There is general consensus that modifications to current hours-of-service (HOS) regulations would substantially improve commercial motor vehicle (CMV) safety by reducing the fatigue factor in CMV-involved crashes. There is evidence that many crashes occur as a result of CMV driver error, that driver error is often the result of inattention, that inattention can often be the result of fatigue, that the fatigue which causes inattention is often related to sleep deprivation, and that sleep deprivation is often related to working conditions of drivers. This proposal would make the HOS regulations more effective by requiring motor carriers and drivers to adhere to and enforce the following six standards:

1. Promote scheduling, dispatching, and operating practices minimizing the use of potentially tired, inattentive drivers.

2. Make available for each driver a consecutive minimum off-duty period of time each workday and workweek for the purpose of obtaining restorative sleep.

3. Make available for each driver an additional minimum off-duty period of time each workday, during the workday or afterwards, to allow a driver to tend to personal activities and rest at the driver’s discretion.

4. Empower the driver to accept or refuse dispatch or continuation of a trip based upon the driver’s assessment of his/her alertness level.

5. Enhance motor carriers’ and CMV drivers’ knowledge and use of safety techniques, devices, and practices that avoid driver impairment due to lack of sleep.

6. Require the use of automated electronic on-board recording (EOBR) technology to monitor the work-rest cycles of long-haul and regional drivers and assure compliance with the rules, as well as encourage the use of technology for other drivers.

The basic HOS rules have been in effect in their current form since 1962, and controversial for even longer than that. It has become increasingly clear that a complete reevaluation of the HOS rules is needed. America’s transportation system has changed significantly since 1962, and even more fundamentally since the late 1930's, when the Interstate Commerce Commission (ICC) adopted the first HOS rules. Long-haul truckers in the 1930's could average only 25 miles per hour (mph) – the top speed was 40 mph – and the best daily run was about 250 miles. The construction of the Interstate Highway System has contributed to significantly higher traffic speeds and volumes. Trucking, once a relatively minor adjunct to the railroads, has become the dominant form of transportation for most commodities. Much of the nation’s truck traffic moves on the Interstates and other high-speed roads, sometimes for very long distances. Increased exposure to the risk of accidents follows automatically from annual increases in the number of trucks and other vehicles on the road and in total vehicle miles of travel. The high volume and speed of traffic on the Interstates and many other roads require a high level of driver alertness, for the sheer mass of a truck can make it deadly when accidents occur. Of course, trucks also operate in local or regional environments, often in heavy traffic, and drivers are required to perform an ever-wider range of duties. The results of scientific research into fatigue causation, sleep, circadian rhythms, night work, and other matters were unavailable decades ago when the HOS rules were formulated.

Many people have indicated their concern over driver fatigue, and their concomitant belief that the present HOS regulations do not adequately ensure that drivers are rested. Driver fatigue was voted the number one safety concern of the Federal Highway Administration’s (FHWA) 1995 Truck and Bus Safety Summit, a meeting of over 200 drivers, motor carrier representatives, government officials, and safety advocates. The National Transportation Safety Board (NTSB) has also asked the Federal Motor Carrier Safety Administration to investigate driver fatigue.

On June 1, 1999, the NTSB, recognizing that fatigue is an issue which affects all transportation modes, issued the following recommendation to the Department of Transportation:

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

The FMCSA had already devoted several years of work toward the development of this NPRM at the time the NTSB issued its recommendation. The FMCSA believes that the revised HOS rules proposed today will reduce the acute and cumulative fatigue which appears to beset many drivers and will thus prevent a significant number of crashes and fatalities, while limiting major compliance costs on those segments of the motor carrier industry that have the fewest fatigue-related CMV crashes and focusing the major compliance costs on those segments with the highest fatigue-related CMV crashes.

Fatigue and crashes. Fatigue increases the likelihood that a driver will not pay sufficient attention to driving or commit other mental errors. In-depth studies of crashes have found that inattention and other mental lapses contribute to as much as 50 percent of all crashes. While fatigue may not be involved in all these crashes, it clearly contributes to some of them. The agency tentatively estimates that 15 percent of all truck-involved fatal crashes are "fatigue-relevant," that is, fatigue is either a primary or secondary factor. This includes the 4.5 percent of fatal crashes where fatigue is directly cited and another 10.5 percent where it contributes to other mental lapses, which then result in a crash.

Long-haul operations account for two-thirds of all fatalities, excluding those for which the length of haul was unknown. Only one half of one percent of fatalities and injuries occur in a crash with a truck whose driver has been reported driving 12 or more hours, although, as discussed above, the true figure is likely to be higher. Long-haul combination vehicles account for about half of all fatal CMV crashes, but three-fourths of all trucks in fatigue-involved fatal crashes. Straight trucks in long-haul operations are more likely to be fatigue involved; although they represent just 7 percent of trucks involved in fatal crashes, they account for 14 percent of fatigue-involved trucks. The relative risk for drivers of these vehicles is almost 2, while it is closer to 1.5 for drivers of combination vehicles in long-haul operations. This over-representation may be partly due to drivers of straight trucks being unaccustomed to the rigors of long-haul operations.

History of the HOS regulations. The Motor Carrier Act of 1935 authorized economic regulation of the trucking industry and directed the ICC to establish qualifications and maximum hours of service for drivers working for private and for-hire interstate property carriers and for-hire interstate passenger carriers. The ICC published its initial safety proposals, including HOS limits, on July 8, 1936. In preparing its draft rules, the Commission examined all State HOS laws and regulations and solicited input from motor carriers and drivers. On December 29, 1937, the ICC promulgated its final HOS regulations (effective July 1, 1938), along with detailed findings and explanations. Concerning drivers’ need for off-duty time, the ICC found:

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

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

Within a short time, however, organized labor petitioned for a stay, as did a few motor carriers. The ICC agreed, and oral arguments were heard again. The Commission ultimately decided to change the 12-hour work limit in 24 hours to a 10-hour driving limit in 24 hours. Motor carriers were required to give drivers 8, rather than 9, consecutive hours off duty each day. That meant drivers could be kept on duty as much as 16 hours out of 24; the specific daily on-duty limit was rescinded. The 60- and 70-hour limits were unchanged (3 FR 1875, July 28, 1938). The ICC remarked that these rules were somewhat less flexible than the original HOS regulations, but considerably more flexible than the standards requested by organized labor. "[A]s the great bulk of the trucking operations covered by these regulations are conducted on a 6-day basis," the agency said, "the practical effect of the weekly limitation is to provide a 10-hour day."

The ICC had hoped that the rules would not be used to lengthen drivers’ hours. This has not been borne out. Most notably, the Fair Labor Standards Act, which generally required overtime pay after July, 1945 for more than 40 hours of work per week, included an exemption for motor carriers subject to the ICC’s regulations. The exemption remains in effect today. The result is that truckers engaged in interstate commerce work some of the longest hours known in this country, without the opportunity for time-and-a-half overtime pay beyond the 40th hour.

Amendments to HOS Regulations.

The 1938 revisions to the HOS rules were barely in place when the first request for an exception was filed. In 1939, the ICC allowed an extra 2 hours of driving if drivers encountered "unfavorable weather conditions." This exception, slightly modified, is still available. Other exceptions granted by the ICC and still available pertain to emergency conditions, driver-salespeople, oilfield operations, 100 air-mile radius drivers, retail store deliveries, sleeper berths, operations in Alaska and Hawaii, and non-driving travel time.

The first, and in fact the only, fundamental change to the HOS rules since the late 1930's occurred in 1962. For reasons it never explained clearly, the ICC retained the 8-hour off-duty requirement and the 10-hour driving limit, but dropped the 24-hour limit. This had profound effects. For example, a driver who came on duty and started driving at 12:01 a.m. would have to stop driving at 10:00 a.m. that day. If the driver then took 8 hours off duty, he or she could drive again from 6:00 p.m. to midnight, for a total of 16 hours in a 24-hour period.

In December, 1975, the regulatory responsibility for CMV safety was transferred from the ICC to the Bureau of Motor Carrier Safety (later Office of Motor Carrier Safety) within the Federal Highway Administration. [In January, 2000, the Federal Motor Carrier Safety Administration was given this responsibility.] Between February, 1976 and September, 1981, the agency published two advance notices and one notice of proposed rulemaking concerning HOS. Economic analyses generated potential benefits well below estimated costs and the rulemaking was terminated in September 1981.

In July, 1991 the FHWA published a final rule exempting motor carriers and drivers from most of the Federal Motor Carrier Safety Regulations, including the HOS rules, while directly providing emergency relief during a declared regional or local emergency, and more limited relief for tow truck drivers responding to a police request to move wrecked or disabled vehicles. The provision required drivers who had been on duty more than 60 hours in 7 days, or 70 hours in 8, to take 24 hours off duty before returning to normal driving in interstate commerce.

In August, 1992, the agency published a proposal to permit drivers to begin anew any on-duty period of 60 hours in 7 days or 70 hours in 8 days upon taking 24 consecutive hours off duty. The FHWA made this proposal to provide opportunities for improved efficiency in operations consistent with highway safety. In February, 1993, the FHWA withdrew the proposal, having received virtually no substantive responses to the critical questions asked concerning potential impacts on highway safety. Specifically, the agency needed to know if 24 hours is sufficient time for a driver to obtain the rest necessary to resume driving safely after accumulating 60 to 70 on-duty hours in as short a period as 4.25 days. Recent studies have indicated that it is not: a minimum 32- to 56-hour break that includes two sleep periods between midnight and 6:00 a.m. is needed to afford drivers the opportunity for restorative sleep.

Citing the waiver authority enacted as part of the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, October 30, 1984)(Sec. 206(f), 98 Stat., at 2835), representatives of many industries inquired about, or filed petitions for, waivers of the HOS regulations. The FHWA granted none of these requests because the proponents were unable to provide sufficient data to show that the waiver would meet the statutory test: (1) not contrary to the public interest and (2) consistent with the safe operation of CMVs.

Sec. 345 of the National Highway System Designation Act of 1995 created a statutory exemption from all of the HOS provisions for individuals transporting crops and farm supplies during planting and harvesting seasons, and a more limited exemption (from the 60- and 70-hour rules) for drivers of utility service vehicles, CMVs transporting ground water well drilling rigs, and construction materials and equipment. The FHWA, however, was authorized to conduct rulemaking on the advisability of each of these exemptions (except that for water well drilling rigs). The FHWA adopted all of the required exemptions in April, 1996. The agency deferred until a future date any rulemaking action to consider modifying or revoking them.

While this notice was being prepared, the FHWA received a petition from the Advocates for Highway and Auto Safety (AHAS) seeking rulemaking to reevaluate the 1996 exemptions. By this NPRM, the agency is granting the AHAS petition, which has been placed in the docket.

Basis for today’s proposed regulations. The FMCSA determined that, based on the motor carrier and highway research and operational characteristics of the industry, it had to design regulations that incorporated the following requirements.

• Increase the 18-hour on-duty/off-duty work cycle to a normal 24-hour work cycle.
  
• Increase time off to allow sufficient time for 7 to 8 hours of sleep.
  
• Require mandatory "weekend" recovery periods of at least two nights of recovery sleep to resume baseline levels of sleep structure and waking performance and alertness.
  
• Address the effects of operations between midnight and 6:00 a.m. by requiring off-duty periods that enable restorative sleep by including two consecutive periods between these hours.
  
• Allow "weekends" of sufficient length to ensure safety and provide adequate protection for driver health and safety.
  
• Increase operational flexibility by offering a menu of HOS options customized to different major or distinct operational segments while still maintaining an appropriate level of safety.
  
  

The FMCSA believes these requirements will significantly reduce fatigue problems related to sleep deprivation, if drivers and motor carriers adhere to them. The FMCSA recognizes, however, that these proposed rule changes do not by themselves eliminate the potential problem the ICC described in 1937: " . . . We have no control over the manner in which a driver may spend his time off duty . . . We can only emphasize, by this comment, the responsibility which is the driver’s own to assure himself of adequate rest and sleep, in the time available for this purpose, to insure safety of his driving, and likewise the employer’s responsibility to see that his drivers report for work in fit condition."

Comparison between key features of proposed and current regulations

Proposal: Duty and off-duty periods add up to a 24-hour day.

Purpose: Scientifically-based need to promote regularity in sleep-wake cycles.

Current: Duty and off-duty periods can result in as short as an 18-hour cycle.

Proposal: Longer consecutive daily off-duty periods for obtaining sleep.

Purpose: Scientifically-documented need for 7 ½ to 8 ½ hours of sleep to restore full alertness each day.

Current: Minimum of 8 consecutive hours off-duty.

Proposal: Eliminate split sleeper-berth provision for single drivers, require 2 5-hour minimum periods for team drivers.

Purpose: Provide additional time for drivers to obtain restorative sleep while preserving the travel time productivity element for this relatively small Type 1 operational subset.

Current: Drivers who use sleeper berths may take their minimum 8 hours off-duty in 2 periods; the shorter period must be at least 2 hours.

Proposed: Additional off-duty time for personal reasons.

Purpose: To allow drivers time for mid-shift meals, naps, rest breaks; also for commuting.

Current: Not explicitly required; off-duty periods allowed, but result in extension of work day.

Proposed: No more than 12 hours of duty (15 for Type 5 drivers, i.e., primary work not driving) in any 24-hour period.

Purpose: Scientifically-documented deterioration in safe performance of driving and of driving-relevant performance and behaviors.

Current : No limit to consecutive hours on-duty, but must not drive after 10 hours of driving or 15 hours on-duty (including driving) until driver receives at least 8 consecutive hours off-duty.

Proposed: Specific off-duty time (56 or 32 hours) every 7 consecutive days.

Purpose: Provide for scientifically-supported need for minimum recuperation time to cover 2 sleep periods spanning hours of midnight to 6 A.M. Gives Type 1A (long-haul) drivers flexibility to allow shorter away-from-home and longer at-home periods.

Current rule: No flexibility provided. Driver may not drive a CMV again after accumulating 60 hours on-duty in any 7 consecutive days or 70 hours in any 8 consecutive days. If duty time was accumulated at maximum rate (approximately 4 1/4 days), driver must take 3 consecutive days off-duty before he/she can legally drive again. The Congressionally-mandated "24-hour reset" exemptions were reactions to this limitation, but they do not provide sufficient recuperation time.

Proposed: Mandated electronic on-board recorder (EOBR) (Type 1 and 2, i.e., long-haul and regional, operations and team drivers)

Purpose: Discourage illegal and unrecorded excessive driving hours, a particular safety concern for long-haul drivers. Eliminate a paper record that is burdensome to motor carriers and drivers and that is subject to falsification. Provide tamper-resistant record to provide documentation for FHWA and State compliance and enforcement activities. In essence, remote supervision.

Current rule: On-board recorders may be used in lieu of a paper record of duty status at the motor carrier’s option.

Proposed: Use of U.S. Department of Labor (DOL) required timecards for Type 3, 4, and 5 drivers, i.e., local-split shift, local and primary work not driving, removal of distance-based limitation on use of timecards.

Purpose: To decrease the burden of providing information necessary for the proper performance of the FMCSA’s safety mandate and to eliminate duplication of information required by other agencies. The FMCSA believes the information collected by DOL to comply with Wage and Hour Division regulations would also satisfy the FMCSA’s requirements. Further, since motor carrier employers are required to make this information accessible to the DOL for all employees, there should be no additional burdens associated with making it accessible to the FMCSA.

Current rule: The provision is currently available to motor carriers whose drivers operate within a 100 air-mile radius of their normal work reporting location and who return to the work reporting location and are released from duty within 12 consecutive hours.