Department of Transportation

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

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

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

SUMMARY: The FMCSA is proposing to revise its hours-of-service (HOS) regulations to require motor carriers to provide drivers with better opportunities to obtain sleep, and thereby reduce the risk of drivers operating commercial motor vehicles (CMVs) while drowsy, tired, or fatigued to reduce crashes involving these drivers. This action is necessary because the FMCSA estimates that 755 fatalities and 19,705 injuries occur each year on the Nation’s roads because of drowsy, tired, or fatigued CMV drivers. The regulations proposed in this document would:

First, revert to a 24-hour daily cycle, and a 7-day weekly cycle.

Second, adjust the work-rest requirements for various types of operations.

Third, emphasize rest. Require for long-haul and regional drivers a period of 10 consecutive hours off duty within each 24-hour cycle, and two hours of additional time off in each 14-hour work period within each 24-hour cycle.

Fourth, require weekends, or their functional equivalent, to include at a minimum a rest period that includes two consecutive periods from 11:00 p.m. to 7:00 a.m.

Fifth, require the use of electronic on-board recorders (EOBRs) in CMVs used by drivers in long-haul and regional operations.

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

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

FOR FURTHER INFORMATION CONTACT: For information on the proposed rule: Mr. David Miller or Ms. Deborah Freund, Federal Motor Carrier Safety Administration, (202) 366–1790, and Mr. Charles Medalen, Office of the Chief Counsel, Federal Highway Administration, (202) 366–1354. For information on the public hearings: Mr. Stan Hamilton, Federal Motor Carrier Safety Administration, (202) 366–0665.

For information about submitting comments and data electronically: DMS Web staff at Mail.Dockets@tasc.dot.gov, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590–0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Electronic Availability of This NPRM

II. Introduction

III. The Safety Problem

IV. A Brief History of the Hours-of-ServiceRules

A.The ICC’s Original Rules

B.Immediate Changes to the HOS Rules

C.1962 Amendments

D.Exemptions

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

V. Comments to the ANPRM

VI. FMCSA Response to Comments andResearch Cited

VII.HOS Regulation Development Process

A.Research Findings

1. The workday should be more regular:Maintenance of circadian rhythm
2. The driver should be afforded moreopportunity for daily and weekly sleep
3. Driving hours in any duty shift shouldgenerally not exceed 12 hours
4. The time of day when driving isperformed should be considered
5. Non-compliance by drivers and motorcarriers increases the potential for adverse safety outcomes

B. Guiding Principles for RegulatoryImprovement

C. Types of Motor Carrier Operations

D. Regulatory Options

E. The Expert Panel

F. Recordkeeping Requirements

1. Time Records
2. Electronic On-Board Recorders (EOBRs)

G. Supporting Document Requirements

1. 1998 Notice of Proposed Rulemaking
2. Comments to Docket FHWA–98–3706(Supporting Documents)
3. FMCSA’s Response to the Comments onthe Supporting Documents NPRM
4. Modified Supporting DocumentsProposal

H. Revised Regulatory Options

I. Benefits and Costs

1. Crash Reduction
2. Paperwork Reduction
3. Total Benefits
4. Quantitative Costs
5. Small Business Costs
6. Qualitative Impacts
7. Benefits and Costs Combined

J. The Option Selected to Propose

VIII. Additional Petitions Received

IX.Implementation

X.Additional Proceedings

XI. Section-by-Section Evaluation

XII. Rulemaking Analysis and NoticesRegulatory Identification Number Motor Carrier Safety Act Executive Order 12866 (Regulatory

Planning and Review) and DOT Regulatory Policies and Procedures Regulatory Flexibility Act Unfunded Mandates Reform Act of 1995 and Executive Order 12875 (Enhancing the Intergovernmental PartnershipPaperwork Reduction Act National Environmental Policy Act Executive Order 12988 (Civil Justice Reform) Executive Order 13045 (Protection of Children) Executive Order 12630 (Taking of Private Property) Executive Order 13132 (Federalism Assessment) Executive Order 12372 (Intergovernmental Review)

I. Electronic Availability of This NPRM

Internet users may access this NPRM and all comments received by the U.S. DOT Dockets, Room PL–401, by using the universal resource locator (URL): http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office’s Electronic Bulletin Board Service at (202)512– 1661. Internet users may reach the Office of the Federal Register’s home page at: http://www.nara.gov/fedreg and the Government Printing Office’s web page at: http://www.access.gpo.gov/ nara.

Internet users may also find this NPRM at the FMCSA’s Motor Carrier Regulatory Information Service (MCREGIS) website for proposed rules at: http://mchs.fhwa.dot.gov/rulesregs/ fmcsr/rulemakings.htm#proposedrule.

II. Introduction

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

1. Promote scheduling, dispatching,and operating practices minimizing the use of tired, inattentive drivers.
2. Make available for each driver aconsecutive minimum off-duty period of time each workday and workweek for the purpose of obtaining restorative sleep.
3. Make available for each driver anadditional minimum off-duty period of time each workday, during the workday or afterwards, to allow a driver to tend to personal necessities and rest at the driver’s discretion.
4. Empower the driver to accept orrefuse dispatch or continuation of a trip based upon the driver’s assessment of his/her alertness level.
5. Enhance motor carriers’ and CMVdrivers’ knowledge and use of safety techniques, devices, and practices that avoid driver impairment due to lack of sleep.
6. Require the use of automated timeEOBR technology to monitor the work-rest cycles of long-haul and regional drivers and compliance with the rules, as well as encourage the use of technology for other drivers.

The basic HOS rules have been in effect in their current form since 1962, and controversial for even longer than that. The rules allow CMV drivers in interstate commerce to drive up to 10 hours after 8 consecutive hours off duty. After being on duty for 15 hours, a driver may not drive without taking another 8 consecutive hours off duty. Weekly limits provide that if a motor carrier does not operate CMVs every day of the week, its drivers may not drive after being on duty 60 hours in 7 consecutive days; if the carrier operates CMVs every day, its drivers may not drive after being on duty 70 hours in 8 consecutive days (49 CFR 395.3). Although the charge is sometimes made that the FMCSA is pursuing an ill-conceived ‘‘one size fits all’’ policy toward the highly diversified motor carrier industry, the HOS rules in fact include a number of exceptions for specific situations or operations (see § 395.1).

It has become increasingly clear, however, that a complete reevaluation of the HOS rules is needed. America’s transportation system has changed significantly since 1962, and even more fundamentally since the late 1930’s, when the Interstate Commerce Commission (ICC) adopted the first HOS rules. Long-haul truckers in the 1930’s could average only 25 miles per hour (mph)—the top speed was 40 mph—and the best daily run was about 250 miles (11 M.C.C. 203). The construction of the Interstate Highway System has contributed to significantly higher traffic speeds and volumes. Trucking, once a relatively minor adjunct to the railroads, has become the dominant form of transportation for most commodities. Much of the nation’s truck traffic moves on the Interstates and other high-speed roads, sometimes for very long distances. Increased exposure to the risk of accidents follows automatically from annual increases in the number of trucks and other vehicles on the road and in total vehicle miles of travel (VMT). The high volume and speed of traffic on the Interstates and many other roads require a high level of driver alertness, for the sheer mass of a truck can make it deadly when accidents occur. Of course, trucks also operate in local or regional environments, often in heavy traffic, and drivers are required to perform an ever-wider range of duties. The results of scientific research into fatigue causation, sleep, circadian rhythms, night work, and other matters were unavailable decades ago when the HOS rules were formulated.

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

 

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

 

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

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

 

The FMCSA’s jurisdiction over the HOS regulations for motor carriers and drivers is specified in Table 1. Motor carriers and drivers are subject to applicable State motor vehicle and highway safety laws and regulations, regardless of whether the motor carriers or drivers are subject to any or all of the FMCSRs.

In October, 1999, the Secretary of Transportation rescinded the authority previously delegated to the Federal Highway Administrator to perform motor carrier functions and operations, and to carry out the duties and powers related to motor carrier safety, that are statutorily vested in the Secretary. That authority was redelegated to the Director of the Office of Motor Carrier Safety (OMCS), a new office within the Department (see, 64 FR 56270, October 19, 1999, and 64 FR 58356, October 29, 1999). The OMCS had previously been the FHWA’s Office of Motor Carriers (OMC).

 

The Motor Carrier Safety Improvement Act of 1999 established the Federal Motor Carrier Safety Administration (FMCSA) as a new operating administration within the Department of Transportation, effective January 1, 2000 (Public Law 106—159, 113 Stat. 1748, December 9, 1999). The Secretary therefore rescinded the motor carrier authority delegated to the Director of the OMCS and redelegated it to the Administrator of the FMCSA (65 FR 220, January 4, 2000).

The staff previously assigned to the FHWA’s OMC, and then to the OMCS, are now assigned to the FMCSA. The motor carrier functions of the FHWA’s Resource Center’s and Division (i.e., State) Offices have been transferred without change to the FMCSA Resource Centers and FMCSA Division Offices, respectively. For the time being, all phone numbers and addresses are unchanged. Similarly, rulemaking activities begun under the auspices of the FHWA and continued under the OMCS will be completed by the FMCSA. The recent redelegations do not affect the validity of the November 5, 1996, Advance Notice of Proposed Rulemaking (ANPRM) in this proceeding (61 FR 57252). All comments to that docket have been transferred to the new FMCSA docket and have been considered in preparing this document. The NPRM has been under development since the June 30, 1997, ANPRM docket closing date. Although the FMCSA has attempted to remove all non-relevant present-tense references to the FHWA and the OMCS, any that remain should be considered references to the FMCSA.

TABLE 1.—APPLICABILITY OF FMCSA HOURS OF SERVICE OF DRIVERS RULEMAKING

If you operate a:	In interstate commerce	In intrastate commerce
CMV—A motor vehicle(s) that has any of the following four character istics: 1. A GVW, GVWR or GCWR 1 of at least 4,537 kilograms (10,001 pounds); or 2. Is designed or used to transport more than 8 passengers, inclu ding the driver, for compensation; or 3. Is designed or used to transport more than 15 passengers, includ ing the driver, and is not used to transport passengers for com- pensation; or 4. Is used to transport hazardous materials in quantities requiring the vehicle to be marked or placarded under the Hazardous Materials Regulations (49 CFR part 172, subparts D & F).	You must comply with all FMCSA HOS 2 requirements and are subject to proposals made in this NPRM.	You are not subject to the FMCSA HOS. You may be subject to proposals made in this NPRM, if your State or local government adopts final rules based on these proposals in order to par ticipate in the Motor Carrier Safety Assistance Program, 49 CFR part 350.

¹ GVW, GVWR, and GCWR are acronyms for Gross Vehicle Weight, Gross Vehicle Weight Rating, and Gross Combination Weight Rating, respectively. See 49 CFR 390.5.²  As noted in § 390.3(f) and specifically provided elsewhere in the FMCSRs, the following six categories of CMVs and drivers operating these CMVs are exempt from the FMCSRs, in whole or in part:

 

(1) The occasional transportation of personal goods by individuals not for compensation (such as moving your own household) are exempt from all the FMCSRs.

 

(2) The transportation of children and/or school personnel from home to school and from school to home are only subject to the driver CDL and alcohol and controlled substance requirements of 49 CFR Parts 382 and 383.

 

(3) Transportation performed by the Federal government, a State, any political subdivision of a State, or an agency established under an agreement between States that has been approved by the U.S. Congress are only subject to the driver CDL and alcohol and controlled substance requirements of 49 CFR Parts 382 and 383.

 

(4) CMVs used wholly on private property not open to public travel (such as yard hostlers and yard tractors in a motor carrier’s terminal) are exempt from all the FMCSRs.

 

(5) Fire trucks, ambulances, and rescue vehicles involved in emergency related operations, unless a State exempts driver of such vehicles (See 49 CFR 382.103(d) and 383.3(d)), are only subject to the driver CDL and alcohol and controlled substance requirements of 49 CFR Parts 382 and 383.

 

(6) Transportation of human corpses and sick and injured persons.

 

(7) The operation of CMVs designed to transport less than 16 passengers, including the driver, until March 6, 2000.

BILLING CODE 4910–22–P

Chart 1 above shows the number of trucks in fatal accidents by time of day. Chart 2 above shows fatigue related fatal accidents by time of day. Chart 3 above shows the relative risk of fatigue by time of day.

 

Chart 4 above, shows the relative risk by trip distance. Chart 5 shows the relative risk of fatigue crash and chart 6 shows the amount of hours worked of drivers surveyed by percentile.

BILLING CODE 4910–22–C

III. The Safety Problem

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

Fatigue has remained a significant factor in transportation accidents since the Safety Board’s 1989 recommendations were issued. Although generally accepted as a factor in transportation accidents, the exact number of accidents due to fatigue is difficult to determine and likely to be underestimated. The difficulty in determining the incidence of fatigue-related accidents is due, at least in part, to the difficulty in identifying fatigue as a causal or contributing factor in accidents. There is no comparable chemical test for identifying the presence of fatigue as there is for identifying the presence of drugs or alcohol; hence, it is often difficult to conclude unequivocally that fatigue was a causal or contributing factor in an accident. In most instances, one or more indirect or circumstantial pieces of evidence are used to make the case that fatigue was a factor in the accidents. This evidence includes witness statements, hours worked and slept in the previous few days, the time at which the accident occurred, the regularity or irregularity of the operator’s schedule, or the operator’s admission that he fell asleep or was impaired by fatigue. Despite the difficulty in identifying fatigue as a causal factor, estimates of the number of accidents involving fatigue have been made for the different modes of transportation; the estimates vary from very little involvement to as high as about one-third of all accidents.

Although the data are not available to statistically determine the incidence of fatigue, the transportation industry has recognized that fatigue is a major factor in accidents. Further, the Safety Board’s in-depth investigations have clearly demonstrated that fatigue is a major factor in transportation accidents.

 

The objective of this proposal is to reduce the number of fatigue-related truck and motorcoach crashes. The overall benefit therefore will depend on the effect this proposal will have on reducing the current number of these crashes.

For purposes of this proposal, the FMCSA has assumed that bus drivers operate in ways similar to truck drivers. The FMCSA requests comments about the accuracy of this assumption. Although there are research studies in the docket concerning the performance of bus drivers suffering from fatigue, the FMCSA could find no research studies on which to distribute bus drivers subject to FMCSA jurisdiction among different operations for the safety and benefit-cost analyses in the docket.

There are significant differences in published estimates of the number and proportion of fatigue-related CMV crashes. Much of this results from the differing analytical approaches used, particularly differences in the set of crashes analyzed. Generally speaking, these studies can be divided into two classes: those relying on large-scale accident data files, and those based on more intensive analysis of a smaller number of crashes.

The FMCSA and the National Highway Traffic Safety Administration (NHTSA) have conducted several fatigue-related CMV crash studies using large-scale data bases, primarily the Fatality Analysis Reporting System (FARS) and the General Estimates System (GES). These databases, which are managed by NHTSA, are based largely (but not exclusively) on police accident reports (PARs). Most police accident forms contain a field for driver contributing factor, and generally among the choices are driver fatigue, drowsiness, or asleep at the wheel. In most analyses, crashes in which one of these fields is checked are classified as fatigue-related.

Crash analysts frequently criticize use of PARs for fatigue analysis, as they believe that PARs understate the true extent of fatigue. Police face a number of difficulties in determining whether fatigue contributed to a crash. First, the responding officer’s primary concern is assisting crash victims and restoring the flow of traffic. Investigating the causes of the crash is often a second (or lower) level concern. Second, few police officers are trained in crash reconstruction and, consequently, they are unable to conduct a detailed investigation of the physical and mechanical evidence.

Also, it is unclear what should be counted as a fatigue-related crash. Clearly all crashes where fatigue is cited should be included, but there are other crashes where fatigue may play a less direct role. Crashes involving inattention, distraction, or other driver failures may be related to fatigue, as fatigued drivers are more prone to various types of mental error. These errors are major causal factors in crashes.

The ‘‘Tri-Level Study of the Causes of Traffic Accidents,’’ Treat et al. (1979), is perhaps the most in-depth study ever performed in the United States on crash causation. This was principally a study of automobile drivers and their crashes. It found that ‘‘recognition failure’’ was involved in 56 percent of the crash cases analyzed. ‘‘Recognition failure’’ in this study meant: (1) Improper lookout, including faulty visual surveillance and ‘‘looked but did not see;’’ (2) inattention, including preoccupation with competing thoughts; (3) internal or

(4) external distractions, includingattention to competing events, activities, and objects in and out of the vehicle. While driver-drowsiness/fatigue was found to be a certain or probable factor in 2 percent of the cases, 23 percent involved faulty visual surveillance, 15 percent involved inattention, and 13 percent involved distraction. The FMCSA believes the study is generally applicable to CMV drivers and their crashes because the agency believes both CMV and automobile drivers are susceptible to driving related problems associated with visual surveillance, inattention, and distraction.

More recent studies have also found high levels of inattention and distraction. In a study of nearly 700 Crashworthiness Data System (CDS) and GES crashes, Najm et al. (1995) determined that recognition errors were the primary causes of 45 percent of the cases studied, compared to 3.7 percent primarily due to driver drowsiness. General Motors scientists reviewed over 1,000 PARs from the State of Michigan, and reported that 17 percent were attributable to ‘‘daydreaming’’ and 18 percent to improper lookout, with just 1 percent due to ‘‘dozing.’’ Deering (May 17, 1994).

A recent study by the United States Coast Guard also suggests that direct measurement of fatigue may understate its true extent, U.S. Coast Guard (1997)(MSC 68/INF.11). Coast Guard researchers developed a ‘‘fatigue index,’’ based on the number of fatigue symptoms reported, and the number of hours worked and slept in the 24 hours prior to the incident. Using this formula increased the percentage of critical vessel cases categorized as fatigue related from 1.2 percent to 16 percent. Critical vessel cases involve significant property damage or the loss of the vessel. Critical casualty cases involve personnel injuries. For critical casualty cases, the fatigue index resulted in an adjustment increase from 1.3 to 33 percent. These reports indicate the need to be more expansive and inclusive when defining fatigue-related incidents, as well as the likelihood that fatigue statistics based solely on accident reports underestimate the true extent of the fatigue problem.

Fatigue increases the likelihood that a driver will not pay sufficient attention to driving or commit other mental errors. As discussed above, in-depth studies of crashes have found that inattention and other mental lapses contribute to as much as 50 percent of either a primary or secondary factor. analysis to determine the impact of all crashes. While fatigue may not be This includes the 4.5 percent of fatal different baseline levels of fatigue. Table involved in all these crashes, it clearly crashes where fatigue is directly cited, 2 shows the FMCSA’s estimate of the contributes to some of them. The agency and another 10.5 percent where it number of fatigue-related crashes by tentatively estimates that 15 percent of contributes to other mental lapses, operational type.all truck-involved fatal crashes are which then result in a crash. The ‘‘fatigue-relevant,’’ that is, fatigue is FMCSA conducted some sensitivity

TABLE 2.—E STIMATED ANNUAL NUMBER OF FATIGUE-RELATED CMV FATALITIES AND INJURIES

	Local	Other	Long haul	Unknown	Total
Fatalities ...................................................................................................	61	166	480	49	755
Injuries .....................................................................................................	1,581	4,319	12,532	1,273	19,705
Fatal crashes ...........................................................................................	....................	....................	....................	....................	645
Injury crashes ...........................................................................................	....................	....................	....................	....................	13,519
Total ..................................................................................................	1,642	4,485	13,012	1,322	20,460

Long-haul operations account for two-thirds of all fatalities, excluding those for which the length of haul was unknown. Only one half of one percent of fatalities and injuries occur in a crash with a truck whose driver has been reported driving 12 or more hours, although, as discussed above, the true figure is likely to be higher.

 

Other research also indicates that local drivers are less likely to be involved in a fatigue-related crash than long-haul drivers. An analysis of the fatal crash rate and mileage figures from the University of Michigan Transportation Research Institute’s (UMTRI) Trucks Involved in Fatal Accidents (TIFA) database and the Bureau of the Census’ 1992 Truck Inventory and Use Survey (TIUS) shows a dramatic difference in the crash experience of local and other trucks. Local, single-unit straight trucks had an average of 0.0022 fatigue-related fatal involvements per 1000 registered trucks. The comparable figure for long-haul tractor-trailers was 0.0781, approximately 35 times greater. On a per-mile basis, long-haul trucks were almost 20 times more likely to be involved in a fatigue-related crash. Massie et al. (1997).

 

Time of Day

 

Without reliable exposure data disaggregated by operational type, it is difficult for the FMCSA to confirm that truck travel matches the crash distribution. The UMTRI analyzed the relationship between the risk of fatigue given a fatal accident involvement and the risk of fatigue per VMT, by truck body type and trip type, using VMT data from the TIUS. This analysis, which is partially reprinted in Appendix B to the Preliminary Regulatory Evaluation (PRE) that is in the docket and incorporated by reference in this NPRM, suggests that the relative risk of fatigue given a fatal accident involvement is a good predictor of the risk of fatigue per VMT. This is important because exposure data are not available for many relevant variables (such as time of day and hours driving).

Chart 1 shows the distribution of trucks involved in fatal crashes. It generally mirrors truck traffic, with a mid-afternoon peak when the data show truck travel to be the highest. Chart 2 shows the distribution of fatigue involvement, which is quite different than overall involvement in crashes. Fatigue peaks between 4 a.m. and 6 a.m. Chart 3 combines data from both Chart 1 and 2 to show the relative risk of a fatigue involvement, given that a fatal crash occurs. Chart 3 closely resembles Chart 2, indicating that the incidence of fatigue is more variable than that of crashes. Relative risk looks the same for both long-haul and other trucks. Chart 4 shows that both types of operations have peak relative risks between 4 a.m. and 6 a.m.

 

There is no significant difference between the time of day distribution of straight and combination trucks.

 

Hours Driving

 

Chart 5 shows the relative risk of a fatigue-related fatal crash by the number of hours of driving. Data on hours driving up to 1992 came from phone interviews and from the FHWA’s form MCS–50T accident reports. Motor carriers involved in certain accidents were required to complete these forms up to 1992. Since elimination of the requirement to file MCS–50T accident reports in 1993, data on hours driving come entirely from phone interviews by UMTRI researchers. The interview source is the owner of the truck, so the agency expects some under-reporting for hours above the current limits. About one quarter of all respondents refused to answer this question, much higher than the percent missing for any other question. Nonetheless, the data clearly show the impact of extra hours driving on the likelihood of fatigue being cited in a crash.

Not surprisingly, risk increases with time driven. Approximately 20 percent of the fatal crashes per year where fatigue is coded as a factor involve the driver being behind the wheel for 13 or more hours. There also appears to be a slight increase in the risk of fatigue-related crashes at 5 hours. This is difficult to discern in the following chart, but becomes apparent when looking at risks for long-haul drivers. Jovanis et al. (1991) found a similar pattern in their examination of crashes from one long-haul carrier, including both a bump at 5 hours and a more dramatic and consistent increase in crash risk after 8 hours. Lin et al. (1993). Lin noted a limitation in their analyses, and provide a caveat to the estimates of the odds ratios in the last driving hour category—a large number of non-crash trips are completed during the 8th or 9th hour of driving, but the authors’ ‘‘assumed failure time,’’ defined as the expected time of involvement in an accident, would occur after this trip completion time.

 

As noted above, long-haul trucks are involved in about 67 percent of all fatigue-related truck crashes. These vehicles also have a greater relative risk of fatigue involvement for almost any given number of hours driving. Chart 5 would not appreciably change if vehicles were broken down by trip type, except when hours driving exceed 11, where the small numbers of crashes yield some extremely high relative risk values.

The distribution of crashes by vehicle type is not so clear-cut. Two-thirds of all trucks involved in fatal crashes between 1991 and 1996 were combination vehicles, including both tractor semitrailers and straight trucks pulling a trailer. These vehicles were also involved in four-fifths of all fatigue-involved fatal crashes, only slightly higher than the percentage of all fatal truck crashes. This suggests that truck body type is a good proxy for predicting fatigue.

 

Long-haul combination vehicles account for about half of all fatal CMV crashes, but three-fourths of all trucks in fatigue-involved fatal crashes. Straight trucks in long-haul operations are more likely to be fatigue involved; although they represent just 7 percent of trucks involved in fatal crashes, they account for 14 percent of fatigue-involved trucks. The relative risk for drivers of these vehicles is almost 2, while it is closer to 1.5 for drivers of combination vehicles in long-haul operations. This over-representation may be partly due to drivers of straight trucks being unaccustomed to the rigors of long-haul operations.

 

Injury Crashes

 

Data on non-fatal crashes are even more limited than for fatals. All the factors militating towards under reporting of fatigue in fatal crashes are even more prevalent in non-fatals. In addition, because the best estimate of the number of non-fatal truck-involved crashes is based on a sample rather than a census (as is the case with fatal crashes), the FMCSA is not able to segregate these crashes by carrier operational type. Therefore, for this analysis, the agency uses the ratio of all injury crashes to fatal crashes as a proxy for fatigue-related injury crashes. The agency has also estimated that injury crashes follow the same patterns as fatal crashes, with overall crashes higher in the afternoon and fatigue-related crashes peaking between 4:00 a.m. and 5:00 a.m.

To evaluate the consistency between fatal and injury crashes, the agency examined injury-crash data from Texas. The agency chose to review Texas for a number of reasons. First, it typically ranks among the highest in terms of fatal truck crashes, ensuring that the agency would have a large sample to analyze. Second, Texas reports a high proportion of fatigue in fatal truck crashes, which suggests the State is better at reporting fatigue. This analysis shows that injury crashes generally mirror the fatal crash distribution by time of day. No data are available on injury crashes by hours driving. Based on Texas’ reports and the analysis of the general mirroring of injury crashes to fatal crash distribution, the FMCSA has determined that the distribution of injury crashes, both overall and fatigue-related, would follow the pattern exhibited by fatal crashes. The complete analysis has been placed in the docket.

This analysis does not include property damage only (PDO) crashes. We were not able to find any reliable information on PDO crashes by trip distance, hours driving, or time of day. The FMCSA also believes that fatigue-related crashes tend to be more severe than non-fatigue-related crashes, so the number of fatigue-related PDO crashes is probably small. In any case, the damage from PDO crashes, whether fatigue related or not, is, by definition, minimal. In an analysis in another rulemaking, the FMCSA estimated that the average truck involved PDO crash costs society between $5,000 and $10,000. RIN (Regulatory Identification Number) 2125–AD27, Docket FHWA– 1997–2222. To the extent that there are a sizable number of PDO crashes which would be affected by this proposal, overall benefits would be greater than the agency’s estimate. See the PRE in the docket for a complete discussion of injury crashes. See the section headed ‘‘XII. Rulemaking Analysis and Notices’’ for more information about RINs.

The FMCSA invites comment on any aspect of the safety problem, the data and estimates used by the FMCSA, and the conclusions reached as a result of the analyses. Please provide with your comments all data, studies, and reports you rely upon that you believe the FMCSA should use.

 

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

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

A. The ICC’s Original Rules

The Motor Carrier Act of 1935 (MCA) (Public Law 74–255, 49 Stat. 543, August 9, 1935), in addition to authorizing far-reaching economic regulation of the trucking industry, directed the ICC to establish qualifications and maximum hours of service for drivers working for private and for-hire interstate property carriers and for-hire interstate passenger carriers. This authority is now codified at 49 U.S.C. 31502.

 

The ICC published its safety proposals, including HOS limits, on July 8, 1936 (1 FR 738). In preparing its draft rules, the Commission examined all State HOS laws and regulations and solicited input from motor carriers and drivers. A formal rulemaking action, including hearings, was conducted before Division 5 of the ICC. (Hearings: 1 FR 1015, August 7, 1936; 1 FR 1510, October 2, 1936; 1 FR 2161, December 18, 1936.) On December 29, 1937, the ICC promulgated its final HOS regulations (effective July 1, 1938), along with detailed findings and explanations (3 M.C.C. 665, 3 FR 7, January 4, 1938). Concerning drivers’ need for off-duty time, the ICC found:

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

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

B. Immediate Changes to HOS Rules

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

The ICC commented that:

[T]here was no statistical or other information which would enable [us] to say definitely how long a driver can safely work. However, at the argument before us, the labor representatives particularly stressed the 15hour limitation, contrasting such a tour of duty with the 8-hour day which is now so generally recognized as the normal standard for workers. The evidence before us clearly does not suffice to enable us to conclude that a duty period as low as 8 hours in 24 is required in the interest of safety. We may call attention, as did the division, to the contrast between factory operations, generally sustained in character, and the operation of busses and trucks, generally characterized by frequent stops for refreshments, gas, or rest, or because of conditions encountered in highway and street traffic. The monotony or nervous and physical strain of driving such vehicles is alleviated by these breaks in the periods devoted to driving, and the period of actual work is considerably below the period on duty. 6 M.C.C. 557, at 561 (July 12, 1938)

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

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

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

(b) Maximum hours requirements:

 

The provisions of section 207 of this title [Maximum hours] shall not apply with respect to—

 

(1) any employee with respect to whom theSecretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49 * * *.

The result is that truckers engaged in interstate commerce work some of the longest hours known in this country, without the opportunity for time-and-a-half overtime pay beyond the 40th hour.

On October 22, 1938 (3 FR 2533), the

U.S.

Department of Labor’s (DOL) Wageand Hour Division (WHD) published regulations (29 CFR part 516) implementing section 11(c) of the FLSA (29 U.S.C. 211(c)). These regulations require motor carriers subject to the minimum wage provisions of the Act— which includes carriers subject to the jurisdiction of the ICC (and now the FMCSA)—to make, keep, and preserve time records showing when drivers start and stop work, as well as the total number of hours they work per day and week.

C.

1962 Amendments

 

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

D. Exemptions

The 1938 revisions to the HOS rules were barely in place when the first request for an exception was filed. Several industry associations argued that the 10-hour driving limit should be extended when bad weather made it impossible to complete a normal run in 10 hours. The ICC allowed an extra 2 hours for ‘‘unfavorable weather conditions.’’ See 11 M.C.C. 203, January 27, 1939, 4 FR 475, January 31, 1939. This exception, slightly modified, is still available (49 CFR 395.1(b)(1) Adverse driving conditions). Other requests followed over the years; the exceptions granted by the ICC are codified at 49 CFR 395.1(b)(2) Emergency conditions, (c) Driver-salesperson, (d) Oilfieldoperations, (e)100 air-mile radius driver, (f) Retail store deliveries, (g) Sleeper berths, (h) State of Alaska, (i) State of Hawaii, and (j) Travel time.

On July 30, 1991 (57 FR 33638), the FHWA published a final rule exempting motor carriers and drivers from most of the Federal Motor Carrier Safety Regulations (FMCSRs), including the HOS rules, while providing emergency relief during a declared regional or local emergency, and more limited relief for tow truck drivers responding to a police request to move wrecked or disabled vehicles (49 CFR 390.23). The emergency relief provision required drivers who had been on duty more than 60 hours in 7 days, or 70 hours in 8, while providing direct assistance to emergency relief efforts, to take 24 hours off duty before returning to normal driving in interstate commerce.

On August 19, 1992 (57 FR 37504), the agency published a proposal to permit drivers to begin anew any on-duty period of 60 hours in 7 days or 70 hours in 8 days upon taking 24 consecutive hours off duty. The FHWA made this proposal to provide opportunities for improved efficiency in operations consistent with highway safety. On February 3, 1993 (58 FR 6937), the FHWA withdrew the proposal, having received virtually no substantive responses to the critical questions asked. Most of the 68,000 comments offered opinions unsupported by empirical (or even anecdotal) material. Except in general terms, there were no discussions of potential impacts on highway safety. The agency needed to know if 24 hours is sufficient time for a driver to obtain the rest necessary to resume driving safely after accumulating 60 to 70 on-duty hours in as short a period as 4.25 days. This question remained unanswered until the completion of Canadian studies (O’Neill, T. et al. (1999) and Smiley, A. & Heslegrave, R. (1997)). The agency discusses these studies later in this document.

Citing the waiver authority enacted as part of the Motor Carrier Safety Act of 1984 (MCSA) (Public Law 98–554, October 30, 1984)(Sec. 206(f), 98 Stat., at 2835), representatives of many industries either filed petitions for waivers of the HOS regulations or contacted the agency about the possibility. Among the carriers requesting exemptions were those involved in utility operations (electricity, natural gas, television), farming and farm supplies, construction, drilling of blast holes for rock quarries, highway traffic marking, custom harvesting, ground water drilling, and transporters of produce, cement, and ready-mix concrete. The FHWA granted none of these requests because the proponents were unable to provide the agency with sufficient data to show that the waiver would meet the statutory test: (1) Not contrary to the public interest and (2) consistent with the safe operation of CMVs.

 

Section 345 of the National Highway System Designation Act of 1995 (Public Law 104–59, 109 Stat. 568, 613) (NHS Act) created a statutory exemption from all of the HOS provisions for individuals transporting crops and farm supplies during planting and harvesting seasons, and a more limited exemption (from the 60- and 70-hour rules) for drivers of utility service vehicles, CMVs transporting ground water well drilling rigs, and construction materials and equipment. The FHWA, however, was authorized to conduct rulemaking on the advisability of each of these exemptions (except that for water well drilling rigs). If the agency determined that an exemption would not be in the public interest and would have a significant adverse impact on the safety of CMVs, the exemption could be blocked before it went into effect, modified or revoked. The NHS exemptions apply only to drivers and motor carriers operating in interstate commerce, and the Act specifically denied preemptive effect to any of the exemptions. The States, therefore, are free to adopt or reject any of the HOS exemptions, whether for interstate or intrastate commerce, without jeopardizing their eligibility for Motor Carrier Safety Assistance Program (MCSAP) funding. The FHWA adopted all of the required exemptions on April 3, 1996 (61 FR 14677) (see 49 CFR 395.1(k) Agricultural operations, (l) Ground water well drilling operations,

(m) Construction materials andequipment, and (n) Utility service vehicles), but deferred until a future date any rulemaking action to consider modifying or revoking them.

While this notice was being prepared, the FHWA received a petition from the Advocates for Highway and Auto Safety (AHAS) seeking rulemaking to reevaluate the 1996 exemptions. By this NPRM, the agency is granting the AHAS petition, which has been placed in the docket. The agency will also be consolidating the Regulatory Identification Number (RIN) 2126–AA29 (formerly 2125–AE09) into this action. See the section headed ‘‘XII. Rulemaking Analysis and Notices’’ for more information about RINs. The FMCSA is proposing to modify the agricultural exemption and revoke all but one of the other NHS Act exemptions. Because Sec. 345 does not authorize rulemaking to reevaluate the exemption for ground water well drilling rigs, it will remain in effect. The utility and construction exemptions, however, would be revoked, and those operations would be required to comply with the proposed ‘‘weekend’’ provisions of the HOS rules for Type 4 or 5 operations, described in detail below.

E. Developments in the 1970’s and1980’s

In 1970, when Congress authorized funds to be spent on research, the FHWA, which had then assumed the safety responsibilities previously exercised by the ICC, initiated inquiries into drivers’ hours of service and fatigue. The research and subsequent rulemaking continued for the next ten years. On February 12, 1976, the FHWA published an ANPRM that discussed three possible options for regulatory revisions (41 FR 6275). Because the agency did not receive sufficient information to determine whether the HOS should be amended, it published a second ANPRM on May 22, 1978 (43 FR 21905) inviting comments on three different regulatory options. After reviewing the comments to the second ANPRM, as well as transcripts from six public hearings that generated more than 9,000 pages of testimony from 1,200 interested parties, the FHWA determined that none of the proposed regulatory options could be supported in its entirety. The FHWA then developed three new proposed HOS options and carried out detailed cost-effectiveness and other regulatory analyses as required by Executive Order 12044 (1978).

Option I would have reduced the 10hour