Important notice: Please see the new Hours-of-Service page for important details concerning rule changes effective October 1, 2005, including changes to the sleeper berth and short-haul provisions.
[Federal Register: April 28, 2003 (Volume 68, Number 81)]
[Rules and Regulations]
[Page 22455-22517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap03-19]
[[Page 22455]]
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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
[[Page 22456]]
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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.
[[Page 22457]]
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
[[Page 22458]]
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
[[Page 22459]]
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