[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]
[[Page 25539]]
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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
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Local Other Long haul Unknown Total
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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
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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-
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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.
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\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.).
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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]]
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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