (the benefit cost analysis uses 114,000 miles); team drivers may 
have twice that amount. They also have the least regular wake and sleep 
cycles, which often includes daytime off-duty periods when they must 
obtain sleep. These drivers are the least likely to be subject to 
frequent direct monitoring by their employing motor carriers, that 
ultimately are responsible for managing the driver's work/rest 
schedules.
    Type 2--Regional. These operations are similar to Type 1, except 
that drivers are away from their home base only three or fewer days at 
a time. For example, a Type 2 driver might report for work at 7:00 a.m. 
Monday after a weekend off duty, leave on a trip requiring two 
overnights on the road, and return to his normal work reporting 
location by 9:00 p.m. Wednesday. Drivers for some large less-than-
truckload carriers return to their normal work reporting location after 
only one night on the road. Type 2 drivers are generally able to take a 
larger proportion of their sleep periods in a familiar home 
environment. A Type 2 driver has a moderately high annual mileage-based 
accident exposure (from 120,000 to 161,000 km, or 75,000 to 100,000 
miles) (the benefit cost analysis uses an interpolated estimate of 
82,000 miles since the research the agency used did not directly 
address this group of drivers). These drivers, although often remote 
from a home base of operation, are more likely than Type 1 drivers to 
operate in more regularized schedules and to be subject to more 
frequent monitoring by their motor carriers.
    Type 3--Local split shift. Split-shift drivers spend most of their 
on-duty time driving, but most are local (or home-based), and their 
driving shifts are generally separated by several hours. A Type 3 
driver might work in a commuter or tour motor coach operation, 
requiring on-duty periods, for example, from 5:00 a.m. to 9:00 a.m. and 
4:00 p.m. to 8:00 p.m. To be considered in this category, the driver 
must be off-duty during the intervening hours (in the example, from 
9:00 a.m. to 4:00 p.m.). The driver may deadhead to another location, 
be shuttled back to a base of operations, or merely be free to spend 
the time as he/she chooses at the location where his/her duty 
terminates. If the driver performs non-driving duties for the motor 
carrier, holds another job, or performs any other work, time spent in 
those activities must be counted as on-duty time, and may remove the 
driver from the Type 3 category. Type 3 drivers are different from Type 
4 and 5 drivers because driving is the main part of their job, and 
because these drivers are not on duty more than 12 hours, although the 
end of their shift occurs more than 12 consecutive hours after they 
begin the workday. Type 3 drivers are fairly prevalent in the motor 
coach industry, but other operations would fall into the same category, 
e.g., commuter transportation, before-school/after-school-activity bus 
drivers, split-shift freight, morning and evening edition newspaper 
delivery operations, and specialized CMV operations. The level of 
direct motor carrier monitoring of Type 3 drivers work/rest schedules 
varies depending on the operation involved.
    Type 4--Local pickup and delivery. Type 4 drivers work in the 
vicinity of their normal work reporting location. They are generally on 
regular schedules extending less than 12 consecutive hours from the 
time they report in until they check out. Driving is a significant part 
of their work, more than half of their on-duty hours. Drivers currently 
operating under the 100 air-mile radius exception in 49 CFR 395.1(e) 
would generally be considered Type 4 drivers, and would be absorbed 
into this category, eliminating the need for that exception. Because 
they operate daily out of a home base, their work tends to be more 
regularized and the carriers are able to directly monitor drivers' 
work/rest schedules.
    Type 5--Primary work not driving. These drivers also work in the 
vicinity of their normal work reporting location. Unlike Type 4, 
however, they typically spend only one-third (or less) of their on-duty 
hours behind the wheel. This classification covers operators of CMVs 
whose duties do not center around driving, but who operate these 
vehicles as a necessary part of their work assignments. Type 5 
operations would include many drivers for electrical, water, natural 
gas, and communications utilities; construction equipment operators; 
environmental remediation specialists; oilfield service workers; ground 
water well drilling workers; operators of mobile medical equipment 
providing community patient services; and driver-salespeople. They are 
generally subject to close and frequent direct monitoring of their 
work/rest schedules, and, because they are being grouped into one 
category for regulatory purposes, there is no need for any special 
exemptions. Generally, drivers in this category have periods during 
their work day when they have the opportunity to take breaks while they 
are awaiting instructions, while they wait for others to perform tasks 
related to their work. For example, a driver-salesperson delivers snack 
foods or bread to a grocery store. Before stocking the shelves, the 
grocery store personnel might have to finish their tasks or clear a 
space for the salesperson to work.

D. Regulatory Options

    The FMCSA applied the research findings and the principles 
discussed above to the five types of motor carrier operations and 
developed six potential regulatory options. A seventh option was to 
retain the current rules. For reasons noted throughout this document, 
the seventh option was rejected. Nonetheless, the current rules 
necessarily form the baseline for benefit-cost comparisons with other 
options.
    The FMCSA has found no sleep or fatigue research that supports any 
of the current exceptions or exemptions, including the 24-hour restart 
provisions authorized by the NHS Act. The agency determined that a 
slightly longer break, one that includes two consecutive midnight to 
6:00 a.m. periods to obtain restorative sleep and could be as little as 
a minimum 32 consecutive hours (though this would happen rarely), would 
better serve safety objectives while meeting the needs of most of those 
industry segments presently eligible for the 24-hour restart provision. 
Most of the drivers in those segments operate primarily in the daytime 
so that a minimum 24-hour break does not return them to their normal 
starting time. A minimum 32- to 56-hour break that includes the minimum 
of two consecutive nights of sleep, however, would provide them a full 
day off with two sleep periods between midnight and 6:00 a.m.

[[Page 25560]]

Options Developed
    The FMCSA developed policy options using the research available in 
the docket. See Table 4 for a summary of each option. Policy Option A 
is the current rule. Policy Option A allows drivers to operate on an 
18- to 23-hour cycle. Drivers may work as much as a 15-hour shift, with 
a maximum of 10 hours of driving. Alternatively, they may drive 10 
hours, followed by 8 hours off duty, and then drive for another 10 
hours. Thus, drivers are allowed to be on duty and drive for as many as 
16 hours in a 24-hour period, with an 8-hour off-duty period after the 
first 10 hours of driving. This policy option does not require that a 
driver be given any off-duty time for personal necessities and needed 
rest, although such breaks are allowed and logged as off-duty time, 
thus extending the actual elapsed time within which the 10-hour driving 
and 15-hour duty limitations apply. To exploit the absolute minimums in 
the rule, and still obtain sufficient sleep, the entire 8-hour off-duty 
period would have to be devoted to sleep. Essentially the same 
requirements currently are imposed upon drivers in all five types of 
operations.
    Policy Option B was based on a 24-hour cycle. It required a minimum 
of 9 consecutive hours off duty for sleep (12 hours for Type 4 
drivers), with a recommendation that this 9-hour period begin at the 
same time each day. In addition, this option provided a minimum of one 
additional hour in the remainder of the 24-hour period for any activity 
of the driver's choosing. For Type 2 drivers sleeping at home and for 
Type 3 drivers, this one-hour minimum was extended to 3 hours. A 
maximum of 14 hours on-duty time would have been allowed, with the 
recommendation that it begin at the same time within each 24-hour 
period, with a maximum of 12 of those hours devoted to driving. 
However, the maximum on-duty time was 12 hours for Type 2 drivers 
sleeping at home and for Type 3 and 4 drivers. For Type 5 drivers, the 
maximum on-duty time would have been extended to 15 hours, only 6 hours 
of which could have been devoted to driving.
    The FMCSA's policy Option C was not greatly different from Policy 
Option B, except that it increased to two the minimum additional hours 
off duty allowed for Type 1 and 2 drivers away from home, for personal 
necessities and rest, as well as other activities of the driver's 
choosing. Maximum time on one shift was reduced from 14 hours to 13 
hours. Like Policy Option B, it allowed up to 12 hours of driving, and 
6 hours of driving for Type 5 drivers. Drivers away from home could 
have accumulated as many as 78 hours on duty in 7 days but not more 
than 130 hours in 14 days, or an average of 65 hours per week. Drivers 
who are not away from home could have accumulated no more than 65 hours 
in 7 days. Like Policy Option B, there would have been no distinction 
made between daytime and nighttime driving.
    Policy Option D was also based on a 24-hour cycle. It would have 
allowed a minimum of 9 consecutive hours off for sleep (12 hours for 
Type 4 drivers and 8 hours for Type 5), plus a minimum of 3 hours off 
for Type 1, 2, and 3 drivers for rest, personal necessities, and other 
activities. For Type 5 drivers, a minimum of only one hour was required 
for these other activities. On-duty time was restricted to a maximum of 
12 hours, except for Type 5 drivers, where it was 15 hours. Maximum 
driving time was also 12 hours, except for Type 5 drivers, where it was 
6 hours. A maximum of 72 hours of on-duty time could have been 
accumulated over a 6-day period, and all those hours could have been 
spent driving. For Type 4 drivers, the maximum was 60 hours within a 7-
day period.
    Policy Option E retained the 10-hour driving limit in the current 
system (Policy Option A) but also used a 24-hour base cycle. It would 
have allowed up to two hours additional on-duty time that could be used 
for loading and unloading or other work-related activities. In 
addition, it would have provided reasonable off-duty time in addition 
to sleep time, so that drivers could pursue other activities required 
for normal living. As in the other policy options, there was no 
distinction made between daytime and nighttime driving, nor was there 
any special consideration of time spent in a sleeper berth.
    Policy Option F used a 24-hour base cycle and was identical to 
Policy Option B though it would have also required a limitation or 
prohibition on driving between midnight and 6:00 a.m. for all drivers. 
This option is discussed in more detail in the next section (E. The 
Expert Panel).
    Policy Option G used a 24-hour base cycle and required 16 
consecutive hours off duty and would have required driving and other 
duties to be completed within an eight-consecutive-hour workday. This 
is the most restrictive option and was viewed by the agency as 
unsupported either by any cited research data or any of the comments to 
the ANPRM. The FMCSA did not find any indication in the docket 
materials leading the agency to believe a duty period as low as 8 hours 
in a 24-hour period is necessary for highway safety, though it might be 
desirable for social reasons. Such a policy would have required tens, 
if not hundreds, of thousands of additional drivers who are not likely 
to be available, given the present state of the U.S. economy.
    The Congress considered, and rejected, an 8-hour workday for the 
motor carrier industry in 1935. A minority of the House committee 
considering the Motor Carrier Act of 1935 attempted to legislate an 8-
hour workday for bus and truck drivers. See H. Rep. No. 1645, 
Additional Views, p. 6-7; amendment introduced by the sponsor of the 
additional views, 79 Cong. Rec. 12212, House, July 31, 1935; and 
rejected by the Whole House, 79 Cong. Rec. 12230, House, July 31, 1935. 
The ICC considered the same policy in 1938 and also rejected it. Review 
the quote from 6 M.C.C. 557, at 561 (July 12, 1938) above under IV. B. 
Immediate Changes to HOS Rules. The FHWA considered an 8-hour workday 
in 1980 and 1981. At the time, the FHWA conducted a cost-effectiveness 
analysis and found such an option had an estimated cost of $11.496 
billion and benefits of $450 million. If some drivers use the extra 
free time to supplement their incomes in other employment, the FMCSA 
thinks it is logical that they would accumulate additional fatigue that 
an 8-hour workday is designed to prevent.
    The FMCSA assessed preliminarily each of the seven potential HOS 
options and determined the last two (F and G) would not have 
significant cost and benefit changes from the 1981 analyses. Based on 
that assessment, the FMCSA decided that options A through E adequately 
cover the range of realistic alternatives to the current rules.

[[Page 25561]]



                                                            Table 4.--FMCSA Options Developed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  These many
                                                                hours off duty                          Allowing the driver to
                                                                 for sleep in     With at least these    work up to this many     And a weekly recovery
        Potential Policy...             Wake-Sleep Cycle...           one       many  additional hours     hours, including      period of at  least...
                                                                  consecutive        off  duty...           driving, in any
                                                                   period...                                combination...
--------------------------------------------------------------------------------------------------------------------------------------------------------
A--Status quo......................  18 to 23 hour cycle......               8  0 hours...............  15 hours; 10 limited    NA.
                                                                                                         to driving.
B--Maximum 14 on, Minimum 10 off...  24 hour cycle............               9  1 hour driver sleeps    14 hours, 12 hours      58 hours.
                                                                                 away from home, 3       limited to driving.
                                                                                 hours when at home.
C--Maximum 13 on, Minimum 11 off...  24 hour cycle............               9  1 hour driver sleeps    13 hours, 12 hours      58 hours.
                                                                                 away from home, 2       limited to driving.
                                                                                 hours when at home.
D--Maximum 12 on, Minimum 12 off...  24 hour cycle............               9  3 hours...............  12 hours, no lower      58 hours.
                                                                                                         limit for driving.
E--Maximum 12 on, minimum 12 off...  24 hour cycle............               9  3 hours...............  12 hours, 10 hours      58 hours.
                                                                                                         limited to driving.
F--Maximum 14 on, Minimum 10 off...  24 hour cycle............               9  1 hour driver sleeps    14 daily hours, 12      58 hours.
                                                                                 away from home, 3       hours daily limited
                                                                                 hours when at home.     to driving, and only
                                                                                                         18 hours of driving
                                                                                                         between midnight to
                                                                                                         6:00 a.m. each
                                                                                                         workweek.
G--Maximum 8 on, Minimum 16 off....  24 hour cycle............              16  0 hours...............  8 hours...............  58 hours.
--------------------------------------------------------------------------------------------------------------------------------------------------------

E. The Expert Panel

    The FHWA convened an expert panel to examine the potential HOS 
options developed by the agency and review the current state of 
knowledge about sleep and fatigue. The panel was composed of eight 
scientists, engineers, and public policy experts in the fields of 
traffic safety, human factors, and sleep medicine. They were selected 
because of their familiarity with the science as it relates to 
commercial trucking, in particular. The membership might be different 
if another mode of transportation were involved. The panel members were 
Gregory Belenky, M.D., of the Walter Reed Army Institute of Research; 
A. J. McKnight, Ph.D., of the National Public Services Research 
Institute; Merrill M. Mitler, Ph.D., of the Scripps Institute & 
Research Foundation; Alison Smiley, Ph.D., of Human Factors North; 
Louis Tijerina, Ph.D., of the Transportation Research Center, Inc.; 
Patricia F. Waller, Ph.D., of the UMTRI; Walter W. Wierwille, Ph.D., of 
the Virginia Polytechnic Institute and State University; and David K. 
Willis of the American Automobile Association Foundation for Traffic 
Safety. The panel members work in academia, government, and as private 
consultants. The FHWA provided the panel with summaries of over 80 
(mostly peer-reviewed) research reports compiled by the FHWA. The panel 
was asked to evaluate the current regulations and various agency-
generated proposals in light of the scientific understanding of sleep 
and alertness. Their findings, reported in Potential Hours-of-Service 
Regulations for Commercial Drivers, Belenky, et al. (1998), include 
their discussion of the inadequacies of the present regulations. The 
complete report is in the docket.
    The panel's report identifies the following nine critical issues.
     24-hour cycle.
     Nighttime differential.
     Continuous time off duty daily.
     Split shift drivers.
     On-duty time versus driving time.
     Sleeper berth use.
     Limits on cumulative on-duty time.
     Adequate recovery time.
     Foreknowledge of work schedule.
    One major concern of the panel was the absence of a 24-hour cycle 
in the HOS regulations. Human evolution responded to the natural light 
cycle, and human biology still exhibits strong cyclical effects. Human 
metabolism, and thus alertness, shows daily patterns, with 24 hour 
peaks and troughs. The panel noted a study by Duffy et al. (1996) in 
support of the role of the light-dark cycle as a circadian synchronizer 
and the minimal influence of a schedule shift acting alone.
    Another concern of the panel was the importance of continuous time 
off duty. It reported that sleep obtained in discontinuous segments is 
not as restorative as continuous sleep. The panel also cited studies 
which demonstrate that longer periods of off-duty time are associated 
with longer periods of sleep. The current regulations require that 
drivers have at least 8 continuous hours off-duty before returning to 
duty. The panel criticized this requirement as inadequate, because it 
does not allow drivers time to travel to a resting place or to take 
care of personal business, and because 8 hours off-duty time generally 
does not translate into 8 hours of sleep. Wylie, C.D. et al. (1996) 
showed that drivers who are off-duty for 8 hours generally obtain only 
about 5 hours of sleep. This trend has also been observed in 
operational studies in the rail and aviation modes.
    The panel also asserted that there should be no differentiation 
between driving time and on-duty not-driving time. They cite several 
studies which show that performance of tasks declines with increased 
time on duty, regardless of how on-duty time is spent. The panel 
believes that all on-duty time should be treated the same, as the 
effect on driver safety is similar.
    Another concern of the panel was the difference between daytime and 
nighttime driving. Their report noted several problems with nighttime 
driving. First, as demonstrated by Wylie, C.D. et al. (1996), the 
strongest and most consistent factor influencing fatigue and alertness 
is time of day. Night driving was associated with a higher level of 
observed drowsiness, poorer lane-tracking, and degradation of mental 
performance. In addition, the panel noted evidence that daytime sleep 
is not as restorative as nighttime sleep, because fewer hours are spent 
sleeping and the quality of that sleep is poorer. Drivers generally 
agree that nighttime sleep is superior to daytime sleep (Abrams et al. 
(1997)). The result is that

[[Page 25562]]

overall alertness and performance are lower in the nighttime than in 
the day, and accident risk is correspondingly higher. The Expert Panel 
report cites evidence suggesting that nighttime driving is associated 
with as much as a fourfold or more increase in fatigue-related crashes. 
The existing regulations make no distinction between day and nighttime 
driving.
    The panel's report included a presentation of a candidate schedule, 
``Policy Option F.'' This policy option included a provision to limit 
driving between midnight and 6:00 a.m. to 18 hours within a 60-hour 
workweek, and to require an extended period off duty at the end of the 
week. The panel itself ``recognized that any specific limit on 
nighttime driving is, at this time, arbitrary * * * Because nighttime 
driving is associated with higher crash risk even when other risk 
factors are taken into consideration, nighttime driving may be 
considered as a health and safety liability analogous to other 
hazardous conditions, with limits on exposure an appropriate 
intervention'' (p. 36). The panel went on to acknowledge that a 
restriction upon nighttime driving could generate an increase in the 
number of heavy vehicles in daytime traffic, increasing exposure to 
other, smaller vehicles.
    The FHWA decided not to propose limits on nighttime driving to the 
panel based on the 1981 regulatory analysis and its preliminary 
assessment of the regulatory impact of such a policy. Believing the 
option had to be analyzed further, even though they admitted the 18-
hour limitation is arbitrary and a reasonable explanation can be made 
for it, the panel requested the agency to reconsider. The agency, upon 
further review, decided to conduct the benefit-cost analysis of this 
option again as it had done in 1981.
    The FMCSA relied upon the Expert Panel report in reviewing the 
information in the docket a second time and reshaping the options 
described above into this proposal. As more fully discussed later, the 
FMCSA is proposing a required ``weekend'' period for all drivers of at 
least two midnight to 6:00 a.m. periods for obtaining restorative 
sleep. Smiley, A. & Heslegrave, R. (1997), O'Neill, T. et al. (1999), 
and Rosekind, M.R. (1997) come to the same conclusion. As Rosekind 
wrote, ``It is important to maintain an optimal sleep opportunity every 
24 hours and also address the potential for cumulative effects. 
Therefore, appropriate recovery time should be allowed per week (days 
or rolling hours). Scientific studies show that two nights of recovery 
sleep are typically needed to resume baseline levels of sleep structure 
and waking performance and alertness.'' (p. 7.6). This final proposal 
is also mindful of the strong evidence, and the panel's finding, that 
the driver should be afforded more opportunity for daily and weekly 
sleep.

F. Recordkeeping Requirements

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) requires 
the FMCSA to eliminate duplication and greatly reduce the information 
collection burden hours and costs imposed on the motor carrier 
industry. Driver paper logs have been a perennial source of complaint 
both among drivers and enforcement officials. The FMCSA analyzed what 
the agency and its enforcement partners needed to determine whether a 
driver and motor carrier are complying with any HOS rules and analyzed 
other record requirements imposed by other Federal agencies.
1. Time Records
    The recordkeeping regulations of the DOL's Wage and Hour Division 
(WHD) (29 CFR part 516) require employers subject to the FLSA to 
produce and retain information the FMCSA can use to enforce the 
proposed HOS rules. The WHD recordkeeping regulations are based on the 
FLSA's record provision, specifically at 29 U.S.C. 211(c):

    (c) Records
    Every employer subject to any provision of this chapter or of 
any order issued under this chapter shall make, keep, and preserve 
such records of the persons employed by him and of the wages, hours, 
and other conditions and practices of employment maintained by him, 
and shall preserve such records for periods of time, and shall make 
such reports therefrom to the Administrator as he shall prescribe by 
regulation or order as necessary or appropriate for the enforcement 
of the provisions of this chapter or the regulations or orders 
thereunder.

    Sec. 211(c) requires all subject employers, including interstate 
motor carrier employers, to make and keep wage and time records for 
their employees, including drivers. The FMCSA has the authority under 
49 U.S.C. 31133(a) to prescribe recordkeeping and reporting 
requirements and to require the production of records for all 
interstate motor carriers, not only those carriers that employ drivers, 
but also those carriers that lease, contract, or allow owner-operators 
and other non-subject employees to drive on the motor carriers' behalf. 
The agency is proposing to use that authority to require all interstate 
motor carriers to make available to FMCSA investigators the WHD wage 
and hour records they are already required to maintain to comply with 
the minimum wage requirements of 29 U.S.C. 206. The FMCSA is also 
proposing to use that authority to require those interstate motor 
carriers not covered by the FLSA that lease, contract, or allow owner-
operator drivers and other non-FLSA subject drivers who operate on 
those motor carriers' behalf to produce records similar to the 29 CFR 
516 records.
    Most of the information the FMCSA needs to enforce the proposed 
rules is currently in 29 CFR 516.2 Employees subject to minimum wage or 
minimum wage and overtime provisions pursuant to section 6 or sections 
6 and 7(a) of the Act of the WHD regulations. This includes the 
following six pieces of information from paragraph (a)(1), (5), and 
(7), including: (1) The driver's name in full as used for Social 
Security recordkeeping purposes; (2) the identifying symbol or number 
if such is used in place of name on any time, work, or payroll records; 
(3) the time of day and day of week on which the employee's workweek 
begins; (4) If the employee is part of a workforce or employed in or by 
an establishment all of whose workers have a workweek beginning at the 
same time on the same day, a single notation of the time of the day and 
beginning day of the workweek for the whole workforce or establishment 
will suffice; (5) the hours worked each workday; and (6) the total 
hours worked each workweek.
    Most motor carriers engaged in interstate commerce are exempt only 
from the overtime requirements of the FLSA. Those carriers, however, 
are addressed by 29 CFR 516.12 Employees exempt from overtime pay 
requirements pursuant to section 13(b)(1), (2), (3), (5), (9), (10), 
(15), (16), (17), (20), (21), (24), (27), or (28) of the Act. This 
section requires employers to maintain certain records with respect to 
each employee exempt from the overtime pay requirements of the FLSA by 
maintaining and preserving payroll and other records, containing all 
the information and data required by Sec. 516.2(a) except paragraphs 
(a)(6) and (9) and, in addition, information and data regarding the 
basis on which wages are paid (such as the monetary amount paid, 
expressed as earnings per hour, per day, per week, etc.).
    The FLSA exemption from the overtime pay requirement applies only 
to certain employees of interstate motor carrier employers subject to 
the MCA of 1935, but not to those subject only to the MCSA of 1984. The 
only substantial group of interstate carrier employers subject to the 
1984 Act that are not also

[[Page 25563]]

subject to the MCA of 1935 are private motor carriers of passengers 
(e.g., churches, musicians, civil and charitable organizations, scouts, 
companies transporting their own employees, etc.). See 29 CFR 
782.2(b)(1). Motor carrier employers employing drivers engaged in 
intrastate commerce, as defined by 49 U.S.C. 31132, and engaged in 
interstate commerce, as defined by the FLSA (29 U.S.C. 201 et seq.), 
are required to pay their drivers time-and-a-half overtime for any work 
in excess of 40 hours per workweek.
    The WHD requires subject employers to record and maintain the hours 
worked by subject employees. The WHD regulations do not specifically 
state that subject employees (including drivers) must record their own 
start and end time. In discussions with the DOL, the FMCSA found the 
WHD allows employers to require the subject employees doing the work to 
keep their own time or work record instead of hiring separate 
timekeepers. In any event, all subject employers are responsible under 
WHD regulations to accurately record the start and end times and total 
hours worked, for subject employees.
    One piece of information, however, is not covered by WHD 
regulations; that is the location where duty status changes from off 
duty to on duty and vice versa. The location of duty status changes is 
important only for those drivers who do not return to their normal work 
reporting location at the end of each work shift to determine where 
duty is occurring and is necessary for enforcement of the rule.
    Thus, the WHD definitions of on-duty and off-duty time, and the WHD 
recordkeeping regulations, with the addition of the location of duty 
status changes for drivers away from their normal work reporting 
location for two or more workdays, would enable the FMCSA and its State 
partners to monitor and enforce the proposed HOS regulations for 
drivers in Types 1 through 5 operations. There would be no need for 
paper logs in the formats used over the past 60 years. This would allow 
motor carriers with drivers in Type 3, 4, and 5 operations to use any 
record of duty the carrier chooses to meet the program objectives and 
the requirements of both agencies. For Type 1 and 2 drivers, the FMCSA 
would need to require drivers to add locations of their duty status 
changes to a WHD-required time record or an EOBR.
    The FMCSA is proposing to produce a savings of information 
collection burdens of approximately 18,000 man-years annually on the 
industry by dropping the record of duty status (driver log) that has 
been required since 1937. To enforce the new HOS regulations, the 
agency would rely on EOBRs for Types 1 and 2 drivers and the employee 
time records required by the WHD for Type 3 through 5 drivers. See 29 
CFR part 516 Records to Be Kept by Employers and part 785 Hours Worked. 
This should end the duplication that now exists between FMCSA and DOL 
regulations.
    The agency is also proposing to use 49 U.S.C. 31133(a) to require 
all motor carriers to prepare time records similar to those required by 
the WHD for their drivers who are not subject employees covered under 
the FLSA, generally owner-operators and independent contractors used 
primarily in Type 1 and 2 operations. The WHD has advised the FMCSA 
that drivers who are employed by owner-operators and independent 
contractors who are leased to motor carriers may be subject to the FLSA 
under the individual coverage provisions of the FLSA, if they are not 
subject under the enterprise coverage provisions. Owner-operators and 
independent contractors employing drivers and leasing them to a motor 
carrier should check if they are subject to the FLSA. The FMCSA is 
proposing to require the use of EOBRs to record hours for all Type 1 
and 2 operations.
2. Electronic On-Board Recording Devices (EOBR)
    The FHWA received a petition dated August 3, 1995, to require EOBRs 
on all CMVs from the IIHS, AHAS, PATT, Families Against Speeding 
Trucks, National Association of Governors' Highway Safety 
Representatives, and Public Citizen. These groups believe a mandate to 
use EOBRs would result in improved HOS compliance, less fatigued 
drivers, and fewer highway crashes. The NTSB also recommended the FHWA 
mandate EOBRs.
    As discussed below under the benefits and costs of the revised 
options, the agency has analyzed the benefits and costs of two options 
to require EOBR use. Overall benefits outweigh overall costs. The FMCSA 
has therefore decided to propose that motor carriers having drivers in 
Type 1 and 2 operations be required to use EOBRs. This should ensure 
credible verification of drivers' adherence to, and improve motor 
carriers' ability to manage driver compliance with, these proposed 
rules. It would also enable safety investigators and enforcement 
officials to better verify the driver's compliance with the new 
requirements.
    The EOBR proposal presented today requires relatively simple 
technologies and single-purpose devices to satisfy the HOS reporting 
and recordkeeping requirements. The more complex satellite-based 
systems and other high-tech communications technologies already used in 
certain segments of the passenger carrying and trucking industries can 
probably be adapted or reprogrammed to incorporate HOS functions. The 
agency is seeking information about the feasibility and cost of such 
upgrades to existing on-board or satellite-linked data systems. The 
EOBR requirement is being proposed only to enable FMCSA enforcement 
officials and their MCSAP-funded State colleagues to review and verify 
drivers' hours of service and hours of rest. The FMCSA recognizes that 
drivers may consider this proposal an invasion of their privacy. This 
is not our intention. We view the EOBR requirement as a more effective 
form of the self-monitoring and -reporting drivers have been required 
to perform for many decades in the form of paper records of duty status 
(logbooks). The EOBR requirement does not include, and should not be 
interpreted as authorizing, the use of audio or video recording of 
drivers' activities in, on, or near the vehicle.
    The FMCSA solicits comments on the commercial availability and cost 
of single-function EOBRs designed solely to record HOS. The more 
complex satellite-based and other high-tech communication devices 
widely used in the passenger-carrying and trucking segments of the 
motor carrier industry can probably be adapted to HOS functions. The 
agency is seeking information about the feasibility and cost of such 
improvements to existing on-board or up-linked data systems.
    The FMCSA solicits comments on, and if possible copies of, 
engineering and cost analyses of currently available EOBRs that meet 
the minimum performance standards the agency is proposing.
    Comments to the 1996 ANPRM provided no data on the other costs 
associated with an EOBR requirement, such as the time or effort needed 
to generate and maintain information, or to provide it to or for the 
FMCSA. The FMCSA has analyzed the information collection burdens of an 
EOBR requirement, including the following nine activities:
    (1) Reviewing instructions;
    (2) Developing, acquiring, installing, and utilizing technology and 
systems for the purpose of collecting, validating, and verifying 
information;
    (3) Developing, acquiring, installing, and utilizing technology and 
systems for the purpose of processing and maintaining information;

[[Page 25564]]

    (4) Developing, acquiring, installing, and utilizing technology and 
systems for the purpose of disclosing and providing information;
    (5) Adjusting the existing ways to comply with any previously 
applicable instructions and requirements;
    (6) Training personnel to be able to respond to a collection of 
information;
    (7) Searching data sources;
    (8) Completing and reviewing the collection of information; and
    (9) Transmitting, or otherwise disclosing the information.
    The FMCSA especially is interested in comments addressing the 
agency's estimates of the specific costs associated with requiring EOBR 
use by drivers in Type 1 and 2 operations.
    The FMCSA is interested in information about the prevalence of 
EOBRs, ``smart'' card adapted EOBRs, and electronic control modules 
(ECM) of any kind presently in use; the cost of converting existing 
equipment to HOS monitoring capability, such as ECMs; the availability 
of conforming technology, assuming a performance standard; the 
installation and maintenance costs of some of the newer devices (our 
evaluation relied on 1997 estimates); the phase-in period required 
before full compliance could be achieved; any difficulties in training 
drivers, clerks, and managers in the use of this technology; and any 
effects on productivity, as well as on compliance with the HOS rules. 
The ECM is a computer having about twice as much power as the average 
personal computer (PC). The ECM contains the heavy-duty-diesel-engine's 
electronics package. This electronic black-box is an outgrowth of 
meeting the Environmental Protection Agency's emission standards.
    The agency is interested in the potential of ``smart card'' 
technology. Each driver would have a card that provided identifying 
data (e.g., a thumb print, retinal scan, or other biometric 
identifier). To be useful for HOS enforcement, smart cards would be 
subject to certain performance standards. They could allow data to be 
written to the card only from a CMV-installed unit; the data would only 
include driving hours; the card would store the data for 30 days or 
longer and allow reading capabilities only at motor carrier facilities 
or during law enforcement stops; the card would be tamper-proof to the 
maximum extent practicable; and only one card would be issued to each 
driver. The FMCSA would like comments from manufacturers and others 
about the availability of such devices and methods for recording work 
time and monitoring compliance with HOS requirements.
    The FMCSA believes the training needed to operate an EOBR system 
would be minimal. The agency would like comments regarding the training 
necessary to operate EOBRs well enough to comply with this NPRM. 
Comments should also address any recurring training that may be needed 
to maintain proficiency.
    The FMCSA is proposing to require the use of EOBRs capable of 
tracking drivers' driving, other on-duty, and off-duty times for Type 1 
and 2 operations only. Type 1 and 2 drivers must take at least 2 hours 
off-duty during each work day or at the end of the work day. Thus, the 
FMCSA needs to ensure the drivers are taking that time. The simplest 
possible device would be similar to what is presently permitted under 
49 CFR 395.15, except that the regulations would allow a greater 
variety of technologies including the use of terrestrial and satellite 
systems, and driver ``smart cards.'' The FMCSA would continue to 
require that motor carriers ensure the devices meet the standards 
currently included in Sec. 395.15(i). Therefore, the device would have 
to be capable of:
    (1) Meeting certain design and operational standards, including 
being tamper-resistance to the maximum extent practicable.
    (2) Producing pertinent information in the vehicle for use both by 
the driver and safety investigators/enforcement officials.
    (3) Identifying the driver.
    (4) Computing the relevant totals of driving, on-duty, and off-duty 
hours in relation to a daily, weekly, or longer period.
    (5) Calculating time and location so that changes in duty status 
can be recorded accurately.
    Location recording under the current Sec. 395.15 regulation occurs 
without the aid of terrestrial or global positioning systems and 
requires input by the driver. The FHWA began allowing a few motor 
carriers to pilot demonstrate terrestrial and global positioning system 
technologies that could assist EOBRs (63 FR 16697, April 6, 1998). 
These pilot demonstrations are continuing. Off-duty and on-duty not 
driving times must also be input by the driver. Opportunities for 
driver input, however, increase the likelihood of driver falsification 
and allowance of that falsification by motor carriers. Although 
terrestrial and global positioning systems are available for 
implementation now, there are many assumptions their system designers 
have been making that may result in violations of the current HOS 
regulations. In a few cases, the FMCSA discovered actual violations of 
the current HOS regulations. The FMCSA believes it must address these 
assumptions, many that may have been made yet have gone undiscovered, 
and design prohibitions for such assumptions before proposing 
prohibitions of driver interactive EOBRs and future proposals requiring 
EOBRs that have no capability for driver interaction.
    The benefits of this NPRM can be achieved by understanding how the 
rule helps drivers and motor carriers and also making a dramatic change 
in the present attitude toward compliance in long-haul and regional 
operations. These are unlikely without persuasive evidence that 
compliance would not only be expected, but monitored and enforced. The 
presence of an objective tamper-proof monitor on board long-haul and 
regional operating CMVs would achieve that objective because they are 
the ones where the greatest percent of violations are currently found.
    The FMCSA is also required by the Paperwork Reduction Act to count, 
as a Federal requirement, information collection burdens imposed 
through the MCSAP by a unit of State or local government, except to the 
extent that the FMCSA shows that such State, local, or tribal 
requirement would be imposed even in the absence of a Federal mandate. 
The FMCSA would like to know whether States currently have such 
requirements for interstate motor carriers to use EOBRs.
    One of the principal monitoring tools for HOS compliance has been 
safety inspections on the roadside. The FMCSA and its State partners 
complete more than two million of these inspections annually.
    The EOBR time records can be used for WHD compliance along with the 
associated payroll and other records. The driver, who is an employee of 
a motor carrier or a motor carrier's lessor, would have an incentive to 
record hours on duty accurately--the driver would know the hours 
recorded are directly proportional to the minimum wages the motor 
carrier employer must pay under the FLSA and WHD's implementing 
regulations. The WHD has told FMCSA it will use a driver's 
documentation of hours worked, if a dispute arises with the employing 
motor carrier.
    Using the current situation, motor carriers generally have relied 
upon the records of duty status under 49 CFR part 395, including EOBRs 
under Sec. 395.15, to calculate the minimum wage required to be paid to 
the driver for each workweek. Some motor carriers, drivers, and

[[Page 25565]]

enforcement officials have not understood the differences between the 
current FMCSA and WHD definitions of duty time, off duty time, 
interstate commerce, and record keeping methods. The FMCSA believes 
some motor carriers that have not understood the difference may 
miscalculate the minimum wage, placing the motor carrier in violation 
of the FLSA. The driver may lose pay because the driver recorded time 
based upon the current FMCSA regulations and guidance rather than using 
the WHD regulations and guidance for duty time.
    Likewise, enforcement officials who do not understand the 
differences may attempt to compare a WHD-compliant time card to an 
FMCSA-compliant RODS. The enforcement official may see on the WHD-
compliant time card that the driver ``punched in'' at 8:00 a.m. The 
FMCSA-compliant RODS, however, may show the driver off-duty until 11:00 
a.m., when the load was ready for transport. An enforcement official 
who does not know the differences may cite a false RODS out of 
ignorance of the different definitions of duty time and off-duty time. 
Both records were accurate, but the different definitions led to a 
perceived conflict.
    Using standard definitions of on-duty and off-duty time, and using 
standard DOL HOS recordkeeping methods that most employers subject to 
the FLSA are required to use, will help to fix these types of 
misunderstandings and violations of laws and regulations.

G. Supporting Documents

    Section 113 of the Hazardous Materials Transportation Authorization 
Act of 1994 (HMTAA), Public Law 103-311, 108 Stat. 1673 (August 26, 
1994) required the Secretary of Transportation to define supporting 
documents used to verify drivers' HOS and to prescribe regulations 
governing their use to improve both: (A) Compliance by CMV drivers and 
motor carriers with the HOS requirements and (B) the effectiveness and 
efficiency of Federal and State enforcement officers reviewing such 
compliance.
1. 1998 Notice of Proposed Rulemaking
    On April 20, 1998, the FHWA published an NPRM (63 FR 19457, RIN 
2125-AD52) requesting comments on a proposed definition of ``supporting 
documents'' for the HOS regulations. The FHWA proposed that motor 
carriers develop and maintain effective auditing systems to monitor the 
accuracy of the drivers' RODS. The NPRM proposed that failure to have 
such a system would require the motor carrier to retain various types 
of business documents. The use of electronic recordkeeping methods was 
also proposed as a preferred alternative to paper records.
    Today's NPRM incorporates and supersedes the supporting document 
NPRM and will address records and supporting documents for use in 
monitoring and enforcing minimum hours off duty, rest, and work of CMV 
drivers.
2. Comments to Docket FHWA-98-3706 (Supporting Documents)
    The FHWA received 41 comments in response to the 1998 Supporting 
Documents NPRM. Two organizations each submitted two comments which 
were counted as separate comments. The respondents represented 3 
advocacy groups, 2 consultants to the industry, one labor union, 17 
motor carriers, 13 trade associations, including one motor coach 
association, 2 on-board recorder manufacturers, and one State 
government agency.
    Three comments fully support the NPRM. They were Bestway Express, 
Inc., IIHS, and the National Propane Gas Association (NPGA). Bestway 
Express had two suggestions in addition to its approval of the FHWA's 
efforts to develop:

    a process that allows self assessment in program design for 
safety management. As an industry, and partner with Government, we 
need these kind of initiatives as we go forward with performance 
based standards. The approach that you have developed where a 
carrier can design a self monitoring system, get pre-determined FHWA 
assessment of that program, and then can implement their program is 
commendable.
    A self monitoring system, if Safe Stat is the performance 
standards, is the only model to use as a long range implementation 
plan.

    The NPGA considered the proposal ``a significant step in 
implementation of electronic document technology into the operations of 
motor carriers generally.''
    In supporting the proposal, the IIHS noted:

    Although the proposal is less stringent than authorized by the 
Act, it is an important first step in improving truck driver and 
motor carrier compliance with HOS rules. Any weakening of the 
proposed rule would contravene the intent of the Act.

    Many commenters (23) expressed their belief the supporting 
documents NPRM should have been deferred until it could be considered 
in the context of the overall HOS rules. They believed the current HOS 
rule needs repair, rather than a system to support it.
    The National Association of Small Trucking Companies (NASTC) 
commented that carriers generally recognize their obligation not only 
``to trust but to verify'' the drivers' logs as submitted. It noted 
that the proposal squarely aimed at ``placing the burden on the carrier 
to catch drivers who make fraudulent log entries,'' and that ``the DOT 
cites over 30 different extrinsic documents which typically cross a 
trucking company's desk and suggests that some, part, or all of these 
documents can be used as an external check to stop log 
falsifications.''
    Many commenters believe the FHWA proposed significant burdens upon 
industry by requiring records be kept that are not now produced. Many 
believe few if any documents are produced for each beginning, 
intermediate, and end of trip and that those documents that are 
produced do not have the information required by the statute, such as 
driver's name and the vehicle number.
    Yellow Corporation's comments are indicative of LTL carriers 
generally. It operates between fixed terminals, and manages HOS 
compliance through the payroll system, which, Yellow notes, is also 
used by FMCSA personnel during compliance reviews. Like many others, 
Yellow only sees the proposal as expanding the burden of collecting 
many unnecessary records, when its present systems are adequate to do 
the job.
    A few commenters were very concerned that the FHWA had 
misinterpreted and misapplied the definition of ``burden'' in 5 CFR 
1320.3(b)(2). They believe that collecting many receipts and keeping 
them for four months is not usual and customary in the motor carrier 
industry.
    The NASTC also believes that the supporting documents rule should 
provide examples of acceptable carrier programs that would meet the 
NPRM's requirements. The writer of the comments describes an intricate 
system of log verification employed by ``one of our larger, more 
sophisticated members.'' He notes, however, that although the system 
could be reduced to writing for auditing purposes, the safety 
investigator conducting a compliance review would not be able to verify 
all the checking done by the record's clerk, because the external 
documents used for that purpose are not retained centrally, or maybe 
not at all. Without reasonable guidelines, perhaps in the form of 
models or examples of acceptable systems or programs, the motor carrier 
can never know whether its system will pass muster. He also observes 
that the proposal fails to deal with distinctions between system design 
and system implementation, so that a carrier with an effectively 
designed system may have to start over from scratch because a safety 
investigator may find

[[Page 25566]]

shortcomings in the way it is implemented.
    In addition, a few comments provided specific responses to the 9 
questions the agency asked.
    Question (1) What types of self-monitoring systems should be 
considered in addition to the type proposed in this document?
    Yellow Corporation contended that any software application that 
verified RODS through comparison with internal documents should be 
acceptable, and that the FHWA should not limit a carrier's choice of a 
self-monitoring system to any specific applications. Alabama Power 
agreed with Yellow so long as the self-monitoring scheme would provide 
a reasonable assurance of compliance. ROCOR Transportation was 
satisfied with the present system with the possible addition of the 
existing interpretive guidance.
    Question (2) Whether and what conditions should be imposed upon 
motor carriers (such as accident or out of service prevention 
performance history) before the FHWA would authorize a different self-
monitoring system as an alternative to compliance with this proposed 
rule?
    Yellow Corporation opined: ``The only conditions that should be 
considered in determining if the motor carrier must change its self 
monitoring system should be those directly related to errors/violations 
in the RODS or repeated violations of HOS.'' Alabama Power, on the 
other hand, believed the FHWA should consider relative accident and 
out-of-service rates. Accident and out-of-service rates should be 
established for determining when additional monitoring is necessary. 
ROCOR Transportation, once again, is satisfied with the current system.
    Question (3) Whether motor carriers seeking additional 
authorization should have some established safety record with the FHWA 
or other State or local enforcement agencies?
    This question apparently caused some confusion as Yellow 
Corporation answered as though the agency were asking about expanded 
operating authority, and believed the FHWA should conduct a compliance 
audit of any carrier seeking to expand its operation by more than 20 
percent. Alabama Power believes that carriers or industries with 
established good safety records should be exempted from all or part of 
the HOS regulations.
    Question (4) What must happen before the FHWA should disallow the 
use of a self-monitoring system or an alternative system?
    As noted above, Yellow believes that the system should not be 
blamed for failure of individuals to comply, and that the FHWA should 
establish standards for any such system. Alabama Power leans toward a 
performance test which demonstrates the value of the system by 
performance on the highway, i.e., high accident and out-of-service 
rates. ROCOR Transportation believes the FMCSA safety investigator 
ought to be able to determine whether a carrier is effectively using a 
system, and make recommendations accordingly.
    Question (5) Are there any other advanced technology systems 
currently in use or under development that the motor carrier industry 
may use to validate HOS or support the RODS?
    Alabama Power believes most advanced systems are cost prohibitive, 
especially for utility companies where driving is a very minor part of 
their business. ROCOR Transportation acknowledged the industry has 
started using satellite technology.
    Question (6) Should waivers be considered on a case-by-case basis 
for other systems that do not quite meet these requirements, but may 
have other compensating features that produce equivalent safety 
results?
    Yellow's position is that the standards must recognize that 
differences in operations and practices will mean differences in 
monitoring programs. Therefore, variances must be considered on a case-
by-case basis. Alabama Power advocates a more open system that suits 
the carrier's needs.
    Question (7) Under what circumstances should the use of such 
alternative systems also operate as a substitute for the requirement to 
prepare and maintain RODS? Demonstration of the effective use of a 
system, in whole or in part, for verification should obviate any 
necessity to further examine the information produced by the system by 
enforcement personnel.
    Yellow would prefer criteria that would accurately capture the 
hours and be verifiable to a particular driver through a failsafe 
means, e.g., a code or electronic signature. However, the company 
believes ``(o)nly when all parties requiring HOS information have the 
most advanced technology can alternative systems fully replace the 
current requirement.'' Alabama Power would permit any normal 
timekeeping system when ``the nature of a carrier's or industry's 
business limits the exposure to public safety,'' and the carrier or 
industry has an adequate commercial motor vehicle safety record.
    Question (8) What impact would a six-month or longer record 
retention requirement have on the Federal government, State 
governments, and motor carriers?
    Yellow is firmly opposed to any expansion of the present six-month 
retention requirement, which, it believes, is more than adequate for 
purposes of evaluating compliance. Assuming the retention requirement 
includes all supporting records, the company contends a carrier's 
administrative costs would increase significantly. Alabama Power agrees 
that, as written, the proposal would significantly increase the 
administrative burden of carriers. ROCOR Transportation notes the irony 
of suggesting increased burdens at a time when the pressure is on to 
reduce administrative workload. ROCOR would prefer reducing the 
retention period to four months, which would, in its judgment, be 
enough to enable FMCSA investigators to assess a carrier's safety 
posture.
    The Georgia Public Service Commission (GPSC) believes the idea of 
reducing the retention time of RODS from six months to four months is 
unnecessary. It argues that in the current downsizing climate of 
government, six months is barely enough time to conduct compliance 
reviews where complaints have been received and follow-up on serious 
crashes. It believes reducing the retention period to four months would 
result in time restraints which would not work for the governments as 
the workload of State and Federal compliance review personnel is 
increasing--not decreasing. It believes this would allow many serious 
complaints and crash investigations to go unfinished as the evidence 
for substantiating the potential violations will have been discarded by 
the motor carriers. They suggest this issue is best left alone since 
most carriers and Congress are comfortable with the six-month time 
frame.
    Question (9) Would we enhance enforcement and prosecution efforts 
with the longer retention requirement (e.g., the ability to adequately 
enforce the rules, collect evidence for a criminal case, prepare the 
case, and successfully prosecute drivers or motor carriers for 
deliberately or recklessly violating HOS restrictions)?
    Neither Yellow nor Alabama Power sees any benefit in longer 
retention requirements.
3. FMCSA's Response to the Comments on the Supporting Documents 
Proposal
    Obviously, the FMCSA agrees with those commenters who wanted to 
merge the supporting documents proposal into the HOS rule. The agency 
was under a legislative mandate to issue the NPRM on supporting 
documents, and used the

[[Page 25567]]

opportunity to gather useful opinions about a more systematic approach 
to monitoring HOS. However, the agency has now decided to merge the two 
proposals; some of the issues raised in the comments to the supporting 
documents proposal are addressed in this notice.
    The FMCSA was attentive to the comments concerning the 
administrative burdens resulting from the prescriptive alternative. The 
FMCSA believes the NPRM may not have been clear; many commenters 
misunderstood the options in the original proposal, or, more likely, 
feared too much discretion on the part of safety investigators in 
determining the effectiveness of any alternate system. This was 
particularly evident in the extensive comments of the NASTC. The 
comments described a carrier program that would definitely have 
satisfied a requirement for an effective system, but the writer was 
apprehensive about the possibility that such a model program (although 
it was entirely a paper system) could be thwarted by a finding by a 
safety investigator that some element was lacking.
    The actual intent of the proposal was captured much more accurately 
in the comments of Bestway, the NPGA and the IIHS. The FMCSA attempted 
to convert what appeared to be a very prescriptive statutory 
requirement into a way of breaking the mold of paperwork reliance. 
There still appears to be a pervasive reluctance on the part of 
industry to employ technology to verify compliance with HOS rules. The 
agency understands that certain segments of the for-hire motor carrier 
industry do not favor the FMCSA's and FHWA's Intelligent Transportation 
System (ITS) joint program encouraging the installation and use of such 
satellite technologies for ITS purposes, and at the same time, 
permitting FMCSA investigators the use of the same technology devices 
to assist in discovering violations of HOS regulations. On the other 
hand, there is a great deal of anxiety about increasing administrative 
burdens by requiring more verifying records to be used and maintained. 
What is missing is the acknowledgment by management of the widespread 
noncompliance with both the HOS restrictions and the preparation of 
RODS.
    With respect to the retention period, the GPSC has persuaded the 
FMCSA that six months worth of records is needed for proper reviewing 
by Federal and State officials of a driver's and carrier's compliance 
with the rules and for crash investigations. The FMCSA has decided to 
retain the six-month requirement for this reason.
4. Modified Supporting Documents Proposal
    The WHD regulations specify other business records motor carrier 
employers subject to the FLSA need to preserve for two or three years, 
records which the FMCSA proposes to use as its own under 49 U.S.C. 
31133(a). The agency needs four pieces of information from 29 CFR 516.6 
Records to be preserved 2 years, paragraphs (a)(1), (b), and (c), 
including:
    (1) Supplementary basic employment and earnings records from the 
date of last entry, all basic time cards or sheets on which are entered 
the daily starting and stopping time of individual employees;
    (2) Order, shipping, and billing records from the last date of 
entry, the originals or true copies of all customer orders or invoices 
received, incoming or outgoing shipping or delivery records, as well as 
all bills of lading and all billings to customers (not including 
individual sales slips, cash register tapes or the like) which the 
employer retains or makes in the usual course of business operations;
    (3) Records of additions to or deductions from wages paid, 
including those records relating to individual employees referred to in 
Sec. 516.2(a)(10); and
    (4) All records used by the employer in determining the original 
cost, operating and maintenance cost, and depreciation and interest 
charges, if such costs and charges are involved in the additions to or 
deductions from wages paid.
    The FMCSA is now attempting to go further than the 1998 supporting 
documents NPRM by proposing basic changes to both the HOS and the means 
of verifying compliance. This would address the issues raised by those 
commenters who believed the supporting documents proposal invited a 
``one size fits all'' approach. The instant proposal focuses on those 
operations involving long or regional trips away from a home base with 
little supervision, contact with, or control over the driver. The 
paperwork burden for all other operations would be minimized, and, 
whenever possible, the FMCSA would be prepared to accept records that 
are required by other Federal agencies, notably the DOL's Wage and Hour 
Division.
    The FMCSA believes this approach is consistent with the 
requirements of Section 113 of the HMTAA. The objective of that statute 
was to improve the enforcement of the HOS regulations and to simplify 
the recordkeeping requirements of motor carriers. The proposal we are 
publishing today will achieve both of those goals.
    Section 113(b)(4) requires the agency to allow ``motor carrier 
self-compliance systems that ensure driver compliance with hours of 
service requirements and allow Federal and State enforcement officers 
the opportunity to conduct independent audits of such systems to 
validate compliance * * * The proposal to allow the use of WHD time 
records by Type 3, 4, and 5 operations is even broader than the ``self-
compliance'' system the HMTAA envisioned.
    Sec. 113(b)(5) requires case-by-case waivers ``of certain 
[unspecified] requirements of section 395.8(k) of title 49, Code of 
Federal Regulations (or successor regulations thereto), when sufficient 
supporting documentation is provided directly and at a satisfactory 
frequency to enforcement personnel by an intelligent vehicle highway 
system   * * * Section 395.8(k) requires (1) that motor carriers retain 
each driver's RODS and supporting documents for six months from the 
date of receipt and (2) that drivers retain possession of each RODS for 
the previous 7 consecutive days and make them available for inspection. 
Today's FMCSA proposal would require motor carriers to retain WHD-type 
time records for at least a full six months (motor carriers subject to 
the FLSA and WHD regulations, of course, must continue to maintain 
these records for at least two to three years). Only Type 1 and 2 
drivers would be required to have time records available for inspection 
on the CMV. Those records would still have to cover the previous 7 
consecutive days, but they would be maintained automatically by an 
EOBR; the driver would only have to register on-duty, non-driving time 
and locations where changes in duty status occur. Finally, while case-
by-case waivers are not included in this NPRM, the proposal to 
eliminate paper logs for Type 3, 4, and 5 drivers more than meets the 
spirit of this paragraph. Furthermore, the agency is proposing to use 
as supporting documents those business documents already required by 
the WHD rules. The FMCSA obviously cannot provide case-by-case waivers 
of the regulations of another agency.

H. Revised Regulatory Options

    After receiving the Expert Panel's report and reviewing the 
monitoring needs of motor carriers and the law enforcement communities, 
the FMCSA decided to revise its options based on the panel's 
recommendation to limit nighttime driving. The FMCSA revised

[[Page 25568]]

options A through E by developing five new options 1 through 5 that 
included the panel's recommendation in option 3. The FMCSA examined the 
benefits and costs for each option 1 through 5 explained below in the 
section headed VII. I. Benefits and Costs.
    Under revised option 1 similar to option D, all driver types would 
have to be off duty for at least 12 consecutive hours each 24-hour 
cycle, and could be on duty the remaining 12 hours each 24-hour cycle. 
There would be no distinction between on-duty driving time and on-duty 
non-driving time. Drivers would be encouraged to begin work at 
approximately the same time each day, and would be required to have a 
mandatory ``weekend'' of at least 58 consecutive hours off duty per 
work week, i.e., a 58-hour ``weekend.''
    Under revised option 2 similar to option B, most drivers would face 
the same requirements as under option 1. Type 1 and 2 drivers could 
work and drive up to 12 hours within a 14-hour work period during each 
24-hour cycle, and would need a minimum of 10 consecutive hours off 
duty in each 24-hour cycle. The 2 additional off-duty hours could be 
taken during the on-duty period or added to the consecutive off-duty 
period. Type 1 and 2 drivers would also be allowed to use a two-week 
schedule for determining ``weekend'' off-duty time, with one short and 
one long weekend, each to include two sleep periods between midnight 
and 6:00 a.m. Type 5 drivers would need a minimum of 9 consecutive 
hours off-duty in each 24-hour cycle, and could work up to 13 
consecutive hours, including driving, in each 24-hour cycle. Type 5 
drivers would be limited to 30 hours of driving per week and like Type 
1 and 2 drivers would need to take 2 additional off-duty hours during 
the on-duty period.
    Revised option 3 is a variation of revised option 2 (up to a 14 
consecutive hour work/drive/break/nap period), with the added provision 
that drivers would not be allowed to drive more than 18 hours per week 
between midnight and 6:00 a.m. as recommended by the panel.
    Revised option 4 is a variation of revised option 2 (14-
consecutive-hour work/drive/break/nap period), with the added provision 
that all Type 1 drivers would be required to use an EOBR. Revised 
option 5 is a variation of revised option 2 and 4 (14-hour work/drive/
break/nap period), with the added provision that both Type 1 and 2 
drivers would be required to use an EOBR. See Table 5.

                                                       Table 5.--FMCSA Revised Regulatory Options
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Allowing the driver
                                    These many hours   With at least these   to work up to this
        Potential policy           off duty for sleep    many additional        many hours,       A weekly recovery           Records to be kept
                                   in one consecutive     hours off duty     including driving,   period of at least
                                         period                             in any  combination
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Maximum 12 on, minimum 12 off  12 hours...........  N A................  12 hours...........  758 hours..........  Type 1 and 2 drivers use records
                                                                                                                       similar to 29 CFR 516 with
                                                                                                                       location changes and have
                                                                                                                       available on the CMV, all other
                                                                                                                       drivers' carriers use records
                                                                                                                       similar to 29 CFR 516.
2--Maximum 14 on, minimum 10 off  10 hours...........  2 hours............  12 hours...........  32 to 56 hours.....  Type 1 and 2 drivers use records
                                                                                                                       similar to 29 CFR 516 with
                                                                                                                       location changes and have
                                                                                                                       available on the CMV, all other
                                                                                                                       drivers' carriers use records
                                                                                                                       similar to 29 CFR 516.
3--Maximum 14 on, minimum 10 off  10 hours...........  2 hours............  12 hours daily       32 to 56 hours.....  Type 1 and 2 drivers use records
                                                                             (only 18 hours per                        similar to 29 CFR 516 with
                                                                             workweek during                           location changes and have
                                                                             the hours from                            available on the CMV, all other
                                                                             midnight to 6:00                          drivers' carriers use records
                                                                             a.m.).                                    similar to 29 CFR 516.
4--Maximum 14 on, minimum 10 off  10 hours...........  2 hours............  14 daily hours, 12   32 to 56 hours.....  Type 1 drivers required to use
                                                                             hours daily                               EOBR, Type 2 drivers use records
                                                                             limited to                                similar to 29 CFR 516 with
                                                                             driving, and only                         location changes and have
                                                                             18 hours of                               available on the CMV, all other
                                                                             driving between                           drivers' carriers use records
                                                                             midnight to 6:00                          similar to 29 CFR 516.
                                                                             a.m. each workweek.
5--Maximum 14 on, minimum 10 off  10 hours...........  2 hours............  8 hours............  32 to 56 hours.....  Type 1 and 2 drivers required to
                                                                                                                       use EOBRs, all other drivers'
                                                                                                                       carriers use records similar to
                                                                                                                       29 CFR 516.
--------------------------------------------------------------------------------------------------------------------------------------------------------

I. Benefits and Costs

    As discussed above in III. The Safety Problem, the agency estimates 
that fatigue is directly or indirectly involved in 15 percent of all 
fatal and injury crashes involving large CMVs, contributing to 755 
fatalities and 19,705 injuries annually.
    A complete discussion of the benefits and costs of this NPRM and 
alternatives the agency considered is in the PRE in the docket. The 
FMCSA invites comment on any aspect of the PRE used by the FMCSA. 
Please provide with your comments all data, studies, and reports 
relevant to the assumptions you rely upon that you believe the FMCSA 
should use. The PRE's discussion of crash reduction benefits, paperwork 
reduction benefits, total benefits, quantitative costs, and qualitative 
impacts can be summarized as follows.
1. Crash Reduction
    Based on the FMCSA's review of all the research studies, the Expert 
Panel's review of those studies, the development of options to improve 
safety and health of CMV drivers and reduce CMV crashes caused by CMV 
driver fatigue, the FMCSA believes that options 1 and 2 could lower 
crashes by at least 5 percent. The FMCSA believes that at least 5 
percent could be realized by its requiring motor carriers to

[[Page 25569]]

provide drivers with: (1) A 24-hour rest/work cycle rather than an 18 
to 23 hour rest/work cycle; (2) opportunities for two additional hours 
to sleep; (3) a mandatory ``weekend'' minimum off duty period that 
includes two consecutive midnight to 6:00 a.m. sleep periods to resume 
baseline levels of sleep structure and waking performance and 
alertness; and (4) reducing daily duty time. The FMCSA also believes 
that an additional 2.5 percent could be realized through the limitation 
on nighttime driving, thus option 3 could realize at least an estimated 
7.5 percent crash reduction. Options 1 and 2 are very similar. The 
agency made no attempt to differentiate between their safety impacts. 
Option 3 is a variant of option 2 by adding the limitation on nighttime 
driving.
    The agency believes that, when fully phased in, option 4 could 
lower crashes by Type 1 drivers by at least 20 percent, and by all 
other drivers by at least 5 percent. The agency believes that option 5 
could lower crashes by Type 1 and 2 drivers by at least 20 percent when 
fully phased-in, and by all other drivers by at least 5 percent. The 
agency believes that options 4 and 5 could have a significant impact on 
the crash rate of drivers who use an EOBR, because the proposal would 
help drivers and motor carriers make a dramatic change in their present 
attitude toward compliance in long-haul and regional operations. The 
FMCSA must insist on persuasive evidence that compliance occurs, is 
monitored, and enforced. The presence of the proposed objective tamper-
proof monitor on board long-haul and regional operating CMVs is 
expected to achieve the extra 15 percent crash reduction by those Type 
1 and 2 operations where the greatest percent of fatigue-related 
crashes are currently found. The FMCSA considers all our crash 
reduction estimates to be conservative. Table 6 displays the agency's 
minimum crash reduction levels for each option.
    The FMCSA has estimated that motor carriers would phase in use of 
EOBRs in equal increments over the entire phase-in period, with 1/x 
(one divided by x) of EOBRs installed per year, where x equals the 
phase-in-period. Within one year of promulgation, one-half of large 
motor carriers' vehicles and drivers would use EOBRs, one-third of 
medium motor carriers, and one-fourth of small motor carriers. Benefits 
were estimated in conjunction with EOBR use. If carriers were unable to 
meet these installation schedules, they would be required to follow 
existing HOS and RODS requirements until they are able to comply. The 
estimated baseline crash reduction from the regulatory changes is 5 
percent, while the reduction for motor carriers using EOBRs is 20 
percent. This evaluation added in the 15 percent increment (20 percent 
minus 5 percent) over 1/x years for each size of motor carrier. For the 
first effective year of this rule, crashes by large Type 1 motor 
carriers would fall by 20 percent, for medium motor carriers by 10 
percent, and for small motor carriers by 8.5 percent.

          Table 6.--Minimum Fatigue-related CMV Crash Reduction
------------------------------------------------------------------------
                                                    Minimum reduction in
           Option                  Description       fatigue-related CMV
                                                           crashes
------------------------------------------------------------------------
1...........................  12 consecutive hours  5 percent for all
                               off duty, 12          CMV crashes.
                               consecutive hours
                               on duty.
2...........................  Type 1 drivers take   5 percent for all
                               10 consecutive        CMV crashes.
                               hours off duty 14-
                               hour work period
                               including 2 hours
                               for breaks/meals/
                               naps.
3...........................  Limit on night time   7.5 percent for all
                               driving of 18 hours   CMV crashes.
                               per week, Type 1
                               drivers take 10
                               consecutive hours
                               off duty 14-hour
                               work period
                               including 2 hours
                               for breaks/meals/
                               naps.
4...........................  Type 1 drivers use    15 percent for Type
                               EOBRs, Type 1         1 CMV crashes, 5
                               drivers take 10       percent for all
                               consecutive hours     other CMV crashes.
                               off duty 14-hour
                               work period
                               including 2 hours
                               for breaks/meals/
                               naps.
5...........................  Type 1 and 2 drivers  15 percent for Type
                               use EOBRs, Type 1     1 and 2 CMV
                               drivers take 10       crashes, 5 percent
                               consecutive hours     for all other CMV
                               off duty 14-hour      crashes.
                               work period
                               including 2 hours
                               for breaks/meals/
                               naps.
------------------------------------------------------------------------

    The collective result of all the research performed on this subject 
leads the agency to believe that the effects of the proposals will be 
crash reduction. The agency has considered that by allowing drivers 
longer consecutive off-duty periods to obtain sleep, these options 
should reduce fatigue-related CMV crashes. As discussed above under 
VII. A. Research Findings, the research suggests that many CMV drivers 
are not getting sufficient sleep. Insufficient sleep leads to 
degradations of cognitive performance, including increased mental 
errors, lapses in vigilance, slower reaction time, and errors in 
judgment. These errors in turn heighten the likelihood of CMV crashes. 
The proposal would require longer continuous off-duty time periods, 
which will enable CMV drivers to have increased sleep time.
    The FMCSA estimated a reduction of crashes for option 3, limiting 
nighttime driving. Chart 4, shown earlier in this NPRM, shows that the 
relative risk of fatigue-related crashes is higher during the night 
than at other times. The Expert Panel argued not only that the risk of 
fatigue-related CMV crashes is higher at night, but also that the 
overall crash risk is elevated during these hours. While mileage data 
that would allow for definitive calculations of the overall CMV crash 
rates by time of day are not available, it is clear that both fatigue 
propensity and the risk of fatigue-related CMV crashes peak at night.
    The ultimate safety impact of option 3 would largely depend on how 
motor carriers adjusted their nighttime operations. Motor carriers 
could comply with this option in a number of ways: shifting traffic to 
daytime, hiring additional nighttime drivers, rotating existing 
drivers' schedules, or, most likely, using some combination of these 
options.
    These adjustments needed for option 3, however, might have some 
safety downside. The most significant problem would occur if drivers 
alternated between daytime and nighttime driving. This would disrupt 
drivers' circadian rhythms, since they would not have a consistent 
start or stop time. The Expert Panel believes that ``if driving occurs 
at night or on an irregular schedule, 72 hours within 6 days is not 
scientifically defensible, and 36 hours off duty is not sufficient for 
recovery'' (Smiley and Heslegrave, 1997; Wylie et al., 1997; Akerstedt, 
1997; Johnson et al., 1998).
    Shifting traffic to early morning for option 3 might increase 
congestion during what is already one of the busiest

[[Page 25570]]

times of the day. While there might be an overall reduction in 
nighttime crashes, the extra traffic during already congested times of 
the day might result in an increase in daytime crashes. While the 
higher relative risk of fatigue-related CMV crashes at nighttime (Chart 
3) suggests that daytime travel is safer, there would undoubtedly be an 
increase in daytime crashes on a per mile basis commensurate with the 
increased traffic. While the overall number of fatigue-related CMV 
crashes would likely fall somewhat, the FMCSA believes the number of 
fatalities and injuries per fatigue-related CMV crash might increase. 
The agency notes above that it is the truck driver who is the fatality 
in approximately 70 percent of crashes for which truck drivers are 
coded as fatigued. This is partly due to the fact that truck drivers 
are most fatigued during the part of the night that other drivers are 
least likely to be on the road. By increasing the amount of driving 
during hours when total vehicle traffic is higher, the smaller number 
of crashes that do occur are more likely to involve occupants of other 
vehicles. This may somewhat offset the reduction in the total number of 
fatigue-related crashes.
    Options 4 and 5 have the most dramatic safety impact, with an 
estimated 20 percent reduction in certain fatigue-related crashes. 
Although these options allow the same number of driving hours as option 
2, they also require use of an EOBR by Type 1 drivers (option 4) or 
Type 1 and 2 drivers (option 5). The agency's analysis of the research 
concludes that use of an EOBR reduces fatigue-related crashes by an 
extra 15 percent. This extra safety would result from increasing driver 
compliance with the HOS regulations.
    The FMCSA noted above that the research indicates that HOS 
regulation violations are widespread. Surveys of drivers have found 
that 40 to 75 percent violate the HOS regulations, depending on the 
definition of violation used. The precise level of violation is less 
significant than the fact that it appears to be encountered constantly. 
EOBRs make it easier to verify drivers' compliance with the proposed 
rules, improve motor carrier ability to effectively manage driver 
compliance and enable safety investigators to better verify the 
driver's adherence to the proposed requirements. While EOBRs will not 
eliminate HOS violations, they would undoubtedly make violations more 
difficult to conceal. A driver who drives over hours currently can 
falsify any one of a number of entries on the RODS to make it appear 
that the driver is in compliance. The EOBR would provide certain pieces 
of driver-unalterable data, which would complicate the process of 
falsifying driving hours. An EOBR would make it easy for crash and 
other safety investigators to determine when a driver began to drive. 
Depending on the type of driver, the investigator would know that 
drivers working 12 to 14 hours after their starting time are in 
violation.
    By making it easier for crash and other safety investigators to 
check adherence to new HOS requirements, the EOBRs should reduce the 
extent of violations by deterrence. If this is true, increased 
compliance with the HOS regulations should lead to a reduction in 
crashes. The agency concludes that EOBR use could result in a 20 
percent reduction in fatigue-related crashes, 15 percent more than the 
estimated reduction from the change in hours alone. Because of the 
uncertainty about the precise reduction brought on by options 4 and 5, 
the agency has included sensitivity analysis of different possible 
safety impacts in chapter 6 of the PRE in the docket. Once again, the 
FMCSA invites comment on any aspect of the PRE, the data and estimates 
used by the FMCSA, and the conclusions reached as a result of the 
analyses of the benefits and costs. Please provide with your comments 
all data, studies, and reports you rely upon that you believe the FMCSA 
should use.
    Table 7 shows the baseline estimates of the number of fatalities 
prevented by the different options. Table 8 shows the same estimates 
for injuries. Figures may not sum because of rounding.

                  Table 7.--Estimated Reduction in Crash Fatalities, by Option and Driver Type
----------------------------------------------------------------------------------------------------------------
                                                                    Type 1      Type 2     All other
                             Option                                carriers    carriers    carriers      Total
----------------------------------------------------------------------------------------------------------------
Adjusted annual average baseline number of crash fatalities              298         215         243         755
 (based on 1991 to 1996)........................................
1...............................................................          15          11          12          38
2...............................................................          15          11          12          38
3...............................................................          22          16          18          57
4...............................................................          60          11          12          83
5...............................................................          60          43          12         115
----------------------------------------------------------------------------------------------------------------


                   Table 8.--Estimated Reduction in Crash Injuries, by Option and Driver Type
----------------------------------------------------------------------------------------------------------------
                                                                    Type 1      Type 2     All Other
                             Option                                Carriers    Carriers    Carriers      Total
----------------------------------------------------------------------------------------------------------------
Adjusted annual average baseline number of crash injuries (based       7,785       5,613       6,307      19,705
 on 1991 to 1996)...............................................
1...............................................................         389         281         315         985
2...............................................................         389         281         315         985
3...............................................................         584         421         473       1,478
4...............................................................       1,557         281         315       2,153
5...............................................................       1,557       1,123         315       2,995
----------------------------------------------------------------------------------------------------------------

2. Paperwork Reduction
    All drivers of CMVs in interstate commerce are presently covered by 
the RODS requirement, except for certain drivers who operate within a 
100 air-mile radius of their home base. These excepted drivers must be 
relieved from duty within 12 consecutive hours of the time they begin 
work. Their motor carriers must record information similar to the WHD-
required information of starting time, ending time, and total time on 
duty. The RODS contains a series of graph grid pages, and the driver 
must categorize each 15-minute increment as either driving, on-duty not 
driving, sleeper berth, or off-duty. Drivers must also record the 
location of all stops, deliveries, and pickups, and the location of any 
change of duty status

[[Page 25571]]

(for example, from sleeper berth to driving). Drivers must keep their 
RODS of the previous 7 or 8 days on their CMV. The RODS must also 
contain identifying information about both the vehicle and the specific 
shipment. The complete RODS requirements may be found at 49 CFR 395.8 
and 395.15.
    As discussed above, employers subject to the FLSA also need to 
prepare a time record for drivers for wage and hour purposes. The 
employer of the driver may be the motor carrier, or it may be an owner-
operator or independent contractor leasing employed drivers to the 
motor carrier. While the RODS and the WHD time record overlap somewhat, 
the DOT and DOL use different definitions of work time.
    Because these options propose to eliminate the distinction between 
driving and non-driving work time, the FMCSA also proposes to remove 
the RODS requirement. Under options 1, 2, and 3, long-haul (Type 1) and 
regional (Type 2) drivers would be required to prepare a modified WHD 
time card, which would include the time and location of any change of 
duty status (i.e., from on-duty to off-duty). These drivers would also 
be required to keep their time record on their vehicle when driving. 
Under option 4, Type 1 drivers would be required to use an EOBR, while 
both Type 1 and 2 drivers would be required to use an EOBR under option 
5. For all five options, motor carriers would be allowed to use the 
unmodified WHD time card for all Type 3, 4, and 5 drivers, and would 
not have to keep the time card on their CMVs. The agency would use the 
WHD time record to monitor compliance with the HOS regulations for 
specific drivers.
    On March 11, 1998 (63 FR 11948), the FHWA published a notice and 
request for comment on its intent to request the Office of Management 
and Budget (OMB) to approve continuation of a paperwork collection 
request. Only one general comment was received in docket FHWA-98-3393. 
The IIHS supported continuation of the paper handwritten RODS until 
they are replaced by onboard computers. The FHWA had proposed in that 
docket that each driver works 240 days each year. This would be 
equivalent to working 5 days per week for 48 weeks per year. No 
comments were received about the FHWA's proposed estimates that include 
drivers taking 2 minutes a day completing an RODS, and that motor 
carriers spend 31 seconds per driver per day filing these records. 
Rounding down to 2.5 minutes per driver per day, and estimating that 
drivers work 240 days per year, this amounts to 10 hours per driver per 
year. Many Type 5 drivers already are exempt from this requirement, 
under the 100 air-mile radius exemption. Some drivers defined as Type 3 
and 4 in this NPRM are also able to take advantage of the 100 air-mile 
radius exemption and forgo completing an RODS.
    Most Type 3 and 4 drivers, however, would have this burden 
eliminated. Based on our knowledge of the motor carrier industry and 
our investigations of motor carriers, the FMCSA concludes that many 
Type 3 and 4 drivers drive shorter distances than a full 100 air-mile 
radius of their normal work reporting location and are relieved within 
12 hours, and therefore are not currently required to fill out an RODS. 
We deduce from our knowledge and experience that one-fourth of the 
3.997 million Type 3 and 4 drivers are eligible for the current 100 
air-mile radius exemption, and the remaining 3 million Type 3 and 4 
drivers are not. The FMCSA would appreciate comments whether our 
estimates of these numbers is on target.
    Under all the options 1 through 5, most drivers would be able to 
use their time record in lieu of an RODS, and so would save 2.5 minutes 
per day. Under options 1, 2, and 3, Type 1 and 2 drivers would also be 
able to discontinue using the RODS, but they would have to carry their 
time records with them on the CMV and add city and State locations of 
all changes of duty status (from on-duty to off-duty, or the reverse). 
Option 4 would require Type 1 drivers to use an EOBR, while Type 2 
drivers would be required to complete the RODS. Option 5 proposes that 
both Type 1 and 2 drivers use EOBRs. Option 4 requires Type 1 drivers 
use the RODS until their CMV is equipped with an EOBR, and option 5 
requires both Type 1 and 2 drivers use the RODS until their CMV is 
equipped with an EOBR to fill out the RODS.
    The additional location information that would be required on the 
modified WHD time record is not currently required on WHD time records. 
Based on its knowledge and experience of the motor carrier industry and 
the current requirements to record city and State/Province locations on 
the RODS, the FMCSA estimates that drivers would accumulate one-half 
(0.5) minute per day recording locations each time a driver changes 
duty status from on duty to off duty and back to on duty. The agency 
also estimates based on its knowledge and experiences requiring the 
current Sec. 395.15 automatic on-board recording device requirements 
that it would take an additional half minute per day for drivers to 
supplement the electronic records, complete them, and transmit the 
electronic file information generated by the EOBRs. Therefore, the net 
reduction for drivers using a modified WHD time card or an EOBR is one 
and a half minutes per day (the elimination of the RODS saves them 2.5 
minutes, which is partly offset by the half minute required for the 
additional change of duty status requirement on the time cards and an 
additional half minute for filing). Type 3, 4, and 5 drivers shifting 
to the standard WHD time card from the RODS would save two and a half 
minutes per day.
    Table 9 shows that drivers and clerks in interstate and intrastate 
commerce currently spend approximately 42.5 million hours completing 
and filing the RODS. Three of the five options would result in the 
elimination of 37.5 million of these hours, while option 4 lessens the 
burden by 33.2 million hours and option 5 by 39.5 million hours. For 
options 4 and 5, the table presents the reduction occurring when the 
EOBR requirement is fully phased in. The reduction is somewhat smaller 
in the initial years. With an estimated wage of $11.91 per hour from 
the Current Population Survey (CPS), the resulting savings vary from 
almost $400 million to $470 million per year.

                                     Table 9.--Reduction in Paperwork Burden
----------------------------------------------------------------------------------------------------------------
                   Driver type                       Long haul       Regional          Other           Total
----------------------------------------------------------------------------------------------------------------
Baseline Hours for Interstate and Intrastate           4,248,040       8,238,622      29,977,665      42,464,327
 Commerce.......................................
Reduction Option 1..............................       2,548,824       4,943,178      29,977,665      37,469,672
Reduction Option 2..............................       2,548,824       4,943,178      29,977,665      37,469,672
Reduction Option 3..............................       2,548,824       4,943,178      29,977,665      37,469,672
Reduction Option 4..............................       3,228,520               0      29,977,665      33,206,185
Reduction Option 5..............................       3,228,520       6,261,352      29,977,665      39,467,537
----------------------------------------------------------------------------------------------------------------


[[Page 25572]]


                Table 10.--Annual Benefits of Proposals After Full Implementation by All Carriers
----------------------------------------------------------------------------------------------------------------
                                                 Annual     Annual     Annual     Annual     Total      10-year
                                                 fatal      injury     crash    paperwork    annual   discounted
                                                crashes    crashes   benefits,  benefits,  benefits,   benefits,
                                                avoided    avoided    millions   millions   millions   billions
----------------------------------------------------------------------------------------------------------------
Option 1.....................................         32        676       $183     $446.0     $629.0        $4.4
Option 2.....................................         32        676       $183     $446.0     $629.0        $4.4
Option 3.....................................         48      1,014       $274     $446.0     $720.0        $5.1
Option 4.....................................         70      1,744       $400     $396.0     $795.0        $5.4
Option 5.....................................         98      2,514       $558     $470.0   $1,028.0        $6.8
----------------------------------------------------------------------------------------------------------------

3. Total Benefits
    Table 10 presents the agency's estimates of the crash reductions of 
the five options, along with the estimated monetary benefits. Because 
options 1 and 2 would reduce crashes by the same amount, they would 
result in an equivalent level of benefits.
    The benefits of this rule would recur, as crashes are avoided, and 
paperwork reduced, every year the rule is in effect. Over a ten-year 
analysis period, all options would yield substantial benefits, ranging 
from $4.4 billion to almost $6.8 billion. Figures in the rightmost 
column of Table 10 are discounted at a 7 percent rate.
4. Quantitative Costs
    The FMCSA has summarized the PRE's discussion of quantitative costs 
and qualitative impacts as follows:
    The FMCSA defined a Type 1 driver as discussed above under the 
heading VII. C. Types of Motor Carrier Operations. The FMCSA used a 
University of Michigan Trucking Industry Program (UMTIP) driver survey, 
Belzer et al. (1999), to conduct the analysis discussed in this 
section. Since the FMCSA's definition of a Type 1 (long-haul) driver 
was different than the Belzer et al. (1999) definitions, the FMCSA used 
averages of the figures for long-haul and regional drivers from the 
Belzer et al. (1999) study.
    As discussed in the PRE, the FMCSA found that at both the mean and 
median, Type 1 drivers work about 11 hours per day, 8.5 of which are 
driving. These drivers would be in compliance under these options, as 
they are within the existing regulations. At the 80th percentile, Type 
1 TL drivers work 14.5 hours and drive 11 hours. These drivers may be 
in compliance with existing regulations if their driving time is not 
consecutive, but they would clearly be violating options 1 and 2, as 
they would exceed the maximum number of hours working. Chart 6 (shown 
previously in this NPRM) indicates that at approximately the 60th 
percentile, Type 1 drivers work 12 hours per day. This suggests that 40 
percent of Type 1 TL drivers work more than 12 hours, and would have to 
reduce their daily working (and possibly driving) time under these 
options. The FMCSA concludes that some percentage of this 40 percent of 
Type 1 TL drivers are violating the existing rules.
    The FMCSA estimates that at the 80th percentile, regional truck 
load drivers drive 13 hours, 1.5 hours fewer than their long haul 
counterparts. This adjustment accounts for the shorter trip lengths of 
these drivers.
    LTL drivers operate quite differently than TL drivers. Instead of 
the highly variable long distance trips common among TL drivers 
(particularly owner-operators), LTL drivers tend to drive the same 
routes, often working at the same time of day. The UMTIP survey likely 
undersampled LTL drivers, as they are less likely to stop at rest areas 
than are TL drivers. Anecdotal evidence also suggests that LTL drivers 
are unlikely to violate the HOS regulations.
    According to the 1997 Vehicle Inventory and Use Survey (VIUS), the 
successor to the TIUS, 31.4 percent of large trucks are used in LTL 
operations. We estimate that 80th percentile LTL drivers drive 12.5 
hours per day, rather than the 14.5 hours of national TL drivers.
    Approximately forty percent of long haul drivers, those between the 
60th and 100th percentile working time, would have to reduce their 
working hours under the provisions in this NPRM. Drivers at the 61st 
percentile would only need a modest reduction in working time to come 
into compliance, while those at the 99th percentile would require a 
substantial reduction in hours. The FMCSA estimated the cost of 
bringing the midpoint over-hours driver, at the 80th percentile, into 
compliance with this NPRM.
    The FMCSA calculated the number of hours motor carriers would 
``lose'' if all over-hours drivers drove 12 hours per day. Carriers 
would need to make up approximately 586,000 missing hours, which 
translates into almost 49,000 drivers (586,185 lost hours per day 
divided by 12 hours per driver = 48,849 drivers).
    Table 11 shows the number of drivers, hours at the 80th percentile, 
and assumed percentage of total drivers, and the number of drivers 
needed to make up for lost hours, for the different driver types used 
for the cost analysis in the PRE.

                                Table 11.--Driver Characteristics by Driver Type
----------------------------------------------------------------------------------------------------------------
                                                                                        Hours
                                                          Percent                      worked,      New drivers
                                                        drivers, by      Number          80th         needed
                                                          distance                    percentile
----------------------------------------------------------------------------------------------------------------
Long haul LTL.........................................           31         133,320         12.5           1,944
Long haul TL..........................................           69         291,484         14.5          24,290
Regional LTL..........................................           31         258,560         12.5           3,771
Regional TL...........................................           69         565,303           13          18,843
----------------------------------------------------------------------------------------------------------------


[[Page 25573]]

    Motor carriers would need to hire a total of 48,849 new drivers, 
the vast majority of them in the truckload sector. This equals 3.9 
percent of the current number of regional and long haul drivers, so 
with an elasticity of 10 (explained in the PRE), drivers wages will 
have to increase by 0.39 percent to induce 48,800 individuals to become 
truck drivers.
    As discussed in the PRE, the cost to motor carriers would be 
determined by three interacting forces: (1) A reduction in wages to 
drivers who currently drive more than 12 hours per day; (2) an increase 
in wages for current drivers as a result of the need for higher wages 
to attract additional drivers; and (3) the wages for new drivers. 
Regression analysis of 1997 data from the March 1998 Current Population 
Survey shows that the average 60 hours a week truck driver makes 
$35,737, while the average 70 hours a week driver makes $38,959 
annually. Just under 480,000 long haul drivers currently drive more 
than 12 hours, and would have their wages lowered under the options 
considered in this NPRM. Motor carriers would save $1.55 billion in 
wages for these drivers (479,843 drivers x ($38,959-35,737)).
    The new equilibrium 60 hours per week wage would be $35,877 
($35,737 wage multiplied by 0.39 new drivers multiplied by 10.0 
elasticity). This is $139.81 greater than the previous 60 hour a week 
wage, and all 1,248,667 long haul and regional drivers would get this 
raise. This would cost motor carriers approximately $175 million per 
year (1,248,667 drivers x $139.81 = $174.57 million).
    The largest cost for motor carriers will be hiring new drivers. At 
an average wage of $35,877, the 48,849 new drivers needed will cost 
motor carriers $1.75 billion per year ($35,877 new wage multiplied by 
48,849 new drivers). The net effect of these three changes will be an 
increase in drivers costs of $384 million per year ($1.755 billion for 
new drivers plus $174.57 million for existing drivers minus $1.545 
billion for over-60-hour drivers).
    Motor carriers could also attempt to make up for lost hours by 
increasing the number of hours current drivers work. Table 6 of the PRE 
indicates that many drivers drive significantly fewer than 12 hours per 
day, and it is possible that some of these drivers may be able to 
assume some of the lost hours previously worked by their colleagues. 
While this may be possible for some LTL operations, it seems unlikely 
to be feasible for TL motor carriers. A driver who runs out of hours 
distant from the home terminal in most cases can not be efficiently 
replaced with a new driver. While it is possible to imagine some 
circumstances where hours could be shifted to drivers who work less 
than 12 hours, it is unlikely that many hours could be replaced this 
way.
    Finally, motor carriers could make up for lost drivers hours by 
increasing the efficiency of existing drivers. About one quarter of 
long haul drivers' time consists of non-driving work, much of which 
generates little value to carriers (or the economy). A moderate 
reduction in this proportion of non-driving work would allow for more 
hours of driving, which could offset the reduced hours of other long 
haul drivers. A smaller but still significant percentage of drivers 
time is spent waiting, which is entirely unproductive.
    Motor carriers do not entirely control how many hours drivers wait 
or are engaged in non-driving work; and, therefore, would have 
difficulty dramatically reducing this percentage on their own. Drivers 
schedules are dependant upon the conditions and demands of shippers and 
receivers, so any concerted effort to reduce non-driving time would 
need their cooperation. It is not clear what incentive shippers, 
receivers, and others would have to cooperate, as wasted drivers time 
is generally no cost to them. Motor carriers could presumably squeeze 
some inefficiency out of the delivery system, but it is unlikely they 
could achieve a significant reduction in the amount of non-driving work 
time or waiting time without widespread cooperation from their 
customers.
    Whether waiting time meets the legal definition of time worked 
depends upon particular circumstances. The determination involves 
scrutiny and construction of the agreements between particular parties, 
appraisal of their practical construction of the working agreement by 
conduct, consideration of the nature of the service, its relationship 
to the waiting time, and all of the circumstances. Facts may show that 
drivers were engaged to wait or they may show that they waited to be 
engaged (Skidmore v. Swift, 323 U.S. 134 (1944)). Such questions ``must 
be determined in accordance with common sense and the general concept 
of work or employment.'' (Central Mo. Tel. Co. v. Conwell, 170 F. 2d 
641 (C.A. 8, 1948))
    Driver-repairpeople are working while they wait for their motor 
carrier's customer to get the premises in readiness. The time is work 
time even though they are allowed to leave the premises or the job site 
during such periods of inactivity. The periods during which these occur 
are unpredictable. They are usually of short duration. In either event 
they are unable to use the time effectively for their own purposes. It 
belongs to and is controlled by the motor carrier. In all of these 
cases waiting is an integral part of the job. The drivers are engaged 
to wait.
    Periods during which drivers are completely relieved from duty and 
which are long enough to enable them to use the time effectively for 
their own purposes are not hours worked. Drivers are not completely 
relieved from duty and cannot use the time effectively for their own 
purposes unless they are definitely told in advance that they may leave 
the job and that they will not have to commence work until a definitely 
specified hour has arrived. Whether the time is long enough to enable 
them to use the time effectively for their own purposes depends upon 
all of the facts and circumstances of the case.
    Drivers who have to wait at or near the job site for goods to be 
loaded are working during the loading period. If drivers reach their 
destination and while awaiting the return trip are required to take 
care of their motor carrier's property, they are also working while 
waiting. In both cases the drivers are engaged to wait. Waiting is an 
integral part of the job. On the other hand, for example, if a driver 
is sent from Washington, DC to New York City, leaving at 6:00 a.m. and 
arriving at noon, and is completely and specifically relieved from all 
duty until 6:00 p.m. when he again goes on duty for the return trip the 
idle time is not working time. He is waiting to be engaged.
    Drivers paid by the mile reported working an average of 66.3 hours 
in the week prior to the Belzer et al. (1999) survey, with 75.3 percent 
of those hours spent in driving, for an estimated 49.9 weekly driving 
hours at the mean (66.3 multiplied by 0.753 = 49.9). Option 3 would 
limit drivers to 18 hours of driving between midnight and 6:00 a.m. per 
week; 18 hours represents 36 percent of mean driving hours (18 divided 
by 49.9 = 0.36). However, the Belzer et al. (1999) survey asked drivers 
about driving between 11:00 p.m. and 7:00 a.m., whereas option 3 limits 
driving between midnight and 6:00 a.m. If the agency estimates a 
uniform distribution of driving over the eight hours, then hours 
between midnight and 6:00 a.m. should be 75 percent of those for the 
longer period. Thirty-six percent of nighttime driving for the longer 
period translates into 13.5 hours for the shorter period (18 multiplied 
by 0.75 = 13.5). To accumulate 18 hours of driving between midnight and 
6:00 a.m., 48 percent of drivers' time must fall between 11:00 p.m. and 
7:00 a.m. (1 divided by (0.75) multiplied by 0.36 =

[[Page 25574]]

0.48). This is approximately equal to the percentage of night driving 
at the 75th percentile of the survey distribution, which suggests that 
about one-quarter of all drivers would be affected by an 18-hour 
limitation.
    To calculate the marginal effect of this limitation, the agency 
computed the increase in wages required to shift someone at the 90th 
percentile of the percent night driving distribution down to the 75th 
percentile. To estimate the total social cost, the agency scaled this 
figure up by applying this change to one-quarter of the Type 1 and 2 
drivers and one-eighth of Type 3, 4, and 5 drivers. The 90th percentile 
night driver has 66.7 percent of his driving at night, and to cut this 
level to the 46.7 percent of the 75th percentile night driver is a drop 
of 30 percent. The point estimate of the effect of the percent of night 
driving on the wage is ``0.0415. (This is based on the wage equation 
discussed in the PRE in the docket). This estimate is statistically 
significant at the 6.25 percent level. This estimated value can be 
interpreted as the elasticity of the wage with respect to the percent 
of night driving at the mean of the wage. At the mean wages but the 
90th percentile of the night driving distribution, the elasticity 
equals 0.091 percent (``0.0415 x (0.667/0.303) = 0.091 percent). Hence, 
a 30 percent drop in the night driving percent should be associated 
with approximately a 2.74 percent increase in the wage (30 x 0.091 
percent = 2.74 percent) or 0.027 x $.303 = $0.0083 per mile. This 
figure represents the extra per-mile wages drivers would have to be 
paid to compensate for their lost income from reduced nighttime 
driving.
    Drivers classified as local in the Belzer et al. (1999) survey 
reported somewhat less nighttime driving than drivers classified as 
long-haul and regional. As discussed in the PRE, by surveying drivers 
at truck stops, the Belzer et al. (1999) survey probably does not 
capture a representative sample of local drivers. Most local drivers do 
not stop at truck stops, and those who do are likely to be 
systematically different from drivers who do not visit truck stops. 
Accordingly, the agency estimated that Type 3, 4, and 5 drivers are 
only half as likely as Type 1 and 2 drivers to drive more than 18 
nighttime hours per week. Belzer et al. (1999) estimated that 25 
percent of long-haul and regional drivers (those between the 75th and 
100th percentile) would have to reduce their nighttime driving; the 
FMCSA reduced this figure to 12.5 percent for Type 3, 4, and 5 drivers.
    The agency then multiplied $0.0083 per mile by the average annual 
miles for each operational type. The definition of drivers from the 
survey probably does not match those envisioned in this proposal. The 
agency estimated that those labeled long haul and regional in the 
survey are Type 1 according to its definition, and drivers who call 
themselves local in the survey are closer to Type 2 drivers in the 
options. Type 3, 4, and 5 drivers were effectively outside the scope of 
the survey. Accordingly, the agency estimates that Type 1 drivers drive 
114,000 miles annually, the average for long-haul and regional drivers, 
and Type 2 drivers drive 82,000 miles. The agency estimates that Type 
3, 4, and 5 drivers operate 25,000 miles per year.
    The average number of miles was multiplied by the 25 percent of 
Type 1 and 2 drivers, and the 12.5 percent of Type 3, 4, and 5 drivers, 
who drive more than 18 nighttime hours per week. The calculation for 
the total cost is as follows: $0.0083 per mile multiplied by the number 
of miles per year, times the percent of drivers who drive more than 18 
hours per week. The total cost is high, approximately $375.3 million 
per year. See Table 12. This represents an annual cost, as motor 
carriers would continue to pay drivers extra to compensate for missing 
earnings. At a 7 percent discount rate, the ten-year cost of 
compensating drivers for reduced nighttime driving is $2.64 billion.

                                       Table 12.--Annual Cost of Option 3
----------------------------------------------------------------------------------------------------------------
                                                               Number of     Average      Cost per   Total cost,
                         Driver type                            drivers       miles        driver      millions
----------------------------------------------------------------------------------------------------------------
Type 1......................................................      424,804      114,000         $946       $100.5
Type 2......................................................      823,863       82,065         $681       $140.3
Type 4......................................................    3,997,023       25,000         $208       $103.7
Type 5......................................................    1,190,740       25,000         $208        $30.9
    Total...................................................    6,436,430                                 $375.3
                                                             -------------                          ------------
----------------------------------------------------------------------------------------------------------------

    Option 4 is similar to option 2, except that all Type 1 operation 
CMVs must be equipped with an electronic on-board recorder. This 
requirement raises the cost (and, as explained in the PRE, the benefit) 
of option 4 considerably.
    The March 11, 1998 (63 FR 11948) notice and docket FHWA-98-3393 
estimated that 5 percent of Type 1 operation motor carriers currently 
use EOBRs on all their CMVs. There were no comments objecting to this 
estimate. The FMCSA excluded any costs and benefits in this NPRM for 
the estimated 5 percent of EOBRs that motor carriers use. Motor 
carriers, therefore, would have to purchase 252,798 EOBRs (0.95  x  
266,102).
    The cost of EOBRs built only for HOS compliance is unclear. Queries 
of manufacturers, surveys of users and manufacturers of EOBRS, and 
comments to the ANPRM docket reveal a wide range of estimated costs. A 
1997 motor carrier survey undertaken for the FHWA reported an average 
cost of $2,000 per EOBR. Campbell (1998). While the survey had a fairly 
low response rate, it is the only survey the FMCSA is familiar with 
which queried users about the cost of EOBRs. In comments to the ANPRM 
docket, the IIHS cited a telephone survey of on-board computer 
manufacturers. IIHS (1995) The cost for the first CMV ranged from 
$1,089 to $19,000. Most of the manufacturers cited a high and low cost, 
and the mean low cost was $4,500, while the mean high cost was 
approximately $9,000. For additional CMVs, prices ranged from $585 to 
$4,000, with a low cost mean of $1,150 and a high cost mean of $2,200. 
IIHS prices are presumably in 1994 dollars. Other ANPRM comments 
offered estimates between $700 (Rockwell Transportation Electronics) 
and $5,000 per vehicle (ROCOR Transportation).
    The FMCSA also contacted two manufacturers of EOBRs, which quoted 
prices of $2,000 and $2,400. These manufacturers also cited other 
costs, such as software, driver cards, card readers, and training. 
These items could double the per unit cost, depending on the specific 
configuration and assumptions about the number of drivers per carrier 
and terminal. However, it appears that these prices are for high-end 
models, which have many

[[Page 25575]]

capabilities in addition to the ability to record HOS. These extra 
capabilities include such items as speed governors, recording various 
engine and mechanical data, and global positioning system tie-ins. 
Options 4 and 5 would require carriers to use an EOBR for HOS 
compliance only. Therefore, the costs for the extra capabilities should 
not be included as a cost of these options.
    The FMCSA also contacted a manufacturer of electronic tachographs 
for the European market that could also be produced for the U.S. 
market, too. Electronic tachographs have not yet been mandated in 
Europe, but requirements for them have continually been proposed by the 
European Economic Community. This manufacturer states its electronic 
tachographs for the European market are EOBRs with built-in global 
positioning system (GPS) technology. During an FMCSA site visit, this 
manufacturer stated anticipated prices for its new model being designed 
for the European market. The manufacturer anticipates a unit purchased 
by a power unit manufacturer for the European market and installed by 
that power unit manufacturer on the assembly line to be about $180 per 
power unit, while aftermarket versions of the same new model for the 
European market could be $600 to $700. Costs of installation for the 
power unit manufacturer during power unit assembly should add about 
0.25 hours to the process, the manufacturer estimated. Aftermarket and 
retrofit European electronic tachographs should require up to 2 hours 
additional labor and possibly a wiring harness adding $50 to $60 to the 
aftermarket equipment cost, the manufacturer estimated.
    The manufacturer's system would record the information on an 
individual driver's smart card as this manufacturer believes the 
European requirements would expect them to require. The licensing 
agencies in Europe would issue the cards to the drivers. The additional 
cost of the smart card's could be $1.00 to $2.00, though the 
manufacturer stated that if the European licensing agencies incorporate 
a silk-screened commercial driver's license (CDL) onto the smart card, 
the cost may be even less for those licensing agencies as the card 
would be multi-functional. The manufacturer stated it would expect the 
quantity of multi-function CDL/HOS smart cards to be required would be 
in the millions so the cost should be small. This would, of course, 
depend upon whether such a system were to be mandated by European 
licensing agencies, since it is not being proposed as a requirement in 
this NPRM. The manufacturer was targeting its price of the hardware 
located at the terminal or principal place of business to be less than 
$500. No software would be required for the manufacturer's basic system 
to fulfill an HOS mandate. The manufacturer currently has a similar 
product offered for sale at $695. The manufacturer believes one day of 
training per driver would be adequate for its products and that the 
cost of the training would range from $400 to $650 per day. Thus, 
taking all of these prices into account, this manufacturer would be 
able to provide a factory-installed European electronic tachograph, 
support systems, and training for one vehicle at about $1,080. This 
would not include any additional costs marked up by the power unit 
manufacturer.
    This analysis uses a purchase price of $1,000, with annual costs 
(for maintenance, training, etc) of $100 per unit. The FMCSA also 
estimated that drivers of vehicles with EOBRs would need 2 hours of 
training, at $11.91 per hour (from the CPS). Because of the wide range 
of estimates, the FMCSA analyzed the impact of higher and lower EOBR 
prices.
    Over ten years, Type 1 operation motor carriers would pay $253 
million for the purchase of EOBRs, $229 million for maintenance, and 
$9.6 million for training, for a total undiscounted cost of 
approximately $492 million.
    Option 4 has the same driving limitations as option 2, and, 
therefore, the analysis carried out above is applicable for this 
option. The FMCSA calculated the discounted cost to be $2.7 billion. At 
a 7 percent discount rate, the net present value (NPV) of these costs 
is approximately $3.024 billion.
    Option 5 is the same as option 4, except both Type 1 and 2 drivers 
would be required to use EOBRs. Minimum off-duty hours, maximum driving 
time, and ``weekend'' rest provisions are unchanged.
    The FMCSA estimates that there are 266,102 Type 1 CMV power-units, 
and 242,069 Type 2 CMV power units. A total of 508,171 CMVs would be 
affected by this option. Five percent of CMVs are already equipped with 
EOBRs, so the remaining 482,766 vehicles would have to be equipped with 
them.
    Over ten years, purchasing EOBRs would cost motor carriers $483 
million, maintaining the devices would cost $438 million, and training 
would add another $28.3 million. The total NPV of the driver and EOBR 
costs is approximately $3.444 billion, with an annualized cost of 
approximately $490 million.
5. Small Business Costs
    Approximately 500,000 motor carriers were listed on the FMCSA's 
Motor Carrier Management Information System (MCMIS) census file in the 
fall of 1999, and the FMCSA has data on the number of vehicles owned by 
413,000 of them. Almost one half of the motor carriers with size data 
have only one truck, and 95 percent of motor carriers, almost 395,000, 
have 20 or fewer trucks. These small motor carriers owned approximately 
37 percent of the registered trucks. The average small motor carrier 
operated just under 3 trucks.
    Small long-haul and regional carriers would face significant costs 
from this proposal, particularly options 4 and 5. These motor carriers 
would bear 37 percent of the higher wages and EOBRs. The FMCSA 
estimated that driver wages would rise by $384 million per year. Small 
carriers would bear 37 percent of that cost, approximately $142 million 
annually, which equals $361 per small motor carrier. Small motor 
carriers with larger fleets will pay more than their smaller 
counterparts.
    Under option 4, small long-haul motor carriers would face an extra 
$177 million over ten years for EOBRs ($135 million discounted). 
Purchasing the EOBR constitutes approximately $100 million of this 
cost, and it is split evenly between the first four years. Ongoing 
maintenance accounts for the bulk of the remaining costs, and it is 
spread out over ten years. EOBRs will cost the average small long-haul 
motor carrier $2,850 to purchase and $282 annually for maintenance 
(undiscounted).
    Option 5 would cost small long-haul and regional motor carriers 
$180 million undiscounted to purchase EOBRs, $152 million discounted. 
Annual costs equal $17.9 million undiscounted, for a total of 
approximately $103 million discounted over ten years. Per carrier costs 
are the same as for option 4, because of the method used for 
calculating costs.
    Data on firms and receipts from the Small Business Administrations 
(SBA) web site were used to generate an estimate of average receipts 
for small motor carriers. See http://www.sba.gov. The FMCSA used data 
from Standard Industrial Classification (SIC) codes for trucking, SIC 
codes 4200 through 4214. Small motor carriers, defined as those with 
fewer than 20 employees, had average annual receipts of just over 
$400,000 in 1996. First year costs of $3,132 ($2,850 plus $282) equal 
approximately three fourths of one percent of the average small motor 
carriers receipts.

[[Page 25576]]

    The previous calculations include only motor carriers in SIC codes 
4200 through 4214, which include motor freight transportation and 
warehousing, trucking and courier services, local trucking without 
storage, non-local trucking, and local trucking with storage. Many 
small establishments covered by this NPRM are in other industrial 
sectors, and therefore would not be included in this estimate. There 
are a large number of private carriers, those which do not accept for-
hire shipments, but instead serve as a shipping subsidiary of an 
establishment in a different line of business. Examples include 
bakeries or groceries which own small fleets of trucks to deliver their 
goods, or a touring musician who travels via a privately owned motor 
coach. The FMCSA was not able to generate data on these private motor 
carriers.
    It is likely that both EOBR and driver costs could be lower than 
estimated above. First, we assumed that small motor carriers would 
purchase one quarter of their EOBRs in each of the first four years. In 
reality, it is likely that most small motor carriers will wait until 
the latter years to buy an EOBR. This will lower the discounted EOBR 
costs, as later year purchases are discounted more highly than earlier 
ones. In addition, small motor carriers who purchase EOBRs in year 4 
will have to pay for maintenance for 3 fewer years than those who 
purchase in the first year.
    Second, the FMCSA believes it is likely that the price of EOBRs 
will fall as production increases. As manufacturers gain proficiency in 
producing a good, improved use of labor and materials tend to lower the 
costs of production. Improvements include reducing the number and 
complexity of component parts, improved production of components, 
improved assembly speed and processes, reduced error rates, and better 
manufacturing processes. In a 1984 study of 108 manufacturing items 
from 22 field studies, Dutton and Thomas found a progress ratio of 
slightly higher than 80 percent, which means that each doubling of 
cumulative production reduces the cost level by 20 percent (Dutton and 
Thomas). Because of the phase-in period for small motor carriers, 
larger motor carriers are likely to bear the higher initial production 
costs.
    In addition, wage costs may also be lower than estimated. Small 
motor carriers, like many small businesses, tend to pay lower wages 
than their larger competitors (Brown and Medoff for overall wage 
differential; Hirsch and Macpherson for motor carriers). Therefore, a 
given percent increase in wages will translate into a smaller absolute 
change than is the case for higher wage firms. The overall percentage 
figure used in this analysis may overstate the wage increases faced by 
small motor carriers.
    As noted above, the FMCSA assumed that EOBRs will cost motor 
carriers $100 per year. This figure includes such items as maintenance, 
search costs, other transaction costs, and learning curve costs. While 
we were not able to directly estimate the separate cost components, we 
do not believe they will be significant. Manufacturers and salespeople 
for EOBRs will have a substantial incentive to provide information 
about their products to drivers. Unions, magazines, and trade 
associations are also likely sources of information for drivers. The 
costs to reach the long-haul and regional drivers who will be required 
to purchase EOBRs are fairly low, as these drivers often congregate at 
rest areas and loading docks, and many drivers communicate with other 
drivers via citizens band radio. The relatively high concentration of 
drivers lowers the cost of reaching drivers, provides further 
incentives for manufacturers, salespeople, and other to provide 
information on EOBRs to drivers.
    The analysis also assumes that many motor carriers will be able to 
have EOBRs installed during routine annual checkups. Motor carriers are 
required by the FMCSRs to inspect their trucks annually, and many 
carriers routinely inspect their vehicles more frequently. The FMCSA 
believes that many motor carriers may be able to have an EOBR installed 
while their trucks are undergoing routine maintenance, lowering the 
opportunity cost of obtaining an EOBR. For most motor carriers, the 
opportunity cost of an EOBR is only the additional time required for 
installation once a truck is already available for service.
6. Qualitative Impacts
    The FMCSA expects different qualitative effects from two aspects of 
the various options. The following section discusses the likely impact 
of options 1 (12 off, 12 on) and 3 (limiting nighttime operations) on 
the motor carrier industry. The agency does not believe options 2, 4, 
or 5 would have significant qualitative, intangible effects to warrant 
a discussion of them. The FMCSA invites comment on whether you believe 
there are significant qualitative, intangible effects to warrant a 
discussion for options 2, 4, or 5. Please provide with your comments 
the significant qualitative, intangible effects you believe must be 
considered along with all data, studies, and reports you rely upon that 
you believe the FMCSA should use.
    Option 1 has two primary dimensions'daily and weekly scheduling 
requirements.
    Daily Scheduling. The regional LTL industry would have the least 
difficulty conforming with option 1's daily schedule, as most freight 
follows the overnight rhythm. The ability to use the driver for 12 
hours regardless of activity (driving or other labor) would give the 
motor carriers more flexibility. The agency is not sure how much of 
this additional capability carriers might use, but it would allow them 
to adjust according to the demands on their business. The national LTL 
industry would also be able to adjust to this option as carriers now 
use their drivers for less than 10 hours of driving at a time (at least 
the union carriers do not require drivers to do other work) and would 
have the additional flexibility to use drivers beyond 10 hours, if 
necessary.
    One difficulty the national and regional LTL industry segments may 
face would be a possible reduction in overall labor time: option 1 
specifies that 12 hours includes all breaks, so the net effect might be 
to reduce total daily labor by as much as 10 percent or as little as 
zero. Assuming drivers work 11 hours per day for five days per week, 
that gives them a 55-hour work week, which is about what the agency 
would expect in the industry.
    The long-haul truckload industry, at the other extreme, would have 
to make major changes to adjust to this schedule. Many TL drivers 
currently work more hours than this proposed rule and any option 
considered would allow. If other reforms reduced drivers' non-
productive time, the effect might be minimized. That is, since the 
median Type 1 driver drives only 8.5 hours daily, this might not affect 
the driving experience of drivers at the median. However, at the 75th 
percentile Type 1 drivers drive 11 hours, suggesting that the only way 
many drivers could comply would be by eliminating non-driving hours 
entirely. In sum, the Type 1 TL industry probably may have to hire more 
drivers than it currently has, assuming drivers and motor carriers 
comply with the regulation and assuming no change in the current 
framework that does not discourage shippers and consignees (and even 
carriers) from requiring drivers to wait.
    Type 2 trucking-segment motor carriers generally operate in a 
fashion closer to LTL than to the Type 1 trucking-segment motor 
carriers. The Belzer et al. (1999) survey suggests

[[Page 25577]]

regional trucking falls approximately in the middle between local and 
long haul, depending on the measure. Regional drivers are more likely 
on average to perform labor other than driving than the long-haul TL 
drivers, though the latter have larger blocks of non-productive time. 
It is difficult to generalize among such a wide set of possibilities, 
in terms of industry segments and markets, so conclusions are difficult 
to make based on the option and the current work schedule. Work 
schedules vary quite widely among industry segments.
    Weekly Scheduling. The options would require at least two nights 
off duty to obtain restorative sleep at the end of a work week. For 
option 1, the regional LTL industry already is structured in a way that 
accommodates this main research finding, at least as closely as any 
other group. The typical regional LTL driver begins his work week 
Monday evening or night and works five ``shifts'' of driving and labor 
ending up back at his home domicile by Saturday morning (some motor 
carriers might add an additional shift to allow drivers to reach 
maximum hours and earnings or to meet its service requirements). While 
the options would limit the flexibility of these carriers with respect 
to extra driving (because of the requirement of a minimum of 58 
consecutive hours off once per week), they would have the least effect 
on these drivers.
    The long-haul LTL industry does not schedule this same way. While 
the agency believes these LTL carriers could adapt to this schedule, 
they could do so only with some effort and dislocation. Their 
operations currently depend on a mix of regular bid runs, on-call 
drivers, and casual drivers. City drivers (pickup and delivery) have 
reasonably regular shifts, ordinarily are paid by the hour, and 
probably stick pretty close to the recommended HOS limits and schedule. 
Regular bid road drivers run steady operations between cities and haul 
the most predictable freight. As a result, their schedules are 
predictable and can most likely conform to the daily and weekly HOS 
options. Lower-seniority irregular road drivers who maintain a position 
on a seniority list (``road board'') are called in to work as the 
carrier is able to ``close out'' a trailer and send it to another 
destination. Such destinations vary, but sharp cutoff times needed for 
regional LTL aren't needed in national LTL and hence the daily 
discipline is not as critical. Larger terminals generally have a higher 
number of bid drivers, and may be able to create relatively restricted 
time windows during which daily dispatch can occur. Weekly regularity 
is a bigger problem, since that is not a current requirement. The 
agency has found no way to estimate the cost of compliance for this 
industry, though it would like comments from those in that industry 
about how to do it.
    Both the regional and national LTL industries may find it difficult 
to adapt structurally to different options regarding HOS. Currently, 
these carriers take both business and regulatory constraints into 
consideration when planning terminal networks. That is, they consider 
the metropolitan area in which they may pick up and deliver freight (or 
where they have appropriate freight density) along with the distances 
between terminals where they transfer freight throughout their network. 
Any changes in daily HOS regulations could induce them to move 
terminals closer together or farther apart. Some readjustment would 
undoubtedly take place, but the agency believes this should not be 
considered a cost of this proposal. Motor carriers that do not relocate 
terminals would not face any additional costs because of this option, 
they would merely be bypassing an opportunity to realize savings.
    The regional trucking industry (particularly TL and other-than-
general-freight) probably could adapt to this change relatively easily 
also, since they are better able to get drivers home on weekends or on 
a weekly basis. Currently these carriers advertise ``home weekends'' as 
a recruiting tool, so their workers and potential workers presumably 
view this as a benefit. While they scarcely comply with the current 
weekly limit (Belzer et al. (1999) shows they work 60 hours per week at 
the median), their biggest problem probably would come more in adapting 
to each option's 60-hour limits than in adapting to the schedule 
providing for 58 hours of consecutive off-duty time weekly.
    As was the case with the daily restrictions, the long-haul TL 
industry would find it the most difficult to adapt to the weekly 
limitations. Currently drivers are working through this period and view 
lengthy delays on the road as time wasters. Since these drivers 
typically sleep in their trucks and may have to spend this time in 
truck stops when their weekly break occurs on the road, they might not 
achieve the level of rest anticipated by the rule even if they obey the 
regulation. For analytic purposes, however, it might make sense to 
divide the long-haul TL industry into two broad segments.
    Smaller TL motor carriers run their drivers long distances and 
generally have their drivers spending weeks on the road. While the 
agency has not analyzed this phenomenon in detail, research suggests 
the smaller carriers have fewer alternatives to this form of operation. 
That is, if they dispatch a driver on a long cross-country run they 
alone are responsible for locating freight for the return trip. The 
agency suspects their inability to locate freight on a timely basis 
contributes to the ``wasted time'' phenomenon observed in the Belzer et 
al. (1999) survey. Larger motor carriers may be more likely to locate 
freight for the return at a distance, though most carriers historically 
have faced challenges maintaining freight balance over long routes and 
between far-flung city pairs. See 3 MCC 665, at 675-678, December 29, 
1937.
    Perhaps the biggest advantage larger motor carriers (or more 
precisely, motor carriers with denser regional concentrations and 
freight lanes) have over smaller ones is some ability to relay freight 
from one region to another. The ability to relay freight from one 
driver to another would allow the motor carrier to keep drivers within 
a reasonable proximity of home and allow them greater opportunities to 
return home for the 58-hour breaks. Without this option, long-haul 
carriers and their drivers would find it rather difficult to adapt to 
these options. One unintended consequence might be a continuation of 
the current situation, whereby drivers extend their overall HOS by 
manually recording ``unpaid'' waiting time as off duty on the EOBRs, so 
that they can maximize driving time, which is paid.
    Option 3 has two primary dimensions. The first dimension has 
potential HOS requirements that are the same as option 1. The second 
dimension is the limitation on nighttime driving.
    The proposed limitation on nighttime driving could cause major 
restructuring in the LTL industry. Most LTL carriers, especially in the 
regional industry, run throughout the night. The regional LTL industry 
relies on nighttime driving. Its primary niche is the overnight service 
lane, and the structure of operations requires nighttime driving. To 
summarize and simplify their operations, they pick up freight during 
the afternoon and take it to a terminal where it is stripped off local 
trailers and reloaded on road trailers for delivery. The dock operation 
may take anywhere from three to five hours, after which the loaded 
trailers are dispatched over-the-road to a terminal or terminals in 
another city. The freight may be handled once or twice en route during 
the night. In any case, the freight arrives at its destination terminal 
the following morning, is stripped off the road trailer and loaded onto 
a city trailer. A city driver (``pickup and delivery driver'')

[[Page 25578]]

takes the freight to the customer, and repeats the pickup process. This 
pattern ordinarily continues Monday through Friday, with most freight 
picked up and delivered on those days.
    Variations on this theme apply to the inter-regional LTL carriers 
as well as to national package delivery carriers, much of whose revenue 
actually consists of regional and local freight. National LTL carriers 
(along with inter-regional LTL carriers and package carriers) have 
wider variation in operations. The pickup-and-delivery processes are 
the same, but longer lanes mean that the intermediate dispatch can take 
place around the clock. Some motor carriers are structured such that 
inter-regional movement of freight would tend to happen on the same 
nighttime lanes on which their overnight shipments travel, and some 
motor carriers are structured so that second- and third-day freight 
will travel during the day for at least some of its intermediate 
movement. In any case, the entire industry depends on nighttime freight 
movement, and limiting drivers to 18 nighttime hours per week could 
cause major restructuring. Indeed, since this option likely would 
restrict drivers to three days of work per week (less than full time), 
carriers might adapt by switching their drivers between nighttime and 
daytime shifts throughout the week. While this would comply with the 
option, it could disrupt drivers' circadian cycles, eliminate the 
possibility of regular schedules, and possibly reduce overall safety.
    The Belzer et al. (1999) survey suggests the extent of nighttime 
driving is somewhat lower than previously thought. The survey reveals 
that, on average, drivers already are well in compliance with such an 
option. The discrepancy comes at the extremes. People who are on the 
night shift perform all of their work during these hours, so as 
individuals they would be far from compliant with a potential 18-hour 
limit. This group includes those who drive for most regional LTL 
carriers, for package carriers, and probably for much of the inter-
regional and national LTL industry. Those who drive for TL firms 
(particularly Type 1 drivers) may well drive a small enough percentage 
of their hours during this period that they would be in compliance. 
However, the drivers most likely to be compliant with the 60-hour limit 
probably are the very drivers whose industry would be altered 
dramatically as a result of such an option. Finally, while data are 
sketchy some analysts believe the LTL and package industry have a lower 
than average fatigue crash rate, so this option could affect the 
operations of those carriers that may contribute least to the nation's 
highway safety problem.
    Regularity. The FMCSA also examined the cost of requiring drivers 
to begin work at the same time each day. The specific option under 
consideration would have prevented drivers from working until 23 hours 
after the previous day's start time. A driver who started work at 6:00 
a.m. Monday would not have been allowed to begin again until 5:00 a.m. 
Tuesday, regardless of how many hours the driver had driven on Monday.
    The agency used a wage equation described in the PRE to estimate 
the cost of regularity. The coefficient on the proxy constructed for 
irregularity (a binary variable) is -0.0196. It is statistically 
significant at the 14.5 percent level, which means it is estimated 
relatively imprecisely, lowering confidence in the estimate's numerical 
value. Under the assumptions outlined above, in equilibrium the agency 
expects that the typical irregular driver gets on average more miles 
(or more paid hours, where applicable), and so makes about the same 
annual income as a regular driver, other things being equal. If the 
agency prohibited irregularity, then these drivers would have to be 
paid almost 2 cents per mile more on the smaller number of miles they 
would then run to make the same annual wages.
    Using the average annual miles from above (hence not trying to 
explicitly capture any implied change in miles), carriers would have to 
pay between $500 and $2,200 per year in higher per mile wages over 
fewer miles for the average irregular driver in order to restore his 
wages to their approximate pre-prohibition level. Hence society would 
pay that much more in higher freight rates for the freight each 
irregular driver now hauls, if irregularity were prohibited and all 
drivers complied with this prohibition.
    The agency treated all drivers (including owner-operators and 
independent contractors) like the average mileage-paid driver, and 
estimated that 23.4 percent of this entire population is ``irregular,'' 
the percentage found in the Belzer et al. (1999) survey. This results 
in total costs of nearly $1.5 billion per year, as shown in Table 13. 
Regional drivers account for more than 55 percent of the total cost of 
a regularity potential option.

                                          Table 13.--Cost of Regularity
----------------------------------------------------------------------------------------------------------------
                                                               Number of     Average      Cost per   Total cost,
                        Driver types                            drivers       miles        driver      millions
----------------------------------------------------------------------------------------------------------------
1...........................................................      424,804      114,000       $2,234         $207
2...........................................................      823,863       82,065        1,608          837
4...........................................................    3,997,023       25,000          490           69
5...........................................................    1,190,740       25,000          490          369
                                                             ---------------------------------------------------
    Total...................................................    6,436,430  ...........  ...........        1,482
----------------------------------------------------------------------------------------------------------------

    Because of the substantial cost, the FMCSA is not proposing to 
require regularity in this NPRM. The FMCSA recommends that carriers and 
drivers keep regular schedules to the maximum extent possible.
7. Benefits and Costs Combined
    All options yield net benefits, with the benefits generally 
increasing with the option number. When paperwork benefits are 
excluded, only option 5 has net benefits, while the remaining options 
yield net costs.
    Table 14 reprints the estimated fatal and injury crashes avoided 
from table 25 of the PRE, and presents estimates of the number of 
fatalities and injuries avoided. The rightmost column calculates the 
monetary value of these avoided incidents, based on a value of $3.388 
million per fatal crash avoided and approximately $110,000 per injury 
crash avoided. Appendix C of the PRE explains the derivation of these 
values.

[[Page 25579]]



                                         Table 14.--Benefits of Options
----------------------------------------------------------------------------------------------------------------
                                                                                                        Total
                                                                 Fatal                     Injury     benefits,
                                                  Fatalities    crashes      Injuries     crashes      10 year,
                                                   avoided      avoided      avoided      avoided     billions,
                                                                                                         NPV
----------------------------------------------------------------------------------------------------------------
Option 1.......................................           38           32          985          676          4.4
Option 2.......................................           38           32          985          676          4.4
Option 3.......................................           57           48        1,478        1,014          5.1
Option 4.......................................           83           70        2,153        1,744          5.4
Option 5.......................................          115           98        2,995        2,514          6.8
----------------------------------------------------------------------------------------------------------------

    Table 15 repeats the benefits from the previous table, along with 
cost figures from Chapter 5 of the PRE. It shows that all options yield 
large net benefits, ranging from almost $1.7 billion for options 1 and 
2 to $3.4 billion for option 5. Costs and benefits are for ten years, 
and discounted at a 7 percent rate. Figures do not add because of 
rounding.

                                          Table 15.--Costs and Benefits
----------------------------------------------------------------------------------------------------------------
                                                                  Discounted
                                                                  benefits,        Discounted     Net benefits,
                                                                   billions     costs, billions      billions
----------------------------------------------------------------------------------------------------------------
Option 1.....................................................           $4.418           $2.696           $1.721
Option 2.....................................................            4.418            2.696            1.721
Option 3.....................................................            5.059            2.636            2.423
Option 4.....................................................            5.364            3.083            2.281
Option 5.....................................................            6.803            3.444            3.359
----------------------------------------------------------------------------------------------------------------

    The costs and benefits of options 1 and 2 are identical, with net 
benefits of $1.7 billion. Although, as discussed in chapter 5 of the 
PRE, the flexibility of option 2 might lower motor carrier costs 
somewhat, no attempt was made to quantify lower costs. Option 3 has 
greater benefits and similar costs, resulting in net benefits of more 
than $2.4 billion. Option 4 yields a net benefit of almost $2.3 
billion, while option 5 has the highest net benefits at almost $3.4 
billion.
    Thirty percent of the benefit of options 1 and 2 is due to the 
reduction in crashes, with the remaining 70 percent accounted for by 
paperwork savings. Forty percent of the benefit of option 3 is due to 
the reduction in crashes, with the extra 2.5 percent assumed reduction 
in crashes of option 3 accounting for this difference. Approximately 
fifty percent of the benefit of options 4 and 5 results from the 
reduction in crashes. Table 16 displays the costs and benefits of the 
proposals excluding this paperwork benefit.

       Table 16.--Costs and Benefits Excluding Paperwork Benefits
------------------------------------------------------------------------
                                    Discounted   Discounted      Net
                                    benefits,      costs,     benefits,
                                     billions     billions     Millions
------------------------------------------------------------------------
Option 1.........................       $1.283       $2.696     ($1.413)
Option 2.........................        1.283        2.696      (1.413)
Option 3.........................        1.925        2.636      (0.711)
Option 4.........................        2.619        3.083      (0.465)
Option 5.........................        3.597        3.444          153
------------------------------------------------------------------------

    Ignoring the paperwork benefits does not affect costs. However, the 
impact on benefits is substantial. The resulting reduction in benefits 
lowers net benefits for all options, with options 1 through 4 yielding 
net costs.
    Table 17 shows the marginal costs, benefits and net benefits of 
moving from one option to a more stringent option. For all the changes 
in the table, costs increase, but not as much as benefits, so net 
benefits also rise. Net benefits jump by one third between options 2 
and 4, and almost double between options 2 and 5. Moving from option 4 
to option 5 increases net benefits by one half.

                           Table 17.--Marginal Changes in Costs, Benefits, and Crashes
----------------------------------------------------------------------------------------------------------------
                                                                                                         Net
                                                                                            Net       benefits,
                     Change                         Fatal        Costs,     Benefits,    benefits,    millions,
                                                   crashes      millions     millions     millions        no
                                                                                                      paperwork
----------------------------------------------------------------------------------------------------------------
2 to 4.........................................        (343)         $387         $946         $559         $948
2 to 5.........................................        (597)          748        2,386        1,638        1,566
4 to 5.........................................        (254)          361        1,439        1,079          618
----------------------------------------------------------------------------------------------------------------


[[Page 25580]]

    Lowering the assumed accident reduction rates reduces the net 
benefits of all options. Because paperwork savings constitute a large 
part of total benefits, a given percent reduction in crashes results in 
a smaller reduction in net benefits. Halving the assumed crash 
reduction rate for all options lowers the net benefits of options 1 and 
2 by approximately one third, and options 3, 4, and 5 by approximately 
40 percent.
    The PRE discussed the uncertainty concerning the percent of 
fatigue-related crashes. While the FMCSA estimates that 15 percent of 
all truck crashes are fatigue-related, analysts disagree about the 
precise figure. Accordingly, the following table shows the impact of 
lowering the baseline fatigue-related crash rate. Table 18 shows the 
costs, benefits, and reductions in accidents that would occur if 7.5 
percent of all truck crashes were fatigue-related.

                      Table 18.--Impact of 7.5 Percent Baseline Fatigue Related Crash Rate
----------------------------------------------------------------------------------------------------------------
                                                                              Injury       Safety        Net
                                                              Fatal crash     crash      benefits,    benefits,
                                                               reduction    reduction     millions     millions
----------------------------------------------------------------------------------------------------------------
Option 1....................................................           16          338         $642       $1,080
Option 2....................................................           16          338          642        1,080
Option 3....................................................           24          507          962        1,461
Option 4....................................................           35          738        1,341        1,003
Option 5....................................................           48        1,027        1,829        1,591
----------------------------------------------------------------------------------------------------------------

    Lowering the assumed fatigue-related crash rate reduces the 
benefits of all the options, but all options continue to show sizeable 
net benefits. Increasing the baseline fatigue-related crash rate 
obviously results in higher gross and net benefits.
    Chapter 4 of the PRE noted the uncertainty surrounding the price of 
EOBRs, with estimates ranging from $700 to $19,000 per unit. Because of 
doubt about the true cost, the FMCSA analyzed the consequences of 
higher and lower EOBR costs. Increasing the purchase price to $2,000 
and the annual operating cost to $200 raises the cost of option 4 by 
almost $380 million, from $3.08 billion to $3.46 billion. Benefits 
continue to exceed costs, with net benefits of $1.9 billion. Excluding 
paperwork benefits, costs exceed benefits by $843 million over ten 
years. For option 5, costs shoot up approximately three quarter of a 
billion dollars, to $4.167 billion, while net benefits fall by the same 
amount, to $2.6 billion.
    The FMCSA also analyzed the impact of halving the cost of EOBRs, to 
$500 per unit and $50 per year. Not surprisingly, costs for both 
options plummet. For option 4, costs falls by almost $189 million, and 
net benefits increase by that amount. The cost of option 5 declines by 
approximately $362 million, and net benefits increase commensurately. 
Neither option appears to be overly sensitive to changes in the cost of 
EOBRs. Only when the cost of EOBRs reaches $6,000 does the cost of 
option 5 equal the benefits. For option 4, the breakeven EOBR cost is 
approximately $7,000.
    The FMCSA believes it is likely that the price of EOBRs will fall 
as production increases. As manufacturers gain proficiency in producing 
a product, improved use of labor and material tend to lower the costs 
of productions. Improvements include reducing the number and complexity 
of component parts, improved production of components, improved 
assembly speed and processes, reduced error rates, and better 
manufacturing processes. In a 1984 study of 108 manufacturing items 
from 22 field studies, Dutton and Thomas found a progress ratio of 
slightly higher than 80 percent, which means that each doubling of 
cumulative production reduces the cost level by 20 percent (Dutton and 
Thomas).
    The effectiveness of EOBRs in reducing fatigue-related crashes is 
also subject to disagreement. The FMCSA argued in Chapter 4 of the PRE 
that drivers of vehicles with an EOBR will have 20 percent fewer 
fatigue-related crashes than those without the devices, because EOBRs 
will enhance enforcement officers to capabilities to detect violations 
and will thereby increase compliance. The FMCSA also evaluated the 
impact of varying the assumed level of reduction in fatigue-related 
crashes brought on by EOBRs.
    Table 19 shows the costs, benefits and number of accidents that 
would be avoided if EOBRs only reduced fatigue-related crashes by 10 
percent. Costs are unchanged, but fewer accidents are avoided, so total 
and net benefits drop for options 4 and 5. Benefits for both options 
remain positive. However, the net benefit of option 4 falls by $900 
million, and that of option 5 by $1.5 billion. The net benefit of 
option 4, $1.34 billion, is less than that of options 1, 2 and 3. The 
new benefit of option 5 exceeds that of all options except option 3.

                      Table 19.--Impact of Reducing EOBR Crash Reduction Rate to 10 Percent
----------------------------------------------------------------------------------------------------------------
                                                                              Injury       Safety        Net
                                                              Fatal crash     crash      benefits,    benefits,
                                                               reduction    reduction     millions     millions
----------------------------------------------------------------------------------------------------------------
Option 4....................................................           44          943       $1,717       $1,379
Option 5....................................................           53        1,135        2,054        1,816
----------------------------------------------------------------------------------------------------------------

    The benefits and costs of this proposal, and of alternative 
options, depend on the values of several key parameters which can be 
substantiated by robust, empirical data. These include the following:
    1. The relationship between on-duty and off-duty hours of service 
and crash risks;
    2. The cost of relocating fixed terminals that motor carriers may 
have to incur in transitioning from the current to the proposed HOS 
rules;
    3. The extent to which the proposal or some alternative would 
effectively reduce the driving time of current

[[Page 25581]]

drivers and thus result in the hiring of additional drivers;
    4. The change in the driver workforce a motor carrier might 
reasonably anticipate in terms of numbers and levels of experience;
    5. The cost of hiring additional drivers;
    6. The effect of additional hiring on the average wages of new and 
existing drivers;
    7. The effect of reduced hours on existing drivers' income;
    8. The effect of experience on overall accident risk for existing 
drivers' experience levels and that of additional drivers required to 
make up the lost hours;
    9. The baseline percentage of overall crashes that one could 
reasonably expect to be affected by a change in the HOS rules;
    10. The rate of crash reduction caused by changes in HOS;
    11. The effect of a change in HOS on the distribution of driving 
between nighttime and daytime hours and the effect of any such change 
on overall accident risks;
    12. The effect of the requirement that motor carriers notify 
drivers about their responsibility for loading and unloading;
    13. The effect of requiring or recommending that drivers take the 
opportunity provided by off-duty periods to obtain rest.
    14. The cost of purchasing, installing, maintaining, and using 
EOBRs, particularly for small entities;
    15. The effect of EOBRs on compliance with HOS rules; and
    16. The reduction in paperwork burden for Type 1 and 2 operations 
(attributable to replacing RODS with EOBRs) and Type 3 through 5 
operations (due to replacement of RODS with DOL time records).
    The FMCSA seeks comments on the quantitative information presented 
on each of the parameters listed above and requests data and analysis 
regarding them and on any other aspects of the regulatory evaluation. 
Such information would be most useful if, to the extent feasible and 
relevant, it were: (1) Broken out by driver Type (i.e., 1 through 5) 
and (2) provided in such a way as to enable an analysis of alternative 
options. For example, data indicating an option would result in hiring 
of a substantially different number of additional drivers or have a 
demonstrably different effect on overall safety would be useful. 
Similarly, concerns about the data presented in this NPRM should be as 
specific and quantitative as possible to be helpful.

J. The Option Selected to Propose

    Based on the options, the recordkeeping options, the benefit-cost 
analyses summarized above, and other regulatory analyses, the FMCSA has 
chosen to propose option 5. This option proposes to require EOBRs for 
Type 1 and 2 operations for compliance purposes only. EOBRs are not 
intended for other types of surveillance (e.g., audio or video 
recording). They are intended solely to satisfy HOS reporting and 
recordkeeping requirements. The information they collect and provide 
should not be used for other purposes. This option also requires Type 1 
and 2 drivers have at least 10 consecutive hours off duty, work up to a 
14-consecutive-hour period including taking 2 hours for breaks, meals, 
and naps. Option 5 saves the most lives, 115, prevents the most 
injuries, 2,995, and provides the highest net benefits to society, 
almost $3.359 billion, assuming that 15 percent of all CMV-involved 
crashes are fatigue-related and the proposed rules cut fatigue-related 
deaths each year by 20 percent for long-haul and regional motor carrier 
operations and 5 percent for all other motor carrier operations.
    The FMCSA proposal would divide the motor carrier industry into the 
five types of motor carrier operations discussed in section VII.C., 
Types of Motor Carrier Operations, earlier in this NPRM.
    Type 1--Long haul. These drivers are away from their normal work 
reporting location and home for more than three days at a time; in 
total, they are away from home for a large part of the year.
    Type 2--Regional. These operations are similar to Type 1, except 
that drivers are away from their home base only 3 or fewer days at a 
time.
    Type 3--Local split shift. Split-shift drivers spend most of their 
on-duty time driving, but most are local (or home-based), and their 
driving shifts are generally separated by several hours.
    Type 4--Local pickup and delivery. Type 4 drivers work in the 
vicinity of their normal work reporting location. They are generally on 
regular schedules extending less than 12 consecutive hours from the 
time they report in until they check out. Driving is a significant part 
of their work, more than half of their on-duty hours.
    Type 5--Primary work not driving. These drivers also work in the 
vicinity of their normal work reporting location. Unlike Type 4, 
however, they spend only one-third (or less) of their on-duty hours 
behind the wheel. The classification covers operators of CMVs whose 
duties do not center around driving, but who operate these vehicles as 
a necessary part of their work assignments.
    In a document to be published at a later date in the Federal 
Register, the FMCSA will propose a new version of the FMCSRs using a 
question-and-answer format in which regulations applicable to drivers 
and motor carriers will be printed in separate sections. The HOS rules 
being proposed today are drafted in that format. Part 394 would apply 
to motor carriers and Part 395 to drivers.

VIII. Additional Petitions Received

    The Office of the Secretary of Transportation (OST) and the FHWA 
received three petitions from motor carrier associations in August 
1999. On August 5, 1999, the OST received a petition from the ATA 
requesting an addition to 49 CFR 5.1(d) and providing suggested rule 
text. ATA explained its purpose was to:

give those affected by [FMCSA] hours of service regulations the 
opportunity to furnish to the Department comments on the scientific 
studies, findings and principles upon which the Department intends 
to base its decisions on [FMCSA] hours of service regulations.

The OST created docket number OST-99-6075 for this petition, denied the 
petition on September 29, 1999, and notified the ATA of its decision.
    On August 11, 1999, the DLTLCA (Distribution and LTL Carriers 
Association) petitioned the FHWA to adopt an amended rule providing a 
non-distance-based exemption when a driver meets the following three 
conditions:
    1. The driver reports to and is released from a normal work 
reporting facility.
    2. The driver complies with the daily driving and on-duty time 
limits set forth in current Sec. 395.3.
    3. The motor carrier maintains records of the driver's on-duty 
status.
    The FMCSA addresses the subject of the DLTLCA petition in the above 
discussions about time records and believes this NPRM incorporates a 
discussion of this matter.
    On August 12, 1999, the FHWA received another petition from the 
DLTLCA asking the agency to adopt further procedures under 49 CFR 
389.25 Additional rule making proceedings to allow the participants of 
this NPRM to review and comment on the safety and fatigue research 
which the FMCSA gathered and relies upon in this document to propose 
revising the current HOS rules. Further, the DLTLCA requested that the 
FHWA implement these procedures before issuing this NPRM. The Office of 
Motor Carrier Safety denied this petition, notified the

[[Page 25582]]

DLTLCA of its decision, and has filed the decision in the docket for 
review.
    Commenters are also requested to provide and justify values for the 
types of parameters specified in FMCSA's proposal. These parameters, 
for example, include:
    1. The need for and duration of mandatory rest breaks during the 
daily on-duty period;
    2. The number of hours per day and per week that drivers would be 
allowed to be on-duty, with or without averaging over more than one day 
or one week;
    3. The length and timing of any weekly recovery period; and
    4. The allowance for drivers to reset their weekly on-duty total 
back to zero after any minimum weekly recovery period.

IX. Implementation

    The FMCSA is proposing that all motor carriers would continue to 
have to comply with the current Part 395 until 6 months after 
publication of the final rule. On that date, all motor carriers would 
begin complying with most requirements of the final rule. The agency 
believes this should be sufficient time to make any necessary 
adjustments to schedules and to familiarize drivers, other motor 
carrier personnel, and Federal, State, and local enforcement personnel 
with the details of the new rules.
    The requirements for installed and in use EOBRs in Type 1 and Type 
2 operations would be mandatory within 2, 3, or 4 years of that date 6 
months after publication of the final rule. The deferred mandatory 
compliance dates for EOBRs in Type 1 and 2 operations are staggered 
according to the size of the motor carrier on that 6-month effective 
date: 2 years for carriers with 51 or more power units; 3 years for 
carriers with 20 to 50 power units; and 4 years for carriers with 20 or 
fewer power units on the effective date of the rule. The intent of the 
deferred implementation schedule is to mitigate the start-up costs, 
particularly for small entities. The agency believes that the more 
universal the use of these devices, the more likely the price will 
drop. The analysis of cost is provided elsewhere in this NPRM.
    Type 1 and 2 motor carriers and their drivers would continue to use 
the current part 395 recordkeeping requirements until they purchase, 
install, and begin using the mandatory EOBRs. If a motor carrier 
chooses to wait until the applicable date 2 to 4 years in the future to 
begin using EOBRs, that motor carrier would have to comply with the 
current Sec. 395.8 RODS or Sec. 395.15 automatic on-board recording 
device requirements. This should provide an incentive for those motor 
carriers that would like to take advantage of the various cost savings 
to do so as soon as they begin using compliant EOBRs.
    As discussed above in VII. F. 1., the WHD records in 29 CFR part 
516 do not include change of duty status location data that is needed 
by the FMCSA and its State and local partners in law enforcement to 
enforce the proposed rules for safety purposes. The FMCSA cannot 
effectively enforce the proposed safety rules to discover whether 
drivers are operating CMVs while tired or unalert without locations 
added. The location of duty status changes is important only for those 
drivers who do not return to their normal work reporting location at 
the end of each work shift to determine where duty is occurring and is 
necessary for enforcement of the rule. For Type 1 and 2 drivers, the 
FMCSA needs locations of CMV drivers duty status changes either on a 
WHD-required time record or an EOBR.
    The FMCSA believes requiring the continued use of the historical 
Sec. 395.8 RODS would reduce unnecessary confusion. Requiring a WHD 
time record with the additional location data on it would create 
unnecessary confusion and would probably create enforcement problems. 
First, many motor carrier employers probably have not been creating the 
WHD time record in the first place. This, of course, is possibly a 
violation of FLSA requirements. The FMCSA has spoken with numerous 
driver-employees of non-unionized motor carriers who have no knowledge 
that they are covered under the FLSA minimum wage requirements. This 
leads FMCSA to believe that the motor carriers are only requiring the 
RODS, but are not also creating the WHD time record to calculate the 
minimum wage required to be paid. Motor carriers would have to create a 
temporary time record system adding appropriate location data for the 2 
to 4 years until they install and begin using EOBRs. Second, motor 
carriers would have to scrap the temporary system once they do install 
compliant EOBRs. The FMCSA believes this is too much burden and 
unnecessary confusion. It expects motor carriers and drivers to 
understand and have the ability to implement that temporary system to 
be in compliance and then scrap it. Third, Federal, State, and local 
law enforcement would have to learn how to interpret each carrier's 
temporary time record system for roadside enforcement. Delays of 
freight and passengers would probably result when officers begin asking 
questions that drivers could not answer. Officers would begin 
contacting the motor carriers directly for the answers before allowing 
drivers to proceed. Fourth, drivers, carriers, and officers know the 
current RODS system and automatic on-board recording system to be able 
to enforce the rules immediately.
    Of course, those motor carriers that have chosen to use current 
Sec. 395.15 EOBRs may be able to begin using the new recordkeeping 
rules on the 6-month effective date, depending upon whether their EOBRs 
are compliant with the final rule (including the proposed requirement 
to upgrade warning, sensor failure, and edited data requirements).
    As an alternative, for Type 1 and 2 drivers operating non-compliant 
EOBRs, the FMCSA is considering a requirement that motor carriers would 
implement the proposed daily off-duty limitation, but would delay 
implementing the proposed on-duty limitations for those Type 1 and 2 
drivers. The motor carriers would have to use the proposed off-duty 
limitation (i.e., 10 hours) each day and record time using RODS until 
all their CMVs were compliant with the EOBR requirements. Creating 
another split recordkeeping situation within a carrier's operation 
would make compliance verification in the field extremely difficult 
where a driver may drive EOBR-compliant CMVs some of the time and non-
compliant CMVs at other times. In particular, this alternative would 
focus on the proposed 12-hour daily driving limitation and possibly the 
current weekly 60-hour and 70-hour limitations for on-duty time, 
because of the difficulty of verifying off-duty times without EOBRs or 
with the existing RODS. The agency is particularly interested in 
comments concerning these implementation options.

X. Additional Proceedings

    The FMCSA will also hold seven public hearings during the comment 
period. The hearing locations will be dispersed geographically around 
the United States. The purpose of these hearings will be to accept oral 
comments from the public. A notice will be published in the near future 
with the dates, locations, and other particulars of each hearing.

XI. Section-by-Section Evaluation

A. Conforming Amendments

    Changes to other parts of the regulations not contained in the 
revised parts 394 and 395 are necessary to conform them to the new 
requirements in this proposal.

[[Page 25583]]

    1. The first deals with the extent to which State laws and 
regulations governing the operations of CMVs in intrastate commerce may 
differ from the FMCSRs without jeopardizing funds authorized under the 
Motor Carrier Safety Assistance Program.
Section 350.341  What Specific Variances From the FMCSRs Are Allowed 
for State Laws and Regulations Governing Motor Carriers, CMV Drivers, 
and CMVs Engaged in Intrastate Commerce and Not Subject to Federal 
Jurisdiction?
    On April 16, 1992 (57 FR 13572, at 13580), the FHWA discussed how 
section 4002(l) of the Intermodal Surface Transportation Efficiency Act 
of 1991 required the FHWA to specify tolerance guidelines and standards 
for ensuring compatibility of intrastate CMV safety laws and 
regulations with the FMCSRs under the MCSAP. It has always been the 
FHWA's policy--and now that of the FMCSA--to work toward eventual 
uniformity of interstate and intrastate laws and regulations under the 
MCSAP.
    This NPRM is based on numerous research studies that have direct 
applicability to all CMV drivers, regardless of whether the driver 
operates in interstate or intrastate commerce. The FMCSA believes it 
should remove any tolerance guidelines that allow intrastate exceptions 
and exemptions not based on applicable science. As discussed previously 
in this NPRM, if every CMV driver needs 7 to 8 hours of sleep each 
night and additional time to attend to personal hygiene, nutrition, and 
commuting time, 16 hours on duty as MCSAP currently tolerates would not 
provide those additional opportunities. The 12-hour driving limit would 
also be removed since that would become the new maximum on-duty limit 
that includes driving. The agency also believes it must require States 
to adopt and enforce the weekly off-duty period that includes at least 
two midnight to 6:00 a.m. periods to be consistent with the research 
findings above. Therefore, all States would be required to achieve full 
compatibility for both intrastate and interstate transportation within 
three years after the effective date of the final rule to this NPRM.
    This section would remove the last phrase from the second sentence 
of paragraph (d) that reads ``nor to the extension of the mileage 
radius exemption contained in 49 CFR 395.1(e), from 100 to 150 miles.'' 
This would conform the tolerance guidelines to the proposed replacement 
of the 100 air-mile radius driver with Type 3, 4, or 5 drivers. 
Paragraph (e) would also be removed.
    2. The second conforming amendment relates to the time off required 
to be taken by a driver before returning from operations excluded from 
regulation under the ``emergency exception'' provision.
Section 390.23  Relief from Regulations
    This section would be amended to increase the minimum off-duty time 
after emergencies from eight hours to ten hours to conform with the new 
10-consecutive-hour minimum in this proposal. It would also replace the 
current ``24-hour clock reset'' provision with the proposed minimum 
requirement for two consecutive nights off-duty, including the core 
sleep periods from midnight to 6:00 a.m., before returning to normal 
driving subject to the HOS rules. The rules also would require the 
driver to begin at or after 7:00 a.m. to be consistent with proposed 
Secs. 394.163 and 395.163.
    The FMCSA would also make a technical amendment by replacing the 
term ``Regional Director'' wherever it is found in Secs. 390.23 and 
390.25 with the term ``State Director.'' The FHWA reorganized its field 
offices in January 1999 while FMCSA was still a part of the FHWA. The 
title of ``Regional Director'' no longer exists. This action will 
formally permit FMCSA State Directors to declare and extend Statewide 
emergencies under these two sections. For emergencies that are of a 
regional nature, several State Directors may issue the same exemption.

B. Proposed Hours of Service Parts 394 and 395

    The proposed rule would replace the current part 395 with two 
parts, one directed at the motor carrier and the other, the driver. The 
numbered section in each part correlates with the same numbered section 
in the other part, so long as they address the same subject matter. The 
corresponding sections are combined for purposes of this analysis, and 
to avoid repetition.
Purposes, Standards, Penalties, and Exemptions
Sections 394.101, 395.101  What Are the Purpose and Standards of This 
Part?
    These sections describe the purpose of the rule. These would 
immediately and clearly emphasize the need to use well-rested, alert, 
and attentive drivers by stressing off-duty time, daily and weekly, to 
ensure drivers have an opportunity to get sufficient, restorative 
sleep. The lead section in both the motor carrier and driver parts 
would fix responsibilities to make sure this happens.
    These sections also clarify the responsibilities and standards that 
require sufficient off-duty time daily and weekly to ensure drivers 
have an opportunity to get sufficient, restorative sleep, and that 
these responsibilities reside with both drivers and motor carriers. The 
rule would provide three standards for motor carriers to achieve. It 
also would have three things a motor carrier should do as additional 
guiding principles. The advisory items in paragraph (d) have no 
regulatory effect, but are standards of care to assist motor carriers 
and drivers to operate CMVs safely. The FMCSA believes it is necessary 
to establish these guiding principles so that the connection between 
the rules and their objectives is not lost, and the carriers and 
drivers are reminded that their responsibility to avoid the risks 
associated with driving while fatigued is not limited to minimal 
compliance with prescriptive rules.
Sections 394.103, 395.103  What Must I Do To Enhance Driver Alertness?
    These sections describe how motor carriers and drivers should carry 
out their respective responsibilities to ensure that the drivers are 
alert and otherwise fit to operate CMVs safely. Drivers and motor 
carriers would be responsible for ensuring that drivers who have more 
than one job work no more than 12 or 13 hours depending upon the type 
of operation they work in. These responsibilities would incorporate the 
various interpretations provided over the years concerning drivers 
working for other motor carriers and entities. The FMCSA does not 
propose to extend this policy to volunteer work or National Guard/
Reserve duty, such as drill weekends, or to try to control other types 
of unpaid activities (e.g., roofing a friend's home, painting the 
driver's own house), which, realistically, are beyond the agency's 
enforcement reach. The FMCSA, however, believes drivers and motor 
carriers must be aware that any type of physical or mental exertion can 
produce fatigue. Drivers and motor carriers should take into account 
these other types of fatigue-producing activities when planning their 
off-duty periods so that they ensure they protect highway safety to the 
maximum extent possible.
    The FMCSA's goal is to ensure CMV drivers are well-rested, alert, 
and attentive while driving. CMV drivers who work during off-duty 
periods circumvent the purpose of the regulations, create risks to 
highway safety, and increase the chances of fatigue-related crashes.

[[Page 25584]]

Sections 394.105, 395.105  What Are the Penalties for Failing To Comply 
With This Part?
    These sections describe the penalties for motor carriers and 
drivers who fail to comply with the requirements of these parts. This 
provision is placed in the beginning of the parts to advise drivers and 
motor carriers that failure to meet their responsibilities under the 
regulations carries severe consequences.
Sections 394.107, 395.107  What Definitions Apply to This Part?
    These sections provide definitions that are unique to these parts. 
They will eventually be included in a part devoted to definitions when 
the agency completes the zerobase revision of the FMCSRs.
    The FMCSA would define an automated time-record system. This would 
be the equivalent of what is now commonly known as the EOBR, but would 
allow various technologies that currently exist or may be developed, 
providing they meet the performance requirements of proposed part 394, 
subpart C. Allowing new and alternative technologies was the subject of 
an interpretation published in the Federal Register on April 6, 1998 
(63 FR 16697), authorizing a pilot demonstration project for monitoring 
drivers' HOS using GPS technology. The definition would be similar to 
the definition of automatic on-board recording device currently in 
Sec. 395.2. The last two sentences of the current definition would be 
moved to subpart C, since these are actually performance requirements 
for a system.
    The FMCSA would add definitions for the new terms ``off-duty 
time,'' ``workday,'' and ``workweek,'' modify the definition of the 
term ``on-duty time,'' and keep the definition of ``driving time'' from 
the current rule in Sec. 395.2. Consistent with the overall objectives 
of these parts, the FMCSA is incorporating references to the 
regulations of the WHD. The definition of ``off-duty time'' would be 
similar to the WHD's definitions in Application of Principles in 29 CFR 
785.16, Off-duty, Sec. 785.18 Rest, and Sec. 785.19 Meal. Similarly, 
off-duty time would be required to last at least 30 minutes if it is to 
be counted toward the required accumulation, which is also consistent 
with WHD's definitions. Any time less than 30 minutes would be 
considered on-duty time because such short breaks are insufficient to 
meet the need for restorative rest. This is also similar to the way WHD 
treats shorter periods for minimum wage purposes.
    The FMCSA definition of ``on-duty time'' would be revised to make 
it consistent with the term ``hours worked'' as explained in the WHD's 
regulation at 29 CFR 785.7 Judicial construction, referencing a series 
of U.S. Supreme Court cases: Tennessee Coal, Iron, and Railroad Co. v. 
Muscoda Local No. 123, 321 U.S. 590 (1944), Armour & Co. v. Wantock, 
323 U.S. 126 (1944), Skidmore v. Swift, 323 U.S. 134 (1944), and 
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).
    In consultations between the FMCSA and the WHD, the WHD believes 
for consistency of rule application, subject motor carrier employers 
must ensure that: (1) driver-employees must be completely relieved from 
duty; (2) the period must be long enough for the employee to use the 
time effectively for the driver's own purposes; and (3) the employee is 
told explicitly in advance that the driver may leave the job and that 
the driver will not have to commence work until a definite, specific 
hour has arrived. The WHD has had recent minimum wage enforcement cases 
involving motor carrier employers failing to count on-duty waiting time 
while drivers wait at shipper and receiver locations as hours worked. 
These definitions and the removal of the duplicative recordkeeping 
systems should end motor carriers failing to properly count on-duty 
waiting time of drivers.
    The FMCSA would define the terms ``workday'' and ``workweek'' to be 
compatible with the WHD's definitions of these terms in 29 CFR 
516.2(a)(7). The use of common terms and definitions would allow time 
records created by drivers and by motor carriers to be used to comply 
with the recordkeeping requirements of both the FMCSA and the WHD. 
Records currently created for FMCSA compliance purposes use definitions 
and interpretations created over the years by the ICC, FHWA, and the 
FMCSA; and they differ somewhat from those used by the WHD. The 
differences often create confusion for motor carriers and drivers--and 
for officials from both the FMCSA and the WHD--when it comes to 
assessing a motor carrier's compliance with FMCSA and WHD regulations.
    Two key examples of potential problem areas are the recording of 
duty time to determine a motor carrier's compliance with the minimum-
wage provisions of the Fair Labor Standards Act, and a motor carrier's 
use of a WHD time card to verify drivers' entries on their records of 
duty status entries. Comparing separate records using the two different 
sets of definitions may make it appear the driver has a false RODS 
under current part 395. In fact, both sets of records may be accurate 
and correct for their respective purposes. The FMCSA's regulations and 
regulatory guidance have allowed drivers to record some periods of time 
during the workday as off-duty time. However, the WHD requires the 
motor carrier to record the same period as time ``worked'' and to 
compensate the driver for that time.
    In summary, the definitions the FMCSA proposes to revise in this 
section would make the FMCSA's ``on-duty time'' the equivalent of WHD-
required ``paid work.'' The FMCSA would also revise its conditions 
necessary for determining ``off-duty'' time so they would correspond to 
the WHD's definition. This change should fix the problems described 
above, reduce the need for regulatory interpretation by tying into an 
established body of WHD interpretations, and provide clear guidelines 
for motor carriers and the FMCSA to make accurate determinations of how 
many hours off-duty the driver had prior to beginning work.
Sections 394.109, 395.109  What Types of Operations Are Exempt From the 
Requirements of This Part?
    These sections would only cover the agricultural operations 
exempted by Congress from hour limits under the NHS Act. The NHS Act 
exempted drivers transporting agricultural commodities and farm 
suppliers from the maximum driving time, maximum duty time, and minimum 
off-duty time limit provisions of the FMCSRs. This provision covers 
only transportation of agricultural commodities or farm supplies for 
agricultural purposes, and is limited to an area within a 100 air-mile 
radius from the source of the commodities or the distribution point for 
the farm supplies. It must take place only during the planting and 
harvesting seasons in each State, as determined by that State.
    The FMCSA interprets the NHS Act provision to exempt this class of 
carriers and drivers from HOS restrictions in the present part 395, but 
does not exempt them from the general responsibilities that ensure 
drivers obtain sufficient restorative sleep and that prohibit ill and 
drowsy, tired, or inattentive drivers from continued driving. 
Consequently, a note is provided in subsection (b) to that effect.
    Paragraph (c) of this section would provide a new requirement for 
those drivers who have been working under the exemption regarding when 
they may

[[Page 25585]]

begin or resume services not subject to the exemption. The FMCSA has 
patterned this requirement after the declared emergency exemption and 
would allow drivers needing immediate rest to obtain such rest. The 
motor carrier would be required to provide at least ten consecutive, 
uninterrupted hours off duty, including the core sleep period from 
midnight to 6:00 a.m., before requiring the driver to perform non-
exempt driving duties. This would allow the driver to obtain at least 
one night's sleep to be fit and safe for the next workday subject to 
this proposal. If the driver has been in exempt transportation service 
for more than five consecutive days, the proposed rule would require 
the driver be provided a continuous off-duty period that includes two 
consecutive midnight to 6:00 a.m. periods. The driver could return to 
service at 7:00 a.m. like all other drivers required to take a 
``weekend'' off duty as required by proposed Sec. 394.163. The FMCSA 
believes the regulations have to allow the driver a period of sleep 
time necessary to restore any sleep debt the driver may have 
accumulated while providing the exempt transportation services.
    Paragraph (d) proposes definitions limited to this section only, 
i.e., the terms ``agricultural commodities,'' ``farm supplies,'' and 
``source of the commodities.'' The NHS Act did not provide definitions 
for these terms, and the terms have sometimes been confusing to the 
public and enforcement officials. These narrowly defined terms should 
limit the exemption to those drivers and motor carriers that are 
farmers having field crops and those suppliers that provide farm 
supplies directly to farmers.
    Paragraph (e) provides clarification that this exemption does not 
preempt other Federal and State laws or regulations. The exemption does 
not exempt a motor carrier from the FLSA. States are also free to 
restrict agricultural operations to applicable HOS regulations.
Implementation Schedule
Sections 394.111, 395.111  When Must I Begin To Comply With the Rules 
in This Part?
    These sections would require the new hourly limits to begin 
immediately on the effective date of the final rule, 180 days after 
publication in the Federal Register. All motor carrier operations 
engaged in interstate commerce must begin complying with the new hours 
of rest and service requirements at that time of the effective date of 
the final rule; however, the agency is proposing that the requirements 
for use of EOBRs by Type 1 and 2 operations be phased in over a period 
of 4 years after the effective date of the final rule. The largest 
motor carriers, i.e., those with more than 50 power units, would have 
to be in full compliance within two years after the effective date; the 
medium range, those with 20 to 50 power units, would have to reach full 
compliance within 3 years; and the small carriers, i.e., those with 
fewer than 20 power units, could take 4 years to come into full 
compliance. The proposal defines full compliance as (1) having fully 
operational automated time record systems meeting the proposed 
requirements installed, (2) the drivers properly trained in their use, 
and (3) a systematic monitoring program in place and operational.
    Until any Type 1 and 2 carrier complies with the EOBR requirements, 
that carrier must comply with the recordkeeping rules that were in 
effect immediately before the effective date of the final rule. That 
means that motor carriers in Type 1 and Type 2 operations that do not 
have compliant EOBRs must comply with the presently existing 
requirements for daily records of duty status in Sec. 395.8 or 
Sec. 395.15 automatic on-board recording devices.
    These transitional rules, i.e., the existing Sec. 395.8, will be 
set forth in the codified CFR as published by the Government Printing 
Office in smaller type after an explanatory note of the effective date 
of the new rules.
Types of Operations
Sections 394.121, 395.121  Are There Different Rules For Different 
Types of Operations?
    These sections specify five different types of motor carrier 
operations. For each type of operation, the regulations would require 
specific off-duty periods during each workday and each workweek. The 
FMCSA believes each type of operation has characteristics that reflect 
a different level of daily management contact that corresponds to more 
or less control or supervision over the driver. The ability of 
management to assess the alertness and attentiveness of the driver is 
different in each type of operation. As will be seen in later sections, 
the proposed regulations would specify different off-duty, driving, and 
on-duty periods for each type of operation, depending on the fatigue-
related crash history, amount of driving, and the relative opportunity 
for direct control or verifiability of the driver's adherence with rest 
period requirements.
    In Type 1 operations motor carriers generally have less daily 
management control over drivers than in any other type of operation, 
although, because of unique systems, some individual motor carriers may 
exercise more control than others. These drivers spend most of their 
working time behind the wheel, operate at all hours of the day and 
night under a wide variety of conditions, and are usually most lacking 
in off-duty time for regular restorative sleep. Motor carrier 
management should monitor these drivers more closely as they have a 
higher crash risk, as discussed earlier in this NPRM in the ``Safety 
Problem'' and ``Benefits'' sections. Because of the remoteness of their 
working locations, however, these drivers generally do not have much 
daily direct contact with management. Based on the scientific and 
experiential evidence, the FMCSA believes EOBRs are the best way to 
improve monitoring and ensure that drivers follow the rules. While the 
new, prescribed work/rest hours should go a long way toward improving 
the drivers' ability to obtain needed sleep, that objective is only 
attainable if the rules are followed.
    These motor carriers would have to ensure these devices and their 
associated equipment, software, and, if the motor carrier chooses, 
satellite monitoring systems have been properly installed. In addition, 
motor carriers would need to ensure the devices, systems, and software 
are maintained according to the manufacturer's directions, as well as 
train drivers and staff to use them. The costs are somewhat mitigated 
by the growing inclination toward investment in electronic and other 
automated systems that can be adapted to perform the functions of the 
EOBRs. The agency believes the costs would be justified by improved 
regulatory compliance and reduced crashes.
    Type 1 carriers and drivers would be able to use a flexible 
schedule allowing an extra day of work in the first of two workweeks, 
take a short ``weekend,'' and then conclude a shorter second workweek 
with an extended ``weekend'' at home or other location. This 2-week 
flexible alternative to the standard workweek could be used to 
alleviate the stress and other pressures caused by compliance with the 
present 60- and 70-hour limitations. Drivers often complain that they 
``run out of hours'' at remote locations and are faced with the choice 
of taking a long stressful off-duty period, or breaking the rules. Many 
admit they often choose to break the rules in those circumstances. 
Rather than being forced to take long breaks at remote, inconvenient 
locations, these drivers

[[Page 25586]]

could begin a return trip sooner or take a longer break at locations 
more conducive to regular, restorative sleep.
    Type 2 operations are similar to those of Type 1 except that the 
drivers are away from their home base three or fewer days at a time and 
thus are able to sleep more often in a familiar home or other desirable 
environment.
    As described in the rule development sections, drivers in Type 3 
operations also spend most of their on-duty time driving, but their 
driving patterns are different from the Type 1 and Type 2 drivers. They 
are generally local or home-based, and their driving periods are split 
into two parts, most often separated by several hours.
    Drivers in Type 4 operations work in the geographic vicinity of 
their normal work reporting location. They are generally on regular 
schedules, and they are not on duty more than 12 consecutive hours from 
the time they report in until the time they are released. Driving is a 
significant part of their work (more than one-third of their on-duty 
hours). Establishing this category eliminates the need for the several 
existing exemptions, including the 100 air-mile radius exception 
currently found in 49 CFR 395.1(e).
    Drivers in Type 5 operations also work in the vicinity of their 
home or normal work reporting location. The difference between a Type 4 
and 5 operation is that in the latter category, driving is usually 
incidental to the primary occupation of the drivers. Type 5 drivers 
spend less than one-third of their on-duty hours behind the steering 
wheel. Type 5 operations might include utility workers such as 
electrical, water, natural gas, or communications lines specialists; 
construction equipment operators; environmental mitigation specialists; 
oilfield service workers; ground water well drilling workers; operators 
of mobile medical equipment providing community patient services; and 
driver-salespeople. Establishing this category eliminates the need for 
an array of exemptions for these specialized operations.
Sections 394.123, 395.123  How do I determine Which Requirements Apply 
to my Operations?
    These sections would make it clear to the motor carriers and 
drivers that they must comply with the rules applicable to the type of 
operation that best describes their own. The actual facts and 
circumstances at the time compliance is required would determine the 
appropriate category, but carriers and drivers would not be liable to 
penalty if they are complying in good faith with requirements 
applicable to a type of operation they reasonably believed included 
their own.
Sections 394.125, 395.125  May I Assign my Drivers to More Than One 
Type Operation Within a Workweek?
    These sections provide flexibility for drivers and motor carriers 
to switch between types of operations after the drivers have accrued an 
appropriate amount of off-duty time. For example, if drivers who have 
been working in a Type 5 operation for a workweek have to be switched 
to a Type 4 operation, they could do that after taking an off-duty 
period that includes two consecutive midnight to 6:00 a.m. periods.
Fatigued Drivers
Sections 394.131, 395.131  What must I do if my driver becomes impaired 
by fatigue or illness?
    These sections would require drivers to cease driving when their 
ability is impaired due to illness or fatigue. These sections parallel 
the prohibition contained in the current 49 CFR 392.3, and we have 
added the prohibition that motor carriers must not retaliate, penalize, 
discipline, dismiss, or otherwise discriminate against drivers who 
exercise their obligations to stop driving. Drivers would report 
violations of this section to the U.S. Department of Labor's 
Occupational Safety and Health Administration (OSHA), as required by 49 
U.S.C. 31105 and OSHA's implementing regulations at 29 CFR part 1978 
Rules for Implementing Section 405 of the Surface Transportation 
Assistance Act of 1982 (STAA).
    The OSHA has procedures implementing the statutory provisions for 
the handling of complaints of discrimination made by drivers, or 
persons acting on their behalf. The rules, together with those set 
forth at 29 CFR part 18, specify the procedures for submission of 
complaints under 49 U.S.C. 31105, investigations, issuance of findings 
and preliminary orders, objections, litigation before administrative 
law judges, post-hearing administrative review, withdrawals and 
settlements, judicial review and enforcement, and deferral to other 
forums.
    Generally, after considering all the relevant information collected 
during an investigation, OSHA will issue, within 60 days of the filing 
of the complaint, written findings as to whether there is reasonable 
cause to believe that the motor carrier or others have discriminated 
against the driver in violation of 49 U.S.C. 31105. If OSHA concludes 
that there is reasonable cause to believe that a violation has 
occurred, it will accompany its findings with a preliminary order 
providing for relief and will include, where appropriate, a requirement 
that the motor carrier abate the violation; reinstate the driver to his 
or her former position, together with the compensation (including back 
pay), terms, conditions and privileges of the driver's employment; and 
payment of compensatory damages. At the driver's request the order may 
also assess the motor carrier for the driver's costs and expenses 
(including attorney's fees) reasonably incurred in pursuing the 
complaint.
Daily Time
Sections 394.141, 395.141  How Many Consecutive Hours Must my Drivers 
Remain Off-Duty Before Beginning Each Workday?
    These sections specify the minimum number of consecutive hours 
drivers in each type of operation must have off to obtain restorative 
sleep. Only Type 1 team drivers would be allowed to split their off-
duty time into two sleeper berth periods. This would allow one member 
of the team to continue to drive while the other sleeps in the berth. 
Solo drivers would be prohibited from splitting their sleep period. The 
Expert Panel recommended that until there is more definitive 
information available on the relative quality of sleeper berth sleep, 
drivers using sleeper berths should be allowed greater opportunity to 
obtain additional rest. The panel found that:

    Rest or sleep acquired in a sleeper berth is not equivalent to 
rest or sleep in a bed (Mackie and Miller, 1978; Williamson et al., 
1992; Neale et al., 1998). Hertz (1988) reported that drivers using 
sleeper berths had a higher crash risk than drivers obtaining sleep 
in a bed. Mackie and Miller (1978) found that drivers using sleeper 
berths showed earlier signs of performance decrement and earlier 
signs of fatigue, compared to drivers sleeping in a bed. The 
circumstances surrounding sleeper berth use, e.g., typically, split 
sleep periods, vehicle motion, highway and/or truck stop noise, and 
other conditions associated with sleeper berth use, are disruptive 
of restorative sleep. It is assumed, but not documented, that sleep 
acquired in a sleeper berth while the vehicle is in motion (i.e., 
while another driver is driving) is not so restorative as sleeper 
berth sleep in a stationary vehicle. However, both have been 
reported to be less restful. Single drivers who use a sleeper berth 
report that they are not able to sleep well because of concerns for 
their personal safety (Neale et al., 1998)
    Team drivers, like other drivers, must be limited to 12 hours on 
duty during any 24-hour period, with 12 hours off duty. The off-duty 
time should include an uninterrupted time period of at least 7 hours 
to allow for

[[Page 25587]]

6 hours of continuous sleep, with another period of at least 2 hours 
for sleep. There should also be another 3 hours for other 
activities.
    Although the Panel was not able to quantify the difference 
between sleeper berth sleep and sleep acquired in the home, there 
must be recognition of the difference in quality of sleep in a 
sleeper berth compared to sleep acquired under more normal 
circumstances. The practical and economic limitations on sleeper 
berth use restrictions are acknowledged by the Panel.

    The FMCSA is proposing to increase the current minimum sleeper-
berth period (2 hours) to five hours to provide the drivers a better 
opportunity to obtain restorative sleep. To obtain the minimum 10 hours 
off duty for drivers in type 1 operations under this proposal, team 
drivers must split their time into two periods of at least 5 hours 
each. Of course, these drivers could also each sleep 10 consecutive 
hours in the sleeper berth while the CMV is moving, though the driving 
member would be limited by the additional 2-hour rest, nap, and meal 
breaks and the on-duty time limitations.
    Although the NTSB and others recommend the removal of the sleeper 
berth exception, the FMCSA believes such a decision would be premature. 
The marine industry, for example, has an international treaty 
requirement for 10 hours of rest daily, which may be broken into two 
periods where one must be at least 6 consecutive hours. This is similar 
to the sleeper berth practice that has evolved in the trucking 
industry. The FMCSA does not believe the evidence in support of those 
recommendations is sufficient to warrant that step. The FMCSA has a 
research study underway on sleeper-berth use and the quality and 
quantity of restorative sleep drivers obtain in these berths while the 
CMV is traveling on the road at highway speeds. The agency's position 
will be reevaluated when the results of the study are available.
Sections 394.143, 395.143  What Are the Consequences of Interrupting a 
Driver's Minimum Consecutive Off-Duty Hours?
    These sections would provide that motor carriers that interrupt a 
driver's off-duty period would have to ``restart the clock'' with 
respect to that driver's consecutive off-duty time. This provision 
would also apply to team drivers using the sleeper berth exception so 
that motor carriers cannot disturb the sleeping driver.
    Drivers frequently complain that motor carriers call them at any 
hour of the day and night, frequently interrupting their sleep. Bonnet 
(1994) notes that the continuity of sleep is integral to its quality: 
``Evidence has begun to demonstrate that sleep is a time-based 
cumulative process, and that frequent awakenings can slow or stop that 
process . . .'' Bonnet's research shows that drivers who are awakened 
during their principal sleep period are more likely to have reduced 
alertness.
    The WHD regulations at 29 CFR Sec. 785.22 Duty of 24 hours or more 
also address interruptions of sleep in paragraph (b) of that section, 
stating that if the sleeping period is interrupted by a call to duty, 
the interruption must be counted as hours worked. If the period is 
interrupted to such an extent that the employee cannot get a reasonable 
night's sleep, the entire period must be counted. For enforcement 
purposes, the WHD divisions have adopted the rule that if the employee 
cannot get at least 5 hours' sleep during the scheduled period the 
entire time is working time. (See Eustice v. Federal Cartridge Corp., 
66 F. Supp. 55 (D. Minn. 1946).) These sections therefore make it very 
costly for motor carriers to interrupt drivers' off-duty hours.
Sections 394.145, 395.145  Must I Allow My Drivers Additional Off-Duty 
Time After They Begin Work?
    These sections would require motor carriers to provide time for 
Types 1, 2, and 5 drivers to take at least two off-duty hours each 
workday to rest and nap, at the driver's discretion. The 2-hour period 
could also be used to meet personal necessities or to perform personal 
errands.
    The driver may use the additional off-duty time during the driving 
shift or at the end of the workday. The FMCSA believes most drivers 
would use the time throughout the day to stop at truck stops and other 
rest areas for meals, naps and breaks, and to contact their families. 
These sections would also allow drivers to take rest breaks, including 
naps, while at the driving controls of the motor vehicle as long as it 
is properly parked and secured.
Sections 394.147, 395.147  How Long May Drivers Be on Duty?
    These sections set forth maximum amounts of on-duty time for 
drivers in each of the five types of operations. The general on-duty 
limit is 12 hours per day, or 13 in the case of Type 5 drivers. Drivers 
in Type 3 and 4 operations would usually drive considerably less than 
12 hours in any duty period, because of the amount of non-driving work 
typically required in these types of operations. Drivers in Type 3 
operations also would be off duty at least 3 hours in between the two 
on-duty periods.
Sections 394.149, 395.149  How Long May Drivers Drive Motor Vehicles?
    These sections set forth maximum amounts of driving time for 
drivers in each of the five types of operations. The general driving 
limit is the same as the on-duty time, i.e., 12 hours per workday, or, 
in the case of Type 5 drivers, 5 hours. The FMCSA defined a Type 5 
driver to be one who drives CMVs only incidental to primary work 
responsibilities, e.g., repairman, salesman, carpenter, plumber, etc. 
In addition, the rule would limit the drivers' exposure to increased 
highway safety risks that could result from conceivably driving a CMV 
in the 14th to 15th consecutive hour after beginning work. Since the 
research indicates increased safety risks after 12 hours on duty in 
almost every occupation, the FMCSA believes that allowing drivers who 
primarily do work other than driving should be limited in their driving 
tasks to protect the public.
Weekly Time
Sections 394.161, 395.161  How Many Consecutive Off-Duty Hours Per 
Workweek Must I Give My Drivers?
    These sections describe the ``weekend'' requirement. These minimum 
off-duty periods were designed to afford the drivers the opportunity 
for restorative sleep based on the amount of driving and other work 
they perform. The ``weekend'' may be longer depending on when the motor 
carrier releases the driver from duty on the last workday of the 
workweek. The rules would allow drivers to take as few as 32 
consecutive hours off duty on a ``weekend,'' provided the time period 
includes two consecutive midnight to 6:00 a.m. periods to obtain 
restorative sleep and the driver is released from work at exactly 11:00 
p.m. on the last workday of the workweek.
    As the ICC found in 1937,

    [A]llowance must be made for eating, dressing, getting to and 
from work, and the enjoyment of the ordinary recreations'' (3 M.C.C. 
665, at 673). Logically, a driver cannot get full advantage of the 
minimum two consecutive midnight to 6:00 a.m. sleep periods if he/
she is released at or just before midnight, and required to return 
to work at or just after 6:00 a.m. The FMCSA has chosen 11:00 p.m. 
as the latest time drivers could get off work and still get to sleep 
for the first full midnight to 6:00 a.m. period on the first night 
of a ``weekend.'' Likewise, the agency has chosen 7:00 a.m. as the 
earliest time drivers could start a new workweek and still sleep the 
last full midnight to 6:00 a.m. period on the last night of a 
``weekend.''

    Generally, drivers would be off duty for more than the minimum 32 
consecutive hours, but fewer than the 64

[[Page 25588]]

consecutive hours in a ``normal weekend'' (4:00 p.m. Friday to 8:00 
a.m. Monday). A driver completing a workweek at 11:00 p.m., for 
example, could take only the minimum 32 hours before beginning the next 
workweek. A driver completing a workweek at 11:10 p.m., though, would 
have to be off duty for at least 55 hours, 50 minutes before beginning 
the next workweek since the driver was released after 11:00 p.m. and 
would not have the full ``allowance . . . for eating, dressing, getting 
to and from work, and the enjoyment of the ordinary recreations.''
    The FMCSA is not suggesting that motor carriers provide only 32 
hours that include the two consecutive midnight to 6:00 a.m. periods, 
or up to 55 hours 59 minutes off duty at the end of a workweek. The 
off-duty period that includes two consecutive midnight to 6:00 a.m. 
periods is only a minimum. The ICC made the mistake of assuming motor 
carriers would not ``believe that the maximums herein prescribed will 
become either the minimum or the standard of hours' (3 M.C.C. 665, at 
686). The FMCSA expects motor carriers to provide, and drivers to take, 
as much time as necessary to recover from any sleep debts and other 
conditions resulting from cumulative weekly fatigue.
    The rules would allow Type 1 drivers the option to take a short 
``weekend'' at the end of one extended on-duty workweek and a long 
``weekend'' at the end of the second reduced on-duty workweek. For 
example, a driver could take the minimum 32 consecutive hours off duty 
at the end of the first workweek, if released from duty at exactly 
11:00 p.m. The driver could work during this workweek for up to 72 
hours. The second consecutive workweek, though, would average the off-
duty and on-duty time periods over the two workweeks. This would 
require the driver to only work for up to 48 hours during the second 
workweek and take at least 80 consecutive hours off duty at the end of 
the second workweek, thus producing an average of 60 or fewer hours on 
duty per workweek and at least 56 hours off-duty hours per ``weekend.''
    The FMCSA believes that the 1962 oilfield exception and the 1995 
NHS Act exemptions for utility and construction motor carrier 
operations, allowing a restart of the cumulative duty period after 24 
hours off duty, are inconsistent with the modern understanding of 
fatigue and should be modified. Therefore, the proposed rule would 
require those drivers to obtain at least two consecutive midnight to 
6:00 a.m. periods, which could be as few as 32 consecutive hours off 
duty. This would allow those drivers to get the restorative sleep the 
research suggests they need to ensure their own safety and that of 
others who also use the highways. It would also accommodate the needs 
of those industries presently using the 24-hour restart provision. In 
practice, the 24-hour period translates into a full day off, meaning 
two sleep periods. Those exemptions would henceforth be subject to the 
weekend requirements of these sections.
    The FMCSA is proposing to provide a specific exception for the 
groundwater well drilling industry. Paragraph (c) of Sec. 345 of the 
NHS Act (109 Stat. 613) provided a specific prohibition that prohibits 
this NPRM and any other NPRM from determining whether granting the 
groundwater well drilling exception is not in the public interest and 
would have a significant adverse impact on the safety of CMVs. The 
FMCSA cannot propose to modify the 24-hour restart exception for this 
industry segment, even though it is inconsistent with the modern 
understanding of fatigue.
Sections 394.163, 395.163  When May My Drivers Start Working After 
Being Off Duty at the End of a Workweek?
    This is a table showing the time of day a driver may begin a new 
workweek after taking the required 32 or more consecutive hours off 
duty. The starting times for the new workweek are calculated based upon 
the particular time of day the driver was released from duty at the end 
of the previous workweek. As was discussed in the section above headed 
Secs. 394.161, 395.161 How many consecutive off-duty hours per workweek 
must I give my drivers?, the FMCSA has determined that the driver must 
be provided an off-duty period long enough to obtain at least two 
consecutive core sleep periods including the hours between midnight and 
6:00 a.m. for the purpose of obtaining restorative sleep in each of the 
two nights needed and an additional ``allowance . . . for eating, 
dressing, getting to and from work, and the enjoyment of the ordinary 
recreations'' at the beginning and end of each such period.
Sections 394.165, 395.165  How Many Hours per Week May My Drivers Work?
    These sections would limit on-duty time up to 60 hours in a 
workweek for Types 1, 2, 3, and 4 drivers and 78 hours for Type 5 
drivers. This would basically allow each type of driver to work their 
maximum daily limit and accumulate their maximum total within a 5- or 
6-consecutive-day period, depending on the exact time the driver begins 
duty and is released from duty each workweek.
    Motor carriers and drivers involved in nighttime operations would 
only be able to fit a 5-full-day schedule into the limits proposed in 
this NPRM. These daily and weekly limitations together should 
compensate the drivers for any accumulated sleep debt, especially for 
drivers who operate CMVs consistently between midnight and 6:00 a.m. 
For example, generally, Type 2 less-than-truckload drivers are the 
greatest proportion of all drivers who operate CMVs consistently 
between midnight and 6:00 a.m. See the discussion above under VII. I. 
5. Qualitative Impacts, Weekly Scheduling. Table 20 shows a typical 
Type 2 less-than-truckload driver's off-duty and on-duty daily cycles 
and the off-duty and on-duty hours the driver would accumulate 
throughout a typical workweek. The table shows that the requirement for 
a minimum ``weekend'' off-duty period consisting of two midnight to 
6:00 a.m. periods, the daily off-duty minimum requirement, the daily 
on-duty maximum limit, and a regular workweek start time at 9:00 p.m. 
would only allow the driver to work, including driving, for up to 60 
hours in a workweek. Note the driver accumulates the time between 
Monday night and Saturday morning.

[[Page 25589]]



                                   Table 20--Typical Type 2 Driver's Workweek
[Allowed to be on duty up to 12 hours and required to be off duty at least 12 hours daily. Motor carrier assigns
                                  driver to begin work at 9:00 p.m. on Monday]
----------------------------------------------------------------------------------------------------------------
                                                                                  Cumulative on-  Cumulative off-
                  Description                        Time of day when occurs         duty time       duty time
----------------------------------------------------------------------------------------------------------------
Workweek begins for a typical Type 2 driver...  9:00 p.m. Monday................               0               0
12 hours on duty and took 2 additional hours    9:00 p.m. Monday to 11:00 a.m.                12               2
 off duty for rest and meal breaks.              Tuesday.
Minimum 10 consecutive hours off duty.........  11:00 a.m. Tuesday to 9:00 p.m.               12              12
                                                 Tuesday.
12 hours on duty and took 2 additional hours    9:00 p.m. Tuesday to 11:00 a.m.               24              14
 off duty.                                       Wednesday.
Minimum 10 consecutive hours off duty.........  11:00 a.m. Wednesday to 9:00                  24              24
                                                 p.m. Wednesday.
12 hours on duty and took 2 additional hours    9:00 p.m. Wednesday to 11:00                  36              28
 off duty.                                       a.m. Thursday.
Minimum 10 consecutive hours off duty.........  11:00 a.m. Thursday to 9:00 p.m.              36              36
                                                 Thursday.
12 hours on duty and took 2 additional hours    9:00 p.m. Thursday to 11:00 a.m.              48              38
 off duty.                                       Friday.
Minimum 10 consecutive hours off duty.........  11:00 a.m. Friday to 9:00 p.m.                48              48
                                                 Friday.
12 hours on duty and took 2 additional hours    9:00 p.m. Friday to 11:00 a.m.                60              50
 off duty and begins ``weekend''.                Saturday.
Off-duty time has now consisted of two          11:00 a.m. Saturday to 7:00 a.m.              60              94
 consecutive midnight to 6:00 a.m. periods.      Monday.
End of typical workweek.......................  9:00 p.m. Monday................              60             108
----------------------------------------------------------------------------------------------------------------

    Type 5 drivers, of course, have limited exposure on the highways 
because of the nature of their work. To emphasize the uniqueness of 
this category, the proposal limits driving time to a maximum of 5 hours 
per day. These drivers have one of the lowest estimated fatigue-related 
crash rates the agency found for the last five-year period for which 
data were available. Type 5 drivers are subject to a ``weekend'' 
requirement that includes two consecutive midnight to 6:00 a.m. periods 
that the research indicates are necessary to overcome any sleep debt 
accumulated during the previous 5 to 6 consecutive days of work. Thus, 
these drivers would be required to take the minimum 32 to 56 
consecutive hours off duty like all other drivers. The FMCSA believes 
these factors compensate for allowing Type 5 drivers to work one extra 
hour per day and one extra day per week up to 78 hours in a workweek.
    Table 21, similar to table 20, shows a typical driver-
salesperson's, utility service CMV driver's, or other Type 5 driver's 
off-duty and on-duty daily cycles and the off-duty and on-duty hours 
these drivers would accumulate throughout a typical workweek. Table 21, 
like table 20, shows that the requirement for a minimum ``weekend'' 
off-duty period consisting of two midnight to 6:00 a.m. periods, the 
daily off-duty minimum requirement, the daily on-duty maximum limit, 
and a regular workweek start time at 7:00 a.m. would only allow the 
driver to work, including driving, for the Type 5 driver's applicable 
78 hours in a workweek. Note the driver accumulates the time between 
Monday morning and Saturday evening.

                                   Table 21--Typical Type 5 Driver's Workweek
[Allowed to be on duty up to 13 hours and required to be off duty at least 11 hours daily. Motor carrier assigns
                                  driver to begin work at 7:00 a.m. on Monday.]
----------------------------------------------------------------------------------------------------------------
                                                                                  Cumulative on-  Cumulative off-
                  Description                        Time of day when occurs         duty time       duty time
----------------------------------------------------------------------------------------------------------------
Workweek begins for a typical Type 5 driver...  7:00 a.m. Monday................               0               0
13 hours on duty and took 2 additional hours    7:00 a.m. Monday to 10:00 p.m.                13               2
 off duty for rest and meal breaks.              Monday.
Minimum 9 consecutive hours off duty..........  10:00 p.m. Monday to 7:00 a.m.                13              11
                                                 Tuesday.
13 hours on duty and took 2 additional hours    7:00 a.m. Tuesday to 10:00 p.m.               26              13
 off duty.                                       Tuesday.
Minimum 9 consecutive hours off duty..........  10:00 p.m. Tuesday to 7:00 a.m.               26              22
                                                 Wednesday.
13 hours on duty and took 2 additional hours    7:00 a.m. Wednesday to 10:00                  39              24
 off duty.                                       p.m. Wednesday.
Minimum 9 consecutive hours off duty..........  10:00 p.m. Wednesday to 7:00                  39              33
                                                 a.m. Thursday.
13 hours on duty and took 2 additional hours    7:00 a.m. Thursday to 10:00 p.m.              52              35
 off duty.                                       Thursday.
Minimum 9 consecutive hours off duty..........  10:00 p.m. Thursday to 7:00 a.m.              52              44
                                                 Friday.
13 hours on duty and took 2 additional hours    7:00 a.m. Friday to 10:00 p.m.                65              46
 off duty.                                       Friday.

[[Page 25590]]

 
Minimum 9 consecutive hours off duty..........  10:00 p.m. Friday to 7:00 a.m.                65              55
                                                 Saturday.
13 hours on duty and took 2 additional hours    7:00 a.m. Saturday to 10:00 p.m.              78              57
 off duty and begins ``weekend''.                Saturday.
Off-duty time has now consisted of two          10:00 p.m. Saturday to 7:00 a.m.              78              90
 consecutive midnight to 6:00 a.m. periods and   Monday.
 end of typical workweek.
----------------------------------------------------------------------------------------------------------------

Summary of Hours Limits
Sections 394.167, 395.167  Can These Requirements Be Summarized in a 
Chart?
    The preceding sections would be summarized in a chart for easier 
understanding and to make clear the differences between the limits for 
drivers in each type of operation.
    A week consists of 168 consecutive hours. If a Type 1 driver starts 
at 7:00 a.m. Monday and works 12 hours over a 14-consecutive-hour 
period for each of five work days, the driver would get off duty at 
9:00 p.m. Friday and have to have a minimum of 34 consecutive hours off 
duty for the ``weekend.'' The rules would allow flexible start times 
during the workweek, but Secs. 394.163 and 395.163 would require the 
driver to be off duty by 11:00 p.m. Saturday in order to have a 
consistent start time for the following Monday morning. Otherwise, the 
driver may not begin work for the following workweek until 7:00 a.m. 
Tuesday.
Loading and Unloading Practices
Sections 394.169, 395.169  What Are the Loading and Unloading 
Responsibilities of Drivers?
    These sections would require the motor carrier to advise its 
drivers about who is responsible for loading and unloading services. 
The services of loading and unloading cargo by laborers are known in 
the motor carrier industry as ``lumping.'' The Motor Carrier Act of 
1980, Public Law 96-296, July 1, 1980, which addressed the issue of 
lumping, prohibits extortion and coercion to load and unload trucks (49 
U.S.C. 14103). Also see H. Rpt. 96-1069, 96th Cong., 2nd Sess., June 3, 
1980, pages 30 and 31, about the intent of Congress with respect to 
loading and unloading trucks.
    The proposed provisions are intended to answer the frequent 
complaints the FHWA had received, and the FMCSA now receives, from 
drivers of for-hire motor carriers about lumping and other pressures on 
drivers to perform unexpected and unscheduled loading and unloading 
operations. Lessors' drivers (owner-operators, independent contractors, 
employees, and others) often are not informed about who is responsible 
for loading and unloading services. It is often the lessor's drivers 
who are responsible for loading and unloading cargo as a part of the 
lease contract. The lessee (motor carrier) or lessor often fails to 
inform the driver of such responsibilities or the driver was informed 
at one time but fails to remember the information.
    The FMCSA requires certain for-hire motor carriers to place 
specific items in every written lease. A lease is defined in 49 CFR 
376.2(e) as a ``contract or arrangement in which the owner grants the 
use of equipment, with or without driver, for a specified period to an 
authorized carrier for use in the regulated transportation of property, 
in exchange for compensation.'' Section 376.12(e) requires motor 
carriers executing written leases to ``clearly specify who is 
responsible for loading and unloading the property onto and from the 
motor vehicle, and the compensation, if any, to be paid for the 
service.''
    The FMCSA believes that motor carriers must do a better job of 
communicating to all their drivers their policies regarding loading and 
unloading services; providing for loading and unloading in their 
contracts with shippers, receivers, or brokers; and enforcing those 
provisions when the loading and unloading occurs.
    Many drivers often confuse lumping with specific requirements to 
sort or segregate deliveries in receiver-demanded configurations or 
patterns, including re-palletizing, and restrictions on using loading 
docks, pallet jacks, fork lifts, or other package handling equipment. 
These services are not generally considered lumping. These services do, 
however, lead to unanticipated delays and extend the driver's workday. 
Motor carriers should clarify these issues for all drivers before trips 
are scheduled so that sufficient time and energy may be reserved to 
avoid unforeseen fatigue-causing delays or exertions.
    This section specifies that a driver's time performing loading and 
unloading services is on-duty time for purposes of this proposed rule.
    Since a disclosure to a third party is considered a collection of 
information under 5 CFR 1320.3(c), the FMCSA is requesting the OMB to 
assign this information collection requirement the number 2126-0001.
Subpart B--Records and Reports
Time Records To Be Prepared and Kept By Motor Carriers/Drivers
Sections 394.201, 395.201  What Records Must I Create Showing That My 
Drivers Comply With the Off-Duty and On-Duty Requirements?
    Motor carriers must require drivers in Type 1 or 2 operations to 
use, operate, and accurately record time in EOBR automated time record 
systems; and the drivers must carry those records on CMVs. This is not 
a requirement for drivers in Types 3, 4, or 5 operations, though EOBRs 
would be allowed for them. The rationale for not requiring EOBRs for 
Types 3, 4, and 5 drivers follows the rationale for the current 49 CFR 
395.1(e), except that the requirement that the driver operate within a 
100 air-mile radius of the normal work reporting location and be 
released within 12 consecutive hours, is modified to include only the 
12-hour-release provision.
    The current Sec. 395.1(e) has its roots dating back to 1940. On May 
29, 1940, the American Transit Association filed a petition ``so as to 
relieve drivers engaged in certain types of operations from the 
requirement to prepare a daily'' record of duty status. In 24 MCC 413, 
at 414, July 30, 1940, the ICC stated it:

appreciate[s] that it is difficult and burdensome for a driver of 
such a vehicle to note accurately the many stops made and the times 
of such stops. It frequently happens that in the course of the day 
such a motor vehicle will cross and recross a State line many times, 
and it is likewise burdensome to require the driver to note the time 
of such crossing.

[[Page 25591]]

    Our purpose in requiring the maintenance of a driver's log was 
twofold. We desired a standardized type of record to be maintained 
of the daily driving time and the weekly hours on duty which would 
be in the possession of each driver and which would enable a highway 
patrolman or other enforcement officer to determine immediately upon 
the stopping of a vehicle whether the driver had been on duty or was 
driving in violation of our regulations. We recognize that highway 
patrolmen and other enforcement officers seldom stop passenger 
busses operating wholly in urban and suburban areas such as those 
under discussion here. Our other purpose in requiring the 
maintenance of a driver's log was to provide a record from which our 
field representatives could readily determine whether or not the 
carriers are complying with the regulations. Because of the records 
other than the log maintained by the carriers engaged in this type 
of transportation and because, as stated, highway patrolmen and 
other enforcement officers rarely stop busses operating in urban and 
suburban territories, the maintenance of a driver's log is not 
necessary for the purposes which we had in mind.

    The ICC alluded to ``the records other than the log maintained by 
the carriers.'' The FMCSA believes that one could deduce that the ICC 
was writing about the WHD time records. The WHD published on October 
22, 1938 (3 FR 2533), and made effective on the date of publication, 
the requirements in 29 CFR part 516 for employers, including motor 
carriers, to record information for the FLSA's Section 11. The original 
exemption had a limit of 35 miles from the garage or terminal and the 
carrier had to maintain records showing the total number of hours of 
driving per day, the total number of hours on duty per day, and the 
total number of hours on duty per week of each driver.
    In 54 MCC 337, at 356 (April 14, 1952), the ICC expanded the 
distance limit to a 50-mile radius and placed a further condition that 
no such driver taking the exception remains on duty for more than 12 
hours in any period of 24 consecutive hours, though the agency did not 
explain the rationale for the added condition.
    On October 13, 1977 (42 FR 55109), the FHWA proposed expanding the 
distance limit to a 100-mile radius because of the numerous changes 
affecting pickup-and-delivery operations that had occurred. Among the 
obvious changes cited were: The improvement and increase in the number 
of limited access highways; improved highway designs; the expansion of 
most metropolitan areas; and improved truck and bus designs. The 
proposal also stated that ``in order to insure the removal of fatigued 
drivers from highly congested city highways without restricting economy 
of operations, a limitation of a 12 consecutive hour work period is 
being proposed.''
    The details of the recordkeeping requirements for Type 3, 4, and 5 
drivers would be similar to the WHD regulation at 29 CFR 516.1(a). 
Motor carriers would be allowed to use any forms or records so long as 
the forms or records contain the necessary information.
    As discussed previously, the FMCSA intends to use recordkeeping 
requirements as close as practical to those used by the WHD under 29 
CFR 516.2(a)(1), (2), (5), and (7), and Sec. 516.6(a)(1) to avoid 
duplication. These proposed regulations would be used by all motor 
carriers, including motor carriers employing owner-operator drivers and 
independent contractors, not just driver-employees. The FMCSA, like the 
WHD, would not prohibit motor carriers from requiring Type 3, 4, and 5 
drivers to prepare these records for the motor carriers. Motor carriers 
would be responsible for ensuring the records are produced, that the 
records are accurate, and that they are made available for inspection 
by authorized FMCSA and State and local enforcement officials.
    All motor carriers and drivers would be required to complete 
records only for workdays drivers perform any on-duty function. Motor 
carriers would be responsible for ensuring drivers who work for non-
motor carrier employers do not exceed the on-duty limits and have at 
least the required off-duty hours prior to reporting for duty to drive 
CMVs. The records of full off-duty days for any type of driver would 
not have to be prepared by any driver or motor carrier, except at the 
discretion of the motor carrier. The FMCSA would assume, as the WHD 
does, that missing records denote days off duty, unless the agency has 
or discovers evidence showing a driver worked on a presumed day off.
    The FMCSA is requesting the OMB to assign the general information 
collection requirements of this section for all driver types the number 
1215-0017 (the number assigned to 29 CFR part 516 records). The FMCSA 
is requesting the OMB to assign the additional required EOBR 
information collection requirements of this section for Type 1 and 2 
drivers the number 2126-0001 (the current OMB number for 49 CFR part 
395 records).
Sections 394.203, 395.203  Must Time Records Be Prepared in a 
Particular Order or on Particular Forms?
    All records would be prepared as daily records, although the 
simpler systems allowed by WHD's regulation at 29 CFR 516.1(a) under 
OMB number 1217-0017 could be used. Motor carriers and drivers in Type 
1 and 2 operations would be required to use EOBRs to record time worked 
and off-duty. The WHD does not require that employers prepare records 
in any particular order, form, or manner. The FMCSA would adopt this 
practice for all motor carriers using Type 3, 4, and 5 drivers.
Section 395.205  What Are My Responsibilities If I Use an Automatic 
Time Record System to Record My Duty Status?
    This section would explain the Type 1 and 2 driver's 
responsibilities for preparing the required automated time records. The 
responsibilities would include: (1) accurately recording all off-duty, 
driving, and on-duty time, including daily starting and ending times 
for work periods and the place where work changes (i.e., town and 
State, town and Province, or location codes for such places), 
intervening times and locations during each work period when business 
is transacted (e.g., picking up freight or passengers, fueling stops, 
deliveries, roadside inspections), intervening times and locations 
during each work period when the required 2 hours off duty for rest and 
meals are taken; (2) system operational knowledge, following 
instructions of carriers and system manufacturers; (3) submission of 
records and documents obtained during each trip; and (4) production of 
records upon the request of a special agent of the FMCSA or any 
authorized law enforcement official.
    If the system fails, the drivers would have to reconstruct any 
defective records for the current day and the previous 7 days, using 
the format required by carriers; prepare written records of all 
subsequent time periods until the system is operational, using the 
format required by the carrier; and produce the current records upon 
the request of a special agent of the FMCSA or any authorized law 
enforcement official.
    The FMCSA would request the OMB to assign the information 
collection requirements of this section the number 2126-0001 for 
requiring EOBRs since they are not required by the WHD. The FMCSA has 
submitted new time and cost estimates associated with this information 
collection based upon the new requirements that are not already covered 
by the WHD regulations.

[[Page 25592]]

Time Record Maintenance and Preservation
Section 394.207  What Time Records Must I Preserve? For How Long?
    This section is directed to the motor carrier. Paragraphs (a), (b), 
and (c) of these sections are similar to 29 CFR 516.6(a)(1), (b), and 
(c2).
    Motor carriers must maintain records for two years to comply with 
WHD requirements. The FMCSA's current regulations require motor 
carriers to maintain these records for six months, and the FMCSA is 
proposing to maintain the retention period at six months. The FHWA has 
generally focused its compliance reviews of motor carriers on the last 
90 to 120 days before the time of the investigation. The FMCSA has 
continued this practice. In most cases, this period is long enough to 
show a continuing pattern of behavior. This factor is important because 
it precludes a motor carrier's defense that previously discovered 
violations have ceased.
    The FMCSA, however, would reserve the right to inspect all records 
the WHD requires motor carriers to maintain for the two-year period. If 
a motor carrier uses drivers who are not subject to WHD regulations, 
the motor carrier may not be required to maintain the records past the 
FMCSA retention period.
Monitoring Driver Time
Section 394.209  Must I Monitor My Drivers' Compliance With This Part 
and Part 395?
    This section is directed to the motor carrier. It would set forth 
the requirements for motor carriers to systematically monitor driver 
compliance with the HOS requirements. This would make explicit the 
FMCSA's current implied requirement, that motor carriers monitor their 
drivers' HOS to ensure the drivers are fit and safe to operate CMVs. 
The FMCSA would require motor carriers to verify the accuracy of the 
drivers' on-duty and off-duty times and also monitor the records for 
violations.
    Motor carriers should monitor continuously to discover a driver's 
HOS and off-duty hours for the past workday and workweek. Motor 
carriers that do so are able to calculate the driver's available hours 
for that workday and subsequent workdays before dispatching that 
driver.
Inspection of Records
Sections 394.211, 395.211  Must I Present My Equipment and Records If 
an FMCSA Special Agent Asks To Inspect Them?
    These sections describe the obligations of motor carriers and 
drivers to provide access to equipment and records for inspection. Upon 
request by an FMCSA representative who displays proper credentials as a 
special agent, motor carriers and drivers must permit the inspection of 
all lands, buildings, equipment, and records, and the copying of 
records. Many drivers have inquired about State authorities' right to 
inspect equipment and records. State and local officials should have 
inspection authority similar to that of the FMCSA.
Sections 394.213, 395.213  What Records May Be Used To Determine My 
Compliance With This Part?
    These sections specify the FMCSA's intention to use any 
information, whether or not in a motor carrier's or driver's 
possession, to determine a motor carrier's and driver's regulatory 
compliance and verify the accuracy of their records.
Sections 394.215, 395.215  Where Must I Keep Records Available for 
Inspection?
    These sections tell motor carriers and drivers where to maintain 
time records: for inspection purposes, on the CMV and at the motor 
carrier's principal place of business or central recordkeeping office. 
It also would require motor carriers to ensure that drivers in Type 1 
and 2 operations comply with Sec. 395.215(a) (2) and (3) by requiring 
the motor carrier to collect and maintain the records required by 
Sec. 394.207(b). These sections require Type 1 and 2 motor carriers and 
drivers to maintain time records and supporting records in the CMV 
where they will be available for inspection. Drivers in Type 3, 4, and 
5 operations would not have to comply with this requirement.
Subpart C--Automated Time Record System Performance Standards
Section 394.301  What Standards Must Automated Time Record System 
Devices Meet?
    Motor carriers required to use automated time record systems would 
have to ensure the systems meet certain manufacturing design and 
performance standards. These standards are similar to the current 
Sec. 395.15 standards, though many of the prescriptive requirements 
have been removed to allow for innovative future technologies.
    The automated time record system would have to be integrally 
synchronized with specific operations of the commercial motor vehicle 
in which it is installed, including synchronized with engine use, road 
speed, the date, and time of day. The FMCSA would update the rule 
requiring ``miles driven'' by adding to it ``kilometers or miles driven 
each day'' as required by the Omnibus Trade and Competitiveness Act of 
1988 (Pub. L. 100'418, sec. 5164) which amended the Metric Conversion 
Act of 1975. The FMCSA would require automated time record systems to 
be capable of maintenance and calibration, be tamperproof, and designed 
to prohibit drivers from editing data.
    The systems must also warn the driver visually and/or audibly when 
the systems cease to function or when they identify sensor failures or 
data edited by anyone when reproduced in printed form. The systems must 
also permit duty status to be updated only when the commercial motor 
vehicle is at rest, except when registering the time a commercial motor 
vehicle crosses a State, Provincial, or national boundary. This would 
ensure that the driver's attention is on the road rather than 
electronic devices within the CMV.
    The information must be shown on a chart, electronic display, or 
printout and the system must allow the FMCSA and authorized State or 
local officials to check the driver's daily duty at the roadside.
    Support systems used in conjunction with automated time record 
systems at a driver's home terminal or the motor carrier's principal 
place of business must be capable of providing the FMCSA or authorized 
State or local officials with summaries printed on paper of an 
individual driver's duty records. The support systems must also provide 
information concerning system sensor failures and identification of 
edited data.
    The system on the CMV must automatically record duty and additional 
standard information as follows ``Off duty,'' ``Driving,'' ``On duty 
not driving,'' or equivalent codes for these items; the date; total 
kilometers or miles driven per day; truck, tractor, coach, and trailer 
number(s); name of motor carrier; and home terminal address, including 
zip code; 24-hour period starting time (e.g., midnight, 9:00 a.m., 
noon, 3:00 p.m.); name of co-driver, if applicable; total hours on duty 
per day; and the name or location code of the city, town, or village, 
with State or Provincial abbreviation where the driver changes duty 
status (off duty, on duty, driving). A list of location codes

[[Page 25593]]

showing all possible location identifiers must be available in the CMV 
and at the motor carrier's principal place of business or central 
recordkeeping office.
    An information packet containing the following two items must also 
be on the CMV: an instruction sheet describing in detail how data may 
be stored and retrieved from the system and a supply of blank driver's 
duty records sufficient to record the driver's duty status and other 
related information for the duration of the current trip.
    Automated time record systems on CMVs with electronic displays must 
have the capability to display the driver's total hours of driving per 
day, the total hours on duty per day, total kilometers or miles driven 
each day, total hours on duty for the previous 7 consecutive days, 
including today, the sequential changes in off-duty, on-duty, and 
driving status and the times the changes occurred for each driver using 
the system. The system must also be capable of recording separately 
each driver's off-duty, on-duty, and driving status when there is a 
multiple-driver operation.
    The current rule in Sec. 395.15 provides an exception for systems 
installed and in operation since October 31, 1988, based on the 
original pilot demonstration project. The exception allows for no 
visual or audible warning and it allows for sensor failures and edited 
data not to be identified in printed form. The FMCSA is interested in 
specific comments from motor carriers that are using such excepted 
systems about the number being used and any costs that may be incurred 
in upgrading those systems to the proposed EOBR standard requiring the 
visual or audible warning and printed records of sensor failures and 
edited data. The FMCSA is proposing not to allow those systems upon the 
implementation dates of the final rule and would like to know the 
extent such systems continue to be used. The FMCSA may modify whether 
upgrades are needed based on the extent the excepted systems continue 
to be used and the costs to be incurred.
Section 394.303  How Must I Maintain and Regularly Calibrate Automated 
Time Record System Devices?
    This section would require motor carriers to have a systematic 
maintenance process to ensure that each automated time record system 
remains accurate in accordance with the manufacturer's directions.
Section 394.305  Must I Train My Drivers Regarding the Proper Operation 
of the Devices I Use?
    This section would require drivers be trained in the proper 
operation of the devices installed on CMVs. This does not require the 
motor carrier to do the actual training, but to ensure the driver 
understands how the devices work. The driver may have acquired the 
knowledge while working for a different motor carrier.
Subpart C--Roadside Out-of-Service Orders
Section 395.301  What Must I Do If I Am Declared Out of Service for 
Violations of This Part?
    This section specifies what a driver must do if he or she has been 
placed out of service because the FMCSA or another authorized 
enforcement official has determined the driver has violated one or more 
of the regulations in this part.
Subpart D--Emergency Operations
Section 395.401  What Must I Do If I Need Immediate Rest After 
Providing Direct Assistance in an Emergency?
    This section would expressly require drivers to take an additional 
minimum off-duty period after emergency service. This increased time 
would be at least ten hours. It would be correlated to the motor 
carrier requirements in Sec. 390.23 discussed above.
Section 395.403  What Conditions Must I Meet Before I Operate in 
Interstate Commerce After Providing Direct Assistance in an Emergency?
    This section would require drivers to obtain two consecutive nights 
of sleep including the core periods from midnight to 6:00 a.m. for the 
purpose of obtaining restorative sleep after an emergency.
Transportation of Migrant Workers
Section 398.6  Hours of Rest and Work; Minimum Rest and Maximum Work 
Time.
    The applicability of part 398 is confined to a small population of 
private motor carriers of passengers and contract carriers that 
transport migrant agricultural workers in interstate commerce. This is 
due to the limited authority of the Migrant Farm Workers Regulation of 
Interstate Transportation Act of 1956, Pub. L 84-939, 70 Stat. 958, 
August 3, 1956 (MFW) (now codified at 49 U.S.C. 31502(c)). This law 
required the ICC to establish reasonable requirements with respect to 
the safety and comfort of migrant agricultural workers who are 
transported by certain private and for-hire motor carriers.
    The term ``migrant worker'' as defined by the 1956 Act and part 398 
means any individual proceeding to or returning from employment in 
agriculture as defined in section 3(f) of the FLSA, as amended (29 
U.S.C. 203(f)), or section 3121(g) of the Internal Revenue Code of 1954 
\2\ (26 U.S.C. 3121(g)). The term ``carrier of migrant workers by motor 
vehicle'' as defined by the 1956 Act and part 398 means any person, 
including any ``contract carrier by motor vehicle,'' but not including 
any ``common carrier by motor vehicle,'' who or which transports in 
interstate or foreign commerce at any one time three or more migrant 
workers to or from their employment by any motor vehicle other than a 
passenger automobile or station wagon, except a migrant worker 
transporting himself/herself or his/her immediate family. ``Immediate 
family'' in this context comes directly from the Farm Labor Contractor 
Registration Act of 1963 (FLCRA),\3\ Public Law 88-582, with 
regulations at 29 CFR 40.2(f) and 29 CFR 500.20(o) which define 
``immediate family'' as: (1) A spouse; (2) children, stepchildren, and 
foster children; (3) parents, stepparents, and foster parents; and (4) 
brothers and sisters. Under this definition, a truck carrying an uncle, 
a brother-in-law, or another unrelated laborer would be subject to part 
398.
---------------------------------------------------------------------------

    \2\ The Internal Revenue Code of 1954 was replaced by the Tax 
Reform Act of 1986.
    \3\ Replaced by Public Law 97-470 (1983) the Migrant and 
Seasonal Agricultural Worker Protection Act (MSAWPA) (29 U.S.C. 1801 
et seq.).
---------------------------------------------------------------------------

    Part 398 applies to motor carriers of migrant workers only in the 
case of transportation of any migrant worker for a total distance of 
more than seventy-five miles, and then only if such transportation is 
across the boundary line of any State, the District of Columbia, a 
Territory of the United States, or a foreign country.
    Motor carriers of migrant workers currently comply with the 10-hour 
driving rule as it applied to all motor carriers prior to 1962. This 
rule has continued the limitation for 10 hours of driving within any 
24-hour period. Such carriers and drivers have not been subject to the 
15-hour rule, the weekly limitations, nor the recordkeeping 
requirements. Many of these motor carriers have been subject to the 
recordkeeping provisions of the FLSA and the MSAWPA. The WHD 
administers and enforces the FLSA and MSAWPA. The WHD has the same

[[Page 25594]]

Sec. 398.6 HOS regulations for migrant workers in 29 CFR part 500.
    This section would direct motor carriers of migrant workers to 
comply with the proposed requirements of part 394. Drivers working for 
motor carriers of migrant workers would have to comply with the 
applicable requirements of part 395. Thus, these motor carriers of 
migrant workers would become subject to all of the general and specific 
responsibilities that ensure drivers obtain sufficient restorative 
sleep and that prohibit ill and drowsy, tired, or inattentive drivers 
from continued driving. It would be expanding their responsibilities to 
better ensure the migrant workers are protected from ill, drowsy, 
tired, or inattentive drivers that have not had sufficient restorative 
sleep.
    Under the FMCSA's zerobase initiative discussed earlier in this 
document, migrant motor carrier regulations are also being rewritten 
and reformatted. That proposed rulemaking will be published later. It 
contains the balance of the FMCSA's consideration of migrant worker 
transportation rules covered under RIN 2125-AD81. See the section 
headed ``XII. Rulemaking Analysis and Notices'' for more information 
about RINs.

XII. Rulemaking Analysis and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket number appearing at the top of this 
document, FHWA-97-2350, in the docket room at U.S. DOT Dockets, Room 
PL-401, 400 Seventh Street, SW., Washington, DC. Internet users may 
access the comments received by the U.S. DOT Dockets Room, by using the 
universal resource locator (URL): http://dms.dot.gov and the docket 
number FHWA-97-2350. The FMCSA will file in the docket comments 
received after the comment closing date and will consider late comments 
to the extent practicable. The FMCSA may, however, issue a final rule 
at any time after the close of the comment period. In addition to late 
comments, the FMCSA will also continue to file in the docket relevant 
information becoming available after the comment closing date, and 
interested persons should continue to examine the docket for new 
material.

Regulatory Identification Number

    An RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN contained in the heading of this document, RIN 2126-AA23, can 
be used to cross reference this action with the Unified Agenda. This 
action formerly was identified under RIN 2125-AD93 during FHWA 
development. This action contains a total consolidation of RINs 2125-
AD52 and 2126-AA29 (formerly 2125-AE09) (HOS of Drivers; Supporting 
Document Recordkeeping and FMCSRs; HOS and CDL Exemptions; 
respectively) into this RIN 2126-AA23, a partial consolidation with 
respect to hours of service under RIN 2125-AD81 (Transportation of 
Migrant Workers) and RIN 2126-AA16 (formerly 2125-AD65) (Advanced 
Technology in Commercial Motor Vehicle Operations), a discussion of the 
comments received to RIN 2125-AD52, and a modified proposal based upon 
the comments received to RIN 2125-AD52.

Motor Carrier Safety Act

    The MCSA was the first broad legislation dealing with truck safety 
since the Motor Carrier Act of 1935. It required the FHWA and requires 
the FMCSA to establish safety standards for CMVs which ensure, at a 
minimum, that:
    (1) Commercial motor vehicles are maintained, equipped, loaded, and 
operated safely;
    (2) The responsibilities imposed on operators of commercial motor 
vehicles do not impair their ability to operate the vehicles safely;
    (3) The physical condition of operators of commercial motor 
vehicles is adequate to enable them to operate the vehicles safely; and
    (4) The operation of commercial motor vehicles does not have a 
deleterious effect on the physical condition of the operators. 49 
U.S.C. 31136(a).
    Section 31136(a)(2), (3), and (4) authorizes the FMCSA to consider 
very broadly all operational factors that may adversely impact the 
health and physical condition of drivers, and thus highway safety.
    Before prescribing regulations, the agency must also consider, to 
the extent practicable and consistent with the purposes of the MCSA, 
the costs and benefits of any rules (49 U.S.C. 31136(c)(2)(A)). The 
Senate Committee on Commerce, Science, and Transportation explained the 
intent of the cost-benefit requirement.

    The [FMCSA] is required to consider, where practicable, costs 
and benefits before establishing or revising such rules, 
regulations, standards, and orders. In requiring the [FMCSA] to 
consider the costs and benefits, where practicable, in the course of 
regulatory activities, the Committee realizes that many aspects of 
safety and health regulations do not lend themselves to detailed 
cost-benefit analysis. However, the Committee intends that the 
[FMCSA], in issuing a regulation, will perform some type of cost-
benefit analysis, recognizing that while the benefits of a 
particular rule or regulation may be substantial, they may not be 
quantifiable. Additionally, the Committee does not intend such 
requirement to have the effect of precluding, preventing, or 
suspending the promulgation or revision of rules, regulations, 
standards, or orders due to difficulty in establishing specific, 
quantified cost or benefit data. S. Rep. No. 98-424, at 8 (1984).

    A portion of the anticipated effect of this action would come from 
changes to the information collection burdens associated with the 
proposed rule. A proposed requirement, however, would impose a 
substantial financial burden in start-up and continuing maintenance and 
operating costs. Purchasing EOBRs would burden motor carriers with a 
$253 million start-up cost for the first four years of a final rule, 
maintaining the devices would cost $229 million annually, and training 
would add another $5.6 million annually. This would be offset by an 
annual savings of $262.3 million based upon the information collection 
burden hour reduction of 37.47 million hours at an hourly rate of $7.00 
per driver.
    The proposed information collection burdens are described in more 
detail below under the heading XII. F. Paperwork Reduction Act.
    This regulatory action contains proposed provisions that should 
affect public safety by preventing 115 fatalities and 2,995 injuries 
each year. The net result in benefits to society should be at least a 
discounted $5,321,000,000 over 10 years assuming a 7 percent discount 
rate.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this document contains an 
economically significant regulatory action under Executive Order 12866 
and under the DOT's policies and procedures because the FMCSA estimates 
this action will have an annual effect on the economy of $100 million 
or more.
    The FMCSA has also determined this regulatory action is significant 
under the regulatory policies and procedures of the DOT because of the 
high level of interest concerning motor carrier safety issues expressed 
by Congress, motor carriers, their drivers and other employees, State 
governments, safety advocates, and members of the traveling public.

[[Page 25595]]

    The FMCSA does not anticipate that this regulatory action would 
adversely affect in a material way a sector of the economy, 
competition, jobs, the environment, or State, local, or tribal 
governments or communities. It will not create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency. The FMCSA does not anticipate that this proposed action will 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients of 
those programs.
    This action was reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has evaluated the effects of this proposed rule on 
small entities, including small businesses, small non-profit 
organizations, and small governmental entities with populations under 
50,000. Many of these small entities operate as motor carriers of 
passengers or property in interstate or intrastate commerce. The FMCSA 
has placed a copy of the analysis in the docket.
    The FMCSA believes that this proposal will effect a substantial 
number of small entities. What we do not know with certainty is the 
full economic impact of the proposal on small entities. We, therefore, 
specifically request on the costs and impacts of this proposal on small 
entities. If after receiving and reviewing public comments, our 
analysis indicates that the cost and impacts comparable to those used 
in this analysis, the FMCSA would then certify that the final rule does 
not have a significant impact on a substantial number of small 
entities.
    The Regulatory Flexibility Act seeks to ensure that federal 
agencies take small businesses' particular concerns into account when 
developing, writing, publicizing, promulgating and enforcing 
regulations. To achieve this, the Act requires agencies to detail how 
they have met these concerns, by including a Regulatory Flexibility 
Analysis (RFA). An initial RFA, which accompanies an NPRM, must include 
the following six elements:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule;
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) A description of the proposed reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirements and the type of professional skills necessary for 
preparation of the report or record;
    (5) An identification, to the extent practicable, of all federal 
rules which may duplicate, overlap, or conflict with the proposed rule; 
and
    (6) A description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize and significant economic impact of the proposed rule on 
small entities.
    A discussion of these requirements follows.
    (1) A description of the reasons why action by the agency is being 
considered.
    The FMCSA developed this NPRM because of Congressional action and 
independent safety concerns. Section 408 of the ICC Termination Act of 
1995 directs the FMCSA to issue an ANPRM and NPRM ``dealing with a 
variety of fatigue-related issues pertaining to commercial motor 
vehicle safety (including 8 hours of continuous sleep after 10 hours of 
driving * * * and other appropriate regulatory and enforcement 
countermeasures for reducing fatigue-related incidents and increasing 
driver alertness).'' In addition, evidence suggests that fatigue 
continues to be an important contributing factor in some CMV crashes. 
The FMCSA believes that updating the regulations to reflect advances in 
understanding of sleep and fatigue will increase compliance with the 
regulations, ease enforcement, and enhance overall highway safety.
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    The objective of this NPRM is to ensure that drivers are adequately 
rested before driving CMVs. The proposals seek to do this by increasing 
the continuous off-duty periods of time afforded to drivers to obtain 
sleep, providing additional opportunities for some categories of 
drivers to obtain rest during breaks, and improving the daily sleep-
wake cycle to correspond more closely with circadian rhytymicity. The 
proposals also seek to minimize the paperwork burden on carriers by 
eliminating the RODS for many drivers.
    The legal basis for the rule, in addition to the provisions of the 
ICC Termination Act cited above, include the MCA codified at 49 U.S.C. 
31502(a) and (b), the MFW codified at 49 U.S.C. 31502(c), the MCSA 
codified at 49 U.S.C. 31136, section 113 of the HMTAA, and section 345 
of the NHS.
    The HMTAA instructs the FHWA to issue regulations improving ``(A) 
compliance by commercial motor vehicle drivers and motor carriers with 
hours of service requirements; and (B) the effectiveness and efficiency 
if Federal and States enforcement officers reviewing such compliance''.
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply.
    This NPRM proposals would apply to a large number of small 
carriers. Of the 497,000 motor carriers on the MCMIS census file, 
almost 250,000 own 6 or fewer power-units, 50 percent of the total. 
These 250,000 motor carriers own approximately 703,000 power-units, an 
average of about almost 3 per carrier, accounting for approximately 
22.5 percent of all power-units on MCMIS.
    Not all of these motor carriers are considered small businesses 
under the definitions issued by the SBA. The SBA defines a small 
business as one with annual gross receipts of less than $18.5 million. 
We do not know what percentage of motor carriers fit into this 
category. While it is likely that the majority of motor carriers with 
fewer than 6 drivers have gross receipts of less than $18.5 million, 
the Agency believes some of them surpass that revenue threshold. The 
FMCSA's safety regulations apply to all operators of CMVs in interstate 
commerce, not only traditional motor carriers. Some of these CMV 
operators may make the majority of their revenue from non-trucking 
sources, but only own 2 or 3 CMVs. Examples include musicians who own 
buses for transportation between performances, or millwork distributors 
which operate a few CMVs to distribute finished millwork. While the 
small number of vehicles these operations own would suggest they are 
small entities, their gross revenues from non-trucking sources could 
result in their being classified as large entities.
    In the PRE, the FMCSA estimated that option 5 would cost small 
long-haul and regional motor carriers $180 million undiscounted to 
purchase EOBRs, $152 million discounted. Annual costs equal $17.9 
million undiscounted, for a total of approximately $103 million 
discounted over ten years. EOBRs will cost the average small long-haul 
motor carrier $2,850 to purchase and $282 annually for maintenance 
(undiscounted).
    Data on firms and receipts from the SBA web site show that for SIC 
codes 4200 through 4214, small motor carriers had average annual 
receipts of just over

[[Page 25596]]

$400,000 in 1996. First year costs of $3,132 ($2,850 plus $282) equal 
approximately three fourths of one percent of the average small motor 
carriers receipts.
    While overall costs are fairly high for small motor carriers, we 
believe it is likely that EOBR costs could be lower than estimated 
above. First, we assumed that small motor carriers would purchase one 
quarter of their EOBRs in each of the first four years. In reality, it 
is likely that most small motor carriers will wait until the latter 
years to buy an EOBR. This will lower the discounted EOBR costs, as 
later year purchases are discounted more highly than earlier ones. In 
addition, small motor carriers who purchase EOBRs in year 4 will have 
to pay for maintenance for 3 fewer years than those who purchase in the 
first year.
    Second, the FMCSA believes it is likely that the price of EOBRs 
will fall as production increases. As manufacturers gain proficiency in 
producing a product, improved use of labor and material tend to lower 
the costs of productions. Improvements include reducing the number and 
complexity of component parts, improved production of components, 
improved assembly speed and processes, reduced error rates, and better 
manufacturing processes. In a 1984 study of 108 manufacturing items 
from 22 field studies, Dutton and Thomas found a progress ratio of 
slightly higher than 80 percent, which means that each doubling of 
cumulative production reduces the cost level by 20 percent (Dutton and 
Thomas). Because of the phase-in period for small motor carriers, 
larger motor carriers are likely to bear higher initial production 
costs.
    Finally, many small motor carriers will be able to purchase EOBRs 
through larger motor carriers, thereby realizing the same scale 
economies as large motor carriers. Anecdotal information suggests that 
a majority of owner-operators are on long term leases with large motor 
carriers. One source of this information was oral communication between 
the executive-director of the Owner-Operator Independent Drivers 
Association (OOIDA) and Department of Transportation staff. OOIDA's 
executive director estimated that 70 percent of owner-operators work as 
long-term contractors with other motor carriers. Many of these long-
term contractors will presumably be able to purchase EOBRs at the same 
cost as the larger motor carriers to which they are contracted.
    The economic impact of this proposal on each motor carrier would 
vary depending on its operations and the number of drivers it uses. For 
motor carriers engaged in local operations (proposed regulatory Types 
3, 4, and 5) subject to the requirements of the Fair Labor Standards 
Act, the economic impact should be zero because the motor carriers are 
already required to maintain time records and supporting documents to 
comply with U.S. Department of Labor regulations, and the FMCSA is 
proposing to allow these time records and documents to satisfy the 
recordkeeping requirements proposed in this NPRM. For motor carriers 
engaged in long-haul (Type 1) and regional (Type 2) operations, the 
majority of the economic impact would be caused by the proposed 
requirement to ensure CMVs have properly installed EOBRs and that its 
drivers use them as required. These impacts are directly related to the 
number of CMVs, and the number of CMV drivers, in those operations.
    As an example of the potential economic effect of this proposed 
rule on a small motor carrier subject to the FMCSRs, consider one that 
operates three power units and has annual receipts of $400,000. See the 
discussion of the cost of EOBRs in the sections above headed VII. I. 2. 
Paperwork Reduction, VII. I. 3. Total Benefits, and VII. I. 4. 
Quantitative Costs. If the motor carrier were to purchase and install 
EOBRs in all these power units in one year, the estimated cost of the 
equipment and the initial year's operation would be $3,300, or 0.825 
percent of its annual receipts (($1,000 plus 100) times 3 divided by 
$400,000). Next, consider a motor carrier that operates 20 power units 
and has annual receipts of $18.5 million. The economic impact would be 
$22,000, or 0.12 percent of its annual receipts (($1,000 plus 100) 
times 20 divided by $18.5 million). If a motor carrier operated 100 
power units and had annual receipts of $18.5 million, the economic 
impact would be approximately 0.59 percent of the carrier's annual 
receipts ($110,000 divided by $18.5 million).
    Consider the cost of EOBRs per CMV power unit. If a new CMV truck 
tractor costs $100,000, a $1,000 EOBR would be one percent of the cost 
of the truck tractor.
    These figures do not include costs to train drivers and other staff 
on the operation and use of these EOBRs, nor do they account for 
savings in driver and other motor carrier staff resources associated 
with the elimination of the requirement to use paper RODS. They also 
present a worst-case economic scenario, because the motor carriers 
would probably amortize EOBR purchase and installation costs over 
several years.
    Based on this summarized analysis, the FMCSA believes that this 
rule would affect a substantial number of small entities, but would not 
have a significant impact on these entities.
    Therefore, the FMCSA, in compliance with the Regulatory Flexibility 
Act (5 U.S.C. 601-612), has considered the economic impacts of these 
requirements on small entities and certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995 and Executive Order 12875 
(Enhancing the Intergovernmental Partnership)

    This rule does not impose any unfunded mandates on State, local, or 
tribal governments as defined by the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1531 et seq.). However, this rule would impose a Federal 
mandate on the private sector requiring expenditure by motor carriers 
of $100 million or more in any one year. Therefore, the FMCSA has 
prepared a separate written statement incorporating various 
assessments, estimates, and descriptions that are delineated in the 
Act. A copy of the FMCSA's Regulatory Accountability and Reform 
Analysis is included in the docket.
    The FMCSA considered several regulatory alternatives and believes 
that this proposal achieves the objectives of the rulemaking to reduce 
CMV crashes involving fatigue-induced CMV drivers.
    The FMCSA believes the benefits of this NPRM can be achieved only 
by forcing motor carriers and Type 1 and 2 drivers to make a dramatic 
change in their present attitude toward compliance in long-haul and 
regional operations. Their attitudes are unlikely to change without 
requiring persuasive evidence that compliance would be monitored and 
enforced. The American public expects the motor carrier industry to do 
a better job for safety, based on the numerous comments from concerned 
victims and citizens in the docket. The FMCSA's proposal to require an 
objective tamper-proof monitor on board long-haul and regional 
operating CMVs should achieve that objective, even though the option 
selected is not the least burdensome, least costly, nor the most cost 
effective for society.
    The FMCSA estimates that the hours of rest and service of drivers 
rule will cost the public approximately $817 million over ten years. 
The cost applies not only to motor carriers subject to the FMCSRs, but 
also to motor carriers subject to compatible State HOS of driver laws 
and regulations to be

[[Page 25597]]

adopted as proposed to be required under 49 CFR part 350 to be eligible 
for MCSAP grant-in-aid type program funds. The agency estimates that 
the 10-year discounted monetary value of the benefits (fatalities and 
injuries prevented, property damage savings) is $6.138 billion.
    The FMCSA intends to assist State MCSAP agencies in revising and 
adapting their motor carrier safety regulations and safety assurance 
programs in two ways. First, the agency intends to allow a phase-in 
period for the final rule, after it is promulgated, to ensure that 
those responsible for safety regulation implementation and oversight 
functions can become fully familiar with the new format and content of 
the HOS rules. Second, the agency is developing model State legislation 
and regulations to aid States in adopting the rules proposed today or 
adapting them to their own regulatory programs. The agency would also 
make special efforts to provide education, training, and guidance 
materials for MCSAP agencies and their staffs. The FMCSA welcomes 
comments from State and local government agencies concerning any 
potential difficulties they anticipate in making the transition to, and 
adopting, compatible regulations promulgated as a result of this 
action.
    The FMCSA estimates that transition costs for States that wish to 
continue receiving MCSAP grant-in-aid funds to revise and implement 
their regulations to remain compatible with the proposed revisions 
would be approximately 5 percent of a year's MCSAP allocation. 
Nationwide, MCSAP allocations total approximately $80-85 million per 
year. Because States are given three years to adopt revisions to the 
FMCSRs, this estimated transition cost of between $4 million and $4.25 
million would be distributed over that same time period. As described 
earlier in this section, the FMCSA plans to assist the States with the 
development of model legislation, transition planning, and data entry 
and analysis to ensure that there would be continuity between the 
regulations comprising the current CMV safety program and those 
revisions that may result from the changes proposed today.
    The FMCSA believes that one significant cost element would involve 
training of State and local government MCSAP officials in the proposed 
new structure of the HOS regulations and the accompanying revisions to 
the microcomputer software suites used to perform roadside CMV safety 
inspections and motor carrier compliance reviews. The MCSAP program 
funds the work of 7,500 to 8,000 safety officials (6,000 full-time and 
1,500-2,000 part-time). The FMCSA estimates it would take one-half day 
of instruction (4 hours) to familiarize these officials with the new 
software. The FHWA has paid average loaded salaries of State safety 
officials at $30.00 per hour in the past year. At an average loaded 
salary of $30.00 per hour (including benefits), the approximate salary 
costs would be $960,000. Costs of notebooks and other classroom 
materials (at $10 per student) would amount to another $80,000. 
Software upgrades would be required in centralized State information 
systems, as well as in desktop and laptop computers used in the field. 
Because some States' centralized information systems are housed on 
mainframe computers, and others depend on the FMCSA's system, estimates 
of upgrade costs will vary considerably. The FMCSA estimates an 
additional $2 million to $3 million in other costs (software revisions, 
other training and testing) associated with the transition.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, 
et. seq.) Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FMCSA has 
determined that this proposal, when promulgated as a final rule, would 
revise several existing aspects and add new requirements to a currently 
approved clearance for OMB Control Number 2126-0001 (which is due to 
expire on October 31, 2001).
    The FMCSA, in previous estimations of time and cost burdens 
associated with OMB Control Number 2126-0001, omitted burdens imposed 
upon State governments. Title 5 CFR 1320.3 requires the FMCSA to 
include in its information clearance package burdens imposed upon a 
recipient of a Federal grant if the terms and conditions of the grant 
require specific approval by the agency of the collection of 
information or collection procedures. As a condition to receive an 
FMCSA Motor Carrier Safety Assistance Program (MCSAP) grant, State 
governments are required to adopt and enforce compatible regulations 
for intrastate motor carriers and CMV and, therefore, should be 
considered when estimating burdens associated with the Driver's Record 
of Duty Status information collection.
    When the FHWA last published a 60-day notice in compliance with 5 
CFR 1320.8 on March 11, 1998 (63 FR 11948), the IIHS was the only 
commenter to the public docket. The IIHS supported continuation of the 
paper ``logs'' until they are replaced by on-board computers. The 
agency also sought OMB's approval of an emergency extension for a six-
month period of time. That notice was published in the Federal Register 
on May 13, 1998 (63 FR 26675). Neither opportunity for comments brought 
to the FHWA's attention the fact that it had omitted intrastate motor 
carrier information collections. When the FMCSA conducted its 
regulatory analysis for this NPRM, the agency discovered the error. The 
FMCSA is correcting the intrastate operations error as well as 
providing better data of the number of respondents in a revised 
submission to the OMB.
    Currently, the inventory indicates a burden for 2126-0001 of 
42,464,327 burden hours, rounded to 42.5 million hours. Based on the 
regulatory evaluation and the option selected to propose, the FMCSA is 
submitting to the OMB for review in accordance with the PRA 
requirements a burden of 3,003,050 burden hours for this NPRM.
    OMB Control Number: 2126-0001.
    Proposed New Title: Hours of Service of Driver Regulations.
    Affected Public: Approximately 483,000 motor carriers using 
approximately 6.43 million drivers who operate in interstate and 
intrastate commerce.
    Estimated Annual Hour Burden: 3,003,050 million burden hours.
    The paper RODS and automatic on-board recording devices have been 
the primary regulatory tools used by motor carriers and CMV drivers to 
determine compliance with the maximum driving and duty time limitations 
prescribed in the FMCSRs. The FMCSA also uses the current RODS and 
automatic on-board recording device records to determine compliance 
during compliance reviews. Federal, State, and foreign government 
officials use the information for roadside enforcement. The FMCSA also 
considers compliance with the HOS requirements as a factor in its 
determination of a motor carrier's safety fitness.
Information Collections for Type 3, 4, and 5 Drivers
    For CMV drivers who return to their normal work reporting location 
at the end of the work day (Types 3, 4, and 5 as described in this 
NPRM), the FMCSA proposes to conform the requirements similar to those 
of the WHD. A requirement to use a time record is currently codified at 
49 CFR 395.1(e). The provision is currently available to motor carriers 
whose drivers operate within a 100 air-mile radius of their normal work 
reporting location and who

[[Page 25598]]

return to the work reporting location and are released from duty within 
12 consecutive hours. The FMCSA proposes to extend this provision to 
drivers who return to the work reporting location and are released from 
duty within the same 12 consecutive hours generally, removing the 
distance-based limitation of the current regulation.
    Like the ``100 air-mile radius'' CMV drivers of today (49 CFR 
395.1(e)), Type 3, 4, and 5 drivers would not be required to carry 
their time records with them on their CMVs. Enforcement officials 
inspecting Type 3, 4, or 5 drivers at the roadside would have the 
opportunity, as they do now, to investigate the driver's claim by 
contacting or visiting the driver's normal work reporting location to 
review the driver's time record.
Information Collections for Type 1 and 2 Drivers
    For CMV drivers in long-haul and regional operations (Types 1 and 2 
as defined in this NPRM), the FMCSA is proposing a requirement for 
installation and use of EOBRs (electronic on-board recorders, i.e., a 
semi-automated time record). The requirement would include identifying 
the locations where changes in duty status occur. The FMCSA estimates 
that 1.25 million drivers would be affected by this element of the 
proposed rule.
    The agency is proposing a phased-in requirement for these motor 
carriers based upon the number of power units (e.g., truck-tractors, 
straight trucks, buses, specialized equipment) they operate. During the 
phase-in period, motor carriers and drivers that are not yet required 
to use EOBRs may install and use them, at their option. If they are not 
yet using EOBRs, however, they must comply use RODS that conform to the 
requirement contained at the current 49 CFR 395.8.
    The FMCSA proposes to require motor carrier fleets with more than 
50 power units to use EOBRs two years after the effective date of a 
final rule. Fleets with 21 to 50 power units would have three years, 
and fleets with 20 or fewer power units would have four years before 
they are required to use these devices. During this phase-in period, 
motor carriers may use EOBRs prior to the time they are required to do 
so. However, motor carriers and their drivers that have not begun using 
EOBRs would be required to use the RODS currently required under 49 CFR 
395.8 as well as retaining the appropriate supporting documents.
    For Type 1 and 2 motor carriers and drivers, the FMCSA and its 
State partner safety officials would use the on-duty and off-duty 
periods of time recorded by EOBRs and drivers to enforce the new safety 
regulations. During the proposed phase-in period, motor carriers and 
drivers not yet using EOBRs, and the FMCSA and State officials 
reviewing their compliance with the HOS requirements, would continue to 
use the RODS.
For all Driver types
    The FMCSA intends to continue to require motor carriers to retain 
drivers' time records and supporting documents for six months from the 
date they receive them from their drivers. Motor carrier employers are 
required to maintain for two years time records and documents required 
by the U.S. Department of Labor under 29 CFR Part 516 (OMB control 
number 1215-0017). The FMCSA proposes to use those records, at its 
option, for the purpose of verifying motor carriers' and drivers' 
compliance with the hours of work and hours of rest regulations during 
the two-year period.
    For all operations, motor carriers would be required to 
systematically monitor compliance with these proposed rules in order to 
detect drivers' failures to make records or detect false entries on 
records that point towards potential HOS violations, and to maintain 
records of the violations found. All motor carriers would also be 
required to disclose to their drivers their loading and unloading 
practices so that drivers may reserve sufficient time and energy to 
prevent unforeseen fatigue-causing delays or exertions, and avoid 
misunderstandings about possible lumping violations.
    The FMCSA believes these requirements meet the principles of the 
Paperwork Reduction Act of 1995 by ensuring--
    (1) The information collection is the least burdensome necessary 
for the proper performance of the FMCSA's safety mandate.
    (2) The information collection does not duplicate information 
collected by other agencies. The FMCSA believes the information 
collected by DOL to comply with the WHD regulations would also satisfy 
the FMCSA's requirements. Further, since motor carrier employers are 
required to make this information accessible to the WHD for all 
employees, there should be no additional burdens associated with making 
it accessible to the FMCSA.
    (3) The information collection has practical utility. The FMCSA has 
sought to minimize the cost to itself of collecting, processing, and 
using the information, but not to accomplish this by shifting 
disproportionate costs or burdens onto the public.
    The FMCSA seeks public comment on this proposed information 
collection requirement. Interested parties are invited to send comments 
regarding any aspect of these information collection requirements, 
including, but not limited to:
    (1) Evaluating whether the collection of information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have a practical use;
    (2) Evaluating the accuracy of the agency's estimate of the burden 
of the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
    (4) Minimizing the burden of collection of information on those who 
are to respond, including through the use of appropriate automated 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, such as permitting electronic 
submission of responses.
    The collections of information contained in this NPRM relating to 
OMB Control Number 2126-0001 have been submitted to OMB for review 
under section 3507(d) of the PRA. Please direct all comments to the 
Office of Information and Regulatory Affairs of OMB, Attention: Desk 
Officer for the Department of Transportation. Comments may be received 
within 30 days of publication up to the close of the rule's comment 
period, but comments to OMB will be most useful if received by OMB 
within 30 days of publication.

National Environmental Policy Act

    The agency has analyzed this action for the purposes of the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 
et seq.) and has determined that this action will not have any effect 
on the quality of the environment.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FMCSA has analyzed this action under Executive Order 13045,

[[Page 25599]]

Protection of Children from Environmental Health Risks and Safety 
Risks, and found it to be economically significant. This NPRM, however, 
does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. The FMCSA has determined 
this proposed rule does not have sufficient federalism impacts to 
warrant the preparation of a Federalism Assessment.
    The proposed changes to the HOS rules would not preempt any State 
law or regulation. However, the FMCSA is proposing to eliminate the 
hours of service of drivers' tolerance guidelines that allow State 
governments to have and enforce compatible HOS regulations for 
intrastate commerce. The current tolerance guidelines consider the 
following to be compatible with the FMCSRs: a 12-hour driving limit; a 
prohibition on driving after 16 hours on duty; and prohibitions on 
driving after 70 hours on duty in 7 consecutive days or 80 hours in 8 
consecutive days.
    The FMCSA is proposing to revise the MCSAP Tolerance Guidelines and 
the compatibility guidelines for regulatory review concerning 
intrastate HOS regulation compatibility. The FMCSA is proposing to 
require compatible State intrastate rules within three years from the 
effective date when the last group of interstate motor carriers, those 
with fewer than 20 power units, must comply with the automated time 
record system requirements (1,305 days after the date of publication of 
the final rule in the Federal Register). This would allow States to 
review and modify existing laws and regulations as allowed by Part 355, 
Appendix A, State Determinations, section 3.
    The FMCSA is proposing to revise Sec. 350.341 of the FMCSRs to 
require States to adopt and enforce the proposed regulations. After 
this three-year period, States that are not compatible would not be 
eligible to participate in MCSAP until they became compatible. This 
action would not have an impact on the States' ability to execute 
traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number or 20.217, 
Motor Carrier Safety. The regulations implementing Executive Order 
12372 regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

List of Subjects

49 CFR Part 350

    Grant programs--transportation, Highway safety, Motor carriers.

49 CFR Part 390

    Highway safety, Highways and roads, Motor carriers, Motor vehicle 
identification and marking, Reporting and recordkeeping requirements.

49 CFR Part 394

    Global positioning systems, Highway safety, Highways and roads, 
Intelligent Transportation Systems, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Drivers, Global positioning systems, Highway safety, Highways and 
roads, Intelligent Transportation Systems, Motor vehicle safety, 
Reporting and recordkeeping requirements.

49 CFR Part 398

    Highway safety, Migrant labor, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

    Issued on: April 24, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator.
    In consideration of the foregoing, the FMCSA is proposing to amend 
Title 49, CFR, chapter III, as set forth below:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

    1. The authority section of part 350 continues to read as follows.

    Authority: 49 U.S.C. 31100-31104, 31108, 31136, 31140-31141, 
31161, 31310-31311, 31502; and 49 CFR 1.73.

    2. Section 350.341 is revised to read as follows.


Sec. 350.341  What specific variances from the FMCSRs are allowed for 
State laws and regulations governing motor carriers, CMV drivers, and 
CMVs engaged in intrastate commerce and not subject to Federal 
jurisdiction?

    (a) A State may exempt a CMV from all or part of its laws or 
regulations applicable to intrastate commerce, provided that neither 
the GVW, GVWR, GCW, nor GCWR of the vehicle exceeds 11,801 kg (26,001 
lbs.). However, a State may not exempt a CMV from such laws or 
regulations if the vehicle:
    (1) Transports hazardous materials requiring a placard.
    (2) Is designed or used to transport 16 or more people, including 
the driver.
    (b) State laws and regulations applicable to intrastate commerce 
may not grant exemptions based upon the type of transportation being 
performed (e.g., for-hire, private, etc.).
    (c) A State may retain those exemptions from its motor carrier 
safety laws and regulations that were in effect before April 1988, are 
still in effect, and apply to specific industries operating in 
intrastate commerce.
    (d) State laws and regulations applicable to intrastate commerce 
must not include exemptions based upon the distance a motor carrier or 
driver operates from the work reporting location. This prohibition does 
not apply to those exemptions already contained in the FMCSRs.
    (e) Age of CMV driver--All CMV drivers must be at least 18 years of 
age.
    (f) Grandfather clauses--States may provide grandfather clauses in 
their rules and regulations if such exemptions are uniform or in 
substantial harmony with the FMCSRs and provide an orderly transition 
to full regulatory adoption at a later date.
    (g) Driver qualifications. (1) Intrastate drivers who do not meet 
the physical qualification standards in 49 CFR 391.41 may continue to 
be qualified to operate a CMV in intrastate commerce if the following 
three conditions are met:
    (i) The driver was qualified under existing State law or regulation 
at the time the State adopted physical qualification standards 
compatible with the Federal standards in 49 CFR 391.41.
    (ii) The otherwise non-qualifying medical or physical condition has 
not substantially worsened.
    (iii) No other non-qualifying medical or physical condition has 
developed.
    (2) The State may adopt or continue programs granting variances to 
intrastate drivers with medical or physical conditions that would 
otherwise be non-qualifying under the State's equivalent of 49 CFR 
391.41 if the variances are based upon sound medical judgment combined 
with appropriate performance standards ensuring no adverse affect on 
safety.

[[Page 25600]]

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    3. The authority citation for part 390 continues to read as 
follows.

    Authority: 49 U.S.C. 13301, 13902, 13902, 31132, 31133, 31136, 
31502, and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 
U.S.C. 701 note); and 49 CFR 1.73.

    4. Section 390.23 is revised to read as follows.


Sec. 390.23  Relief from regulations.

    (a) Parts 390 through 399 of this chapter do not apply to any motor 
carrier or driver operating a commercial motor vehicle to provide 
emergency relief during an emergency, subject to the following time 
limits:
    (1) State emergencies. (i) The exemption provided by paragraph 
(a)(1) of this section is effective only when:
    (A) An emergency has been declared by the President of the United 
States, the Governor of a State, or their authorized representatives 
having authority to declare emergencies; or
    (B) The State Director of the Federal Motor Carrier Safety 
Administration has declared that a State emergency exists which 
justifies an exemption from parts 390 through 399 of this chapter.
    (ii) Except as provided in Sec. 390.25, this exemption will not 
exceed the duration of the motor carrier's or driver's direct 
assistance in providing emergency relief, or 30 days from the date of 
the initial declaration of the emergency or the exemption from the 
regulations by the State Director of the Federal Motor Carrier Safety 
Administration, whichever is less.
    (2) Local emergencies. (i) The exemption provided by paragraph 
(a)(2) of this section is effective only when:
    (A) An emergency has been declared by a Federal, State, or local 
government official having authority to declare an emergency; or
    (B) The State Director of the Federal Motor Carrier Safety 
Administration has declared that a local emergency exists which 
justifies an exemption from parts 390 through 399 of this chapter.
    (ii) This exemption shall not exceed the duration of the motor 
carrier's or driver's direct assistance in providing emergency relief, 
or 5 days from the date of the initial declaration of the emergency or 
the exemption from the regulations by the State Director of the Federal 
Motor Carrier Safety Administration, whichever is less.
    (3) Tow trucks responding to emergencies. (i) The exemption 
provided by paragraph (a)(3) of this section is effective only when a 
request has been made by a Federal, State or local police officer for 
tow trucks to move wrecked or disabled motor vehicles.
    (ii) This exemption shall not exceed the length of the motor 
carrier's or driver's direct assistance in providing emergency relief, 
or 24 hours from the time of the initial request for assistance by the 
Federal, State, or local police officer, whichever is less.
    (b) Termination of assistance. (1) Direct assistance terminates as 
provided in paragraph (a) of this section or when a driver or 
commercial motor vehicle is used in interstate commerce to transport 
cargo not destined for the emergency relief effort, or when the motor 
carrier dispatches such driver or vehicle to another location to begin 
operations in commerce.
    (2) Upon termination of direct assistance to the emergencies 
covered by this section, the motor carrier or driver is subject to all 
of the requirements of parts 390 through 399 of this chapter.
    (3) Exception: The relief from regulations extends, without the 
prior approval required under Sec. 390.25, to a driver's return trip 
directly from the location of the emergency assistance to the motor 
carrier's terminal or the driver's normal work reporting location. 
However, any driver who informs the motor carrier that he or she needs 
immediate rest must be permitted at least 10 consecutive, uninterrupted 
hours off duty before the driver is required to return to such terminal 
or location.
    (c) When the driver has been relieved of all duty and 
responsibilities upon termination of direct assistance to an emergency 
covered by this section, no motor carrier must permit or require its 
driver to drive nor must any such driver drive in commerce until the 
driver has met the following three conditions:
    (1) The driver has been off duty for at least 10 consecutive, 
uninterrupted hours, including one period from midnight to 6:00 a.m.
    (2) After providing direct assistance for more than three 
consecutive days, the driver has been continuously off duty for a 
period that consists of two consecutive midnight to 6:00 a.m. periods.
    (3) The driver has at least one hour off duty after 6:00 a.m.
    5. Section 390.25 is revised to read as follows.


Sec. 390.25  Extension of relief from regulations--emergencies.

    (a) The State Director of the Federal Motor Carrier Safety 
Administration may extend the 30-day time period of the exemption 
contained in Sec. 390.23(a)(1), but not the 5-day time period contained 
in Sec. 390.23(a)(2) or the 24-hour period contained in 
Sec. 390.23(a)(3). The decision to extend the exemption is based on a 
determination whether such relief is necessary taking into account both 
the severity of the ongoing emergency and the nature of the relief 
services to be provided by the carrier or driver. Any extension must 
establish a new time limit and may place on the motor carrier or driver 
any other restrictions deemed necessary.
    (b) Any motor carrier or driver seeking to extend the 30-day limit 
must obtain approval from the State Director of the Federal Motor 
Carrier Safety Administration in the State in which the emergency was 
declared before the expiration of the 30-day period. The motor carrier 
or driver must give full details of the additional relief requested.
    6. Part 394 is added to read as follows:

PART 394--MOTOR CARRIER FATIGUE PREVENTION

Subpart A--Motor Carrier Operations

Purpose, Standards, Penalties, and Exemptions

394.101   What are the purpose and standards of this part?
394.103   What must I do to enhance driver alertness?
394.105   What are the penalties for failing to comply with this 
part?
394.107   What definitions apply to this part?
394.109   What operations are exempt from the requirements of this 
part?

Implementation Schedule

394.111   When must I begin to comply with the rules in this part?

Types of Operations

394.121   Are there different rules for different types of 
operations?
394.123   How do I determine which requirements apply to my 
operations?
394.125   May I assign my drivers to more than one type operation 
within a workweek?

Fatigued Drivers

394.131   What must I do if my driver becomes impaired by fatigue or 
illness?

Daily Time

394.141   How many consecutive hours must my drivers remain off duty 
before beginning each workday?
394.143   What are the consequences of interrupting a driver's 
minimum consecutive off-duty hours?
394.145   Must I allow my drivers additional off-duty time after 
they begin work?
394.147   How long may drivers be on duty?
394.149   How long may drivers drive motor vehicles?

[[Page 25601]]

Weekly Time

394.161   How many consecutive off-duty hours per workweek must I 
give my drivers?
394.163   When may my drivers start work after being off duty at the 
end of a workweek?
394.165   How many hours per week may my drivers be on duty?

Summary of Hour Limits

394.167   Can these requirements be summarized in a chart?

Loading and Unloading Practices

394.169   What must I do regarding the loading and unloading 
responsibilities of drivers?
Subpart B--Records and Reports

Time Records To Be Prepared and Kept By Motor Carriers

394.201   What records must I create showing that my drivers comply 
with the off-duty and on-duty requirements?
394.203   Must time records be prepared in a particular order or on 
particular forms?

Time Record Maintenance and Preservation

394.207   What time records must I preserve? For how long?

Monitoring Driver Time

394.209   Must I monitor my drivers' compliance with this part and 
part 395?

Inspection of Records

394.211   Must I present my equipment and records if an FMCSA 
special agent asks to inspect them?
394.213   What records may be used to determine my compliance with 
this part?
394.215   Where must I keep records available for inspection?
Subpart C--Automated Time Record System Performance Standards
394.301   What standards must automated time record systems meet?
394.303   How must I maintain automated time record system devices?
394.305   Must I train my drivers regarding the proper operation of 
the devices I use?

    Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.

Subpart A--Motor Carrier Operations

Purpose, Standards, Penalties, and Exemptions


Sec. 394.101  What are the purpose and standards of this part?

    (a) Purpose. The purpose of this part is to improve highway safety 
by promoting the use of well-rested, alert, and attentive drivers.
    (b) Requirements. This part requires you, the motor carrier, to 
provide your drivers with sufficient off-duty time, daily and weekly, 
to ensure they have adequate opportunity for restorative sleep prior to 
reporting for duty. You must comply with paragraph (c) of this section. 
You should also make every effort to comply with paragraph (d) of this 
section.
    (c) Standards. As a motor carrier, you must:
    (1) Provide each driver a minimum consecutive off-duty period of 
time each day and cumulative off-duty time each week to obtain 
restorative sleep.
    (2) Make available an additional minimum off-duty period of time 
each workday to allow each driver to attend to personal necessities and 
rest at the driver's discretion.
    (3) Empower the driver to accept or refuse a driving assignment or 
continuation of a trip based upon the driver's self-assessment of his/
her alertness.
    (d) Advisories. As a motor carrier, you should:
    (1) Develop scheduling, dispatching, and operating practices to 
avoid the use of drivers who are not sufficiently well rested to 
operate CMVs safely and that their workday driving schedules occur 
during periods of higher alertness (6:00 a.m. to midnight).
    (2) Maximize your knowledge of and ability to implement operational 
safety management techniques, including fatigue prevention.
    (3) Educate your employees, shippers, receivers, brokers, and 
others about the dangers and possible consequences of scheduling 
shipments that do not allow your drivers to obtain proper amounts of 
restorative sleep.


Sec. 394.103  What must I do to enhance driver alertness?

    (a) You must comply with the following five requirements.
    (1) You must restrict your drivers in Types 1, 2, 3, and 4 
operations (see Sec. 394.121) to no more than 12 hours on duty in any 
workday.
    (2) You must restrict your drivers in Type 5 operations (see 
Sec. 394.121) to no more than 13 hours on duty in any workday.
    (3) In any workweek, you must provide your drivers the opportunity 
to obtain at least 32 to 56 consecutive hours off duty, including at 
least two periods from midnight to 6:00 a.m.
    (4) You must not use or allow to be used a driver who is too ill or 
fatigued to complete a driving assignment safely. You must not 
penalize, discipline, dismiss, or discriminate against drivers who 
refuse to begin or continue a driving assignment due to illness or 
fatigue.
    (5) You must comply with the other specific limitations contained 
in this part, as applicable to your operations.
    (b) The Types of Operations are described in Sec. 394.121.


Sec. 394.105  What are the penalties for failing to comply with this 
part?

    (a) You are subject to civil penalties under 49 U.S.C. 521 and part 
386 of this subchapter.
    (b) The Federal Motor Carrier Safety Administration (FMCSA), or an 
official of a State or political subdivision of a State with authority 
over the safety of your motor carrier operations, may place your driver 
out of service.
    (c) Knowing and willful violations of this part may give rise to 
criminal penalties under 49 U.S.C. 521(b)(6).
    (d) Repeated violations of the regulations in this part may result 
in a determination under part 385 of this subchapter that you are unfit 
and lead to an order that you must cease operations.


Sec. 394.107  What definitions apply to this part?

    The following definitions apply to this part:
    Automated time record system means an electric, electronic, 
electromechanical, or mechanical system, including a device capable of 
recording driver's duty status information accurately and automatically 
as required by Sec. 394.211 and subpart C of this part.
    Driving time means all time at the driving controls of a motor 
vehicle in operation.
    Off-duty time means any period when a driver is relieved from duty 
and is free to attend to personal necessities including sleep, meals, 
refreshment, rest, and relaxation. Each off-duty period must be at 
least 30 minutes long. Off-duty time may be taken in a CMV so long as 
the driver is relieved of other duties and responsibilities to the 
motor carrier. See also 29 CFR 785.16.
    On-duty time means any period when a driver provides physical or 
mental exertion (whether burdensome or not) necessarily and primarily 
for the benefit of the driver's motor carrier. It includes all time 
when a motor carrier requires a driver to be on the motor carrier's 
premises, vehicles, equipment, or at other prescribed work places, 
except when the motor carrier expressly allows the driver to take rest 
breaks in vehicles or at a terminal. It also includes all such work for 
any other motor carrier or non-motor carrier employers. See also 29 CFR 
785.16.
    Workday means any fixed period of 24 consecutive hours.
    Workweek means any fixed and regularly recurring period of seven 
consecutive workdays.

[[Page 25602]]

Sec. 394.109  What operations are exempt from the requirements of this 
part?

    The following types of operations are exempt from the requirements 
of this part.
    (a) Agricultural operations. The exemption in this section is based 
on Section 345(a)(1) of the National Highway System Designation Act of 
1995 (49 U.S.C. 31136 note).
    (b) Exemption. The requirements of Secs. 394.141 through 394.165 do 
not apply to any driver who is transporting agricultural commodities 
within a State if the transportation takes place entirely within a 185-
kilometer (100-air-mile) radius of the source of the commodities or the 
distribution point for the farm supplies during the planting and 
harvesting seasons in that State, as determined by the State.

    Note: This exemption does not relieve motor carriers of the 
responsibility to meet the general standards in Sec. 394.101(c).

    (c) After concluding exempt agricultural operations. (1) If a 
driver asks for immediate rest after completing exempt agricultural 
transportation, you must allow the driver to have at least ten 
consecutive, uninterrupted hours off duty before requiring the driver 
to return to non-exempt work.
    (2) You must not permit or require a driver who has completed 
exempt agricultural transportation to drive in non-exempt operations 
until the driver has met the following three conditions:
    (i) The driver has been off duty for at least ten consecutive, 
uninterrupted hours, including a period from midnight to 6:00 a.m.
    (ii) After providing exempt agricultural transportation for more 
than three consecutive days, the driver has been continuously off duty 
for a period of at least 32 to 56 consecutive hours that includes two 
consecutive midnight to 6:00 a.m. periods.
    (iii) The driver has at least one hour off duty after 6:00 a.m.
    (d) Specific definitions. The following definitions apply to this 
section: (1) Agricultural commodities means farm crops that are 
produced from the soil on a farm, but does not include timber.
    (2) Farm supplies means those items directly relating to the 
farming activities of planting, fertilizing, or harvesting crops that 
are delivered directly to a farm. This does not include materials that 
are used as a part of a non-farm business or materials to be used in a 
residence or home, including the farmer's residence.
    (3) Source of the commodities means a farm where farm crops are 
produced, but does not include a farm planting or harvesting timber.
    (e) No preemptive effect. This exemption does not preempt any other 
Federal, State, or local law for hours of service, safety of operation, 
or recordkeeping requirements.

Implementation Schedule


Sec. 394.111  When must I begin to comply with the rules in this part?

    (a) You must begin using subpart A of this part applicable to each 
type of operation on [date 180 days after the date of publication of 
the final rule in the Federal Register].
    (b) For Type 1 and 2 operations, you must comply fully with the 
requirements of subpart B and C of this part according to the following 
schedule. If on [date 180 days after the date of publication of the 
final rule in the Federal Register]:
    (1) You operate more than 50 power units (owned or leased)--[date 2 
years and 180 days after the date of publication of the final rule in 
the Federal Register].
    (2) You operate between 20 and 50 power units (owned or leased)--
[date 3 years and 180 days after the date of publication of the final 
rule in the Federal Register].
    (3) You operate fewer than 20 power units (owned or leased)--[date 
4 years and 180 days after the date of publication of the final rule in 
the Federal Register].
    (c) To be in full compliance with the requirements of this part:
    (1) General. All motor carriers must have in place an operating 
systematic monitoring program as required in subpart B of this part.
    (2) Type 1 and 2 motor carriers. All Type 1 and 2 motor carriers 
must:
    (i) Have installed fully operational automated time record systems 
meeting the requirements of subpart C of this part.
    (ii) Ensure you or your managers and supervisors are properly 
trained in their use as required in subpart C of this part.
    (iii) Require your drivers to use them, and ensure they are 
properly trained.
    (d) If you are not yet required to comply with the rules in subpart 
B of this part, regarding records and reports, and opt not to comply, 
you must, at a minimum, comply with the recordkeeping rules of 49 CFR 
395.8 that were in effect on the day before [date 180 days after the 
date of publication of the final rule in the Federal Register] (See 49 
CFR Parts 200-399 revised as of October 1, 1999.).

Types of Operations


Sec. 394.121  Are there different rules for different types of 
operations?

    (a) There are five different types of operations. For each type, 
specific requirements apply for off-duty, on-duty, and driving periods 
during each workday and workweek. See Secs. 394.141 and 394.161.
    (b) The five types of operations are as follows.
    (1) Type 1. Long-haul operations that require the driver to be away 
from his/her normal work reporting location for three or more 
consecutive workdays.
    (2) Type 2. Long-haul operations that require the driver to be away 
from his/her normal work reporting location overnight, but for less 
than three consecutive workdays.
    (3) Type 3. Operations that require the driver to operate a CMV 
during two separate scheduled duty periods on the same workday. The 
driver returns to his/her normal work reporting location and is 
released from work within 15 consecutive hours after first beginning 
work. The two duty periods are separated by at least a three-hour off-
duty period during the workday.
    (4) Type 4. Operations in which the driver returns to his/her 
normal work reporting location and is released from work within 12 
consecutive hours after beginning work.
    (5) Type 5. Operations in which driving is incidental to other 
primary work activities, and the driver returns to his/her normal work 
reporting location and is released from work within 15 consecutive 
hours after beginning work. The driving duties do not exceed 5 hours in 
a workday. For-hire carriers are not Type 5 operations.


Sec. 394.123  How do I determine which requirements apply to my 
operations?

    (a) Your operations must fit within one of the categories described 
in Sec. 394.121, and you must adjust your hours of operation to conform 
to the requirements applicable to that type of operation.
    (b) Your compliance with requirements applicable to the type of 
operation will be determined by the actual facts and circumstances of 
your operations at the time compliance is required.
    (c) If there is some reasonable doubt about your operational type, 
you must comply in good faith with the regulations applicable to the 
type that you believe best describes your operation.

[[Page 25603]]

Sec. 394.125  May I assign my drivers to more than one type operation 
within a workweek?

    Your driver may move between the different types of operations 
after the appropriate off-duty time at the end of a workday or workweek 
for the previous type operation.

Fatigued Drivers


Sec. 394.131  What must I do if my driver becomes impaired by fatigue 
or illness?

    (a) You must instruct your drivers to stop when they are drowsy, 
ill, or have other signs of fatigue. However, you may allow your 
drivers to drive the motor vehicle to the nearest place where the 
vehicle can be parked without creating a greater risk to safety than 
that caused by the continued operation by the ill or fatigued driver. 
Failure to comply with this paragraph may subject you to penalties 
specified in 49 U.S.C. 521 or subpart G of part 386 of this subchapter.
    (b) You must not retaliate, penalize, discipline, dismiss, 
discriminate, demote, blacklist, threaten, or take any other 
retaliatory action against drivers who refuse to violate any Federal 
commercial motor vehicle safety regulations in this subchapter or State 
or local commercial motor vehicle safety laws, ordinances, or 
regulations.
    (c) Actions contrary to paragraph (b) of this section are also 
violations of 49 U.S.C. 31105 and will subject you to action by the 
U.S. Department of Labor, which may require you to reinstate the 
driver, and pay back pay and compensatory damages, among other things.
    (d) Drivers who believe they have suffered retaliation in violation 
of 49 U.S.C. 31105 may submit a complaint to any of the regional or 
area offices of the U.S. Department of Labor's Occupational Safety and 
Health Administration within 180 days of the retaliation for 
investigation. This is not a complete description of the requirements 
of 49 U.S.C. 31105. See 29 CFR part 1978 for details about your rights 
and responsibilities during the investigation.

Daily Time


Sec. 394.141  How many consecutive hours must my drivers remain off-
duty before beginning each workday?

    (a) You must require your drivers to remain off duty for at least 
the following number of hours before starting duty each workday:

------------------------------------------------------------------------
   If your driver is in this type of       Your driver must remain off
     operation (see Sec.  394.121)            duty for a minimum of
------------------------------------------------------------------------
Type 1.................................  10 consecutive hours of each
                                          workday
Type 2.................................  10 consecutive hours of each
                                          workday
Type 3.................................  9 consecutive hours of each
                                          workday
Type 4.................................  12 consecutive hours of each
                                          workday
Type 5.................................  9 consecutive hours of each
                                          workday
------------------------------------------------------------------------

    (b) Exception. (1) Your team drivers in Type 1 operations may take 
their 10 hours off duty in sleeper berth equipment in no more than two 
off-duty periods of at least 5 consecutive hours each. The on-duty and 
driving time between the two sleeper-berth periods must be counted as 
part of the on-duty period that begins after the second sleeper-berth 
period. On-duty periods may be interrupted by off-duty periods of less 
than 5 hours, but only periods of 5 or more consecutive hours in a 
sleeper berth count towards the required 10-hour off-duty period. Your 
drivers are limited by the on-duty and driving rules for the workday 
and workweek.
    (2) Sleeper berth equipment is defined in Sec. 393.76 of this 
subchapter.


Sec. 394.143  What are the consequences of interrupting a driver's 
minimum consecutive off-duty hours?

    (a) If you interrupt your driver's consecutive off-duty hours, the 
minimum period before the driver may return to duty starts anew at the 
conclusion of the interruption. The time required to deal with your 
interruption must be counted as on-duty time.
    (b) ``Interrupt,'' in this section, means you require drivers to 
undertake any responsibility for you as a motor carrier. An 
interruption includes, but is not limited to:
    (1) Causing drivers to answer personally any type of communication 
device, including, but not limited to, a telephone, pager, beeper, 
facsimile mail machine, doorbell, global positioning system message, or 
any other type of device.
    (2) Notifying drivers personally about an assignment.
    (3) Requiring drivers to contact you or anyone else about the 
status of trips or conditions of loads.
    (c) If you are subject to the minimum wage provisions of the Fair 
Labor Standards Act (29 U.S.C. 206), you and your drivers may also have 
to comply with the counting-of-hours principles in 29 CFR part 785.


Sec. 394.145  Must I allow my drivers additional off-duty time after 
they begin work?

    (a) In Type 1, 2, and 5 operations, you must provide drivers at 
least two additional off-duty hours each workday to nap, rest, or 
attend to personal necessities.
    (b) This two-hour period may be taken in segments of not less than 
30 minutes at the discretion of your driver at any location, including 
the CMV.
    (c) Drivers in Type 3 operations must have at least 3 consecutive 
hours off duty between their two split work shifts.


Sec. 394.147  How long may drivers be on duty?

    (a) Type 1, 2, 3, and 4 drivers may be on duty no more than 12 
hours within a 14-consecutive-hour period in any workday.
    (b) Type 5 drivers may be on duty no more than 13 hours within a 
15-consecutive-hour period in any workday.


Sec. 394.149  How long may drivers drive motor vehicles?

    (a) You may require your drivers in Type 1, 2, 3, and 4 operations 
to drive no more than 12 hours in any workday.
    (b) You may require your drivers in Type 5 operations to drive no 
more than 5 hours in any workday.

Weekly Time


Sec. 394.161  How many consecutive off-duty hours per workweek must I 
give my drivers?

    (a) You must give every driver an off-duty period of at least 32 to 
56 consecutive hours that includes at least two consecutive midnight to 
6:00 a.m. periods before the start of the next workweek.
    (b) In Type 1 operations, you must provide your drivers, for every 
two consecutive workweeks, with two such off-duty periods with a 
combined total of at least 112 hours.
    (c) Exception. If you operate a groundwater well-drilling operation 
exclusively, you must give your driver at least 24 consecutive hours 
off duty at the end of each workweek. This exception is required by 49 
U.S.C. 31136 note. To meet the standards of this part, however, you 
should provide your driver with the opportunity to sleep during two 
consecutive midnight to 6:00 a.m. periods of time and not begin work 
until 7:00 a.m.

[[Page 25604]]

Sec. 394.163  When may my drivers start work after being off duty at 
the end of a workweek?

    Your drivers may start work after being off duty at the end of a 
workweek as follows:

------------------------------------------------------------------------
                                            The driver may begin to work
 The driver stops work between 11:01 p.m.     the next workweek on this
on the workday immediately before this day  workday no earlier than 7:00
      and 11:00 p.m. on this workday                    a.m.
------------------------------------------------------------------------
(a) Saturday..............................  Monday
(b) Sunday................................  Tuesday
(c) Monday................................  Wednesday
(d) Tuesday...............................  Thursday
(e) Wednesday.............................  Friday
(f) Thursday..............................  Saturday
(g) Friday................................  Sunday
------------------------------------------------------------------------

Sec. 394.165  How many hours per week may my drivers be on duty?

    (a) Your drivers in Types 1, 2, 3, and 4 operations may be on duty 
up to, but no more than, 60 hours in any workweek.
    (b) Your drivers in Type 5 operations may be on duty up to, but no 
more than, 78 hours in any workweek.
    (c) Exception. When your Type 1 driver is on a trip requiring two 
or more consecutive workweeks away from his normal work reporting 
location, the driver may average two weekly maximum on-duty periods, 
i.e. 120 hours. The longer period may be no more than 72 hours on duty 
before the end of the workweek.
Summary of Hour Limits


Sec. 394.167  Can these requirements be summarized in a chart?

    In general, the following hourly limits apply, subject to any 
specific conditions listed in Secs. 394.141, 394.145, 394.147, 394.149, 
394.161, 394.163, and 394.165:

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Must have an off-duty period
                                                    Must have this    Must have this    May be on duty                      every workweek that includes                        May be on duty
                                  In this type of  many consecutive   many additional   for up to this    May drive only      at least two consecutive      May drive only      only this many
                                  operation, the    hours off duty    hours off duty   many hours every   this many hours  midnight to 6:00 a.m. periods    this many hours       hours every
                                      driver         every workday     every workday        workday        every workday       and at least this many       every workweek         workweek
                                                                                                                             consecutive hours off duty
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a)(1) One-week................  Type 1..........  10...  2....  12...  12...  32 to 56..........  60       60
                                                                                                                                                           standard.           standard
(2) Two-week flexible..........  Type 1..........  10...  2....  12...  12...  One week 32 to 56   One week 80.    eq>72 & Other       eq>72 & Other
                                                                                                                                                           week 48.              eq>48
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b)............................  Type 2..........  10...  2....  12...  12...  32 to 56..........  60.....  60
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c)............................  Type 3..........  9....  3....  12...  12...  32 to 56..........  60.....  60
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(d)............................  Type 4..........  12...  ................  12...  12...  32 to 56..........  60.....  60
(e)............................  Type 5..........  9....  2....  13...  5....  32 to 56..........  30.....  78
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Loading and Unloading Practices


Sec. 394.169  What must I do regarding the loading and unloading 
responsibilities of drivers?

    If you are a motor carrier of property,
    (a) You must agree in advance with your shipper, receiver, or other 
consignee whether the driver has the responsibility for loading or 
unloading cargo.
    (b) If these agreements make your driver responsible for loading 
and unloading, you must inform the driver of that fact.
    (c) If your driver is required to provide any loading or unloading 
services, notwithstanding an agreement to the contrary, those services 
and time spent waiting count as on-duty time, and you must require the 
driver to include all time spent waiting, loading, and unloading in 
his/her duty hours. See 29 CFR part 785.
    (d) The OMB has assigned the information collection requirements of 
paragraphs (a) and (b) of this section the number 2126-0001.

Subpart B--Records and Reports

Time Records To Be Prepared and Kept By Motor Carriers


Sec. 394.201  What records must I create showing that my drivers comply 
with the off-duty and on-duty requirements?

    (a) Type 1 and 2 drivers. You must require each driver in a Type 1 
and 2 operation to accurately record driving and on-duty time, as 
defined by this part and 29 CFR part 785, in an automated time record 
system meeting the requirements of subpart C of this part.
    (b) Type 3, 4, and 5 drivers. You must create or cause to be 
created for each Type 3, 4, and 5 driver, accurate time and work 
records containing at least the following five items of information.
    (1) Identity of driver.
    (2) Daily starting and ending times for each on-duty period.
    (3) Home terminal address, including zip code.
    (4) Time of day and day of week each driver's workweek begins. If 
all employees, including drivers, have a workweek beginning at the same 
time on the same day, a single notation for the entire workforce or 
establishment will suffice.
    (5) Total hours each driver was on duty each workday and workweek, 
as defined by this part and 29 CFR part 785.
    (c)(1) The OMB has assigned the information collection requirements 
of paragraph (a) of this section the number 2126-0001.
    (2) The OMB has assigned the information collection requirements of 
paragraph (b) of this section the number 1215-0017. The U.S. Department 
of Labor's Wage and Hour Division regulations require you to create 
other records, if you are a subject employer. See 29 CFR part 516.

[[Page 25605]]

Sec. 394.203  Must time records be prepared in a particular order or on 
particular forms?

    (a) A particular order or form of records is required by this part 
only for Type 1 and 2 drivers.
    (b) For all other types of drivers, you may maintain and preserve 
the records you create in paper, microfilm, microfiche, or electronic 
format.
    (c) If you use electronic or mechanical word or data processing 
media, you must make adequate projection, viewing, and reproduction 
equipment available to the authorized FMCSA, State, and local 
enforcement personnel during inspections and investigations. The 
reproductions must be clear and identifiable by date or time period.
    (d)(1) The OMB has assigned the information collection requirements 
of paragraph (a) of this section the number 2126-0001.
    (2) The OMB has assigned the information collection requirements of 
paragraphs (b) and (c) of this section the number 1215-0017.

Time Record Maintenance and Preservation


Sec. 394.207  What time records must I preserve? For how long?

    (a) Basic records. (1) You must preserve and retain all basic time 
records showing daily starting and ending times of individual drivers, 
or of separate work forces, for at least six months from the date of 
last entry.
    (2) You must require all Type 1 and 2 drivers to provide you, and 
you must obtain, within 13 days following completion of the time 
record, all time records they create and maintain as required by 
Sec. 395.201 of this subchapter. You must preserve and retain all Type 
1 and 2 driver time records for at least six months from the date of 
the record.
    (b) Order, shipping, and billing records. (1) You must preserve and 
retain for at least six months originals or true copies of all customer 
orders or invoices received, incoming or outgoing shipping or delivery 
records, as well as all bills of lading and all billings to customers 
(not including individual sales slips, cash register tapes or the like) 
that you retain or make in the usual course of business operations.
    (2) You must require all Type 1 and 2 drivers to provide you, and 
you must obtain, within 13 days following completion of the time 
record, all order, shipping, billing, and other receipt records they 
create, receive, and maintain as required by Sec. 395.201 of this 
subchapter. You must preserve and retain Type 1 and 2 driver time, 
order, shipping, billing, and other receipt records for at least six 
months from the date of the record.
    (c) You must preserve and retain for at least six months records of 
additions to and deductions from driver pay or compensation that you 
make in the usual course of business operations, including:
    (1) Total additions to or deductions from driver pay or 
compensation for each pay or compensation period, including purchase 
orders and pay or compensation assignments. The dates, amounts and 
nature of the items which make up the total additions and deductions.
    (2) All records used by the motor carrier in determining the 
original cost, operating and maintenance cost, and depreciation and 
interest charges, if such costs and charges are involved in the 
additions to or deductions from driver pay or compensation.
    (d) Manufacturer's certificate. You must preserve and retain for 
the length of time your automated time record system is in operation, 
and for at least six months after you no longer use such system, a copy 
of a written statement from the manufacturer of the system(s) 
certifying that the design of the system has been sufficiently tested 
under operational conditions to meet the requirements of subpart C of 
this part.
    (e) Back-up copies. You must preserve and retain for at least six 
months a second copy (back-up copy) of the electronic time record 
system files required by this subpart, by month, in a physical location 
different from where the original data is stored.
    (f)(1) The OMB has assigned the information collection requirements 
of paragraphs (a), (b), and (c) of this section the number 1215-0017. 
The U.S. Department of Labor's Wage and Hour Division regulations 
require you to preserve and maintain these and other records for at 
least two years, if you are a subject employer. See 29 CFR part 516.
    (2) The OMB has assigned the information collection requirements of 
paragraphs (d) and (e) of this section the number 2126-0001.

Monitoring Driver Time


Sec. 394.209  Must I monitor my drivers' compliance with this part and 
part 395?

    (a) You must systematically monitor each driver's compliance with 
the requirements of this part and part 395 of this subchapter. If you 
do not take effective action to penalize drivers' violations of, and 
thus to ensure their compliance with, these requirements, the FMCSA may 
hold you and/or the drivers responsible for the violations.
    (b) The monitoring system must verify the accuracy of your drivers' 
on-duty and off-duty times recorded as required by Sec. 394.201.
    (c) Upon request of authorized FMCSA, State, or local enforcement 
personnel conducting an investigation, you must produce a written 
description of your monitoring system with an explanation of how it 
works.
    (d) The OMB has assigned the information collection requirements of 
this section the number 2126-0001.

Inspection of Records


Sec. 394.211  Must I present my equipment and records if an FMCSA 
special agent asks to inspect them?

    You must immediately comply with a request by an FMCSA special 
agent or other authorized law enforcement official who displays proper 
credentials and demands to inspect your equipment and records.


Sec. 394.213  What records may be used to determine my compliance with 
this part?

    FMCSA officials or a State or local government official with 
authority over the safety of your motor carrier operations may use any 
information, whether or not in your possession, to determine your 
compliance with the requirements of this part and to verify the 
accuracy of the records you are required to maintain.


Sec. 394.215  Where must I keep records available for inspection?

    (a) Location of records while the motor vehicle is in operation. 
You must require each of your drivers in Type 1 and 2 operations to 
keep in the commercial motor vehicle accurate daily off-duty, on-duty, 
and driving-time records for the day of work and the previous seven 
consecutive days showing the items required by subpart C of this part.
    (b) Location of records at all other times. You must keep the 
records required by this part at the place or places of use, or at one 
or more established central recordkeeping offices where such records 
are customarily maintained. If you have more than one business location 
and maintain the records at a location other than your principal place 
of business, you must make the records available within 48 hours 
following notice from an FMCSA special agent or an official of a State 
or political subdivision of a State with authority over the safety of 
your motor carrier operations.
    (c) Inspection of records. (1) Automated time records and 
handwritten records for drivers in Types 1 and 2 operations must be 
available for inspection and transcription at roadside for the day of 
work and the previous

[[Page 25606]]

seven consecutive days. The record must be available for inspection at 
your place of business within 13 days after the record is made.
    (2) Time records for drivers in Types 3, 4, and 5 operations need 
only be available for inspection and transcription at your place of 
business.
    (d) OMB numbers. (1) The OMB has assigned the information 
collection requirements of paragraphs (a) and (c)(1) of this section 
the number 2126-0001.
    (2) The OMB has assigned the information collection requirements of 
paragraphs (b) and (c)(2) of this section the number 1215-0017. The 
U.S. Department of Labor's Wage and Hour Division regulations require 
you to provide for inspection for other records, if you are a subject 
employer. See 29 CFR part 516.

Subpart C--Automated Time Record System Performance Standards


Sec. 394.301  What standards must automated time record systems meet?

    You must ensure the automated time record system(s) you use meet 
the following design and performance standards:
    (a) The automated time record system installed on your commercial 
motor vehicles generate records that can be read, directly or remotely, 
at the driver's home terminal.
    (b) The automated time record system must record the date, whether 
the engine is on or off, vehicle speed, kilometers and/or miles driven 
per day, and a continuous time scale.
    (c) The automated time record system and associated support systems 
are capable of maintenance and calibration.
    (d)(1) The automated time record system and associated support 
systems are, to the maximum extent practicable, tamperproof.
    (2) The automated time record system prohibits drivers from editing 
data.
    (e) The automated time record system warns the driver visually and/
or audibly that the system has ceased to function.
    (f) The automated time record system identifies sensor failures and 
data edited by anyone when reproduced in printed form.
    (g) The automated time record system must permit duty status to be 
updated only when the commercial motor vehicle is at rest, except when 
registering the time a commercial motor vehicle crosses a State, 
Provincial, or national boundary.
    (h) Information collection standards. (1) Automated time record 
systems must produce, upon demand, a driver's duty status chart, 
electronic display, or printout showing the time and sequence of duty 
status changes, including the driver's starting time at the beginning 
of each day.
    (2) The system must provide a means whereby authorized Federal, 
State, or local officials can immediately check the driver's duty 
status at roadside.
    (3) Support systems used in conjunction with automated time record 
systems at a driver's home terminal or the motor carrier's principal 
place of business must be capable of providing the FMCSA or authorized 
State or local officials with summaries of an individual driver's duty 
records. The support systems must also provide information concerning 
system sensor failures and identification of edited data.
    (4) The system must automatically record the driver's duty status 
and additional standard information as follows:
    (i) ``Off duty'' or ``OFF'', or by an identifiable code or 
character;
    (ii) ``Driving'' or ``D'', or by an identifiable code or character 
(i.e., whenever the commercial motor vehicle is in any forward or 
reverse gear);
    (iii) ``On-duty not driving'' or ``ON'', or by an identifiable code 
or character;
    (iv) Date;
    (v) Total kilometers or miles driven each day;
    (vi) Truck, tractor, coach, and trailer number(s), as appropriate;
    (vii) Name of motor carrier;
    (viii) Home terminal address, including zip code;
    (ix) Workday starting time (e.g., midnight, 9:00 a.m., noon, 3:00 
p.m.);
    (x) Name of co-driver, if applicable; and
    (xi) Total hours on duty each day as defined by this part and 29 
CFR part 785.
    (5) The name or location code of the city, town, or village, with 
State or Provincial abbreviation, where the driver changes duty status 
(off duty, on duty, driving). A list of location codes showing all 
possible location identifiers must be available in the cab of the 
commercial motor vehicle and available at the motor carrier's principal 
place of business.
    (6) An information packet containing the following two items:
    (i) An instruction sheet describing in detail how data may be 
stored and retrieved from the system; and
    (ii) A supply of blank driver's duty records sufficient to record 
the driver's duty status and other related information for the duration 
of the current trip.
    (7) Automated time record systems with electronic displays must 
have the capability of displaying the following five pieces of 
information:
    (i) Driver's total hours of driving each day;
    (ii) The total hours on duty each day, as defined by this part and 
29 CFR part 785;
    (iii) Total kilometers or miles driven each day;
    (iv) Total hours on duty for the previous 7 consecutive days, 
including the current day, as defined by this part and 29 CFR part 785;
    (v) The sequential changes in off-duty, on-duty, and driving status 
and the times the changes occurred for each driver using the system.
    (8) In a multiple-driver operation, the automated time record 
system is capable of recording separately each driver's off-duty, on-
duty, and driving status.


Sec. 394.303  How must I maintain automated time record system devices?

    You must systematically maintain each automated time record system 
to ensure its accuracy in accordance with the manufacturer's 
specifications.


Sec. 394.305  Must I train my drivers regarding the proper operation of 
the devices I use?

    You must ensure your drivers are, or have been, adequately trained 
regarding the proper operation of the devices you have installed on 
your CMVs.
    7. Part 395 is revised to read as follows.

PART 395--DRIVER REST AND SLEEP FOR SAFE OPERATIONS

Subpart A--Rest and Sleep for Safe Operations

Purpose, Standards, Penalties, and Exemptions

Sec.
395.101   What are the purpose and standards of this part?
395.103   What must I do to enhance my alertness?
395.105   What are the penalties for failing to comply with this 
part?
395.107   What definitions apply to this part?
395.109   What types of operations are exempt from the requirements 
of this part?

Implementation Schedule

395.111   When must I begin to comply with the rules in this part?

Types of Operations

395.121   Are there different rules for different types of 
operations?
395.123   How do I determine which requirements apply to my work?
395.125   May I drive in more than one type operation within a 
workweek?

Fatigued Drivers

395.131   What must I do if I become impaired by fatigue or illness?

[[Page 25607]]

Daily Time

395.141   How many consecutive hours must I remain off duty before 
beginning each workday?
395.143   What must I do when my minimum consecutive off-duty hours 
are interrupted?
395.145   Must I take additional off-duty time after I begin 
working?
395.147   How long may I be on duty?
395.149   How long may I drive motor vehicles?

Weekly Time

395.161   How many consecutive hours per workweek must I take off 
duty?
395.163   When may I start work after being off duty at the end of a 
workweek?
395.165   How many hours per week may I work?

Summary of Hour Limits

395.167   Can these requirements be summarized in a chart?

Loading and Unloading Practices

395.169   What are the loading and unloading responsibilities of 
drivers?
Subpart B--Records and Reports

Time Records To Be Prepared and Kept By Drivers

395.201   What records must I make and maintain while working?
395.203   Must I prepare time records in a particular order or on 
particular forms?
395.205   What are my responsibilities if I use an automatic time 
record system to record my duty status?

Inspection of Records

395.211   Must I present my equipment and records if an FMCSA 
special agent asks to inspect them?
395.213   What records may be used to determine my compliance with 
this part?
395.215   Where must I keep records available for inspection?
Subpart C--Roadside Out-Of-Service Orders
395.301   What must I do if I am declared out of service for 
violations of this part?
Subpart D--Emergency Operations
395.401   What must I do if I need immediate rest after providing 
direct assistance in an emergency?
395.403   What conditions must I meet before I operate in interstate 
commerce after providing direct assistance in an emergency?

    Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.

Subpart A--Rest and Sleep for Safe Operations

Purpose, Standards, Penalties, and Exemptions


Sec. 395.101  What are the purpose and standards of this part?

    (a) Purpose. The purpose of this part is to improve highway safety 
by promoting the use of well-rested, alert, and attentive drivers.
    (b) Requirements. This part requires you to get sufficient off-duty 
time, daily and weekly, to ensure that you have adequate opportunity 
for restorative sleep prior to reporting for duty. You must schedule 
your activities to take at least the prescribed off-duty time. You must 
comply with paragraph (c) of this section. You should also make every 
effort to comply with paragraph (d) of this section.
    (c) Standards. As a driver, you must: (1) Drive only when you are 
sufficiently well rested to operate CMVs safely.
    (2) Take a minimum consecutive off-duty period each day and 
cumulative off-duty period each workweek to obtain restorative sleep.
    (3) Accept or refuse a driving assignment or continuation of a trip 
based upon your self-assessment of your alertness.
    (d) Advisories. As a driver, you should:
    (1) Take off-duty periods each workday to attend to personal 
necessities and rest at your discretion.
    (2) Take off-duty periods each workday and workweek to ensure you 
are sufficiently well rested to operate CMVs safely, generally during 
periods of higher alertness (6:00 a.m. to midnight).
    (3) Educate others about the dangers and possible consequences of 
not allowing you to obtain proper amounts of restorative sleep.


Sec. 395.103  What must I do to enhance my alertness?

    You must comply with the following requirements.
    (a) If you are a driver in a Type 1, 2, 3, or 4 operation (see 
Sec. 395.121), you must not be on duty for more than 12 hours in any 
24-hour period, no matter how many motor carriers or other employers 
you work for.
    (b) If you are a driver in Type 5 operations (see Sec. 395.121), 
you must not be on duty for more than 15 hours in any 24-hour period, 
no matter how many motor carriers or other employers you work for.
    (c) In any workweek, you must take at least 32 to 56 consecutive 
hours off duty, including at least two periods from midnight to 6:00 
a.m.
    (d) You must refuse dispatch or continuation of a trip if you 
believe you are not alert enough to drive safety.
    (e) You must comply with the other specific limitations contained 
in this part.


Sec. 395.105  What are the penalties for failing to comply with this 
part?

    (a) You are subject to civil penalties under 49 U.S.C. 521 and part 
386 of this subchapter.
    (b) The FMCSA, or an official of a State or political subdivision 
of a State with authority over the safety of your motor carrier 
operations, may order you out of service.
    (c) Knowing and willful violations of this part may give rise to 
criminal penalties under 49 U.S.C. 521(b)(6).


Sec. 395.107  What definitions apply to this part?

    The following definitions apply to this part:
    Driving time means all time at the driving controls of a motor 
vehicle in operation.
    Off-duty time means any period when you are relieved from duty and 
are free to attend to personal necessities including sleep, meals, 
refreshment, rest, and relaxation. Each period of off-duty time must be 
at least 30 minutes long. See also 29 CFR 785.16.
    On-duty time means any period when you provide physical or mental 
exertion (whether burdensome or not) necessarily and primarily for the 
benefit of your motor carrier. It includes all time when you are on 
your motor carrier's premises, vehicles, equipment, or at other 
prescribed work places, except when your motor carrier expressly allows 
you to take rest breaks in vehicles or at a terminal. It includes all 
work for non-motor carrier employers. See also 29 CFR 785.16.
    Workday means any fixed period of 24 consecutive hours.
    Workweek means any fixed and regularly recurring period of seven 
consecutive workdays.


Sec. 395.109  What types of operations are exempt from the requirements 
of this part?

    The following types of operations are exempt from the requirements 
of this part.
    (a) Agricultural operations. The exemption in this section is based 
on Section 345(a)(1) of the National Highway System Designation Act of 
1995 (49 U.S.C. 31136 note).
    (b) Exemption. The requirements of Secs. 395.141-395.165 do not 
apply to you when you are transporting agricultural commodities within 
a State if the transportation takes place entirely within a 185-
kilometer (100 air-mile) radius of the source of the commodities or the 
distribution point for the farm supplies during the planting and 
harvesting seasons in that State, as determined by the State. (Note: 
This exemption does not relieve you of the

[[Page 25608]]

responsibility to meet the general standards in Sec. 395.101(c) or 
comply with the general requirements of Sec. 395.103.)
    (c) After concluding exempt agricultural operations. (1) If you ask 
for immediate rest after completing exempt agricultural transportation, 
you must take at least ten consecutive, uninterrupted hours off duty 
before returning to non-exempt work.
    (2) You must not drive in non-exempt operations until you have met 
the following three conditions:
    (i) You have been off duty for at least ten consecutive, 
uninterrupted hours, including a period from midnight to 6:00 a.m.
    (ii) After providing exempt agricultural transportation for more 
than three consecutive days, you have been continuously off duty for a 
period of at least 32 to 56 consecutive hours that includes two 
consecutive midnight to 6:00 a.m. periods.
    (iii) You have at least one hour off duty after 6:00 a.m.
    (d) Specific definitions. The following definitions apply to this 
section:
    (1) Agricultural commodities mean farm crops that are produced on a 
farm, but does not include timber.
    (2) Farm supplies mean those items directly relating to the farming 
activities of planting, fertilizing, or harvesting crops that are 
delivered directly to a farm. This does not include materials that are 
used as a part of a non-farm business or materials to be used in a 
residence or home, including the farmer's residence.
    (3) Source of the commodities means a farm where farm crops are 
produced from the soil, but does not include a farm planting or 
harvesting timber.
    (e) No preemptive effect. This exemption does not preempt any other 
Federal, State, or local law for hours of service, safety of operation, 
or recordkeeping requirements.

Implementation Schedule


Sec. 395.111  When must I begin to comply with the rules in this part?

    (a) You must begin complying with subpart A of this part applicable 
to each type of operation on [date 180 days after the date of 
publication of the final rule in the Federal Register].
    (b) For Type 1 and 2 operations, you must comply fully with the 
requirements of subpart B and C of this part according to the following 
schedule. If your motor carrier on [date 180 days after the date of 
publication of the final rule in the Federal Register]:
    (1) Operates more than 50 power units (owned or leased)--[date 2 
years and 180 days after the date of publication of the final rule in 
the Federal Register].
    (2) Operates between 20 and 50 power units (owned or leased)--[date 
3 years and 180 days after the date of publication of the final rule in 
the Federal Register].
    (3) Operates fewer than 20 power units (owned or leased)--[date 4 
years and 180 days after the date of publication of the final rule in 
the Federal Register].
    (c) To be in full compliance with the requirements of this part:
    (1) General. All drivers must comply with the record keeping 
requirements of subpart B of this part.
    (2) Type 1 and 2 drivers. All Type 1 and 2 drivers must:
    (i) Have installed fully operational automated time record systems 
meeting the requirements of subpart C of part 394 of this subchapter.
    (ii) Be properly trained and use the automated time record systems.
    (d) If you are not yet required to comply with the rules in subpart 
B of this part, regarding records and reports, and opt not to comply, 
you must, at a minimum, comply with the recordkeeping rules 49 CFR 
395.8 that were in effect on the day before [date 180 days after the 
date of publication of the final rule in the Federal Register] (See 49 
CFR Parts 200-399 revised as of October 1, 1999.).

Types of Operations


Sec. 395.121  Are there different rules for different types of 
operations?

    (a) There are five different types of operations. For each type, 
the regulations require specific off-duty, on-duty, and driving periods 
during each workday and workweek. See Secs. 394.141 and 394.161.
    (b) The five types of operations are as follows.
    (1) Type 1. Long-haul operations that keep you away from your 
normal work reporting location for three or more consecutive workdays.
    (2) Type 2. Long-haul operations that keep you away from your 
normal work reporting location overnight, but for less than three 
consecutive workdays.
    (3) Type 3. You operate a CMV during two separate scheduled duty 
periods on the same workday. You return to your normal work reporting 
location and are released from work within 15 consecutive hours after 
beginning work. The two duty periods are separated by at least a three-
hour off-duty period during the workday.
    (4) Type 4. You return to your normal work reporting location and 
are released from work within 12 consecutive hours after beginning 
work.
    (5) Type 5. Your driving duties are incidental to other primary 
activities. You return to your normal work reporting location and are 
released from work within 15 consecutive hours after beginning work. 
Your driving duties do not exceed 5 hours in any workday. You do not 
drive for a for-hire motor carrier.


Sec. 395.123  How do I determine which requirements apply to my work?

    (a) Your work must fit within one of the categories described in 
Sec. 395.121, and you must adjust your hours of operation to conform to 
the requirements applicable to that type of work.
    (b) Your compliance with requirements applicable to the type of 
operation will be determined by the actual facts and circumstances of 
your work at the time compliance is required.
    (c) If there is some reasonable doubt about your operational type, 
you must comply in good faith with the regulations applicable to the 
type that you believe best describes your work.


Sec. 395.125  May I drive in more than one type operation within a 
workweek?

    Yes, you may move between the different types of operations after 
you have the appropriate off-duty time at the end of a workday or 
workweek for the previous type operation.

Fatigued Drivers


Sec. 395.131  What must I do if I become impaired by fatigue or 
illness?

    (a) You must stop driving when you are drowsy, ill, or have other 
signs of fatigue. However, you may drive the motor vehicle to the 
nearest place where the vehicle can be parked without creating a 
greater risk to safety than continued operation would cause. Failure to 
comply with this paragraph may subject you and your motor carrier 
employer to penalties specified in 49 U.S.C. 521 or subpart G of part 
386 of this subchapter.
    (b) It is illegal for a motor carrier to take retaliatory actions 
against you for refusing to violate any Federal commercial motor 
vehicle safety regulations in this subchapter or State or local 
commercial motor vehicle safety laws, ordinances, or regulations. 
Retaliatory actions include, but are not limited to, being penalized, 
disciplined, discharged, discriminated against, demoted, blacklisted, 
and threatened.
    (c) Actions contrary to paragraph (b) of this section are also 
violations of 49 U.S.C. 31105 and will subject your motor carrier 
employer to action by the U.S. Department of Labor which may require 
your employer to reinstate you and pay you back pay and

[[Page 25609]]

compensatory damages, among other things.
    (d) If you believe that a motor carrier has taken retaliatory 
action against you in violation of 49 U.S.C. 31105, you may submit a 
complaint to any of the regional or area offices of the U.S. Department 
of Labor's Occupational Safety and Health Administration within 180 
days of the retaliation for investigation. This is not a complete 
description of the requirements of 49 U.S.C. 31105. See 29 CFR part 
1978 for details about how to file a complaint.

Daily Time


Sec. 395.141  How many consecutive hours must I remain off-duty before 
beginning each workday?

    (a) You must remain off-duty for at least the following number of 
hours before starting duty each workday:

------------------------------------------------------------------------
  If you are in this type of operation    You must remain off-duty for a
          (see Sec.  395.121)                       minimum of
------------------------------------------------------------------------
Type 1.................................  10 consecutive hours of each
                                          workday.
Type 2.................................  10 consecutive hours of each
                                          workday.
Type 3.................................  9 consecutive hours of each
                                          workday.
Type 4.................................  12 consecutive hours of each
                                          workday.
Type 5.................................  9 consecutive hours of each
                                          workday.
------------------------------------------------------------------------

    (b) Exception. (1) If you operate as a member of a team in a Type 1 
operation, you may take your 10 hours off duty in sleeper berth 
equipment in no more than two off-duty periods of at least 5 
consecutive hours each. The on-duty and driving time between the two 
sleeper-berth periods must be counted as part of the on-duty period 
that begins after the second sleeper-berth period. On-duty periods may 
be interrupted by off duty periods of less than 5 hours, but only 
periods of 5 or more consecutive hours in a sleeper berth count towards 
the required 10-hour off-duty period. You continue to be limited by the 
on-duty and driving rules for the workday and workweek.
    (2) Sleeper berth equipment is defined in Sec. 393.76 of this 
subchapter.


Sec. 395.143  What must I do when my minimum consecutive off-duty hours 
are interrupted?

    (a) If your motor carrier interrupts your minimum consecutive off-
duty hours, the minimum off-duty period must start anew at the 
conclusion of the interruption. In addition, you must count the time 
required to deal with the interruption as on-duty time.
    (b) ``Interrupt,'' in this section, means your motor carrier 
requires you to undertake any responsibility for the carrier, 
including, but not limited to any of the following:
    (1) Answer any type of communication device, including, but not 
limited to, a telephone, pager, beeper, facsimile mail machine, 
doorbell, global positioning system message, or any other type of 
device.
    (2) Contact it for a new dispatch.
    (3) Contact it about the status of a trip or the condition of a 
load.
    (c) If your motor carrier is required to pay you minimum wages 
under the minimum wage provisions of the Fair Labor Standards Act (29 
U.S.C. 206), the counting-of-hours principles in 29 CFR part 785 may 
also apply.


Sec. 395.145  Must I take additional off-duty time after I begin 
working?

    (a) If you are a driver in a Type 1, 2, or 5 operation, you must 
take at least two additional off-duty hours each workday to nap, rest, 
or attend to personal necessities. This two-hour period may be taken at 
your discretion at any location, including the CMV. You may divide the 
two-hour period into periods of not less than 30 minutes.
    (b) If you are a driver in a Type 3 operation, you must have at 
least 3 consecutive hours off duty between your two split work shifts.


Sec. 395.147  How long may I be on duty?

    (a) Type 1-4 drivers may be on duty no more than 12 hours within a 
14-consecutive-hour period in any workday.
    (b) Type 5 drivers may be on duty no more than 13 hours within a 
15-consecutive-hour period in any workday.


Sec. 395.149  How long may I drive motor vehicles?

    (a) You must not drive more than 12 hours per workday in Type 1, 2, 
3, or 4 operations.
    (b) You must not drive more than 5 hours per workday in a Type 5 
operation.

Weekly Time


Sec. 395.161  How many consecutive hours per workweek must I take off 
duty?

    (a) You must take an off-duty period of at least 32 to 56 
consecutive hours that includes at least two consecutive midnight to 
6:00 a.m. periods before the start of the next workweek.
    (b) In Type 1 operations, for every two consecutive workweeks, you 
must take two such off-duty periods with a combined total of at least 
112 hours.
    (c) Exception. If you operate as a driver exclusively for a 
groundwater well drilling operation, you must take at least 24 
consecutive hours off duty at the end of each workweek. This exception 
is required by 49 U.S.C. 31136 note. To meet the standards of this 
part, however, you should have the opportunity to sleep during two 
consecutive midnight to 6:00 a.m. periods of time and not begin work 
until 7:00 a.m.


Sec. 395.163  When may I start work after being off duty at the end of 
a workweek?

    You may start work after being off duty at the end of a workweek as 
follows:

------------------------------------------------------------------------
                                              You may begin to work the
  You stop work between 11:01 p.m. on the       next workweek on this
  workday immediately before this day and   workday no earlier than 7:00
        11:00 p.m. on this workday                      a.m.
------------------------------------------------------------------------
(a) Saturday..............................  Monday
(b) Sunday................................  Tuesday
(c) Monday................................  Wednesday
(d) Tuesday...............................  Thursday
(e) Wednesday.............................  Friday
(f) Thursday..............................  Saturday
(g) Friday................................  Sunday
------------------------------------------------------------------------

Sec. 395.165  How many hours per week may I work?

    (a) If you are a driver in a Type 1, 2, 3, or 4 operation, you may 
be on-duty up to, but no more than, 60 hours in any workweek.
    (b) If you are a driver in a Type 5 operation, you may be on-duty 
up to, but no more than, 78 hours in any workweek.
    (c) Exception. If you are a Type 1 driver on a trip requiring two 
or more consecutive workweeks away from your normal work reporting 
location, you may average two weekly maximum on-duty periods, i.e., 120 
hours. The longer period may consist of no more than 72 hours on duty 
before the end of the workweek.

Summary of Hour Limits


Sec. 395.167  Can these requirements be summarized in a chart?

    In general, the following hourly limits apply, subject to any 
specific conditions listed in Secs. 395.141, 395.145, 395.147, 395.149, 
395.161, 395.163, and 395.165:

[[Page 25610]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                Must have an off-duty period
                                                       Must have this     Must have this    May be on duty                      every workweek that includes                     May be on duty
                                   In this type of    many consecutive   many additional    for up to this    May drive only      at least two consecutive     May drive only    only this many
                                    operation, the     hours off duty     hours off duty   many hours every   this many hours  midnight to 6:00 a.m. periods   this many hours     hours every
                                        driver         every workday      every workday         workday        every workday       and at least this many      every workweek       workweek
                                                                                                                                 consecutive hours off duty
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a)(1) One-week.................  Type 1...........  10....  2.....  12...  12...  32 to 56..........  60     60
                                                                                                                                                               standard.         standard
(2) Two-week flexible...........  Type 1...........  10....  2.....  12...  12...  One week 32 to 56   One week 80.    eq>72 & Other     eq>72 & Other
                                                                                                                                                               week 48.            eq>48
(b).............................  Type 2...........  10....  2.....  12...  12...  32 to 56..........  60...  60
(c).............................  Type 3...........  9.....  3.....  12...  12...  32 to 56..........  60...  60
(d).............................  Type 4...........  12....  .................  12...  12...  32 to 56..........  60...  60
(e).............................  Type 5...........  9.....  2.....  13...  5....  32 to 56..........  30...  78
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Loading and Unloading Practices


Sec. 395.169  What are the loading and unloading responsibilities of 
drivers?

    (a) Your motor carrier must inform you about your responsibility 
for loading and unloading services. See Sec. 394.169 of this 
subchapter.
    (b) If you are responsible for loading and unloading cargo, you 
must include all such time in your daily on-duty hours. See also 29 CFR 
part 785.
    (c) The OMB has assigned the information collection requirements of 
paragraph (a) of this section the number 2126-0001.

Subpart B--Records and Reports

Time Records To Be Prepared and Kept By Drivers


Sec. 395.201  What records must I make and maintain while working?

    (a) Type 1 and 2 drivers. If you are a driver in a Type 1 or 2 
operation, you must accurately record your driving and on-duty time 
records in an automated time record system meeting the requirements of 
Sec. 394.201 and subpart C of part 394 of this subchapter and any 
additional requirements imposed on you by your motor carrier.
    (b) If your motor carrier is not yet required to comply with the 
rules in subpart B of part 394, regarding records and reports, and opts 
not to comply, you must, at a minimum, comply with the rules that were 
in effect on the day before [date 180 days after the date of 
publication of the final rule in the Federal Register] (See 49 CFR 
Parts 200-399 revised as of October 1, 1999.).
    (c) If you are a driver in a Type 1 or 2 operation, you are legally 
responsible for the accuracy of off-duty, on-duty, and driving-time 
records prepared by you.
    (d) Type 3, 4, and 5 drivers. If you are a driver in a Type 3, 4, 
or 5 operation, you are not required to make or maintain on-duty and 
off-duty time records, unless your motor carrier requires you to do so. 
You are legally responsible for the accuracy of rest and work time 
records prepared by you.
    (e)(1) The OMB has assigned the information collection requirements 
of paragraph (a) of this section the number 2126-0001.
    (2) The OMB has assigned the information collection requirements of 
paragraph (d) of this section the number 1215-0017. The U.S. Department 
of Labor's Wage and Hour Division regulations require your motor 
carrier to create other records, if your motor carrier is a subject 
employer. See 29 CFR part 516.


Sec. 395.203  Must I prepare time records in a particular order or on 
particular forms?

    (a) If you are a driver in a Type 1 or 2 operation, you must record 
and maintain records in the order or form prescribed by your motor 
carrier for its automated time record system.
    (b) If you are a driver in a Type 3, 4, or 5 operation, a 
particular order or form of records is not required by this part. Your 
motor carrier may require that you create the records in its own format 
in paper, microfilm, microfiche, electronic, or automated time record 
format.


Sec. 395.205  What are my responsibilities if I use an automatic time 
record system to record my duty status?

    You must:
    (a) Record accurately all your off-duty, driving, and on-duty time, 
including the following.
    (1) Daily starting and ending times for each work period and the 
place where you start and end each work period (i.e., town and State, 
town and Province, or location code of such locations).
    (2) Intervening times and locations during each work period when 
you transact business, e.g., picking up freight or passengers, fueling 
stops, deliveries, roadside inspections.
    (3) Intervening times and locations during each work period when 
you take your required 2 hours off duty for rest and meals.
    (b) Make sure you understand the system and how it operates.
    (c) Follow the instructions of your motor carrier and the 
manufacturer of the automatic time record system.
    (d) Retain in the commercial motor vehicle the records prescribed 
in paragraph (a) of this section for the current workday and the 
previous seven workdays.
    (e) Submit or forward your original time record and all documents 
obtained during each trip supporting the time record to your motor 
carrier within 13 days after completing each record.
    (f) Produce the current records from the automatic time record 
system upon the request of a special agent of the FMCSA or any 
authorized law enforcement official.
    (g) If the system fails:
    (1) Reconstruct accurate records for the current day and the 
previous seven days, in the manner prescribed in paragraph (a) of this 
section, using the format required by your motor carrier.
    (2) Prepare a written record of all subsequent time periods, in the 
manner prescribed in paragraph (a) of this section, until the system is 
operational, using the format required by your motor carrier.
    (3) Produce the current records upon the request of a special agent 
of the FMCSA or any authorized law enforcement official.

Inspection of Records


Sec. 395.211  Must I present my equipment and records if an FMCSA 
special agent asks to inspect them?

    You must immediately comply with a request by an FMCSA special 
agent or

[[Page 25611]]

other authorized law enforcement official who displays proper 
credentials and demands to inspect your equipment and records.


Sec. 395.213  What records may be used to determine my compliance with 
this part?

    FMCSA officials or a State or local government official with 
authority over the safety of your motor carrier operations may use any 
information, whether or not in your possession, to determine your 
compliance with the requirements of this part and to verify the 
accuracy of the records you are required to maintain.


Sec. 395.215  Where must I keep records available for inspection?

    (a) Place of records for type 1 or 2 drivers. (1) As indicated in 
Sec. 395.205(d) if you are a driver in a Type 1 or 2 operation, you 
must keep time records required by Secs. 395.201 and 395.205 in your 
possession while on duty and for seven consecutive days after the 
record is made.
    (2) You must keep originals or true copies of all customer orders 
or invoices received, incoming or outgoing shipping or delivery 
records, all bills of lading and all billings to customers (not 
including individual sales slips, cash register tapes, or the like), 
and any other receipts in your possession while on duty. If the 
documentation for previous trips have been given to your motor carrier, 
you must have all documentation for your current trip in your 
possession.
    (3) You must keep accessible while on duty and for at least seven 
consecutive days records of items to be added to and deducted from your 
pay or compensation for your services in the usual course of business 
operations, including:
    (i) Total additions to or deductions from pay or compensation for 
each pay or compensation period including the dates, amounts, and 
nature of the items which make up the total additions and deductions.
    (ii) All records used by you in determining the original cost, 
operating and maintenance cost, and depreciation and interest charges, 
if such costs and charges are involved in additions to or deductions 
from your pay or compensation.
    (b) Location and inspection of records for type 3, 4, and 5 
drivers. Customer orders or invoices received, incoming or outgoing 
shipping or delivery records, all bills of lading and all billings to 
customers (not including individual sales slips, cash register tapes, 
or the like), and any other receipts and time records for drivers in 
Types 3, 4, and 5 operations need only be available for inspection and 
transcription at your motor carrier's principal place of business.
    (c)(1) The OMB has assigned the information collection requirements 
of paragraph (a) of this section the number 2126-0001.
    (2) The OMB has assigned the information collection requirements of 
paragraph (b) of this section the number 1215-0017. The U.S. Department 
of Labor's Wage and Hour Division regulations require your motor 
carrier to provide other records for inspection, if your motor carrier 
is a subject employer. See 29 CFR part 516.

Subpart C--Roadside Out-Of-Service Orders


Sec. 395.301  What must I do if I am declared out of service for 
violations of this part?

    You must not drive a CMV until you have taken the minimum 
consecutive hours off duty required to restore compliance with 
Secs. 395.141, 395.161, and 395.163; complied with the terms of the 
out-of-service order; and, for Type 1 or 2 drivers only, updated your 
time record(s) to show the time on duty, driving, and off duty 
accurately.

Subpart D--Emergency Operations


Sec. 395.401  What must I do if I need immediate rest after providing 
direct assistance in an emergency?

    (a) Inform your motor carrier.
    (b) Take at least ten consecutive, uninterrupted hours off duty 
before returning to your normal work reporting location.


Sec. 395.403  What conditions must I meet before I operate in 
interstate commerce after providing direct assistance in an emergency?

    You must not drive in interstate commerce until you have met the 
following three conditions:
    (a) You have been off duty for at least ten consecutive hours, 
including a period from midnight to 6:00 a.m.
    (b) After providing direct assistance for more than three 
consecutive days, you have been continuously off duty for a period of 
time that includes two consecutive midnight to 6:00 a.m. periods and at 
least 32 to 56 consecutive hours.
    (c) You have had at least one hour off duty after 6:00 a.m.

PART 398--TRANSPORTATION OF MIGRANT WORKERS

    8. The authority citation for part 398 is revised to read as 
follows.

    Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.

    9. Section 398.6 is revised to read as follows:


Sec. 398.6  Hours of rest and work; minimum rest and maximum work time.

    (a) If you are a motor carrier, you must comply with the 
requirements of part 394 of this subchapter when transporting migrant 
workers.
    (b) If you are a driver, you must comply with the requirements of 
part 395 of this subchapter when transporting migrant workers.
[FR Doc. 00-10703 Filed 4-26-00; 4:10 pm]
BILLING CODE 4910-22-P