[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22456-22517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9971]



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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 385, 390, and 395



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

  Federal Register / Vol. 68, No. 81 / Monday, April 28, 2003 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

[Docket No. FMCSA-97-2350]
RIN 2126-AA23


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

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

ACTION: Final rule.

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SUMMARY: The FMCSA revises its hours-of-service (HOS) regulations to 
require motor carriers of property to provide drivers with better 
opportunities to obtain sleep, and thereby reduce the incidence of 
crashes attributed in whole or in part to drivers operating commercial 
motor vehicles (CMVs) while drowsy, tired, or fatigued. This action is 
necessary because the FMCSA estimates that between 196 and 585 
fatalities occur each year on the Nation's roads because of drowsy, 
tired, or fatigued CMV drivers transporting property. The FMCSA 
estimates that this final rule when adhered to fully will save between 
24 and 75 lives each year as a result of giving truck drivers an 
increased incremental amount of time to obtain rest and sleep.

DATES: The effective date is June 27, 2003, except for Sec.  395.0 
which is effective from June 27, 2003, through June 30, 2004.

FOR FURTHER INFORMATION CONTACT: Ms. Mary M. Moehring, Division Chief, 
Driver and Carrier Operations Division, Office of Bus and Truck 
Standards and Operations, FMCSA, (202) 366-4001, 400 Seventh Street, 
SW., Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

    The following is an outline of the preamble.
Preamble Table of Abbreviations
Statutory Requirement
Agency Determination
Advance Notice of Proposed Rulemaking
Supporting Documents Notice of Proposed Rulemaking
Development of the Notice of Proposed Rulemaking
ATA Recommendation Submitted While NPRM Was Under Review at OMB
    Notice of Proposed Rulemaking
    Comments to the NPRM
    General Overview
    Use of an Independent Consulting Firm
FMCSA Response
    Use of Science
FMCSA Response
    Discussion of Specific Issues of Concern to Commenters
Categories of operations
FMCSA Response
Passenger carrier operations
FMCSA Response
    NHS Act Exemptions
    For-hire Trucking
    Associations and Carriers That May Have NHS Act Sec. 345 Subject 
Operations
    Special Operations
    Private Carriers of Freight
    Safety Advocacy Groups
FMCSA Response
Sleeper berth requirements
    Motor Carriers
    Safety advocacy groups
    Law Enforcement
FMCSA Response
Carrier notification of drivers during their off-duty hours
    Motor Carriers
    Safety advocacy groups
FMCSA Response
Daily work/rest cycle
    General concept
    ATA and DLTLCA Recommendations
    Industry Comments
    Private Carriers of Freight
    Truckload Carriers
    LTL Carriers
    Driver Associations
    Special Operations
    Shippers
    Safety Advocacy Groups
FMCSA Response
Daily off-duty time
    Industry comments
    Private carriers of freight
    Truckload carriers
    LTL carriers
    Driver associations
Safety advocacy groups
FMCSA Response
Daily on-duty time
    Industry comments
    Private carriers of freight
    Truckload carriers
    LTL carriers
    Driver associations
    Special operations
    Safety advocacy groups
FMCSA Response
Daily driving time
    Industry comments
    Private carriers of freight
    Truckload carriers
    LTL carriers
    Driver associations
    Special operations
    Safety advocacy groups
FMCSA Response
Distinctions in duty time
    General concept
    ATA Recommendation
    Other industry comments
    Safety advocacy groups
FMCSA Response
Weekly or longer cycle
    General concept
    ATA Recommendation
    Other industry comments
    Safety advocacy groups
FMCSA Response
Weekly recovery periods
    General concept
    Industry comments
    Safety advocacy groups
FMCSA Response
Short rest breaks during a work shift
    General concept
    ATA Recommendation
    Other industry comments
    Safety advocacy groups
FMCSA Response
Economic Impacts
    Proposed costs
    Industry reaction
    Other industry comments
    Advocacy groups
    Proposed benefits
    Safety advocacy groups
FMCSA Response
Electronic on-board recorders (EOBRs)
    Industry comments
    Other industry comments
    Law enforcement comments
    Safety advocacy groups
    Vendors' comments
FMCSA Response
Proposed compliance and enforcement
    Industry comments
    Law enforcement
    Safety advocacy groups
FMCSA Response
Regulatory Impact Analysis
    PATT Alternative
    ATA Alternative
    FMCSA Staff Alternative
Safety impacts
    Safety benefits
    Changes in Crash Damages Due to Schedule Changes
    Changes in Fatigue-related Fatalities Due to Schedule Changes
    Adjustments to Benefits Due to Secondary Effects
Costs of the alternatives
Net benefits
    Discussion of net benefit results
    Limitations and Sensitivities
    Costs and Benefits Relative to the Status Quo
Changes Compared to May 2, 2000 NPRM
    Categories of operations
    Passenger carrier operations
    NHS Act Exemptions
    Sleeper berth requirements
    Carrier notification of drivers during their off-duty hours
    Daily work/rest cycle
    Daily off-duty time
    Daily on-duty time
    Daily driving time
    Distinctions in duty time
    Weekly or longer cycle
    Weekly recovery periods
    Short rest breaks during a work shift
    Electronic on-board recording devices
    Use of Department of Labor time records
    Conclusion
Section-by-section evaluation
Appendix B to Part 385 Explanation of Safety Rating Process
    390.23 Relief from regulations.
    395.0 Compliance date for certain requirements for hours of 
service of drivers.
    395.1 Scope of the rules in this part.
    395.3 Maximum driving time for property-carrying vehicles.
    395.5 Maximum driving time for passenger-carrying vehicles.

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    395.13 Drivers declared out of service.
    395.15 Automatic on-board recording devices.

Rulemaking analysis and notices

Preamble Table of Abbreviations

    The following are abbreviations of terms used as well as 
abbreviations of commenters' names in the preamble.

ANPRM--Advance Notice of Proposed Rulemaking
AHAS--Advocates for Highway and Auto Safety
AAA--American Automobile Association
ABA--American Bus Association
ACOEM--American College of Occupational and Environmental Medicine
AMSA--American Moving and Storage Association
ARTBA--American Road and Transportation Builders Association
ARA--Agricultural Retailers Association
ATC--Agricultural Transporters Conference
ATA--American Trucking Associations, Inc.
AGC--Associated General Contractors
AAR--Association of American Railroads
CTA--California Trucking Association
CRASH--Citizens for Reliable and Safe Highways
CDL--Commercial Driver's License
CVSA--Commercial Vehicle Safety Alliance
CFI--Contract Freight, Inc.
DLTLCA--Distribution and Less-than-Truck-Load (LTL) Carriers 
Association
DOL--U.S. Department of Labor, Employment Standards Administration, 
Wage and Hour Division.
DOT--Department of Transportation
FARS--Fatality Analysis Reporting System
FAA--Federal Aviation Administration
FHWA--Federal Highway Administration
FMCSA--Federal Motor Carrier Safety Administration
FMCSR--Federal Motor Carrier Safety Regulations
FRA--Forest Resources Association
GES--General Estimates System
GRP--Gross Regional Product
IME--Institute of Makers of Explosives
IIHS--Insurance Institute for Highway Safety
IBA--International Bakers Association
IBT--International Brotherhood of Teamsters
IC--Collection of information
ICC--Interstate Commerce Commission
ICCTA--Interstate Commerce Commission Termination Act
IVI--Intelligent Vehicle Initiative
Landstar--Landstar System, Inc.
LTL--Less Than Truckload
LCM--Logistics Cost Model
MCMIS--Motor Carrier Management Information System
MFCA--Motor Freight Carriers Association
NAICS--North American Industry Classification System
NASTC--National Association of Small Trucking Companies
NASS--National Automotive Sampling System
NERA--National Economic Research Association
NHS--National Highway System Designation Act of 1995
NHTSA--National Highway Traffic Safety Administration
NITL--National Industrial Transportation League
NIOSH--National Institute for Occupational Safety and Health
NPTC--National Private Truck Council
NRMCA--National Ready-Mixed Concrete Association
NSC--National Safety Council
NSTA--National School Transportation Association
NSF--National Sleep Foundation
NPRM--Notice of Proposed Rulemaking
OOIDA--Owner Operators Independent Drivers Association
PATT--Parents Against Tired Truckers
PMTA--Pennsylvania Motor Truck Association
PMAA--Petroleum Marketers Association of America
RIA--Regulatory Impact Analysis and Small Business Analysis for HOS 
Options, December, 2002
RODS--Records of Duty Status
RSP--Regulatory Studies Program, Mercatus Center, George Mason 
University
TL--Truck Load
UMA--United Motorcoach Association
UMTIP--University of Michigan Trucking Industry Program
VMT--Vehicles Miles Traveled
Watkins--Watkins Motor Lines, Inc.

Statutory Requirement

    Section 408 of the ICC Termination Act (Pub. L. 104-88, December 
29, 1995, 109 Stat. 803, 958) (ICCTA) requires rulemaking to increase 
driver alertness and reduce fatigue-related incidents.

Agency Determination

    When Congress created FMCSA, it provided that, ``[i]n carrying out 
its duties the Administration shall consider the assignment and 
maintenance of safety as the highest priority * * *'' [49 U.S.C. 
113(b)]. As indicated above, Sec. 408 of the ICCTA directed the 
agency--then part of the Federal Highway Administration (FHWA)--to 
begin rulemaking dealing with a variety of fatigue-related safety 
issues, including ``8 hours of continuous sleep after 10 hours of 
driving, loading and unloading operations, automated and tamper-proof 
recording devices, rest and recovery cycles, fatigue and stress in 
longer combination vehicles, fitness for duty, and other appropriate 
regulatory and enforcement countermeasures for reducing fatigue-related 
incidents and increasing driver alertness) * * *'' [109 Stat. 958]. The 
agency's statutory focus on safety and the specific mandate of Sec. 408 
both demand that this rulemaking improve commercial motor vehicle (CMV) 
safety. While recognizing the primacy of its safety mission, the agency 
must comply with a variety of statutes and executive orders requiring 
detailed analysis of the cost of regulations and consideration of their 
impact on regulated entities and other segments of society.
    The FMCSA analyzed three alternative regulatory proposals in depth. 
Compared to the status quo, which includes a degree of non-compliance 
with the current HOS rules, the option proposed by the American 
Trucking Associations (ATA), would have marginally reduced fatigue-
related fatalities and somewhat increased the cost of regulatory 
compliance. This results in a negative cost/benefit ratio. The option 
suggested by Parents Against Tired Truckers (PATT) would have reduced 
fatalities far more than the ATA option, but would have generated 
significant increases in compliance and operational expenses. This 
results in a cost/benefit ratio far more negative than the ATA option.
    The third alternative was proposed by the FMCSA staff. The analysis 
shows that this option would save many more lives than the ATA 
alternative, though not quite as many as the PATT option. While it 
would cost more than the ATA option, it would be much cheaper than the 
PATT alternative. The net result is a cost/benefit ratio slightly more 
negative than the ATA option but not nearly as negative as the PATT 
option.
    The FMCSA has adopted the third alternative for this final rule. 
The rule represents a substantial improvement in addressing driver 
fatigue over the current regulation. Among other things, it increases 
required time off duty from 8 to 10 consecutive hours; prohibits 
driving after the end of the 14th hour after the driver began work; 
allows an increase in driving time from 10 to 11 hours; and allows 
drivers to restart the 60- or 70-hour clock after taking 34 hours off 
duty. Together, these provisions (and others discussed in detail below) 
are expected to reduce the effect of cumulative fatigue and prevent 
many of the accidents and fatalities to which fatigue is a contributing 
factor. Because the agency's statutory priority is safety, we have 
adopted a rule that is marginally more expensive than the ATA option 
but which will reduce fatigue-related accidents and fatalities more 
substantially than that option. The FMCSA believes that the rule 
represents the best combination of safety improvements and cost 
containment that can realistically be achieved.

Advance Notice of Proposed Rulemaking

    On November 5, 1996, the FHWA published an advance notice of 
proposed rulemaking (ANPRM) for this ICCTA proceeding (61 FR 57252). 
The FHWA received and transcribed comments at six nationwide public

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listening sessions in March 1997 and placed these comments in the 
docket. The FHWA recorded more than 1,588 written (paper and electronic 
submissions) and transcribed oral comments to this docket after the 
November 1996 ANPRM. The FHWA extended the comment period for the ANPRM 
once to June 30, 1997.
    The ANPRM discussed 33 relevant research studies the FHWA was aware 
of in 1996. The FHWA requested that the public provide additional 
research studies it believed to be relevant. The ANPRM comments 
provided or referenced an additional 30 studies. The FHWA obtained and 
examined these studies and identified additional research from 1997 
through 1999 while developing an NPRM. See the index to all relevant 
research studies and the annotated literature review. The FHWA began 
developing a set of alternatives to analyze based on more than 120 
research studies included in the docket.

Supporting Documents Notice of Proposed Rulemaking

    On April 20, 1998, the FHWA published a notice of proposed 
rulemaking (NPRM) requesting comments on a proposed definition of 
``supporting documents'' for the HOS regulations (63 FR 19457) in 
response to the Hazardous Materials Transportation Authorization Act of 
1994, Pub. L. 103-311, 108 Stat. 1673 (August 26, 1994) (HMTAA). 
Section 113 of the Act requires the Secretary of Transportation to 
prescribe regulations amending 49 CFR Part 395 to improve both (1) 
compliance by CMV drivers and motor carriers with the HOS requirements, 
and (2) the effectiveness and efficiency of Federal and State 
enforcement officers reviewing such compliance.
    The April 1998 NPRM proposed that motor carriers develop and 
maintain effective auditing systems to monitor the accuracy of the 
drivers' Records of Duty Status and HOS. The NPRM proposed that failure 
to create and maintain such a system would result in motor carriers 
being required to retain various types of business documents. The use 
of electronic recordkeeping methods was also proposed as a preferred 
alternative to paper records.

Development of the Notice of Proposed Rulemaking

    The entire effort to revise the HOS regulations has been based on 
the concept that new rules would be science-based. This was the theme 
throughout the development of alternatives leading up to the 
publication of the May 2000 NPRM. Science was often cited by industry 
as the basis upon which the HOS rules should be reformed. Several modal 
administrations within the DOT, including the FMCSA, had undertaken 
significant research into fatigue causation and the dynamics of sleep. 
There was general recognition that the existing rules for the truck and 
bus industries had been implemented well before there had been a clear 
scientific understanding of fatigue causal factors (e.g., time of day, 
amount and timing of sleep, time awake, and time on task). The agency 
collected many relevant studies by authorities in the area of fatigue. 
It also completed its own comprehensive Commercial Motor Vehicle Driver 
Fatigue And Alertness Study, a joint undertaking with Canada and the 
trucking industry. In preparing the May 2000 proposal, the agency 
assembled an expert panel of recognized authorities on traffic safety, 
human factors, and fatigue to review the science and evaluate 
potentially effective and reasonably feasible regulatory alternatives. 
The resulting agency proposal relied heavily on scientific conclusions 
based on the research and analysis in Belenky, G., McKnight, A.J., 
Mitler, M.M., Smiley, A., Tijerina, L., Waller, P., Wierwille, W.W., 
Willis, D.K., (1998), Potential Hours-Of-Service Regulations For 
Commercial Drivers; Report of the Expert Panel on Review of the Federal 
Highway Administration Candidate Options for Hours of Service 
Regulations.
    Regulatory reform of drivers' HOS in the truck and bus industries 
had been the subject of consideration by the agency for close to ten 
years before publication of the May 2000 NPRM. The FHWA's Office of 
Motor Carriers maintained an intensive driver fatigue research program 
starting in 1989. Truck and motorcoach driver fatigue had been 
identified and discussed by many industry analysts and safety advocates 
as a significant motor carrier safety issue. Major aspects of the 
proposal had been the subject of trade journal stories for nearly a 
year before the NPRM was published.

ATA Recommendation Submitted While NPRM Was Under Review at OMB

    On December 3, 1999, the agency submitted the draft NPRM for review 
to the Office of Management and Budget (OMB) as required by Executive 
Order 12866.\1\ The ATA submitted Recommendations for Future Hours of 
Service Rules to the DOT two weeks later on December 15, 1999. The ATA 
proposed that the agency ``* * * issue a notice of proposed rulemaking 
and ultimately a final rule based on the ATA recommendations.'' The ATA 
stated that its proposal was based ``* * * on sound science, public 
safety and the needs of the American economy.'' The 16th item of the 
ATA recommendation stated that ``[u]pon publication of the [FMCSA] 
proposal, ATA should contract with a firm to analyze the government's 
cost/benefit analysis, and if warranted, conduct its own cost-benefit 
analysis for comparison.''
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    \1\ OMB Office of Information and Regulatory Affairs Internet 
page for ``Regulations Pending and Reviews Completed Last 30 Days'' 
dated 08 Dec 99.
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    The ATA addressed its recommendation both to the Secretary of 
Transportation and the OMB director. The agency had already considered 
and analyzed five alternatives it believed were reasonably feasible to 
implement. The agency chose not to withdraw its draft NPRM from review 
at OMB to add a sixth ATA alternative and delay the draft NPRM further. 
The OMB approved the agency's draft NPRM for publication on April 24, 
2000.

Notice of Proposed Rulemaking

    On May 2, 2000, FMCSA published an NPRM covering a comprehensive 
revision of the HOS regulations (65 FR 25540). The FMCSA received and 
transcribed 700 comments at eight nationwide public hearings in May, 
June, and July 2000 and placed these comments in the docket referenced 
at the beginning of this document. After holding the first seven public 
hearings, the agency identified several recurring themes and issues 
that warranted additional stakeholder and public discussion. The agency 
conducted three two-day public roundtable discussions in September and 
October 2000 in Washington, D.C. for that purpose. A transcript of each 
day of the public roundtable discussions is also in the docket. The 
FMCSA extended the comment period for the May 2000 NPRM twice, first to 
October 31, 2000, and then to December 15, 2000. The FMCSA has recorded 
more than 53,750 written (paper and electronic submissions to the 
docket) and transcribed oral comments in response to the May 2000 NPRM.

Comments to the NPRM

General Overview

    The comments to the May 2000 proposal reflected widespread 
recognition of the enormity of the undertaking, and many commenters, 
even those strongly opposed to the NPRM, acknowledged the difficulty in 
sifting through the data and presenting the issues. The hearings gave 
many an opportunity to express themselves on a

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variety of issues. The roundtable discussions provided an opportunity 
to focus on the specific major issues mentioned at the hearings and 
helped some commenters to explain their reasons for opposing or 
supporting the NPRM. The reactions of many commenters reflected 
apprehension about the effects on their jobs, earnings, businesses, 
method of operation, competitive status, and protection from what they 
perceived to be a drastic change from the status quo.
    The generally unfavorable comment and reaction to the NPRM led to 
expressions of Congressional concern regarding any short-term effort to 
promulgate a final rule. The FY 2001 DOT Appropriations Act, Pub. L. 
106-346, prohibited the agency from moving to a final rule during that 
year. The FY 2002 DOT Appropriations Act, Pub. L. 107-87, prohibited 
promulgation of a final rule dealing with any of the HOS exemptions in 
the National Highway System Designation Act of 1995, Pub. L. 104-59, 
Sec. 345, 109 Stat. 568, 613 (NHS). This action reflects careful 
consideration of the concerns expressed by members of Congress as well 
as the more than 53,000 comments to the docket.

Use of an Independent Consulting Firm

    The National Safety Council (NSC), American Bus Association (ABA), 
American Trucking Associations, Inc., and Distribution and LTL Carriers 
Association (DLTLCA) petitioned FMCSA to retain an independent 
consulting firm to study the safety and economic impacts of any next 
action. The DLTLCA believed ``that such an approach, used previously by 
DOT in the prior proceeding on these hours-of-service rules, is in the 
interest of all the participants, FMCSA, and the public.''

FMCSA Response

    The FMCSA has chosen to grant this petition. The agency hired an 
independent consultant who performed an exhaustive analysis of several 
regulatory alternatives, described below.

Use of Science

    Numerous trucking industry commenters applauded the agency for its 
attempt to use science as the basis for HOS reform. Although these 
commenters found little on which to disagree with the agency about the 
actual research into the science of fatigue, they consistently faulted 
the agency for the way it applied that science in the real world. They 
commented that the proposed rules lacked the flexibility necessary to 
apply the science in an operationally practical manner. The industry 
position was perhaps best summed up in the comments of the National 
Private Truck Council (NPTC). ``While the fatigue research may confirm 
that people do get tired, and that they can become more tired between 
midnight and 6 a.m., this must be weighed against the result of pushing 
nighttime runs into daylight hours.''
    The trucking industry also found much to disagree with regarding 
the analysis of the accident and compliance data used by the agency to 
justify many of the provisions of the proposal.
    The ATA found little support for the agency's position that the 
proposed rules would save 755 lives annually once industry adhered to 
the proposal fully.
    The ATA repeatedly cited crash statistics of the National Highway 
Traffic Safety Administration and FMCSA showing fatigue to be a factor 
in no more than five percent of fatal accidents involving trucks.
    The ATA referred to work done by the Michigan State Police in 
conjunction with the University of Michigan to try to isolate causes of 
fatal truck crashes in Michigan. They identified 267 truck-involved 
fatal crashes from 1966 to 1999, 72 of which were determined to be the 
fault of the truck driver. They stated only five of those 267 crashes, 
or 1.8 percent, were attributable to fatigue.
    The National Association of Small Trucking Companies (NASTC) 
commented that fatigue is a ``naturally occurring phenomenon'' and man 
has been provided with naturally occurring defenses, which he has to 
manage. NASTC believes the agency ought to rely on promoting fatigue 
management alternatives rather than trying to regulate what is probably 
individual to each person.
    The industry was also critical of the FMCSA for failing to do 
enough research into the safety consequences of shifting considerable 
nighttime truck traffic to the daytime.
    Several enforcement agencies including the New York State Police 
applauded FMCSA's effort to utilize sleep research data in developing 
new rules to combat driver fatigue. It cautioned the agency, however, 
against placing total reliance ``on the data obtained through this 
research since this data is certainly open to interpretation.''
    The American Automobile Association (AAA) found positive attributes 
in the proposal. The AAA believed the proposal represented a 
significant effort to draft science-based HOS regulations. The NPRM, it 
said, provided a workable framework taking into account science and 
expert opinion in areas of sleep research and traffic safety.
    The AAA, however, believed the agency had misapplied some of the 
scientific findings. The AAA also stated the proposal should focus on 
where ``we know we have a problem.'' The AAA believed long haul, over-
the-road drivers face challenges that could benefit from improved work/
rest practices. The AAA pointed to the Hanowski, Wierwille, Garness, 
Dingus study Impact of Local/Short Haul Operations on Driver Fatigue 
(2000), Report No. DOT-MC-00-203, a study that had not been completed 
before the proposal. This study concluded that fatigue may be less 
problematic for local/short haul drivers, as they are more like workers 
in non-driving professions than long haul drivers. The AAA strongly 
recommended that the agency reconsider those parts of the proposed 
rulemaking that would apply HOS requirements to industries where there 
is no demonstrable evidence that driver fatigue results in accidents.
    The American College of Occupational and Environmental Medicine 
(ACOEM) also had a cautionary message. Noting that fatigue is an 
important issue, not only for safety, but also for productivity, the 
ACOEM observed that occupational medicine's prime job is matching the 
interface of the worker with the workplace, and then understanding that 
interface. There is a tremendous amount of research in this area, but 
it is relatively young, only 20 to 30 years old. The ACOEM found that 
taking the science and making it operational, as in scheduling, is 
quite challenging and questioned the value of regulating driving 
schedules as the fatigue problem is much more complex. The ACOEM 
recommended deferring further action on the proposal until more 
information is available.
    The National Sleep Foundation (NSF) was very supportive of the 
proposal. It cited the three general principles in its Policy Statement 
of February 2000 anticipating the publication of the proposed rules:

    New regulations must be based on current scientific research and 
understanding regarding fatigue and driver performance.
    An effective system to manage fatigue should include 
prescriptive regulations that can be monitored and enforced by 
compliance officers and, above all, provide adequate rest periods 
with reasonable, responsible limits on driving.
    HOS rules alone cannot regulate driver fatigue and alertness. 
Ultimately, it is the shared responsibility of all interested 
parties to develop a system that helps promote proper fatigue 
management through education and training.


[[Page 22460]]


    The NSF concluded, ``Where science is clear, we state the proposed 
rules conform to the best available science. Where science is less well 
developed, we state the proposed rules represent a reasonable balance 
between operational considerations and broad principals of sleep 
practice.'' (sic) It also noted that the proposed rules tracked closely 
the NSF's policy statement and the Expert Panel's recommendations, and 
that they provided significant improvement over the current rules.
    The Insurance Institute for Highway Safety (IIHS) mentioned several 
drawbacks in studies trying to link fatigue to crashes. IIHS stated 
that one cannot calculate fatigue-related crashes by looking at police 
reports or National Automotive Sampling System (NASS) reports because 
they will always understate fatigue. IIHS believes the correct method, 
called ``population percent attributable risk calculations,'' is to 
take the increased risk of crashes from driving longer hours and to put 
that into a formula together with the rate of drivers driving longer 
hours.
    Many commenters urged the use of pilot studies to test some of the 
rules before generally mandating them on the industry. There was 
particular interest in piloting the use of on-board recorders.
    There was also interest in developing a more holistic approach to 
the fatigue problem through the use of education and training programs, 
and screening for sleep apnea and other sleep disorders. This was 
usually mentioned in the context of fatigue management.

FMCSA Response

    There was no serious challenge to the scientific findings that 
human beings are subject to a circadian, biological clock of about 24 
hours, which controls the natural wake/sleep cycles. Nor was there any 
serious doubt about the science concluding that humans require about 
eight hours of restorative sleep daily and that a longer off-duty 
period than currently required is necessary so that the needed sleep 
can be obtained. The studies citing police accident reports for the 
causal factors consistently show a lower proportion of crashes with 
fatigue/drowsiness as a causal factor than do detailed studies of crash 
causation.
    The agency sought to develop rules that were science-based. It did 
not promise rules that were science-``controlled'' to the point of 
being completely impractical in operational environments.
    After the agency completed reviewing the 53,000 comments, including 
the hearing and roundtable transcripts, it began deliberating whether 
all the provisions of the proposal continued to be feasible.

Discussion of Specific Issues of Concern to Commenters

    The agency will discuss the comments received in the docket about 
each of the following issues: categories of operations; passenger 
carrier operations; NHS exemptions; sleeper berth requirements; carrier 
notification of drivers during their off-duty hours; daily work/rest 
cycle; 24-hour work/rest cycle; daily off-duty time; daily on-duty 
time; daily driving time; distinctions in duty time; weekly or longer 
cycle; weekly recovery periods; restarts; short rest breaks during a 
work shift; economic impacts; electronic on-board recorders; proposed 
compliance and enforcement; and regulatory impact analysis.

Categories of Operations

    The FMCSA proposed a categorization of motor carrier operations 
intended to address the diversity of the industry. The NPRM proposed 
five types of operations, into which most motor carriers subject to 
federal jurisdiction would fall. For each category a separate set of 
duty restrictions was proposed for the drivers in that type of 
operation. Types 1 and 2 were intended to cover all long-haul drivers, 
i.e., national and regional operations, respectively. The remaining 
three types were intended to include the various practices of local 
operations. The agency proposed the additional requirement of 
electronic on-board recording (EOBR) devices to monitor drivers in Type 
1 and 2 operations, while reducing the paperwork burden for most local 
operations. Type 3 was intended to cover local split shift drivers who 
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 was intended to cover drivers who work in the vicinity of 
their normal work reporting location, have regular schedules extending 
less than 12 consecutive hours from the time they report in until they 
check out. Driving would have been a significant part of Type 4 
drivers' 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 have been considered Type 4 drivers, and would have been absorbed 
into this category, eliminating the need for that exception. The FMCSA 
also intended that most existing exemptions would be absorbed into one 
of the local types of operations, primarily Type 5, to reduce the need 
and the demand for individualized exemptions.
    The comments from industry on the categories of carrier operation 
were generally unfavorable. While many comments applauded the agency's 
efforts to remove the ``one size fits all'' concerns about existing 
regulations, most stated the proposal missed the mark. The National 
Private Truck Council's (NPTC) comments perhaps best captured the 
industry perception: ``It's true that one size does not fit all, but 
neither should the agency decide how many sizes there are nor 
anticipate how many sizes there will be in the future.''
    The most consistent objection from motor carriers was that the 
proposed categories unnecessarily complicated regulation for both the 
industry and for enforcement.
    Many carriers expressed concern that they had trouble finding the 
type that best described their operation or that their operations 
spanned more than one type, and sometimes as many as four. When a 
driver's duties changed from one type to another within a workweek, 
there was much confusion about whether the proposal required a 
``weekend'' to intervene, whether EOBRs would be required for a single 
run, and which daily or weekly limitations applied. Uniformly, however, 
comments stated that some productive time would be lost in the 
transition.
    The industry comments did not offer significant advice as to 
whether a better defined classification system was preferable or 
workable.
    Industry commenters did not seem uncomfortable with the concept of 
``long-haul'' trucking, as that is a common term and generally 
associated with freight movements over a considerable distance, as 
opposed to local service. Comments, however, did have difficulty with 
some of the other distinctions used in the NPRM.
    Nearly all of the local carriers responding found some problems 
with the attempted classification, often calling it confusing. However, 
many found the effort to be supportive of their persistent attempts to 
secure broad exemptions from HOS regulation for their type of 
operations.
    Types 3, 4, or 5 drew much attention from the other-than-long-haul 
sectors, but a major focus of many comments was why the rules could not 
or should not apply to their particular circumstances. Many noted that 
their operations might fit into Type 4 but for the occasional trips 
that take more than 12 hours or may require an overnight stay by the 
driver, while others found

[[Page 22461]]

Type 5 more accommodating but could not fit because of an unexplained 
exclusion of for-hire carriers.
    Comments from the enforcement community stated that classification 
by type would only create confusion and make their jobs at the roadside 
more difficult and time-consuming.
    Public interest groups gave little attention to the general concept 
of classification and focused rather on the particular restrictions and 
obligations that were tied to each of the operations.

FMCSA Response

    This final rule establishes a uniform set of regulations for all 
cargo-carrying operations while allowing passenger-carrying operations 
to continue under the current rules. In addition, Congressionally-
mandated and historical exemptions and exceptions are retained. The 
final rule will not categorize any segment of the industry in the 
manner that the NPRM proposed. The agency believes the rule strikes a 
balance between uniform, consistent enforcement and the need for 
operational flexibility.
    The FMCSA developed the categorization proposal to improve safety 
based on calculated risk, to respond to ``one size fits all'' 
criticism, and to reflect the diversity of the industry. The primary 
purpose for the categories was to address the highest risk, long-haul 
operations, so that those operations with the least risk of serious 
crashes would not be required to alter their operations.
    Comments from across a spectrum of stakeholders found the proposed 
categorization did not work for a multitude of reasons. The comments 
have shown that the categories created confusion, problems for 
enforcement, and did not fully meet the objective of accommodating the 
diversity of the industry. The distinction between an over-the-road 
truck driver and a local truck driver, however, had fairly broad 
acceptance among the motor carrier commenters using trucks. The 
agency's own research associated a significant portion of the fatigued 
commercial driver problem with the long-haul operation of tractor-
trailer or tractor-semi-trailer combinations. For these reasons, FMCSA 
has decided to drop the categories proposed in the NPRM.

Passenger Carrier Operations

    The proposal made no separate provisions for operators engaged in 
the transportation of passengers. The current rule also makes no 
separate provisions for such operators. The FMCSA had no basis to 
conclude that fatigue affects passenger carrier drivers differently 
than truck drivers. Thus, the agency believed the same HOS rules should 
apply. The NPRM recognized certain distinct characteristics in 
motorcoach operations by proposing different types of trips for which 
various restrictions would apply. The Type 3 category was meant to 
accommodate some tour operations and commuter bus services. Motorcoach 
industry associations, individual carriers and the Amalgamated Transit 
Union (ATU), representing intercity bus drivers, filed extensive 
comments, and participated actively in the public hearings and 
roundtable discussions. The reaction from the motorcoach industry to 
the proposal was disappointment with the proposed rules in general and 
more particularly with the agency's failure to recognize the difference 
between driving a bus and driving a truck.
    The Conference Report for the 2001 DOT Appropriations Act contains 
the following reference to this issue:

    Motorcoach driver fatigue. The conferees note that the agency 
acknowledged in its NPRM on hours-of-service that little is known 
about the operations of over-the-road buses and motorcoachs. The 
conferees state that there should be additional study of the 
operations, driver practices and driver fatigue issues specific to 
over-the-road buses before any revisions to the existing trucking 
hours-of-service rules are finalized, and encourage the Secretary to 
conduct such studies to inform additional regulatory proposals in 
this area. See H. Conf. Rept. No. 106-940, 106th Cong., 2d Sess., p. 
113 (2000).

    The American Bus Association (ABA), the United Motorcoach 
Association (UMA), and other motorcoach, convention, and tour 
associations, ATU, NSC, and CVSA urged the agency to not subject 
passenger transportation to the proposed rules, thus allowing them to 
continue to operate under the currently existing rules. Among the 
reasons given for their request taken from the ABA comment:
    (1) There is no scientific, statistical, or other evidence to 
support changes for bus drivers;
    (2) Commercial passenger vehicles are operated in an environment 
entirely different from commercial freight carriers;
    (3) The exemplary safety record of the industry will be compromised 
by the proposed rules; and
    (4) The economic impact will be devastating.
    The ABA agreed with other critics questioning the agency's estimate 
that 15 percent of truck-involved fatalities are caused by the fatigue 
of the commercial vehicle driver.
    However, the ABA asked what part of that 15 percent was supposed to 
be related to bus transportation. According to the ABA's review of the 
Fatality Analysis Reporting System (FARS), an annual average of 42.5 
fatalities was attributable to crashes involving intercity buses, which 
the ABA disputed due to definitional problems. Even taking these data, 
ABA stated that 15 percent of 42.5 amounts to less than 7 fatalities 
per year. The ABA argued the commercial passenger carrier industry 
averaged 0.01 passenger fatalities per 100 million passenger miles for 
1995 through 1997 and asserted that this ranked well below the rate for 
rail and air passenger transportation at 0.04 passenger fatalities per 
100 million passenger miles (from Industry Facts 1999, NSC, p. 122.)
    The ABA also pointed out the significant differences, both 
operational and mechanical, between buses and trucks that would 
undermine the agency's basis for the proposed revisions.
    In its comments, the ABA pointed out that all intercity bus drivers 
are paid by the hour and run on preset schedules, thereby eliminating 
any incentives to violate the present HOS restrictions.
    The ABA cited section 408 of the ICCTA for the proposition that DOT 
is required to consider the economic vitality of the motor carrier 
industry in its regulation of motor carriers, drivers, and CMVs. The 
ABA claimed that FMCSA had made no attempt to assess the cost of this 
proposal to the motorcoach industry and asserts FMCSA had failed to 
meet its obligations under controlling law and policies.
    The ABA reiterated most of the ATA and other commercial freight 
carrier associations' criticisms of the agency's cost/benefit analysis. 
It cited the ATA's submission to the docket of the Center for 
Regulatory Effectiveness' (CRE's) The CRE Report Card on DOT's Proposed 
Rule on Hours of Service For The Motor Carrier Industry, listing 62 
legal and other procedural requirements that it believes the FMCSA must 
use.
    The National Tour Association claimed that never in 20 years have 
its members experienced so much as a minor injury due to a motorcoach 
accident. Motorcoach travel, in their opinion, is the safest form of 
commercial passenger travel, and the NTA argues there is no 
justification for regulating bus and truck operations together. Of the 
150 studies cited in the preamble, NTA argued that none deal with bus 
drivers. The NTA stated the proposal would only cause increased costs 
and heartache for the bus industry with no safety benefit; in fact, 
they

[[Page 22462]]

stated that the opposite effect is more probable. The proposal, 
according to NTA, was simply unnecessary and unfair.
    The Convention and Visitors Association, which promotes the 
Washington, DC area as a primary tourism destination, commented that 
about one-third of all visitors to the Washington, DC area arrive by 
motorcoach. It estimated that the Washington area would lose 20 percent 
or 1.5 million visitors because of the inconsistency between the 
provisions of the proposal and the way the tour bus industry actually 
operates.
    National School Transportation Association (NSTA) members provide 
transportation services to public school districts and private schools 
nationwide. Noting the specific exemption from 49 CFR parts 387 and 390 
through 399 for transportation of pupils from home to school and school 
to home, the NSTA observed that school transportation nearly always 
includes school activity transportation as well. Strict adherence to 
the proposal would cause a disruption in current operations and could 
result in a shortage of available drivers. If school bus companies 
could use their regular route drivers to provide activity 
transportation, they could not service their contracts, because more 
drivers are simply not available. The NSTA recommended that all school 
bus drivers be held to the same standard, whether public or private, 
because they do the same things. It also recommended a separate 
category for school bus operations, and suggested that the FMCSA 
convene a roundtable discussion devoted to this issue. That would allow 
all issues to be worked out consistent with safety and economic 
practicality.
    CVSA stated the agency must conduct medical and performance 
research on the bus and motorcoach industry to validate (or invalidate) 
the position in the proposal. It argued that basing such sweeping rule 
changes on assumptions that are not substantiated is not prudent public 
policy.
    The NSC stated that the intercity motorcoach industry should be 
excluded from the HOS proposal. NSC asserted that the statement that 
the agency has ``assumed that bus drivers operate in ways similar to 
truck drivers'' was questionable for a rule purported to be based on 
``sound science'' and underscored the agency's lack of understanding of 
the motorcoach industry's unique operating characteristics. NSC further 
stated there is no safety evidence to support including the motorcoach 
industry in the proposed changes.

FMCSA Response

    The FMCSA is persuaded by comments that it does not have enough 
data to indicate a problem in the motorcoach industry segment and is 
not adopting any new rules for motorcoach drivers in this final rule. 
The FMCSA may consider the feasibility of other alternatives to reduce 
fatigue-related incidents and increase motorcoach driver alertness in 
the future.
    The FMCSA relied on four motorcoach studies in the NPRM, three 
completed by the FMCSA's predecessor, the FHWA, and one from Australia. 
See:
    (1) Strategies to Combat Fatigue in the Long Distance Road 
Transport Industry, The Bus and Coach Perspective, 1993, Australia 
Transport and Communications' Federal Office of Road Safety;
    (2) A Study of the Relationships Among Fatigue, HOS, and Safety of 
Operations of Truck and Bus Drivers, 1972, Harris, et al.;
    (3) Effects of HOS Regularity of Schedules, and Cargo Loading on 
Truck and Bus Driver Fatigue, 1978, Mackie, Robert R., and Miller, 
James C.; and
    (4) Critical Issues Relating to Acceptance of CVO Services by 
Interstate Truck and Bus Drivers, 1995, Penn + Schoen Associates, Inc.
    In addition, the FMCSA is nearing completion of the study required 
by the Conference Report for the 2001 DOT Appropriations Act. The 
agency is reviewing the draft final report. The FMCSA is not adopting 
any changes today because: (1) The agency has not yet confirmed that 
the new study had been designed correctly, that the process used could 
meet scientific scrutiny, and that the conclusions reached are 
reasonable; and (2) the public has not had the opportunity to review 
and comment on the study. When the study is approved, the agency will 
publish it and consider whether non-regulatory actions or regulatory 
revisions may be needed.

NHS Act Exemptions

    The FMCSA hoped that categorizing operations would reduce the 
continuing demand for exemptions from the HOS regulations. In the NPRM, 
the agency noted that creating the Type 5 operation, Primary work not 
driving, would remove the need for special exemptions. This category 
was intended to include the various utility service workers, 
construction equipment operators, environmental remediation 
specialists, oilfield service workers, water well drilling operations, 
mobile medical equipment drivers, driver-salespeople, as well as other 
specialized driving operations.
    Congress became involved in the consideration of exemptions, 
culminating in Sec. 345 of the NHS Act where it mandated exemptions 
from all of the HOS provisions of the Federal Motor Carrier Safety 
Regulations (FMCSR) for those individuals transporting crops and farm 
supplies during planting and harvesting seasons and partial relief from 
the 7 or 8 day HOS limit for groundwater well drilling, construction, 
and utility service vehicle operations of motor carriers. A fifth 
provision allowed States to exempt from the commercial driver's license 
(CDL) regulations employees of towns with a population of 3,000 or less 
who are called to drive snow plows or salting/sanding vehicles when the 
regular CDL holder is unavailable or needs assistance. With respect to 
all, except the groundwater well drilling exemption, the Secretary was 
authorized to prevent, modify, or revoke each exemption after a 
rulemaking proceeding upon a determination that the exemption was not 
in the public interest and would have a significant adverse impact upon 
the safety of commercial motor vehicles. Under the terms of the 
statute, two of the exemptions were to take effect immediately, and the 
other three within 180 days of the date of enactment.
    On April 3, 1996, the agency published a final rule codifying the 
NHS Act exemptions [61 FR 14677]. This rule deferred any rulemaking 
action concerning whether to modify or revoke any exemption.
    The FHWA received a petition on July 3, 1996, from the Advocates 
for Highway and Auto Safety (AHAS), which, citing the statement in the 
April 3 notice that the agency had ``decided not to proceed with such a 
rulemaking proceeding at this time,'' sought to have the agency 
reconsider the exemptions. The FMCSA granted the AHAS petition.
    The FMCSA noted its intention to modify 3 of the 4 NHS-legislated 
HOS exemptions in the NPRM. In addition, the FMCSA proposed narrow 
definitions for terms used in the legislation that Congress had not 
defined. The FMCSA had been interpreting the terms narrowly since April 
1996. The NPRM was intended to assist law enforcement officers by 
explaining exactly what the definitions were for certain terms, such as 
``agricultural commodities'' and ``farm supplies,'' based on the 
agency's narrow interpretations of the terms used.
    Except for the agricultural exemption, which was a general 
exemption from all

[[Page 22463]]

HOS regulations for certain agricultural operations in a limited 
geographic area during planting and harvesting seasons, the exemptions 
granted were in the form of a 24-hour restart of the 60- or 70-hour 
restrictions. In creating the Type 5 operational category, the FMCSA's 
intent was to accommodate all existing 24-hour restart exemptions. The 
ICC first allowed a 24-hour restart provision for drivers of specially 
constructed oilfield servicing vehicles on April 13, 1962. It did not 
discuss the safety or economic impacts in its decision, see 89 M.C.C. 
19 and 27 FR 3553. It should be noted that the FMCSA intended that the 
proposed 32-hour period would operate as a ``restart'' of a workweek 
with respect to Type 5 operations.
    However, associations and individuals representing agricultural 
transporters, the construction industry, utility vehicle operators, 
oil-well drillers and other operations that currently have a 24-hour 
restart provision stated that FMCSA's proposal to use Type 5 as a 
catch-all for current exemptions simply did not work. Each segment had 
its own operational idiosyncrasies, many duty schedules in split days 
off, but more often in unpredictable demand, making it, in their view, 
impractical for them to use not only Type 5, but also any of the other 
types proposed.

For-Hire Trucking

    The ATA made several arguments against the NPRM's treatment of 
exemptions or exceptions. First, it contended that several exceptions 
(in addition to those created by Sec. 345) have been in place for 
years, and that carriers have built their businesses around them. To 
summarily remove them without any supporting evidence would create 
substantial hardship.
    Second, it noted that some of the exemptions were granted by the 
NHS statute with a required procedure for eliminating or modifying 
them. The ATA alleged the FMCSA failed to follow the required 
procedures.
    Third, it asserted that requiring the states to adopt the proposed 
federal requirements, eliminating even State exemptions within three 
years, was unreasonable and unnecessarily interfered with State 
discretion. The ATA addressed each of the exceptions or exemptions 
currently in the regulations.

Associations and Carriers That May Have NHS Act Sec. 345 Subject 
Operations

    The Agricultural Retailers Association (ARA) stated that although 
farming and related supply businesses operate year round, their busiest 
time is during planting and harvesting seasons. During those times, 
which are defined by State law, many farmers and suppliers are eligible 
for an exemption from the HOS regulations under Sec. 345 of the NHS 
Act.
    The ARA commented that most drivers operate locally, on farm roads, 
and sleep at home every night. Although pleased that the agricultural 
exemption was to be retained, the ARA commented that the proposal 
appeared to negate the exemption. The ARA recommended that certain 
language be deleted.
    The ARA also pointed out an apparent inconsistency between the 
proposed regulatory language and the section-by-section analysis. Both 
refer to the ``weekend'' provision and when it would apply to drivers, 
including agricultural exempt operations. One said ``more than five 
consecutive days'' and the other said ``more than three consecutive 
days.'' ARA stated both were in error because they would require a 
driver and truck to be idled for up to 56 hours merely because a driver 
completed a task at a farm taking three or five days. It recommended 
the number of exempt driving days requiring a ``weekend'' rest period 
be set at seven.
    The Agricultural Transporters Conference (ATC) stressed the 
importance of servicing crops at appropriate times, a situation ATC 
argues is analogous to emergencies. ATC members have been operating 
under the NHS exemption since 1995 and believe there is no evidence 
that safety has been compromised. ATC stated that the agriculture 
definitions in the NPRM are too restrictive and that problems will 
inevitably arise. For example, a supplier's driver delivers anhydrous 
ammonia to the farm, applies it to the fields, and then stops at a 
wholesaler to fill his tank on the way back to the supplier's yard. He 
would be exempt on the delivery, but not on the pick up.
    The Forest Resources Association (FRA) wanted loggers and other 
forest harvesters to be allowed to operate under the agricultural 
exemption. According to FRA, its members' drivers deliver 86 percent of 
all raw forest products consumed in the United States. The FRA 
commented that drivers typically deliver three loads a day with an 
average round trip of 126 miles, well within a 100 air-mile radius.
    The National Rural Electric Cooperative Association argued that the 
NPRM did not meet the statutory requirement in Sec. 345 for modifying 
the exemptions through rulemaking.
    The Edison Electric Institute suggested that the FMCSA look to 
State and local experience for the handling of small, local emergencies 
like power failures.
    Qwest, a private motor carrier, claims that its crash rates are low 
and that it has experienced no rise in crashes when it increases a 
driver's time on-duty. In the past, Qwest claims it has worked drivers 
extra hours pursuant to the emergency exemption of the current HOS 
rules. On those occasions, Qwest claims it has had no increased crash 
rate. Qwest also finds no significant difference in its crash rates in 
States that afford it HOS exemptions as opposed to those that do not. 
Qwest contends this is evidence that utility service drivers do not 
present a highway safety risk sufficient to justify HOS regulation. 
Qwest sought an exemption for telephone line repair drivers, who 
operate mostly under emergency conditions.

Special Operations

    The basic position of the Associated General Contractors (AGC) was 
that construction industry truck drivers operate under conditions that 
do not lead to fatigue or alertness problems and that HOS regulations 
for them are unnecessary. AGC contends that the current regulations 
were designed for over-the-road drivers, and that Congress recognized 
this in 1995 by providing the construction industry with a 24-hour 
restart provision in the NHS Act. AGC argues the FMCSA is seeking to 
undo what Congress had directed it to do. AGC argues that Congress, in 
the 1998 reauthorization of the national highway program, increased 
funding by 44 percent, recognizing the need for infrastructure 
improvements. The FMCSA's proposal, by placing unnecessary restrictions 
on construction operations, would threaten to undercut that mission.

Private Carriers of Freight

    The PMAA commented that the FMCSA treated the agricultural 
exemption too narrowly, defining ``farm supplies'' to mean only those 
products ``directly relating to farming activities of planting, 
fertilizing, and harvesting crops that are delivered directly to a 
farm.'' The fuel demands of farmers during the planting, harvesting and 
crop-drying seasons only add to the constant demands of other 
consumers. This places a great strain on the workday of typical 
drivers, because of long delays at the terminal rack.
    The PMAA argued that FMCSA: (1) Need not preempt the ability of 
States to manage these matters; (2) should allow intermediate 
deliveries to be covered under the exemption; and (3)

[[Page 22464]]

should permit longer workdays during critical seasons.

Safety Advocacy Groups

    The AHAS determined that it could not support the agency's proposal 
to eliminate the NHS exemptions through use of the Type 5 driving 
category because the absence of an EOBR requirement would prevent 
adequate monitoring and enforcement. It argued that the substituted 
regime of a 78-hour week with only 32 hours off before the next week 
begins was excessive and that enforcement problems would allow even 
these liberal limits to be exceeded. In effect, AHAS said the agency 
would extend NHS-type exemptions to all construction operations, even 
beyond 50 miles, without sufficient opportunity for comment. The 
agency's approach to eliminating NHS exemptions appeared to deregulate 
construction and utility operations. Finally, the elimination of the 
Tolerance Guidelines as proposed in the NPRM would effectively require 
States to increase current driving limitations from 10 hours to 12.
    The AHAS recommended that the agency treat construction and 
agricultural exemptions in a separate rulemaking, which would better 
conform to the requirements of the Administrative Procedure Act.

FMCSA Response

    There are no data on fatigue that support either the 24-hour 
restart provisions for oilfield, construction, ground water, or utility 
carriers, or the total HOS exemption for agriculture provided by Sec. 
345. The NPRM proposed modifying the 24-hour restart into a restart 
provision of between 32 and 56 hours, depending on when the period 
began. The agency cited data that did support a 32-hour restart 
provision. The agency's expert panel verified that data.
    The NPRM gave AHAS the opportunity to present its case that 
modifications for the NHS exemptions were necessary. AHAS did not 
provide any data.
    The NPRM treated the agricultural exemption narrowly, as the agency 
has done with all the NHS exemptions in interpretations and opinion 
letters since 1996. Congress did not define the terms for which FMCSA 
proposed definitions; the agency believes it must define the terms 
narrowly to maintain safety and prevent abuse. The FMCSA, however, will 
take no actions contrary to the statutes on the matter of NHS 
exemptions.

Sleeper Berth Requirements

    The appropriate use of sleeper berths to obtain required rest and 
avoid the accumulation of sleep debt became an issue because of the 
NPRM finding that drivers need about ten consecutive hours within which 
to obtain the necessary seven to eight hours of daily sleep. The 
sleeper berth exception in the current rules allows a driver to 
accumulate the required eight (otherwise consecutive) hours off-duty in 
a sleeper berth (that meets the requirements of 49 CFR 393.76) in two 
periods totaling at least eight hours, neither period being less than 
two hours.
    Studies on the sleeper berth issue have generally found that, for a 
number of reasons, sleeping in a berth, particularly when the vehicle 
is moving, is less restorative than sleeping in a bed. The agency has 
recently released a study begun after it developed the NPRM: Dingus, 
Neale, Garness, Hanowski, Keisler, Lee, Perez, Robinson, Belz, Casali, 
Pace-Schott, Stickgold, Hobson, (2002), Impact of Sleeper Berth Usage 
on Driver Fatigue, FMCSA Report No. FMCSA-RT-02-050. This study 
concludes that sleeping in a moving vehicle impairs the quality of 
rest. Some studies also have determined that drivers using sleeper 
berths had a higher crash risk than drivers obtaining their sleep in a 
bed. The agency's Expert Panel, who reviewed the feasible alternatives 
during development of the NPRM, recommended that until there was more 
definitive information available on the relative quality of sleep in a 
berth, drivers using sleeper berths should be afforded a greater 
opportunity to obtain additional rest. The FMCSA proposed that only 
team drivers be allowed to use sleeper berths to split their 
accumulated required off-duty time, and then only in periods of not 
less than five hours each. Single drivers would use the sleeper berth 
during one block of off-duty time.
    A study by Abrams C., Shultz, T., & Wylie, C.D. (1997) Commercial 
Motor Vehicle Driver Fatigue, Alertness, and Countermeasures Survey 
indicated that drivers using sleeper berths reported averaging about 
six to seven hours at a stretch in the berths. Other industry surveys 
indicated that drivers reported averaging about four hours at a stretch 
in the sleeper berths. An ATA survey showed that only five percent of 
team drivers use the sleeper berth while the vehicle is in motion. An 
Owner Operators Independent Drivers Association (OOIDA) survey showed 
that number to be higher, 11 percent.

Motor Carriers

    The industry proposed that drivers with conforming sleeper berths 
be permitted to split the required ten consecutive off-duty hours into 
two non-consecutive periods, the duration of each to be determined by 
the drivers. The industry believes that given the fact that the driver 
must accumulate 10 hours off duty in a 24-hour period, drivers ought to 
be able to determine the length of the two separate periods. The 
industry believes drivers are in the best position to know how much 
rest they need at a particular time. For example, the driver could 
combine one long sleep period of six or seven hours with one separate, 
shorter extended rest period of three or four hours to augment the 
longer sleep. The industry proposed that off-duty time taken 
immediately before or after a sleeper berth period may also be counted 
toward the accumulation of the required ten hours off duty. They stated 
that this merely carries over what is presently permitted under the 
existing rules, and affords the driver the flexibility to maximize 
sleep and rest time. Finally, the industry recommended that time spent 
in the passenger seat, presumably even while the vehicle is in motion 
under the control of a co-driver, be counted as off-duty time and be 
credited toward the accumulation of the required ten hours. This 
passenger-seat time would be subject to the restriction that it must 
immediately precede or follow sleeper berth time. The rationale is that 
a driver may need time merely to relax without sleeping before or after 
his sleep period.
    Comments from industry were uniformly in favor of retaining the 
sleeper berth provision for all drivers, solo and team. The carrier 
associations, large and small, individual carriers, owner-operators, 
drivers and unions all found the proposal regarding sleeper berth use 
unreasonably restrictive. The larger carriers lined up behind the ATA 
recommendation, and the smaller carriers and the owner-operators 
sounded similar themes. In fact, the OOIDA questioned why sitting in a 
jump seat could not be combined with sleeper berth time to accumulate 
the required rest period. What difference is there, OOIDA asked, 
between a driver lying awake in a sleeper berth, who cannot sleep, and 
a driver sitting in the jump seat reading or listening to the radio?
    The ATA argued that the proposed sleeper berth provision is 
inconsistent with available science. It stated that the FMCSA has 
acknowledged a gap in the current research on sleeper berths and that 
more research is required. ATA

[[Page 22465]]

argued the proposal even seems to contradict the recommendation of the 
agency's Expert Panel. The ATA stated that science indicates that a 
combination of a long period with shorter period is better than the 
proposed split of five and five. The ATA was also critical of the 
agency's failure to gauge the economic impacts of such a rule change.
    Truckload carriers stated that the nature of the long-haul, 
irregular-route business makes the elimination of split sleeper berth 
time a major concern because it removes the needed flexibility from the 
driver.
    Similar positions were taken by the LTL sector, noting that drivers 
must have the ability to manage their work/rest times more freely, 
including sleeper berth time. Examples were given of drivers managing 
sleeper berth time to get to the shipper location early and avoid 
traffic.
    Citing research finding that drivers sleeping in sleeper berths 
while the vehicle was in motion obtained less restorative sleep than 
those sleeping while the vehicle was at rest, some commenters said they 
could not understand the agency limiting the exception to team drivers. 
Although not mentioned in the proposed rule, some found it necessary to 
ask whether the exception for team drivers would apply to sleeper berth 
time acquired while the vehicle was in motion. Others found that even 
the team driver exception was confusing. Still others looked for data 
supporting a minimum period of five hours.
    Many small carriers and owner-operators stated that drivers using 
sleeper berths need less than the ten consecutive hours proposed in the 
NPRM. They do not have to travel any distances to get to their sleeping 
quarters; they just have to climb into the back. Many also strenuously 
opposed the treatment of sleeper berth time in the proposal, seeing it 
as discouraging the use of sleeper berths. In their view, the berths 
are a valuable resource, readily available to the driver to get 
necessary rest, and their use should be encouraged. OOIDA recommended 
the agency retain the present sleeper berth exception to the 
consecutive-hours requirement.
    The International Brotherhood of Teamsters (IBT) took issue with 
the findings of the studies on effectiveness of sleep in a berth. They 
argued that the determinative factor was not the quality of the 
accommodations, but rather environmental conditions, like noise levels.

Safety Advocacy Groups

    Safety advocates applauded FMCSA for prohibiting split sleeper 
berth periods for solo drivers and recommended extending the 
prohibition to team drivers as well. The NSC, however, cautioned the 
FMCSA to await further scientific data before proceeding one way or 
another. The AHAS stated that some research studies indicate the 
restorative benefits of napping are not entirely clear, but conceded 
that more napping is better than less napping.

Law Enforcement

    The CVSA stated the regulations should provide sleeper berth 
flexibility for both short-term naps and longer sleep periods.

FMCSA Response

    Because of the comments and the new studies released after the 
NPRM's publication, the FMCSA has decided to retain the sleeper berth 
exception. The agency, however, will modify the off-duty period to 
align with the new off-duty period adopted in this final rule.
    In the Impact of Sleeper Berth Usage on Driver Fatigue study, the 
team driving operation highlighted the benefits of reducing drowsiness. 
Unlike extremely tired single drivers who may have felt compelled to 
continue to drive even when it was dangerous to do so, the individual 
drivers in a team operation generally had no similar compulsion to 
operate the vehicle when they were extremely tired. From the data 
collected in this study, it was apparent that the team driving 
operation translates into fewer bouts of drowsiness, fewer critical 
incidents, and, in general, safer trucking operations. Critical 
incidents are those incidents that resulted in a crash because the 
driver did not perform evasive maneuvers or that would have resulted in 
a crash, if the driver had not taken evasive maneuvers.
    In addition, team drivers appeared to drive much less aggressively, 
make fewer errors, and rely effectively on their relief drivers to 
avoid instances of extreme drowsiness while driving. In effect, it 
appeared as though team drivers undergo a natural ``screening'' 
process. This was indicated by a number of the truck drivers during the 
focus groups conducted earlier in this project. Drivers indicated that 
team drivers must be both considerate of their resting partner and 
trustworthy with regard to their driving ability. Thus, the level of 
``acceptance'' necessary to be a successful team driver seems to serve 
as an effective screening criterion.
    On the other hand, single drivers in the study had many more 
critical incidents at all levels of severity as compared to team 
drivers. Single drivers were involved in four times the number of 
``very/extremely drowsy'' observer ratings as were team drivers, and 
were more likely to push themselves to drive on occasions when they 
were very tired.
    Based on the agency's Commercial Motor Vehicle Driver Fatigue and 
Alertness Study (1996), there were relatively few instances (about 2.5 
percent) of ``extreme drowsiness,'' with most of these instances being 
experienced by single drivers, again with a high rate of the occurrence 
of this level of fatigue on the second or third shift after the first 
day of a multi-day drive. Thus, it appears that the combination of long 
driving times and multiple days provides the greatest concern, with 
several results pointing to the presence of cumulative fatigue. This 
means that the length of shifts in the later stages of a trip must also 
be carefully considered.
    Having mentioned this concern, it is important to point out that 
critical incidents and/or driver errors did not increase directly with 
the hours beyond the regulatory limits. In fact, there was a 
substantial decrease in the rate of critical incidents during some of 
the more extreme violations. However, one should exercise great caution 
when interpreting these results. For the following reasons, they do not 
necessarily mean that the HOS should be expanded:
    (1) It may be possible that the drivers were making a point to 
drive more carefully and cautiously because they were operating outside 
of the regulatory limits and did not want to get stopped by law 
enforcement officials; and
    (2) They may have risked driving outside of the regulations only 
because they felt alert and knew that they could continue to drive 
safely.
    There were a number of findings in this study indicating that the 
quality and depth of sleep was worse on the road, particularly for team 
drivers. Drivers in teams have significantly more sleep disturbances 
than do single drivers. In addition, for team drivers who sleep while 
the vehicle is in motion, factors such as vibration and noise adversely 
affected their sleep, although lighting and temperature aspects of the 
environment did not appear to be much of a factor.
    However, it was found that many of the sleep disturbances that 
occurred for single drivers could not be attributed solely to an 
environmental factor.
    The NPRM estimated that 90 percent of all long-haul drivers use 
sleeper berths. Although the proposed rule would not have prohibited 
the use of

[[Page 22466]]

sleeper berths, it would have diminished their flexibility by requiring 
single drivers to have one uninterrupted rest period of at least ten 
hours duration every 24 hours. As pointed out in the comments, however, 
the proximity and convenience of the sleeper berth reduces the 
importance of the length of the uninterrupted period. If a driver 
obtained seven consecutive hours of sleep immediately in the sleeper 
berth, it would be unnecessary to require him to remain in that 
location for an additional three hours. The agency agrees with 
commenters on these points. This is especially true when those three 
hours of required rest could be used to better advantage to alleviate 
fatigue later in the workday. Of course, drivers are free under the 
rules to take rest breaks at any time, using a sleeper berth or 
otherwise.
    Use of sleeper berths in long-haul operations is firmly entrenched 
in the practice, culture, and equipment of the trucking industry. This 
does not mean that the use of sleeper berths should not be reviewed in 
the interest of safety where a legitimate problem is identified and 
established as such. It does mean, however, that to do so would require 
more documented evidence of a safety problem than the agency now has. 
In light of the agency's recently completed research, the very strong 
opposition and persuasive arguments presented, the agency will continue 
to allow single drivers to accumulate their required time off duty in 
two sleeper berth periods.
    The FMCSA has improved the regulatory text to ensure a clear 
understanding of the sleeper berth rule. The FMCSA has borrowed from 
and modified the Government of Canada's 1994 Commercial Vehicle Drivers 
Hours of Service Regulations version of the sleeper berth rule (SOR/94-
716, s. 5), because it describes the rule in clearer terms than the 
wording adopted by the ICC in 1938. Although the Canadian version is 
clearly better, the FMCSA found that it may prevent a driver from 
eating in a restaurant either (1) after leaving the sleeper berth and 
before going on duty, or (2) after going off duty and before entering 
the sleeper berth. The regulatory text has been modified from the 
Canadian version to enable a driver to have off-duty time in 
conjunction with sleeper berth time, which the agency has allowed over 
the years.

Carrier Notification of Drivers During Their Off-Duty Hours

    The NPRM proposed a kind of restart that would be triggered by 
employers or their agents violating a proposed prohibition against 
interrupting drivers' off-duty periods. The NPRM proposal was designed 
to address complaints the agency has received over the years regarding 
unreasonable calls from dispatchers and other carrier employees that 
caused drivers to lose the opportunity to sleep. As proposed, such an 
interruption would start the full interrupted off-duty period over 
again from the time of the interruption. Therefore, if a driver were 
contacted at 3 a.m. at the end of the sixth hour of his 10-hour off-
duty period, the required off-duty period would have to be extended by 
ten full hours, or until 1 p.m. Similarly, if the proposed 32-hour 
weekly recovery period were in force, and the driver were contacted by 
the carrier at the end of the 30th hour, the entire 32-hour period 
would have been required to start over again at that time. This 
provision was part of the agency's effort to provide a meaningful 
opportunity for drivers to obtain rest. Although some comments 
recognized the good intention, most of those commenting on this part of 
the proposal indicated significant practical and operational problems 
with such a restriction on communicating with drivers.

Motor Carriers

    The ATA recommended that FMCSA retain its current policy allowing 
brief contacts with drivers during the off-duty period. Under that 
policy, those contacts are considered de minimis interruptions that do 
not cause a break in the off-duty period.
    Con-Way Transportation Services (Con-Way), a large, non-union LTL 
carrier, described typical LTL hub and spoke operations, i.e. both line 
haul and local pick-up and delivery activities. About 80 percent of all 
runs are prescheduled, but 20 percent vary based on tonnage expected. 
Carriers maintain a flex-board for on-call drivers, who perform loading 
and unloading. On a given day, most flex-board drivers would load/
unload, but if a run were not available, they would be sent home after 
three or four hours. If things picked up, they could be recalled to 
take a run. If they could not be called for 10 hours, Con-Way stated 
scheduling would become impossible. It argued there has to be a way of 
communicating with drivers to reflect changes in freight volume or 
operating conditions.
    The NASTC stated that about 15 to 20 percent of the time, truckload 
operations rely on the spot market for back-hauls and that requires 
timely notification to drivers or the day is lost to the driver, and 
the load to the company.
    Large and small freight carriers, both truckload and LTL, local 
delivery operations and construction companies all agreed the proposed 
rule was too restrictive for practical application. Many offered 
examples of damaging outcomes to themselves and drivers if the ability 
to communicate during off-duty hours were denied them. Utility 
companies found that such a prohibition could not work when emergency 
situations arise that need immediate mobilization of employees. The 
general advice offered was: ``Do not try to micro-manage off-duty time, 
particularly where there's no evidence of a problem.''
    The IBT saw this not as a driver protection provision, but rather 
as a potential opportunity for mischief by a dispatcher who is having a 
problem with a driver. By calling the driver a number of times during 
his off-duty periods, the dispatcher could significantly curtail that 
driver's availability to work. The IBT stated that there is a better 
way to fix the problem, agreeing in part with the ATA suggestion to 
allow brief contacts. At least one driver, however, commented about 
what he said was a well-documented unsafe practice of keeping on-call 
drivers awake to protect and preserve the carriers' irregular work 
schedules. That practice results in on-call drivers going to work 
already fatigued.

Safety Advocacy Groups

    Although commending the agency for providing a longer daily 
recovery period and preventing it from being interrupted, the AHAS had 
concerns that the prohibition would be unenforceable, except perhaps as 
a result of a complaint investigation.

FMCSA Response

    The agency is persuaded that practical enforcement problems 
preclude moving forward with this element of the proposal. However, as 
suggested in comments from ATA and AHAS, as well as drivers who have 
expressed concern in the past, there ought to be a way to deal with 
unnecessary interruptions. These interruptions while brief in duration 
have a significant impact on the quality of rest drivers obtain if they 
occur while the driver is sleeping. Enforcement, however, should always 
be considered in proposing a prohibition. Communications between a 
carrier and a driver that causes that driver to lose the opportunity 
for restorative sleep is a safety issue that falls within the purview 
of the FMCSA and its state partners. Therefore, FMCSA will continue to 
gather data to

[[Page 22467]]

the greatest extent practicable on the degree to which driver 
performance is adversely affected by these interruptions during the 
rest period.

Daily Work/Rest Cycle

General Concept

    The circadian cycle of a 24-hour workday was presented in the 
NPRM's definition of workday as ``any fixed period of 24 consecutive 
hours,'' and in the number of hours required to be off-duty combined 
with allowable on-duty periods. The comments reflected a fairly general 
agreement across the board that the rules should build on the 
foundation of a 24-hour day and that the current allowance for 8 
consecutive hours off duty was insufficient to assure that drivers had 
the opportunity to get 7-8 hours of sleep. For example, nearly all of 
the responding motor carriers and motor carrier associations mentioning 
this issue agreed that the science clearly supports this change. The 
safety advocacy groups and the scientific responders enthusiastically 
supported the proposal to revert to a 24-hour work/rest cycle. The 
issue of how these on-duty and off-duty periods apply to the proposed 
five types of operations is reserved for another section. This is not 
to say, however, that there was a total absence of dissent. As we will 
see with many of the proposed restrictions, there were some problems in 
the details, and that the problem usually cited was a lack of 
flexibility.
    The motorcoach industry had little interest in this issue, 
primarily because it has already absorbed the principle into operating 
practices. Its basic position is that the industry has adjusted well to 
the existing rules.

ATA and DLTLCA Recommendations

    The DLTLCA filed a petition on November 29, 2000, on behalf of 
itself and nine other trade associations, including the ATA, which, 
among other things, presented The Trucking Industry's Hours-of-Service 
Proposal. The document was described as the product of a 2-year effort 
by the petitioners' motor carrier members, who had it reviewed by Drs. 
Mark R. Rosekind and David F. Dinges, noted experts in sleep science, 
to ensure consistency with the latest safety research. Referring to a 
24-hour rest/work schedule, the petitioners said:

    We now know, based on research regarding the circadian rhythm, 
our bodies function on a 24-hour cycle. The rules should mirror this 
biological rhythm so that time on and off duty equals 24 hours. The 
current rules do not adhere to this pattern since they require 8 
hours off duty and allow 15 hours on duty. We recommend a 14-hour 
on-duty period and 10-hour off-duty period.

    As discussed above, the ATA had earlier submitted recommendations 
to the DOT in December 1999 while the draft NPRM was being reviewed at 
OMB before publication. The ATA championed the concept of a 24-hour 
work/rest cycle but did not describe their ``14 duty hours'' as a 
period limited to 14 consecutive hours.
    Regarding the issue of the 10-hour off-duty and 14-hour on-duty 
components of the 24-hour cycle, the ATA said in its recommendations:

    This is a decrease in allowable work hours from the current 
rules. When combined with the increased amount of off-duty time 
(from 8 to 10 hours), a 14-hour on-duty period promotes driver 
scheduling which mirrors more closely the body's 24-hour clock.

    The 1999 ATA recommendations included a daily ``flex-time'' option, 
which was not mentioned in the November 2000 DLTLCA multi-association 
petition. Flex-time would allow drivers to add up to 2 hours to the 
daily on-duty time no more than twice in any 7-day period, provided at 
least 48 hours separated the two extended on-duty periods and an amount 
of extra off-duty time equal to the ``extended'' time taken within 24 
hours. The ATA said it found the ``flex-time'' provision necessary to 
accommodate ``certain segments of industry [which] find themselves in a 
position where a 14-hour workday places the drivers in a position, on 
an irregular basis, of not being able to complete their assigned 
tasks.'' In its docket submittal of December 15, 2000, the ATA, 
referring to the 24-hour work/rest cycle, merely said: ``Work shifts 
should not be required to begin at the same time each day.'' It also 
included the daily flex-time provision, and suggested regulatory 
language to implement this option.
    The ATA cited no scientific source for the following three elements 
of its proposals:
    (1) Extending the workweek to 70 hours in 7 days, all of which 
could be, but probably would not be, driving time;
    (2) An averaging provision allowing drivers to work 140 hours in 14 
days by averaging one 84-hour workweek with one 56-hour workweek with a 
minimum of 34 hours off in between; and
    (3) Split off-duty time for sleeper berth drivers, and a limited 
allowance for combining sleeper-berth time with other off-duty time.
    At the second FMCSA ``roundtable'' discussion on September 28, 
2000, the DLTLCA representative hypothesized that the ATA recommended 
eliminating the distinction between driving and on-duty not driving 
time, ``because as a practical matter, no driver is going to be beyond 
12 * * * we are never going to be beyond 12 * * * because we have 3 to 
4 hours loading time. We have pre-trip inspections. We have all these 
other activities built in.''

Industry Comments

    The National Tank Truck Carriers (NTTC) supported the 24-hour clock 
as the basis for work/rest cycles. However, it refuted any assumptions 
that the tank truck industry has operational predictability and 
asserted that the rigidity of the rules unnecessarily restricted driver 
flexibility.

Private Carriers of Freight

    The NPTC recommended adopting a 24-hour work/rest cycle. The NPTC 
believes drivers' HOS regulations should be based on a 24-hour clock, 
reflecting a significant body of science that has determined that human 
beings have a natural circadian rhythm.
    The International Bakers Association (IBA) favored efforts to 
promote a 24-hour work/rest cycle without requiring work to start at 
the same time every day.

Truckload Carriers

    Large truckload carriers, such as Schneider National, J.B. Hunt, 
and Landstar, several of which participated in the formulation of 
industry's counter-proposal, generally favored a 24-hour work/rest 
cycle. The smaller truckload carriers were a little more reserved in 
their support for the 24-hour work/rest cycle, and that was primarily 
due to concern about the lack of flexibility in the proposal.
    The NASTC explained that its members have to depend upon the spot 
market to obtain back-hauls to maximize earnings. The unpredictable 
nature of such commerce may make it difficult to adhere to a strict 24-
hour workday. Several of its members opposed the rigidity of a ``fixed 
period of 24 consecutive hours.''

LTL Carriers

    The reaction of the LTL carriers was also generally positive on the 
issue of the 24-hour work/rest cycle. This may be because the nature of 
LTL operations is more closely in line with a 24-hour day. Most LTL 
carriers reported that runs are generally scheduled so they can be 
completed within 12 hours with no more than 10 hours driving. They need 
the flexibility of the extra two hours, however, to deal with 
exigencies. Yellow Freight System (Yellow), one of the largest LTL 
carriers and a member of Motor Freight Carriers Association (MFCA), 
recommended that the agency

[[Page 22468]]

withdraw its proposal and reissue its provisions piecemeal starting 
with the most beneficial--the 24-hour cycle.
    Overnite Transportation Company (Overnite), one of the nation's 
largest LTL carriers, strongly objected to the inference it drew from 
the proposal that the 24-hour cycle had to remain constant throughout 
the workweek. It stated the nature of LTL operations would never 
conform to a uniform 24-hour schedule. If a driver takes a 6-hour run 
at 8 a.m. after 10 consecutive hours off, he should not have to remain 
off duty 18 hours until 8 a.m. the next day. He should be able to go on 
duty after 10 consecutive hours off, and let the daily and weekly duty-
time maximums control.
    AAA Cooper Transportation found the 24-hour work/rest cycle as a 
positive step to improve drivers' sleep possibilities.

Driver Associations

    The OOIDA submitted an alternative proposal that gave due deference 
to a 24-hour work/rest cycle. The OOIDA, however, specifically rejected 
any notion that its proposal would require adherence to a fixed 
starting time each day.
    The IBT and most owner-operators and other small to medium-sized 
truckload carriers comments did not comment specifically on the 24-hour 
work/rest cycle.

Special Operations

    The American Road and Transportation Builders Association (ARTBA) 
would use 24 hours as a base. The ARTBA's alternative proposal for a 
``construction industry driver'' and the associated daily driving and 
on-duty time limits within a 24-hour period drew support from the AGC 
and the National Ready-Mixed Concrete Association (NRMCA).

Shippers

    The National Industrial Transportation League supported a 24-hour 
work/rest cycle but did not provide any detail or statistics.

Safety Advocacy Groups

    On the issue of the 24-hour work/rest cycle, safety advocacy groups 
joined with others from the public sector and scientific community to 
express strong support of the agency's position.
    The AHAS, CRASH, and PATT commended the agency for proposing a 24-
hour work/rest cycle, which they believe is supported by an enormous 
body of research over many years.
    The NSC commended the DOT for addressing this contentious issue 
which has not been fundamentally analyzed in over 60 years, and stated 
that the agency had done the fundamental research necessary to take it 
on. The NSC believed the research was strong enough to make the 
conclusion about reverting to a 24-hour cycle, and strongly supported 
that part of proposal.
    The National Institute for Occupational Safety and Health (NIOSH) 
of the Department of Health and Human Services agreed that most 
provisions of the proposed rules would produce positive safety 
outcomes. It recommended limiting driving within a 24-hour work/rest 
cycle.

FMCSA Response

    There is general agreement on the concept of a 24-hour work/rest 
cycle and the scientific support for it. The FMCSA agrees with the 
general concept of ATA's statement that increasing the amount of off-
duty time (from 8 to 10 hours) and having a 14-hour on-duty period 
promotes driver scheduling which would move the regulations closer to 
the body's 24-hour clock. The FMCSA believes that the strict 24-hour 
work/rest cycle would be ideal from a scientific viewpoint, but it is 
simply not practical and too inflexible to require of the industry. A 
strict 24-hour work/rest cycle would cause unavoidable impacts to motor 
carrier operations that the agency cannot justify from a safety or 
economic standpoint.
    A requirement that all on-duty time including driving must occur 
within the 24-hour period creates the flexibility problems that 
carriers identified in their comments. Each of the options analyzed in 
the NPRM prevents the operational flexibility the industry desired. 
Most of the recommendations made by industry commenters to the NPRM, 
did not include a strict 24-hour period; operational flexibility was 
given higher priority.
    Moving towards a 24-hour work/rest cycle without requiring a rigid 
starting time could achieve safety benefits while causing less 
productivity disruptions to motor carrier operations than adopting the 
strict 24-hour work/rest cycle the NPRM and PATT proposed.
    The PATT and ATA alternatives incorporated a 24-hour work-rest 
cycle. The FMCSA staff also developed an alternative that incorporated 
a 24-hour work-rest cycle to provide a more operationally feasible 
alternative for analysis.
    The FMCSA has decided to move towards a 24-hour work/rest cycle 
containing an extended consecutive-hour off-duty period within which 
drivers can obtain necessary daily sleep. Logically, off-duty time must 
always be referred to in terms of the minimum, while on-duty time will 
continue to be referred to in terms of the maximum.
    The FMCSA is selecting its staff alternative incorporating a 24-
hour work-rest cycle and a 21-hour drive-rest cycle for the final rule 
because it provides the most favorable combination of reduced fatigue-
related incidents, increased driver alertness, and other safety 
benefits along with minimal costs to society.

Daily Off-Duty Time

Industry Comments

    The proposal provided three different consecutive off-duty periods 
to obtain the same 7 to 8 hours of sleep: 10 consecutive hours off-duty 
for Types 1 and 2; 9 consecutive hours off-duty for Types 3 and 5; and 
12 consecutive hours off-duty for Type 4.
    As discussed above, the ATA had earlier submitted recommendations 
to the DOT in December 1999 while the draft NPRM was being reviewed at 
OMB before publication. The ATA championed the concept of a 10-hour 
off-duty period and 14-hour on-duty period of the 24-hour cycle.
    The Pennsylvania Motor Truck Association (PMTA), in supporting 
ATA's alternative proposal for 10 hours off, commented that there was 
enough time in the day for drivers to rest if necessary while 
maintaining a productive schedule. It also observed that the FMCSA's 
proposed rules do not enable drivers to take advantage of downtime at 
loading docks.
    The California Trucking Association (CTA) believes a 10-hour off-
duty period is potentially effective.
    Tom Carrigan, the director of corporate safety for the Martz Group, 
testified that in the early days of his career as a Greyhound driver, 
he could recall reporting to work fully rested and well within legal 
limits, yet so fatigued that he wondered how he would manage to get out 
of the terminal, let alone complete his trip. He stated Greyhound 
provided its drivers with 10 hours of off-duty time between trips and 
faithfully abided by all of the HOS limitations, yet Mr. Carrigan 
claimed Greyhound had no control over its drivers' activities while 
away from work. There were many other occasions when Mr. Carrigan was 
provided 24 hours or more of off-duty time yet reported for his next 
trip in a fatigued state due to faulty time management on his part.

Private Carriers of Freight

    The NPTC recommended an alternative extending the required daily

[[Page 22469]]

off-duty period to nine hours. The NPTC believes there is general and 
indisputable agreement that truck drivers need more opportunity for 
rest. The IBA supported 10 consecutive hours daily for rest.

Truckload Carriers

    Schneider National recommended a 10 consecutive hour off duty 
period ``to implement regulations that make sense for the industry, 
drivers, and the public.''
    J.B. Hunt also supported changing to 10 hours off duty instead of 
the current 8-hour resting period. It stated drivers would get ample 
opportunity for restorative sleep every day and sleep deprivation 
should not be an issue.

LTL Carriers

    The reaction of the LTL carriers was also generally positive on the 
issue of off duty time. Overnite submitted a recommendation of a 
minimum off-duty time of 10 consecutive hours, which could be split for 
drivers using sleeper-berth equipment.
    AAA Cooper Transportation believes the daily 10-consecutive hour 
period off-duty as a positive step to improve drivers' sleep 
possibilities.
    Con-Way commented that the off-duty period should be 10 hours off 
duty within which to get 7 to 8 hours of sleep.

Driver Associations

    The OOIDA proposed a daily off-duty period of 10 hours instead of 
the current eight hours. It stated: ``Ten hours off duty will allow 
drivers more than sufficient time to get restorative sleep each day and 
will help drivers resist pressure from shippers, brokers, and motor 
carriers to drive longer hours.''

Safety Advocacy Groups

    PATT and NIOSH were very supportive of the proposal's 12 hours of 
rest.
    The IIHS supported the agency's approach of taking the needed 
amount of daily sleep (7 hours) and the time within which such sleep 
can be obtained (10 hours). Together with the 60 hours in 7 days limit, 
the driver gets an average of 12 hours off and accumulation of fatigue 
would be avoided.

FMCSA Response

    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.
    To afford the driver an opportunity to obtain a minimum period of 7 
to 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. 6 M.C.C. 557, July 12, 1938.
    The NPRM found that 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 each day 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 more prone to perform poorly on tasks 
requiring vigilance and decisionmaking than a person who is alert.
    It is virtually impossible for a driver to get an adequate amount 
of sleep when the driver must subtract time for commuting, meals, 
personal errands, and family/social life 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 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

[[Page 22470]]

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.
    After reviewing the research, comments, and regulatory analysis, 
the FMCSA selected three alternatives to analyze in detail: the PATT 
and ATA proposals and its own staff alternative. The PATT alternative 
would set off-duty time at 12 consecutive hours and the ATA and FMCSA 
alternatives at 10 consecutive hours.
    The FMCSA is convinced that requiring two additional hours of off-
duty time to obtain additional sleep and accommodate commuting, meals, 
personal errands, and family/social life is enough minimum time for the 
majority of drivers. A driver may need additional time, such as for 
longer than normal commutes, medical appointments, and family/social 
life needs, but those additional times can be handled through labor-
management arrangements. The agency's 10-hour limit is materially 
better from a safety standpoint than the current rule. Under the 
current rule a driver who resides one hour from the normal work 
reporting location, could conceivably be required to return to the 
wheel within 8 hours after being released from duty and at most could 
get only 6 hours of sleep. This final rule's requirement, however, is 
not so restrictive as to impose an unreasonable burden on productivity 
and generates the most favorable combination of reduced fatigue-related 
incidents, increased driver alertness, and other safety benefits, along 
with minimal costs to society.

Daily On-Duty Time

Industry Comments

    The PMTA, in supporting ATA's alternative proposal for 14 hours on 
duty followed by 10 hours off, commented that there was enough time in 
the day for drivers to rest if necessary while maintaining a productive 
schedule. It also observed that the FMCSA's proposed rules do not 
enable drivers to take advantage of downtime at loading docks, 
suggesting that the agency adopt a more liberal interpretation of the 
14-hour block of on-duty time.
    The CTA observed that the 24-hour workday should be split into only 
two periods, a 14-hour work period and a 10-hour off-duty period.

Private Carriers of Freight

    The NPTC recommended a 15-hour on-duty limit. The NPTC commented: 
``Any limit on maximum daily on-duty time of less than 15 hours would 
disrupt many private carriers' operating schedules and practices. We do 
not believe a limit of less than 15 hours can be cost-justified.''
    The IBA supported 14 hours of productive time with flexibility to 
extend twice a week by one to two hours under ``certain'' (undefined) 
circumstances.

Truckload Carriers

    Schneider National agreed with the ATA recommendation to change 
from the current 15-hour rule to a 14-hour on-duty rule within any 24-
hour cycle ``to implement regulations that make sense for the industry, 
drivers, and the public.''
    J.B. Hunt also supported changing the work/rest cycle to 14 hours 
on duty and 10 hours off instead of current 10-hour driving/15-hour 
working/8-hour resting cycle, but also favored the proposed 12-hour 
work limit in 24-hour workday, preferably with no multi-day cumulative 
limit. Hunt observed that the biggest negative impact comes from the 
rigidity of the proposal.
    Perfetti Trucking, which actively participated in the hearings and 
roundtable discussions in addition to submitting written comments, 
stated drivers should get credit for rest time and that rest time 
should extend the 14-hour duty period.
    The NASTC pointed out a problem with the 14-on, 10-off daily cycle 
in that all productive time would have to be condensed into a 14-hour 
block of time. If a driver has to take a nap or rest from 1 to 2 hours, 
he would pay the price in productivity and would therefore more likely 
disregard his condition and continue to operate.

LTL Carriers

    Watkins Motor Lines, Inc. (Watkins) reported it has approximately 
2,400 drivers engaged in pickup and delivery operations or short hauls 
that would best fit in the Type 4 operations provided in the proposal. 
These drivers work five days a week, begin work about the same time 
every day and return to their home terminal at the end of the workday. 
All of these drivers are scheduled for no more than 12 consecutive 
hours each day. However, because of unforeseen circumstances 
(breakdowns, weather, traffic, etc.) on any given day, an average of 4 
percent, or 95 drivers, are required to extend their scheduled day by 
an average of less than 60 minutes.
    Overnite recommended a maximum on-duty time of 14 hours.
    Con-Way recommends 14 hours on duty with no distinction between 
driving and non-driving time.

Driver Associations

    OOIDA stated: ``The maximum available time of 14 hours that OOIDA 
proposes is very reasonable and more than sufficient time to allow 
drivers to accomplish their work.'' The OOIDA, however, specifically 
rejected any notion that its proposal would require adherence to a 
fixed starting time each day.
    Many other comments from owner-operators and small to medium-sized 
truckload carriers focused on those provisions in the proposal that 
they found most troublesome, i.e., failure to display an understanding 
of the flexibility needed in irregular route, truckload business.

Special Operations

    The ARTBA would limit duty time to 16 hours and was supported by 
the AGC and the NRMCA.

Safety Advocacy Groups

    AHAS cited numerous studies finding that risk geometrically 
increases during the 10th and 11th hours on duty. The studies cited in 
the preamble as showing that performance degrades dramatically after 
the 12th hour, AHAS noted, actually stand for the proposition that 
performance starts to degrade after the 8th hour. The AHAS stated that 
it would be more comfortable if the proposal limited on-duty time to 12 
hours, but believes that would not change the industry's tendency to 
violate the rules.

[[Page 22471]]

    PATT, NSC, and NIOSH all concurred with the proposal limiting duty 
time to 12 hours in each 24 hours.

FMCSA Response

    The environment in which motor carriers and their drivers operate 
is significantly different from the environment in which they operated 
in 1938. The CMVs and highways they operate on are dramatically 
improved, making the driving task, while still a demanding one, 
considerably less arduous than was the case then. The FMCSA believes 
there can be little doubt that fatigue directly attributable to the 
exertion required to operate the modern CMV is less of a factor now. 
Society has learned a lot about the science of sleep since 1938 and 
understands the more relevant issue is how long the driver can be awake 
and ``at work'', and still be allowed to drive, before safety is 
significantly compromised.
    After reviewing the research, comments, and RIA, the FMCSA is 
convinced that 14 hours after the beginning of a duty tour is long 
enough for most drivers, given the significantly increasing degradation 
of performance which occurs in the later stages of a work shift.
    The FMCSA found that restricting those drivers who return to the 
normal work reporting location at the end of every shift has the 
unintended consequence of requiring a significant increase in new 
drivers. These new drivers would increase both costs and crashes. The 
analyses showed that by allowing these short-haul drivers the 
flexibility to work up to 16 hours one day in a week would reduce the 
number of additional drivers needed for the staff alternative. This 
flexibility would result in cost savings of nearly $500 million and 
safety benefits of nearly $10 million.
    The FMCSA believes this 14-hour limit for most drivers, and 16-hour 
limit for short-haul drivers once a week, is materially better from a 
safety standpoint than the current rule. A driver under the current 
rule could conceivably still be allowed to return to the wheel several 
hours after the 15-hour limit has passed (because ``off duty'' breaks 
that can extend the workday). The limit, however, is not so restrictive 
as to impose an unreasonable burden on productivity.
    In conducting its RIA, the FMCSA made sure it included analysis of 
private carriers' operating schedules in view of the NPTC claims. The 
RIA, however, has justified the cost to reduce the number of available 
off-duty hours to 14 hours after the driver begins work. The FMCSA does 
not believe 16 hours every day, as supported by the ARTBA, AGC, and 
NRMCA, would reduce fatigue-related incidents and increase driver 
alertness as these commenters contend.
    AHAS correctly cited studies showing that performance begins to 
degrade after the 8th hour on duty and increases geometrically during 
the 10th and 11th hours. The agency's RIA, however, demonstrated that 
the FMCSA staff alternative produces substantial net safety benefits 
compared to the current rule, despite allowing up to 11 hours of 
driving, because it also requires 10 hours off duty, instead of 8, and 
reduces the backward rotation of drivers' sleep/wake schedules. See the 
discussion above under the FMCSA Response to the Daily Off-Duty Time.
    In reviewing the recommendations made by commenters to the NPRM, 
the FMCSA found the PATT, ATA, and its staff-developed alternatives the 
most feasible. The PATT alternative would set on-duty time at 12 
consecutive hours. The ATA alternative would allow a driver to be on 
duty 14 cumulative hours with up to 16 cumulative hours twice per 7-day 
period. The FMCSA alternative would set on-duty time at 14 consecutive 
hours once the duty tour begins for long-haul and short-haul drivers, 
while short-haul drivers would have the opportunity to work up to 16 
consecutive hours one day per week.
    The FMCSA has chosen to promulgate its staff alternative because it 
provides the best combination of safety and compliance costs.

Daily Driving Time

Industry Comments

    The CTA believes the workday should include a 14-hour work period 
and strongly argued for preservation of intrastate exemptions allowing 
drivers transporting farm products to drive 12 hours in a 16-hour day.

Private Carriers of Freight

    The NPTC recommended adopting a daily driving limit of 12 hours 
within a 15-hour on-duty limit.
    The IBA supported a 14-hour productivity time with flexibility to 
extend it twice a week by one to two hours under ``certain'' 
(undefined) circumstances.

Truckload Carriers

    Schneider National agreed with the ATA recommendation to change 
from the current 10-hour driving rule to a 14-hour on-duty rule ``to 
implement regulations that make sense for the industry, drivers, and 
the public.''
    J.B. Hunt also supported changing the work/rest cycle to 14 hours 
on duty and 10 hours off duty instead of the current cycle, but it also 
favored the proposed 12-hour work limit in 24-hour workday. J.B. Hunt 
believed this would enable a driver to average 10 hours of work a day, 
extending to 12 hours of work as circumstance demands. Hunt observed 
that the biggest negative impact comes from the rigidity of the FMCSA 
proposal.

LTL Carriers

    Overnite recommended a maximum of up to 10 hours driving.
    Con-Way recommended 14 hours on duty with no distinction between 
driving and non-driving time.

Driver Associations

    The OOIDA recommended no restrictions on daily driving time, which 
OOIDA believes should be left to the discretion of the driver.

Special Operations

    The ARTBA would limit driving time to 12 hours in a single 24-hour 
day and 72 hours in seven days, and it drew support from the AGC and 
NRMCA.

Safety Advocacy Groups

    AHAS stated that ``[FMCSA] has reversed its own policy stance of 
record on the dangers of driving more than 10 consecutive hours.'' AHAS 
pointed to the FHWA's November 1990, Report to Congress On Commercial 
Driver Hours of Service, where the agency openly endorsed research 
findings about the adverse effects of longer continuous driving times 
and of cumulative fatigue over several consecutive days of driving. 
AHAS argued that this report acknowledged that ``[t]he risk of 
accidents appears to increase with the number of hours driven.'' With 
regard to the current 10-hour driving limit, AHAS argued the agency had 
asserted in 1990 that ``this requirement is consistent with the 
research finding that the potential for accidents rises as the hours of 
driving increase and the driver is more likely to become fatigued.'' 
AHAS stated that the FHWA report also ``favorably cites the [IIHS'] 
1987 study by Jones and Stein, [Effects of Driver Hours of Service on 
Tractor-Trailer Crash Involvement], showing ``that driving in excess of 
8 hours may be associated with a significantly increased risk of crash 
involvement. This reported increase in relative risk confirmed other 
findings [citing Mackie and Miller, Effects of HOS Regularity of 
Schedules, and Cargo Loading on Truck and Bus Driver Fatigue, 1978]'.'' 
AHAS quoted the FHWA report: ``Research indicates that

[[Page 22472]]

the time spent on-duty may be a more important factor in driver loss of 
alertness [citing Harris and Mackie, A Study of the Relationships Among 
Fatigue, HOS, and Safety of Operations of Truck and Bus Drivers, 
1972].'' AHAS argued that ``there has been no research since this 
Congressional report, including research completed for the OMCS over 
the past decade, which has refuted the accuracy of these observations 
or of the research on which they are based.''
    AHAS also extensively quoted a Federal Register notice from 1980 
stating:

    The [rationale] for the hours of service regulations is 
justified by the concept that the longer a person drives, the more 
[fatigued] that person becomes and consequently, the more prone to 
becoming involved in accidents.

45 FR 82284, at 82286.

    Fatigue, however it is defined, appears to be the chief factor 
limiting a person's output. Various studies have shown that when the 
working day is lengthened, productivity goes down, when the number 
of hours worked is reduced, performance increases.
    The influence of fatigue in accident causation has been 
demonstrated and where there has been a reduction in hours worked, 
there has been a reduction in accidents. There is some evidence that 
8 hours of work a day, where the work is fairly demanding, is the 
maximum that should be permitted for highest productivity and lowest 
accident rate.

45 FR 82284, at 82288.
    AHAS also argued that FMCSA's predecessor agency in 1987 endorsed 
findings that increased consecutive driving hours and consecutive days 
of driving both directly contribute to driver errors and crashes. See 
52 FR 45215. AHAS argued that FHWA made assertions to the same effect 
in the November 29-30, 1988, Symposium on Truck and Bus Driver Fatigue.
    AHAS also argued that ``[n]one of the research findings showing the 
increased safety and productivity of fewer hours worked and driven than 
the maximum 10 hours permitted under the current regulation are cited 
or discussed anywhere in the instant proposed rule.''
    AHAS continued that ``no credible studies in the intervening years 
have countermanded the accuracy and wisdom of these observations. 
Indeed, scores of new studies have amply and repeatedly corroborated 
the FHWA's policy statements over the past 20 years about the dangers 
of driving and working longer hours.''
    Finally, AHAS argued that ``the FMCSA has categorically altered its 
position in this rulemaking on the merits of driving and working longer 
hours without demonstrating why and how these prior conclusions are no 
longer valid. AHAS does not believe the agency has countered these 
documented policy views with any new facts and information which moot 
their application to the revision of the current HOS standards to 
ensure that drivers work and drive fewer hours to ensure a reduction in 
both the relative and absolute risks of truck crashes. Instead, the 
agency, against all the evidence of record, including their own policy 
statements over the years, has offered amendments to the current 
regulation which demonstrably will promote truck and bus drivers to 
drive longer consecutive hours at a greatly increased risk of crashes 
due to an increased prevalence of fatigue among commercial operators.''
    AHAS believes that nighttime driving is less safe than daytime 
driving because of the circadian effects on the driver. It rejects, 
however, as speculative and unsupported by any evidence, the potential 
that displacement of nighttime operations to daytime could create 
additional safety problems due to increased congestion.
    CRASH's principal objection is that the proposal increases by two 
hours the amount of time a driver can drive in one day. CRASH cited 
studies showing that crash risk nearly doubles after 8 hours and 
doubles again after the 9th hour.
    PATT joined AHAS and CRASH in strongly opposing any increase in the 
10-hour driving limitation because of research that shows the risk of 
crashes increases after 8 hours and even more significantly after 9 to 
10 hours. PATT recommended limiting driving to 10 hours out of 12 hours 
of allowable duty time each 24 hours, or to put it another way, no more 
than 50 hours driving in 60 duty hours per week. On these issues, the 
safety advocates were in harmony with the position of the IBT.
    The IIHS commented that there are ``gold standard'' studies 
relating crashes of truck drivers to driving hours showing that 
performance degrades starting after the 5th hour, but the risk 
dramatically increases after the 10th hour.
    NIOSH recommended limiting driving to 10 hours within a 24-hour 
work/rest cycle of 12 hours on duty and 12 hours off duty. NIOSH also 
said the FMCSA should consider allowing up to 12 hours of driving per 
day on rare occasions as required by emergencies or other unusual 
circumstances where continued driving would be safer than stopping.

FMCSA Response

    Just as industry was inclined to interpret the science as allowing 
greater productivity without facing greater risk, the safety advocates 
cite the science as requiring the agency to go further to restrict 
driving time.
    Although AHAS argued that there have been no credible studies since 
1981 and 1990 countermanding the agency's previous position, FMCSA 
believes recent studies have provided new information requiring the 
agency to reevaluate its former policy statements.
    America's transportation system has changed significantly since the 
late 1930's. 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). These truckers used drafty, noisy, 
and underpowered trucks to labor up long hills and other rough, narrow, 
and poorly-marked winding roads. 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 using modern, heated/air-conditioned, air-suspension, 
sleeper-berth, cruise-control equipped tractors for drivers' comfort 
and safety.
    The high volume and speed of traffic on the Interstates and many 
other roads require a higher 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. The FMCSA 
believes there can be little doubt that fatigue directly attributable 
to the exertion required to operate the modern CMV is less of a factor 
now.
    By limiting daily duty hours, the NPRM would have imposed a more 
regular work/rest cycle, assuming that very few, if any, drivers would 
drive their entire on-duty period. This is consistent with testimony 
from carriers and drivers alike about customary practices. The AHAS 
pointed out, however, that the degraded performance in the eleventh and 
twelfth hours on duty should not, at least regularly, be spent behind 
the wheel. The AHAS position does create potential issues with 
operational practicality. The AHAS insisted science would require the 
agency to include both a reduction in a

[[Page 22473]]

driver's nighttime operations and an increase in time off to compensate 
for driving at night when the sleep debt accumulates because daytime 
sleep is inferior to nighttime sleep. It dismissed as purely 
speculative any impact on safety from displacing many drivers from 
nighttime to daytime operations and the great number of inexperienced 
drivers necessary to replace the drivers whose availability would be 
substantially limited.
    The FMCSA initially considered the proposals submitted in the ATA 
comments and in the petition of the DLTLCA the same; however, when the 
agency began considering whether the ATA recommendation could be 
potentially effective and reasonably feasible, we found significant 
differences with the DLTLCA proposal that raised serious questions 
about the effectiveness and reasonableness of both. The ATA asserted 
that its proposal was based upon research showing that humans function 
on approximately a 24-hour cycle, and therefore that new rules should 
promote rest/work cycles synchronous with the body's natural 24-hour 
biological rhythms.
    The so-called circadian cycle or rhythm has two general tendencies 
on the wake/sleep cycle of humans. During daylight hours, the human 
body tends to be wakeful, and during nighttime, the human body tends 
toward sleepiness. Therefore, people would not only tend toward 
drowsiness during the late night and early morning hours, they would 
also tend to have more difficulty obtaining restorative sleep during 
the daylight hours. The latter situation may lead to the accumulation 
of sleep debt, resulting in increased tendency toward drowsiness not 
only in subsequent nighttime periods of required wakefulness but at 
other times as well.
    This is not to say there are no safety benefits to be derived from 
promoting regular work/rest cycles, and industry is to be commended for 
proposing one. It should be noted, however, that nothing in the current 
rules would preclude more regular schedules.
    The FMCSA believes that allowing one additional hour of driving 
activity can be safely accommodated within the context of a somewhat 
reduced overall tour of duty as discussed above. The FMCSA staff 
alternative selected for evaluation includes no driving after 14 hours 
from the start of duty tour notwithstanding intermittent breaks off 
duty for meals, naps, and other rest. In arriving at 14 hours, the 
agency believes drivers would realistically take some breaks during 
that time and the work period may well accumulate 12 or 13 hours, with 
up to 11 hours driving.
    The FMCSA relied upon 12 studies to select a 10 consecutive hour 
off-duty period, a 14-hour tour of duty, and a maximum of 11 hours of 
driving. The 12 studies are included within the agency's review of all 
research studies used in the NPRM. The agency's review is by Freund, 
D.M., November 1999, ``An Annotated Literature Review Relating to 
Proposed Revisions to the Hours-of-Service Regulation for Commercial 
Motor Vehicle Drivers,'' that is in the docket. The FMCSA staff 
alternative concluded that, after 14 hours from the start of the work 
period, it is time to stop driving, as the risk of fatigue-affected 
incidents is increasing rapidly.
    The PATT alternative would set driving time to no more than 10 
cumulative hours. The ATA alternative would allow drivers to drive up 
to 14 cumulative hours with up to 16 cumulative hours twice per 7-day 
period. The FMCSA staff alternative would allow driving time up to 11 
cumulative hours for long-haul and short-haul drivers. The FMCSA has 
decided to allow drivers to drive up to 11 cumulative hours for all 
long-haul and short-haul freight drivers.
    Although the agency focused on science in developing the NPRM, it 
cannot allow science alone to dictate the form or content of a rule, as 
many safety groups advocate. On the other hand, while reviewing 
economic, operational, and environmental issues with great care for 
this final rule, FMCSA has not allowed itself to be bound by those 
considerations either.

Distinctions in Duty Time

General Concept

    The expert panel assembled by the agency to review the options 
under consideration before publication of the NPRM recommended 
eliminating the distinction between on-duty time and driving time. The 
scientific basis for the recommendation is the belief that driving is 
no more tiring than many of the other tasks a truck driver would be 
called upon to perform.
    The agency's practical basis for the proposed elimination was to 
reduce the paperwork burden. Under the existing rules, drivers are 
required to account for both driving time and non-driving duty time. 
Eliminating the distinction, moreover, would achieve consistency with 
the terminology used by the Wage and Hour Division of the U.S. 
Department of Labor (DOL), allowing FMCSA to rely on DOL records in 
place of driver records of duty status.

ATA Recommendation

    When developing its recommendations, the ATA stated it was aware of 
the expert panel's findings that driving is no more fatiguing than 
other work. Therefore, it proposed to eliminate the distinction between 
driving time and other on-duty time as unnecessary, leaving the 
possibility of 14 consecutive hours of driving. The ATA opined that 
hours of driving time would always be less than the overall duty time 
within which the driving takes place. The ATA cited its HOS survey in 
which commenters reported driving an average of 9.1 driving hours in an 
11.4-hour day.
    The DLTLCA commented that they ``went along with ATA'' although 
they wanted a 12-hour limit on driving. They stated that the 12-hour 
driving limitation was consistent with DOT's proposal and its research, 
and noted that five states already allow 12 hours of driving (for 
intrastate trips). The industry petitioners ``recognized that the 
business, operational and safety needs of trucking companies and their 
customers will continue to consume several hours of a driver's time 
each day,'' so that ``a limit of driving time to 12 hours would 
result.''
    The NPTC alternative was much more direct. With little explanation, 
the private carriers recommended a maximum of 12 hours driving in a 15-
hour on-duty period.

Other Industry Comments

    The MFCA made no comment specifically on this issue, because its 
constant position is that the present rules should remain in force. The 
fact that the IBT strongly opposed eliminating the distinction seems to 
support the validity of this assumption.
    The NTTC supported the elimination of any distinction between duty-
time and driving-time.
    Throughout the public hearings on the NPRM, notwithstanding vocal 
support for the ATA recommendation, nearly all carriers and most 
drivers testified that daily driving rarely exceeded 10 hours, and then 
it was only due to some exigent circumstance. For example, Con-Way 
surveyed its line-haul drivers, who were described as combination 
drivers and dock-workers. Most runs are at night and the driver's 
average duty time was 10.88 hours. Their average driving time, however, 
was only 6.22 hours and their average load time was 4.5 hours. Con-Way 
also did a study of all its line-haul operations on one day, which was 
the last workday of the month and admittedly a worst-case scenario. 
3900

[[Page 22474]]

drivers were dispatched and 42 percent exceeded 12 hours on duty, but 
none exceeded ten hours of driving.
    The IBT maintained a consistent position throughout the 
proceedings, dating back to its initial response to the ANPRM in June 
of 1997. One of the four elements of a rule that IBT could support was 
maintaining the distinction between driving and non-driving duty. The 
IBT observed that the agency's proposal failed three of its tests, 
including this one. It argued that eliminating the distinction is what 
permits driving time to be extended, and agreed with the safety 
advocates that some drivers would push the envelope and drive 14 hours 
a day. The IBT noted that the union is successful in getting driving 
limitations into contracts because of the DOT rules.
    The Snack Food Association, the National Soft Drink Association, 
and the PMAA all reported that drivers in these segments of the 
industry are also salespeople and customer service representatives. 
They spend considerable portions of their daily duty time in non-
driving activities, and actual driving time would not exceed 10 hours.
    The construction industry's recommendation to create another 
category--``construction industry driver'' within a 100 mile radius of 
operation--would continue a distinction between driving time and on-
duty time. Because of the seasonal and weather-dependent nature of the 
industry, the proposal, supported by AGC and ARTBA, would:
    (1) Extend limits to 12 hours of driving and 16 hours of duty 
during a 24-hour period;
    (2) Extend weekly limits to 72 hours driving and 80 hours on duty;
    (3) Average driving and duty time over 14 days;
    (4) Allow 90 hours of driving during the first 8 days, a 34-hour 
restart, and a 45-hour driving limit over the remaining 4\1/2\ days, 
followed by a 24-hour restart; and
    (5) Provide for a 24-hour restart of time accumulation at any time, 
presumably even to avoid the 34-restart.
    The need for such increased driving time is not apparent from 
testimony and comments regarding industry practices. An alternative 
suggested by the AGC sheds some light. In construction, most drivers 
have no responsibility for loading and unloading. Mostly, they wait in 
line for loads and then wait in lines at sites to unload. Therefore, 
AGC would retain the distinction between driving and non-driving 
duties, but change what is meant by on-duty time to exclude time 
waiting in lines to load and unload.
    The American Moving and Storage Association (AMSA), which also 
claims that its operations are unique, reported that drivers do not 
really spend the majority of their on duty hours behind the wheel, 
averaging about 75,000 miles a year. AMSA claims most of the driver's 
on duty hours are spent loading and unloading.
    The Institute of Makers of Explosives (IME) complained that the 12-
hour on-duty restriction for Type 4 drivers will severely impact on 
``shot service,'' which entails loading ``shot'' holes with explosives, 
setting the charge, and initiating the shot. The operators for IME 
members apparently need at least a 14-hour day to provide the 
flexibility needed for that activity, but not to accommodate more 
driving.
    Small truckload carriers, represented by NASTC, opposed both 
reducing daily on-duty time and removing the distinction between 
driving and non-driving time. They stated that, under the present 
rules, a driver can drive up to 15 hours in any given 24-hour period, 
giving a range of 750 miles. Under the proposed rule, the range would 
be reduced to 600 miles.
    The OOIDA's survey, on the other hand, found its members spend an 
average of 10 hours per day driving and 2.4 hours per day loading and 
unloading. An average of 10 hours of driving per day, of course, would 
mean that on some days the 10 hours would be exceeded.
    Private carriers, according to NPTC, advocated a limit of 12 
driving hours within a maximum of 15 duty hours daily. The need for 
this increase in driving time was unexplained except that the NPTC 
stated it was consistent with safe operating practices. Wal-Mart, 
moreover, stated the 12-hour on-duty limitation within 14 consecutive 
hours is more restrictive than the 10-hour driving limitation and 15 
hours on duty. Under the proposal, drivers would have to drive more 
within a smaller window to maximize earnings.

Safety Advocacy Groups

    Safety advocates contended that failure to distinguish on-duty time 
from driving time would increase violations of HOS regulations.
    The AHAS asserted that pay-per-mile practices would cause drivers 
to continue to maximize driving time at the expense of the required ten 
consecutive hours off duty and two hours of rest periods. It argued 
that because drivers can presently use non-driving duty time each day 
to perform non-driving tasks, this ``has helped'' to limit even more 
flagrant abuses that would occur if there were no non-driving hours 
available in the regulations. The principal concern of the safety 
advocates was the belief that allowing 12 hours of unspecified ``duty 
time'' would necessarily translate into 12 consecutive hours of 
driving. They cited numerous studies finding that risk dramatically 
increased during 10th and 11th hours, and predicted that pressures from 
efficiency-minded schedulers would assure that the industry would fully 
exploit this additional driving time.
    CRASH stated that eliminating the distinction between driving time 
and other on-duty time would result in motor carriers squeezing drivers 
for every possible minute of driving time, and carriers would pressure 
drivers to work during rest periods.
    The IIHS commented that the safety community would prefer a driving 
limit of eight to nine hours in a 24-hour period. They are realistic 
enough to know that they should be content with keeping close to the 
status quo.
    The NIOSH, agreeing that most provisions in the proposal would 
produce a beneficial safety outcome, recommended limiting driving to 
ten hours within a 24-hour work/rest cycle of 12 hours of duty and 12 
hours free. It also stated, however, that the agency should consider 
allowing up to 12 hours of driving per day on rare occasions as 
required by emergencies or other unusual circumstances where continued 
driving would be safer than stopping.

FMCSA Response

    The FMCSA and PATT alternatives distinguished between duty and 
driving time, the ATA's did not. The FMCSA has decided to retain the 
distinction between driving and on-duty-not-driving time. Each driver 
required to prepare records of duty status must continue to record all 
driving time separately from all time on-duty.
    The paperwork reductions sought by the agency in eliminating the 
distinctions in drivers' work hours received little support. That 
objective even drew some criticism because the proposed substitute for 
the paper log, the EOBR, is incapable of directly monitoring non-
driving duty time. The ATA opposed the use of DOL records, as did the 
MFCA, which contends that few motor carriers are even aware of their 
responsibility under the DOL regulations.
    The ATA recommendation would eliminate the distinction between 
driving and other on-duty time, ostensibly securing a more favorable 
work/rest cycle for drivers. The ATA

[[Page 22475]]

and other sponsors of the industry alternative stated that their 
support for a 14-on duty, 10-off duty work/rest cycle is a 
``substantial positive change'' for which they should receive some 
compensation to offset productivity losses. That compensation would be 
in the form of more daily driving hours, potentially making 14 
consecutive hours of driving legal. In the context of ``pay-by-the-
mile'' incentives, that possibility looms large, although the industry 
sponsors were confident that the exigencies of the working day would 
impose a natural 12-hour driving limit.
    Support for this alternative from the rest of the for-hire industry 
was fractional. Aside from the small truckload carriers, there was a 
fairly broad consensus in favor of retaining the current limits on 
driving time, subject to greater flexibility in usage. Imposing a 10-
hour driving limit in a 24-hour period would have a substantial impact 
on small truckload carriers. They are presently permitted to drive up 
to 16 hours in a 24-hour period under a 10-hours-on duty/8-hours-off 
duty rotation. If limiting actual driving to eleven hours is a 
legitimate safety measure, it would not seem equitable to allow 
exceptions simply because drivers could make more money under more 
liberal rules. On the other hand, if most drivers operate safely under 
current rules, it would seem inequitable to subject them to more 
stringent regulations that would cut into their earning capacity or 
disrupt their life.
    The FMCSA has decided to continue the distinction between driving 
time and on-duty time. The comments, particularly from safety groups, 
adamantly opposed allowing as much as 12 hours of driving time. Because 
the FMCSA believes that a reasonable person could find that the last 
hour of a driver's duty tour would be expected to be driving time that 
comes near the end of a 13- or 14-hour workday, the FMCSA is persuaded 
that 11 hours is a more reasonable limit. Within the limits of a tour 
of duty usually lasting no more than 14 hours, the FMCSA believes there 
is little doubt that modern CMVs can be driven safely up to 11 hours, 
particularly because rest breaks can be expected to naturally occur 
during the course of that tour.

Weekly or Longer Cycle

General Concept

    The scientific basis for proposing weekly restrictions is the 
finding from research studies that sleep debt from multiple periods of 
insufficient (poor quality or insufficient quantity) sleep is the major 
cause of cumulative fatigue. The recommended countermeasure is a 
recovery period during which restorative sleep may be obtained and the 
``sleep debt'' repaid. The concept of a weekly recovery period was 
presented in the NPRM in the definition of workweek, i.e., ``any fixed 
and regularly recurring period of seven consecutive workdays,'' and in 
the number of hours required to be off-duty before beginning the next 
workweek.
    The comments raised concerns over the agency's proposal for a 
``workweek,'' starting with the definition, which many thought 
confusing. In some segments of the industry the concept of a Monday to 
Friday workweek is alien. The language of the definition (``fixed * * * 
workweek'') did appear to give these carriers cause for alarm, which 
the agency acknowledged during the hearings and roundtable discussions. 
A more logical definition of ``workweek'' might have been ``the 
workdays between extended off-duty periods,'' although how the term 
might be used in regulatory context is not clear. The recovery period 
or ``weekend'' requirement will be discussed elsewhere in this 
document.

ATA Recommendation

    The ATA recommendation would limit drivers to 70 hours on duty in a 
7-day period (with no distinction between driving and other on-duty 
time). It would provide a minimum recovery period of 34 hours, which 
would serve as a restart provision. The ATA recommendation also 
provides an averaging option of 140 hours on duty in 14 days. Under 
this option, according to the petitioners, a driver could accumulate 84 
hours on duty in the first seven days before a 34-hour recovery period 
would be required. A driver taking advantage of this option would then 
be limited to 56 hours on duty over the remaining 5\1/2\ days.

Other Industry Comments

    The alternative proposal of the NPTC would simply maintain the 
present 60-hours-in-seven-days or 70-hours-in-eight-days limitations.
    OOIDA's proposal would place no limits on cumulative time beyond 
the daily restrictions.
    Large truckload carriers generally supported the industry 
alternative of limiting on-duty time to 70 hours in 7 days with 
provision for a 34-hour restart. They also supported the 14-day 
averaging option.
    J.B. Hunt supported the proposed 12-hour work limit in a 24-hour 
workday, but with no cap on the length of the workweek, reasoning that 
drivers would get ample opportunity for restorative sleep every day and 
sleep deprivation should not be an issue. If a cap were necessary, Hunt 
would implement a limit of 140 on-duty hours in 14 days with a 36-hour 
restart period. The 36-hour off-duty break would have to be taken 
during or at the conclusion of 14-day period, which then would start 
another 14-day period. This means a driver could average 10 hours of 
work a day, but could extend to 12 hours of work, as circumstances 
required.
    Landstar commented that it fully supports using 24-hour and 7-day 
work/rest cycles, but found provisions in the proposal that do not make 
sense from either a safety or practical aspect. It recommended a 
limitation of 70 hours driving in a 7-day period, followed by 24 hours 
off duty, which would actually be an 8-day week.
    The State trucking associations collaborated in the ATA alternative 
and therefore must be considered to have supported it.
    PMTA noted that the loss of the 70 hours in 8 days provision under 
the existing rules will cause major schedule disruptions and reduce 
productivity by 15 percent.
    CTA commented that a maximum 60-hour workweek is too restrictive. 
It will aggravate the driver shortage, place more inexperienced drivers 
in more trucks on the road, reduce drivers' incomes, and severely harm 
the economy.
    The unionized LTL carriers demurred on this issue, apparently 
reflecting the position of the MFCA that they were content with the 
present rules and saw no reason for change.
    Many LTL carriers joined in support of the ATA recommendation co-
sponsored by the DLTLCA.
    Con-Way promoted the industry alternative with the averaging option 
of 140 hours over 14 days and a 34-hour restart.
    Overnite, however, took a more conventional position: On-duty time 
should be limited to 62 hours in a 7-day period. That would simply be a 
conversion of the present restriction of 70 hours in 8 days, or 
productivity neutral.
    The small truckload carriers represented by NASTC adhered to a 
philosophy that drivers should have the opportunity to drive during the 
``week'' and be home on weekends with their families. Therefore, they 
recommended the present limit of 70-hours in 8 days be retained. They 
further recommended an exception, which would allow drivers returning 
home to continue at a 10-hours-on and 8-hours-off pace until he reaches 
his destination. So long as the drivers maintained that pace on

[[Page 22476]]

their return journey, there could be no violation of the 70-hours-in-8-
day rule. However, if the drivers exceeded the 70-hour limit on the 
home trip, they would be required to take a minimum of 56 hours off.
    OOIDA took the position that requiring 10 hours off and limiting 
available duty time to 14 hours daily is sufficient regulation to 
assure opportunity to rest for drivers throughout the industry. Any 
further limitations should be entirely at the driver's discretion.
    The NPTC pointed out a concern in the proposal's fixed workweek. 
Its reading of the proposal is that it would force drivers into a 
``fixed seven-day workweek'' with the two consecutive days off at the 
end, regardless of how many hours they worked during the week. 
Therefore, ``a driver could apparently work 24 hours over three days, 
take two days off and then be required to take another two days off at 
the end of the `workweek.' Since the driver clearly would have adequate 
rest by any standard, there is no possible safety rationale for this 
requirement.'' The NPTC recommends retaining the current cumulative 7- 
and 8-day on-duty limits.
    Wal-Mart, on the other hand, preferred the ATA recommendation's 
workweek of 70 hours in 7 days. This would allow Wal-Mart to maintain 
the flexibility of its 7 days on, 7 days off schedule and actually 
enhance safety.
    The PMAA sought clarification of the proposal's ``workweek,'' and 
offered an example. Driver A starts work at 8 a.m. Sunday and quits at 
8 p.m. He continues this for 5 days, ending at 8 p.m. Thursday. After 
the mandatory 56-hour weekend, he could start a new week at 8 a.m. 
Saturday, but would he be violating a ``seven consecutive days'' 
provision.
    The moving industry and the construction industry, each contending 
for a sixth category that would better address their unique needs, had 
problems with the proposed workweek. The moving industry comments 
indicated it needs more flexibility because movers could not operate on 
a fixed 7-day schedule.
    The logging industry also pleaded a hardship because it can only 
transport tree-length loads in daylight hours under State size and 
weight laws, which severely restricts operations in the winter months. 
Their problem dealt more with the fixed nature of a ``workweek'' as 
defined in the proposal, and presented an example of losing the first 
two days of a workweek to rain and the inability to restart a new 
workweek as defined.
    The oil and gas drillers stated that their industry is a 7-day/24-
hour operation, so workweeks have little meaning. In some cases drivers 
are scheduled on rotations of 9 days on and 3 days off to provide full 
coverage.

Safety Advocacy Groups

    Advocates stated that the proposed workweeks were too long, 
focusing on the possibility that an entire 60-hour workweek could be 
spent behind the wheel. It also stated that a 60-hour workweek would 
cause a build up of sleep debt because longer daily shifts adversely 
affect the ability to obtain restorative sleep. The AHAS objected to 
the NPRM's allowance of alternating long and short workweeks and 
weekends, claiming that this only promotes fatigue, primarily because 
the long workweek is followed by the short weekend under the proposal. 
They also objected to the liberal allowances proposed for long work 
schedules for Type 5 drivers (whose driving duties, limited to five 
hours a day, are only incidental to their primary duties). AHAS 
recommended extending the minimum recovery period by 24 hours to 56 
hours, including three periods from 11 p.m. to 7 a.m. and reversing the 
alternating weekends so that long follows long, etc.
    CRASH was pleased the agency was proposing to retain the 60-hours-
in-7 day limitation, but stated that allowing incidental drivers to 
work up to 78 hours in a week was a grave mistake.
    PATT recommended limiting driving to 10 hours out of allowable 12 
hours on duty each 24 hours, and also put it another way, no more than 
50 hours driving in 60 duty hours per week.
    The NSC recognized the issue of cumulative fatigue and supported 
required time off after 7 days.

FMCSA Response

    The agency agrees with industry commenters' concerns that the 
proposed ``fixed and recurring 7-day periods,'' within which duty 
limitations would apply, is simply not practical. The clear inference 
to be drawn from the ``workweek'' definition is that once a driver 
begins a workweek, for example, at 7 a.m. on a Monday, the next 
workweek would also have to start at 7 a.m. on the following Monday. 
When coupled with the required ``weekend,'' carriers saw this as a huge 
infringement on their ability to maintain productivity. A driver in a 
weather-sensitive occupation could start work on Monday after a weekend 
off, then be idle for Tuesday and Wednesday due to rain, return on 
Thursday to resume the workweek with no credit for the Tuesday-
Wednesday ``weekend.''
    The flaws and unintended consequences in the proposed fixed 
workweek are undeniable. A strictly fixed workweek was what the agency 
intended, to be consistent with DOL regulations. Throughout the freight 
industry, particularly but not limited to the truckload sector, 
established workweeks are rare. Any attempt to ``shoehorn'' existing 
operations into some concept of what ought to be, as at least one 
commenter observed, is ``fraught with peril.'' The resulting costs in 
lost productivity would probably outweigh benefits.
    The NPRM did propose to place limits on on-duty time over the 
course of a seven-day period to prevent accumulation of sleep debt. 
Abandoning the idea of a fixed workweek means that an alternative must 
be found, and at least three are readily available. The first is to 
define the workweek in terms of time between ``weekends.'' In other 
words, the so-called week would start to run after the accumulation of 
a stated period of consecutive off-duty time.
    In terms of the NPRM, one alternative would allow the 32-hour 
period containing two periods between midnight and 6 a.m. to be used as 
a restart provision. In seeking clarification, the representative from 
the DLTLCA had pointed out that the proposal's ``weekend'' provision 
only made sense if it were treated as a restart. Whether the proposed 
``weekend'' could survive as a restart mechanism, or whether another 
period would be preferable, are discussed elsewhere in this document.
    The second alternative is to retain the limitations in the existing 
rules with adjustments, in order to redirect the restriction toward 
duty time rather than driving time. This option is similar to what 
private carriers proposed. The current rules restrict any further 
driving after a driver accumulates 60 hours on duty in a seven-day 
period or 70 hours on duty in an eight-day period. If the focus were to 
be on duty time, the restriction would simply limit drivers to 60 hours 
of any duty in a seven-day period and 70 hours in an eight-day period. 
This is the most neutral alternative. It would provide a floating block 
of time, as in the existing rules.
    The availability for duty would be determined by looking back over 
the immediately preceding seven or eight days, similar to the way 
availability for driving is determined under current rules. 
Fortunately, potential negative impacts on productivity did not 
materialize. FMCSA found that in the 7-day option, for example, an LTL 
driver

[[Page 22477]]

may routinely end a run at the home terminal in the 60th hour. The 
driver's routine would include assisting in unloading, which is 
permitted under the existing regulations, and would continue to be 
allowed under the alternative being adopted today.
    The third possibility is the ATA recommendation, which is more 
complex and requires some explanation. The first part of the proposed 
``weekly on-duty period'' is straightforward. A driver may not be on 
duty more than 70 hours in any seven consecutive days. This would 
replace the current 60-in-seven and 70-in-eight restrictions, except 
that the ATA recommendation refers to duty time and not driving. The 
industry's interpretation of the 14-hour duty segment could also 
confuse the construct of a workweek. Use of the flex-time provision 
should eliminate this confusion. Under the ATA recommendation, the 
``seven-day period'' would end with the beginning of 34 consecutive 
hours off duty. In other words, once a driver is off duty for a minimum 
of 34 consecutive hours another seven-day period would begin to run 
when the driver resumes work.
    FMCSA calculates that if each 14-hour block of productive time were 
extended by an average of 4 hours to compensate for meal periods, rest 
breaks, and off-duty downtime at shipper facilities, the result would 
be six 18-hour ``workdays'' in the seven-day period. This example may 
be somewhat extreme, but no more so than some of the examples presented 
in the comments to demonstrate lost productivity.
    The second part of the industry's ``weekly on-duty period,'' i.e., 
the 14-day averaging option, is a little more complicated. The industry 
petition likened its 140-hours-in-14-days averaging option to the 
agency's proposed option for two-week averaging. Under the agency's 
proposal, long-haul drivers could opt to accumulate 72 duty hours in 
the first week, followed by 48 duty hours in the second week for a 
weekly average of 60 hours. The purpose of the agency proposal was to 
enable long haul drivers to use a short weekend while on the road and 
reserve a longer weekend for the time when they were in their home 
area. It was not well received for several reasons, particularly 
because of confusion about the ``fixed workweek.'' Invariably, 
according to commenters, drivers would be stranded in a remote location 
and away from their families for their long weekend, a new version of 
Murphy's Law, apparently.
    The industry averaging option would purportedly allow drivers to 
average 10 duty hours a day over a 14-day period by accumulating up to 
84 on-duty hours in the first six days (6 days times 14 hours per day). 
After 34 consecutive hours off duty, the driver would then be limited 
to 56 hours on duty during the second seven consecutive days. If he 
accumulated those 56 hours in the following slightly more than three 
and a half days, he would have to take a minimum of nearly three full 
days off before driving again. If Murphy's Law held true, however, 
those drivers would still inevitably find themselves in a remote 
location for those three days. And the three days would be mandatory 
off-duty time, even under the ATA recommendation.
    This flexibility could present enforcement problems, as drivers 
seeking to use the 14-day option could be found in violation of the 70-
hours-in-seven-days restriction before they demonstrated compliance 
with the second week's limitation. Reversing the long and short 
workweeks could solve the enforcement problem, but it would become too 
complicated an issue for roadside enforcers. It would also require 
carrying 14 days worth of logs or using an on-board recording device 
capable of storing 14 days of duty-time records. Another issue would be 
the operation of the 34-hour off-duty provision as a restart under the 
ATA recommendation in the context of the 14-day option. Drivers and 
carriers could easily be confused after the second period and return to 
work after a 34-hour break without fully repaying the time owed from 
the first week.
    Acute and cumulative sleep debt arises from sleep deprivation 
generally, and particularly loss of sleep during nighttime hours. The 
argument over workweeks places too much reliance on imperfect science. 
The comments of the ACOEM were particularly instructive in this regard. 
The ACOEM recognized that fatigue is an important concern for both 
safety and productivity in commercial driving, but cautioned against 
placing too much emphasis on what it considers incomplete science. Only 
the ACOEM recommended deferral of any further action on the proposal 
until an adequate scientific basis is available.
    The agency agrees there is not sufficient scientific or operational 
justification for a fixed 7-day week. The economic impact of such a 
``week'' on scheduling efficiencies and driver compensation is simply 
too great, given the uncertain benefits in fatigue reduction.
    The agency has concluded that the current 60-hour-in-7-day and 70-
hour-in-8-day limitations continue to be generally acceptable for CMV 
drivers operating in the United States.

Weekly Recovery Periods

General Concept

    Having already addressed daily off-duty periods, two related issues 
are dealt with in this section. They are weekly rest breaks or 
``weekends'' and restart provisions. These concepts are related, but 
could have entirely different effects depending on how they are 
implemented. The mandatory weekend recovery period was perhaps the 
single most criticized element in the proposed rules.
    In the NPRM, the agency introduced the concept of a weekly off-duty 
period or ``weekend,'' which was intended to provide a regularly 
recurring opportunity to compensate for any accumulated sleep debt. The 
NPRM noted ``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.''
    Several commenters correctly pointed out that imposing a regulatory 
requirement for a weekly off-duty period containing two midnight to 6 
a.m. blocks assumes that every driver is subject to weeklong sleep 
deprivation. The agency may have overreached trying to prevent the most 
extreme abuses by imposing restraints on the whole driver population. 
There are numerous examples in the comments and testimony to the effect 
that most drivers have ample opportunity for normal sleep every night 
and presumably would never be subject to severe sleep deprivation as a 
result of their working conditions.
    The most frequent objections to the agency's ``weekend'' proposal, 
however, were the economic and safety implications of restricting 
nighttime driving. Comment after comment stated how requiring two 
consecutive nights off would create havoc on the already overcrowded 
highways in the daylight hours. The requirement would also, according 
to numerous commenters, disrupt current and entirely safe business 
operations and result in much greater replacement costs than forecast 
in the preliminary regulatory evaluation.
    The proposal did not offer any opportunity for a restart of the 
weekly clock after a certain amount of consecutive off-duty time had 
accumulated. The agency even proposed to restructure the statutory 
exceptions in Sec. 345 of the NHS Act, within the proposed weekend 
recovery period. The

[[Page 22478]]

only reason for a restart provision is to allow increased productive 
time notwithstanding the general regulatory requirements when 
consecutive off-duty hours substantially exceed daily minimums. In 
other words, restarts are exceptions to the general rule. The agency 
considered a general 24-hour restart in 1992, but withdrew the proposal 
when it determined that there was insufficient data available to 
support the action on safety grounds. Comments to the NPRM raised the 
issue again, both in objecting to the treatment of the statutory 
exceptions and in offering an alternative to the agency's 1992 
proposal.

Industry Comments

    The for-hire industry offered no alternative weekly or other 
greater-than-daily recovery period, except in the context of its two-
week averaging alternative to cumulative restrictions discussed 
elsewhere in this document. Its 70-hours-in-7-days cumulative period 
would operate as the present regulations do, i.e., look back over the 
past seven days to determine if duty time is available to a driver. The 
DLTLCA petition did, however, request a cost/benefit analysis on an 
extended rest period within the range of 24 to 34 hours, which could 
then serve as a restart. The specific recommendation of the petitioners 
was for a 34-hour restart provision that would effectively end a 
consecutive seven-day period within which accumulation of duty time is 
taking place. Once the driver had been off duty for 34 consecutive 
hours, which would include a mandatory 10-hour daily recovery period, 
the petition argued that the driver should be considered fully 
recovered so that another seven-day period could start to run. The 34-
hour period was conceived by combining one 10-hour off-duty period with 
one full 24-hour day, which could return the driver to the same cycle 
he was operating when the 34-hour period started. This could add an 
extra 14-hour shift every 7 days. It would also enable short weeks to 
be restarted. For example, a flex-board driver could be called in to 
work two consecutive days of 14-hour shifts at the beginning of a 
seven-day period and then be idle the following day. Once his off-duty 
time amounted to 34 consecutive hours, a seven-day period would begin 
all over again.
    Landstar stated that its review of the available research and its 
experience lead it to believe the NPRM was flawed. Landstar cited 
Cabon, Mollard, and Coblentz, Sleep Deprivations and Irregular Work 
Schedules, Proceedings of the Human Factors Society 35th Annual 
Meeting--1991, Paris, France and McCartt, Rohrbaugh, Hammer, and 
Fuller, Factors Associated with Falling Asleep at the Wheel Among Long 
Distance Truck Drivers, Accident Analysis and Prevention. Landstar used 
these studies to argue that ``the research shows that a period of 
sleep, no matter how long, cannot `reset' or restore the human body. 
Sleep, which has been `lost', cannot be `made up.' If an operator 
misses sleep, that missed sleep cannot be restored by a two day off-
duty break. Studies also indicate that rest on the road is not the same 
quality of rest one experiences when at home.''
    Landstar also stated that ``at the same time, `missed' sleep is 
important. The effect of lost sleep is cumulative. The impact of lost 
sleep is compounded as an operator misses more and more sleep. Yet, 
when it is time for the operator to rest,'' Landstar cited Coleman, 
Richard, Wide Awake at 3:00 a.m. by Choice or by Chance, as showing 
``the length of his sleep is affected most by (1) his body time (i.e., 
where he is in his circadian rhythm) and (2) the cumulative amount of 
his sleep deprivation.'' Landstar argues that ``when it is time for the 
operator to rest, once he sleeps for the length of time required by his 
body (as affected by his body time and amount of sleep deprivation), he 
is restored and ready to resume alert performance of his activities. In 
most every instance, the amount of rest required by an operator will be 
substantially less than the required 32 to 56 hour period set forth in 
this proposed rule.''
    Landstar stated that Cabon, Mollard, and Coblentz further ``show 
that rest is affected not by the specific hours (i.e., midnight to 6 
a.m.) that one rests, but instead by an operator sleeping according to 
his own established regular schedule of working and resting, whatever 
that regular schedule may be for the individual operator. Studies show 
that it is irregular sleeping schedules that lead to troubles with 
biological rhythms. Sleeping according to the operators' established 
schedule provides rest, but sleeping during abnormal hours affects the 
quality of sleep and can cause sleep deprivation.'' In the context of 
earlier starting times, Landstar also found scientific support for the 
notion that regular hours of sleep, no matter when they occur, are 
preferable.
    The NPTC alternative for private carriers contained no greater-
than-daily recovery period, preferring to operate under the present 
rule's restrictions on cumulative operations. They did note, however, 
that ``the flexibility to provide non-consecutive days off is critical 
to many private fleets and is adequate for drivers to achieve needed 
rest.''
    The OOIDA proposal specifically rejected any mandatory recovery 
period beyond the daily 10 hours of rest.

Safety Advocacy Groups

    The AHAS believed a minimum weekly off-duty time block of 32 hours 
is too short to counter fatigue and sleep debt. They contended that 
drivers would regularly violate the ``weekend'' recovery period because 
of the difficulty of enforcement. They also concluded that even two 
consecutive nights off is inadequate to compensate for the accumulated 
fatigue caused by longer shifts. Finally, the AHAS recommended 
extending the minimum recovery period by 24 hours to 56 hours, 
including three periods from 11 p.m. to 7 a.m.

FMCSA Response

    The science supports the notion that drivers should be provided 
recovery periods after a sustained period of daily work to avoid the 
build-up of cumulative fatigue and/or sleep deprivation. This notion 
was the basis for the proposed rule that every driver must have a 
``weekend'' off every seven days, i.e., a period of time including two 
consecutive midnight to 6 a.m. periods. The agency was attempting to 
ensure that drivers had a weekly opportunity to obtain restorative 
sleep and avoid a significant build up of a sleep deficit. Industry 
comments criticized what they considered the lack of scientific 
evidence to support the need for an extended period of rest. Depending 
upon the driver's schedule, a separate midnight-to-6 a.m. recovery 
period may be unnecessary, or it may be necessary after a period less 
than 7 days duration if the driver has been assigned night work.
    The industry's position is that the required ``weekend'' reflects 
the agency's intent to significantly curtail nighttime driving. That is 
incorrect. The agency clearly stated in the NPRM that it was not 
acceding to the Expert Panel's recommendation on limiting nighttime 
driving. However, the NPRM with an off-duty period including two 
midnight-6 a.m. periods (effectively 11 p.m. to 7 a.m.) would have 
caused some displacement of drivers from nighttime duties.
    The proposed rules contained a requirement for a daily recovery 
period providing the driver a regular opportunity to obtain restorative 
sleep and hence avoid acute sleep deprivation in large measure. In many 
cases, drivers can sleep every night; others obtain mostly nighttime 
sleep; and some rarely sleep at night. We know the science

[[Page 22479]]

indicates that, because of the circadian influence, sleep during 
daylight hours is generally less restorative than sleep at nighttime. 
That in itself can lead to sleep deprivation and consequent build up of 
sleep debt, but not always if carriers carefully monitor schedules to 
avoid too many successive nights of work and if drivers follow proper 
sleep regimen. The alternative would be to control the cause of sleep 
deprivation by limiting the hours that may be worked in a given period. 
Although there is nothing scientific or magical about seven days, the 
present rules have been employing that time period as a baseline for 
many years.
    The present rules impose restrictions on driving after 60 duty 
hours in seven days for drivers of carriers who operate only six days 
per week, or 70 duty hours in eight days for those who operate every 
day of the week. Simply continuing those limitations in a revised 
proposal including a 10-hour daily recovery period in a flexible day 
should satisfy many carriers, particularly LTL carriers and local 
delivery operators. As noted earlier, the restrictions in the existing 
rules only apply to further driving, so that a violation of the rule 
occurs only when the driver begins or continues driving after the 
prescribed duty time has accumulated. Therefore, a driver could easily 
squeeze in a few more non-driving duty hours at the end of the workweek 
(or after 60 or 70 duty hours had already accumulated in the 
corresponding period).
    An alternative would be to target accumulated duty time and apply 
the restrictions accordingly. That would mean that further on-duty time 
must cease when 60 or 70 duty hours within the corresponding period 
have accrued. The loss of those few additional non-driving duty hours 
would undoubtedly raise costs in some segments of the industry.
    The ATA recommendation would combine the 60- and 70-hour 
limitations into one 70-hours-in-seven-days limit, and would apply it 
to all duty time. Therefore, the opportunity to squeeze in extra duty 
hours after completing driving responsibilities in the 70th hour would 
not be available. At least one carrier calculated that a limitation of 
61.25 hours in seven days is the mathematical equivalent of 70 hours in 
eight days. It did not attempt to factor in the accrual of any 
additional duty time possible under the present regulations. The DLTLCA 
alternative also provided for a 34-hour restart, which would make it 
possible to accrue as many as 84 duty hours in any seven-day period. 
The ATA recommendation, therefore, would provide opportunities for 
considerable gains in productivity.
    After reviewing the research, comments, and RIA, the FMCSA is 
convinced that a minimum 34 consecutive hours of off-duty time can 
begin a new 7- or 8-day period, during which a driver could drive or be 
on duty a cumulative total of 60 or 70 hours (i.e., the 7- or 8-day 
``clock'' is restarted by a 34-hour off-duty period). The FMCSA 
selected 34 hours based on the industry's arguments that it be based on 
scientific guidance, operational needs, common sense, and realistic 
assumptions. ATA cited Carskadon and Dement, ``Effects of Total Sleep 
Loss on Sleep Tendency,'' (1979) which they say suggests that people 
who have experienced total sleep loss, or have accumulated significant 
sleep debts over an extended period, may need 2 nights of sleep to 
completely recover. ATA also argued that ``a recovery and restart 
period of 34 hours off-duty will allow a driver to have two 
uninterrupted sleep periods of 7-8 hours * * * Moreover, compliance 
with the minimum 34 hours would result in a driver restarting work at 
approximately the same time of day as his or her prior shift. This will 
avoid the shifting of daytime to nighttime schedules which research 
indicates can disturb the circadian rhythm and decrease alertness.'' 
This allows drivers to get at least two sleep periods, without 
restraining the driver by the unworkable midnight-to-6-a.m. period from 
the NPRM.
    The PATT alternative did not provide a ``restart'' provision. The 
ATA alternative provided that drivers who obtain 34 consecutive hours 
of off-duty time could begin a new 7-day period, during which they 
could drive or be on duty a cumulative total of 70 hours (i.e., the 7-
day ``clock'' is restarted by a 34-hour off-duty period).
    The FMCSA is selecting its staff alternative incorporating a 34 
consecutive hour off-duty time can begin a new 7- or 8-day period for 
the final rule because it provides the most favorable combination of 
increased driver alertness and reduced fatigue-related incidents.

Short Rest Breaks During a Work Shift

General Concept

    In proposing a daily work/rest cycle, the FMCSA stopped short of 
dividing the 24-hour period into two blocks (on and off duty), as was 
proposed by industry. The agency sought to place further restrictions 
on the 14-hour block. One of the reasons for the restriction was to 
acknowledge operational differences among motor carriers. Another 
reason was the proposed elimination of the distinction between driving 
time and other on-duty time. The principal reason, however, for 
reserving two hours out of the 14-hour block for rest periods was to 
ensure that road drivers, who spend most of their time in the driving 
mode, were afforded the opportunity to improve safety by alleviating 
potential drowsiness through strategic use of break time. The FMCSA 
assumed that drivers would rarely, if ever, spend an entire 14-hour 
period behind the wheel. There are simply too many naturally occurring 
personal and occupational demands that would require the driver's 
presence elsewhere. The FMCSA stated, therefore, that regularizing such 
personal time away from driving would not be a burden on productivity 
and would empower drivers to insist upon necessary break time.

ATA's Recommendation

    Behind the ATA's recommendation in converting to a 24-hour work/
rest cycle was apparently the understanding that whereas 10 consecutive 
hours would belong to the driver, the remaining 14 hours belonged to 
the carrier. In the NPTC proposal, only nine hours would belong to the 
driver. As noted earlier, an aspect of the ATA recommendation that the 
FMCSA considered problematic is that personal breaks taken by the 
driver during the 14-hour block would only extend that block thereby 
upsetting the integrity of a recurring 24-hour work/rest cycle.

Other Industry Comments

    Industry was uniformly opposed to mandatory rest breaks for a 
variety of reasons. The theme running through the comments was that the 
requirement is unnecessary.
    The ATA advised the agency to promote, but not mandate, rest breaks 
that do not diminish driver's work time.
    The PMTA commented that requiring rest breaks would cause driver 
shortages. PMTA stated there is enough time in the day for drivers to 
rest, if necessary, while maintaining a productive schedule. It also 
contended that the proposed rules do not enable drivers to take 
advantage of downtime at loading docks.
    The NPTC asserted that mandating breaks interferes with the 
carrier's ability to manage distribution schedules. It also argued that 
the paucity of available rest areas would make it difficult to find a 
place to take breaks.
    The National Soft Drink Association stated that required breaks 
adding up to two hours for Types 1, 2, and 5 are

[[Page 22480]]

unnecessary and costly. It contended that breaks occur naturally 
throughout the workday.
    The IBA also stated that flexible rest breaks were already being 
taken at the driver's discretion.
    ARTBA found that the requirements for two hours of uninterrupted 
breaks and the 5-hour driving limit under Type 5 operations were both 
too restrictive and unwarranted intrusions by government into employer-
employee relationships.
    The Institute of Makers of Explosives observed that the 
Department's own Hazardous Materials Regulations requiring explosives-
laden vehicles to be attended at all times precludes the mandatory 
breaks provided in the proposal.
    Intermodal operators stated that mandatory breaks, along with the 
other proposed requirements, would adversely impact their operations, 
and probably cause many companies to go out of business.
    American Freightways opposed mandatory breaks, believing that 
drivers should determine if, when, and for how long breaks are 
necessary.
    ABF Freight Systems noted an inconsistency in the proposal. 
Although the proposal stated that Types 1 and 2 drivers are more likely 
to be involved in an accident, they are allowed to log breaks off duty, 
thus preserving on-duty time. Type 4 drivers, who go home and sleep in 
their own beds every night, are limited to 12 hours per day, including 
lunch and breaks.
    Worldwide Van Lines supported the ATA's 14-10 breakdown so long as 
the 14 hours are productive hours. It might consider a one-hour break 
that is currently in vogue in the moving industry. It would prefer to 
allow carriers and owner-operators the flexibility to schedule rest 
periods consistent with safety and operational requirements.

Safety Advocacy Groups

    Although supportive of rest breaks, AHAS had some reservations. 
First, It stated that drivers will abuse them and spend the time on 
non-driving duties, and second, it was concerned with a driver's post-
nap sleep inertia and how it might contribute to a crash before the 
driver was fully awake after the nap.

FMCSA Response

    With a limitation of 11 hours on daily driving, the FMCSA believes 
the need for additional break time diminishes. Rest breaks are still a 
significant tool in combating fatigue and FMCSA will encourage their 
use. But the difficulty in enforcing required breaks reduces the 
likelihood of realizing the benefits intended.
    The ATA and PATT alternatives did not incorporate any breaks 
occurring during a tour of duty. The FMCSA staff alternative provides 
that any breaks occurring during a tour of duty will not extend the 
work day.

Economic Impacts

    Perhaps the gravest concern expressed by the motor carrier industry 
was the projected cost of the proposed rules. Virtually all of the 
industry commenters took issue with the agency's cost/benefit analysis, 
believing, for the most part, that the agency exaggerated the benefits 
in terms of accident avoidance and significantly underestimated the 
compliance costs.

Proposed Costs

    Comments from the industry side reflected the common theme that the 
costs associated with the proposed rule were prohibitive, much higher 
than the costs projected by the agency. Predicted consequences were not 
limited to individual company failure, but extended to a ruinous impact 
on the economy. Other commenters lamented the economic condition of the 
motor freight industry, which they regarded as critical. Operating as 
they do on thin margins, many companies contended that they could not 
absorb the increasing price of fuel, let alone the regulatory costs 
proposed by DOT and OSHA (in its ergonomics rule).
    The increased costs were primarily associated with the number of 
drivers and vehicles required to deliver the same amount of freight 
with what was perceived to be substantially reduced productive time 
allowable under the proposal. Estimates varied, but it appeared that 
most commenters arrived at their conclusions by applying a straight-
line comparison of the maximum amount of productive time for each 
driver allowable under the present rules with the maximum duty hours 
stated to be allowable under the proposal.

Industry Reaction

    The position of the motor freight industry on the economic impact 
of the proposal was perhaps best summarized in the DLTLCA petition 
filed on November 29, 2000. This association represents regional less-
than-truckload (LTL) carriers engaged in transportation and 
distribution of LTL freight locally and regionally. The petitioners 
found the preliminary economic evaluation, particularly the cost/
benefit analysis, to be ``woefully inadequate.'' They contrasted this 
effort with a study commissioned by the FHWA in 1980-1981 to assess the 
economic and safety impacts of proposed revisions to the HOS 
regulations.
    Regarding the proposed rules, the DLTLCA surveyed 150 LTL carrier 
members, which concluded the proposal would increase costs by 5 
percent. The regional LTL market is $10 billion and the national LTL 
market is another $10 billion. So that industry's estimated costs would 
be three times what the FMCSA estimated.
    The ATA stated that the trucking industry employs 9.7 million 
people, including three million truck drivers, has annual revenues of 
$486 billion (1998 estimates) and logs 414 billion miles on the road 
each year (110 billion miles by large trucks over 16.5 tons).
    The ATA reported the results of a survey it conducted of members, 
which estimated that the average loss of productivity would be 17 
percent. ATA instructed the commenters to compare drivers' logs in 
actual operation with ``what they think could be done under proposed 
rules.''
    The ATA also commissioned the National Economic Research 
Association (NERA) to review the agency's preliminary regulatory 
evaluation, particularly the cost/benefit analysis. The entire NERA 
report was submitted to the docket by the ATA, but the primary findings 
are set forth here for ease of reference:
    (1) The FMCSA's economic analysis failed to support the proposed 
rule. After corrections for what were identified as methodological and 
mathematical errors and omissions, NERA's economic analysis determined 
that the cost of the proposed rules were more than five times as large 
as the benefits--for a net loss of $15.4 billion over ten years;
    (2) The FMCSA's bundling of the rule's components obscured the 
Administration's own findings. Separating the costs and benefits 
associated with the paperwork reduction component of the rule revealed 
that the rule's other components--a reduction in driver's hours and an 
on-board monitor requirement--failed a cost-benefit test, even based on 
the FMCSA's own assumptions;
    (3) The FMCSA understated the costs of compliance by 
underestimating the number of new truck drivers required; by ignoring 
the cost of non-wage benefits, recruiting and training, additional 
trucks, and supporting personnel and infrastructure; and by 
underestimating the costs of on-board monitoring equipment. Correcting 
for these errors increased the cost of the

[[Page 22481]]

proposed rule by $15.7 billion over the next 10 years. NERA considered 
this to be a conservative estimate, as many other costs, which are 
difficult to quantify but which could be substantial, were not 
included;
    (4) The FMCSA overstated benefits by overestimating the number of 
fatal crashes attributable to truck driver fatigue. Once the baseline 
was adjusted for crashes from other causes, benefits fell by $3.1 
billion over 10 years. NERA estimated that the proposed rule would lead 
to approximately 19 avoided fatalities per year, compared to the 
FMCSA's finding of 115 per year;
    (5) The FMCSA failed to substantiate the rule's potential 
effectiveness. The Administration stated the number of fatigue-related 
fatalities would fall by 20 percent--without reference to any specific 
studies or statistical support. In fact, available crash statistics 
indicate that only 3 percent of fatigue-related fatalities can be 
attributed to drivers driving more than 12 hours; and
    (6) The FMCSA failed to recognize the negative consequences of the 
rule for small regional and long haul trucking companies. Many of these 
companies operate on thin profit margins and face competition from 
other modes unaffected by the proposed rule. These companies also face 
increased costs from other proposed regulations, such as OSHA's 
ergonomics rule. Consequently, they could not readily absorb additional 
costs or easily pass additional costs through to their customers.
    The ATA argued that the agency ignored numerous factors when 
conducting its benefit-cost analysis, including the number of new 
drivers, additional wages, driver non-wage benefits, recruiting costs, 
additional equipment, supporting infrastructure costs, additional 
maintenance, insurance premiums, LTL restructuring, electronic on-board 
recorder (EOBR) purchase and maintenance, and increased inventory 
carrying costs. The ATA did not rely exclusively on the NERA report for 
this criticism, particularized in its comments, and was even critical 
of NERA for being too conservative.

Other Industry Comments

    Although many motor carriers estimated substantial costs arising 
from various aspects of the proposal, their computation methods were 
not always clearly articulated.
    Covenant Transportation, a truckload carrier, shed some light on 
the methodology used by many carriers to estimate the costs of the 
proposal on their operations. Covenant compared the number of 
productive hours per month available to a driver under the existing 
rules (280) with the number of productive hours it stated would be 
available under the proposed rules (240) and arrived at a difference of 
17 percent. It did the same comparison for vehicles and concluded that 
17 percent more trucks would be needed. Covenant opined that converting 
to relay operations would not work. The loads do not match up. It 
stated the trucking ``industry is very, very sick.'' The new rules 
would drive the small operators out of business. The main cause of 
sickness, according to Covenant, is driver pay. The company increased 
pay four times in the last four years so that the average at the time 
it submitted comments was about $42,000 per annum, which it said was 
not enough. Whatever enough may be, ``until you reach that magic 
number, turnover will continue to kill you.''
    J.B. Hunt Transport, Inc., a carrier with one of the largest 
truckload operations, found that if the proposal were not amended, 
productivity would decrease 2 percent on face value. That estimate was 
based on comparing 61.25 hours a week permitted under the present 70-
hours-in-8-days limit with 60 hours in 7 days as proposed, but noted 
that this was only the surface. The biggest negative impact would come 
from the rigidity of the proposal. The loss of flexibility, if not 
corrected, would cost Hunt an estimated $250 million per year and 
increase rates to customers by an estimated 20 percent.
    Contract Freight, Inc. (CFI), a large truckload carrier, did an 
analysis by mile, which it noted is the bottom line in trucking. 
Comparing logbooks of current drivers with what CFI could project under 
the proposed rules showed a 13 percent reduction in miles. CFI also 
included logistics costs, relocating facilities, positioning drivers, 
etc. that would add another 7 percent reduction in miles. To move the 
same amount of freight that it does with 2100 tractors, CFI estimated 
that it would need 400 more, and with a ratio of 2.9 trailers to each 
tractor, CFI would need almost 1200 more trailers. CFI stated that it 
used to do the most relays of any trucking company, but believed that 
it would not be possible to do the same volume of relays under the 
NPRM. CFI calculated average driver trips for one of its ``priority 
teams,'' which runs about 18,000-19,000 miles per month. An average 
single CFI driver runs about 10,500 miles per month, while a low 
producing single CFI driver will run about 9,000.
    Schneider National, Inc. with its affiliated companies employ in 
excess of 15,000 drivers with a fleet of over 13,000 tractors and 
34,000 trailers. Schneider stated that the FMCSA dramatically 
underestimated the financial costs of its proposal and, by focusing 
only on fatigue-related crashes, FMCSA also failed to recognize that 
the proposal might result in an increase in the number and severity of 
other accidents if the proposal were implemented as drafted. The 
limitation of 12 hours on duty in any 24-hour period, together with the 
``weekend,'' will reduce productivity by 25-30 percent and require an 
additional 100,000 inexperienced drivers and vehicles to move the same 
amount of freight.
    Werner Enterprises, Inc. operated 7,425 trucks, 6,225 of which are 
company-owned and 1,200 of which are independent contractors. Werner 
stated that the proposal was at best safety neutral, but extremely 
costly. It supported ATA's analysis of the proposed rule and did 
provide some detailed analysis of the economic impact of the proposal 
on Werner and its drivers. Arriving at a 20 percent productivity 
decrease, meaning also that drivers would lose 20 percent of their 
income, Werner projected an annual operating cost increase of $290 
million. If Werner were to stay in business, these costs would have to 
be passed on to shippers and consumers.
    Bestway Express, employing 325 drivers, cited the U.S. Chamber of 
Commerce's crediting of trucking for the sustained economic boom 
through calendar year 2000, noting that efficient transportation took 5 
percent off the cost of consumer goods. For the industry as a whole, 
Bestway stated that the proposal would add $100 billion for inventory 
costs, $50 billion for additional trucking services, $25 billion for 
inventory carrying costs and that it would cause U.S. jobs to be lost 
to Mexico.
    NASTC stated that under current rules, a driver could drive up to 
15 hours in any given 24-hour period, giving him a range of 750 miles. 
Under the proposed rule, his range would be reduced to 600 miles. 
Because of a ``pay-to-wait'' provision, a requirement in the proposal 
to log waiting time as on-duty time, NASTC predicted the productivity 
loss could go to 25 to 33 percent.
    The ATC Leasing Company stated that it represents a majority 
portion of the truck transport industry in the country. It involves the 
drive-away operation of newly manufactured trucks from factories to 
dealers or to intermediary facilities for modification. In 1999, ATC 
reports that 540,443 Class 5 through Class 8 vehicles were produced in 
the

[[Page 22482]]

United States. ATC estimates it delivered approximately 75 percent of 
those vehicles. The vehicles are usually delivered in saddle-mounted 
combinations with a to-be-delivered truck as the power unit. Upon 
reaching his delivery destination, a driver typically removes the 
temporary identification devices and proceeds by public transportation 
to his next pick-up point.
    State trucking associations generally concluded that the proposal 
did not account for significant costs.
    The U.S. Chamber of Commerce believed the FMCSA's estimate of costs 
per driver was unrealisticly low.
    The Intermodal Association of North America's (IANA) survey 
reported direct operating cost increases of 20 to 30 percent, primarily 
from the reduction of on-duty time limits from 15 to 12 hours a day and 
the mandatory off-duty periods when shifting from one type to another.

Advocacy Groups

    The Mercatus Center of George Mason University conducts a 
Regulatory Studies Program (RSP) dedicated to advancing knowledge of 
the impact of regulations on society. The proposed HOS rulemaking for 
truckers was chosen for such an assessment, and the resultant report 
was submitted as a comment to the docket. It concluded ``the DOT and 
FMCSA estimates of the likely effects of the proposed regulation are 
tenuous if not faulty on a number of bases.''
    The RSP recommended better enforcement of current rules. Built-in 
flexibility and common sense rules appeared to RSP to present a better 
field for improving highway safety.
    The National Sleep Foundation described the NERA study submitted by 
ATA as nothing more than an advocacy piece that failed to look at 
alternative scenarios. The NSF considered the analysis in the report to 
be a series of conclusions and self-serving narrative with no 
quantification.
    Safety advocates and other public interest groups faulted some of 
the methodology used by industry to compute expenses and were critical 
of industry's lack of foresight in adapting to change and in 
confronting the inefficiencies they state are so prevalent in dealing 
with shippers and receivers.

Proposed Benefits

    In addition to criticizing the NPRM's cost calculations, many 
commenters also found fault with the allegedly overestimated benefits. 
The industry in general took issue with the figures used by the agency 
in projecting the safety benefits to be gained from the proposal. 
Although acknowledging that there is a serious fatigue-related safety 
problem, they stated that it does not approach the magnitude assumed by 
the agency to justify the draconian solutions proposed.
    A basic reaction to the proposal was the issue of problem 
identification, and many distanced themselves from what they said was 
the core problem group: long-haul, for-hire freight carriers. The 
motorcoach industry was particularly adamant about the elemental 
differences between hauling freight and transporting passengers. They 
did not argue, as others did, for an exemption from regulation, rather 
they insisted that no evidence had been developed or presented 
indicating there was any safety problem arising from bus industry 
performance under the existing regulations. Therefore, in their view 
disruptive change was totally unwarranted.
    Short-haul distributors of wholesale and retail commodities 
distinguished themselves from long-haul carriers and cited the agency's 
own studies showing a lesser safety problem in their operations. The 
construction industry, for example, noted that its truck operations are 
short-haul, sporadic, and incidental to other functions, and therefore 
are not at risk to accumulate fatigue while driving. Construction 
industry commenters also stated that the NPRM would actually impede 
safety by extending the time construction zones remain open and 
delaying the completion of safety improvements being made to the 
highways.
    Utility companies strongly contend that the nature of their work 
and services warranted total exclusion from HOS regulations. Limiting 
the ability of utilities to respond to service interruptions would be 
much more likely to create other safety problems than to prevent 
crashes involving responding vehicles, they stated.
    LTL carriers, where union representation is more prevalent, 
commented their drivers' schedules conform to the existing rules. The 
carriers believe these schedules, negotiated with the drivers through 
the IBT, eliminate many of the fatigue-inducing factors while 
preserving the needed flexibility that they find so lacking in the 
proposal.
    The LTL industry believes that if particular segments of the 
regulated community are already performing safety at or close to the 
maximum allowable hours under the existing rules, there could be no 
benefits from changing the rules applicable to them, only costs.
    As noted above by the NERA and RSP analyses, as well as other 
commenters, most of the benefits cited by the NPRM involved paperwork 
savings, which are not safety improvements. Virtually every commenter 
who noted the understated costs of increased drivers and equipment 
needed to implement the proposed rules also noted that the NPRM did not 
account for the safety impact of more trucks and more inexperienced 
drivers on the highway at more congested hours of the day.
    Industry commenters cited studies done by and for the DOT showing 
fatigue to be a factor noted in police reports in only 1.5 to 3.0 
percent of all truck-involved fatalities. The ATA and others pointed 
out what they considered a basic flaw in the agency's calculation of 
lives saved by the proposal, i.e., 20 percent of the fatalities 
attributable to fatigue. Some commenters noted that, even using what 
they considered an inflated attribution, other agency studies show the 
truck driver to be at fault in no more than 30 percent of truck-
involved crashes. Therefore, instead of using 775 fatalities resulting 
from fatigue related crashes as the basis for arriving at 155 lives 
saved (20 percent), the agency should have used only 30 percent of the 
775 figure, or 233. Computing its stated 20 percent reduction from that 
figure produces a maximum of about 47 lives saved.
    The ATA pointed out what it considered additional flaws in the 
FMCSA's computation of projected benefits, including these four:
    (1) FMCSA overestimated the role of fatigue in truck crashes. The 
agency estimated 15 percent of all truck-involved fatal crashes were 
``fatigue-relevant,'' a new, non-scientific term coined by FMCSA for 
this rule. The 15 percent figure combined the 4.5 percent of those 
crashes where fatigue was the primary cause with another 10.5 percent 
where fatigue was assumed to have contributed to mental lapses that 
caused the crash. Citing several studies in the DOT database, the ATA 
believed the range is 2.8 to 6.1 percent, 4 percent on average, but 
strenuously objects to inflating that figure by including fatigue 
involvement in mental lapses, inattention and distraction.
    (2) FMCSA failed to use the proper baseline number of fatalities in 
its cost/benefit analysis. The agency used 5,035 (average of all truck-
involved fatalities from 1991-96) as the basis for its estimates of 
crash elimination benefits. However, driver error is not the cause of 
all fatal crashes (maybe 90 percent), nor is the truck driver at fault 
in more than 30 percent of multi-vehicle truck-involved fatalities. 
Citing FMCSA and

[[Page 22483]]

UMTRI studies, ATA considered 942 to be the proper baseline number for 
multi-vehicle, fatal-to-non-truck-occupant crashes and 800 the proper 
number for single-vehicle, fatal-to-truck-occupant crashes. The 
baseline fatality number should be between 200 and 240, instead of 
FMCSA's base of 755;
    (3) FMCSA used effectiveness assumptions which ATA contends could 
not be viewed as reasonable or even possible. ATA contended the agency 
stated the proposal would be 5 percent effective with Type 3, 4 and 5 
drivers. ATA claimed the agency included no cost figures for this 
category, saying that for the majority of drivers in compliance with 
existing rules the costs would be minimal. ATA objected, finding the 
two assumptions inconsistent; and
    (4) FMCSA ignored the best available compliance information. The 
agency relied on three different surveys to support its contention that 
a ``significant percentage'' of drivers violate the HOS regulations. 
ATA claimed FMCSA has data from thousands of compliance reviews that it 
totally ignored. Instead of asking for data and analysis from the 
public on an array of issues, FMCSA ought to analyze the best 
compliance data available `` its own completed compliance reviews.
    Many of the industry comments about overstated benefits could be 
summed up in the comments of the Minnesota Trucking Association: ``The 
proposal will not have the intended safety benefits because DOT failed 
to consider the law of unintended consequences:
    (1) DOT failed to account for the accident exposure from over 
48,000 new trucks needed to move the same amount of freight;
    (2) The proposed rules would cause greater congestion in urban 
areas both from the greater number of trucks, and more trucks shifted 
from nighttime hours due to the mandatory `weekends'; and
    (3) The proposed rules would cause a dramatic increase in the 
number of young, inexperienced drivers on the road creating even 
greater risks of accidents.''

Safety Advocacy Groups

    The IIHS disputed the figure of 49,000 new drivers as too many 
because it does not account for efficiencies and old drivers returning 
for better working conditions.
    AHAS criticized the agency's economic analysis because it failed to 
measure proposed rules against the existing rules, ``as most agencies 
do.'' AHAS agreed with the FMCSA's finding that the contribution of 
fatigue to crashes has been undervalued and cited the Australian 
parliament's massive report finding that 20 to 30 percent of road 
accidents involve driver fatigue. One cannot rely on police reporting 
because police are unable to detect or infer fatigue as a triggering 
factor.
    CRASH observed: ``Trucking deregulation, a booming economy and the 
concepts of ``just in time deliveries'' and ``rolling warehouses'' have 
produced a deadly trend in the commercial trucking industry.'' Truck 
drivers are exploited by pressuring them to speed and drive over the 
legal HOS limits. CRASH stated that NHTSA and NTSB have documented that 
driver fatigue is a major factor in 15 to 40 percent of all big truck 
crashes.
    PATT argued that truck drivers provide labor for which they are not 
adequately remunerated, that such labor is a major contributor to 
fatigue and that such labor practices have continued too long without 
resolution. It stated the basic rule in the industry should be: 
``Shippers count, load, and seal--drivers drive--receivers count and 
unload.''
    The CVSA stated that the proposal relied too heavily on relative 
exposure rather than on relative risk, which appeared to them to be the 
same across all types of operations.
    The NSC claimed that the NHTSA data attributing 2 to 5 percent of 
accidents to driver fatigue is more reliable, and that the FMCSA's 
estimate of 755 fatalities is inflated. Until the agency completes 
fundamental accident analysis studies, NSC believes the agency must 
rely on FARS; therefore, it must stay with no more than 5 percent or 
250 fatalities. It recommended an external panel of experts to 
establish a lower and upper bound of the fatigue problem, in which the 
NSC would be glad to participate. It also recommended a cost/benefit 
analysis similar to the one prepared by Booz, Allen & Hamilton, Inc. 
for the FHWA on May 28, 1981.

FMCSA Response

    Although it appears that the agency underestimated costs in its 
economic analysis, it is also clear that industry overestimated costs 
in its comments. The ATA instruction to carriers responding to its 
survey was to compare drivers' logs in actual operation with what they 
think could be done under proposed rules. The comments from individual 
carriers indicated that some followed the ATA instructions, but many 
others merely assumed that every driver was presently using all 
available hours. Other comments make it clear that this was not the 
case. Stating that a reduction in allowable duty hours from 15 to 12 
represents a 20 percent loss in productivity when drivers rarely work 
the 15 hours, is a clear overstatement.
    The examples offered throughout the comments, moreover, generally 
presented worst case scenarios. In nearly every case when a carrier 
stated it could not complete a run under the proposed rules, it also 
stated it would have to add a truck and driver to continue that run. 
Otherwise, it would lose the business. Rarely was there any attempt to 
reconcile operations or schedules with the proposed rules, or to 
suggest minimal changes that could make them work. For example, an LTL 
carrier reported that its drivers double as dock workers. They normally 
drive up to five hours from a hub to a terminal, load or unload for two 
to five hours, and then drive back to the hub in up to five hours. The 
carrier believed it would have to hire twice as many drivers and make 
them stay overnight at the terminal, because it could not complete 
those runs under the proposed rules. No mention was made of relieving 
the driver of loading/unloading responsibilities; shortening the time 
the driver has to spend loading or unloading by providing some help at 
the terminal; or otherwise adjusting operations at the terminal so that 
the driver is not detained as long, rather than literally doubling the 
number of drivers.
    The case for the truckload segment, particularly the small, 
irregular-route carriers, is more problematic, especially if the 
sleeper berth provision in the proposal were not adjusted. J.B. Hunt 
computed the basic productivity loss from the proposal to be two 
percent by comparing the average allowable workweek (seven days) under 
the existing rule (61.25 hours) with that proposed (60 hours), but it 
also found a much greater loss from the lack of flexibility. Although 
further examination of the impact of flexible alternatives on the 
operations of large truckload carriers would have to be done, much of 
this greater loss could apparently be mitigated.
    NASTC, representing small carriers, based its analysis of lost 
productivity on a comparison of a daily range of operation. It stated 
that under the present rule a driver could drive up to 15 hours in any 
given 24-hour period, giving him a daily range of 750 miles. This could 
only be accomplished under full exploitation of an alternating 10-
hours-driving, 8-hours-off schedule. Under the proposed rule, NASTC 
stated the same driver's daily range would be reduced to 600 miles. 
Projecting the NASTC driver's schedule over longer periods of time, the 
average difference

[[Page 22484]]

in the daily range would undoubtedly come closer to Hunt's two percent. 
The NASTC driver, however, would have to work more days in the week. 
The NPRM may also cause lost opportunities. NASTC predicted the 
productivity loss could go as high as 25 to 33 percent because of the 
requirement in the proposal to log waiting time as on-duty time. This 
was not an absolute under the proposal. A driver could log up to two 
hours waiting time as break time, provided it qualified as off-duty 
time. If it did not, it must be logged as duty time even under the 
existing rules.
    The NPTC offered no explanation for its position that anything less 
than a 15-hour workday for private carriers could not survive a cost-
benefit analysis. It did not appear to relate to the lack of 
flexibility in the proposal, but rather to an assumption of 
inflexibility in private carrier operations. Drivers for private 
carriers could not sustain a 15-hour day schedule for very long under 
the present rules without coming afoul of the seven-or eight-day 
limitations. This issue would require additional attention to learn the 
particulars of their position.
    Although the NERA study made some valid points about errors in the 
agency's analysis, its own analysis of the costs of the proposal was 
not based on any independent findings regarding industry practices. 
Rather, its conclusions appeared to be based on assumptions provided by 
its industry sponsor. It also cited the results of the ATA survey as 
the basis for its estimate of the degree to which the FMCSA had 
understated the costs for additional drivers and equipment. Similarly, 
the review performed by the RSP, which appeared to misunderstand part 
of the proposal, did not rely on independent examination of industry 
practices. Neither the ATA nor any of the other associations proposing 
alternative rules made any attempt to quantify their related costs or 
benefits.
    On the benefit side, industry severely criticized the agency's 
reliance on ``fatigue relevant crashes'' to increase the pool of 
fatalities from which it could draw an estimated benefit (fatalities 
avoided) from the proposed rules. The NTSB uses the phrase ``fatigue-
related'' in its reports and recommendations involving human fatigue. 
The IIHS and the safety advocates, although not supporting the agency's 
methodology, stated the FMCSA arrived at an accurate number of deaths 
caused by fatigue related crashes, and would have done so had it used 
the methodology discussed earlier in this document, namely ``population 
percent attributable risk calculations'' taking the increased risk of 
crashes from driving longer hours and placing it into a formula 
together with the rate of drivers driving longer hours. Industry, 
however, also noted that the agency should have at least reduced the 
number of those fatalities by applying a percentage equal to the ratio 
of collisions determined to be the fault of the truck driver, about 30 
percent. The agency notes there is a big difference between the ``at 
fault'' crashes the industry uses and the ``contributed to,'' ``fatigue 
relevant,'' and ``fatigue-related'' crashes the agency, safety 
advocates, and NTSB use.
    Industry was also critical of the agency's overreach in stating 
benefits from the use of EOBRs by reducing the level of non-compliance, 
an estimated level that industry stated was far too high. The public 
interest commenters observed that the evidence of non-compliance was 
very strong, and even drivers and owner-operators agreed that daily 
logs are routinely abused.
    In conducting the RIA for this final rule, the FMCSA used a more 
conservative approach to estimating fatigue-related crashes and how 
benefits would be reduced if the number of fatigue-related crashes were 
smaller. See the RIA's Section 8.2 for a discussion of the estimates of 
the number of crashes involving trucks, by severity of crash. In 
addition, it discusses methods for estimating the percentage of crashes 
attributable to fatigue, and the results of applying those methods.
    In determining the effects of the HOS rules on the mode split 
between truck and rail (which was not done for the NPRM), we used the 
Logistics Cost Model (LCM) developed by Paul Roberts. The LCM is a 
computer model that determines the total logistics cost of transporting 
a product from a vendor to a receiver. It is an updated variant of 
models developed by Mr. Roberts for the Association of American 
Railroads (AAR) and the FHWA. The model determines the lowest cost for 
ordering, loading, transporting, storing, and holding a product. The 
model assumes the shipper selects the alternative that minimizes total 
logistics costs. Total logistics cost in this case may include the 
costs occasioned by service frequency, transit time, reliability, loss 
and damage, spoilage and other service-related factors occurring during 
ordering, transport or storage. By converting all of these factors into 
their quantitative impacts on total logistics cost, the analysis can 
address the tradeoffs among service quality, inventory carrying and 
transportation charges.
    The mode shift analysis was limited to movements of 250 miles or 
more. The RIA did this because the probability of switching traffic 
from truck to rail is effectively zero for moves under 250 miles. Most 
authorities would assert, in fact, that this probability is quite low 
for shipments under 500 miles. Two hundred fifty miles was chosen for 
the RIA as a minimum, however, to ensure a thorough analysis.
    The RIA exercised the mode shift model over a range of changes in 
trucking rates from a 2.0 percent decrease to a 2.0 percent increase. 
From this analysis, the RIA was able to estimate a price elasticity of 
(1.4). This means that, for a 1.0 percent change in trucking rates, 
there is 1.4 percent change in truck shipments, truck shipments 
increasing with a rate decrease and diminishing with a rate increase. 
This measure of elasticity was used, in turn, to estimate impacts on 
truck and rail traffic for each of the HOS rule alternatives. Details 
of the computational method and data used are presented in the RIA's 
Appendix D.
    In addition to calculating the social costs, benefits, and net 
benefits of the alternatives, the RIA also considered the impacts on 
the carriers, and on the economy as a whole. The changes in labor 
productivity, costs for labor and other inputs, and changes in the mode 
split between truck and rail were disaggregated to six regions and fed 
into the REMI Policy Insight regional economic model (developed by 
Regional Economic Models Incorporated). The model's outputs give an 
approximate picture of the relative effects of the alternatives on 
economic growth and employment across the country.
    The RIA found that the PATT alternative would be more expensive to 
comply with than current rules, especially for short-haul operations, 
while the ATA alternative would be less expensive. The FMCSA staff 
alternative would be more expensive for short-haul operations, though 
it would be less expensive overall due to its savings for long-haul 
operations.
    The basis of the benefits analysis is the estimation of the total 
number of crashes involving vehicles subject to the rule, the damages 
imposed by those crashes, and the assessment of the percentage of those 
crashes and damages attributable to fatigue. The FMCSA found an 
estimated 8.15 percent of the total crashes and damages result from 
fatigue. Thus, the total damages from fatigue-related crashes have a 
value of about 8 percent of $32 billion, or about $2.5 billion per 
year. Excluding a fraction of crashes that occur in operations that 
would be little affected by the changes in the HOS rules, the fatigue-
related crashes subject to the

[[Page 22485]]

alternatives are estimated to impose costs of about $2.3 billion per 
year.
    The analysis of the effects of the rules and alternatives on crash 
risks showed that these damages could be reduced substantially. The 
percentage of fatigue-related crashes is substantially higher in long-
haul than in short-haul operations. Similarly, the changes in fatigue-
related crashes attributable to the alternatives are greater in long-
haul than in short-haul. These differences result from the more arduous 
schedules that long-haul drivers currently have, and from the effects 
of the rules and alternatives on those schedules.
    The ATA alternative provides net benefits in both long-haul and 
short-haul operations, though its net benefits are much greater in 
long-haul. Similarly, the PATT alternative has much smaller net costs 
in long-haul than in short-haul operations, and the FMCSA staff 
alternative has net benefits in long-haul that are partially offset by 
its net short-haul costs.
    The observation that the alternatives are less cost-effective in 
short-haul operations was part of the motivation for providing more 
flexibility in the FMCSA staff alternative for short-haul drivers, 
allowing one 16-hour shift per week. The RIA assessed the effects of 
this flexibility by examining the costs and benefits of the staff 
alternative without allowing any 16-hour shifts.
    Our analysis showed that, for short-haul operations, this change 
would more than triple the annual costs of the FMCSA staff alternative 
relative to the current rules with full compliance. Costs would 
increase from $168 million to $641 million, or by almost $500 million 
per year. These additional costs would translate almost directly into a 
reduction in net benefits, because the effects of the reduced 
flexibility on crashes would be very small. The FMCSA estimates that, 
because the increase in the need for new short-haul drivers would more 
than offset the slight reduction in fatigue, prohibiting any 16-hour 
shifts would actually worsen the crash-reduction benefits slightly: 
total benefits would fall by about $10 million per year, and fatalities 
would rise by one or two per year.
    With this change to the FMCSA staff alternative, its net benefits 
compared to current rules with full compliance would drop to about half 
a billion dollars per year.
    The analysis of the economy-wide changes revealed that, as expected 
for a set of rules that has moderate effects on an industry that itself 
is only one component of the economy, the alternatives would cause 
changes well within one tenth of one percent of total employment, gross 
domestic product, prices, and disposable income. The impacts on 
carriers were more noticeable, with the PATT alternative imposing net 
costs and the ATA and FMCSA staff alternatives having small positive 
effects on net income and profitability.

Electronic On-Board Recorders (EOBRs)

    The FMCSA based the proposal to require EOBRs for Type 1 and Type 2 
operations on two facts:
    (1) Data indicated that fatigue-related crashes are much more 
likely to involve long-haul drivers than local or short-haul drivers; 
and
    (2) Data indicated there is substantial non-compliance with the 
hours of service regulations, particularly among some segments of long-
haul drivers.
    The agency assumed that:
    (1) EOBR-equipped vehicles used in long-haul movements would 
significantly improve compliance, which the agency demonstrated in a 
pilot project;
    (2) Improved compliance by long-haul drivers with HOS regulations 
would help reduce fatigue-related crashes; and
    (3) Conforming devices would be available in a sufficient supply at 
reasonable cost.
    On-board recording devices have been in use at least since 1985, 
when the agency granted a waiver to Frito-Lay, Inc. (50 FR 15269, April 
17, 1985) to allow their use as a substitute for handwritten records of 
duty status. The agency is also aware of substantial investments since 
the late 1990's made by motor carriers in on-board technology for 
tracking cargo and equipment performance. Global positioning systems 
are increasingly in use, and the agency is piloting the application of 
such a system to monitor drivers' compliance with the HOS rules in 
cooperation with a large truckload carrier. The agency also believed 
that once it issued a mandate, market forces would assure that EOBRs 
would become increasingly available. To allow time for this to happen, 
the NPRM proposed a phase-in period within which to comply.
    The FMCSA also believed that the presence of EOBRs on the vehicles 
would facilitate enforcement both by reducing the time required to 
inspect records, and improving the quality of the evidence upon which 
compliance with the rules would be determined and, when appropriate, 
violations charged.

Industry Comments

    The industry was not uniformly opposed to the EOBR provision. The 
ATA raised numerous objections. Several large carriers, however, and 
even an ATA State association, supported the initiative subject to 
certain conditions. The industry objections primarily revolved around 
four concerns:
    (1) Many commenters believed that the NPRM failed to consider or 
understated per-unit costs and other related costs;
    (2) Many commenters considered the ability of the available 
technology to track individual drivers to be suspect;
    (3) Several commenters noted that the level of compliance they 
already achieved, or the rarity of occasions when their drivers would 
be subject to the requirement, rendered the EOBR requirement irrelevant 
or redundant in their situations; and
    (4) Many comments expressed concern about the use by law 
enforcement and others of the information incidentally obtained through 
the EOBRs unrelated to HOS compliance.
    The ATA's primary position was that the agency underestimated the 
costs of the technology and overestimated the benefits. The ATA faulted 
the agency for proposing the use of devices, while ignoring the 
promising applications of fatigue monitoring devices to prevent crashes 
and ``black-box'' technology to evaluate crash causation. The ATA noted 
that the agency neglected to include costs of both the ``smart card'' 
adaptations, which may be the least expensive means of maintaining 
driver identity in a mobile industry, and the back-office integration 
into the carriers' computer systems.
    The ATA claimed that the FMCSA reversed its position on EOBR 
requirements because it first issued a final rule allowing on-board 
recorders as an alternative to records of duty status on May 19, 1988, 
53 FR 18058, and then denied a petition from the Insurance Institute 
for Highway Safety to mandate use of on-board recording devices. The 
ATA faulted the FMCSA for failing to gather any data during compliance 
reviews from the thousands of EOBRs that are presently in use, which 
might have supported the agency's claim that EOBR use would improve 
compliance. The ATA noted that the information EOBRs would be required 
to gather under the NPRM does not even include an identification of the 
driver.
    The ATA contested the claim that EOBRs would facilitate enforcement 
at roadside. According to ATA, the

[[Page 22486]]

experience reported by enforcement personnel is that EOBR records are 
more difficult to review. The ATA argued that the FMCSA overlooked the 
biggest shortcoming of EOBRs--they do not track what a driver is doing 
when the vehicle is stopped and the engine is shut off. The ATA was 
critical of present methods that do not discover intentional 
lawbreakers, who know how to avoid detection. The ATA noted that the 
agency even failed to address the issue of off-duty driving of the 
truck, so that a trip to the diner or to a movie theater could very 
well be recorded as driving time and possibly result in a violation.
    The ATA noted that the phase-in schedule belied the agency's 
contention that safety benefits will flow from improved compliance. The 
proposed schedule gave small carriers, the least compliant segment of 
the industry, according to an ATA study of FMCSA's Motor Carrier 
Management Information System (MCMIS) data, more time than the large 
carriers, the most compliant.
    The ATA criticized the FMCSA for failing to evaluate potential 
risks of requiring drivers to manually enter location codes when 
crossing state lines in spite of NHTSA's concerns about driver 
distractions.
    The ATA expressed its disappointment with the lack of discussion of 
privacy concerns or limitations on the use of data for purposes 
unrelated to regulatory compliance. It also suggested that the proposal 
could be subject to legal challenge based on U.S. Supreme Court 
decisions defining the parameters of lawful, warrantless searches in 
closely regulated industries.
    The ATA accused the FMCSA of violating advice from ITS America, an 
advisory committee to the DOT, and particularly Principles 1, 5, 6, and 
7 of the Fair Information Principles for ITS/CVO.

Other Industry Comments

    The State trucking associations were not unanimous in their 
opposition to the EOBR provision in the proposal. Many did not comment 
on this issue, perhaps relying on the ATA, their national 
representative, to express their views.
    The Arkansas Trucking Association unanimously supported the 
required use of EOBRs. It was particularly persuaded by the opportunity 
to replace a very expensive and inefficient paperwork system. It 
recommended to its members that EOBRs be installed and maintained in 
all CMVs over 26,000 pounds. The members reportedly were tired of 
competing with cheaters, and believed that EOBRs would provide a level 
playing field.
    CTA supported the use of time recording devices (not necessarily an 
EOBR) for all drivers and trucking operations only under the following 
six conditions:
    (1) The implementation of EOBR devices must be the same for all 
carriers;
    (2) The time recording device must be readable at roadside 
inspections by law enforcement officials;
    (3) The data obtained from a recording device must be used by law 
enforcement officials for HOS enforcement purposes only and not for 
reconstruction of other events or operations;
    (4) The recording device must identify individual drivers and 
include the option of personal technology devices, as well as EOBR's 
installed in the vehicle;
    (5) There must be an investment tax credit for purchase and 
installation costs associated with the recording devices, retroactive 
to existing devices; and
    (6) The mandatory record retention period for recorded data must 
not exceed six months.
    CTA opposed the use of additional information that may be recorded 
to enforce other statutes not relative to a driver's HOS. CTA believes 
that due process and driver privacy require this consideration.
    The PMTA, on the other hand, reported that many of its carriers 
believed EOBRs would be redundant for their type of operation, under 
which drivers' HOS are already closely controlled or monitored. The 
PMTA recommended assembling a multi-disciplinary committee to hammer 
out HOS reform regulations.
    The large truckload carriers were somewhat divided over the 
provision, but several supported it.
    J.B. Hunt believed that EOBRs would ensure compliance with HOS 
regulations, but attached certain conditions to its support:
    (1) They must be required of all carriers at the same time;
    (2) Their use must be limited to immediate enforcement of 
compliance; and
    (3) They must have legally enforceable prohibitions on the use of 
EOBR data for other purposes.
    J.B. Hunt also suggested that EOBRs should be phased in based on a 
motor carrier's safety performance, using Safestat as a reference, so 
that the worst performing carriers would be required to comply earlier, 
e.g., ``A'' list first, then ``B'' list, etc. It also urged the FMCSA 
to set performance standards that allow for innovative technology.
    M.S. Carriers (M.S.) found the EOBR proposal to be basically sound, 
but believed the FMCSA should require standard equipment in all CMVs so 
it could be used interchangeably. M.S. also recommended a condition 
that information from these devices could not be used in court.
    Schneider National, while not in outright support of the provision, 
felt that if EOBRs were to be required, implementation should be the 
same for all commercial fleets, regardless of size.
    U.S. Xpress Enterprises believed it would be prudent to separate 
out the EOBRs from the rest of the proposed rules because ``black 
boxes'' perform a variety of functions. They suggested it would be 
better to combine all functions in a single device and test them so 
everyone could get the ultimate benefits. They noted, for example, that 
the NTSB is very interested in getting black boxes installed for crash 
investigation purposes.
    Landstar believed the implementation schedule for EOBRs would be 
unfair to owner-operators leased to larger carriers because they would 
have to meet a more expedited schedule by reason of the size of the 
carrier to which they lease. Landstar also supported requiring EOBRs on 
a performance basis, e.g., carriers with above average accident rates 
should be first to implement.
    Great Coastal Express pointed out that EOBRs are good for 
monitoring driving time, but not very good for tracking non-driving on-
duty time.
    Smaller truckload carriers and owner-operators were more uniform in 
their opposition to the mandatory EOBR provision. Perfetti Trucking, 
for instance, was totally opposed to EOBRs, believing they would cause 
older drivers to leave in large numbers. They believe younger drivers 
in the 30 to 45 age bracket, who may possess some degree of computer 
literacy, might be more comfortable. The older drivers, however, view 
EOBRs as an intrusion on their liberties, an insult to their 
intelligence, and a way of making them look inferior. Perfetti also 
believed the proposal would put many owner-operators and small trucking 
companies out of business.
    The NASTC found the proposed use of EOBRs to be intrusive and would 
``treat drivers on a par with convicted felons under house arrest.'' 
NASTC noted, however, that if EOBRs are to be required, the agency, in 
conjunction with CVSA and the industry, should design specifications 
that are uniform, cost-effective, tamper-proof, and can be incorporated 
as a mass-manufactured component.

[[Page 22487]]

    Other small truckload carriers and owner-operators reported the 
devices would be too expensive; they could not afford them; and they 
would likely have to go out of business.
    The OOIDA believed that dividing the day into a 10-hour rest period 
and a 14-hour duty period would make compliance and enforcement so 
simple that EOBRs would be redundant.
    The less-than-truckload (LTL) sector was generally opposed to the 
mandatory use of EOBRs.
    The MFCA claimed its carriers now achieve virtually 100 percent 
compliance with the HOS regulations. The only possible noncompliance is 
failing to keep up the record of duty status. Therefore, at least as 
concerns the MFCA, there is no benefit, only cost.
    Yellow recommended that the EOBR provision simply be removed from 
rule until more information is available.
    Watkins was concerned about unproductive costs. Watkins believes 
that EOBRs have no direct safety benefit; that there is no equipment 
currently available; and that the cost to convert to the requirement 
would be $2,650 per EOBR. After making a case for exempting LTL 
operations from the EOBR requirement, Watkins projected its total cost 
of converting to the proposed monitoring and record-keeping system at 
$15,053,465.
    The OOIDA complained that ``[FMCSA leaps] from regulations that may 
or may not prevent driver fatigue to requiring black boxes to assure 
compliance with those regulations.'' OOIDA believes the regulations 
should be reasonable and should rely on voluntary compliance. OOIDA 
believes EOBRs would expose carriers to greater liability, as 
plaintiffs' attorneys would have more ammunition with which to impress 
juries, regardless of actual fault. OOIDA also objected to EOBRs based 
on Fourth Amendment privacy protections.
    OOIDA participated in a DOT European safety scan in 1999. OOIDA 
stated the mandatory use of EOBR type devices in Europe had been 
delayed four times due to industry objections. OOIDA also found that 
drivers did not embrace the product at the time, they hated it. The 
system was too restrictive and limited their earning capacity. OOIDA 
claimed that drivers and employers worked out unofficial arrangements 
so drivers would not plug in their drivers' cards until they were a 
couple of hundred miles down the road to enable them to get the 
overtime the drivers needed to make a living. OOIDA believed VDO North 
America, a vendor that commented at the hearings and roundtables, 
``took literary license in the interest of sales.'' OOIDA acknowledged 
that the United States system is not foolproof, and drivers would find 
ways of beating it. OOIDA believes a truly foolproof system would be 
too expensive.
    The IBT commented that it has not opposed EOBRs in the past, 
provided limitations are placed on the use of the data, because record 
of duty status falsification has been a big problem. The IBT asserted, 
though, that the requirement for EOBRs would contribute nothing to 
safety without strong enforcement. The IBT also doubted whether the 
information collected by EOBRs would have much value for enforcement 
since they only directly track driving time.
    The ABA cited a General Accounting Office report to Congress 
finding in relation to the agency's estimate of a 20 percent safety 
benefit from the use of EOBRs that the FMCSA ``did not have an analytic 
basis to support this estimate.'' The ABA concludes that mandating 
EOBRs for long-haul buses would result in a large expense with no 
safety benefit.
    Commercial Vehicle Training Associations (CVTA) is a trade 
association representing the nation's private training programs for CMV 
operators. Regarding EOBR training, CVTA commented that if a uniform 
set of specifications were developed and required, the schools could, 
and probably would, include a module on EOBR use.
    The U.S. Small Business Administration (SBA) noted the cost of the 
required EOBRs and believed that even four years lead time may not be 
sufficient to reduce costs significantly. It further believed the cost 
estimates were understated. The SBA provided no substantiation for its 
estimate, except its concept of ``average,'' which was to add the 
lowest estimate it had heard to the highest estimate and divide by two, 
resulting in a per-unit cost estimate of $17,000 to $19,000. It 
recommended examination of feasible alternatives to general EOBR use, 
including one that is performance-based. If the FMCSA imposed the 
requirement on those with the worst safety records, it would provide an 
added incentive to operate safely. The SBA strongly urged the FMCSA to 
consider all information from small businesses and include full 
discussion of costs and assumptions, as well as feasible alternatives 
and why they were not chosen.

Law Enforcement Comments

    The CVSA opposed the requirement for EOBRs as premature and 
recommended more study to ensure standardization. It suggested using 
the DOT's Intelligent Vehicle Initiative (IVI) to conduct operational 
evaluation and possible pilot tests. In addition to suspecting the 
quality of the equipment presently available, CVSA has concerns about 
access, availability and use of the data. CVSA noted that most 
tachometer-type equipment is used by industry as asset management tools 
and not necessarily for driver management, and noted, ``The EOBR 
requirements as currently written in the proposal offer no benefit to 
industry or enforcement in having the ability to proactively manage 
fatigue.'' In this context, the CVSA was distinguishing the EOBR from 
other developing technologies that measure and project driver alertness 
(e.g., PerclosTM and ActigraphTM devices).
    The California Highway Patrol (CHP) was not opposed to the use of 
automated time record systems for Types 1 and 2. CHP noted such 
equipment has been in use in California since the mid-1980s. CHP has 
problems with Types 3, 4 and 5 drivers because they may be caught in 
positions where they suddenly need an EOBR on a limited basis, such as 
a required overnight stay. CHP suggested the development of an 
alternate means of compliance in those situations. CHP also believed 
that with no records required for Types 3, 4 and 5, roadside 
enforcement would be impossible. It recommended building into the rules 
a rebuttable presumption of regularity with toll receipts and other 
time-dated records regularly issued in the course of business.

Safety Advocacy Groups

    Safe Drive America (SDA) described itself as an organization 
improving highway safety by observing and reporting unsafe practices 
and promoting improvements in training and working conditions for 
drivers. SDA supported the NPRM overall as a positive step in the right 
direction, in particular, the requirement for EOBRs. It recommended a 
six month phase-in period for all motor carriers. SDA claimed it is not 
unusual under the current rules for a driver, with three pickups in a 
given town, to spend all night making those pickups and then record 
0.75 hours loading, and 11.25 hours in a sleeper berth. SDA claims the 
driver then shows on the record of duty status as emerging from the 
sleeper at 6 a.m. with an eligible 10 hours of driving and 15 hours on 
duty. SDA claims the driver could still do this under the proposal 
unless there is a device like the EOBR to keep the driver honest, and 
even then, enforcement would be required.

[[Page 22488]]

    The AHAS supported mandating EOBRs for road drivers, claiming that 
current cost estimates run well below even the lowest estimate used by 
the agency. It strongly recommended the agency consider requiring EOBRs 
for Type 3 drivers as well because of added risks associated with 
split-shift driving and tendency of drivers to falsify records. It 
would even include Type 4 (local) drivers and was not persuaded by 
reliance on DOL timecards, as AHAS believes there are no independent 
means of corroboration. The AHAS found that requiring EOBRs would at 
least protect drivers from being compelled to exceed hour limitations.
    The AHAS disagreed with industry's privacy concerns and favored 
addition of global positioning system (GPS) technology, which AHAS 
believes would not be very expensive, certainly not double the quoted 
$300 base cost. The AHAS noted that in this age of automation, in an 
industry that operates on razor-thin margins, any carrier that does not 
take advantage of technological advances would be left behind and would 
fail to survive.
    CRASH supported requiring EOBRs, but suggested that more safety 
technologies already exist and should be brought into play. PATT also 
supported mandatory use of EOBRs, which it found long overdue. PATT 
believed the devices did not cost too much and that any changes in HOS 
regulation without them would be useless.
    The NSC supported technology integration for safety purposes, but 
found the NPRM lacked data showing that the safety benefit would equal 
the cost of $1,500 per unit. The NSC recommended piloting required use 
on the poorest performers, e.g., those with accident rates double the 
national average.

Vendors' Comments

    VDO claimed to be the world's largest independent manufacturer of 
automotive instrumentation. VDO claimed to have an EOBR meeting the 
performance standards listed. VDO claimed the device, also known as an 
electronic tachograph, has become widely used in the European Union 
with strong support from fleet owners, drivers, unions, and 
enforcement. VDO claimed its version of the European B1TM 
Tachograph answers all of the negative comments and concerns of the 
motor carrier industry.
    VDO had talked to several U.S. companies and was told by Qualcomm 
and Cadec that they believed they could not meet the requirements for 
EOBRs as proposed.
    VDO contended the opportunities its digital tachograph affords 
users go far beyond merely the time saved on doing paper logs. The 
device automatically recorded everything fed into it, and the user 
could decide what to do with the information. VDO has done studies that 
it believes reflect the beneficial results of what it refers to as a 
``driver feedback loop.'' VDO claimed that no matter what device is 
used, management and society need feedback to correct the poor driver 
behavior detected, e.g., speeding, tailgating, harsh braking, excessive 
hours, etc. The benefits did not come from the EOBR, but from the 
attitude of the carrier that chooses to use it for safety purposes.
    Diversified Auto Technology (Diversified) claimed it was on the 
verge of completing a 13-year project researching and developing on-
board recording devices. The company claimed it had been involved 
primarily in the EU market and that initial cost of Diversified's 
complete system built to comply with proposal would be estimated to be 
$2,500.
    QUALCOMM Incorporated commented that it offered two primary 
products to the transportation industry, a geo-stationary satellite-
based, mobile communications system and a terrestrial mobile 
communications system that uses a digital, wireless network. QUALCOMM 
claimed it was developing an onboard computer solution that would 
fulfill the requirements of the EOBR requirement. It believed the 
regulations on electronic recordkeeping should be crafted to promote 
both safety and productivity in order that carriers can have a return 
on investment with onboard technology. They projected their device 
could cost as much as $1,600 per vehicle with an additional charge of 
$15,000 to $25,000 for host software, plus additional costs for 
firmware and GPS upgrades, installation, downtime on vehicles and 
training. These costs would be in addition to the cost of hardware for 
those fleets not already equipped with mobile communications equipment.
    Marconi InfoChain reported that its company and others, including 
Bristow and E-Truck, were offering an inexpensive alternative to VDO's 
European solution--a personal digital assistant.

FMCSA Response

    The FMCSA has decided not to adopt regulations on EOBRs at this 
time. However, there are several technologies that offer significant 
promise for HOS recordkeeping and enforcement. The agency plans to 
continue research on EOBRs and other technologies, seeking to stimulate 
innovation in this promising area. There are several reasons for this 
decision and the planned research.
    First, neither the costs nor the benefits of EOBR systems are 
adequately known. Cost estimates vary enormously, mainly because there 
is no significant market for such devices at the moment and thus no 
hard prices available from competing vendors. There appear to be only a 
limited number of vendors that could offer a suitable system in the 
near future, and no guarantee that they could satisfy all of initial 
demand, should EOBRs be required. Meanwhile, other technologies offer 
potential for HOS record keeping and compliance and should be evaluated 
alongside of EOBRs.
    The benefits of EOBRs are easier to assume than to estimate. Full 
voluntary compliance with the HOS rules is unlikely, but the amount of 
cheating that could be deterred by EOBRs is unknown and the amount that 
could be detected depends on the tamper-resistance of the design and 
the ability of roadside enforcement quickly and easily to access the 
information recorded by the system. FMCSA did not test the (very few) 
EOBRs currently available, so both issues remain unresolved.
    Second, the agency's EOBR proposal was drafted as a performance 
standard, but enforcement officials generally argued that a design 
standard was necessary to ensure that they did not have to waste time 
and effort mastering incompatible read-out procedures created by 
different EOBR vendors. In retrospect, it might have been better to 
propose a partial design standard governing driver-identification and 
information read-out procedures, while setting a performance standard 
for all other features of the device. FMCSA can neither adopt such far-
reaching requirements without prior notice nor ignore the concerns of 
the enforcement community. The solution, at least for now, is to adopt 
a rule that does not require EOBRs.
    Third, FMCSA proposed that long-haul motor carriers with more than 
50 power units be required to adopt EOBRs within 2 years, while those 
with less than 20 power units would have up to 4 years to comply with 
the rule. Many commenters argued that this phase-in schedule was 
irrational because the smallest motor carriers generally have higher 
accident rates than large ones. Furthermore, the first carriers subject 
to a regulatory mandate would probably pay more, and perhaps 
substantially more, for EOBRs than carriers allowed to defer compliance 
to a later date.

[[Page 22489]]

Carriers that discussed the phase-in period generally insisted that, if 
a mandate were adopted, all carriers should be required to begin using 
EOBRs at the same time. The Small Business Administration (SBA), though 
critical of the financial burden of on-board recorders for small 
entities, suggested that the agency consider requiring them only for 
carriers with the worst safety records. In short, there was no 
consensus on the phase-in issue.
    Fourth, although the agency proposed EOBRs only to capture HOS 
information, most commenters viewed these devices in a wider context. 
Many drivers regard electronic monitoring as a direct assault on their 
dignity and privacy. Motor carriers, on the other hand, are deeply 
concerned that HOS functions handled by the on-board electronic systems 
of modern tractors would expose all other information recorded by those 
systems (e.g., speed, frequency of brake application, etc.) to demands 
for production in lawsuits resulting from accidents. Many carriers and 
trucking organizations expressed adamant hostility to any EOBR 
requirement that did not protect data generated by recording devices 
from any use except HOS enforcement. Although the commenters may have 
exaggerated the impact of EOBRs, they did raise issues the agency did 
not consider in the NPRM and is not prepared to address in this final 
rule.
    For all of these reasons, FMCSA has concluded that it has neither 
the economic and safety data needed to justify an EOBR requirement at 
this time, nor the support of the transportation community at large. 
The agency, however, does plan to continue research on EOBRs and other 
technologies, including evaluating alternatives for encouraging or 
providing incentives for their use. Key research factors will include:
    (1) Ability to identify the individual driver;
    (2) Tamper resistance;
    (3) Ability to produce records for audit;
    (4) Ability of roadside enforcement to quickly and easily access 
the HOS information;
    (5) Level of protection afforded other personal, operational or 
proprietary information;
    (6) Cost; and
    (7) Driver acceptability.

Proposed Compliance and Enforcement

    The ATA and a substantial number of other industry commenters 
expressed concern that enforcement would suffer if the proposed rules 
were adopted. Motor carriers, associations, unions, and shippers all 
found the proposed rules too complex, particularly the provision for 
five types of operations. They stated that roadside inspections would 
take much longer as enforcement officers sorted out what category each 
driver fit into so they would know what rules to apply. Longer times 
per inspection would translate into fewer inspections and a less 
effective enforcement effort.

Industry Comments

    The ATA found that the proposed shifting among 5 types of 
operations would cloud compliance and enforcement. Although the 
proposal allowed ``good faith'' compliance with the perceived type of 
operation, too many variables made the proposal unworkable. Customer 
demands, weather, loading and unloading delays, and other unforeseen 
circumstances would impact schedules. Inflexible categories and the 
subjective interpretation by law enforcement personnel would make 
confusion unavoidable.
    The ATA stated that regulations have to be clear and concise. The 
ATA stated that it has been a consistent supporter of effective 
enforcement, but that reliance on EOBRs is not the answer. The ATA 
comments also recommended removing the link to the DOL requirements and 
reverting to the current record keeping requirements in 49 CFR part 
395.
    The DLTLCA made no mention of record keeping in its petition or in 
its comments, noting agreement with ATA's view on this matter.
    Werner Enterprises recommended an alternative regulatory scheme. It 
stated that a better objective would be to achieve uniform enforcement 
of existing rules before attempting any industry-wide change. 
Consideration should be given to retaining the present HOS rules, but 
to implement the proposed on-board recorder requirement. The agency 
could then determine whether that initiative with adequate training 
would achieve desired level of regulatory compliance and safety 
improvement.
    J.B. Hunt counseled that rules should not be difficult for drivers 
and enforcement personnel to understand. It believes effective 
enforcement and meaningful sanctions change behavior. It supported 
requiring immediate enforcement against violators at the time and place 
of occurrence to reinforce compliance. Placing the driver out-of-
service until he is in compliance is not enough. Uniform fines should 
also be imposed. J.B. Hunt believes that reliance on carriers to 
discipline drivers is impractical because of the gap between the time 
of the violation and the time the carrier learns of it, as well as the 
mobility of drivers. Finally, J.B. Hunt urged the government to mandate 
speed control devices on all CMVs limiting truck speeds to a standard 
national rate (60 to 65 mph) for everyone.
    Landstar believes that the proposed provision for different types 
of operations would make enforcement difficult. It also stated that 
reliance on DOL records is misplaced: historically, carriers have 
considered themselves subject to DOT rules and interpretations of them. 
Without any meaningful explanation, the FMCSA ``would throw out decades 
of industry practice.'' The complexity of the proposed rules would have 
an adverse impact on enforcement. Landstar believes that both 
compliance reviews and roadside inspections would take longer because 
the investigator would have to determine what type of operation 
carriers and drivers are engaged in before they know what rules to 
apply.
    Overnite was convinced that stricter enforcement is the key to 
improved compliance with HOS regulations and to safety. Overnite 
strongly endorses the use of EOBRs to bolster enforcement. On the 
whole, Overnite found the proposal too complex. It offered comments 
from a driver, Thomas Hawks, a 10-year driver based in Memphis, TN with 
an exemplary safety record. Mr. Hawks stated the NPRM provisions would 
confuse drivers and enforcement people, but more importantly, it would 
prevent drivers from doing their jobs in a professional way. Although 
he does not load or unload, he believes enforcement action should be 
taken about time wasted at the docks of shippers and receivers.
    The Minnesota Trucking Association found that the five categories 
of drivers would be very confusing for both companies and law 
enforcement to follow.
    The California Trucking Association agreed that ``typing'' drivers 
serves no useful purpose and only confuses industry and enforcement. 
The CTA would support use of time-recording devices for enforcement, 
provided certain other conditions apply. Although a vigorous supporter 
of efforts to make highways safer, CTA would stress better drug/alcohol 
testing and reporting procedures and more funds for roadside 
enforcement.
    The NTTC deferred to CVSA comments regarding enforcement, but 
agreed that five types of operations are unnecessarily confusing and 
would hamper uniformity.
    The NITL and the NAM also found the proposed rules overly complex,

[[Page 22490]]

using the five categories of operations as an example. The complexity 
would adversely affect enforcement.
    Wal-Mart recommended improving enforcement activities while waiting 
for a new rule.
    The IBT said the complexity of the proposed rule, particularly 
regarding the five categories of operations, would be a challenge for 
the enforcement community and a problem for the regulated community as 
well.

Law Enforcement Groups

    CVSA and the Connecticut Department of Motor Vehicles argued that 
the complexity of the NPRM would create problems with training and 
application at the roadside. They state that FMCSA's estimate of four 
hours needed to train investigators in the proposed rules is very much 
understated and is likely to be two to four times as long. One CVSA 
member estimated that the time required to complete a Level 1 
inspection at the roadside would be increased by one-third. Finally, 
CVSA opposed the requirement for EOBRs as premature, and recommended 
more study to ensure standardization.
    The New York State Police noted that the proposal, as written, was 
very difficult to understand for enforcement purposes, which is likely 
to diminish enforcement actions taken on the roadside and therefore 
would minimize the likelihood of widespread carrier compliance.
    The Wisconsin Department of Transportation (WisDOT) believed the 
five categories would create confusion: the distinction between types 1 
and 2 is not precise enough, and roadside enforcement for types 3, 4 
and 5 would be virtually impossible. Substantial training for both 
drivers and enforcement personnel would be necessary. Enforcement 
personnel would need to know how to deal with both paper and EOBR 
systems. WisDOT also believes the removal of the Tolerance Guidelines 
is premature without accurate and extensive crash data.
    The Minnesota Department of Transportation and the Minnesota 
Department of Public Safety filed joint comments. They performed a 
section-by-section critique, noting that significant modifications and 
clarifications that would be needed so that enforcement could be 
effective and consistent.
    The Maine Department of Transportation concluded that requiring 
EOBRs would set back enforcement because of lack of standardization of 
the devices.
    PennDOT recommended regulations that are easily understood by all, 
enforceable at the roadside, provide for safer operations, and meet the 
needs of the public, particularly the uninterrupted continuity of 
utility services.

Safety Advocacy Groups

    AHAS contended that difficulty in enforcing the provisions of the 
NPRM would provide opportunities for drivers to violate the ``already 
inadequate'' weekend rest period the proposal would mandate. The AHAS 
agreed with most commenters that enforcement must be improved, and 
strongly supported the proposed requirement of EOBRs for Type 1 and 2 
operations. It strongly recommended the agency consider requiring them 
for Types 3 and 4 drivers as well.
    CRASH believes that making a distinction among the five different 
categories of drivers would present enormous problems for police. CRASH 
also believes relaxing the record carrying requirements by using the 
DOL records and supporting documents in all categories further 
complicates enforcement.
    PATT, on the other hand, supported the use of DOL time records, but 
recognized need for vigorous enforcement, and recommended retention of 
records for 24 months. The NSC, however, believes that the use of the 
DOL timecard may not be practical for roadside enforcement.

FMCSA Response

    The rule being made final today is significantly simpler than the 
NPRM and should be much easier to understand and enforce. The agency is 
modifying the existing rules and exemptions to update them with the 
appropriate off-duty, on-duty, and driving times, as well as adding a 
restart provision for truck drivers. The agency is retaining the paper-
based record of duty status system, including retention of supporting 
documents and allowing, but not requiring, continued use of Sec.  
395.15-compliant automatic on-board recording devices.
    The motor carrier's responsibility for compliance with the HOS 
regulations remains clear. The motor carrier is responsible for and 
must police the actions of its employees. This obligation under the 
FMCSRs was affirmed by the Associate Administrator for what was then 
the Office of Motor Carriers (of the FHWA) In the Matter of Horizon 
Transportation, Inc., 55 FR 43292 (October 26, 1990) (Final Order 
February 12, 1990). A motor carriers' responsibility for the actions of 
independent contractors and owner operators they use was outlined In re 
R.W. Bozel Transfers, Inc., 58 FR 16918 (March 31, 1993) (Final Order 
August 6, 1992); and more recently In the Matter of Commodity Carriers, 
Inc., (Order Appointing Administrative Law Judge March 25, 1997). 
Likewise, each motor carrier must have a system in place that allows it 
to effectively monitor compliance with the FMCSRs, especially those 
aimed at the issue of this final rule--driver fatigue (See In re 
National Retail Transportation, Inc., (Final Order: Decision on Review 
September 12, 1996.)) The United States Court of Appeals for the Sixth 
Circuit affirmed in A.D. Transport Express Inc. v. Federal Motor 
Carrier Safety Administration, 290 F. 3d 761 (6th Cir. 2002) that 
supporting documents must be maintained in a common sense manner so 
that FMCSA investigators can ``verify dates, times, and locations of 
drivers recorded on the RODS.'' More recently, the D.C. Circuit agreed 
that the term ``supporting documents'' in the current rule encompasses 
any document that could be used to support the RODS. That decision also 
found an FMCSA requirement that supporting documents must be maintained 
in a fashion that permits the matching of those records to the original 
drivers' RODS as a reasonable interpretation of 49 CFR 395.8(k)(1). In 
fact, the Court concluded that all the FMCSA is asking is that carriers 
refrain from destroying the agency's ability to match records with 
their associated drivers (Darrell Andrews Trucking v. Federal Motor 
Carrier Safety Administration, 296 F. 3d 1120 (D.C. Cir. 2002).

Regulatory Impact Analysis

    The NSC, ABA, ATA, and DLTLCA petitioned FMCSA to retain an 
independent consulting firm to study the safety and economic impacts of 
any final rule. The FMCSA selected a large, well-respected contractor 
with extensive experience in transportation and the regulatory process.
    After reading and analyzing the 53,750 written comments, the FMCSA 
identified three potentially effective and reasonably feasible 
regulatory models within the scope of the NPRM for further 
consideration. The analysis of these alternatives is entitled 
Regulatory Impact Analysis and Small Business Analysis for HOS Options, 
December 2002 (RIA) and is in the docket.
    The benefits and costs of each alternative must be measured against 
a baseline, as AHAS pointed out in its comments. The Office of 
Management and Budget's (OMB) guidance to federal agencies has been 
that the baseline

[[Page 22491]]

should be the existing regulation. This baseline can then be compared 
against reasonable alternatives.
    Thus, the first alternative was to take no action, keeping the 
current rules. The other three alternatives are referred to as the PATT 
alternative, the ATA alternative, and the FMCSA staff alternative. The 
RIA, however, compares the costs and benefits of the alternatives 
relative to two distinct baselines.
    Much of the RIA shows the effects of the PATT, ATA, and FMCSA-staff 
alternatives relative to the current rules under the assumption of 100 
percent compliance with the current regulations and each alternative. 
This approach ensures that the full effects of the alternatives' 
provisions on costs and benefits are captured. On the other hand, 
because there have been studies that have shown that drivers do not 
always comply with the existing rules, OMB requested that FMCSA also 
assess the differences that would appear if motor carriers and drivers 
improved current compliance levels and achieved 100 percent compliance. 
Thus, the alternatives are also shown relative to a baseline in which 
the current rules are in effect, but there is a certain degree of non-
compliance. The University of Michigan Trucking Industry Program 
(UMTIP) provided the FMCSA with customized statistical outputs for 
particular subsets of an UMTIP driver survey that the FMCSA analyzed to 
estimate the percent of non-compliance with the existing regulations. 
These subsets were designed to match, as closely as possible and where 
appropriate, the industry segments reflecting the most relevant 
profiles in the RIA. The FMCSA found that approximately 8 percent of 
long-haul driver hours exceed the current daily and weekly limits of 
Sec.  395.3.
    The FMCSA did not analyze alternatives for passenger carrier 
transportation. As stated above, the FMCSA was persuaded by the 
comments that it does not have enough data to indicate a problem in the 
motorcoach industry segment. This RIA only analyzes carriers using CMVs 
to transport (1) goods or (2) crews and equipment to places where they 
are needed to provide services of one kind or another. This would 
include service trucks belonging to telephone and electric utility 
companies; trucks of a variety of types of service contractors--
plumbers, electricians, roofers, landscapers, etc.; trucks taking crews 
and equipment to construction sites, including mobile cranes; dump 
trucks; trash trucks; beverage, bakery, and snack food distributors' 
trucks and other like vehicles.
    The FMCSA distinguishes two distinct baselines by referring to the 
current rules with 100 percent compliance as ``Current-100 percent,'' 
and the current rules with existing estimated compliance levels as the 
``Status Quo'' scenario.
    The NPRM analyzed five alternatives, in many commenters' view 
incompletely, that could have required comprehensive changes to the 
motor carrier industry, with possibly significant implications for the 
national economy. The agency considered all of the alternatives 
suggested by commenters. Some had to be eliminated to provide a 
manageable number for evaluation under Executive Order 12866. The 
agency chose three alternatives that were both feasible and could 
potentially be effective at reducing fatigue-related incidents and 
increase driver alertness.

The Baseline

    The baseline, current rule provides that no driver may drive:
    (1) More than 10 hours following 8 consecutive hours off duty;
    (2) For any period after having been on duty 15 hours following 8 
consecutive hours off duty; and
    (3) For any period after--
    (a) Having been on duty 60 hours in any 7 consecutive days if the 
employing motor carrier does not operate commercial motor vehicles 
every day of the week; or
    (b) Having been on duty 70 hours in any period of 8 consecutive 
days if the employing motor carrier operates commercial motor vehicles 
every day of the week.
    This current rule allows drivers to have work/rest cycles as short 
as 18-hours, if the drivers maximize driving time and rest the minimum 
8 consecutive hours. The 18-hour cycle provides a potential 6-hour 
backward rotation that inverts drivers' schedules on cross county 
trips. Such schedules allow a driver to begin driving during the day on 
the first day, but on subsequent days allow the driver to drive at 
night, and then during the day, and then at night again. This 
alternating day-and-night driving has been proven to be detrimental to 
a driver's sleep thereby increasing the risk that the driver will cause 
a crash.

PATT Alternative

    The first alternative selected by the FMCSA for detailed safety and 
economic analysis was that suggested by PATT. The PATT alternative 
provides that no driver may drive:
    (1) More than 10 cumulative hours following 12 consecutive hours 
off duty;
    (2) For any period after having been on duty 12 consecutive hours 
after first beginning on-duty status following 12 consecutive hours off 
duty;
    (3) More than 50 cumulative hours over the last 6 consecutive 24-
hour periods plus the current 24-hour period; and
    (4) For any period after having been on duty 60 hours over the last 
6 consecutive 24-hour periods plus the current 24-hour period.
    The PATT alternative allows drivers to have regularly recurring 
work/rest cycles of 24 hours. The 12-hour on duty, 12-hour off duty 
cycle would provide drivers with two more off-duty hours than the FMCSA 
staff alternative for meals, personal errands, and to contact family 
and friends. Many long-haul drivers commented that they do not need 
these additional hours during a trip because commuting, doing personal 
errands and socializing are mainly home-based activities. This type of 
rule, like the NPRM, would require drivers to waste off-duty time (in 
their view) in a location where there is little for them to do.
    This alternative had the possibility for sharply reducing fatigue-
related incidents, but it was also likely to reduce motor carrier 
productivity and increase transportation costs by increasing the need 
for more drivers.

ATA Alternative

    The second alternative selected by the FMCSA for detailed analysis 
was the ATA proposal. It was not clear whether this alternative would 
reduce fatigue-related incidents, as ATA claimed, but it would almost 
certainly increase productivity and provide cheaper transportation.
    The ATA alternative provides that no driver may be on-duty:
    (1) More than 14 cumulative hours with up to 16 cumulative hours 
twice per 7-day period following 10 consecutive hours off duty;
    (2) More than 70 hours over the last 7 24-hour periods (ending with 
the last completed 24-hour period); and
    (3) More than 140 hours over the last 14 24-hour periods, with no 
more than 84 hours allowed in one of the 7 24-hour periods, if followed 
by a 34-hour off-duty period, and no more than 56 hours in the 
remaining 7 24-hour periods.
    The ATA alternative allows drivers to have regularly recurring 
work/rest cycles of at least 24 hours. The 14-hour on duty cycle 
provides drivers with the opportunity to drive the entire 14 hours. It 
also allows the driver to drive after

[[Page 22492]]

the 14th hour after the driver's shift began. If the driver takes rest 
breaks during the 14 hour period, those breaks would extend the work 
day, as the current rule does. The DLTLCA argued that drivers would not 
drive the entire 14 hour period ``because as a practical matter, no 
driver is going to be beyond 12 * * * we are never going to be beyond 
12 * * * because we have 3 to 4 hours loading time. We have pre-trip 
inspections. We have all these other activities built in.'' However, it 
would be possible for a cross-country driver who did no loading enroute 
and had pre-trip inspections performed by others to drive (potentially) 
14 hours straight.
    This rule could cause safety problems, including reduced driver 
alertness and increased fatigue-related incidents, but it could provide 
productivity increases and could reduce the need for drivers and the 
``shortage'' experienced by the industry today.

FMCSA Staff Alternative

    The agency's staff developed the third alternative. This 
alternative would create incremental changes to the current on-duty, 
off-duty, and driving requirements; provide an exception for ``short-
haul'' drivers; and adopt a restart provision for weekly on-duty time 
limits. Exceptions for daily off-duty, on-duty, and driving time would 
be modified, along with the restart provision after direct assistance 
for an emergency relief effort. The alternative would retain all 
exceptions for weekly restarts provided by the NHS Act as well as those 
for oilfield operations. It would retain all other rules, including the 
current methods of notifying drivers to report for work.
    The local/short-haul study has persuaded the FMCSA that fatigue may 
be less problematic for local/short haul drivers, though the agency 
does not believe all regulation should be removed because these drivers 
would continue to be at risk of having fatigue-related crashes. The 
staff alternative could reduce regulatory oversight for local/short 
haul drivers that could also reduce fatigue-related incidents and 
fatalities.
    The agency considered the experiences of the governments of 
Australia, Alberta, Ontario, and Quebec with fatigue management 
alternatives to traditional HOS regulations. The FMCSA is assessing the 
feasibility of conducting a pilot project that would substitute fatigue 
management for driver HOS requirements. Although a possibility in the 
future, it was not included in the staff-developed alternative for this 
final rule.
    The agency is also considering the use of education and training 
programs for reducing fatigue and increasing driver alertness, as well 
as medical alternatives and countermeasures, including the feasibility 
of screening for sleep apnea and other sleep disorders. These 
possibilities are not included in the staff-developed alternative for 
this final rule.
    Many commenters argued that the agency did not do enough research 
into the safety consequences of shifting considerable nighttime truck 
traffic to the daytime. The FMCSA agrees and therefore decided to 
consider alternatives that concentrate on approaches that do not 
promote shifting traffic from the nighttime to daytime. The FMCSA 
specifically excluded such options from its staff-developed 
alternative.
    The agency staff wanted to formulate an alternative that would be 
intermediate between the PATT and ATA proposals. The staff believed 
that the combined effect of the changes it suggested would reduce 
fatigue-related incidents and increase driver alertness without 
creating serious safety or economic costs to society. The FMCSA-
developed alternative provides that no driver may drive:
    (1) More than 11 hours following 10 consecutive hours off-duty;
    (2) For any period after 14 consecutive hours from the start of a 
duty tour following 10 consecutive hours off-duty;
    (3) For any period after 16 consecutive hours from the start of a 
duty tour following 10 consecutive hours off-duty once each 7 or 8 
consecutive day period, when the driver returns to the normal work 
reporting location and is released from work within 16 consecutive 
hours that duty tour; and
    (4) For any period after having been on duty 60 hours in any 7 
consecutive days if the employing motor carrier does not operate 
commercial motor vehicles every day of the week or any period after 
having been on duty 70 hours in any period of 8 consecutive days if the 
employing motor carrier operates commercial motor vehicles every day of 
the week. Any period of 7 or 8 consecutive days may end with the 
beginning of any off-duty period of 34 or more consecutive hours for 
drivers operating vehicles transporting freight or other property.
    There can be little doubt that fatigue directly attributable to the 
exertion required to operate the modern CMV is less of a factor now 
than it was when the 10 hour limit was adopted in 1939, and the FMCSA 
believes allowing one additional hour of driving activity can be safely 
accommodated within the context of a somewhat reduced overall tour of 
duty. The FMCSA also has learned a lot about the science of sleep since 
1938 and understands that the more relevant issue is how long the 
driver can be awake and ``at work,'' and still be allowed to drive, 
before safety is significantly compromised.
    After the comments, regulatory analysis, and upon further review of 
the research studies by Vespa et al. (1998), O'Neill et al. (1998), 
Folkard (1997), Arnold et al. (1996) Fatigue in the Western Australian 
Transport Industry, Part Two: The Drivers' Perspective, and Arnold et 
al. (1996) Part Three: The Company Perspective, discussed in Freund 
(1999), the FMCSA is convinced that 14 hours after the beginning of a 
duty tour is long enough, given the significantly increasing 
degradation of performance which occurs in the later stages of a work 
shift. The FMCSA believes this limit is materially better from a safety 
standpoint than the current rule, under which a driver could 
conceivably still be allowed to return to the wheel several hours after 
the 15 hour limit has passed (because ``off duty'' breaks can extend 
the workday). The limits, however, are not so restrictive as to impose 
an unreasonable burden on productivity.

Safety Impacts

    The FMCSA estimated the benefits of the HOS alternatives using a 
multi-step process to relate changes in HOS rules to changes in 
crashes. Conceptually, the FMCSA took the following steps for each 
alternative:
    (1) Constructed a set of sample working and driving schedules of 
different intensities and degrees of regularity;
    (2) Used the results of the modeling performed for the cost 
analysis to determine the percentages of drivers following each sample 
schedule and to determine the shifts in these percentages caused by 
different HOS alternatives;
    (3) Translated the amount of on-duty time in each schedule into 
expected amounts of sleep, using a function based on Effects of Sleep 
Schedules on Commercial Motor Vehicle Driver Performance, 2000, by 
Balkin et al. (Walter Reed Army Institute of Research) in the docket;
    (4) Used a version of the Walter Reed Sleep Performance Model 
(WRSPM) to estimate the effects of different sleep and driving 
schedules on a measure of alertness;
    (5) Translated changes in alertness into relative changes in crash 
risks on

[[Page 22493]]

the basis of a laboratory study of performance on a driving simulator;
    (6) Calibrated the results of the modeling of simulated crash risks 
to the real world using independent estimates of the total numbers and 
percentages of crashes attributable to fatigue; and
    (7) Translated the estimated changes in fatigue-related crashes 
into dollar values for avoided crashes using existing estimates of the 
damages from fatal, injury, and property-damage only crashes.

Safety Benefits

    The quantified and monetized benefits of the options derive from 
their effects on truck crashes. Changes in work and sleep schedules 
induced by the HOS alternatives can be translated into relative changes 
in modeled fatigue-related crashes, can be calibrated to correspond to 
independent estimates of numbers of fatigue-related crashes, and the 
damages from fatigue-related crashes can be projected for each of the 
alternatives. First, the FMCSA shows changes for crash damages for 
long-haul and short-haul operations. Two other sources of benefits (or 
reductions in benefits) are then described: changes in damages 
resulting from the employment of different numbers of new drivers, and 
changes in damages in long-haul operations resulting from shifts 
between truck and rail.

Changes in Crash Damages Due to Schedule Changes

    The FMCSA found the benefits of the alternatives, in terms of the 
annual values of the crash reductions shown in Table 1 (RIA Exhibit 9-
6), by subtracting the damages under each alternative from the damages 
for the current rules with 100 percent compliance.

  Table 1.--Value of Crashes Avoided Due to Operational Changes Relative to Current Rules With Full Compliance
            [(Millions of dollars per year) (Number in parentheses equal cost of additional crashes)]
----------------------------------------------------------------------------------------------------------------
                                                                               PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Benefits of Avoided Long-haul Crashes....................................          364        (267)          224
Benefits of Avoided Short-haul Crashes...................................           36          (8)           10
                                                                          --------------
  Total Benefits.........................................................          400        (275)         234
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6.

    Overall, the FMCSA predicts fatigue-related crashes to be 
significantly more of a problem in long-haul than short-haul 
operations. This fact can be attributed in part to the somewhat heavier 
work schedules of long-haul drivers, but also to the fact that long-
haul operations appear more likely to subject drivers to irregular and 
rotating schedules. The FMCSA projected two of the alternatives, PATT 
and FMCSA, to reduce accidents substantially relative to the current 
rules with full compliance. Much of their effectiveness stems from the 
greater likelihood of moving towards a 24-hour work-rest cycle with 
decreased schedule rotation; they also allowed for increased sleep 
during the workweek. Reductions in short-haul crashes were much smaller 
than the reductions in long-haul crashes, both in relative and absolute 
terms.

Changes in Fatigue-related Fatalities Due to Schedule Changes

    Beyond valuing the benefits of the alternatives, it is useful to 
present the changes in fatalities that they cause. Estimating fatigue-
related fatalities and changes in them under each alternative can be 
done most easily by referring to the total annual number of fatalities 
in truck crashes, presented in RIA Exhibit 8-1, splitting that number 
between long-haul and short-haul operations using the data presented in 
RIA Exhibit 8-3, and then multiplying by the fatigue-related 
percentages by alternative shown in RIA Exhibit 8-14. Changes in 
fatalities can then be calculated by comparing the fatigue-related 
fatalities for the different alternatives.
    RIA Exhibit 8-1 gives the total annual fatalities in truck crashes 
as 5,346; this is slightly larger than the number of fatal crashes 
because some crashes cause multiple fatalities. Of these, 61.8 percent 
or 3,304 are estimated to occur in long-haul operations, with the other 
2,042 in short-haul operations. Among the long-haul fatalities, the 
FMCSA concentrated on the 85.4 percent or 2,821 that it estimated to 
occur in those portions of the long-haul sector that would be most 
affected by the rules (i.e., excluding team-driver and LTL operations).
    Multiplying the 2,821 long-haul fatalities and 2,042 short-haul 
fatalities by the fatigue-related percentages shown in RIA Exhibit 8-15 
yields fatigue-related fatalities. For the Status Quo, these 
calculations yielded estimates of 316 for long-haul and 80 for short-
haul, for a total of 396. For the alternatives, the estimates are shown 
below in Table 2 (RIA Exhibit 9-7). The table also shows the changes in 
fatalities relative to the current rules with full compliance.

                           Table 2.--Annual Fatigue-Related Fatalities by Alternative
                                      [Numbers in parentheses are negative]
----------------------------------------------------------------------------------------------------------------
                                                                     Current/
                                                                       100%       PATT        ATA        FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
    Fatalities in Crashes Attributable to Fatigue.................        240        176         287        201
    Differences by Alternative Relative to Current/100%...........         NA        (64)         47        (39)
Short-haul:
    Fatalities in Crashes Attributable to Fatigue.................         77         71          78         75
    Differences Relative to Current/100%..........................         NA         (5)          1         (2)
                                                                   ------------

[[Page 22494]]

 
        Total:
            Fatalities in Crashes Attributable to Fatigue.........        317        247         365        276
            Differences by Alternative Relative to Current/100%...         NA        (70)         48        (41) 
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 8-1 and 9-6. Totals do not add due to rounding.

Adjustments to Benefits Due to Secondary Effects

    The crash reduction benefits shown in Table 1 (RIA Exhibit 9-6) 
include only effects of schedule changes on driver fatigue. While these 
are the primary effects of HOS rules, two secondary effects need to be 
considered. First, the changes in drivers resulting from the schedule 
changes and mode shifts, presented in Tables 5 and 9 (RIA Exhibits 9-1 
and 9-5), will result in changes in the number of relatively 
inexperienced drivers in the industry. As described in RIA Section 8.7, 
these drivers tend to have somewhat higher accident rates than the 
average driver, even over the fairly long time horizon considered in 
this analysis. Second, the changes in long-haul Vehicle Miles Traveled 
(VMT) resulting from the mode shift can be expected to result in 
proportionate changes in long-haul accidents. Both of these secondary 
effects are presented in Table 3 (RIA Exhibit 9-8), which shows the 
effects in terms of their impacts on benefits: increased crashes are 
shown as negative impacts on benefits in the exhibit, while reduced 
crashes are shown as positive values. The table also shows the total 
benefits of each alternative after the adjustments for these secondary 
effects.

     Table 3.--Adjustments to Benefits Due to Secondary Effects of Alternatives: New Drivers and Mode Shift
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                                 PATT         ATA        FMCSA
----------------------------------------------------------------------------------------------------------------
Change in Benefits due to New Long-haul Drivers.............................        (51)         67          49
Change in Benefits due to New Short-haul Drivers............................        (70)          4          (6)
Change in Benefits due to New Long-haul and Short-haul Drivers..............       (121)         71          42
Changes in Benefits due to Increases in Long-haul VMT Due to Mode Shift.....         61         (69)        (48)
Change in Benefits due to Both Secondary Effects............................        (60)          2          (5)
Total Unadjusted Benefits (from Table 1 above)..............................        400        (275)        234
Total Adjusted Benefits.....................................................        341        (272)       228
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6. Totals may not add due to rounding.

    Along with these adjustments to benefits, there would be small 
adjustments to the changes in fatalities. These adjustments are shown 
in Table 4 (RIA Exhibit 9-9) below.

Table 4.--Adjustments to Changes in Fatalities Due to Secondary Effects of Alternatives, Relative to the Current
                                           Rules With Full Compliance
                                      [Values in parentheses are negative]
----------------------------------------------------------------------------------------------------------------
                                                                                 PATT         ATA        FMCSA
----------------------------------------------------------------------------------------------------------------
                                                                                   PATT         ATA       FMCSA
Increase in Long-haul Fatalities due to New Drivers.........................          9         (12)         (9)
Increase in Short-haul Fatalities due to New Drivers........................         11          (1)          1
Increase in Total Fatalities due to New Drivers.............................         20         (13)         (8)
Increase in Long-haul Fatalities due to Changes in Long-haul VMT............        (11)         12           8
Net Increase in Fatalities due to Secondary Effects.........................          9           0           1
Total Unadjusted Change in Fatalities.......................................        (70)         48         (41)
Total Adjusted Change in Fatalities.........................................        (61)         48         (40) 
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-7. Totals do not add due to rounding.

Costs of the Alternatives

    This section presents the results of the cost analysis. First, the 
FMCSA summarizes the required changes in drivers for long-haul and 
short-haul operations. Initially, the changes are shown under 
assumptions of constant demand for trucking services; the adjustment 
for mode shifts is presented later. The agency later presents the 
implications to costs of these changes in numbers of drivers.
    Given the primary changes in drivers and costs, FMCSA considered 
two secondary effects: changes in drivers' wages, and mode shifts 
between long-haul truck and rail. Feedback from these secondary changes 
would, in theory, cause further ramifications, but these are not 
analyzed due to their small magnitude.
    Table 5 (RIA Exhibit 9-1) presents the percentage changes in 
drivers required that were calculated in the analysis of changes in 
operations, and then shows their implications for total numbers of 
drivers on the basis of the FMCSA's

[[Page 22495]]

estimates of total long-haul and short-haul drivers subject to this 
final rule.

 Table 5.--Changes in Drivers Needed in Response to HOS Limits Relative
                  to Current Rules With Full Compliance
                  [Values in parentheses are negative]
------------------------------------------------------------------------
                                       PATT         ATA         FMCSA
------------------------------------------------------------------------
Percentage Change:
    Long-haul....................         4.0%       (5.3)%       (3.9)%
    Short-haul...................         7.7%       (0.4)%         0.7%
Numbers:
    Long-haul....................       60,000     (79,500)     (58,500)
    Short-haul...................      115,500      (6,000)       10,500
                                  --------------
        Total....................      175,500     (85,500)    (48,000)
------------------------------------------------------------------------
Source: RIA Exhibit 9-1.

    Table 6 (RIA Exhibit 9-2) shows, for the long-haul sector, the cost 
implications of the changes in drivers shown in Table 5 (RIA Exhibit 9-
1). The cost changes are divided into directly driver-related cost 
changes, and the costs of non-driver related changes that are necessary 
as a result of the changes in numbers of drivers. For each alternative, 
there are costs related to new driver wages and benefits, which 
counteract the changes in wages and benefits for current drivers whose 
hours of work have changed. The net cost (or cost savings) for the 
drivers comes about because the per-hour cost of work that has been 
shifted between existing drivers and newly hired drivers is not the 
same for the two groups: average employment costs for newly hired 
drivers tend to be higher than the per-hour cost of extra hours for 
existing drivers, in part because of fixed payroll costs (e.g., 
benefits) per driver. Other costs include costs for purchasing, 
maintaining, insuring, and parking additional tractors and trailers for 
the new drivers, and hiring a larger staff of non-driving personnel to 
handle larger numbers of drivers.

                                    Table 6.--Direct Cost Changes--Long-Haul
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                              Cost category                                    PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Driver Labor Cost........................................................          287        (792)        (636)
    Avoided Labor Wages..................................................      (1,953)        2,258        1,546
    Avoided Labor Benefits...............................................        (117)          136           92
    New Labor Wages......................................................        1,799      (2,433)      (1,736)
    New Labor Benefits...................................................          558        (754)        (538)
Other Costs..............................................................          478        (563)        (437)
    Non-driver Labor.....................................................           11         (32)         (25)
    Trucks...............................................................          228        (216)        (179)
    Parking..............................................................           54         (72)         (53)
    Insurance............................................................           40         (52)         (39)
    Maintenance..........................................................           70         (93)         (68)
    Recruitment..........................................................           75         (99)         (73)
                                                                          --------------
        Total Costs......................................................          764      (1,356)      (1,073)
----------------------------------------------------------------------------------------------------------------

    Table 7 (RIA Exhibit 9-3) shows similar calculations for short-haul 
operations, and Table 8 (RIA Exhibit 9-4) reports total direct cost 
changes.

                                    Table 7.--Direct Cost Changes--Short-Haul
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                              Cost category                                    PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Driver Labor Cost........................................................        1,557         (38)           90
    Avoided Labor Wages..................................................      (3,655)          165        (298)
    Avoided Labor Benefits...............................................        (219)           10         (17)
    New Labor Wages......................................................        3,798        (150)          309
    New Labor Benefits...................................................        1,633         (64)           96
Other Costs..............................................................        1,038         (49)           78
    Non-driver Labor.....................................................           62          (2)            4
    Trucks...............................................................          517         (23)           33
    Parking..............................................................          105          (5)           10
    Insurance............................................................           76          (4)            7
    Maintenance..........................................................          134          (7)           12

[[Page 22496]]

 
    Recruitment..........................................................          144          (7)           13
                                                                          --------------
        Total Costs......................................................        2,595         (87)         168
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-3. Totals do not add due to rounding.


                                       Table 8.--Total Direct Cost Changes
                      (Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                               PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul................................................................          764      (1,356)      (1,073)
Short-haul...............................................................        2,595         (87)          168
                                                                          --------------
    Total................................................................        3,360      (1,442)       (905)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-4. Totals do not add due to rounding.

    The FMCSA analyzed two secondary effects of the need to change the 
number of drivers in response to the HOS rule alternatives: wage rate 
changes due to the need to draw new drivers into the industry, and mode 
shifts in response to changes in the costs of long-haul operations. The 
changes in drivers shown in Table 5 (RIA Exhibit 9-1) were first 
translated into changes in market wage rates for drivers using a driver 
supply elasticity of 5.0. The resulting percentage changes in wages are 
shown in the second line of Table 9 (RIA Exhibit 9-5). The effects of 
that increase on the total costs of the long-haul sector are presented 
in the next line, followed by the total increase in long-haul costs 
including both the costs for changes in labor and capital, and the 
costs due to the wage increases. This total cost increase is then 
compared to the total costs for all long-haul operations to yield a 
percentage increase in long-haul costs.

               Table 9.--Long-haul Cost Changes Including Wage Increases and Resulting Mode Shifts
                 [(Costs in millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                               PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Direct HOS-Induced Costs, Long-haul Only.................................          764      (1,356)      (1,073)
Percentage Change in Wages due to Driver Supply Elasticity...............         1.2%       (0.6)%       (0.3)%
Increase in Long-haul Wage Bill due to Wage Increases....................          752        (366)        (206)
Total Increase in Long-haul Costs........................................       1,517%     (1,722)%     (1,279)%
Percentage Increase in Long-haul Costs...................................         0.4%       (0.4)%       (0.3)%
Percentage Change in Long-haul VMT due to Mode Shift.....................      (0.32)%        0.37%        0.25%
Change in Long-haul Drivers due to Mode Shift............................      (4,875)        5,535        3,820
----------------------------------------------------------------------------------------------------------------

    Given this percentage increase in long-haul costs, the assumption 
that this cost increase is passed on to shippers, a measure of the 
sensitivity of mode choice to prices, and an estimate of the portion of 
the long-haul sector that is sensitive to competition from rail, the 
FMCSA estimated the percentage change in long-haul VMT that would 
result from changes in the mode split. Assuming a constant relationship 
between drivers and VMT allowed the agency to estimate the change in 
long-haul drivers resulting from the projected mode shift. The long-
haul wage increases and changes in mode shifts are not included 
elsewhere in the RIA, because these represent transfers in welfare 
among groups and not net social costs to society.

Net Benefits

    The net social benefits of the alternatives, relative to the 
current rules with full compliance, are found by subtracting the social 
costs from the benefits. The results are shown in Table 10 (modified 
RIA Exhibit 9-10), below.

                     Table 10.--Net Benefits Relative to Current Rules With Full Compliance
                      [(Millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                       PATT         ATA             FMCSA
----------------------------------------------------------------------------------------------------------------
Total Benefits....................................................        341        (272)        228
Total Cost........................................................      3,360      (1,442)       (905)
Net Benefits......................................................     (3,019)      1,170       1,133
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-4 and 9-8.


[[Page 22497]]

Discussion of Net Benefit Results

    The analyses presented above show that both the ATA and FMCSA 
alternatives have net benefits compared to the current rules with full 
compliance. Of these two alternatives, only the FMCSA alternative 
provides positive benefits compared to the current rules with full 
compliance; the ATA alternative has negative benefits that are 
outweighed by larger cost savings. The PATT alternative has somewhat 
higher benefits than the FMCSA alternative, but imposes costs that 
outweigh the additional benefits.
    The relative costs and benefits of the alternatives differ 
considerably between the long-haul and short-haul segments. Most of the 
costs of the more protective alternatives, PATT and FMCSA, arise in the 
short-haul segment, but all of their benefits come from reducing long-
haul crashes. Fatigue and fatigue-related crashes are considerably less 
common in short-haul operations, and the alternatives that limit hours 
of work appear to be unlikely to make substantial reductions in those 
crashes. On the other hand, the need to hire many more drivers in 
response to the restrictions would cause increases in crashes over the 
ten-year time horizon of this study, and those additional crashes would 
counterbalance the small predicted reductions in fatigue-related 
crashes.
    In long-haul alternatives, though, the fraction of crashes 
attributable to fatigue is considerably larger, and the two protective 
alternatives are predicted to reduce those crashes considerably. 
Considering the long-haul segment only, the FMCSA alternative is 
superior on net benefit grounds to the ATA and PATT alternatives as 
well as the current rules with full compliance.

            Table 11.--Net Benefits by Length of Haul Relative to Current Rules With Full Compliance
                      [(Millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                               PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
    Total Benefits.......................................................          374        (269)          225
    Total Cost...........................................................          764      (1,356)      (1,073)
                                                                          --------------
        Total Net Benefits...............................................        (390)        1,087        1,298
Short-haul:
    Total Benefits.......................................................         (34)          (4)            4
    Total Cost...........................................................        2,595         (87)          168
                                                                          --------------
        Total Net Benefits...............................................      (2,629)           83       (164)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-4, 9-4, and 9-8.

Limitations and Sensitivities

    One important source of complete certainty is the magnitude of the 
effects of ``time on task'' on crash risks. As discussed in RIA Chapter 
8.1.5, there is likely to be an increase in risk as continuous hours of 
driving increase that is independent of the effects of circadian 
rhythms and sleep deficits. The FMCSA was not able to model this 
independent effect, however, due to uncertainty about its magnitude for 
very long hours of driving. If that effect were actually large, the 
more protective alternatives would show relatively higher benefits. 
Uncertainty about the time-on-task effect is particularly great for 
very long hours of driving, in part because very long driving shifts 
are not permitted. They are therefore both rare and difficult to study. 
In particular, the 16-hour driving shifts that would be allowed at 
times under one of the alternatives (a provision that we did not model 
for this analysis) would be very rare and hard to study under real 
world conditions.
    Another place where complete certainty may not be found is in the 
8.15 percent estimate of crashes in the status quo that can be 
attributed to fatigue. The NPRM regulatory evaluation included an 
estimate that 15 percent of all crashes were fatigue-relevant. The 
estimate of 15 percent was supported in the docket and at public 
hearings by some safety groups, while the ATA and others argued that 
the correct value was closer to 4 to 5 percent. The NPRM's estimate was 
comprised of 2 separate components: 5 percent fatigue crashes, and 10 
percent fatigue relevant crashes. The 5 percent figure came from FMCSA 
and NHTSA summary of data from NHTSA databases and other studies. Most 
of these databases and studies estimated fatigue by counting the number 
of citations for fatigue from police accident reports. The 10 percent 
fatigue relevant figure was based on FMCSA's best estimate at the time 
about the percent of inattention crashes that are at least indirectly 
related to fatigue. The agency had no studies to suggest that 10 
percent was correct, but the data suggested that some percent of 
inattention crashes were related to driver fatigue.
    Because of these criticisms, and because we did not have a specific 
reason to pick 10 percent, FMCSA revisited the NPRM's estimate in this 
regulatory evaluation. The agency only used data from police reports 
and national databases, with no qualitative adjustments. As explained 
in Chapter 8 of the RIA, we used FARS data from 1997 through 2000, and 
found that fatigue was cited in an average of 7.25 percent of crashes; 
4.33 percent of crashes were cited for inattention. The FMCSA sponsored 
study by Hanowski, Wierwille, Garness, Dingus, Impact of Local/Short 
Haul Operations on Driver Fatigue, found that fatigue was a factor in 
20.8 percent of inattention crashes. Therefore, FMCSA added 0.9 percent 
(20.8 times 4.33) to 7.25 to obtain our final estimate of 8.15 percent.
    As noted in Discussion of Net Benefit Results above, reviewing the 
costs and benefits by length of haul reveals that the alternatives have 
very different cost/benefit profiles for long-haul compared to short-
haul operations. The FMCSA alternative, for example, provides net 
benefits in long-haul operations, but has net costs for short-haul.
    Although the estimated costs for imposing new HOS requirements on 
short haul motor carrier operations exceeds the potential benefits for 
that specific segment of the industry, the population of drivers 
employed by these carriers and the VMT by them each year suggests that 
it is necessary to include short haul operations in this final rule.
    The population of short haul drivers is approximately equal to the 
population of long-haul drivers, about 1.5 million drivers in each of 
the two categories. However, the vehicle miles traveled (VMT) by short-
haul drivers is

[[Page 22498]]

about one half that of the long-haul drivers, with short-haul 
operations accounting for 80 billion VMT versus 166 billion VMT for 
long-haul operations. When consideration is given for VMT, short-haul 
operations represent a significant risk of accident involvement that is 
comparable to, if not greater than, the risks presented by long-haul 
operations. While the economic analyses of the costs and benefits 
indicates that most of the costs of fatigue-related accidents, and the 
benefits of this final rule appear to be associated with long-haul 
operations, the obligation of the FMCSA to improve to the greatest 
extent practicable the safety of all CMV operations necessitates the 
inclusion of short-haul operations.
    The research studies FMCSA reviewed as part of the rulemaking 
process indicates that the current HOS rules do not provide drivers 
with sufficient opportunities for restorative sleep. Under the current 
rules, a driver operating on a minimally compliant schedule would only 
be provided eight consecutive hours off duty. This eight-hour period 
includes the time for the driver to leave his/her work-reporting 
location, travel to a location for rest, rest, and return to the work-
reporting location. Generally, this means that under the current 
regulations, the driver would have significantly less than eight hours 
to obtain meaningful rest. The consequences of this type of minimally 
compliant schedule are typically most severe during emergency driving 
maneuvers or other high-risk driving tasks such as driving in inclement 
weather or in heavy traffic, as the driving demands may exceed the 
capability of the driver suffering from a decreased level of alertness. 
The risks and potential consequences are present for both long-haul and 
short-haul operations such that excluding short-haul operations from 
the final rule would needlessly subject the motoring public to an 
unnecessarily high level of risk. The risk of an accident that could be 
attributable in whole or in part to a driver's minimally compliant 
work-rest cycle, could be significantly reduced if short-haul 
operations are covered by the final rule.
    Since the overall benefits of the rulemaking exceed the overall 
costs for the freight transporters operating at full compliance, FMCSA 
believes the inclusion of short-haul operations in the final rule is 
appropriate despite the seemingly disproportionate costs of compliance 
with the rule. There is clearly a need to ensure better opportunities 
for restorative sleep for all CMV drivers working minimally compliant 
schedules. Moving forward with a final rule that excludes short-haul 
drivers would fragment this initiative in such a manner that it may 
prove extremely difficult to complete a separate rulemaking at a later 
date that would provide a better potential safety outcome at a lower 
cost than this final rule. Given the choice between (1) continuing to 
allow minimally compliant work-rest cycles to be used by approximately 
half the regulated drivers for the sake of improving estimated benefit-
to-cost ratios, or (2) sacrificing a portion of the benefits of the 
rulemaking to ensure that all drivers transporting freight are required 
to adhere to work-rest cycles that are more consistent with sleep 
research, the FMCSA has chosen to ensure the highest practicable level 
of safety, based on the data currently available.
    The observation that the alternatives are less cost-effective in 
short-haul operations was part of the FMCSA staff's motivation for 
providing more flexibility in the staff alternative for short-haul 
drivers, allowing one 16-hour shift per week. The FMCSA assessed the 
effects of this flexibility by examining the costs and benefits of the 
staff alternative without allowing any 16-hour shifts.
    As stated above under the FMCSA Response to the Daily On-Duty Time 
section, the FMCSA found that restricting those drivers who return to 
the normal work reporting location at the end of every shift has the 
unintended consequence of requiring a significant increase in new 
drivers. These new drivers would increase both costs and crashes. The 
analyses showed that by allowing these short-haul drivers the 
flexibility to work up to 16 hours one day in a week would reduce the 
number of additional drivers needed for the staff alternative. This 
flexibility would result in cost savings of nearly $500 million and 
safety benefits of nearly $10 million.
    With this change to the FMCSA staff alternative, its net benefits 
compared to current rules with full compliance would drop to about one 
half of one billion dollars per year. These results are shown in Table 
12 (RIA Exhibit 9-12).

            Table 12.--Net Benefits by Length of Haul Relative to Current Rules With Full Compliance
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                                                  FMCSA, without
                                                    PATT             ATA             FMCSA          short-haul
                                                                                                   flexibility
----------------------------------------------------------------------------------------------------------------
Long-haul:
    Total Benefits..........................             374             (269)             225              225
    Total Cost..............................             764           (1,356)          (1,073)          (1,073)
                                             ------------------
        Total Net Benefits..................            (390)           1,087            1,298            1,298
Short-haul:
    Total Benefits..........................             (34)              (4)               4               (5)
    Total Cost..............................           2,595              (87)             168              641
                                             ------------------
        Total Net Benefits..................          (2,629)              83             (164)            (646)
                                             ==================
Total:
        Total Net Benefits..................          (3,019)           1,170            1,133             652
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-11. Totals may not add due to rounding.


[[Page 22499]]

Costs and Benefits Relative to the Status Quo

    This section reviews the costs and benefits presented in chapter 9 
of the RIA relative to a baseline representing the status quo. Table 13 
(RIA Exhibit 9-13) presents the changes in drivers needed relative to 
the Status Quo scenario; because the difference in drivers needed 
between the Status Quo and the Current Rules/100 percent is 8.1 percent 
for long-haul, that amount was added to the estimates that were 
presented in Table 5 (RIA Exhibit 9-1) for each of the alternatives. 
Similarly, the amount shown in the other rows of the ``Current/100 
percent'' column in Table 13 (RIA Exhibit 9-13) was added to the 
estimates presented in Table 5 (RIA Exhibit 9-1) for each of the other 
alternatives. Because achieving full compliance with the current rule 
would require more drivers, all of the values in Table 13 are higher 
than those in Table 5.

           Table 13.--Changes in Drivers Needed in Response to HOS Limits, Relative to the Status Quo
----------------------------------------------------------------------------------------------------------------
                                                    Current/100
                                                      percent          PATT             ATA            FMCSA
----------------------------------------------------------------------------------------------------------------
Percentage Change:
    Long-haul...................................             8.1            12.1             2.8             4.2
    Short-haul..................................             0.7             8.4             0.3             1.4
                                                 =================
Numbers:
    Long-haul...................................         121,500         181,500          42,000          63,000
    Short-haul..................................          10,800         126,300           4,800          21,300
                                                 -----------------
        Total...................................         132,300         307,800          46,800         84,300
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-1.

    The direct costs of the alternatives relative to the Status Quo are 
shown in Table 14 (RIA Exhibit 9-14). This exhibit shows the costs of 
the current rules with full compliance in the fourth column from the 
right. The other columns show selected cost data from Table 6 and 7 
with the cost of compliance with the current rules added. Because there 
would be costs for compliance with the current rules, the costs of each 
of the alternatives are higher relative to the status quo than relative 
to the current rule with full compliance.

                              Table 14.--Direct Cost Changes Relative to Status Quo
                                         [Millions of dollars per year]
----------------------------------------------------------------------------------------------------------------
                                                              Current/100
                        Cost category                           percent        PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
    Driver Labor Cost.......................................        1,185        1,472          393          550
    Other Costs.............................................          769        1,247          206          332
                                                             --------------
        Total Costs.........................................        1,954        2,719          599          882
Short-haul:
    Driver Labor Cost.......................................          143        1,700          105          233
    Other Costs.............................................           90        1,128           41          168
                                                             --------------
        Total Costs.........................................          232        2,827          146          400
                                                             ==============
        Total Costs, Long-haul and Short-haul...............        2,187        5,546          744       1,282
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-2 and 9-3. Totals may not add due to rounding.

    Tables 15 and 16 (RIA Exhibits 9-15 and 9-16) show the benefits and 
adjusted benefits of compliance with the current rule, as well as the 
alternatives, relative to the status quo. These tables are based on 
Tables 1 and 3, with the benefits of compliance with the current rules 
added to the values in those tables. Because there would be substantial 
benefits to achieving full compliance with the current rule, the 
benefits shown in these tables are higher than those shown in Tables 1 
and 3.

             Table 15.-- Value of Crashes Avoided Due to Operational Changes Relative to Status Quo
                                         [Millions of dollars per year]
----------------------------------------------------------------------------------------------------------------
                                                              Current/100
                                                                percent        PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Benefits of Avoided Long-haul Crashes.......................          429          794          162          653
Benefits of Avoided Short-haul Crashes......................           22           58           14           32
                                                             --------------
    Total Benefits of Operational Changes...................          451          852          176         685
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6.


[[Page 22500]]


        Table 16.--Adjustments to Benefits Due to Secondary Effects of Options Relative to the Status Quo
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                              Current/100
                                                                percent        PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Change in Benefits due to New Long-haul Drivers.............        (103)        (154)         (36)         (54)
Change in Benefits due to New Short-haul Drivers............          (7)         (77)          (3)         (13)
Change in Benefits due to New Long-haul and Short-haul              (110)        (230)         (38)         (67)
 Drivers....................................................
Change in Benefits due to Change in Long-haul VMT...........          101          162           32           54
Net Damages (i.e., Reduction in Benefits due to Secondary             (9)         (68)          (6)         (14)
 Effects)...................................................
Total Unadjusted Benefits...................................          452          851          176          685
Total Adjusted Benefits.....................................          443          783          170         671
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-8. Totals may not sum due to rounding.

    Finally, Table 17 (RIA Exhibit 9-17) shows the net benefits of 
compliance with the current rule and of the alternatives, relative to 
the Status Quo. This table presents the total cost and total benefits 
lines from Tables 14 and 16, and subtracts costs from benefits to yield 
net benefits.

                                 Table 17.--Net Benefits Relative to Status Quo
                      [(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
                                                                Current/
                                                                  100%         PATT         ATA         FMCSA
----------------------------------------------------------------------------------------------------------------
Total Benefits..............................................          443          783          170          671
Total Costs.................................................        2,187        5,546          744        1,282
Net Benefits................................................      (1,744)      (4,763)        (574)       (611)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-12 and 9-14.

    Table 18 shows the impact of different assumed baseline percentages 
of fatigue-related crashes. Specifically, it includes estimates of the 
benefits and number of fatalities assuming that 5 percent and 15 
percent of all current crashes are fatigue-related (compared to a 
baseline figure of 8.15 percent). These values were chosen because the 
majority of the figures submitted to the docket or in public hearings 
fall within this range. The FMCSA's interpretation of the crash 
literature indicates that it is very unlikely that the true percent of 
fatigue-related crashes falls outside this range.

 Table 18.--Sensitivity Analysis of Number of Fatalities Using Different
                Baseline Percent Fatigue-related Crashes
                  [Values in parentheses are negative]
------------------------------------------------------------------------
                                         Status      100%
                                          Quo     Compliance     FMCSA
------------------------------------------------------------------------
5% Baseline Fatalities...............        243        196         171
Change from Status Quo...............          0        (47)        (71)
Change from 100%.....................         NA          0         (24)
8.15% Baseline Fatalities............        396        318         278
Change from Status Quo...............          0        (79)       (120)
Change from 100%.....................         NA          0         (40)
15% Baseline Fatalities..............        729        584         510
Change from Status Quo...............          0       (144)       (219)
Change from 100%.....................         NA          0         (75) 
------------------------------------------------------------------------
Numbers may not add because of rounding.

    Based on Table 18, if motor carriers were adhering fully to the 
current HOS regulations, the FMCSA estimates that between 196 and 585 
fatalities would occur each year on the Nation's roads because of 
drowsy, tired, or fatigued CMV drivers transporting property. The FMCSA 
estimates that this final rule, when motor carriers adhere to it fully, 
would save between 24 and 75 lives each year as compared to complying 
fully with the current rules.
    The RIA shows that both the ATA and FMCSA alternatives have net 
benefits compared to the current rules with full compliance. Only the 
FMCSA alternative, however, provides positive safety benefits compared 
to the current rules with full compliance; the ATA alternative has 
large cost savings that outweigh negative safety benefits. The PATT 
alternative has somewhat higher safety benefits than the FMCSA 
alternative, but imposes costs that outweigh the additional benefits.
    After careful consideration of the regulatory impacts of the 
alternatives analyzed, the FMCSA has decided to make final the 
alternative proposed by the agency staff. All of the changes are within 
the range of changes proposed in the NPRM. The FMCSA has also chosen to 
maintain most existing rules for passenger carriers, including carriers 
of migrant workers.
    The FMCSA believes these requirements will increase driver 
alertness and reduce fatigue problems, if

[[Page 22501]]

drivers and motor carriers adhere to them. The FMCSA has 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. The FMCSA can only emphasize the driver's responsibility to 
assure himself of adequate rest and sleep, in the time available for 
this purpose, to insure safety of his driving, and, similarly, the 
motor carrier's responsibility to see that its drivers report for work 
in fit condition.
    Drivers must manage their off-duty time intelligently if this final 
rule is to be effective. Some drivers may continue to drive more hours 
than this final rule allows in order to earn more money. Others may 
perform non-driving jobs during their off-duty time; commute long 
distances to and from home; or engage in other pursuits that interfere 
with their obligation to obtain proper sleep and be prepared to drive 
safely. Under this final rule, 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.
    The FMCSA believes this economically significant and major final 
rule is a reasonable balance of factors because it provides the best 
combination of increased driver alertness and reduced numbers of 
fatigue-related incidents, while providing cost effective safety 
benefits to society.

Changes Compared to May 2, 2000 NPRM

Categories of Operations

    The NPRM proposed five types of operation. As explained above, the 
FMCSA has chosen to drop categorization based on comments showing 
categories created confusion, problems for enforcement, and did not 
fully meet the objective of accommodating the diversity of the 
industry.

Passenger Carrier Operations

    The NPRM proposed regulating passenger carriers the same as 
property carriers. As explained in the discussion of the comments, the 
FMCSA has decided to retain the existing rules for passenger carriers; 
those operators will continue to be subject to the rules in effect 
before this final rule was adopted.

NHS Act Exemptions

    The NPRM proposed to maintain the HOS exemption for groundwater 
well drillers without change. It would have narrowed the exemptions for 
agricultural commodities and farmers by defining certain terms 
narrowly. Finally, the NPRM would have subjected the construction and 
utility-service-vehicle exemptions to the proposed off-duty time 
periods (56 to 32 hours) every seven consecutive days. As explained in 
the discussion of comments about NHS Act exemptions, the FMCSA has 
chosen to withdraw these proposals.
    The agricultural exemption in effect before this final rule was 
published will remain in effect. The 24-hour restart provisions 
applicable to drivers of ground water well drilling rigs and utility 
service vehicles, and to drivers who transport construction materials 
and equipment, will also remain in effect. Eligible drivers, however, 
will now be subject to the new 11-hour driving limit, with no driving 
after the end of the 14th hour after coming on duty, and will be 
required to take 10 consecutive hours off duty. Such drivers will also 
be eligible to take the exemption in Sec.  395.1(o) allowing up to a 
16-hour work day, when they meet the conditions in that paragraph.

Sleeper Berth Provision

    The NPRM proposed to eliminate the use of sleeper berths for solo 
drivers to comply with the HOS rules. It would have allowed team 
drivers to accumulate 10 hours off duty in two periods in a sleeper 
berth, one of which would have to be at least 5 hours long. As 
explained in the discussion of comments on this issue, the FMCSA will 
maintain the split off-duty period of the current sleeper berth 
provision. However, the agency is increasing the requirement for 
cumulative off-duty time to 10 hours for property carriers. Thus, 
property-carrying drivers who use sleeper berths may take their minimum 
10 hours off-duty in two periods, the shorter period must be at least 2 
hours. Passenger-carrying drivers who use sleeper berths may take their 
minimum 8 hours off-duty in two periods, the shorter period must be at 
least 2 hours.

Carrier Notification of Drivers During Their Off-Duty Hours

    The NPRM proposed a kind of restart that would be triggered by 
employers or their agents violating the proposed prohibitions against 
interrupting drivers' off-duty periods. The proposal was designed to 
address complaints the agency has received over the years regarding 
unreasonable calls from dispatchers and other carrier employees that 
caused drivers to lose the opportunity to sleep. As proposed, such an 
interruption would start the full interrupted off-duty period over 
again from the time of the interruption. As explained above in the 
discussion of this provision, the FMCSA has decided to withdraw the 
proposal.

Daily Work-Rest Cycle

    The NPRM proposed duty and off-duty periods that would have added 
up to a regularly recurring 24-hour work day. As explained in the 
discussion of the relevant comments above, the FMCSA will maintain the 
current rules for passenger carriers. The rules for property carriers 
are being modified to reduce the allowable amount of backward rotation 
of the ``daily'' schedule.

Daily Off-Duty Time

    The NPRM proposed consecutive daily off-duty periods for obtaining 
sleep from 9 to 12 hours depending on the category of operation. As 
explained earlier in this document, the FMCSA has chosen to maintain 
the rule requiring 8 consecutive hours off-duty for passenger carriers 
and to increase the minimum daily off-duty period to 10 consecutive 
hours for property carriers.

Daily On-Duty Time

    The NPRM proposed that drivers could accumulate no more than 12 
hours of driving and non-driving duty time (15 hours for ``Type 5'' 
drivers) in any 24-hour period. The FMCSA has decided to retain the 
current HOS rule for passenger-carrying drivers. Property-carrying 
drivers will have an on-duty limit of 14 hours from the start of each 
tour of duty to do all work, naps, and meal breaks. Property-carrying 
drivers must not drive after 11 cumulative hours of driving after 
starting each tour of duty. Property-carrying drivers who have returned 
to their normal work reporting location each of the last five work days 
(short-haul), may be on duty, one day out of each 7-day period, for up 
to 16 consecutive hours after starting the tour of duty.

Distinctions in Duty Time

    The expert panel assembled by the agency to review the options 
under consideration before publication of the NPRM recommended 
eliminating the distinction between on-duty time and driving time. The 
scientific basis for the recommendation was the conclusion that driving 
is no more tiring than many of the other tasks a truck driver would be 
called upon to perform.
    In addition to striving for a productivity-neutral outcome, the 
agency's practical basis for proposing the elimination was to reduce 
the paperwork burden. Under the existing rules, drivers are required to 
account for both driving time and non-driving duty time. Eliminating 
the distinction,

[[Page 22502]]

moreover, would have achieved consistency with the terminology used by 
the DOL, allowing FMCSA to rely on DOL records in place of driver 
records of duty status.
    The agency has decided to continue the distinction between driving 
time and on-duty time. Within the limits of a tour of duty usually 
lasting no more than 14 hours, the FMCSA believes there is little doubt 
that modern CMVs can be driven safely up to 11 hours, particularly 
because rest breaks can be expected to naturally occur during the 
course of that tour. The FMCSA believes that the last hour of a 
driver's duty tour would be expected to be driving time that comes near 
the end of a 13- or 14-hour workday and is persuaded that 11 hours is a 
more reasonable limit. FMCSA will continue to rely on the driver-
prepared records of duty status and the documents that support those 
records.

Weekly or Longer Cycle

    The scientific basis for proposing weekly restrictions is the 
finding from research studies that sleep debt from multiple periods of 
insufficient (poor quality or insufficient quantity) sleep is the major 
cause of cumulative fatigue. The recommended countermeasure is a 
recovery period during which restorative sleep may be obtained and the 
sleep debt repaid. The concept of a weekly recovery period was 
presented in the NPRM in the definition of workweek, i.e., ``any fixed 
and regularly recurring period of seven consecutive workdays,'' and in 
the number of hours required to be off-duty before beginning the next 
workweek.
    The FMCSA has concluded that the current 60-hour in 7-day and 70-
hour in 8-day limitations continue to be generally acceptable for CMV 
drivers and will retain those limits.

Weekly Recovery Periods

    The NPRM proposed to require between 32 and 56 consecutive hours 
off duty every seven consecutive days. As explained previously in this 
document, the FMCSA has decided to retain the current requirement for 
passenger-carrying drivers, i.e., these drivers may not drive 
passenger-carrying vehicles after accumulating 60 hours on-duty in any 
7 consecutive days or 70 hours in any 8 consecutive days. If the driver 
accumulated duty time at the maximum rate he/she would reach the limit 
in 4\1/4\ days and would have to take three consecutive days off-duty 
before he/she could drive CMVs again.
    The FMCSA is modifying the rule for property-carrying drivers to 
include a restart provision. A property-carrying driver may not drive 
CMVs after accumulating 60 hours on-duty in any 7 consecutive days or 
70 hours in any 8 consecutive days. If the driver accumulated duty time 
at the maximum rate, he/she would reach the limit in approximately 5 
days and would have to take at least 34 consecutive hours off-duty 
before he/she could drive CMVs again. However, the driver could start a 
new seven- or eight-day period anytime he/she took 34 consecutive hours 
off duty.

Short Rest Breaks During a Work Shift

    The NPRM proposed that additional off-duty time for personal 
reasons such as mid-shift meals, naps, and rest break periods would be 
allowed, but would result in no extension of the workday. As explained 
in the discussion of the comments on this provision, the FMCSA has 
decided to continue allowing off-duty periods for passenger-carrying 
drivers that may result in extension of the workday. The FMCSA will 
allow property-carrying drivers to take off-duty mid-shift meal, nap, 
and other rest break periods, but those breaks will not extend the 
workday.

Electronic On-Board Recording Devices

    The NPRM proposed to require EOBRs for Type 1 and 2, i.e., long-
haul and regional operations, that would have replaced driver-prepared 
paper records of duty status. The FMCSA has decided to maintain the 
current requirement for driver-prepared paper records of duty status, 
while allowing automatic recording devices to be used in lieu of the 
driver-prepared paper records of duty status at the motor carrier's 
option.

Use of Department of Labor Time Records

    The NPRM proposed to use U.S. Department of Labor (DOL) time 
records for Types 3, 4, and 5 drivers (i.e., local-split shift, local 
and primary work not driving) and to remove the distance-based 
limitation on use of such time records. As explained in the discussion 
of comments about the compliance and enforcement provisions of the 
NPRM, the FMCSA has chosen to maintain the current requirement for 
driver-prepared records of duty status and timecard records for 100 
air-mile radius drivers.

Conclusion

    This final rule incorporates the FMCSA staff alternative because it 
provides the best combination of increased driver alertness and reduced 
numbers of fatigue-related incidents, while providing cost effective 
safety benefits to society.

Section-by-Section Analysis

    The FMCSA's jurisdiction over the HOS regulations for motor 
carriers and drivers is shown in Table 19. Motor carriers and drivers 
are also subject to applicable State motor vehicle and highway safety 
laws and regulations.

   Table 19.--Applicability of FMCSA Hours of Service (HOS) of Drivers
                               Rulemaking
------------------------------------------------------------------------
                                  In interstate        In intrastate
       If you operate a:             commerce             commerce
------------------------------------------------------------------------
CMV, i.e., a motor vehicle(s)
 that has any of the following
 four characteristics:
    1. A gross vehicle weight,  You must comply    You are not subject
     gross vehicle weight        with all FMCSA     to the FMCSA HOS
     rating or gross             HOS                regulations. You may
     combination weight rating   regulations.\2\    currently be subject
     of at least 4,537                              to similar State
     kilograms (10,001 pounds)                      rules and may be
     whichever is greater; or                       subject to the final
                                                    rule in this
                                                    document, if your
                                                    State or local
                                                    government adopts
                                                    final rules in order
                                                    to participate in
                                                    the Motor Carrier
                                                    Safety Assistance
                                                    Program, 49 CFR part
                                                    350.
    2. Is designed or used to
     transport more than 8
     passengers, including the
     driver, for compensation;
     or
    3. Is designed or used to
     transport more than 15
     passengers, including the
     driver, and is not used
     to transport passengers
     for compensation; or

[[Page 22503]]

 
    4. Is used to transport
     hazardous materials in
     quantities requiring the
     vehicle to be marked or
     placarded under the
     Hazardous Materials
     Regulations (49 CFR part
     172, subparts D & F).
------------------------------------------------------------------------
\2\ Most motor carriers engaged in interstate commerce are exempt from
  the overtime requirements of the FLSA. The FLSA exemption from the
  overtime pay requirement applies only to certain employees of
  interstate motor carrier employers subject to the Motor Carrier Act of
  1935 (Pub. L. 74-255, 49 Stat. 543, August 9, 1935), but not to those
  subject only to the Motor Carrier Safety Act of 1984 (Pub. L. 98-554,
  October 30, 1984) (98 Stat. 2829). The only substantial group of
  interstate carrier employers subject to the 1984 Act that are not also
  subject to the 1935 MCA 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).

Appendix B to Part 385 Explanation of Safety Rating Process

    Section VII of appendix B to part 385 lists acute and critical 
regulations, which play an important role in assigning a safety rating. 
The descriptions of some of the HOS regulations listed there are being 
updated to conform to the requirements of this final rule. For example, 
Sec.  395.3(a)(1), a critical rule, is now summarized as ``requiring or 
permitting a driver to drive more than 10 hours.'' While Sec.  
395.3(a)(1) remains critical, the new summary will say: ``requiring or 
permitting a property-carrying commercial motor vehicle driver to drive 
more than 11 hours.'' Updating and adding appropriate citations allows 
the agency to accurately update the safety rating process on the 
compliance date of the rule. The citations being updated and added 
include Sec. Sec.  395.1(h)(1)(i), 395.1(h)(1)(ii), 395.1(h)(1)(iii), 
395.1(h)(1)(iv), 395.1(h)(2)(i), 395.1(h)(2)(ii), 395.1(h)(2)(iii), 
395.1(h)(2)(iv), 395.1(o), 395.3(a)(1), 395.3(a)(2) 395.3(a)(2), 
395.3(b)(1), 395.3(b)(2), 395.3(c)(1), 395.3(c)(2), 395.5(a)(1), 
395.5(a)(1), 395.5(a)(2), 395.5(b)(1), and 395.5(b)(2).

Section 390.23 Relief From Regulations

    Paragraphs (b) and (c) of Sec.  390.23 address the restart 
provisions the agency provided in the emergency relief exemption of 
July 30, 1992 (57 FR 33638, at 33647). This rule amends the daily and 
weekly restart provisions for normal duty in interstate commerce and 
the agency believes it must conform the emergency relief exemption to 
the standard being adopted today. This amendment requires that drivers 
who provide direct assistance, as defined by Sec.  390.5, to emergency 
relief efforts must, before returning to normal duty in interstate 
commerce, (1) take at least 10 consecutive hours off-duty, if they have 
driven more than 11 hours or have been on duty more than 14 hours, and 
(2) take at least 34 consecutive hours off duty, if they have been on 
duty more than 60 hours in 7 days or 70 hours in 8 days.

 Section 395.0 Compliance Date for Certain Requirements for Hours of 
Service of Drivers.

    The agency is adding Sec.  395.0 to specify when motor carriers and 
drivers must comply with this final rule. The effective date cited in 
the DATES: heading at the top of this document is the date that this 
final rule's amendments affect the current Code of Federal Regulations 
published by the Government Printing Office. Motor carriers of property 
and drivers of property-carrying commercial motor vehicles may not 
begin to comply with this final rule on that date.
    The compliance date is the date that motor carriers of property and 
drivers must begin to comply with this final rule. Motor carriers of 
property, drivers of property-carrying commercial motor vehicles, 
Federal, State, and local law enforcement officers, and the FMCSA must 
do many necessary things before the rules can be enforced. The FMCSA 
must update motor carrier information, compliance, and enforcement 
computer systems and manuals. The FMCSA has eight computer software 
packages where it must find the correct code, write new code, test the 
new software, and distribute it to its division offices and State and 
local partners.
    The agency must develop training, distribute training materials, 
and ensure training materials are read, taught, and understood by 
approximately 8,000 Federal, State, and local law enforcement officers. 
The agency also plans to provide training and presentations to the 
public about the new rules.
    Motor carriers must develop training or use FMCSA's training 
materials, distribute training materials, and ensure training materials 
are read, taught, and understood by the millions of drivers engaged in 
interstate commerce who transport freight and other types of property. 
The FMCSA must also ensure the CVSA updates its Out-Of-Service 
criteria. The FMCSA cannot do its part, and cannot expect motor 
carriers to do their part, within 60 days after today.
    The agency believes a compliance date on a Sunday will be the least 
burdensome to all carriers and enforcement officials. Most affected 
carriers subject to this final rule operate on a Sunday to Saturday 
basis and most affected carriers would suffer less disruption to their 
operations if the rule took effect at the beginning of a new week. 
Therefore, the agency is providing a compliance date when all carriers, 
drivers, and enforcement officials will switch from the current rule to 
the new rule: Sunday, January 4, 2004.
    Finally, this section is only necessary for a few months until all 
affected motor carriers learn about the new rule and begin complying 
with it. Therefore, the FMCSA has added language to the DATES section 
that will only make this section effective in the Code of Federal 
Regulations temporarily from June 27, 2003, through June 30, 2004. 
After June 30, 2004, the Government Printing Office will remove this 
section from the Code of Federal Regulations. Thus, the October, 1, 
2004, edition and all subsequent editions of the Code of Federal 
Regulations will not contain Sec.  395.0.

Section 395.1 Scope of Rules in This Part

    Section 395.1 is amended by revising paragraphs (b), (e)(3), 
(e)(4), (g), (h), and (j) to use the new off-duty, on-duty, and driving 
limits for drivers of property-carrying vehicles, while maintaining the 
current off-duty, on-duty, and driving limits for drivers of passenger-
carrying vehicles.
    Paragraph (b) is the adverse driving condition exception. It is 
being revised to update the daily limits. The adverse driving condition 
exception applies only to the driving time limitation of 11 hours for 
property-carrying vehicles or 10 hours for passenger-carrying vehicles. 
The adverse driving condition exception cannot be used if the driver

[[Page 22504]]

has accumulated driving time and on-duty (not driving) time, that would 
put the driver over on duty hour limit or over the 60 hour in 7 day or 
70 hours in 8 consecutive day limits. In addition, the adverse driving 
condition exception cannot be used for loading and unloading delays. An 
absolute prerequisite for claiming the adverse driving condition 
exception is that the trip involved is one which could normally and 
reasonably have been completed without a violation and that the 
unforeseen event occurred after the driver began the trip.
    Drivers who are dispatched after the motor carrier has been 
notified or should have known of adverse driving conditions are not 
eligible for the two hours additional driving time.
    Paragraphs (e)(3) and (e)(4) are being revised to update the 100-
air mile radius exception to the record of duty status requirement. 
When all five of the conditions in paragraph (e) are met, a carrier may 
maintain time records for the driver.
    Paragraph (g) is being revised to update the off-duty, on-duty, and 
driving limits of the sleeper berth exception. The FMCSA is improving 
the regulatory text for the sleeper berth provision to ensure a clear 
understanding of the rule. The agency has borrowed, but modified, the 
Government of Canada's 1994 version of the sleeper berth rule (SOR/94-
716, s. 5) because its language is clearer than the wording adopted by 
the ICC in 1938. This change will not affect the way the FMCSA now 
enforces the sleeper berth exception.
    The provisions requiring the summation of the driving and on-duty 
hours immediately before and after each rest period are necessary to 
ensure that drivers on irregular schedules do not accumulate 
significant amounts of fatigue. These provisions, which reflect many 
decades of enforcement practice, are well understood in the motor 
carrier industry. Paragraphs (g)(1)(iv), (g)(2)(iv), and (g)(3)(iv), 
requiring at least 10 consecutive hours off duty or in a sleeper berth, 
or a combination of at least 10 consecutive hours of sleeper-berth and 
off-duty time before returning to regular driving, has also been part 
of the agency's traditional enforcement practice for sleeper berth 
operations.
    For example, a driver can stretch out her driving and on-duty time 
by using sleeper berth equipment, although she will continue to be 
limited by the driving time and on-duty time limits. A driver does not 
have to take her sleeper berth time all at once. She can get her 10 
hours off duty by splitting it into two periods. A sleeper berth period 
of less than 2 hours does not count towards the 10 hour total, but the 
driver must record a period of less than 2 hours as sleeper berth time. 
This is an example of how the rule works for drivers of property-
carrying vehicles:
    1. Drive for part of your 11 hours;
    2. Rest in the sleeper berth for at least 2 hours;
    3. Drive the remaining part of your 11 hours; and
    4. Rest in the sleeper berth again to finish your 10 hours off duty 
before driving again.
    After the second sleeper-berth period, the driver cannot drive 11 
hours. The driver must count the time she was driving between the two 
sleeper berth periods, so she must subtract the previous driving time 
in between the two sleeper-berth periods from the allowed 11 hours to 
figure her hours left to drive.
    Paragraph (h) and (j) are being revised to update the daily off-
duty limit in the exceptions for drivers operating in the State of 
Alaska and for travel time.
    Paragraph (k) is being revised to modify the reference to Sec.  
395.3 in the exception for drivers transporting agricultural 
commodities or farm supplies for agricultural purposes in certain 
States and during certain times of the year. The wording of the 
agricultural exemption in the NHS Act is not entirely clear. The FHWA 
initially interpreted the exemption as limited to Sec.  395.3, a 
conclusion reflected in the interim final rule published on April 3, 
1996 [61 FR 14677]. Subsequent consideration of the legislative 
history, however, made it clear that Congress intended farmers who 
qualified to be exempt from all of the HOS regulations. The agency 
therefore issued an interpretation to its field staff clarifying the 
reach of the regulation. This revision simply conforms the language of 
the exemption to the interpretation and the intent of the statute.
    Paragraph (o) adds an exception/exemption for certain drivers of 
property-carrying vehicles. Drivers who meet all three of the 
conditions in this paragraph (o) are eligible for the exception/
exemption. First, a property-carrying driver must have returned to the 
normal work reporting location and the carrier must have released the 
driver from duty at that location for the previous five days that the 
driver has worked. Second, the driver must return to the normal work 
reporting location and the carrier must release the driver from duty 
within 16 hours after coming on duty. Finally, the driver must not have 
used this paragraph's exception/exemption within the previous 7 
consecutive days, unless the property-carrying driver has begun a new 
7-or 8-consecutive day period. Such a driver will have had 34 or more 
consecutive hours off-duty thereby restarting the driver's week, which 
is allowed by new Sec.  395.3(c). Thus, the driver could take the next 
16-hour day on the first, second, or third day immediately following 
the 34 or more consecutive-hour off-duty period.

Section 395.3 Maximum Driving Time for Property-Carrying Vehicles

    The section heading and text of Sec.  395.3 are being revised to 
use the new off-duty, on-duty, and driving limits for drivers of 
property-carrying vehicles.
    A driver of a property-carrying vehicle that does not use a sleeper 
berth must not drive more than 11 cumulative hours following 10 
consecutive hours off duty. Such a driver also must not drive after the 
end of the 14th hour after coming on duty following 10 consecutive 
hours off duty. This means that once the driver begins a tour of duty, 
the driver's driving duties must end within 14 consecutive hours. The 
current 15 hour rule allows drivers to extend the work day by taking 
off-duty time, including meal stops and other rest breaks, of less than 
8 hours duration other than sleeper berth time. This rule requires that 
taking off-duty time, including meal stops and other rest breaks, of 
less than 10 hours duration, other than sleeper berth time, will not 
extend the work day.
    The new rule, like the current rule, does not limit the length of 
time a person can be on duty. The current rule states that a driver 
cannot drive after being on duty for 15 hours, but the driver could 
remain on duty indefinitely. This final rule states that a driver 
cannot drive after being on duty after the end of the 14th hour after 
coming on duty, but the driver also can remain on duty indefinitely. 
That time, however, would apply towards the maximum 60 or 70 hours on 
duty over 7 or 8 consecutive days. Because there will be a requirement 
for 10 consecutive hours off duty, most drivers will usually go off 
duty after 14 hours (at worst) under the new rule, not after 15 hours, 
as often happens under the current rule. But drivers will be allowed to 
drive up to 11 hours, not the 10 hours of the current rule. Shorter on-
duty time, generally, but longer driving time.
    This rule retains the current 60 hours on duty in any period of 7 
consecutive days and 70 hours on duty in any period of 8 consecutive 
day rules.
    The new rule will allow any period of 7 or 8 consecutive days to 
end with the beginning of any off duty period of 34 or more consecutive 
hours.

[[Page 22505]]

    Thus, the new rules in Sec.  395.3 would allow a driver of a 
property-carrying vehicle, who is working under the 70-hour-in-8-day 
rule, to start an 8-day period at 7 a.m. on Monday and remain on duty 
for 14 hours each day (11 hours of which could be driving time). If the 
driver reached the 70-hour limit at 9 p.m. Friday (14 hours/day x 5 
days = 70 hours), he would not be able to drive again until 7 a.m. on 
the following Tuesday (8 days after the start of the period) unless he 
immediately began an off-duty period of 34 consecutive hours, in which 
case he could begin driving again at 7 a.m. Sunday, which would be the 
start of a new 70-hour-in-8-day period.
    Likewise, a short-haul driver of a property-carrying vehicle who is 
working under the 60-hour-in-7-day rule could start a 7-day period at 6 
a.m. on Monday and remain on duty for 14 hours per day (11 hours of 
which could be driving time) Monday through Wednesday, for a total of 
42 on-duty hours. If the driver invoked the 16-hour exception in Sec.  
395.1(o) on Thursday and returned to his work reporting location at 10 
p.m., having been on duty for 15 of those 16 hours, he would have 3 on-
duty hours left (42 hours + 15 hours = 57 hours). In addition, the 
driver could not return to duty for 10 consecutive hours, i.e., until 8 
a.m. Friday morning. The driver could then drive from 8 a.m. until 11 
a.m. on Friday, but could not drive again until 6 a.m. the following 
Monday (7 days after the start of the period) unless he took 34 
consecutive hours off duty starting at 11 a.m., in which case he could 
begin a new 60-hour-in-7-day period at 9 p.m. Saturday.

Section 395.5 Maximum Driving Time for Passenger-Carrying Vehicles

    Section 395.5 moves the current rules in Sec.  395.3 to this new 
section exclusively for drivers of, and carriers using, passenger-
carrying vehicles. The current rules in Sec.  395.3 have been moved 
here verbatim, though the agency has added the qualifying phrase of ``a 
driver of a passenger-carrying vehicle'' since only these drivers may 
use the current rules after this rule's effective date.
    A driver of a passenger-carrying vehicle that does not use a 
sleeper berth must not drive more than 10 hours following 8 hours off 
duty. Such a driver also must not drive after having been on duty 15 
hours following 8 hours off duty. This rule allows drivers to extend 
the work day by taking off-duty time, including meal stops and other 
rest breaks, of less than 8 hours duration other than sleeper berth 
time. This rule retains the current 60 hours in 7 consecutive day and 
70 hours in any period of 8 consecutive day rules.

Section 395.13 Drivers Declared Out of Service

    The agency is revising Sec.  395.13 paragraphs (c)(1)(ii) and 
(d)(2) to use the new off-duty, on-duty, and driving limits for drivers 
of property-carrying vehicles, while maintaining the current off-duty, 
on-duty, and driving limits for drivers of passenger-carrying vehicles.

Section 395.15 Automatic on-Board Recording Devices

    The agency is revising Sec.  395.15 paragraph (j)(2)(ii) to also 
use the new off-duty, on-duty, and driving limits for drivers of 
property-carrying vehicles, while maintaining the current off-duty, on-
duty, and driving limits for drivers of passenger-carrying vehicles.

Rulemaking Analysis and Notices

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 
because the FMCSA estimates this action will have an annual effect on 
the economy of $100 million or more. The agency completed an RIA for 
this final rule that projects net benefits of $1.1 billion per year to 
society relative to the current rules with full compliance.
    The FMCSA has also determined that 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.
    Finally, the FMCSA has determined that this regulatory action is a 
major rule under the Congressional Review Act, 5 U.S.C. 801 et seq. The 
FMCSA discussed the RIA earlier in this document under the heading 
Regulatory Impact Analysis.

Regulatory Flexibility Act

    The ICCTA requirement for an ANPRM also began a review in 
compliance with the Regulatory Flexibility Act's requirement under 5 
U.S.C. 610 to determine whether the HOS rules should be continued 
without change, should be amended, or should be rescinded, consistent 
with the stated objectives of the applicable statutes, to minimize any 
significant economic impact of the rules upon a substantial number of 
small entities.
    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.
    Of the three alternatives evaluated in the RIA, only the PATT 
alternative would result in significant, adverse financial impacts 
(reduced profits) on most carriers. Although both the ATA alternative 
and the FMCSA alternative affect carrier finances, the resulting 
impacts generally would be favorable to carriers--that is, most 
carriers could experience reduced costs under either alternative. Also, 
all carriers would be impacted more favorably under the ATA alternative 
than under the FMCSA alternative. These findings are consistent with 
the cost results presented in Section 9 of the RIA. (See section 10.2 
of the RIA for further discussion of the results by alternative.)
    In general, smaller firms are hurt more (under the PATT 
alternative) or helped less (under either the ATA alternative or the 
FMCSA alternative) than are larger firms. Nevertheless, the RIA finds 
that the FMCSA alternative will result in favorable impacts on all 
carriers (including owner/operators with one tractor) except for firms 
in the 2-9 tractor size category. Firms in the 2-9 tractor size 
category are initially expected to lose approximately 8 percent of 
their net income, compared to the current rules with full compliance. 
For the median firm in this category, this results from a loss of 
approximately 0.5 of revenue per carrier, about $2,700. Revenue will 
fall from about $534,000 to about $531,000.
    This reduction is based on industry-wide adjustments, as the wage 
rate and price of trucking are both expected to drop when compared to 
the current rules with full compliance. Wages will decline somewhat 
less than trucking rates. The analysis used several conservative 
assumptions in estimating the impact on these small carriers. 
Specifically, the agency assumed that shipping prices drop immediately 
(lowering revenue to carriers), while shipments grow more slowly 
(delaying carriers revenue growth). Realistically, both these 
adjustments are likely to take some time, so that the overall impact on 
these carriers is likely to be smaller than estimated in our analysis. 
As soon as carriers increase shipments to take

[[Page 22506]]

advantage of these extra hours, carrier revenue and net income will 
return to, or surpass, their current levels. (See RIA section 10.3 for 
further information addressing differential impacts on carriers in 
different size categories.)
    The entities affected by the HOS rules include long-haul and short-
haul operations. Chapter 10 of the RIA presents detailed analyses of 
the effects of the rules on long-haul operations, and shows that any 
adverse effects of the FMCSA option on small entities would be slight 
and of very limited duration. That chapter did not examine firms 
engaged in short-haul trucking due to the small magnitude of the rule's 
effects on short-haul operations. The FMCSA, however, offers a fuller 
explanation of the reasons for expecting minimal short-haul impacts 
here.
    The FMCSA has divided this analysis into five sections, covering 
the affected entities; the definitions of ``small'' used for the 
analysis; the number of small entities; the thresholds used for the 
analysis; the costs of the HOS rules, on average and for the most 
affected firms; and the factual determination of the numbers of small 
entities significantly affected.
    The basic findings of this analysis are that, although large 
numbers of small entities are affected by the HOS rules regarding 
short-haul operation, no significant impacts are projected for 
substantial numbers of these small entities. The FMCSA finds that among 
trucking companies, the most heavily affected 7.5 percent of small 
firms bear costs that average less than 0.8 percent of revenues. Among 
non-trucking companies that have short-haul operations incidental to 
their main business, the impacts are even smaller: the most affected 
small firms bear costs no higher than 0.03 percent of revenues.
Affected Entities
    Short-haul operations include three basic types of firms:
    1. For-hire LTL firms;
    2. For-hire TL firms with short average hauls, including local 
hauls; and
    3. Firms in industries other than trucking that operate fleets in 
short-haul operations for their own purposes (i.e., private carriage).
    The LTL firms engage both long-haul and short-haul operations. 
Their long-haul operations are generally scheduled terminal-to-terminal 
runs, which are unlikely to be affected by the HOS rules. Their short-
haul operations involve runs from shippers to the terminals to collect 
freight for the long-haul runs, and then from the terminals to the 
ultimate destinations for the freight. LTL firms tend to be large, with 
35 companies accounting for 85 percent of revenue. The rest of the for-
hire firms include both firms that provide local pick-up and delivery 
services for LTL firms and firms that deliver cargos locally or within 
a short range. Firms involved in private carriage span a very wide 
range of industries, including construction; stone, clay, glass, and 
concrete; groceries and related products; eating and drinking places; 
and repair services. One common type of operation is the delivery of 
product along a route to numerous retail outlets.
Definition of Small Firms
    To determine how many small affected firms there are, we first 
identified industries in which at least one percent of all employees 
are truck drivers, using data from the Current Population Survey for 
2000. These industries are shown in Table 20, along with SBA's size 
thresholds distinguishing small and large firms.

    Table 20.--Small Business Administration's Size Standard for Small Businesses by North American Industry
                                          Classification System (NAICS)
----------------------------------------------------------------------------------------------------------------
                                                         Size standard in
            Industry                     NAICS         millions of dollars  Size standard in number of employees
----------------------------------------------------------------------------------------------------------------
Trucking or For-Hire............  484110, 484210,      $21.50.............  Not Applicable.
                                   484220.
Private.........................  ...................  Not Applicable.....
Ag, forest, fisheries...........  11.................  0.75-6.0...........  500.
Groceries and related products..  4224...............  Not Applicable.....  500.
Stone, clay, glass, concrete....  327................  Not Applicable.....  500-1000.
Mining..........................  21.................  6.0................  500.
Eating and Drinking Places......  445................  6.0-23.0...........  Not Applicable.
Wholesale trade (excludes         42.................  Not Applicable.....  500.
 Groceries).
Petroleum + coal products.......  324................  Not Applicable.....  500-1500.
Construction....................  23.................  12.0-28.5..........  Not Applicable.
Food and kindred products.......  311, 312...........  Not Applicable.....  500-1000.
Lumber, wood products, furniture  321, 337...........  Not Applicable.....  500.
Transportation, communications,   22, 492, 51........  6.0-25.0...........  500-1,500.
 utilities, except trucking.
Retail trade (excludes Eating     44, 451, 452, 453,   6.0-24.5...........  Not Applicable.
 and Drinking Places).             454.
Pulp, Paper, Printing...........  322, 323...........  Not Applicable.....  500-750.
----------------------------------------------------------------------------------------------------------------

    These thresholds tend to be at least at the level of 500 employees, 
or (where the thresholds are not based on employment) in the range of 
$6 to $25 million in revenues.
Size Distributions and Numbers of Firms
    Table 21 shows the breakdown of firms in these industries in terms 
of employment. An estimate of the numbers of small firms is shown in 
the column at the right, using the size distribution and the 
approximate size cutoffs developed by SBA. In all affected industries, 
the large majority of firms are small. In all, over two million 
affected firms fall into the category of small firms.

[[Page 22507]]



                             Table 21.--Distribution of Firms by Size, in Year 2000
----------------------------------------------------------------------------------------------------------------
                                                                          Number of firms
                                                 ---------------------------------------------------------------
                                                                                                    Approximate
                  Industry: \1\                     Employment    Employment 20-    Employment       number of
                                                   less than 20         500            500+         small firms
                                                                                                        \2\
----------------------------------------------------------------------------------------------------------------
Short-haul Trucking or For-Hire.................          54,281           4,943             227          56,752
Non-Trucking:
    Agriculture, forest, fisheries..............          23,814           1,539              97          25,353
    Groceries and related products..............          27,074           5,515             451          32,589
    Stone, clay, glass, concrete................           7,784           3,319             352          11,103
    Mining......................................          15,880           2,541             335          18,421
    Eating and Drinking Places..................         105,595          11,455             447         111,323
    Wholesale trade (excludes Groceries)........         301,595          49,258           3,300         350,853
    Petroleum + coal products...................             633             363             140             996
    Construction................................         639,129          61,812           1,006         670,035
    Food and kindred products...................          17,876           5,842             672          23,718
    Lumber, wood products, furniture............          25,414           8,460             499          33,874
    Transportation, communications, utilities,            79,844          13,302           1,351          93,146
     except trucking............................
    Retail trade (excludes Eating & Drinking)...         841,109          83,204           3,385         882,711
    Pulp, Paper, Printing.......................          31,899           8,363             574          40,262
                                                 -----------------
        Total...................................       2,171,927         259,916          12,836      2,351,136
----------------------------------------------------------------------------------------------------------------
\1\ Industries in which drivers represent less than 1% of the labor force are not presented in the table.
\2\ Assumes small firms are those with 500 or fewer employees for industries with employment-based cutoffs. For
  other industries, the number of small firms was assumed to be all of those with employment below 20, and half
  of those with employment between 20 and 500.
Source: Statistics of U.S. Businesses (SUSB), developed by U.S. Census Bureau for SBA, retrieved from SBA Office
  of Advocacy Web site http://www.sba.gov/advo/stats/us88_00.pdf.

Thresholds Used for This Analysis
    To construct a factual basis for certifying that the rules will not 
impose significant costs on substantial numbers of small entities, the 
FMCSA must select thresholds for significant costs and substantial 
numbers. Selecting these thresholds is complicated, but not rendered 
impossible, by the lack of an accepted definition for either 
significant or substantial. The FMCSA started by considering the 
standard practices in other federal agencies. In general, a test of 
costs to revenues is more common than a test of costs to profit or 
other measures. The FMCSA believes that, because profit levels are 
harder to measure, comparing costs to revenues is more appropriate for 
this analysis. In the HOS case, the FMCSA considers a profit test to be 
misleading because typical profit levels are not likely to be 
reflective of the profitability of the most affected entities. The 
FMCSA bases this observation on the specific way that the rules affect 
firms. Because the rules limit maximum working and driving hours, they 
will affect only operations in which drivers and equipment are 
intensely utilized--those in which drivers habitually work more than 13 
hours per day. These operations will tend to bring in the most revenues 
per driver, will have the greatest ability to spread out their 
overhead, capital, and fringe benefit costs, and are likely to have the 
most stable and predictable operations (given the frequency of high-
utilization days). Furthermore, they will tend to have the lowest wage 
costs per hour (as explained in Chapter 6 of the RIA). Thus, the FMCSA 
can expect that the most efficient and profitable firms are over-
represented among the most heavily affected operations. Firms that are 
among the most affected by the HOS rules can still operate more 
efficiently (in terms of the intensity of work by their drivers) than 
large majorities of their competitors, and can therefore still be 
competitive. These observations minimized the need to compare large 
impacts to average profit rates as a way to judge whether the rules 
would have significant impacts.
    In setting the threshold for ascertaining no significant impacts, 
the FMCSA selected a threshold of costs equal to one percent of 
revenues because a low threshold would minimize the chance of 
inappropriately certifying the rules. The FMCSA notes that this 
threshold is only one third as high as the 3 percent cut-off used by: 
the Environmental Protection Agency's (EPA) Office of Air and 
Radiation; EPA's Office of Prevention, Pesticides, and Toxic 
Substances; EPA's Office of Water; and EPA's Office of Solid Waste and 
Emergency Response. It is only one fifth of that used by Department of 
Commerce's National Marine Fisheries Service, at the low end of the 
range used by DOT's Federal Aviation Administration, and no higher than 
that used by the Department of Health and Human Service's Food and Drug 
Administration or Department of Labor's Occupational Safety and Health 
Administration (OSHA). Though the use of these thresholds by other 
agencies does not prove that a threshold of costs equal to 1 percent of 
revenues is not significant, it does show that it is not out of line 
with other estimates.
    For setting the threshold for substantial numbers, we have selected 
10 percent of the small entities. This value, which is an order of 
magnitude smaller than the population as a whole, is considerably below 
the 20 percent selected by several EPA offices. These thresholds are 
not intended to set precedents for other regulations, and are not 
intended to imply that any cost above 1 percent revenues is a 
significant impact, nor that more than 10 percent is a substantial 
number.
Estimation of Cost Impacts
    The FMCSA's method for estimating the costs imposed by the FMCSA 
option on short-haul operations is described in detail in Chapters 5 
and 6 of the RIA. Here, the agency provides a brief summary of that 
approach.
    The two main parts of the method are, first, the estimation of the 
change in labor productivity resulting from the HOS rules, and second, 
the estimation of the costs of that change in productivity. To estimate 
the change in labor productivity on short-haul operations, the agency 
first determined that the daily limits on work are more important 
constraints to short-haul operations than the weekly limits. Second, 
the agency constructed a

[[Page 22508]]

distribution of desired hours of daily work for short-haul drivers. 
This was based on two sets of data: the Hanowski, Wierwille, Garness, 
and Dingus focus group study of short-haul work patterns for 
determining the distribution of average hours of work per day; and 
Balkin et al. (Walter Reed Army Institute of Research) Field Study, 
which provided an estimate of the day-to-day variability in hours 
worked. Using the distribution of desired hours of daily work, the 
agency was able to estimate the number of times when the FMCSA option 
would limit a driver's work. The agency found that, compared to the 
current rules, the FMCSA option would reduce the hours that short-haul 
drivers could work by an average of 0.7 percent.
    For some drivers, the rules would limit their working hours more 
frequently. Six out of 81 short-haul drivers (or about 7.5 percent) 
reported working an average of 13 hours per day or more, and the 
estimated impact on their work amounted to a reduction of 4.3 
percent.\3\ The impact on a firm employing one of the most affected 
drivers would depend on whether the firm also has other drivers who are 
less severely affected by the rules. In the extreme, a firm whose 
drivers were all among the hardest-working 7.5 percent of the industry 
would have the productivity of its entire staff of drivers reduced by 
4.3 percent.
---------------------------------------------------------------------------

    \3\ These estimates could somewhat overstate the impacts of the 
HOS rules, because they considered only the effects of the daily 
rules: very intense daily schedules could cause drivers to be 
limited by the weekly HOS rules. Working 13 hours per day for 5 
days, for example, results in 65 hours of work, which would exceed 
the 60 hours allowed per 7 days.
---------------------------------------------------------------------------

    These changes in productivity are translated into changes in costs 
using the method described in Chapter 6 of the RIA. The results of that 
analysis, and a brief summary of how it was conducted, is presented 
below.
Translation of Productivity Changes Into Cost Impacts
    Under the FMCSA option for the short-haul segment discussed in the 
RIA, the agency showed an increase in labor demand by about 0.7 
percent. That translated to a cost increase of about $168 million for 
the short-haul/local segment (see Exhibit 9-3 in the RIA). The FMCSA 
also estimated short-haul total revenue of $198 billion (see Exhibit 3-
1 in RIA), implying a 0.08 percent increase in costs in terms of their 
revenue. Under the worst-case scenario analyzed as part of the impact 
on small businesses, a 4.3 percent increase in labor demand translates 
to a corresponding cost increase for short-haul of about $1.32 billion 
or a 0.67 percent increase as a share of short-haul revenue. Table 22 
shows the breakdown of the cost increases for these two scenarios.
    The labor cost changes are calculated based on the wage-hours 
worked relationship estimated for truck drivers from the Current 
Population Survey data. The details of the estimated wage equation are 
explained in Chapter 6, Sections 2 and 3 in the RIA. Under the worst-
case scenario, a 4.3 percent increase in labor demand means that the 
short-haul segment would have to hire the equivalent of 64,500 new 
drivers (though smaller firms are assumed to be able to increase their 
use of part-time drivers rather than adding a whole employee) at 0.67 
percent increase in their costs as a share of revenue. The percentage 
increase in costs is smaller than the drop in productivity by the 
existing drivers because the pay for the new drivers (or additional 
part-time labor) is offset by reductions in the pay for the existing 
drivers whose hours are limited. Under this scenario, firms incur $2.7 
billion in driver labor costs for the new drivers or part-time drivers 
used to make up for the hours that existing drivers cannot work, but 
save $1.9 billion in avoided labor costs, giving a net labor cost of 
$786 million. Corresponding increases in the other cost categories are 
for new equipment and facilities for the 64,500 new drivers, as well as 
for hiring other types of workers related to the hiring of new drivers 
(``non-driver labor''--see explanation in RIA Chapter 6).

  Table 22.--Direct Cost Changes for the Short-Haul Under FMCSA Option
       [(Million of Dollars) (Values in parentheses are negative)]
------------------------------------------------------------------------
                                                   Proposed
                Scenario modeled                    option    Worst-case
------------------------------------------------------------------------
Change in Labor Demand (percent)................        0.7         4.3
Change in Number of Drivers.....................     10,500      64,500
Driver Labor Cost:                                       90         786
  Avoided Labor Wages...........................       (298)     (1,774)
  Avoided Labor Benefits........................        (17)       (106)
  New Labor Wages...............................        309       2,034
  New Labor Benefits............................         96         631
Other Costs:                                             78         536
  Non-driver Labor..............................          4          31
  Trucks........................................         33         249
  Parking.......................................         10          58
  Insurance.....................................          7          43
  Maintenance...................................         12          75
  Recruitment...................................         13          80
                                                 -------------
        Total...................................        168       1,322
                                                 =============
Cost Increase as Share of Short-Haul Revenue 1..       0.08        0.67
------------------------------------------------------------------------
1 Assuming short-haul total revenue of $198 billion ($76 billion + $122
  billion). See Exhibit 3-1 in the RIA.

Sensitivity Analysis for Higher Impacts on Smaller Firms
    These estimated changes in costs apply to all firms, not to small 
entities in particular. Some types of regulation tend to hit small 
firms harder than large firms, generally because they impose costs that 
are the same for all firms, or require equipment that exhibits 
substantial economies of scale. Small firms tend to have higher per-
unit costs of compliance with these kinds of regulations because they 
have fewer units of output over which to spread the regulatory costs. 
The FMCSA does not consider the HOS rules to fall into that category of 
regulations, however, because the costs they impose affect individual 
drivers, not firms. Thus, total cost impacts are likely to be roughly 
proportional to the number of drivers, and costs for small firms will 
not tend to be out of proportion with costs for large firms.
    In recognition of the SBA's finding that small businesses shoulder 
costs 60 percent greater that large businesses, the FMCSA conducted a 
sensitivity analysis that assumed costs were higher for small firms. 
See page 24 of ``The Regulatory Flexibility Act: an Implementation 
Guide for Federal Agencies,'' The Office of Advocacy, U.S. Small 
Business Administration, November 2002, http://www.sba.gov/advo/laws/rfaguide.pdf. To calculate a more conservative cost impact for small 
firms using SBA's finding, the agency started with the distribution of 
employment by number of employees across all for-hire trucking firms. 
This distribution is shown in Table 23.

[[Page 22509]]



                                 Table 23.--Calculation for Sensitivity Analysis
----------------------------------------------------------------------------------------------------------------
                                                               Employment
                    Trucking or For-Hire                       less than    Employment   Employment     Total
                                                                   20         20-500        500+
----------------------------------------------------------------------------------------------------------------
Number of Short-Haul Firms..................................       54,281        4,943          227       59,451
Number of Employees.........................................      202,116      225,180       64,493      491,789
Distribution of Employees (percent).........................           41           46           13          100
Average Impact per Firm (percent)...........................  ...........  ...........  ...........         0.67
Magnitude of Impact by Firm Size............................        1.6 x        1.3 x            x  ...........
Adjusted Average Impact per Firm (percent)..................        0.775        0.629        0.484       0.670
----------------------------------------------------------------------------------------------------------------
Source: Statistics of US Businesses (SUSB), developed by U.S. Census Bureau for SBA and FMCSA calculations.

    Under the worst-case scenario, the agency estimates that, on 
average, a short-haul firm will bear a burden equal to a 0.67 percent 
increase in its costs as a share of revenue. An SBA study completed in 
2001 shows that the economic impact on a firm with less than 20 
employees may be up to 60 percent greater per employee than on firms 
with more than 500 employees, see ``The Regulatory Flexibility Act, 
Implementation Guide for Federal Agencies,'' November 2002, which cites 
W. Mark Crain and Thomas D. Hopkins, ``The Impact of Regulatory Costs 
on Small Firms'' (Springfield, Va.: National Technical Information 
Service, 2001). As a result, the FMCSA adjusts the ``worst-case'' 
impact estimate to account for the possible disparity of the regulatory 
impact across firms. The adjustment is based on firms' size and 
employees' distribution. As no information is available on the 
magnitude of economic impact on firms with 20 to 500 employees relative 
to the firms in other size categories, we assume that the impact on 
firms in this category is equal to the average of impacts on firms in 
the other two size categories (i.e., that the impact is 30 percent 
greater for the mid-size firms as for the large firms, and an 
equivalent amount less than the impacts on the smallest firms). The 
adjusted average impact per firm was found by setting up the following 
equation for X, the average impact per firm with more than 500 
employees:
    41 percent * 1.6 * X + 46 percent * 1.3 * X + 13 percent * X = 0.67 
percent Rearranging terms and solving, the FMCSA finds that X= 0.484 
percent. The agency second multiplies X by 1.6 to calculate the average 
economic impact on firms with less than 20 employees. The agency's 
results show that economic impact on firms with less than 20 employees 
is 0.775 percent of revenues, which is below the threshold of 
significance chosen for this analysis.
Estimation of Costs for Non-Trucking Companies
    The cost impact for non-trucking companies is calculated on the 
basis of the cost increases per existing driver. Assuming there are 1.5 
million existing short-haul/local drivers (see Exhibit 6.7 in RIA), a 
$1.32 billion cost increase means that firms face an increase of $881 
per existing driver. Given the distribution of drivers from the Current 
Population Survey, the agency chose industries that employed a 
substantial number of drivers, and calculated the increase in their 
operating costs due to the FMCSA option. Table 24 shows these selected 
sectors and the estimated number of drivers they employed in 2000.
    Among non-trucking industries that use drivers, construction (NAICS 
23) bears the largest dollar impact, followed by the eating and 
drinking places (NAICS 445), under the retail industry. Another 
industry segment that has a relatively large impact is the groceries 
and related products sector (NAICS 4224). However, for all these and 
the others in Table 24, the increase in cost as share of their labor 
cost is very small (second from last column). In these terms, the 
highest impact is for the agriculture sector (0.35 percent), probably 
because labor costs are not so well-defined for mostly family-owned 
farms. For all the other sectors, impacts are significantly lower than 
1 percent of labor costs, since driver labor is a relatively small 
fraction of their total labor costs.
    The cost impacts are even lower when the agency calculates them in 
terms of their total revenue (last column in Table 24). Similar to the 
reasoning given above, since labor costs are only a small portion of 
most industries' total costs (or total revenue), the impact of the 
worst-case scenario is significantly smaller than one percent, with the 
highest impact shown for the stone, clay, glass, and concrete industry 
(NAICS 327) at 0.03 percent.

                      Table 24.--Worst-Case Scenario Impact on Different Industry Segments
----------------------------------------------------------------------------------------------------------------
                                                                               Cost
                                                                             increase       Cost
                                                  Short-haul   Number of      due to    increase as      Cost
        Private industry classification           drivers in   short-haul   worst-case    share of   increase as
                                                 total labor   drivers in     option    labor costs    share of
                                                     (%)          2000      (millions       (%)      revenue (%)
                                                                           of dollars)
----------------------------------------------------------------------------------------------------------------
Agriculture, Forest, Fisheries.................         11.2       18,375           17         0.35         0.01
Groceries & Related Products...................          7.3       64,233           57         0.18         0.01
Stone, Clay, Glass, Concrete...................          6.6       34,793           31         0.16         0.03
Mining.........................................          4.6       20,965           18         0.08         0.01
Eating & Drinking Places.......................          2.7       82,076           72         0.15         0.02
Petroleum & Coal Products......................          2.0        2,230            2         0.03        0.001
Construction...................................          1.6      103,487           91         0.04         0.01
Food & Kindred Products........................          1.6       26,318           23         0.05        0.004
Lumber, Wood Products, Furniture...............          1.4       17,843           16         0.05         0.01
Transportation, communications, utilities,               1.4       68,694           61         0.02         0.01
 (excludes For-Hire Trucking)..................
Pulp, Paper, Printing..........................          1.0       14,274           13         0.02        0.005
Wholesale Trade, (excludes Groceries & Related           2.5      134,265          118         0.05        0.003
 Prod).........................................

[[Page 22510]]

 
Retail Trade, (excludes Eating & Drinking                1.1      179,317          158         0.05         0.01
 Places).......................................
----------------------------------------------------------------------------------------------------------------

    Given that the estimated impacts, expressed both in terms of labor 
cost shares and revenue shares, are well below 1 percent of their 
revenue, the FMCSA does not expect this rule to have any significant 
impact on small businesses in the short-haul private sector.
    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 final rule does 
not have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 requires each agency to 
assess the effects of its regulatory actions on State, local, and 
tribal governments and the private sector. Any agency promulgating a 
final rule resulting in a Federal mandate requiring expenditure by a 
State, local or tribal government or by the private sector of 
$100,000,000 or more in any one year must prepare a written statement 
incorporating various assessments, estimates, and descriptions that are 
delineated in the Act. In light of the fact that revisions to the HOS 
regulations is a major rule that would cost motor carriers more than 
$100,000,000 in a given year, the FMCSA has prepared the following 
statement which addresses each of the elements required by the Unfunded 
Mandates Reform Act of 1995. Most of these required elements have 
already been covered in the regulatory impact analysis, and the 
sections of that evaluation containing the preexisting analyses are 
referenced in this statement. Any elements not included in the final 
regulatory evaluation have been addressed directly in this statement.
Qualitative and Quantitative Assessment of Costs and Benefits
    The Unfunded Mandates Reform Act requires a qualitative and 
quantitative assessment of the anticipated costs and benefits of this 
Federal mandate. The options discussed in this final rule would cost 
between $744 million and $5.5 billion per year, relative to the Status 
Quo. The FMCSA option would cost an estimated $1.3 billion per year. 
Relative to the status quo with full compliance, the options will cost 
between positive $3.4 billion and negative $1.4 billion per year 
(meaning that they will result in cost savings). The FMCSA option would 
result in savings of about $900 million per year. Cost estimates are 
discussed in chapter 9 of the RIA. The cost applies only to motor 
carriers subject to the FMCSRs. The final rule does not impose any cost 
on State, local, or tribal governments.
    The FMCSA estimates that the annual monetary value of the benefits 
ranges from $170 million to $780 million, relative to the status quo. 
The FMCSA staff alternative has a benefit of $670 million. Relative to 
the status quo with full compliance, the alternatives yield net 
benefits of $1.2 billion to negative $3 billion. The FMCSA staff 
alternative yields a net benefit of $1.1 billion relative to the 
current rules with full compliance. The development of these estimates 
is discussed in the RIA chapter 9.
Effect on Health, Safety, and the Natural Environment
    The Unfunded Mandates Reform Act also states that the FMCSA must 
discuss the effect of the Federal mandate on health, safety, and the 
natural environment. The FMCSA prepared an environmental assessment, 
which has been placed in the docket, which shows that this proposal 
would not have a significant impact on the natural environment.
    The effects of this rule on health and safety will be much more 
significant: the primary benefit of this proposal would be a reduction 
in accidents. The FMCSA estimates that this final rule, when motor 
carriers adhere to it fully, would save between 24 and 75 lives each 
year as compared to complying fully with the current rules. Injuries 
will experience a commensurate fall. The RIA explains these estimates 
in detail in Chapters 8 and 9.
Federal Financial Assistance
    Section 202(a)(2)(A) of the Unfunded Mandates Reform Act requires 
that this qualitative and quantitative assessment of costs and benefits 
include an analysis of the extent to which costs to State, local, and 
tribal governments may be paid with Federal financial assistance or 
otherwise paid for by the Federal Government. Since this rule is 
applicable only to motor carriers subject to the Federal Motor Carrier 
Safety Regulations, there is no cost to State, local, and tribal 
governments. Therefore, no Federal funds for these entities will be 
necessary for motor carriers to comply with the proposed requirements.
Future Compliance Costs
    To the extent feasible, section 202(a)(3) of the Unfunded Mandates 
Reform Act requires estimates of the future compliance costs of this 
Federal mandate and any disproportionate budgetary effects upon 
particular regions, or upon urban, rural, or other types of 
communities, or upon particular segments of the private sector. There 
are no disproportionate budgetary effects upon particular regions, or 
upon urban, rural, or other types of communities. The RIA included an 
analysis of the impact of the option on various regions, using the REMI 
Policy Insight TM Model. The model showed no significant 
disparate impact on any region. These impacts are discussed in chapter 
11 of the RIA.
Effect on the National Economy
    Section 202(a)(4) of the Unfunded Mandates Reform Act requires 
estimates of the effect on the national economy, such as the effect on 
economic growth, full employment, creation of productive jobs, and 
international competitiveness. The REMI model mentioned above also 
yielded an estimate of the macroeconomic costs of the options. Relative 
to the status quo with 100 percent compliance, FMCSA estimates that the 
impact on gross regional product (GRP) will be minimal, less than 0.1 
percent of GRP for all the alternatives. One alternative would reduce 
GRP by almost $12 billion per year, while all other alternatives would 
result in a small increase in GRP. Because the overall driving time for 
most CMV drivers would not change, the FMCSA does not believe the

[[Page 22511]]

alternatives would have a significant impact on full employment or the 
creation of productive jobs. The FMCSA also does not believe that the 
proposal would have any significant impact on international 
competitiveness.
Prior Consultations With Elected Representatives of Any Affected State, 
Local, or Tribal Governments
    This rule does not require action by State, local, or tribal 
governments. Therefore, no prior consultations with elected 
representatives of these governments were initiated.
Decision To Impose an Unfunded Mandate
    When Congress created FMCSA, it provided that, ``[i]n carrying out 
its duties the Administration shall consider the assignment and 
maintenance of safety as the highest priority * * * '' [49 U.S.C. 
113(b)]. As indicated above, Sec. 408 of the ICCTA directed the 
agency--then part of the FHWA--to begin rulemaking dealing with a 
variety of fatigue-related safety issues, including ``8 hours of 
continuous sleep after 10 hours of driving, loading and unloading 
operations, automated and tamper-proof recording devices, rest and 
recovery cycles, fatigue and stress in longer combination vehicles, 
fitness for duty, and other appropriate regulatory and enforcement 
countermeasures for reducing fatigue-related incidents and increasing 
driver alertness) * * * '' [109 Stat. 958]. The agency's statutory 
focus on safety and the specific mandate of Sec. 408 both demand that 
this rulemaking improve CMV safety.
    The FMCSA analyzed three alternative regulatory proposals in depth. 
Compared to the status quo, which includes a degree of non-compliance 
with the current HOS rules, the option proposed by the ATA would have 
marginally reduced fatigue-related fatalities and somewhat increased 
the cost of regulatory compliance. This results in a negative cost/
benefit ratio. The option suggested by PATT would have reduced 
fatalities far more than the ATA option, but would have generated 
significant increases in compliance and operational expenses. This 
results in a cost/benefit ratio far more negative than the ATA option.
    The third alternative was proposed by the FMCSA staff. The analysis 
shows that this option would save many more lives than the ATA 
alternative, though not quite as many as the PATT option. While it 
would cost more than the ATA option, it would be much cheaper than the 
PATT alternative. The net result is a cost/benefit ratio slightly more 
negative than the ATA option but not nearly as negative as the PATT 
option.
    The FMCSA has adopted the third alternative for this final rule. 
The rule represents a substantial improvement in addressing driver 
fatigue over the current regulation. Among other things, it increases 
required time off duty from 8 to 10 consecutive hours; prohibits 
driving after the end of the 14th hour after the driver began work; 
allows an increase in driving time from 10 to 11 hours; and allows 
drivers to restart the 60-or 70-hour clock after taking 34 hours off 
duty. Together, these provisions (and others discussed in detail below) 
are expected to reduce the effect of cumulative fatigue and prevent 
many of the accidents and fatalities to which fatigue is a contributing 
factor. Because the agency's statutory priority is safety, we have 
adopted a rule that is marginally more expensive than the ATA option 
but which will reduce fatigue-related accidents and fatalities more 
substantially than that option. The FMCSA believes that the rule 
represents the best combination of safety improvements and cost 
containment that can realistically be achieved, even though it imposes 
an unfunded mandate.

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 (IC) 
they conduct, sponsor, or require through regulations. The FMCSA has 
determined that this final rule will affect a currently approved 
information clearance for OMB Control Number 2126-0001, titled ``Record 
of Duty Status (RODS).'' The OMB approved this information collection 
on March 4, 2002, at a revised total of 161,364,492 burden hours, with 
an expiration date of March 31, 2005.
    Comments received on the information collection proposed in the 
NPRM are discussed above under the heading ``Electronic On-board 
Recorders (EOBRs).'' The NPRM proposed that the title of this 
information collection be changed to ``Hours of Service of Drivers 
Regulations.'' The FMCSA believes that this title is more appropriate. 
The FMCSA did not receive any comments on the change of title for this 
IC. Therefore, today the supporting statement sent to OMB will bear the 
revised title change.
    The PRA requires agencies to provide a specific, objectively 
supported estimate of burden that will be imposed by the information 
collection. See 5 CFR 1320.8. The paperwork burden imposed by the 
FMCSA's RODS requirement is set forth at 49 CFR 395.8. Paragraph (a)(1) 
requires drivers to record their duty status. Paragraph (f)(8)(i) 
requires them to submit the RODS to their motor carrier. Paragraph (k) 
requires motor carriers to maintain the RODS and all supporting 
documents for each driver it employs for a period of six months from 
the date of receipt. The currently-approved information collection for 
RODS does not include time and cost burdens associated with the 
collection and retention of supporting documents because these costs 
were calculated into past paperwork burdens (See 47 FR 53383, 53389 
(Nov. 26, 1982) and 63 FR 19464).
    As noted in the preamble to this rule, under the above heading 
``Compliance and Enforcement,'' the FMCSA collects this information to 
ensure motor carriers comply with the HOS regulations. The HOS 
regulations require motor carriers be responsible for and police the 
actions of its employees, including the actions of independent 
contractors and owner operators they use. Likewise, each motor carrier 
must have a system in place that allows it to effectively monitor 
compliance with the FMCSRs, especially those aimed at the issue of this 
final rule--HOS to increase driver alertness and reduce fatigue-related 
incidents.
    This final rule does not amend the language of section 395.8. The 
new HOS rule, like the current rule, does not limit the length of time 
a person can be on duty. The current rule states that a driver cannot 
drive after being on duty for 15 hours, but the driver could remain on 
duty indefinitely. This aspect of the current rule will continue to be 
applicable to drivers of passenger-carrying CMVs. This final rule, 
however, will not enable a driver of a property-carrying CMV to drive 
after being on duty after the end of the 14th hour after coming on 
duty, but such a driver also can remain on duty indefinitely. Because 
there will be a requirement for 10 consecutive hours off duty, most 
property-carrying CMV drivers will usually go off duty after 14 hours 
(at worst) under this final rule, not after 15 hours, as often happened 
under the current rule and will continue to happen for drivers of 
passenger-carrying CMVs. But property-carrying CMV drivers will now be 
allowed to drive up to 11 hours, not the 10 hours of the current rule 
that will be applicable to passenger-carrying CMV drivers only. Thus, 
this final rule will allow property-carrying CMV drivers shorter on-
duty time, generally, but longer driving time.

[[Page 22512]]

    The agency believes that the industry will respond to this HOS 
requirement for property-carrying CMV drivers by employing, over a 
period of time, an estimated 48,000 fewer property-carrying CMV 
drivers, compared to the current rules with full compliance. Thus, this 
final rule will bring about a small decrease in the estimated 4.2 
million drivers required to complete and maintain the RODS. This final 
rule and a supporting statement reflecting this small decrease in 
burden hours have been submitted to OMB.
    You may submit comments on this adjustment in the information 
collection burden directly to OMB. The OMB must receive your comments 
by July 28, 2003. You must mail or hand deliver your comments to: 
Attention: Desk Officer for the Department of Transportation, Docket 
Library, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC 
20503.

National Environmental Policy Act

    The FMCSA analyzed the three alternatives in the RIA as required by 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
and DOT Order 5610.1C. The FMCSA evaluated impacts in terms of the 
percent change from the status quo (No Action Alternative). ``Minor'' 
is defined here as a 0 to 1 percent change from the status quo (0 plus/
minus 1 percent), while ``Moderate'' is defined as a plus/minus 10 
percent or greater change. Note that the FMCSA measured these impacts 
as change from the No Action Alternative (i.e. not from the Full 
Compliance Alternative). As shown in Table 25 (Environmental Assessment 
Table 22), none of the Alternatives would have a significant adverse 
impact on the human environment and all of the Alternatives would have 
beneficial impacts in some impact areas. None of the Alternatives 
stands out as environmentally preferable, when compared to the other 
Alternatives.

                                                          Table 25.--Comparison of Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Impact area                     No action            Full compliance        PATT alternative       ATA alternative       FMCSA alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Pollutant Emissions from         No Change.............  Minor Benefit (0.5      Moderate Impact (2     Minor Benefit (1       Minor Impact (0.6
 Affected CMVs.                                               percent decrease).      percent increase).     percent decrease).     percent increase).
Air Pollutant Emissions from         No Change.............  Minor Benefit (0.02     Moderate Impact (0.09  Minor Benefit (0.01    Minor Impact (0.03
 Transportation.                                              percent decrease).      percent increase).     percent decrease).     percent increase).
Land Use...........................  No Change.............  Minor Induced Impact    Minor Induced Impact   No Impact............  No Impact.
                                                              (2,350 acres).          (3,408 acres).
Sensitive Resources................  No Change.............  Minor Potential Impact  Minor Potential        No Impact............  No Impact.
                                                                                      Impact.
Noise..............................  No Change.............  No Change.............  Minor Impact           Minor Benefit          Minor Impact
                                                                                      (unquantifiable).      (unquantifiable).      (unquantifiable).
Safety.............................  No Change.............  Major Benefit ($443     Major Benefit ($783    Major Benefit ($170    Major Benefit ($671
                                                              million per year).      million per year).     million per year).     million per year).
Socioeco[chyph]nomic Effects.......  No Change.............  Minor Impact            Minor Impact           Minor Impact           Minor Impact
                                                              (unquantifiable).       (unquantifiable).      (unquantifiable).      (unquantifiable).
Transportation Energy Consumption..  No Change.............  Minor Benefit (less     Minor Impact (0.1      Minor Benefit (0.1     Minor Impact (0.1
                                                              than 0.1 percent        percent increase).     percent decrease).     percent increase).
                                                              decrease).
Environmental Justice..............  No Impact.............  No Impact.............  No Impact............  No Impact............  No Impact.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Environmental Assessment for Hours of Service (HOS) Rule, Table 22.

    This final rule's environmental assessment and finding of no 
significant impact (FONSI) are in the docket.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. As a part of the environmental assessment, the 
FMCSA analyzed the three alternatives discussed earlier in this final 
rule.
    The greatest reduction in energy consumption would occur under the 
ATA alternative and the greatest increase would occur under the PATT 
alternative. The FMCSA alternative would increase consumption, but to a 
lesser degree than the PATT alternative. Energy consumption would 
decrease under the Full Compliance alternative, but to a lesser degree 
than the ATA alternative. Table 26 shows that the energy consumption 
effects of the alternatives would range from a reduction of 1 percent 
to an increase of 2 percent in energy consumption for the affected CMV 
operations. Effects on energy consumption by all medium and heavy-duty 
trucks would range from a 0.3 percent reduction to a 1.2 percent 
increase. Effects of the alternatives on energy consumption from all 
transportation sources would range from a 0.1 percent reduction to a 
0.2 percent increase. From a national energy consumption perspective, 
the PATT alternative has a net increase in energy consumption of about 
one tenth of one percent. All other alternatives have essentially a 
zero effect on national energy consumption. The FMCSA does not consider 
these effects to be significant.

                                         Table 26.--Net Change in Energy Consumption by Consumer by Alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                 No action
        Energy consumer         alternative   Full compliance baseline        PATT alternative           ATA alternative           FMCSA alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Affected CMV Operations.......            0  (0.05 percent)............  2.0 percent..............  (1.0 percent)............  0.6 percent.
Medium and Heavy Duty Trucks..            0  (0.03 percent)............  1.2 percent..............  (0.6 percent)............  0.4 percent.
Total Transportation..........            0  (0.01 percent)............  0.2 percent..............  (0.1 percent)............  0.1 percent.

[[Page 22513]]

 
Total U.S.....................            0  (0.00 percent)............  0.10 percent.............  (0.00 percent)...........  0.00 percent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Environmental Assessment for Hours of Service (HOS) Rule, Table 21.

    In accordance with Executive Order 13211, the agency prepared a 
Statement of Energy Effects for this final rule. A copy of this 
statement is in Appendix D to the environmental assessment.

Executive Order 12898 (Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations)

    The FMCSA evaluated the environmental effects of the Proposed 
Action and alternatives in accordance with Executive Order 12898 and 
determined that there were no environmental justice issues associated 
with revising the hours of service regulations. Environmental justice 
issues would be raised if there were ``disproportionate'' and ``high 
and adverse impact'' on minority or low-income populations. The FMCSA 
determined through the analyses documented in the Environmental 
Assessment in the docket prepared for this final rule that there were 
no high and adverse impacts associated with any of the alternatives. In 
addition, FMCSA analyzed the demographic makeup of the trucking 
industry potentially affected by the alternatives and determined that 
there was no disproportionate impact on minority or low-income 
populations. This is based on the finding that low-income and minority 
populations are generally underrepresented in the trucking occupation. 
In addition, the most impacted trucking sectors do not have 
disproportionate representation of minority and low-income drivers 
relative to the trucking occupation as a whole. Appendix E of the 
Environmental Assessment provides a detailed analysis that was used to 
reach this conclusion.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing ``economically significant'' rules that also 
concern an environmental health or safety risk that an agency has 
reason to state may disproportionately affect children must include an 
evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a ``covered regulatory action'' an evaluation of 
its environmental health or safety effects on children.
    The FMCSA evaluated the projected effects of the proposed action 
and alternatives and determined that they would not create 
disproportionate environmental health risks or safety risks to 
children. The only adverse environmental effect with potential human 
health consequences is the projected increase in emissions of air 
pollutants. The FMCSA has projected that the PATT alternative and the 
FMCSA alternative would result in a minor increase in emissions on a 
national scale. The FMCSA projects no adverse human health consequences 
to either children or adults because the magnitude of emission 
increases is small. The proposed action and alternatives, however, 
would reduce the safety risk posed by tired, drowsy, or fatigued 
drivers of CMVs. These safety risk improvements would accrue to 
children and adults equally.

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 12630 (Taking of Private Property)

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

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. The FMCSA has determined 
this rule does not have a substantial direct effect on States, nor 
would it limit the policymaking discretion of the States. Nothing in 
this document preempts any State law or regulation.
    A State that fails to adopt the new amendments in this final rule 
within three years of the effective date of June 27, 2003, will be 
deemed to have incompatible regulations and will not be eligible for 
Basic Program nor Incentive Funds in accordance with 49 CFR 350.335(b).

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 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

0
In consideration of the foregoing, the FMCSA is amending Title 49, CFR, 
chapter III, parts 385, 390, and 395 as set forth below:

PART 385--SAFETY FITNESS PROCEDURES [AMENDED]

0
1. The authority citation for part 385 continues to read as follows.

    Authority: 49 U.S.C. 113, 504, 521(b), 5113, 31136, 31144, 
31148, and 31502; and 49 CFR 1.73.


0
2. Amend appendix B to part 385 as follows:
0
a. Revise section II.(c) as follows;
0
b. Amend section VII as follows:
    (i) Revise the citations and text for Sec. Sec.  395.1(h)(1)(i) 
through (h)(1)(iv) and 395.3(a)(1) through 395.3(b)(2) as follows; and
    (ii) Add the citations and text for Sec. Sec.  395.1(h)(2)(i) 
through (h)(2)(iv), 395.1(o), and 395.3(c)(1) through 395.5(b)(2) in 
numerical order as follows:

[[Page 22514]]

Appendix B to Part 385 Explanation of Safety Rating Process

* * * * *

II. Converting CR Information Into a Safety Rating

* * * * *
    (c) Critical regulations are those identified as such where 
noncompliance relates to management and/or operational controls. 
These are indicative of breakdowns in a carrier's management 
controls. An example of a critical regulation is Sec.  395.3(a)(1), 
requiring or permitting a property-carrying commercial motor vehicle 
driver to drive more than 11 hours.
* * * * *

VII. List of Acute and Critical Regulations.

* * * * *
    Sec.  395.1(h)(1)(i) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 15 hours (Driving 
in Alaska) (critical).
    Sec.  395.1(h)(1)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty 20 hours (Driving in Alaska) (critical).
    Sec.  395.1(h)(1)(iii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 70 hours in 7 consecutive days (Driving in Alaska) 
(critical).
    Sec.  395.1(h)(1)(iv) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 80 hours in 8 consecutive days (Driving in Alaska) 
(critical).
    Sec.  395.1(h)(2)(i) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive more than 15 hours 
(Driving in Alaska) (critical).
    Sec.  395.1(h)(2)(ii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty 20 hours (Driving in Alaska) (critical).
    Sec.  395.1(h)(2)(iii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 70 hours in 7 consecutive days (Driving in Alaska) 
(critical).
    Sec.  395.1(h)(2)(iv) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 80 hours in 8 consecutive days (Driving in Alaska) 
(critical).
    Sec.  395.1(o) Requiring or permitting a short-haul property-
carrying commercial motor vehicle driver to drive after having been 
on duty 16 consecutive hours (critical).
    Sec.  395.3(a)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 11 hours 
(critical).
    Sec.  395.3(a)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after the end of the 14th 
hour after coming on duty (critical).
    Sec.  395.3(b)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 60 hours in 7 consecutive days (critical).
    Sec.  395.3(b)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 70 hours in 8 consecutive days (critical).
    Sec.  395.3(c)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to restart a period of 7 consecutive 
days without taking an off-duty period of 34 or more consecutive 
hours (critical).
    Sec.  395.3(c)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to restart a period of 8 consecutive 
days without taking an off-duty period of 34 or more consecutive 
hours (critical).
    Sec.  395.5(a)(1) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive more than 10 hours 
(critical).
    Sec.  395.5(a)(2) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
15 hours (critical).
    Sec.  395.5(b)(1) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 60 hours in 7 consecutive days (critical).
    Sec.  395.5(b)(2) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 70 hours in 8 consecutive days (critical).
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
3. The authority citation for part 390 is revised to read as follows:

    Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, 
and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 
701 note); sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 
CFR 1.73.


0
3a. Revise paragraphs (b) and (c) of Sec.  390.23 to read as follows:


Sec.  390.23  Relief from regulations.

* * * * *
    (b) Upon termination of direct assistance to the regional or local 
emergency relief effort, the motor carrier or driver is subject to the 
requirements of parts 390 through 399 of this chapter, with the 
following exception: A driver may return empty to the motor carrier's 
terminal or the driver's normal work reporting location without 
complying with parts 390 through 399 of this chapter. However, a driver 
who informs the motor carrier that he or she needs immediate rest must 
be permitted at least 10 consecutive hours off duty before the driver 
is required to return to such terminal or location. Having returned to 
the terminal or other location, the driver must be relieved of all duty 
and responsibilities. Direct assistance terminates 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 commercial motor vehicle to another 
location to begin operations in commerce.
    (c) When the driver has been relieved of all duty and 
responsibilities upon termination of direct assistance to a regional or 
local emergency relief effort, no motor carrier shall permit or require 
any driver used by it to drive nor shall any such driver drive in 
commerce until:
    (1) The driver has met the requirements of Sec. Sec.  395.3(a) and 
395.5(a) of this chapter; and
    (2) The driver has had at least 34 consecutive hours off-duty when:
    (i) The driver has been on duty for more than 60 hours in any 7 
consecutive days at the time the driver is relieved of all duty if the 
employing motor carrier does not operate every day in the week, or
    (ii) The driver has been on duty for more than 70 hours in any 8 
consecutive days at the time the driver is relieved of all duty if the 
employing motor carrier operates every day in the week.

PART 395--HOURS OF SERVICE OF DRIVERS

0
4. The authority citation for part 395 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.

0
5. Add Sec.  395.0 to read as follows:


Sec.  395.0  Compliance date for certain requirements for hours of 
service of drivers.

    (a) Motor carriers and drivers must comply with the following 
requirements of this chapter through January 3, 2004, that were in 
effect before June 27, 2003, and are contained in 49 CFR Chapter III 
revised as of October 1, 2002:
    (1) Sec. Sec.  395.1(b), (e)(3), (e)(4), (g), (h), and (j) of this 
part;
    (2) Sec.  395.3 of this part;
    (3) Sec.  390.23(b) and (c) of this subchapter; and
    (4) The citations and text for Sec. Sec.  395.1(h)(1)(i) through 
395.3(b)(2) in section VII. List of Acute and Critical Regulations in 
appendix B to part 385 of this subchapter.
    (b) Motor carriers and drivers must comply beginning on January 4, 
2004 with the amendments made to the following sections that took 
effect on June 27, 2003, and are contained in 49 CFR chapter III 
revised as of October 1, 2003:
    (1) Sec. Sec.  395.1(b), (e)(3), (e)(4), (g), (h), (j), and (o) of 
this part;
    (2) Sec.  395.3 of this part;
    (3) Sec.  395.5 of this part;
    (4) Sec. Sec.  390.23(b) and (c) of this subchapter; and

[[Page 22515]]

    (5) The citations and text for Sec. Sec.  395.1(h)(1)(i) through 
395.5(b)(2) in section VII. List of Acute and Critical Regulations in 
appendix B to part 385 of this subchapter.
* * * * *

0
6. Section 395.1 is amended by revising paragraphs (b)(1), (e)(3), 
(e)(4), (g), (h), (j), (k), and adding paragraph (o) to read as 
follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (b) Adverse driving conditions. (1) Except as provided in paragraph 
(h)(2) of this section, a driver who encounters adverse driving 
conditions, as defined in Sec.  395.2, and cannot, because of those 
conditions, safely complete the run within the maximum driving time 
permitted by Sec. Sec.  395.3(a) or 395.5(a) may drive and be permitted 
or required to drive a commercial motor vehicle for not more than 2 
additional hours in order to complete that run or to reach a place 
offering safety for the occupants of the commercial motor vehicle and 
security for the commercial motor vehicle and its cargo. However, that 
driver may not drive or be permitted to drive--
    (i) For more than 13 hours in the aggregate following 10 
consecutive hours off duty for drivers of property-carrying commercial 
motor vehicles;
    (ii) After he/she has been on duty after the end of the 14th hour 
after coming on duty following 10 consecutive hours off duty for 
drivers of property-carrying commercial motor vehicles;
    (iii) For more than 12 hours in the aggregate following 8 
consecutive hours off duty for drivers of passenger-carrying commercial 
motor vehicles; or
    (iv) After he/she has been on duty 15 hours following 8 consecutive 
hours off duty for drivers of passenger-carrying commercial motor 
vehicles.
* * * * *
    (e) * * *
    (3)(i) A property-carrying commercial motor vehicle driver has at 
least 10 consecutive hours off duty separating each 12 hours on duty;
    (ii) A passenger-carrying commercial motor vehicle driver has at 
least 8 consecutive hours off duty separating each 12 hours on duty;
    (4)(i) A property-carrying commercial motor vehicle driver does not 
exceed 11 hours maximum driving time following 10 consecutive hours off 
duty; or
    (ii) A passenger-carrying commercial motor vehicle driver does not 
exceed 10 hours maximum driving time following 8 consecutive hours off 
duty; and
* * * * *
    (g) Sleeper berths. (1) General property-carrying commercial motor 
vehicle. A driver who is driving a property-carrying commercial motor 
vehicle that is equipped with a sleeper berth, as defined in Sec. Sec.  
395.2 and 393.76 of this subchapter, may accumulate the equivalent of 
10 consecutive hours of off-duty time by taking two periods of rest in 
the sleeper berth, providing:
    (i) Neither rest period is shorter than two hours;
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 11 hours;
    (iii) The on-duty time in the period immediately before and after 
each rest period, when added together, does not include any driving 
time after the 14th hour; and
    (iv) The driver may not return to driving subject to the normal 
limits under Sec.  395.3 without taking at least 10 consecutive hours 
off duty, at least 10 consecutive hours in the sleeper berth, or a 
combination of at least 10 consecutive hours off duty and sleeper berth 
time.
    (2) Specially trained driver of a specially constructed oil well 
servicing commercial motor vehicle at a natural gas or oil well 
location. A specially trained driver of a specially constructed oil 
well servicing commercial motor vehicle who is off duty at a natural 
gas or oil well location in a commercial motor vehicle that is equipped 
with a sleeper berth, as defined in Sec. Sec.  395.2 and 393.76 of this 
subchapter, or other sleeping accommodations, may accumulate the 
equivalent of 10 consecutive hours of off-duty time by taking two 
periods of rest in the sleeper berth or other sleeping accommodations, 
providing:
    (i) Neither rest period is shorter than two hours;
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 11 hours;
    (iii) The on-duty time in the period immediately before and after 
each rest period, when added together, does not include any driving 
time after the 14th hour; and
    (iv) The driver may not return to driving subject to the normal 
limits under Sec.  395.3 without taking at least 10 consecutive hours 
off duty, at least 10 consecutive hours in the sleeper berth, or a 
combination of at least 10 consecutive hours off duty and sleeper berth 
time.
    (3) Passenger-carrying commercial motor vehicles. A driver who is 
driving a passenger-carrying commercial motor vehicle that is equipped 
with a sleeper berth, as defined in Sec. Sec.  395.2 and 393.76 of this 
subchapter, may accumulate the equivalent of 8 consecutive hours of 
off-duty time by taking two periods of rest in the sleeper berth, 
providing:
    (i) Neither rest period is shorter than two hours;
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 10 hours;
    (iii) The on-duty time in the period immediately before and after 
each rest period, when added together, does not include any driving 
time after the 15th hour; and
    (iv) The driver may not return to driving subject to the normal 
limits under Sec.  395.5 without taking at least 8 consecutive hours 
off duty, at least 8 consecutive hours in the sleeper berth, or a 
combination of at least 8 consecutive hours off duty and sleeper berth 
time.
    (h) State of Alaska. (1) Property-carrying commercial motor 
vehicle. The provisions of Sec.  395.3(a) do not apply to any driver 
who is driving a commercial motor vehicle in the State of Alaska. A 
driver who is driving a property-carrying commercial motor vehicle in 
the State of Alaska must not drive or be required or permitted to 
drive--
    (i) More than 15 hours following 10 consecutive hours off duty; or
    (ii) After being on duty for 20 hours or more following 10 
consecutive hours off duty.
    (iii) After having been on duty for 70 hours in any period of 7 
consecutive days, if the motor carrier for which the driver drives does 
not operate every day in the week; or
    (iv) After having been on duty for 80 hours in any period of 8 
consecutive days, if the motor carrier for which the driver drives 
operates every day in the week.
    (2) Passenger-carrying commercial motor vehicle. The provisions of 
Sec.  395.5 do not apply to any driver who is driving a passenger-
carrying commercial motor vehicle in the State of Alaska. A driver who 
is driving a passenger-carrying commercial motor vehicle in the State 
of Alaska must not drive or be required or permitted to drive--
    (i) More than 15 hours following 8 consecutive hours off duty;
    (ii) After being on duty for 20 hours or more following 8 
consecutive hours off duty;
    (iii) After having been on duty for 70 hours in any period of 7 
consecutive days, if the motor carrier for which the driver drives does 
not operate every day in the week; or
    (iv) After having been on duty for 80 hours in any period of 8 
consecutive

[[Page 22516]]

days, if the motor carrier for which the driver drives operates every 
day in the week.
    (3) A driver who is driving a commercial motor vehicle in the State 
of Alaska and who encounters adverse driving conditions (as defined in 
Sec.  395.2) may drive and be permitted or required to drive a 
commercial motor vehicle for the period of time needed to complete the 
run.
    (i) After a property-carrying commercial motor vehicle driver 
completes the run, that driver must be off duty for at least 10 
consecutive hours before he/she drives again; and
    (ii) After a passenger-carrying commercial motor vehicle driver 
completes the run, that driver must be off duty for at least 8 
consecutive hours before he/she drives again.
* * * * *
    (j) Travel time. (1) When a property-carrying commercial motor 
vehicle driver at the direction of the motor carrier is traveling, but 
not driving or assuming any other responsibility to the carrier, such 
time must be counted as on-duty time unless the driver is afforded at 
least 10 consecutive hours off duty when arriving at destination, in 
which case he/she must be considered off duty for the entire period.
    (2) When a passenger-carrying commercial motor vehicle driver at 
the direction of the motor carrier is traveling, but not driving or 
assuming any other responsibility to the carrier, such time must be 
counted as on-duty time unless the driver is afforded at least 8 
consecutive hours off duty when arriving at destination, in which case 
he/she must be considered off duty for the entire period.
    (k) Agricultural operations. The provisions of this part shall not 
apply to drivers transporting agricultural commodities or farm supplies 
for agricultural purposes in a State if such transportation:
    (1) 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, and
    (2) Is conducted during the planting and harvesting seasons within 
such State, as determined by the State.
* * * * *
    (o) Property-carrying driver. A property-carrying driver is exempt 
from the requirements of Sec.  395.3(a)(2) if:
    (1) The driver has returned to the driver's normal work reporting 
location and the carrier released the driver from duty at that location 
for the previous five duty tours the driver has worked;
    (2) The driver has returned to the normal work reporting location 
and the carrier releases the driver from duty within 16 hours after 
coming on duty following 10 consecutive hours off duty; and
    (3) The driver has not taken this exemption within the previous 7 
consecutive days, except when the driver has begun a new 7- or 8-
consecutive day period with the beginning of any off duty period of 34 
or more consecutive hours as allowed by Sec.  395.3(c).

0
7. The section heading and text of Sec.  395.3 is revised to read as 
follows.


Sec.  395.3  Maximum driving time for property-carrying vehicles.

    Subject to the exceptions and exemptions in Sec.  395.1:
    (a) No motor carrier shall permit or require any driver used by it 
to drive a property-carrying commercial motor vehicle, nor shall any 
such driver drive a property-carrying commercial motor vehicle:
    (1) More than 11 cumulative hours following 10 consecutive hours 
off duty; or
    (2) For any period after the end of the 14th hour after coming on 
duty following 10 consecutive hours off duty, except when a property-
carrying driver complies with the provisions of Sec.  395.1(o).
    (b) No motor carrier shall permit or require a driver of a 
property-carrying commercial motor vehicle to drive, nor shall any 
driver drive a property-carrying commercial motor vehicle, regardless 
of the number of motor carriers using the driver's services, for any 
period after--
    (1) Having been on duty 60 hours in any 7 consecutive days if the 
employing motor carrier does not operate commercial motor vehicles 
every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive 
days if the employing motor carrier operates commercial motor vehicles 
every day of the week.
    (c)(1) Any period of 7 consecutive days may end with the beginning 
of any off duty period of 34 or more consecutive hours; or
    (2) Any period of 8 consecutive days may end with the beginning of 
any off duty period of 34 or more consecutive hours.

0
8. Section 395.5 is added to read as follows.


Sec.  395.5  Maximum driving time for passenger-carrying vehicles.

    Subject to the exceptions and exemptions in Sec.  395.1:
    (a) No motor carrier shall permit or require any driver used by it 
to drive a passenger-carrying commercial motor vehicle, nor shall any 
such driver drive a passenger-carrying commercial motor vehicle:
    (1) More than 10 hours following 8 consecutive hours off duty; or
    (2) For any period after having been on duty 15 hours following 8 
consecutive hours off duty.
    (b) No motor carrier shall permit or require a driver of a 
passenger-carrying commercial motor vehicle to drive, nor shall any 
driver drive a passenger-carrying commercial motor vehicle, regardless 
of the number of motor carriers using the driver's services, for any 
period after--
    (1) Having been on duty 60 hours in any 7 consecutive days if the 
employing motor carrier does not operate commercial motor vehicles 
every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive 
days if the employing motor carrier operates commercial motor vehicles 
every day of the week.

0
9. Section 395.13 paragraphs (c)(1)(ii) and (d)(2) are revised to read 
as follows:


Sec.  395.13  Drivers declared out of service.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (ii) Require a driver who has been declared out of service for 
failure to prepare a record of duty status to operate a commercial 
motor vehicle until that driver has been off duty for the appropriate 
number of consecutive hours required by this part and is in compliance 
with this section. The appropriate consecutive hours off-duty period 
may include sleeper berth time.
* * * * *
    (d) * * *
    (1) * * *
    (2) No driver who has been declared out of service, for failing to 
prepare a record of duty status, shall operate a commercial motor 
vehicle until the driver has been off duty for the appropriate number 
of consecutive hours required by this part and is in compliance with 
this section.
* * * * *

0
10. Section 395.15(j)(2)(ii) is revised to read as follows:


Sec.  395.15  Automatic on-board recording devices.

* * * * *
    (j) * * *
    (2) * * *
    (i) * * *
    (ii) The motor carrier has required or permitted a driver to 
establish, or the driver has established, a pattern of

[[Page 22517]]

exceeding the hours of service limitations of this part;
* * * * *

    Issued on: April 16, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-9971 Filed 4-24-03; 8:45 am]
BILLING CODE 4910-EX-P