25540 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety

Administration

49 CFR Parts 350, 390, 394, 395, and

398

[Docket No. FMCSA–97–2350; formerly

FHWA–97–2350 and MC–96–28]

RIN 2126–AA23

Hours of Service of Drivers; Driver

Rest and Sleep for Safe Operations

AGENCY: Federal Motor Carrier Safety

Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

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 onboard 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-Service

Rules

A. The ICC’s Original Rules

B. Immediate Changes to the HOS Rules

C. 1962 Amendments

D. Exemptions

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

V. Comments to the ANPRM

VI. FMCSA Response to Comments and

Research Cited

VII. HOS Regulation Development Process

A. Research Findings

1. The workday should be more regular:

Maintenance of circadian rhythm

2. The driver should be afforded more

opportunity for daily and weekly sleep

3. Driving hours in any duty shift should

generally not exceed 12 hours

4. The time of day when driving is

performed should be considered

5. Non-compliance by drivers and motor

carriers increases the potential for

adverse safety outcomes

B. Guiding Principles for Regulatory

Improvement

C. Types of Motor Carrier Operations

D. Regulatory Options

E. The Expert Panel

F. Recordkeeping Requirements

1. Time Records

2. Electronic On-Board Recorders (EOBRs)

G. Supporting Document Requirements

1. 1998 Notice of Proposed Rulemaking

2. Comments to Docket FHWA–98–3706

(Supporting Documents)

3. FMCSA’s Response to the Comments on

the Supporting Documents NPRM

4. Modified Supporting Documents

Proposal

H. Revised Regulatory Options

I. Benefits and Costs

1. Crash Reduction

2. Paperwork Reduction

3. Total Benefits

4. Quantitative Costs

5. Small Business Costs

6. Qualitative Impacts

7. Benefits and Costs Combined

J. The Option Selected to Propose

VIII. Additional Petitions Received

IX. Implementation

X. Additional Proceedings

XI. Section-by-Section Evaluation

XII. Rulemaking Analysis and Notices

Regulatory Identification Number

Motor Carrier Safety Act

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

Regulatory Flexibility Act

Unfunded Mandates Reform Act of 1995

and Executive Order 12875 (Enhancing

the Intergovernmental Partnership)

Paperwork Reduction Act

National Environmental Policy Act

Executive Order 12988 (Civil Justice

Reform)

Executive Order 13045 (Protection of

Children)

Executive Order 12630 (Taking of Private

Property)

Executive Order 13132 (Federalism

Assessment)

Executive Order 12372 (Intergovernmental

Review)

I. Electronic Availability of This NPRM

Internet users may access this NPRM

and all comments received by the U.S.

DOT Dockets, Room PL–401, by using

the universal resource locator (URL):

http://dms.dot.gov. It is available 24

hours each day, 365 days each year.

Please follow the instructions online for

more information and help.

An electronic copy of this document

may be downloaded by using a

computer, modem, and suitable

communications software from the

Government Printing Office’s Electronic

Bulletin Board Service at (202)512–

1661. Internet users may reach the

Office of the Federal Register’s home

page at: http://www.nara.gov/fedreg and

the Government Printing Office’s web

page at: http://www.access.gpo.gov/

nara.

Internet users may also find this

NPRM at the FMCSA’s Motor Carrier

Regulatory Information Service

(MCREGIS) website for proposed rules

at: http://mchs.fhwa.dot.gov/rulesregs/

fmcsr/rulemakings.htm#proposedrule.

II. Introduction

There is general consensus that

modifications to current HOS

regulations would substantially improve

CMV safety by reducing the fatigue

factor in CMV-involved crashes. There

is evidence that many crashes occur as

a result of CMV driver error, that driver

error is often the result of inattention,

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25541

that inattention can often be the result

of fatigue, that the fatigue which causes

inattention is often related to sleep

deprivation, and that sleep deprivation

is often related to working conditions of

drivers. This proposal would make the

HOS regulations more effective by

requiring motor carriers and drivers to

adhere to the following six standards

and enforcing them:

1. Promote scheduling, dispatching,

and operating practices minimizing the

use of tired, inattentive drivers.

2. Make available for each driver a

consecutive minimum off-duty period of

time each workday and workweek for

the purpose of obtaining restorative

sleep.

3. Make available for each driver an

additional minimum off-duty period of

time each workday, during the workday

or afterwards, to allow a driver to tend

to personal necessities and rest at the

driver’s discretion.

4. Empower the driver to accept or

refuse dispatch or continuation of a trip

based upon the driver’s assessment of

his/her alertness level.

5. Enhance motor carriers’ and CMV

drivers’ knowledge and use of safety

techniques, devices, and practices that

avoid driver impairment due to lack of

sleep.

6. Require the use of automated time

EOBR technology to monitor the workrest 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 illconceived ‘‘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 fatiguerelated 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

25542 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

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 characteristics:

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, including

the driver, for compensation; or

3. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

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

HOS2 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 participate in the Motor Carrier

Safety Assistance Program, 49

CFR part 350.

1GVW, GVWR, and GCWR are acronyms for Gross Vehicle Weight, Gross Vehicle Weight Rating, and Gross Combination Weight Rating, respectively. See 49 CFR 390.5. 2As 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

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25543

25544 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

BILLING CODE 4910–22–C

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25545

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 indepth investigations have clearly

demonstrated that fatigue is a major factor in

transportation accidents.

The objective of this proposal is to

reduce the number of fatigue-related

truck and motorcoach crashes. The

overall benefit therefore will depend on

the effect this proposal will have on

reducing the current number of these

crashes.

For purposes of this proposal, the

FMCSA has assumed that bus drivers

operate in ways similar to truck drivers.

The FMCSA requests comments about

the accuracy of this assumption.

Although there are research studies in

the docket concerning the performance

of bus drivers suffering from fatigue, the

FMCSA could find no research studies

on which to distribute bus drivers

subject to FMCSA jurisdiction among

different operations for the safety and

benefit-cost analyses in the docket.

There are significant differences in

published estimates of the number and

proportion of fatigue-related CMV

crashes. Much of this results from the

differing analytical approaches used,

particularly differences in the set of

crashes analyzed. Generally speaking,

these studies can be divided into two

classes: those relying on large-scale

accident data files, and those based on

more intensive analysis of a smaller

number of crashes.

The FMCSA and the National

Highway Traffic Safety Administration

(NHTSA) have conducted several

fatigue-related CMV crash studies using

large-scale data bases, primarily the

Fatality Analysis Reporting System

(FARS) and the General Estimates

System (GES). These databases, which

are managed by NHTSA, are based

largely (but not exclusively) on police

accident reports (PARs). Most police

accident forms contain a field for driver

contributing factor, and generally among

the choices are driver fatigue,

drowsiness, or asleep at the wheel. In

most analyses, crashes in which one of

these fields is checked are classified as

fatigue-related.

Crash analysts frequently criticize use

of PARs for fatigue analysis, as they

believe that PARs understate the true

extent of fatigue. Police face a number

of difficulties in determining whether

fatigue contributed to a crash. First, the

responding officer’s primary concern is

assisting crash victims and restoring the

flow of traffic. Investigating the causes

of the crash is often a second (or lower)

level concern. Second, few police

officers are trained in crash

reconstruction and, consequently, they

are unable to conduct a detailed

investigation of the physical and

mechanical evidence.

Also, it is unclear what should be

counted as a fatigue-related crash.

Clearly all crashes where fatigue is cited

should be included, but there are other

crashes where fatigue may play a less

direct role. Crashes involving

inattention, distraction, or other driver

failures may be related to fatigue, as

fatigued drivers are more prone to

various types of mental error. These

errors are major causal factors in

crashes.

The ‘‘Tri-Level Study of the Causes of

Traffic Accidents,’’ Treat et al. (1979), is

perhaps the most in-depth study ever

performed in the United States on crash

causation. This was principally a study

of automobile drivers and their crashes.

It found that ‘‘recognition failure’’ was

involved in 56 percent of the crash cases

analyzed. ‘‘Recognition failure’’ in this

study meant: (1) Improper lookout,

including faulty visual surveillance and

‘‘looked but did not see;’’ (2)

inattention, including preoccupation

with competing thoughts; (3) internal or

(4) external distractions, including

attention to competing events, activities,

and objects in and out of the vehicle.

While driver-drowsiness/fatigue was

found to be a certain or probable factor

in 2 percent of the cases, 23 percent

involved faulty visual surveillance, 15

percent involved inattention, and 13

percent involved distraction. The

FMCSA believes the study is generally

applicable to CMV drivers and their

crashes because the agency believes

both CMV and automobile drivers are

susceptible to driving related problems

associated with visual surveillance,

inattention, and distraction.

More recent studies have also found

high levels of inattention and

distraction. In a study of nearly 700

Crashworthiness Data System (CDS) and

GES crashes, Najm et al. (1995)

determined that recognition errors were

the primary causes of 45 percent of the

cases studied, compared to 3.7 percent

primarily due to driver drowsiness.

General Motors scientists reviewed over

1,000 PARs from the State of Michigan,

and reported that 17 percent were

attributable to ‘‘daydreaming’’ and 18

percent to improper lookout, with just 1

percent due to ‘‘dozing.’’ Deering (May

17, 1994).

A recent study by the United States

Coast Guard also suggests that direct

measurement of fatigue may understate

its true extent, U.S. Coast Guard

(1997)(MSC 68/INF.11). Coast Guard

researchers developed a ‘‘fatigue index,’’

based on the number of fatigue

symptoms reported, and the number of

hours worked and slept in the 24 hours

prior to the incident. Using this formula

increased the percentage of critical

vessel cases categorized as fatigue

related from 1.2 percent to 16 percent.

Critical vessel cases involve significant

property damage or the loss of the

vessel. Critical casualty cases involve

personnel injuries. For critical casualty

cases, the fatigue index resulted in an

adjustment increase from 1.3 to 33

percent. These reports indicate the need

to be more expansive and inclusive

when defining fatigue-related incidents,

as well as the likelihood that fatigue

statistics based solely on accident

reports underestimate the true extent of

the fatigue problem.

Fatigue increases the likelihood that a

driver will not pay sufficient attention

to driving or commit other mental

errors. As discussed above, in-depth

studies of crashes have found that

inattention and other mental lapses

25546 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

contribute to as much as 50 percent of

all crashes. While fatigue may not be

involved in all these crashes, it clearly

contributes to some of them. The agency

tentatively estimates that 15 percent of

all truck-involved fatal crashes are

‘‘fatigue-relevant,’’ that is, fatigue is

either a primary or secondary factor.

This includes the 4.5 percent of fatal

crashes where fatigue is directly cited,

and another 10.5 percent where it

contributes to other mental lapses,

which then result in a crash. The

FMCSA conducted some sensitivity

analysis to determine the impact of

different baseline levels of fatigue. Table

2 shows the FMCSA’s estimate of the

number of fatigue-related crashes by

operational type.

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

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 twothirds 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 fatiguerelated 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 semiVerDate 27-APR-2000 10:30 May 04, 2000 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\TEMP\02MYP2.LOC pfrm09 PsN: 02MYP2
Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25547

trailers and straight trucks pulling a

trailer. These vehicles were also

involved in four-fifths of all fatigueinvolved 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 fatiguerelated 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-ofService 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 onduty period, the ICC set a 12-hour

maximum daily work period for drivers.

Work was defined as ‘‘loading,

unloading, driving, handling freight,

preparing reports, preparing vehicles for

service, or performing any other duty

pertaining to the transportation of

passengers or property.’’ The ICC

intended the 3-hour difference between

15 hours on duty and 12 hours of work

to be used for meals and rest breaks. The

Commission also set a weekly on-duty

limit of 60 hours in any 7 consecutive

days or 70 hours in 8 consecutive days.

B. Immediate Changes to HOS Rules

Within a short time, however,

representatives of organized labor

(including the American Federation of

Labor, the Teamsters, and the

Machinists) petitioned for a stay of the

original regulations. A few motor

carriers made a similar request. The ICC

agreed, and oral arguments were heard

again. Labor wanted HOS limits of 8

hours per day and 48 hours per week.

The ICC commented that:

[T]here was no statistical or other

information which would enable [us] to say

definitely how long a driver can safely work.

However, at the argument before us, the labor

representatives particularly stressed the 15-

hour limitation, contrasting such a tour of

duty with the 8-hour day which is now so

generally recognized as the normal standard

for workers. The evidence before us clearly

does not suffice to enable us to conclude that

a duty period as low as 8 hours in 24 is

required in the interest of safety. We may call

attention, as did the division, to the contrast

between factory operations, generally

sustained in character, and the operation of

busses and trucks, generally characterized by

frequent stops for refreshments, gas, or rest,

25548 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

or because of conditions encountered in

highway and street traffic. The monotony or

nervous and physical strain of driving such

vehicles is alleviated by these breaks in the

periods devoted to driving, and the period of

actual work is considerably below the period

on duty. 6 M.C.C. 557, at 561 (July 12, 1938)

The Commission ultimately decided

to change the 12-hour work limit in 24

hours to a 10-hour driving limit in 24

hours. Motor carriers were required to

give drivers 8, rather than 9, consecutive

hours off duty each day. That meant

drivers could be kept on duty as much

as 16 hours out of 24; the specific daily

on-duty limit was rescinded. The 60-

and 70-hour limits were unchanged (3

FR 1875, July 28, 1938). The ICC

remarked that these rules were

somewhat less flexible than the original

HOS regulations, but considerably more

flexible than the standards requested by

organized labor. ‘‘[A]s the great bulk of

the trucking operations covered by these

regulations are conducted on a 6-day

basis,’’ the report said, ‘‘the practical

effect of the weekly limitation is to

provide a 10-hour day.’’ 6 M.C.C. 562

(1938). The Commission reiterated a

similar point elsewhere in its report on

the amended rules.

[I]t was strongly urged upon us [the ICC]

that the daily and weekly maxima prescribed

by division 5 would make it difficult to

negotiate contracts for shorter hours, or for

unorganized labor to hold the hours it has.

It was said that already carriers have used the

regulations prescribed in the prior report as

a means of lengthening hours. Considerations

other than those with which we may

properly deal enter here, though we look

with distinct disfavor on carriers or others

who use regulations premised on safety as a

means of defeating employees’ efforts to

improve their economic status. It is

questionable, however, whether the practice

has been or will be a serious one. The fact

that we hereinafter prescribe 60 hours on

duty as the weekly maximum should not

interfere with the negotiations by organized

labor of contracts providing for shorter hours.

6 M.C.C. 557, at 560 (July 12, 1938).

The ICC’s hope that the HOS rules

would not be used to lengthen drivers’

hours has not been borne out. That is a

matter of some importance, since the

FLSA, which generally required

overtime pay after July, 1945 for more

than 40 hours of work per week,

included an exemption for motor

carriers subject to the ICC’s regulations.

Amended only slightly, the exemption

remains in effect today at 29 U.S.C.

213(b):

(b) Maximum hours requirements:

The provisions of section 207 of this title

[Maximum hours] shall not apply with

respect to—

(1) any employee with respect to whom the

Secretary of Transportation has power to

establish qualifications and maximum hours

of service pursuant to the provisions of

section 31502 of title 49 * * *.

The result is that truckers engaged in

interstate commerce work some of the

longest hours known in this country,

without the opportunity for time-and-ahalf overtime pay beyond the 40th hour.

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

U.S. Department of Labor’s (DOL) Wage

and Hour Division (WHD) published

regulations (29 CFR part 516)

implementing section 11(c) of the FLSA

(29 U.S.C. 211(c)). These regulations

require motor carriers subject to the

minimum wage provisions of the Act—

which includes carriers subject to the

jurisdiction of the ICC (and now the

FMCSA)—to make, keep, and preserve

time records showing when drivers start

and stop work, as well as the total

number of hours they work per day and

week.

C. 1962 Amendments

The first, and in fact the only,

fundamental change to the HOS rules

since the late 1930’s occurred in 1962

(89 M.C.C. 19, March 29, 1962, 27 FR

3553, April 13, 1962). For reasons it

never explained clearly, the ICC

retained the 8-hour off-duty requirement

and the 10-hour driving limit, but

dropped the 24-hour limit. This had

profound effects. For example, a driver

who came on duty and started driving

at 12:01 a.m. Monday would have to

stop driving at 10:00 a.m. If the driver

then took 8 hours off duty, he or she

could drive again from 6:00 p.m. to

midnight, for a total of 16 hours on

Monday. The previous rule would have

limited the driver to a total of 10 hours

driving time in any 24-hour period. The

unintended consequences of this change

are described below.

D. Exemptions

The 1938 revisions to the HOS rules

were barely in place when the first

request for an exception was filed.

Several industry associations argued

that the 10-hour driving limit should be

extended when bad weather made it

impossible to complete a normal run in

10 hours. The ICC allowed an extra 2

hours for ‘‘unfavorable weather

conditions.’’ See 11 M.C.C. 203, January

27, 1939, 4 FR 475, January 31, 1939.

This exception, slightly modified, is still

available (49 CFR 395.1(b)(1) Adverse

driving conditions). Other requests

followed over the years; the exceptions

granted by the ICC are codified at 49

CFR 395.1(b)(2) Emergency conditions,

(c) Driver-salesperson, (d) Oilfield

operations, (e)100 air-mile radius driver,

(f) Retail store deliveries, (g) Sleeper

berths, (h) State of Alaska, (i) State of

Hawaii, and (j) Travel time.

On July 30, 1991 (57 FR 33638), the

FHWA published a final rule exempting

motor carriers and drivers from most of

the Federal Motor Carrier Safety

Regulations (FMCSRs), including the

HOS rules, while providing emergency

relief during a declared regional or local

emergency, and more limited relief for

tow truck drivers responding to a police

request to move wrecked or disabled

vehicles (49 CFR 390.23). The

emergency relief provision required

drivers who had been on duty more

than 60 hours in 7 days, or 70 hours in

8, while providing direct assistance to

emergency relief efforts, to take 24 hours

off duty before returning to normal

driving in interstate commerce.

On August 19, 1992 (57 FR 37504),

the agency published a proposal to

permit drivers to begin anew any onduty 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 onduty 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

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25549

because the proponents were unable to

provide the agency with sufficient data

to show that the waiver would meet the

statutory test: (1) Not contrary to the

public interest and (2) consistent with

the safe operation of CMVs.

Section 345 of the National Highway

System Designation Act of 1995 (Public

Law 104–59, 109 Stat. 568, 613) (NHS

Act) created a statutory exemption from

all of the HOS provisions for

individuals transporting crops and farm

supplies during planting and harvesting

seasons, and a more limited exemption

(from the 60- and 70-hour rules) for

drivers of utility service vehicles, CMVs

transporting ground water well drilling

rigs, and construction materials and

equipment. The FHWA, however, was

authorized to conduct rulemaking on

the advisability of each of these

exemptions (except that for water well

drilling rigs). If the agency determined

that an exemption would not be in the

public interest and would have a

significant adverse impact on the safety

of CMVs, the exemption could be

blocked before it went into effect,

modified or revoked. The NHS

exemptions apply only to drivers and

motor carriers operating in interstate

commerce, and the Act specifically

denied preemptive effect to any of the

exemptions. The States, therefore, are

free to adopt or reject any of the HOS

exemptions, whether for interstate or

intrastate commerce, without

jeopardizing their eligibility for Motor

Carrier Safety Assistance Program

(MCSAP) funding. The FHWA adopted

all of the required exemptions on April

3, 1996 (61 FR 14677) (see 49 CFR

395.1(k) Agricultural operations, (l)

Ground water well drilling operations,

(m) Construction materials and

equipment, and (n) Utility service

vehicles), but deferred until a future

date any rulemaking action to consider

modifying or revoking them.

While this notice was being prepared,

the FHWA received a petition from the

Advocates for Highway and Auto Safety

(AHAS) seeking rulemaking to

reevaluate the 1996 exemptions. By this

NPRM, the agency is granting the AHAS

petition, which has been placed in the

docket. The agency will also be

consolidating the Regulatory

Identification Number (RIN) 2126–AA29

(formerly 2125–AE09) into this action.

See the section headed ‘‘XII.

Rulemaking Analysis and Notices’’ for

more information about RINs. The

FMCSA is proposing to modify the

agricultural exemption and revoke all

but one of the other NHS Act

exemptions. Because Sec. 345 does not

authorize rulemaking to reevaluate the

exemption for ground water well

drilling rigs, it will remain in effect. The

utility and construction exemptions,

however, would be revoked, and those

operations would be required to comply

with the proposed ‘‘weekend’’

provisions of the HOS rules for Type 4

or 5 operations, described in detail

below.

E. Developments in the 1970’s and

1980’s

In 1970, when Congress authorized

funds to be spent on research, the

FHWA, which had then assumed the

safety responsibilities previously

exercised by the ICC, initiated inquiries

into drivers’ hours of service and

fatigue. The research and subsequent

rulemaking continued for the next ten

years. On February 12, 1976, the FHWA

published an ANPRM that discussed

three possible options for regulatory

revisions (41 FR 6275). Because the

agency did not receive sufficient

information to determine whether the

HOS should be amended, it published a

second ANPRM on May 22, 1978 (43 FR

21905) inviting comments on three

different regulatory options. After

reviewing the comments to the second

ANPRM, as well as transcripts from six

public hearings that generated more

than 9,000 pages of testimony from

1,200 interested parties, the FHWA

determined that none of the proposed

regulatory options could be supported

in its entirety. The FHWA then

developed three new proposed HOS

options and carried out detailed costeffectiveness and other regulatory

analyses as required by Executive Order

12044 (1978).

Option I would have reduced the 10-

hour driving limit to 8 hours, among

other things. Option II would have

eliminated the differences in time

allowances for driving time, on-duty

time, and duty tour by specifying each

have a limit of 12 hours, among other

things. Option III would have

maintained the status-quo regulations,

with one exception: it would have

banned driving between midnight and

6:00 a.m.

The cost to society of Option I was

estimated to be $11.496 billion and its

benefits to society to be $450 million.

The cost of Option II was estimated to

be $10.642 billion and its benefits $450

million. The cost of Option III would

have been $11.019 billion and its

benefits $63 million. The rulemaking

was terminated on September 3, 1981.

V. Comments to the ANPRM

The FHWA published an ANPRM to

amend the HOS regulations on

November 5, 1996 (61 FR 57252). This

action was mandated by section 408 of

the ICC Termination Act (Public Law

104–88, December 29, 1995, 109 Stat.

803, 958). The FHWA nearing

completion of several research projects

and sought the results of other relevant

research to consider in this effort. The

FHWA requested comments on the

current HOS regulations and sought

assistance in locating any other relevant

information, including research,

operational tests, or pilot regulatory

programs conducted anywhere in the

world, that could be used in developing

revised HOS rules for CMV drivers.

The agency received 1,650 comments

in response to the ANPRM. The

strongest support for amending the rules

came from truck drivers, although no

demand for major increase or decrease

in hours emerged from their comments.

Many drivers commented they wanted

to work fewer hours without loss in

annual incomes, and many other drivers

wanted to drive longer hours and earn

higher annual incomes. The only major

theme that most agreed on was that they

would like to see the agency prohibit

them from loading and unloading cargo.

The specific concerns or issues raised

by the commenters who discussed

technical or economic issues are

addressed in the following sections. The

respondents represented 13 advocacy

groups, 3 consultants to the industry, 32

individuals, including concerned

citizens and spouses of drivers, 1

insurance company, 4 labor unions, 3

law firms, 1,159 motor carriers

(including owner/operators and drivers

operating for motor carriers), 7 motor

carriers of passengers, 49 trade

associations (including 1 motor coach

association), 1 truck driving school, 3

universities (including specific research

departments of various institutions), 7

federal government agencies or

representatives (including Senators

Robb, Abraham, Specter, and Helms,

Representative Cliff Stearns, and the

NTSB), 4 state government agencies, 1

local government, and 33 other entities

(including respondents of indeterminate

affiliation).

Most respondents submitted

comments that did not provide relevant

scientific research or studies in support

of their comments. The FMCSA

considered additional comments

submitted after the June 30, 1997,

closing date.

Following are general comments on

information contained in the docket.

1. In September 1997, after the June

1997 closing date, the docket contained

572 responses to the 69 specific

questions asked in the ANPRM.

2. Of the 572 question-specific

responses, 127 included submissions of,

25550 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

or references to, a specific report, study,

or survey.

3. Of the 1,650 comments analyzed,

731 were form letters to the docket.

There were two different form letters;

and none of these letters provided any

relevant scientific research or studies to

support the comments. The first form

letter, received from 152 motor carriers

in the construction industry, indicated

that driver productivity is constrained

by weather, the time of the year, and

daylight hours. Furthermore, these

carriers emphasized that they almost

always operate within a localized

geographical area, and concluded that

drivers in the construction industry be

exempt from the HOS regulations that

govern over-the-road drivers. The

FMCSA consolidated the figures for

these 152 carriers and found they

operated 5,614 single-unit, straight

trucks and 1,734 truck tractors. See

Table 3.

TABLE 3.—152 CONSTRUCTION INDUSTRY COMMENTS

Comment Minimum Maximum Average per carrier

Typical Trip Miles ........................... 2 miles .......................................... 700 miles ...................................... 43.55 miles.

Typical Trip Time ........................... 0.02 hours ..................................... 12 hours ........................................ 1.89 hours.

Total Trips (over 3 years) .............. 0 trips claimed .............................. 1,000,000 trips .............................. 101,107 trips.

Total Miles (over 3 years) .............. 60 miles ........................................ 21,744,000 miles .......................... 2,232,038.89 miles.

Accidents (over 3 years) ................ 0 accidents ................................... 58 accidents ................................. 3.31 accidents.

A second form letter was submitted

by drivers in the form of a survey. All

respondents submitting these form

letters indicated support for a change in

the FMCSA HOS regulations. They also

provided no relevant scientific research

or studies to supported comments.

Comments Identifying Potential

Science-Based Alternatives

All comments citing research studies

as their basis for comments are

discussed in this section. They are

presented according to the regulatory

elements they address.

Off-Duty Time

The Insurance Institute for Highway

Safety (IIHS) recommended a minimum

of 12 to 14 hours off duty per day, citing

Wylie, C.D. et al. (1996) (the FHWA’s

Driver Fatigue and Alertness Study).

The IIHS believes the rules must require

a 14-hour minimum off-duty time after

a driver has driven in the time period

midnight through 6:00 a.m.; it bases this

comment on Miller (1993). In a meeting

on September 23, 1998, IIHS and

National Safety Council officials came

to the FHWA to discuss various HOS

concerns. At that meeting, IIHS

recommended a minimum 14-hour offduty period, citing Lin et al. (1994,

1993), Jones and Stein (1987, 1989),

Frith (1994), Saccomanno et al. (1996),

NTSB (1995), and Summala and

Mikkola (1994). IIHS provided copies of

these studies and the FHWA/FMCSA

filed them in the docket along with a

summary of the meeting.

The American Trucking Associations,

Inc. (ATA) and Landstar Systems, Inc.

support 10 hours per day off duty, also

citing Wylie, C.D. et al. (1996). The

International Brotherhood of Teamsters

(IBT) recommends 9 hours off duty per

day citing NTSB, (1995), while the

National Sleep Foundation (NSF)

presented a Department of the Army

aviation study, Caldwell, J. (1997) and

Belenky, G. (1994), suggesting that

aviators obtain an average of 7 hours of

sleep during a 24-hour period.

‘‘Re-start’’ Provisions (e.g., 24 Hour, 36

Hour, etc.)

The ATA believes the FMCSA should

implement a re-start provision and

offered Woodward and Nelson (1974)

and Krueger et al. (1987) to support its

assertion that a 24-hour ‘‘re-start’’ after

36 to 48 hours of high workload is

desirable.

Sleeper-Berth Use

The California Highway Patrol (CHP)

believes Wylie et al. (1996) suggest that

sleeping facilities, other than sleeperberth equipment meeting the

requirements of 49 CFR 393.76, would

make enforcement difficult by requiring

officers to determine whether alternate

locations qualify as adequate sleep/rest

locations.

The AHAS believes short sleeperberth periods should not be allowed to

count toward minimum off-duty

requirements and bases that comment

on Wylie et al. (1996). AHAS

recommends that crediting split sleeperberth periods toward the 8-hour off-duty

period be prohibited, also based on its

interpretation of Wylie et al. (1996).

The ATA and the Distribution and

LTL Carriers Association (DLTLCA)

support the continuation of sleeperberth-type provisions, i.e., split sleep

periods or dividing a consecutive offduty period into two or more smaller

periods with duty in between, citing

Chiles (1968). The National Sleep

Foundation (NSF) supports the

continuation of sleeper-berth-type

provisions, basing its position on work

by Caldwell, J. (1997), Belenky, G.

(1994), Bonnet (1994), and Dinges and

Broughton (1989). The NTSB, citing

research by Dinges (1989), and the IBT,

citing NTSB (1995), however, oppose

sleeper-berth-type off-duty hours.

The Owner-Operator Independent

Driver’s Association (OOIDA) surveyed

its members before it responded to the

ANPRM. Its study, OOIDA (1997),

shows 28 percent of its members split

their off-duty time. A similar ATA

survey, ATA (1997), shows that most

driving teams split their sleep periods

into 4 hours on duty and 4 hours off

duty. The OOIDA survey shows that

single drivers average 3 hours 52

minutes for the first sleeper berth period

and 4 hours 20 minutes for the second.

The ATA survey shows 5 percent of

team drivers use the sleeper berth while

the CMV is in operation. The OOIDA

survey shows a figure of 11 percent for

team drivers, and also reports that these

team drivers obtain an average of 5

hours 38 minutes driving and 5 hours

14 minutes of rest in each off-duty

sleeper-berth period.

Rest Breaks or Napping

The AHAS and the ATA recommend

that the regulations require the practice

of taking naps during long trips. AHAS

cited Wylie et al. (1996) and ATA cited

its own survey, ATA (1997).

On-Duty Time

The OOIDA believes findings in

Wylie, et al. (1996) support its

recommendation for the FMCSA to

allow a maximum of 15 hours per day

on duty. ROCOR Transportation favors

between 14 and 15 hours maximum on

duty time, and also cites Wylie, et al.

(1996). The ATA and Landstar Systems,

Inc. recommend 14 hours on duty time

with no distinction between the driving

and on-duty times and bases its

recommendation on Wylie, et al. (1996)

and Harris, et al. (1972).

Driving Time

The CHP believes Wylie et al. (1996)

shows that 10 hours driving time is not

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25551

excessive if managed properly. Citizens

for Reliable and Safe Highways

(CRASH) recommends a maximum of 10

hours driving time in a 12-hour on-duty

time period, citing Fuller (1983), Lin et

al. (1993), and Jones and Stein (1987).

In the meeting on September 23, 1998,

discussed above under the subheading

‘‘off duty time,’’ IIHS also recommended

a maximum 10-hour driving period,

citing the same studies, Lin et al. (1994,

1993), Jones and Stein (1987, 1989), and

three additional studies, Frith (1994),

Saccomanno et al. (1996), NTSB (1995),

and Summala and Mikkola (1994). An

IIHS official also stated during that

meeting that the IIHS could accept an

increase in driving hours if the IIHS

could be assured the drivers would be

afforded more hours off duty.

Weekly On-Duty Limits

The OOIDA cites Wylie et al. (1996)

as support for its assertion that the

weekly on-duty limit be eliminated.

Vallenduuk Tissingh Advocaten (VTA)

of the Netherlands cited a European

regulation and contended the FMCSA

should adopt the European example of

allowing 84 hours on duty while

limiting driving up to 56 hours. The

ATA believes Wylie, et al. (1996) and

Mackie and Miller (1978) support the

current 60- and 70-hour rules.

Do Wage Methods Affect HOS?

The AHAS favors elimination of the

section 13(b) exemption to the Fair

Labor Standards Act and cites NTSB

(1995), NTSB (1990), and Braver et al.

(1992) as the basis for its assertion. The

NTSB believes a link between payment

by the mile and HOS violations is

shown by its 1995 research study.

CRASH cites Beilock (1995) as support

for its suggestions that the FMCSA

should incorporate compensation

systems allowing drivers to generate

reasonable and adequate incomes while

upholding the law. VTA cites University

of Groningen research (1986) showing

drivers in Europe who are paid monthly

salaries have fewer HOS violations than

drivers paid by distance traveled.

On-Board Monitoring Devices

The IIHS cites its own research study,

IIHS (1995), as well as Stein (1994) and

Gronemeyer (1994), as the basis for its

recommending a requirement for onboard monitoring devices. The NSF

cites Braver et al. (1992), NTSB (1990),

and IIHS (1995) as the basis for

requiring such devices. The ATA cites

Penn and Schoen (1995) in its assertion

that on-board monitoring devices

should not be required. Six comments

provided cost estimates, although only

two of the six comments cited cost

estimates based on studies, specifically

IIHS (1995) and Penn and Schoen

(1995). The other four cost estimates

came from the Log Truckers Association

of Montana, John Cheeseman Trucking,

Inc., ROCOR Transportation, and

Rockwell Transportation Electronics.

ROCOR stated it had 2,000 units in use

costing about $3,000 per unit. It

estimated a higher cost for smaller

motor carriers. Though the other

commenters did not state the basis for

their estimate, the FMCSA presumes

they are based on past business

decisions or marketing and sales

information.

Types of Motor Vehicles Included

The OOIDA cites Wylie et al. (1996)

in asserting that the driving time limits

should be applicable only to motor

vehicles over 4,537 kg (10,000 pounds).

The OOIDA believes the FMCSA should

not propose any new regulations

defining ‘‘driving time’’ applicable to

motor vehicles up to 4,537 kg, because

it believes Wylie et al. (1996) found that

hours of driving are not a strong or

consistent predicator of observed

fatigue.

Adverse Weather

CRASH does not believe a driver

should be allowed to continue to drive

an extra two hours when the driver

encounters adverse weather conditions

after being dispatched, citing Fuller

(1983), Lin et al. (1993), and Stein and

Jones (1987). The OOIDA, on the other

hand, cites Wylie et al. (1996) as

support for its belief that the FMCSA

should retain the ‘‘adverse weather

rule’’ provision allowing drivers an

extra two hours because, in such

circumstances, drivers sometimes have

difficulty finding adequate parking.

Bobtailing En Route

The OOIDA believes that Wylie, C.D.

et al. (1996) shows that drivers should

be allowed to bobtail to motels and

restaurants while off duty in the vicinity

of en route stops. Bobtailing, in the

context provided in question 17 of the

ANPRM, means a single tractor CMV

operating without a trailer coupled to it.

(Bobtailing can also mean the operation

of a straight truck in certain industries

or parts of the country. The FHWA did

not ask any specific questions regarding

research data related to use of CMVs for

travel to motels and restaurants while

off duty in the vicinity of en route stops,

although a regulatory interpretation

currently allows the practice.)

Provisions Relating to Circadian

Rhythms

The AHAS cites Harris (1977),

Hamelin (1980, 1981, 1987), Mackie and

Miller (1979), Hertz and Eastham (1986),

and Moore-Ede et al. (1988) as the basis

for its assertion that any new FMCSA

regulations must do the following three

things:

1. Prevent rapidly rotating shifts.

2. Avoid scheduling that results in a

long driving day ending deep within the

early-morning circadian trough.

3. Limit the number of consecutive

hours that CMV drivers must drive if

assigned to nocturnal driving.

The IIHS, NTSB, and the NSF believe

a circadian-based provision should be

proposed, citing Moore-Ede et al. (1986),

Gold et al. (1986), McDonald (1984),

Tepas and Monk (1987), Caldwell

(1997), and A ̊kerstedt, T. (1995), but

they offered no specific suggestions.

Restriction On Early-Morning Driving

Time

The ATA cites Wylie et al. (1996) as

the basis for its assertion that the

FMCSA should not restrict earlymorning driving time. The IIHS and

NSF cite Rosa and Colligan (1988), Kogi

and Ohta (1975), Caldwell (1997), and

A

 ̊

kerstedt, T. (1995) to support their

belief that early-morning driving time

restrictions should be proposed.

Exemptions, Variations, and

Customizations

The AHAS opposes all exemptions

from HOS regulations that could allow

longer daily driving hours, shorter offduty rest periods, or other relief that

fails to incorporate the same health and

safety protections afforded long-haul

drivers. The AHAS cited NTSB (1995)

in support of its argument. The AHAS

contends that the FMCSA has no

research of record on the following

topics: comparisons of long-haul versus

short-haul fatigue-related crashes; sleep

quality; and other considerations of

alertness or performance deficiencies

associated with differences in acute or

chronic sleep deprivation, including

differences identified from a

comparison of long-haul and short-haul

CMV driving.

The Associated General Contractors of

America (AGCA) submitted AGCA

(1997) showing that construction

industry drivers have short trips and a

short seasonal operation period. The

AGCA believes this study supports its

contention that its member firms are not

engaged in long-haul truck driving and

should therefore be exempt from any

HOS regulations. The National Ready

Mixed Concrete Association (NRMCA)

25552 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

1Abstract, Australian initiatives in managing

fatigue in transportation, by Assoc. Prof. Laurence

Hartley, Institute of Research in Safety & Transport,

Murdoch University, South Street, Western

Australia, Australia, in the Truck Safety

Symposium 99, Steering Committee, June 3, 1999.

believes that Wylie, et al. (1996) support

that industry’s request for an HOS

exemption. The NRMCA also submitted

its own survey (NRMCA (1997)) stating

that drivers in its industry drive CMVs

only 44 percent of their [working] time,

that they average 22 miles per round

trip and they drive an average of 21,024

miles per year.

The Utility Solid Waste Activities

Group and Virginia Electric and Power

Company argue that the findings of

Bowen, V. (1996) support the need for

a utility industry exemption. They

submitted both the study and a petition

for an exemption.

Consignor and Consignee Responsibility

and Accountability

The OOIDA cites OOIDA (1997) as the

basis for its support for heavy fines for

consignors and consignees responsible

for drivers violating the regulations.

Loading and Unloading Freight

The AHAS cites Wylie et al. (1996) to

show loading and unloading freight

should be classified as on-duty time. It

argues that eliminating such duties from

a driver’s responsibilities would justify

reduction of total driving and duty time

from 15 hours to a more reasonable

period of time, such as 12 hours.

The OOIDA cites OOIDA (1997)

showing that 42 percent of responding

drivers record loading and unloading

time as off duty. The same survey shows

74 percent would record such time as

on duty-not driving if the drivers were

paid a reasonable amount for such

services.

Consignor and Consignee Delays

The OOIDA (1997) survey shows 80

percent of responding drivers are not

paid for time waiting while delayed by

consignors and consignees. Seventythree percent of responding drivers

record consignor and consignee delays

as off-duty time, while 66 percent

would record such time as on duty-not

driving if they were paid a reasonable

amount for such delays.

Performance-Based Regulation

Feasibility

The ATA believes the FMCSA should

propose a program for HOS performance

similar to the fatigue management

demonstration project undertaken in

Queensland, Australia and discussed in

a paper authored by Gary Mahon of

Queensland Transport. The ATA noted

in its comments that the province of

Alberta, Canada was also considering a

fatigue management demonstration

project. Alberta and Queensland have

ongoing pilot programs within limited

geographical areas. According to a

discussion paper on the Queensland

program that the FMCSA has received:

The Queensland Fatigue Management

Program (FMP) is designed to control all the

factors that cause fatigue. The FMP takes into

account more than just the number of hours

spent driving. FMP operators enter into an

accreditation agreement with Queensland

Transport. This agreement sets out the

conditions of the program and allows

operators to operate outside the Truck

Driving Hours Regulations. This is the

incentive to take part in the program. The

FMP Standards attempt to assist the operator

with managing all of the factors that impact

fatigue including: scheduling, rostering,

driver health, workplace conditions, fitness

for duty, time off, and management systems

to operate the FMP etc. In order to operate

under the FMP, the operator must develop

and implement management systems and

procedures that will allow them to meet the

standards and to achieve the level of

performance that is required. Enforcement

occurs when operators fail to reach those

standards and are disaccredited (sic) from the

program.1

The IIHS does not believe fitness-forduty and other performance

measurement devices have been

adequately tested and validated. They

suggest review of Williamson et al.

(1996), Mausner and Braun (1974), and

Lilienfeld and Stolley (1994) to avoid

false negatives and false positives, while

also accounting for environmental

variables such as traffic congestion and

weather conditions, before opting for

performance requirements.

The NSF also does not believe fitnessfor-duty and other performance

measurement devices are feasible and

operationally practical at the present

time. The NSF suggests review of Dinges

(1995), Horne and Reyner (1995), Valley

and Broughton (1983), and Dinges and

Kribbs (1991) before requiring ‘‘drowsy

driving detection devices’’ and that such

devices may lead to a false sense of

security for those drivers who would

rely solely on them to detect declining

alertness. The NSF believes one does

not have to fall asleep to be a danger to

oneself and others.

VI. FMCSA Response to Comments and

Research Cited

One of the foremost goals of this

rulemaking is to reduce the number of

CMV drivers and others killed and

injured in crashes. In formulating new

rules, the FMCSA must consider

persuasive evidence and reliable data.

Most CMV drivers and other

commenters did not have access to

research concerning technical or

economic aspects of fatigue, alertness,

off-duty, on-duty, or driving time. The

agency appreciates all the information

provided by the responders, and the

serious comments reflecting both

experience and interpretations of the

many studies, research reports, and

surveys cited. It would not be useful to

take issue with the information and

comments provided in the abstract.

Rather, the FMCSA reviewed these

issues and comments in the context of

developing its proposal. The remainder

of this preamble will focus on those

issues in relation to the development of

the proposal. The agency, however, has

not ignored the concerns of drivers and

other commenters whose personal

experiences have led them to support

changes to the HOS regulations.

Fatigue Management Programs or Plans

Although the FMCSA is not proposing

any regulations specifically dealing with

Fatigue Management Programs or Plans,

the agency is not ruling them out. There

is still much to learn about such

alternatives to prescriptive HOS

regulations, and the FMCSA has been

very interested in the experience of

other countries in their implementation.

Within the DOT, moreover, the Federal

Railroad Administration is initiating

fatigue management programs for

selected railroads. As suggested by the

IIHS and the NSF above under the

discussion of Performance-based

Regulation Feasibility, more study is

needed before such alternatives should

be incorporated in the regulation of

commercial highway operations.

The FMCSA continues to study the

technology it believes is required to

support such programs. Projects are

presently under development to test at

least two forms of technology in regular

operations during this fiscal year. The

agency believes that careful testing

within the scope of pilot demonstration

programs authorized under 49 CFR Part

381 (49 U.S.C. 31136[e]) would be the

best way to investigate the feasibility of

this promising approach to

performance-based regulation in this

area.

VII. Regulation Development Process

A. Research Findings

In developing this section, the

FMCSA has relied on a large body of

research dealing with work, fatigue,

alertness, sleep cycles and other related

matters. The FMCSA reviewed over 150

research studies and other documents,

many of which were referred to by

docket commenters or provided as

attachments to docket comments. Many

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25553

of the reviewed documents reported on

research conducted on motor carriers

and CMV drivers. Others, such as

studies on shiftwork, sleep and

performance, and the physiological

nature of sleep, were judged relevant to

the issue of CMV driver safety, even

though they were conducted in other

operational settings or in laboratory

environments.

It must be noted that the conclusions

drawn from this research were done

from the perspective of commercial

highway transportation. Although there

are industries seeking exemptions from

the HOS rules citing research studies in

the docket concerning the performance

of their drivers, e.g., utility,

construction, and motorcoach

industries, the FMCSA could find no

research studies showing these drivers

do not suffer from fatigue, do not need

sleep daily, and have fewer fatiguerelated crashes than other truck and bus

drivers subject to FMCSA jurisdiction.

For example, as stated above, the

Utility Solid Waste Activities Group and

Virginia Electric and Power Company

provided the Bowen (1996) study stating

it supports the need for an utility

industry exemption. Motor carriers

participating in the study were a mix of

FMCSA-regulated and non-regulated

public utilities. The study used a

sample of drivers who accumulated

nearly five million miles of driving.

Ninety crashes were reported (90

divided by 5 million miles = 18 crashes

per million vehicle miles). The author

relates (on page 15 of the report) ‘‘Based

on this limited exposure [1731 hours of

driving time reported], it seems that

after 80 hours on duty [in a 7 day

period], the accident rate rises

precipitously.’’

The FMCSA notes that, although the

Bowen study tracked exposure by both

driving time and distance, there were no

statistics presented aside from purely

descriptive graphs and tables. No

significance tests were discussed. No

baseline data was presented. This

concerns the FMCSA given the

extremely high reported crash rate. The

data was not analyzed to assess time-ofday effects. Bowen did not report the

highway classes where the travel took

place and this factor was not used to

discriminate among portions of the data.

The FMCSA believes that Bowen’s

study does not support that the utility

industry’s request for an exemption

from the HOS rules.

It also must be noted that the

conclusions drawn from all the research

may not be consistently applicable

throughout the transportation modes.

The FHWA convened a panel of

representatives of several agencies

within the DOT to review the draft

proposal from the perspective of the

transportation modes regulated by those

agencies. Although those

representatives took no issue with any

of the conclusions drawn from the

research cited so far as truck

transportation was concerned, they

noted that in some cases, due to the

difference in operating conditions and

required adherence to various laws and

treaties, the conclusions may not

translate directly to other modes. Some

examples are offered in the discussions

that follow.

Studies germane to this NPRM and

relied upon by the FMCSA are

discussed in An Annotated Literature

Review Relating to Proposed Revisions

to the Hours-of-Service Regulation for

Commercial Motor Vehicle Drivers,

Freund, D.M., Office of Motor Carrier

Safety, November 1999, Publication No.

DOT-MC–99–129. That review, as well

as a copy of each research study it

discusses, has been placed in the

docket.

The review sets the stage for the

problem assessment with chapters

covering research on the contribution of

operator fatigue to highway vehicle

crashes, in general, and the CMV driver

fatigue contribution to CMV crashes, in

particular. The review then focuses on

research into the causes of drowsiness—

lack of sufficient, quality sleep—and

includes a chapter on the effects of sleep

deprivation on alertness and

performance, followed by one on naps

as a sleep deprivation countermeasure.

The review moves forward to address

general considerations concerning HOS

regulations, working conditions, and

regulatory compliance before focusing

on setting of schedules, shift rotation,

and the special case of multi-day shifts.

The final three chapters address

outcomes of hours-of-service pilot tests

and waivers, operational and

performance models, and technological

approaches to CMV driver alertness

management.

As O’Neill and his co-authors of

‘‘Understanding Fatigue and Alert

Driving,’’ a training course developed by

the ATA in partnership with the FHWA,

point out, ‘‘Fatigue has several causes:

(from) inadequate rest, sleep loss and/or

disrupted sleep; from stress; from

displaced biological [circadian]

rhythms, excessive physical activity

such as driving or loading [cargo], or

from excessive mental or cognitive

work.’’ (ATA, p. 8).

The term ‘‘circadian’’ comes from the

Latin words circa dies, or ‘‘about a day,’’

i.e., 24 hours. Circadian rhythms

become displaced as a result of schedule

irregularity that affects the time when

people sleep. Adverse effects of sleep

deprivation can occur when the

opportunity to take sleep is curtailed,

when people try to obtain sleep during

periods of the day when their systems

are in a more-active physiological state

(such as during the mid-morning and

early evening), or when environmental

conditions are not conducive to

obtaining sleep. The adverse effects

include slower reaction times, poor and

variable responses, deterioration of

judgment, vigilance, and attention, and

alertness. Loss of sleep can also produce

subjective feelings of tiredness, loss of

motivation, and deterioration of mood.

(ATA, p. 7).

On the other side of the coin, long

working hours (especially when the

work demands vigilance and

concentration) can contribute to fatigue

and cause people (by their own choice,

or as directed by others) to reduce the

time they take for sleep. The converse

of long duty hours is a shorter period of

time remaining in a 24-hour period for

sleep.

The maintenance of schedule

regularity was an element of the original

HOS regulations issued by the ICC.

Until 1962, the HOS regulations limited

driving and on-duty time in a 24-hour

period. Although the on-duty time limit

of 15 hours and the 8-consecutive-hour

off-duty period were set in 1941, it is

quite possible the actual off-duty period

may have been slightly longer to comply

with that 24-hour period. Thus, the

1962 rule change that introduced the

requirement for driving and on-duty

periods to be separated by an 8-hour offduty period may have had two

unintended effects: (1) It allowed

drivers to be placed on a schedule that

was irregular from a circadian

standpoint and (2) it decreased the

actual daily off-duty time provided to

them.

As several researchers point out, there

is a dual predicament with night

workers: not only are they required to

perform tasks during the time of day

they are least able to from physiological

and cognitive standpoints, they must

sleep during the time of day their bodies

are least receptive to it.

Recommendations From the Research

The research reviewed during the

FMCSA’s process of developing this

NPRM suggests five main areas of

consideration applicable to CMV

drivers: (1) The work day should be

more regular; (2) drivers should be

afforded more opportunity for daily and

weekly sleep; (3) working hours,

including hours spent driving in any

duty shift, should be limited to no more

than 12 hours; (4) the time of day when

25554 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

driving is performed or, conversely,

when sleep may be obtained, should be

considered; and (5) non-compliance by

drivers and motor carriers increases the

potential for adverse safety outcomes.

Although not using identical terms,

most of the comments also suggested

these areas for prime consideration.

1. The Work Day Should Be More

Regular: Maintenance of Circadian

Rhythm

It has been well established that the

hours of the day and night are not

equivalent from the perspective of

human alertness and safe, efficient, and

productive performance of workplace

tasks, Wylie, et. al. (1996); Brown, I.D.

(1994); Campbell, K. (1988); Folkard, S.

(1997); Hildebrandt, G., Rohmert, W., &

Rutenfranz, J. (1974); Wylie, D. (1998);

A

 ̊

kerstedt, T. (1991); Hildebrandt, G.

(1976); Rutenfranz, J., Knauth, P., &

Colquhoun, W. (1976); Vidac∼ek, S. et

al. (1986); Williamson, A.M. &

Sanderson, J.W. (1986); O’Neill, et al.

(1999); A ̊kerstedt, T. (1997). Humans are

biologically programmed to operate on a

daily cycle of just over 24 hours. The

cycles of daylight and darkness act as

synchronizers (see Duffy, J.F. et al.

(1996)). If people suddenly shift their

wake-sleep cycles (e.g., when traveling

across time zones), they must adjust to

the new ones and become resynchronized. This takes about one day

per time zone crossed.

Many work environments must be

staffed on a 24-hour basis, so workers

are scheduled in shifts. Shiftwork can

introduce another problem. A nightshift

worker, required to sleep during periods

of higher physiological activity and to

be awake during periods of lower

activity, may have difficulty adjusting to

an inverted wake-sleep schedule and

can accumulate a sleep debt that can

seriously affect the level of performance

and safety. Even when a consistent

schedule is established and wake-sleep

patterns are stabilized, it is generally

recognized that physiological and

performance levels reach the low point

of their cycles in the hours after

midnight and in the early to midafternoon. Therefore, night workers are

most susceptible to the dual

predicament mentioned above. Unless

the night shift worker is able to obtain

sufficient restorative sleep on a regular

basis, the risk of substandard and

potentially unsafe performance

substantially increases.

2. The Driver Should Be Afforded More

Opportunity for Daily and Weekly Sleep

Daily sleep. Each driver should have

an opportunity for eight consecutive

hours of uninterrupted sleep every day.

The current rules require a minimum of

eight consecutive hours off. Many motor

carriers do not provide drivers more

than the minimum 8 hours off duty,

although the present regulations

certainly allow them to do so, and many

drivers accept tight schedules without

objection. These drivers may have to

commute home, eat one or two meals,

care for family members, bathe, get

physical exercise, and conduct other

personal activities, all within their 8-

hour off-duty period. The current rules

also allow the 8-hour off-duty period to

be split into two periods when rest is

taken in a sleeper berth. One of the two

periods may be as short as 2 hours.

To afford the driver an opportunity to

obtain a minimum period of 8 hours to

sleep, the research shows that the offduty periods need to be increased. Nine

hours off duty was originally required in

1937. For various reasons, organized

labor objected to most of the original

regulations, and upon further

deliberation, the ICC reduced the 9-hour

off-duty period to 8 hours in each 24

hours. 6 M.C.C. 557, July 12, 1938.

Several studies strongly suggest the

FMCSA should require an even longer

consecutive off-duty period than the 9

hours the ICC required in its original

1937 HOS regulations. To provide

additional off-duty periods within the

24-hour cycle for necessary personal

activities and rest, docket comments

and research strongly suggest the need

for total off-duty periods from 10 to 16

hours. Studies in aviation (Gander, et al.

(1991)), rail (Thomas, et al. (1997),

Moore-Ede et al. (1996)), and maritime

environments (U.S. Coast Guard Report

No. CG–D–06–97, U.S. Coast Guard

(1997)(MCS 68/INF.11)) illustrate the

same point. Studies of truck drivers,

including Lin et al. (1993) and McCartt,

et al. (1995), point specifically to

increased crash risk and recollections of

increased drowsiness or sleepiness after

fewer than nine hours off-duty.

Studies performed in laboratory

settings, as well as studies assessing

operational situations, explore the

relationships between the sleep

obtained and subsequent performance

(Dinges, D.F. & Kribbs, N.B. (1991);

Bonnet, M.H. & Arand, D.L. (1995);

Belenky, G. et al. (1994); Dinges, D.F. et

al. (1997); Pilcher, J.J., & Hufcutt, A.I.

(1996); Belenky, G. et al. (1987). The

results of the studies can be summarized

simply: a person who is sleepy is prone

to perform more poorly on tasks

requiring vigilance and decisionmaking

than a person who is alert.

The time when sleep is taken is

important as well because sleep

fragmentation can be a byproduct of the

timing or the quality of the sleep

environment (Bonnet, M.H. (1994);

Roehrs, T., Zorick, F., & Roth, T. (1994);

Mitler, M.M. et al. (1997); Wylie, D.

(1998)).

It is virtually impossible to get an

adequate amount of sleep when time for

commuting, meals, personal errands,

and family/social life is subtracted from

an 8-hour off duty period, as the ICC

found in 1937. Wylie et al. (1996), for

example, showed that drivers in the

study obtained nearly 2 hours less sleep

per principal sleep period than their

stated ‘‘ideal’’ (5.2 hours versus 7.2

hours). However, many of them did not

manage their off-duty time efficiently or

effectively to obtain sufficient sleep. All

commuting, meals, personal hygiene,

social interaction within the study

setting, the study protocol itself, and

sleep had to fit into their off-duty

periods. The U.S. and Canadian drivers

participating in that study operated

under schedules set up to allow driving

up to the maximum time periods

permitted under U.S. or Canadian

regulations. The drivers returned to

regular work-reporting locations at the

end of a shift. The elapsed time between

beginning and ending a shift included

many ancillary duties and other

activities in addition to driving so that

time available for sleep was generally

limited to 8 hours. Participants who

drove a regular 10-hour daytime

schedule every day spent 5.8 hours in

bed and 5.4 hours asleep. Study drivers

who ran a regular 13-hour schedule

starting in the daytime spent 5.5 hours

in bed and 5.1 hours asleep. This was

about 2 hours less than the drivers

would have preferred to sleep. The

time-in-bed similarities between the 13-

hour and 10-hour daytime drivers was

likely due primarily to their proximity

to the sleep center—the 13-hour drivers

had to commute less than 10 minutes

from their home terminal to the sleep

laboratory and 10-hour drivers had to

commute between 20 to 30 minutes. (All

times cited are for the principal sleep

periods, and do not include the naps

that some drivers took during their work

shifts.) Also, the drivers in both of these

daytime-driving groups were able to

obtain their principal sleep during

optimal times of the day, starting in late

evening and ending in the early

morning.

Other studies have found that the

amount of sleep obtained by CMV

drivers is variable and often short.

Arnold, P. et al. (1996), interviewed

over 700 CMV drivers in the state of

Western Australia, which has no formal

HOS regulations. Of the drivers

interviewed, about 5 percent reported

having no sleep on one day during the

prior week, 12.5 percent reported

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25555

obtaining less than 4 hours of sleep one

or more work days in the prior week,

and about 30 percent reported obtaining

less than 6 hours of sleep on at least one

work day. Prior to commencing their

current trips, about two-thirds of drivers

had between 6 and 10 hours of sleep,

but about 20 percent had less than 6

hours of sleep (pp. 27–28).

VanOuwerkerk, F. (1988) in a study

based on interviews with 650

international European Economic

Community (EEC) drivers, noted that

drivers reported a median sleep time of

6.7 hours and a median rest period of

7 hours. They reported that the

‘‘minimum rest time [reduction from 11

hours to eight hours not more than two

times per week, as permitted under the

current EEC Council Directive] has

become the rule’’ as far as both drivers

and enforcement officials were

concerned.

In their survey of 511 medium-and

long-distance truck drivers in the

United States, Abrams, C., Shultz, T., &

Wylie, C.D. (1997), found no statistically

significant differences in the stated rest

needs among the categories of drivers

(owner-operator, company driver,

regular route, irregular route, solo,

team): on an average day, a driver

reported needing an average of 7 hours

of sleep. There was a slight difference

between union and non-union drivers;

the former reported needing about 31

minutes less sleep. Just over 90 percent

of the drivers reported that they usually

used a sleeper berth while on the road.

Almost three-fourths of the drivers

reported taking their sleep in a single

period, spending eight to nine hours in

the berth. Just over two-thirds of the

drivers who split their sleeper berth

period reported usually spending 4 to 5

hours in the berth during one period.

The time of day when sleep is taken

can affect how long the sleep period

lasts. Grandjean, E. (1982), cited several

surveys of European shiftworkers. ‘‘It

appeared that daytime sleep was

distinctly shorter than night sleep the

workers took on their rest day. The

average length of sleep in the daytime

was six hours, whereas on the rest day

the average varied between six and

twelve hours, with longer sleep on the

second of the two rest days than on the

first’’ (pp. 248–249). Grandjean cites

Lille’s term ‘‘sleep debt’’ to describe the

longer sleep periods the nightshift

workers took on their two between-shift

rest days and noted that a single night’s

sleep was apparently insufficient to

‘‘pay it back.’’

Other modal administrations within

the U.S. DOT have also found similar

findings with respect to their regulated

industries. An aviation study

documented how commercial flight

crews organize their sleep during

layovers on long-haul (trans-oceanic)

trips involving the crossing of multiple

time zones. Duty periods on the trips

that were studied in Gander et al. (1991)

averaged 10.3 hours. The duty periods

alternated with layovers averaging 24.8

hours, and the crew members typically

took their sleep in two periods. The

authors noted that the sleep/wake

patterns were complex, with an average

pattern of sleep and wakefulness of 19

hours awake/5.7 hours asleep/7.4 hours

awake/5.8 hours asleep. The flight

crews also reported naps on the

flightdeck and during their off-duty

periods. The authors stated: ‘‘This study

clearly documents that, in scheduled

commercial long-haul operations, there

are physiologically and environmentally

determined preferred sleep times within

a layover. The actual time available for

sleep is thus less than the scheduled

rest period.’’ (p. 1)

A railroad study compared two

schedules, one involving fast-backward

rotations, the other, slow-backward

rotations. The Thomas et al. (1997)

study participants received a crew call

two hours prior to going on-duty, as

railroad crews do generally in their

normal operational workdays. Under the

fast-rotating schedule, the engineers’

sleep duration averaged 4.6 hours

during a 9.3-consecutive-hour off-duty

period. Under the slow-rotating

schedule, the average sleep duration

was 6.1 hours during a 12-consecutivehour off-duty period. (The minimum

off-duty time required was 8

consecutive hours if the engineer had

less than 12 hours on duty.)

Locomotive engineers participating in

a survey (Moore-Ede et al. (1996)) were

asked several questions concerning

sleep needs and sleep obtained. The

following information is drawn from

Questions 67 through 70 of the Stage II

Volunteer Survey, Overall Totals. To

‘‘feel alert and well rested,’’ 10.8 percent

stated they needed 5 or fewer hours;

35.1 percent, 6 hours of sleep; 29.7

percent, 7 hours; and 24.3 percent, 8 or

more hours. On average, the engineers

said their actual sleep taken on days

they worked averaged: fewer than 5

hours, 21.6 percent; 5 hours, 16.2

percent; 6 hours, 21.6 percent; 7 hours,

29.7 percent; and 8 or more hours, 10.8

percent. On days off, the engineers

stated they received: 7 hours, 37.8

percent; 8 or more hours, 43.2 percent;

all other amounts 6 hours or less, 18.9

percent. During vacations, sleep times

averaged: 35.1 percent, 7 hours; 51.4

percent, 8 or more hours; all other

amounts 6 hours of less, 13.5 percent.

A study was conducted to quantify

the nature and extent of fatigue in

mariners in the U.S. Coast Guard’s

‘‘Fatigue and Alertness in Merchant

Marine Personnel: A Field Study of

Work and Sleep Patterns,’’ Report No.

CG–D–06–97. Data in the form of work

and sleep logs were collected for

periods from 10 to 30 days from 141

mariners on eight different ships

involved in U.S. Pacific intercoastal

trade. Among the findings: average sleep

duration at home was 7.9 hours while

average sleep duration at sea was 6.8

hours; watchstanders slept less and

rated their sleep to be of lower quality

compared to command personnel or

day-workers; and the work days of

watchstanders are longer than for

command and day-work personnel. The

researchers also analyzed what they

termed ‘‘critical fatigue indicators’’: the

proportion of 24-hour periods during

which total sleep was less than four

hours, the proportion of alertness selfassessments of 3 or fewer recorded in

the sleep log, and the proportion of

sleep latencies (time between going to

bed and falling asleep) of five minutes

or less as recorded in the sleep log.

Watchstanders fared worse than

command or daywork personnel, and

watchstanders on the 4–8 watch had a

considerably higher incidence of sleep

durations under 4 hours in a 24-hour

period. The report concluded: ‘‘The data

clearly portray that risk factors for

fatigue are present in maritime work

schedules. The solution to this problem

involves providing the opportunity for a

longer continuous rest period, and

motivating mariners to take advantage of

that rest period for a single,

uninterrupted sleep. A review of

shipboard operational practices may

identify various means to provide longer

continuous rest periods and other

approaches to fatigue reduction.’’ (p. 6)

Weekly sleep. For weekly off-duty

periods, the research indicates that to

negate the effect of accumulated weeklong sleep deprivation and restore

alertness to the human body it is

necessary to have at least two

consecutive nights off-duty that include

the periods from midnight to 6:00 a.m.

For long-haul CMV drivers, this

‘‘weekend’’ (i.e., a period to permit

recovery from cumulative fatigue, not

necessarily falling on a Saturday and

Sunday) should be up to 56 hours long,

but could be reduced to 32 hours as long

as that period included two nights

covering two periods from midnight to

6:00 a.m. The research suggests that

drivers may need even more nights off

duty if they have a severe sleep deficit.

This may be a good example where

the science would not change, but

25556 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

where the same provisions cannot be

provided in another transportation

mode without creating another safety

problem. It may not be possible, for

instance, to have an ocean ship in a port

for each ‘‘weekend’’ recovery period,

and everyone could not be provided two

consecutive nights off each week while

the ship is away from port. CMV traffic

is much more flexible.

In his 1987 study of European heavygoods-vehicle drivers, Hamelin suggests

that the risk of an accident might be

more dependent on cumulative fatigue

than on the short periods of work time

prior to a crash noted on the accident

reports (the forms required an entry of

time since the last stop, rather than the

time since the beginning of a trip).

Hamelin computed accident risk rates

according to the time of day, the time

on task, and whether the drivers were in

the ‘‘Transport’’ or ‘‘Other’’

occupational categories. For all drivers,

the risk rate was nearly double (1.82

times baseline) after 11 hours of work.

Hamelin found for the category labeled

‘‘Other’’ drivers, who had worked over

11 hours, it was over four times as high

during the period 8:00 p.m. and 7:00

a.m.

In a study of driving patterns used by

a U.S. less-than-truckload motor carrier,

Jovanis, P. et al. (1991) also noted

increased crash risk associated with

long driving times over two or more

days of a week. The Society of

Automotive Engineers, Inc.’s ‘‘Truck

and Bus Industry Glossary,’’ February

1988, No. SP–88/732, defines ‘‘lessthan-truckload (LTL)’’ as ‘‘a quantity of

freight less than that required for the

application of a truckload [TL] rate.’’

Jovanis and his co-authors noted, ‘‘The

two patterns with the highest risk of an

accident were those that contained

heavy driving during the prior three

days and consisted of driving from 3:00

p.m. to 3:00 a.m. (Pattern 1) and from

10:00 p.m. to 10:00 a.m. (Pattern 8). The

lowest risk was associated with driving

from 8:00 p.m. to 6:00 a.m. but with

limited driving on the prior three days.’’

(p. 27)

Wylie et al. (1996) found that

although some of the performance data

did not show a clear-cut relationship to

driving time (time on task), drivers’ selfratings did correlate significantly with

time since the start of the trip and with

the cumulative number of trips. ‘‘Thus,

the self-ratings were not very good

indicators of drowsiness, but they may

have been indicative of increasing stress

or compensatory effort that signaled

fatigue or loss of alertness.’’ (p. 5–11).

Smiley, A. & Heslegrave, R. (1997)

cited several scientific studies dealing

with recovery time as a portion of their

review of scientific literature on rest and

recovery requirements. The context of

the review was an assessment of the

potential adequacy of a 36-hour

cumulative-fatigue-recovery provision

that had been proposed by motor carrier

industry groups to Transport Canada.

Smiley and Heslegrave cited a 1967

study by Lille suggesting that a single

day off was insufficient for night

workers to recover after a sleep debt

accumulated over five days. Other

studies they cited indicated a

preference, in terms of recovery, for a

three-day rest period compared to a twoday period after three 12-hour night

shifts. One example was a study

(Hildebrandt et al. (1974)) that

illustrated this advantage of two days

and three days off, compared to one day

off, in operator performance (locomotive

engineers’ missed multiple in-cab

warning signals that resulted in

automatic braking being triggered) and a

1994 literature review indicating that

two nights of recovery sleep are usually

sufficient to allow near full recovery

after extended periods of sleep loss.

Smiley and Heslegrave concluded that,

‘‘nevertheless, although the available

research is sparse, it is sufficient to raise

concerns about a 36 hour reset that

would allow drivers to accumulate up to

92 hours on-duty within a seven-day

period, particularly for night driving.’’

(p. 14)

O’Neill, T. et al. (1999) studied

drivers on long (14-hour) daytime duty

schedules in a driving simulator. The

drivers did not appear to have

accumulated significant sleep loss

during the study but their amount of

measured sleep increased and their

sleep latency decreased on their first offduty days. The research conditions

tested found ‘‘the effectiveness of a full

two nights and one day off (that is,

‘Friday night’ to ‘Sunday morning’ as a

minimum safe restart period—about 32

hours off duty) under the conditions

tested.’’ (p. 48)

Griffin, G., et al. (1992) assessed

potential outcomes of the FHWA’s

August 19, 1992 (57 FR 37504) NPRM,

concerning HOS for CMV drivers,

termed the ‘‘24-hour restart’’ provision.

As discussed above in today’s NPRM,

the FHWA withdrew the proposal on

February 3, 1993. The authors noted,

‘‘The implications for safety are the

most difficult to determine . . . a search

for secondary accident data that would

be useful in addressing the implications

that the 24-hour rule would have on

safety was made at the state and federal

level. No data was identified that would

be statistically valid . . .’’ (p. 37)

Rosekind, M.R. (1997) in a major

aviation conference presentation,

advised listeners to consider cumulative

fatigue effects. ‘‘It is important to

maintain an optimal sleep opportunity

every 24 hours and also address the

potential for cumulative effects.

Therefore, appropriate recovery time

should be allowed per week (days or

rolling hours). Scientific studies show

that two nights of recovery sleep are

typically needed to resume baseline

levels of sleep structure and waking

performance and alertness.’’ (p. 7.6).

Second, the driver should be afforded

more opportunity for daily and weekly

sleep.

3. Driving in Any Duty Shift Should

Generally Not Exceed 12 Hours

The research suggests that

performance degrades and crash risk

increases markedly after the 12th hour

of any duty time during a work shift

(Hamelin (1987); Brown (1994);

Campbell (1988); Rosa and Bonnet

(1993); Rosa (1991); Rosa et al. (1989);

Harris and Mackie (1972); Mackie and

Miller (1978); U.S. Army (1983);

Transportation Research and Marketing

(1985)). The studies by Campbell,

Brown, and Transportation Research

and Marketing focused on CMV crash

cases; the other studies were performed

in actual workplaces (industrial plants,

in the case of Rosa’s studies) and overthe-road CMV operations (U.S. Army

and Mackie and Miller). Some recent

research has suggested that naps can

improve performance later in work

cycles. The use of naps was not a factor

explored in these earlier studies. This

research finding, however, might not

apply very well to other transportation

modes, where duty needs may

encompass more than is contemplated

in the duty of driving CMVs. Such other

duty needs and considerations might

include: the restricted environment of

airplanes, locomotives, and ships; the

length of trips away from airports,

harbors, and depots; and on-board

airplane, locomotive, and vessel needs

and emergencies.

4. The Time of Day When Driving Is

Performed Should Be Considered

Research suggests that there is a

higher risk of fatigue-induced singlevehicle accidents at night, especially

between midnight and 6:00 a.m. For

example, the following eight studies are

representative of the research. Hamelin

(1987) computed accident risk rates

among drivers of heavy-goods vehicles

according to the time of day, the time

on task, and whether the drivers were in

the ‘‘Transport’’ or ‘‘Other’’

occupational categories. For

‘‘Transport’’ and ‘‘Other’’ categories

combined, the accident risk rate was

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25557

nearly double (1.82 times the baseline)

after 11 hours of work. However, for the

category ‘‘Other Branch’’ drivers who

had worked over 11 hours, it was over

four times as high during the period

8:00 p.m. and 7:00 a.m.

Blower & Campbell (1998) reported

that about 20 percent of all fatal crashes

and fatalities and 10 percent of all

injuries involving a long-haul truck

(tractor pulling at least one trailer) occur

between midnight and 6:00 a.m. Crashes

at night tend to be more severe, with

about 435 injuries per thousand crashes

between midnight and 6:00 a.m.,

compared with 320 injuries per

thousand for the remainder of the day.

There are about three times as many

fatalities per thousand crashes from

midnight to 6:00 a.m. Using exposure

data classifying night as 9:00 p.m. to

6:00 a.m., truck travel during that period

is associated with a relative risk about

twice that of the rest of the day.

Kecklund and A ̊kerstedt (1995)

examined data for all accidents

involving an injury and all truck

accidents on Swedish motorways for the

period 1987–1991. Risk ratios were

computed against a baseline time period

of 8:00 a.m. to 4:00 p.m. Single-vehicle

accidents where alcohol was not a factor

peaked at 4:00 a.m. at 13 times the

baseline level. The risk of a fatal

accident was 35 times the baseline level

at 4:00 a.m.; severe (27 times) and minor

(19 times) injury accidents also peaked

at that time. Risk ratios for overtakingvehicle and oncoming-vehicle accidents

also peaked at 4:00 a.m., but the ratios

were considerably lower (3–4 times).

For trucks, single-vehicle accidents

between 3:00 a.m. and 5:00 a.m. peaked

at 3.8 times the baseline risk.

Hildebrandt, G., et al. (1974)

examined one month’s records of

approximately 15,000 locomotive

engineers employed by the German

Federal Railways. They reviewed

records covering 2,238 automatic

braking incidents and nearly 20,000

second-level warning signals. The

authors studied the relative frequency of

second-level warning signals and of the

occurrence of automatic braking by time

of day and by length of shift and found

peaks of about 125 percent of the daily

average automatic braking incidents

taking place around 3:00 a.m. and 1:00

p.m.–2:00 p.m. They found peaks in the

activation of the acoustic signal at

around 3:00 a.m. and 3:00 p.m. The

authors concluded there exists a 12-

hour period of variation in vigilance,

superimposed upon the 24-hour

circadian period.

Jovanis, P., et al. (1991) studied

several driving schedule patterns in a

less-than-truckload motor carrier’s

‘‘pony express’’ operation. In this type

of operation, drivers make an outbound

trip from the home terminal to another

terminal, drop their trailer, pick up

another trailer, and return to the home

terminal at the end of a work shift.

Cumulative driving hours ranged from

7.8 to 8.4 daily, while the drivers’ daily

cycle of on duty and off duty ranged

from 22.3 to 23 hours, indicating some

circadian disruption. The highest daily

risk was found to occur from 4:00 a.m.

to 6:00 a.m. Elevated risk was found

from midnight to 8:00 a.m. According to

the authors, ‘‘The two patterns with the

highest risk of an accident were those

that contained heavy driving during the

prior three days and consisted of driving

from 3:00 p.m. to 3:00 a.m. (Pattern 1)

and from 10:00 p.m. to 10:00 a.m.

(Pattern 8). The lowest risk was

associated with driving from 8:00 p.m.

to 6:00 a.m. but with limited driving on

the prior three days.’’ (p. 27)

Dinges, D.F. et al. (1997) studied

young male adults under conditions of

partial sleep deprivation (average of 5

hours of sleep obtained per night). They

reported that the only statistically

reliable subjective measure of time-ofday effects (out of several measurements

used) was the Stanford Sleepiness Scale.

However, four of the five objective

performance measures showed

statistically significant variations by

time of day (tests were administered at

10:00 a.m., 4:00 p.m., and 10:00 p.m.).

One measure of vigilance and reaction

time (psychomotor vigilance task) also

showed significant variation across the

days of sleep restriction. Dinges and his

coauthors reported the effects of sleep

restriction on performance measures

appeared to level off between the

second and fifth day of sleep restriction;

for subjective assessments, between the

second and sixth day. The authors

believed the subjects were undergoing

an ‘‘adaptation’’ to sleep restriction

following an initial shift to higher

daytime sleepiness levels, and that this

change may have resulted from changes

to sleep itself during those periods

(although EEG was not monitored).

However, by the sixth to seventh day

performance was deteriorating and

subjective sleepiness was increasing

again. The authors noted the linear

nature of the trends indicated the

performance changes are cumulative,

and they did not level off.

Wylie, et al. (1996), in their

operational study of CMV drivers on

fixed routes under one of four types of

schedules, noted that the strongest and

most consistent factor influencing driver

fatigue and alertness was the time of

day. Compared to driving at other times,

night driving (midnight to 6:00 a.m.)

was associated with more video

observations of driver drowsiness,

poorer lane-tracking, and worse results

on tests of mental performance.

Lin, et al. (1993), studying schedules

of less-than-truckload CMV drivers,

assessed consecutive driving time,

multi-day driving patterns over a sevenday period that included time of day of

driving and days driving within that

period, driver age, driving experience,

and hours off-duty prior to the trip. Out

of ten driving patterns, they found the

driving pattern with the lowest risk was

‘‘Pattern 2,’’ a highly regular schedule

with on-duty times generally spanning

the period 6:00 a.m. to about 2:00 p.m.

and off-duty times generally spanning

the period 6:00 p.m. to 4:00 a.m. Risk

in six other schedule patterns that

included night and very early morning

driving, morning and evening rush-hour

driving, and very infrequent scheduled

driving had computed crash risk about

1.5 times as high (p. 5). When off-duty

hours were assessed, the risk following

off-duty periods less than or equal to 9

hours was 1.4 times higher.

When driving time was the category

of interest, Lin et al. (1993) found there

were no statistically significant

differences among the first four hours

but the ratio increased from that time

until the last driving hour. Lin and his

collaborators noted a limitation in their

analysis, and provide a caveat to the

estimates of the odds ratios in the last

driving hour category: a large number of

non-crash trips are completed during

the 8th or 9th hour of driving, but the

authors’ ‘‘assumed failure time,’’

defined as the expected time of

involvement in an accident, would

occur after this trip completion time. (p.

5)

A limit, however, on the driving of

CMVs between midnight and 6:00 a.m.

would not necessarily result in a

reduction in CMV-involved crashes. The

benefit-cost analysis prepared for this

NPRM and filed in the docket, as well

as the section with the subheading

‘‘Benefits and Costs’’ later in this NPRM,

discuss the issues, and additional

research findings related to the benefitcost, of a night-restriction option that

the agency analyzed in more detail.

The proposed HOS regulations will

address in three ways this issue of

higher crash risks associated with night

driving. First, the amount of consecutive

hours off-duty proposed is longer than

the current regulatory minimum. The

objective is to allow drivers to have the

opportunity to sleep longer during their

off-duty periods. Second, the regulatory

proposal would return to the pre-1962

24-hour clock. The circadian disruption

permitted under the current regulations

25558 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

(if drivers or motor carriers scheduled

duty cycles to touch the edges of the

current regulatory envelope of 10 hours

of driving and 8 hours off-duty), which

also adversely affects sleep quality and

quantity, would be mitigated. Third, the

regulations would require drivers to be

given a consecutive off-duty period

spanning at least two periods between

midnight and 6:00 a.m. in every seven

consecutive days to obtain restorative

sleep. This has two benefits: it provides

the opportunity for sleep during

circadian-optimal times and it prevents

drivers from being required to work

more than five consecutive night shifts.

5. Non-Compliance by Drivers and

Motor Carriers Increases the Potential

for Adverse Safety Outcomes

While drivers who drive to the

maximum number of hours allowed and

rest to the minimum number of hours

required by the HOS rules may be

fatigued, the situation of drivers who are

not in compliance is undeniably worse.

Whatever the limitations of, for

example, 5 to 6 hours of interrupted

sleep, it is clearly more restorative than

little or no sleep as reviewed in the

discussion of the studies for daily sleep

under VII.A.2. above. Unfortunately,

many drivers violate the HOS

regulations. Braver et al. (1992)

interviewed over 1,200 drivers at truck

stops, truck inspections stations, and

agricultural inspection stations in the

early 1990s. Based on the drivers’

responses, the authors classified 73

percent of the drivers as hours-ofservice violators. A 1995 survey of overthe-road drivers in New York State,

McCartt et al. (1997), found that over

one-third reported driving more than 60

hours in a typical week, and a similar

percent reported working 70 hours in a

typical week.

A more recent survey, Belzer et al.

(1999), performed by the University of

Michigan’s Trucking Industry Program

(UMTIP) corroborated this high

violation rate. Belzer and his

collaborators surveyed over 800 mostly

over-the-road drivers at a number of

truck stops in the Midwest in 1997.

Only 16 percent of drivers surveyed

reported that log books were generally

accurate, and 56 percent stated that they

had worked more hours than recorded

in their records of duty status (RODS) in

the last 30 days. Over-the-road drivers

and owner-operators were most likely to

report working more hours than

recorded in the RODS, whereas local

drivers were least likely. The average

number of hours worked was over 63 in

the previous 7 days. Twenty-five

percent of drivers reported working at

least 75 hours in the last 7 days, and 10

percent reported working more than 90

hours. The UMTIP also reported that the

average annual mileage was found to be

112,765, where local drivers at the 10th

percentile reported driving 25,000 miles

annually and long-haul drivers at the

90th percentile reported driving 170,000

miles annually.

Assuming drivers have two weeks of

annual vacation, that leaves 351 days

per year potentially available for

driving. Since the current rules prohibit

drivers from driving after being on duty

more than 70 hours in eight consecutive

days, drivers have 3,071.25 on-duty

hours during which they could possibly

drive [351 days divided by 8 days =

43.875 periods per year × 70 on-duty

hours for driving per period]. If one

assumes that a driver was able to

average 50 mph for every on-duty hour

all year long, he or she could drive a

maximum of 153,562 miles per year

[3071.25 hours × 50 mph]. A 50 mph

average for an entire year is highly

unrealistic, yet the Belzer survey

showed that the 90th percentile of longhaul drivers surveyed covered 170,000

miles per year. The only reasonable

conclusions are that these drivers

grossly violated the hours-of-service

limits, significantly overestimated their

annual mileage, or spent part or all of

the year in team operations and counted

the distances they traveled during onduty not driving and sleeper-berth

periods.

Drivers who comply with the HOS

regulations may not be adequately

rested, and the significant percentage

who do not comply are probably not

rested.

B. FMCSA Principles for Regulatory

Improvement

The FMCSA determined that, based

on the motor carrier and highway

research and operational characteristics

of the industry, it had to design

regulations that incorporated the

following requirements.

• Increase the 18-hour on-duty/offduty work cycle to a normal 24-hour

work cycle.

• Increase time off to allow sufficient

time for 7 to 8 hours of sleep.

• Require mandatory ‘‘weekend’’

recovery periods of at least two nights

of recovery sleep to resume baseline

levels of sleep structure and waking

performance and alertness.

• Address the effects of operations

between midnight and 6:00 a.m. by

requiring off-duty periods that enable

restorative sleep by including two

consecutive periods between these

hours.

• Allow ‘‘weekends’’ of sufficient

length to ensure safety and provide

adequate protection for driver health

and safety.

• Increase operational flexibility by

offering a menu of HOS options

customized to different major or distinct

operational segments while still

maintaining an appropriate level of

safety.

The FMCSA believes these

requirements will significantly reduce

fatigue problems related to sleep

deprivation, if drivers and motor

carriers adhere to them. The FMCSA

recognizes, however, that these rule

changes do not eliminate the potential

problem the ICC described in 1937,

namely:

We have no control over the manner in

which a driver may spend his time off duty,

although some of his spare time activities

may tire him as much as any work would do.

We can only emphasize, by this comment,

the responsibility which is the driver’s own

to assure himself of adequate rest and sleep,

in the time available for this purpose, to

insure safety of his driving, and likewise the

employer’s responsibility to see that his

drivers report for work in fit condition. 3

M.C.C. 665, at 689.

Drivers must still manage their offduty time if these, or indeed any,

proposals are to be effective. Some

drivers may continue to push

themselves to drive more hours than

this proposal allows in order to earn

more money. Others may perform nondriving jobs during their off-duty time;

have long commutes to and from home;

or engage in other pursuits that interfere

with their obligation to obtain the

proper sleep and be prepared to operate

safely. Under this proposal, all time

spent in any work must be counted as

on-duty time, since all work can either

induce fatigue or deprive the driver of

sleep.

C. Types of Motor Carrier Operations

The motor carrier industry is diverse.

A motor carrier is any person who uses

a commercial motor vehicle, regardless

of ownership, to transport passengers,

property, or the vehicle itself for any

purpose. Motor freight and passenger

transportation differ in many respects

from other modes of transportation.

Other modes may have different means

of tracking hours of service of their

critical employees because of the

operating characteristics and more

structured environment. Many motor

carriers are statutorily exempt from

FMCSA jurisdiction (e.g., most of those

in intrastate commerce) or exempted by

regulation (e.g., Federal, State, or local

government vehicles (§ 390.3(f)).

The FMCSA grouped motor carriers

subject to its jurisdiction into the

following 5 types whose substantial

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25559

operational differences might warrant

more individualized consideration than

the current HOS rules allow:

Type 1—Long haul. These drivers are

away from their normal work reporting

location and home for more than three

days at a time; in total, they are away

from home for a large part of the year.

Their primary task is driving, although

they may well engage in other activities,

particularly loading and unloading

cargo (or helping passengers and

moving baggage, if the driver operates a

motor coach). Type 1 drivers may have

regular or irregular wake-sleep cycles,

depending upon the requirements

placed upon them by their employers,

their clients (if they are independent

owner-operators), their personal

preferences, or a combination of all

three. Many of these drivers use sleeper

berths, but some sleep in hotels, motels,

company sleeping quarters, truck stops,

or other accommodations. Type 1

drivers have the highest accident

exposure (based on distance traveled) of

all driver categories, usually over

161,000 kilometers (km) (100,000 miles)

per year (the benefit cost analysis uses

114,000 miles); team drivers may have

twice that amount. They also have the

least regular wake and sleep cycles,

which often includes daytime off-duty

periods when they must obtain sleep.

These drivers are the least likely to be

subject to frequent direct monitoring by

their employing motor carriers, that

ultimately are responsible for managing

the driver’s work/rest schedules.

Type 2—Regional. These operations

are similar to Type 1, except that drivers

are away from their home base only

three or fewer days at a time. For

example, a Type 2 driver might report

for work at 7:00 a.m. Monday after a

weekend off duty, leave on a trip

requiring two overnights on the road,

and return to his normal work reporting

location by 9:00 p.m. Wednesday.

Drivers for some large less-thantruckload carriers return to their normal

work reporting location after only one

night on the road. Type 2 drivers are

generally able to take a larger proportion

of their sleep periods in a familiar home

environment. A Type 2 driver has a

moderately high annual mileage-based

accident exposure (from 120,000 to

161,000 km, or 75,000 to 100,000 miles)

(the benefit cost analysis uses an

interpolated estimate of 82,000 miles

since the research the agency used did

not directly address this group of

drivers). These drivers, although often

remote from a home base of operation,

are more likely than Type 1 drivers to

operate in more regularized schedules

and to be subject to more frequent

monitoring by their motor carriers.

Type 3—Local split shift. Split-shift

drivers spend most of their on-duty time

driving, but most are local (or homebased), and their driving shifts are

generally separated by several hours. A

Type 3 driver might work in a

commuter or tour motor coach

operation, requiring on-duty periods, for

example, from 5:00 a.m. to 9:00 a.m. and

4:00 p.m. to 8:00 p.m. To be considered

in this category, the driver must be offduty during the intervening hours (in

the example, from 9:00 a.m. to 4:00

p.m.). The driver may deadhead to

another location, be shuttled back to a

base of operations, or merely be free to

spend the time as he/she chooses at the

location where his/her duty terminates.

If the driver performs non-driving duties

for the motor carrier, holds another job,

or performs any other work, time spent

in those activities must be counted as

on-duty time, and may remove the

driver from the Type 3 category. Type

3 drivers are different from Type 4 and

5 drivers because driving is the main

part of their job, and because these

drivers are not on duty more than 12

hours, although the end of their shift

occurs more than 12 consecutive hours

after they begin the workday. Type 3

drivers are fairly prevalent in the motor

coach industry, but other operations

would fall into the same category, e.g.,

commuter transportation, before-school/

after-school-activity bus drivers, splitshift freight, morning and evening

edition newspaper delivery operations,

and specialized CMV operations. The

level of direct motor carrier monitoring

of Type 3 drivers work/rest schedules

varies depending on the operation

involved.

Type 4—Local pickup and delivery.

Type 4 drivers work in the vicinity of

their normal work reporting location.

They are generally on regular schedules

extending less than 12 consecutive

hours from the time they report in until

they check out. Driving is a significant

part of their work, more than half of

their on-duty hours. Drivers currently

operating under the 100 air-mile radius

exception in 49 CFR 395.1(e) would

generally be considered Type 4 drivers,

and would be absorbed into this

category, eliminating the need for that

exception. Because they operate daily

out of a home base, their work tends to

be more regularized and the carriers are

able to directly monitor drivers’ work/

rest schedules.

Type 5—Primary work not driving.

These drivers also work in the vicinity

of their normal work reporting location.

Unlike Type 4, however, they typically

spend only one-third (or less) of their

on-duty hours behind the wheel. This

classification covers operators of CMVs

whose duties do not center around

driving, but who operate these vehicles

as a necessary part of their work

assignments. Type 5 operations would

include many drivers for electrical,

water, natural gas, and communications

utilities; construction equipment

operators; environmental remediation

specialists; oilfield service workers;

ground water well drilling workers;

operators of mobile medical equipment

providing community patient services;

and driver-salespeople. They are

generally subject to close and frequent

direct monitoring of their work/rest

schedules, and, because they are being

grouped into one category for regulatory

purposes, there is no need for any

special exemptions. Generally, drivers

in this category have periods during

their work day when they have the

opportunity to take breaks while they

are awaiting instructions, while they

wait for others to perform tasks related

to their work. For example, a driversalesperson delivers snack foods or

bread to a grocery store. Before stocking

the shelves, the grocery store personnel

might have to finish their tasks or clear

a space for the salesperson to work.

D. Regulatory Options

The FMCSA applied the research

findings and the principles discussed

above to the five types of motor carrier

operations and developed six potential

regulatory options. A seventh option

was to retain the current rules. For

reasons noted throughout this

document, the seventh option was

rejected. Nonetheless, the current rules

necessarily form the baseline for benefitcost comparisons with other options.

The FMCSA has found no sleep or

fatigue research that supports any of the

current exceptions or exemptions,

including the 24-hour restart provisions

authorized by the NHS Act. The agency

determined that a slightly longer break,

one that includes two consecutive

midnight to 6:00 a.m. periods to obtain

restorative sleep and could be as little

as a minimum 32 consecutive hours

(though this would happen rarely),

would better serve safety objectives

while meeting the needs of most of

those industry segments presently

eligible for the 24-hour restart provision.

Most of the drivers in those segments

operate primarily in the daytime so that

a minimum 24-hour break does not

return them to their normal starting

time. A minimum 32- to 56-hour break

that includes the minimum of two

consecutive nights of sleep, however,

would provide them a full day off with

two sleep periods between midnight

and 6:00 a.m.

25560 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

Options Developed

The FMCSA developed policy options

using the research available in the

docket. See Table 4 for a summary of

each option. Policy Option A is the

current rule. Policy Option A allows

drivers to operate on an 18- to 23-hour

cycle. Drivers may work as much as a

15-hour shift, with a maximum of 10

hours of driving. Alternatively, they

may drive 10 hours, followed by 8 hours

off duty, and then drive for another 10

hours. Thus, drivers are allowed to be

on duty and drive for as many as 16

hours in a 24-hour period, with an 8-

hour off-duty period after the first 10

hours of driving. This policy option

does not require that a driver be given

any off-duty time for personal

necessities and needed rest, although

such breaks are allowed and logged as

off-duty time, thus extending the actual

elapsed time within which the 10-hour

driving and 15-hour duty limitations

apply. To exploit the absolute

minimums in the rule, and still obtain

sufficient sleep, the entire 8-hour offduty period would have to be devoted

to sleep. Essentially the same

requirements currently are imposed

upon drivers in all five types of

operations.

Policy Option B was based on a 24-

hour cycle. It required a minimum of 9

consecutive hours off duty for sleep (12

hours for Type 4 drivers), with a

recommendation that this 9-hour period

begin at the same time each day. In

addition, this option provided a

minimum of one additional hour in the

remainder of the 24-hour period for any

activity of the driver’s choosing. For

Type 2 drivers sleeping at home and for

Type 3 drivers, this one-hour minimum

was extended to 3 hours. A maximum

of 14 hours on-duty time would have

been allowed, with the recommendation

that it begin at the same time within

each 24-hour period, with a maximum

of 12 of those hours devoted to driving.

However, the maximum on-duty time

was 12 hours for Type 2 drivers sleeping

at home and for Type 3 and 4 drivers.

For Type 5 drivers, the maximum onduty time would have been extended to

15 hours, only 6 hours of which could

have been devoted to driving.

The FMCSA’s policy Option C was

not greatly different from Policy Option

B, except that it increased to two the

minimum additional hours off duty

allowed for Type 1 and 2 drivers away

from home, for personal necessities and

rest, as well as other activities of the

driver’s choosing. Maximum time on

one shift was reduced from 14 hours to

13 hours. Like Policy Option B, it

allowed up to 12 hours of driving, and

6 hours of driving for Type 5 drivers.

Drivers away from home could have

accumulated as many as 78 hours on

duty in 7 days but not more than 130

hours in 14 days, or an average of 65

hours per week. Drivers who are not

away from home could have

accumulated no more than 65 hours in

7 days. Like Policy Option B, there

would have been no distinction made

between daytime and nighttime driving.

Policy Option D was also based on a

24-hour cycle. It would have allowed a

minimum of 9 consecutive hours off for

sleep (12 hours for Type 4 drivers and

8 hours for Type 5), plus a minimum of

3 hours off for Type 1, 2, and 3 drivers

for rest, personal necessities, and other

activities. For Type 5 drivers, a

minimum of only one hour was required

for these other activities. On-duty time

was restricted to a maximum of 12

hours, except for Type 5 drivers, where

it was 15 hours. Maximum driving time

was also 12 hours, except for Type 5

drivers, where it was 6 hours. A

maximum of 72 hours of on-duty time

could have been accumulated over a 6-

day period, and all those hours could

have been spent driving. For Type 4

drivers, the maximum was 60 hours

within a 7-day period.

Policy Option E retained the 10-hour

driving limit in the current system

(Policy Option A) but also used a 24-

hour base cycle. It would have allowed

up to two hours additional on-duty time

that could be used for loading and

unloading or other work-related

activities. In addition, it would have

provided reasonable off-duty time in

addition to sleep time, so that drivers

could pursue other activities required

for normal living. As in the other policy

options, there was no distinction made

between daytime and nighttime driving,

nor was there any special consideration

of time spent in a sleeper berth.

Policy Option F used a 24-hour base

cycle and was identical to Policy Option

B though it would have also required a

limitation or prohibition on driving

between midnight and 6:00 a.m. for all

drivers. This option is discussed in

more detail in the next section (E. The

Expert Panel).

Policy Option G used a 24-hour base

cycle and required 16 consecutive hours

off duty and would have required

driving and other duties to be

completed within an eight-consecutivehour workday. This is the most

restrictive option and was viewed by the

agency as unsupported either by any

cited research data or any of the

comments to the ANPRM. The FMCSA

did not find any indication in the

docket materials leading the agency to

believe a duty period as low as 8 hours

in a 24-hour period is necessary for

highway safety, though it might be

desirable for social reasons. Such a

policy would have required tens, if not

hundreds, of thousands of additional

drivers who are not likely to be

available, given the present state of the

U.S. economy.

The Congress considered, and

rejected, an 8-hour workday for the

motor carrier industry in 1935. A

minority of the House committee

considering the Motor Carrier Act of

1935 attempted to legislate an 8-hour

workday for bus and truck drivers. See

H. Rep. No. 1645, Additional Views, p.

6–7; amendment introduced by the

sponsor of the additional views, 79

Cong. Rec. 12212, House, July 31, 1935;

and rejected by the Whole House, 79

Cong. Rec. 12230, House, July 31, 1935.

The ICC considered the same policy in

1938 and also rejected it. Review the

quote from 6 M.C.C. 557, at 561 (July 12,

1938) above under IV. B. Immediate

Changes to HOS Rules. The FHWA

considered an 8-hour workday in 1980

and 1981. At the time, the FHWA

conducted a cost-effectiveness analysis

and found such an option had an

estimated cost of $11.496 billion and

benefits of $450 million. If some drivers

use the extra free time to supplement

their incomes in other employment, the

FMCSA thinks it is logical that they

would accumulate additional fatigue

that an 8-hour workday is designed to

prevent.

The FMCSA assessed preliminarily

each of the seven potential HOS options

and determined the last two (F and G)

would not have significant cost and

benefit changes from the 1981 analyses.

Based on that assessment, the FMCSA

decided that options A through E

adequately cover the range of realistic

alternatives to the current rules.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25561

TABLE 4.—FMCSA OPTIONS DEVELOPED

Potential Policy... Wake-Sleep

Cycle...

These many

hours off duty

for sleep in

one

consecutive

period...

With at least these many

additional hours off

duty...

Allowing the driver to work

up to this many hours, including driving, in any

combination...

And a weekly

recovery

period of at

least...

A—Status quo ....................... 18 to 23 hour

cycle.

8 0 hours .................................. 15 hours; 10 limited to driving.NA.

B—Maximum 14 on, Minimum 10 off.24 hour cycle .. 9 1 hour driver sleeps away

from home, 3 hours when

at home.

14 hours, 12 hours limited to

driving.

58 hours.

C—Maximum 13 on, Minimum 11 off.24 hour cycle .. 9 1 hour driver sleeps away

from home, 2 hours when

at home.

13 hours, 12 hours limited to

driving.

58 hours.

D—Maximum 12 on, Minimum 12 off.24 hour cycle .. 9 3 hours .................................. 12 hours, no lower limit for

driving.

58 hours.

E—Maximum 12 on, minimum 12 off.24 hour cycle .. 9 3 hours .................................. 12 hours, 10 hours limited to

driving.

58 hours.

F—Maximum 14 on, Minimum 10 off.24 hour cycle .. 9 1 hour driver sleeps away

from home, 3 hours when

at home.

14 daily hours, 12 hours

daily limited to driving, and

only 18 hours of driving

between midnight to 6:00

a.m. each workweek.

58 hours.

G—Maximum 8 on, Minimum

16 off.

24 hour cycle .. 16 0 hours .................................. 8 hours .................................. 58 hours.

E. The Expert Panel

The FHWA convened an expert panel

to examine the potential HOS options

developed by the agency and review the

current state of knowledge about sleep

and fatigue. The panel was composed of

eight scientists, engineers, and public

policy experts in the fields of traffic

safety, human factors, and sleep

medicine. They were selected because

of their familiarity with the science as

it relates to commercial trucking, in

particular. The membership might be

different if another mode of

transportation were involved. The panel

members were Gregory Belenky, M.D.,

of the Walter Reed Army Institute of

Research; A. J. McKnight, Ph.D., of the

National Public Services Research

Institute; Merrill M. Mitler, Ph.D., of the

Scripps Institute & Research

Foundation; Alison Smiley, Ph.D., of

Human Factors North; Louis Tijerina,

Ph.D., of the Transportation Research

Center, Inc.; Patricia F. Waller, Ph.D., of

the UMTRI; Walter W. Wierwille, Ph.D.,

of the Virginia Polytechnic Institute and

State University; and David K. Willis of

the American Automobile Association

Foundation for Traffic Safety. The panel

members work in academia,

government, and as private consultants.

The FHWA provided the panel with

summaries of over 80 (mostly peerreviewed) research reports compiled by

the FHWA. The panel was asked to

evaluate the current regulations and

various agency-generated proposals in

light of the scientific understanding of

sleep and alertness. Their findings,

reported in Potential Hours-of-Service

Regulations for Commercial Drivers,

Belenky, et al. (1998), include their

discussion of the inadequacies of the

present regulations. The complete report

is in the docket.

The panel’s report identifies the

following nine critical issues.

• 24-hour cycle.

• Nighttime differential.

• Continuous time off duty daily.

• Split shift drivers.

• On-duty time versus driving time.

• Sleeper berth use.

• Limits on cumulative on-duty time.

• Adequate recovery time.

• Foreknowledge of work schedule.

One major concern of the panel was

the absence of a 24-hour cycle in the

HOS regulations. Human evolution

responded to the natural light cycle, and

human biology still exhibits strong

cyclical effects. Human metabolism, and

thus alertness, shows daily patterns,

with 24 hour peaks and troughs. The

panel noted a study by Duffy et al.

(1996) in support of the role of the lightdark cycle as a circadian synchronizer

and the minimal influence of a schedule

shift acting alone.

Another concern of the panel was the

importance of continuous time off duty.

It reported that sleep obtained in

discontinuous segments is not as

restorative as continuous sleep. The

panel also cited studies which

demonstrate that longer periods of offduty time are associated with longer

periods of sleep. The current regulations

require that drivers have at least 8

continuous hours off-duty before

returning to duty. The panel criticized

this requirement as inadequate, because

it does not allow drivers time to travel

to a resting place or to take care of

personal business, and because 8 hours

off-duty time generally does not

translate into 8 hours of sleep. Wylie,

C.D. et al. (1996) showed that drivers

who are off-duty for 8 hours generally

obtain only about 5 hours of sleep. This

trend has also been observed in

operational studies in the rail and

aviation modes.

The panel also asserted that there

should be no differentiation between

driving time and on-duty not-driving

time. They cite several studies which

show that performance of tasks declines

with increased time on duty, regardless

of how on-duty time is spent. The panel

believes that all on-duty time should be

treated the same, as the effect on driver

safety is similar.

Another concern of the panel was the

difference between daytime and

nighttime driving. Their report noted

several problems with nighttime

driving. First, as demonstrated by

Wylie, C.D. et al. (1996), the strongest

and most consistent factor influencing

fatigue and alertness is time of day.

Night driving was associated with a

higher level of observed drowsiness,

poorer lane-tracking, and degradation of

mental performance. In addition, the

panel noted evidence that daytime sleep

is not as restorative as nighttime sleep,

because fewer hours are spent sleeping

and the quality of that sleep is poorer.

Drivers generally agree that nighttime

sleep is superior to daytime sleep

(Abrams et al. (1997)). The result is that

25562 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

overall alertness and performance are

lower in the nighttime than in the day,

and accident risk is correspondingly

higher. The Expert Panel report cites

evidence suggesting that nighttime

driving is associated with as much as a

fourfold or more increase in fatiguerelated crashes. The existing regulations

make no distinction between day and

nighttime driving.

The panel’s report included a

presentation of a candidate schedule,

‘‘Policy Option F.’’ This policy option

included a provision to limit driving

between midnight and 6:00 a.m. to 18

hours within a 60-hour workweek, and

to require an extended period off duty

at the end of the week. The panel itself

‘‘recognized that any specific limit on

nighttime driving is, at this time,

arbitrary * * * Because nighttime

driving is associated with higher crash

risk even when other risk factors are

taken into consideration, nighttime

driving may be considered as a health

and safety liability analogous to other

hazardous conditions, with limits on

exposure an appropriate intervention’’

(p. 36). The panel went on to

acknowledge that a restriction upon

nighttime driving could generate an

increase in the number of heavy

vehicles in daytime traffic, increasing

exposure to other, smaller vehicles.

The FHWA decided not to propose

limits on nighttime driving to the panel

based on the 1981 regulatory analysis

and its preliminary assessment of the

regulatory impact of such a policy.

Believing the option had to be analyzed

further, even though they admitted the

18-hour limitation is arbitrary and a

reasonable explanation can be made for

it, the panel requested the agency to

reconsider. The agency, upon further

review, decided to conduct the benefitcost analysis of this option again as it

had done in 1981.

The FMCSA relied upon the Expert

Panel report in reviewing the

information in the docket a second time

and reshaping the options described

above into this proposal. As more fully

discussed later, the FMCSA is proposing

a required ‘‘weekend’’ period for all

drivers of at least two midnight to 6:00

a.m. periods for obtaining restorative

sleep. Smiley, A. & Heslegrave, R.

(1997), O’Neill, T. et al. (1999), and

Rosekind, M.R. (1997) come to the same

conclusion. As Rosekind wrote, ‘‘It is

important to maintain an optimal sleep

opportunity every 24 hours and also

address the potential for cumulative

effects. Therefore, appropriate recovery

time should be allowed per week (days

or rolling hours). Scientific studies

show that two nights of recovery sleep

are typically needed to resume baseline

levels of sleep structure and waking

performance and alertness.’’ (p. 7.6).

This final proposal is also mindful of

the strong evidence, and the panel’s

finding, that the driver should be

afforded more opportunity for daily and

weekly sleep.

F. Recordkeeping Requirements

The Paperwork Reduction Act of 1995

(44 U.S.C. 3501–3520) requires the

FMCSA to eliminate duplication and

greatly reduce the information

collection burden hours and costs

imposed on the motor carrier industry.

Driver paper logs have been a perennial

source of complaint both among drivers

and enforcement officials. The FMCSA

analyzed what the agency and its

enforcement partners needed to

determine whether a driver and motor

carrier are complying with any HOS

rules and analyzed other record

requirements imposed by other Federal

agencies.

1. Time Records

The recordkeeping regulations of the

DOL’s Wage and Hour Division (WHD)

(29 CFR part 516) require employers

subject to the FLSA to produce and

retain information the FMCSA can use

to enforce the proposed HOS rules. The

WHD recordkeeping regulations are

based on the FLSA’s record provision,

specifically at 29 U.S.C. 211(c):

(c) Records

Every employer subject to any provision of

this chapter or of any order issued under this

chapter shall make, keep, and preserve such

records of the persons employed by him and

of the wages, hours, and other conditions and

practices of employment maintained by him,

and shall preserve such records for periods

of time, and shall make such reports

therefrom to the Administrator as he shall

prescribe by regulation or order as necessary

or appropriate for the enforcement of the

provisions of this chapter or the regulations

or orders thereunder.

Sec. 211(c) requires all subject

employers, including interstate motor

carrier employers, to make and keep

wage and time records for their

employees, including drivers. The

FMCSA has the authority under 49

U.S.C. 31133(a) to prescribe

recordkeeping and reporting

requirements and to require the

production of records for all interstate

motor carriers, not only those carriers

that employ drivers, but also those

carriers that lease, contract, or allow

owner-operators and other non-subject

employees to drive on the motor

carriers’ behalf. The agency is proposing

to use that authority to require all

interstate motor carriers to make

available to FMCSA investigators the

WHD wage and hour records they are

already required to maintain to comply

with the minimum wage requirements

of 29 U.S.C. 206. The FMCSA is also

proposing to use that authority to

require those interstate motor carriers

not covered by the FLSA that lease,

contract, or allow owner-operator

drivers and other non-FLSA subject

drivers who operate on those motor

carriers’ behalf to produce records

similar to the 29 CFR 516 records.

Most of the information the FMCSA

needs to enforce the proposed rules is

currently in 29 CFR 516.2 Employees

subject to minimum wage or minimum

wage and overtime provisions pursuant

to section 6 or sections 6 and 7(a) of the

Act of the WHD regulations. This

includes the following six pieces of

information from paragraph (a)(1), (5),

and (7), including: (1) The driver’s name

in full as used for Social Security

recordkeeping purposes; (2) the

identifying symbol or number if such is

used in place of name on any time,

work, or payroll records; (3) the time of

day and day of week on which the

employee’s workweek begins; (4) If the

employee is part of a workforce or

employed in or by an establishment all

of whose workers have a workweek

beginning at the same time on the same

day, a single notation of the time of the

day and beginning day of the workweek

for the whole workforce or

establishment will suffice; (5) the hours

worked each workday; and (6) the total

hours worked each workweek.

Most motor carriers engaged in

interstate commerce are exempt only

from the overtime requirements of the

FLSA. Those carriers, however, are

addressed by 29 CFR 516.12 Employees

exempt from overtime pay requirements

pursuant to section 13(b)(1), (2), (3), (5),

(9), (10), (15), (16), (17), (20), (21), (24),

(27), or (28) of the Act. This section

requires employers to maintain certain

records with respect to each employee

exempt from the overtime pay

requirements of the FLSA by

maintaining and preserving payroll and

other records, containing all the

information and data required by

§ 516.2(a) except paragraphs (a)(6) and

(9) and, in addition, information and

data regarding the basis on which wages

are paid (such as the monetary amount

paid, expressed as earnings per hour,

per day, per week, etc.).

The FLSA exemption from the

overtime pay requirement applies only

to certain employees of interstate motor

carrier employers subject to the MCA of

1935, but not to those subject only to the

MCSA of 1984. The only substantial

group of interstate carrier employers

subject to the 1984 Act that are not also

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25563

subject to the MCA of 1935 are private

motor carriers of passengers (e.g.,

churches, musicians, civil and

charitable organizations, scouts,

companies transporting their own

employees, etc.). See 29 CFR 782.2(b)(1).

Motor carrier employers employing

drivers engaged in intrastate commerce,

as defined by 49 U.S.C. 31132, and

engaged in interstate commerce, as

defined by the FLSA (29 U.S.C. 201 et

seq.), are required to pay their drivers

time-and-a-half overtime for any work

in excess of 40 hours per workweek.

The WHD requires subject employers

to record and maintain the hours

worked by subject employees. The WHD

regulations do not specifically state that

subject employees (including drivers)

must record their own start and end

time. In discussions with the DOL, the

FMCSA found the WHD allows

employers to require the subject

employees doing the work to keep their

own time or work record instead of

hiring separate timekeepers. In any

event, all subject employers are

responsible under WHD regulations to

accurately record the start and end

times and total hours worked, for

subject employees.

One piece of information, however, is

not covered by WHD regulations; that is

the location where duty status changes

from off duty to on duty and vice versa.

The location of duty status changes is

important only for those drivers who do

not return to their normal work

reporting location at the end of each

work shift to determine where duty is

occurring and is necessary for

enforcement of the rule.

Thus, the WHD definitions of on-duty

and off-duty time, and the WHD

recordkeeping regulations, with the

addition of the location of duty status

changes for drivers away from their

normal work reporting location for two

or more workdays, would enable the

FMCSA and its State partners to

monitor and enforce the proposed HOS

regulations for drivers in Types 1

through 5 operations. There would be

no need for paper logs in the formats

used over the past 60 years. This would

allow motor carriers with drivers in

Type 3, 4, and 5 operations to use any

record of duty the carrier chooses to

meet the program objectives and the

requirements of both agencies. For Type

1 and 2 drivers, the FMCSA would need

to require drivers to add locations of

their duty status changes to a WHDrequired time record or an EOBR.

The FMCSA is proposing to produce

a savings of information collection

burdens of approximately 18,000 manyears annually on the industry by

dropping the record of duty status

(driver log) that has been required since

1937. To enforce the new HOS

regulations, the agency would rely on

EOBRs for Types 1 and 2 drivers and the

employee time records required by the

WHD for Type 3 through 5 drivers. See

29 CFR part 516 Records to Be Kept by

Employers and part 785 Hours Worked.

This should end the duplication that

now exists between FMCSA and DOL

regulations.

The agency is also proposing to use 49

U.S.C. 31133(a) to require all motor

carriers to prepare time records similar

to those required by the WHD for their

drivers who are not subject employees

covered under the FLSA, generally

owner-operators and independent

contractors used primarily in Type 1

and 2 operations. The WHD has advised

the FMCSA that drivers who are

employed by owner-operators and

independent contractors who are leased

to motor carriers may be subject to the

FLSA under the individual coverage

provisions of the FLSA, if they are not

subject under the enterprise coverage

provisions. Owner-operators and

independent contractors employing

drivers and leasing them to a motor

carrier should check if they are subject

to the FLSA. The FMCSA is proposing

to require the use of EOBRs to record

hours for all Type 1 and 2 operations.

2. Electronic On-Board Recording

Devices (EOBR)

The FHWA received a petition dated

August 3, 1995, to require EOBRs on all

CMVs from the IIHS, AHAS, PATT,

Families Against Speeding Trucks,

National Association of Governors’

Highway Safety Representatives, and

Public Citizen. These groups believe a

mandate to use EOBRs would result in

improved HOS compliance, less

fatigued drivers, and fewer highway

crashes. The NTSB also recommended

the FHWA mandate EOBRs.

As discussed below under the benefits

and costs of the revised options, the

agency has analyzed the benefits and

costs of two options to require EOBR

use. Overall benefits outweigh overall

costs. The FMCSA has therefore decided

to propose that motor carriers having

drivers in Type 1 and 2 operations be

required to use EOBRs. This should

ensure credible verification of drivers’

adherence to, and improve motor

carriers’ ability to manage driver

compliance with, these proposed rules.

It would also enable safety investigators

and enforcement officials to better verify

the driver’s compliance with the new

requirements.

The EOBR proposal presented today

requires relatively simple technologies

and single-purpose devices to satisfy the

HOS reporting and recordkeeping

requirements. The more complex

satellite-based systems and other hightech communications technologies

already used in certain segments of the

passenger carrying and trucking

industries can probably be adapted or

reprogrammed to incorporate HOS

functions. The agency is seeking

information about the feasibility and

cost of such upgrades to existing onboard or satellite-linked data systems.

The EOBR requirement is being

proposed only to enable FMCSA

enforcement officials and their MCSAPfunded State colleagues to review and

verify drivers’ hours of service and

hours of rest. The FMCSA recognizes

that drivers may consider this proposal

an invasion of their privacy. This is not

our intention. We view the EOBR

requirement as a more effective form of

the self-monitoring and -reporting

drivers have been required to perform

for many decades in the form of paper

records of duty status (logbooks). The

EOBR requirement does not include,

and should not be interpreted as

authorizing, the use of audio or video

recording of drivers’ activities in, on, or

near the vehicle.

The FMCSA solicits comments on the

commercial availability and cost of

single-function EOBRs designed solely

to record HOS. The more complex

satellite-based and other high-tech

communication devices widely used in

the passenger-carrying and trucking

segments of the motor carrier industry

can probably be adapted to HOS

functions. The agency is seeking

information about the feasibility and

cost of such improvements to existing

on-board or up-linked data systems.

The FMCSA solicits comments on,

and if possible copies of, engineering

and cost analyses of currently available

EOBRs that meet the minimum

performance standards the agency is

proposing.

Comments to the 1996 ANPRM

provided no data on the other costs

associated with an EOBR requirement,

such as the time or effort needed to

generate and maintain information, or to

provide it to or for the FMCSA. The

FMCSA has analyzed the information

collection burdens of an EOBR

requirement, including the following

nine activities:

(1) Reviewing instructions;

(2) Developing, acquiring, installing,

and utilizing technology and systems for

the purpose of collecting, validating,

and verifying information;

(3) Developing, acquiring, installing,

and utilizing technology and systems for

the purpose of processing and

maintaining information;

25564 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

(4) Developing, acquiring, installing,

and utilizing technology and systems for

the purpose of disclosing and providing

information;

(5) Adjusting the existing ways to

comply with any previously applicable

instructions and requirements;

(6) Training personnel to be able to

respond to a collection of information;

(7) Searching data sources;

(8) Completing and reviewing the

collection of information; and

(9) Transmitting, or otherwise

disclosing the information.

The FMCSA especially is interested in

comments addressing the agency’s

estimates of the specific costs associated

with requiring EOBR use by drivers in

Type 1 and 2 operations.

The FMCSA is interested in

information about the prevalence of

EOBRs, ‘‘smart’’ card adapted EOBRs,

and electronic control modules (ECM) of

any kind presently in use; the cost of

converting existing equipment to HOS

monitoring capability, such as ECMs;

the availability of conforming

technology, assuming a performance

standard; the installation and

maintenance costs of some of the newer

devices (our evaluation relied on 1997

estimates); the phase-in period required

before full compliance could be

achieved; any difficulties in training

drivers, clerks, and managers in the use

of this technology; and any effects on

productivity, as well as on compliance

with the HOS rules. The ECM is a

computer having about twice as much

power as the average personal computer

(PC). The ECM contains the heavy-dutydiesel-engine’s electronics package. This

electronic black-box is an outgrowth of

meeting the Environmental Protection

Agency’s emission standards.

The agency is interested in the

potential of ‘‘smart card’’ technology.

Each driver would have a card that

provided identifying data (e.g., a thumb

print, retinal scan, or other biometric

identifier). To be useful for HOS

enforcement, smart cards would be

subject to certain performance

standards. They could allow data to be

written to the card only from a CMVinstalled unit; the data would only

include driving hours; the card would

store the data for 30 days or longer and

allow reading capabilities only at motor

carrier facilities or during law

enforcement stops; the card would be

tamper-proof to the maximum extent

practicable; and only one card would be

issued to each driver. The FMCSA

would like comments from

manufacturers and others about the

availability of such devices and

methods for recording work time and

monitoring compliance with HOS

requirements.

The FMCSA believes the training

needed to operate an EOBR system

would be minimal. The agency would

like comments regarding the training

necessary to operate EOBRs well enough

to comply with this NPRM. Comments

should also address any recurring

training that may be needed to maintain

proficiency.

The FMCSA is proposing to require

the use of EOBRs capable of tracking

drivers’ driving, other on-duty, and offduty times for Type 1 and 2 operations

only. Type 1 and 2 drivers must take at

least 2 hours off-duty during each work

day or at the end of the work day. Thus,

the FMCSA needs to ensure the drivers

are taking that time. The simplest

possible device would be similar to

what is presently permitted under 49

CFR 395.15, except that the regulations

would allow a greater variety of

technologies including the use of

terrestrial and satellite systems, and

driver ‘‘smart cards.’’ The FMCSA

would continue to require that motor

carriers ensure the devices meet the

standards currently included in

§ 395.15(i). Therefore, the device would

have to be capable of:

(1) Meeting certain design and

operational standards, including being

tamper-resistance to the maximum

extent practicable.

(2) Producing pertinent information in

the vehicle for use both by the driver

and safety investigators/enforcement

officials.

(3) Identifying the driver.

(4) Computing the relevant totals of

driving, on-duty, and off-duty hours in

relation to a daily, weekly, or longer

period.

(5) Calculating time and location so

that changes in duty status can be

recorded accurately.

Location recording under the current

§ 395.15 regulation occurs without the

aid of terrestrial or global positioning

systems and requires input by the

driver. The FHWA began allowing a few

motor carriers to pilot demonstrate

terrestrial and global positioning system

technologies that could assist EOBRs (63

FR 16697, April 6, 1998). These pilot

demonstrations are continuing. Off-duty

and on-duty not driving times must also

be input by the driver. Opportunities for

driver input, however, increase the

likelihood of driver falsification and

allowance of that falsification by motor

carriers. Although terrestrial and global

positioning systems are available for

implementation now, there are many

assumptions their system designers

have been making that may result in

violations of the current HOS

regulations. In a few cases, the FMCSA

discovered actual violations of the

current HOS regulations. The FMCSA

believes it must address these

assumptions, many that may have been

made yet have gone undiscovered, and

design prohibitions for such

assumptions before proposing

prohibitions of driver interactive EOBRs

and future proposals requiring EOBRs

that have no capability for driver

interaction.

The benefits of this NPRM can be

achieved by understanding how the rule

helps drivers and motor carriers and

also making a dramatic change in the

present attitude toward compliance in

long-haul and regional operations.

These are unlikely without persuasive

evidence that compliance would not

only be expected, but monitored and

enforced. The presence of an objective

tamper-proof monitor on board longhaul and regional operating CMVs

would achieve that objective because

they are the ones where the greatest

percent of violations are currently

found.

The FMCSA is also required by the

Paperwork Reduction Act to count, as a

Federal requirement, information

collection burdens imposed through the

MCSAP by a unit of State or local

government, except to the extent that

the FMCSA shows that such State, local,

or tribal requirement would be imposed

even in the absence of a Federal

mandate. The FMCSA would like to

know whether States currently have

such requirements for interstate motor

carriers to use EOBRs.

One of the principal monitoring tools

for HOS compliance has been safety

inspections on the roadside. The

FMCSA and its State partners complete

more than two million of these

inspections annually.

The EOBR time records can be used

for WHD compliance along with the

associated payroll and other records.

The driver, who is an employee of a

motor carrier or a motor carrier’s lessor,

would have an incentive to record hours

on duty accurately—the driver would

know the hours recorded are directly

proportional to the minimum wages the

motor carrier employer must pay under

the FLSA and WHD’s implementing

regulations. The WHD has told FMCSA

it will use a driver’s documentation of

hours worked, if a dispute arises with

the employing motor carrier.

Using the current situation, motor

carriers generally have relied upon the

records of duty status under 49 CFR part

395, including EOBRs under § 395.15, to

calculate the minimum wage required to

be paid to the driver for each workweek.

Some motor carriers, drivers, and

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25565

enforcement officials have not

understood the differences between the

current FMCSA and WHD definitions of

duty time, off duty time, interstate

commerce, and record keeping methods.

The FMCSA believes some motor

carriers that have not understood the

difference may miscalculate the

minimum wage, placing the motor

carrier in violation of the FLSA. The

driver may lose pay because the driver

recorded time based upon the current

FMCSA regulations and guidance rather

than using the WHD regulations and

guidance for duty time.

Likewise, enforcement officials who

do not understand the differences may

attempt to compare a WHD-compliant

time card to an FMCSA-compliant

RODS. The enforcement official may see

on the WHD-compliant time card that

the driver ‘‘punched in’’ at 8:00 a.m.

The FMCSA-compliant RODS, however,

may show the driver off-duty until 11:00

a.m., when the load was ready for

transport. An enforcement official who

does not know the differences may cite

a false RODS out of ignorance of the

different definitions of duty time and

off-duty time. Both records were

accurate, but the different definitions

led to a perceived conflict.

Using standard definitions of on-duty

and off-duty time, and using standard

DOL HOS recordkeeping methods that

most employers subject to the FLSA are

required to use, will help to fix these

types of misunderstandings and

violations of laws and regulations.

G. Supporting Documents

Section 113 of the Hazardous

Materials Transportation Authorization

Act of 1994 (HMTAA), Public Law 103–

311, 108 Stat. 1673 (August 26, 1994)

required the Secretary of Transportation

to define supporting documents used to

verify drivers’ HOS and to prescribe

regulations governing their use to

improve both: (A) Compliance by CMV

drivers and motor carriers with the HOS

requirements and (B) the effectiveness

and efficiency of Federal and State

enforcement officers reviewing such

compliance.

1. 1998 Notice of Proposed Rulemaking

On April 20, 1998, the FHWA

published an NPRM (63 FR 19457, RIN

2125-AD52) requesting comments on a

proposed definition of ‘‘supporting

documents’’ for the HOS regulations.

The FHWA proposed that motor carriers

develop and maintain effective auditing

systems to monitor the accuracy of the

drivers’ RODS. The NPRM proposed

that failure to have such a system would

require the motor carrier to retain

various types of business documents.

The use of electronic recordkeeping

methods was also proposed as a

preferred alternative to paper records.

Today’s NPRM incorporates and

supersedes the supporting document

NPRM and will address records and

supporting documents for use in

monitoring and enforcing minimum

hours off duty, rest, and work of CMV

drivers.

2. Comments to Docket FHWA–98–3706

(Supporting Documents)

The FHWA received 41 comments in

response to the 1998 Supporting

Documents NPRM. Two organizations

each submitted two comments which

were counted as separate comments.

The respondents represented 3

advocacy groups, 2 consultants to the

industry, one labor union, 17 motor

carriers, 13 trade associations, including

one motor coach association, 2 on-board

recorder manufacturers, and one State

government agency.

Three comments fully support the

NPRM. They were Bestway Express,

Inc., IIHS, and the National Propane Gas

Association (NPGA). Bestway Express

had two suggestions in addition to its

approval of the FHWA’s efforts to

develop:

a process that allows self assessment in

program design for safety management. As an

industry, and partner with Government, we

need these kind of initiatives as we go

forward with performance based standards.

The approach that you have developed where

a carrier can design a self monitoring system,

get pre-determined FHWA assessment of that

program, and then can implement their

program is commendable.

A self monitoring system, if Safe Stat is the

performance standards, is the only model to

use as a long range implementation plan.

The NPGA considered the proposal ‘‘a

significant step in implementation of

electronic document technology into the

operations of motor carriers generally.’’

In supporting the proposal, the IIHS

noted:

Although the proposal is less stringent

than authorized by the Act, it is an important

first step in improving truck driver and motor

carrier compliance with HOS rules. Any

weakening of the proposed rule would

contravene the intent of the Act.

Many commenters (23) expressed

their belief the supporting documents

NPRM should have been deferred until

it could be considered in the context of

the overall HOS rules. They believed the

current HOS rule needs repair, rather

than a system to support it.

The National Association of Small

Trucking Companies (NASTC)

commented that carriers generally

recognize their obligation not only ‘‘to

trust but to verify’’ the drivers’ logs as

submitted. It noted that the proposal

squarely aimed at ‘‘placing the burden

on the carrier to catch drivers who make

fraudulent log entries,’’ and that ‘‘the

DOT cites over 30 different extrinsic

documents which typically cross a

trucking company’s desk and suggests

that some, part, or all of these

documents can be used as an external

check to stop log falsifications.’’

Many commenters believe the FHWA

proposed significant burdens upon

industry by requiring records be kept

that are not now produced. Many

believe few if any documents are

produced for each beginning,

intermediate, and end of trip and that

those documents that are produced do

not have the information required by the

statute, such as driver’s name and the

vehicle number.

Yellow Corporation’s comments are

indicative of LTL carriers generally. It

operates between fixed terminals, and

manages HOS compliance through the

payroll system, which, Yellow notes, is

also used by FMCSA personnel during

compliance reviews. Like many others,

Yellow only sees the proposal as

expanding the burden of collecting

many unnecessary records, when its

present systems are adequate to do the

job.

A few commenters were very

concerned that the FHWA had

misinterpreted and misapplied the

definition of ‘‘burden’’ in 5 CFR

1320.3(b)(2). They believe that

collecting many receipts and keeping

them for four months is not usual and

customary in the motor carrier industry.

The NASTC also believes that the

supporting documents rule should

provide examples of acceptable carrier

programs that would meet the NPRM’s

requirements. The writer of the

comments describes an intricate system

of log verification employed by ‘‘one of

our larger, more sophisticated

members.’’ He notes, however, that

although the system could be reduced to

writing for auditing purposes, the safety

investigator conducting a compliance

review would not be able to verify all

the checking done by the record’s clerk,

because the external documents used for

that purpose are not retained centrally,

or maybe not at all. Without reasonable

guidelines, perhaps in the form of

models or examples of acceptable

systems or programs, the motor carrier

can never know whether its system will

pass muster. He also observes that the

proposal fails to deal with distinctions

between system design and system

implementation, so that a carrier with

an effectively designed system may have

to start over from scratch because a

safety investigator may find

25566 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

shortcomings in the way it is

implemented.

In addition, a few comments provided

specific responses to the 9 questions the

agency asked.

Question (1) What types of selfmonitoring systems should be

considered in addition to the type

proposed in this document?

Yellow Corporation contended that

any software application that verified

RODS through comparison with internal

documents should be acceptable, and

that the FHWA should not limit a

carrier’s choice of a self-monitoring

system to any specific applications.

Alabama Power agreed with Yellow so

long as the self-monitoring scheme

would provide a reasonable assurance of

compliance. ROCOR Transportation was

satisfied with the present system with

the possible addition of the existing

interpretive guidance.

Question (2) Whether and what

conditions should be imposed upon

motor carriers (such as accident or out

of service prevention performance

history) before the FHWA would

authorize a different self-monitoring

system as an alternative to compliance

with this proposed rule?

Yellow Corporation opined: ‘‘The

only conditions that should be

considered in determining if the motor

carrier must change its self monitoring

system should be those directly related

to errors/violations in the RODS or

repeated violations of HOS.’’ Alabama

Power, on the other hand, believed the

FHWA should consider relative

accident and out-of-service rates.

Accident and out-of-service rates should

be established for determining when

additional monitoring is necessary.

ROCOR Transportation, once again, is

satisfied with the current system.

Question (3) Whether motor carriers

seeking additional authorization should

have some established safety record

with the FHWA or other State or local

enforcement agencies?

This question apparently caused some

confusion as Yellow Corporation

answered as though the agency were

asking about expanded operating

authority, and believed the FHWA

should conduct a compliance audit of

any carrier seeking to expand its

operation by more than 20 percent.

Alabama Power believes that carriers or

industries with established good safety

records should be exempted from all or

part of the HOS regulations.

Question (4) What must happen

before the FHWA should disallow the

use of a self-monitoring system or an

alternative system?

As noted above, Yellow believes that

the system should not be blamed for

failure of individuals to comply, and

that the FHWA should establish

standards for any such system. Alabama

Power leans toward a performance test

which demonstrates the value of the

system by performance on the highway,

i.e., high accident and out-of-service

rates. ROCOR Transportation believes

the FMCSA safety investigator ought to

be able to determine whether a carrier

is effectively using a system, and make

recommendations accordingly.

Question (5) Are there any other

advanced technology systems currently

in use or under development that the

motor carrier industry may use to

validate HOS or support the RODS?

Alabama Power believes most

advanced systems are cost prohibitive,

especially for utility companies where

driving is a very minor part of their

business. ROCOR Transportation

acknowledged the industry has started

using satellite technology.

Question (6) Should waivers be

considered on a case-by-case basis for

other systems that do not quite meet

these requirements, but may have other

compensating features that produce

equivalent safety results?

Yellow’s position is that the standards

must recognize that differences in

operations and practices will mean

differences in monitoring programs.

Therefore, variances must be considered

on a case-by-case basis. Alabama Power

advocates a more open system that suits

the carrier’s needs.

Question (7) Under what

circumstances should the use of such

alternative systems also operate as a

substitute for the requirement to prepare

and maintain RODS? Demonstration of

the effective use of a system, in whole

or in part, for verification should

obviate any necessity to further examine

the information produced by the system

by enforcement personnel.

Yellow would prefer criteria that

would accurately capture the hours and

be verifiable to a particular driver

through a failsafe means, e.g., a code or

electronic signature. However, the

company believes ‘‘(o)nly when all

parties requiring HOS information have

the most advanced technology can

alternative systems fully replace the

current requirement.’’ Alabama Power

would permit any normal timekeeping

system when ‘‘the nature of a carrier’s

or industry’s business limits the

exposure to public safety,’’ and the

carrier or industry has an adequate

commercial motor vehicle safety record.

Question (8) What impact would a

six-month or longer record retention

requirement have on the Federal

government, State governments, and

motor carriers?

Yellow is firmly opposed to any

expansion of the present six-month

retention requirement, which, it

believes, is more than adequate for

purposes of evaluating compliance.

Assuming the retention requirement

includes all supporting records, the

company contends a carrier’s

administrative costs would increase

significantly. Alabama Power agrees

that, as written, the proposal would

significantly increase the administrative

burden of carriers. ROCOR

Transportation notes the irony of

suggesting increased burdens at a time

when the pressure is on to reduce

administrative workload. ROCOR would

prefer reducing the retention period to

four months, which would, in its

judgment, be enough to enable FMCSA

investigators to assess a carrier’s safety

posture.

The Georgia Public Service

Commission (GPSC) believes the idea of

reducing the retention time of RODS

from six months to four months is

unnecessary. It argues that in the

current downsizing climate of

government, six months is barely

enough time to conduct compliance

reviews where complaints have been

received and follow-up on serious

crashes. It believes reducing the

retention period to four months would

result in time restraints which would

not work for the governments as the

workload of State and Federal

compliance review personnel is

increasing—not decreasing. It believes

this would allow many serious

complaints and crash investigations to

go unfinished as the evidence for

substantiating the potential violations

will have been discarded by the motor

carriers. They suggest this issue is best

left alone since most carriers and

Congress are comfortable with the sixmonth time frame.

Question (9) Would we enhance

enforcement and prosecution efforts

with the longer retention requirement

(e.g., the ability to adequately enforce

the rules, collect evidence for a criminal

case, prepare the case, and successfully

prosecute drivers or motor carriers for

deliberately or recklessly violating HOS

restrictions)?

Neither Yellow nor Alabama Power

sees any benefit in longer retention

requirements.

3. FMCSA’s Response to the Comments

on the Supporting Documents Proposal

Obviously, the FMCSA agrees with

those commenters who wanted to merge

the supporting documents proposal into

the HOS rule. The agency was under a

legislative mandate to issue the NPRM

on supporting documents, and used the

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25567

opportunity to gather useful opinions

about a more systematic approach to

monitoring HOS. However, the agency

has now decided to merge the two

proposals; some of the issues raised in

the comments to the supporting

documents proposal are addressed in

this notice.

The FMCSA was attentive to the

comments concerning the

administrative burdens resulting from

the prescriptive alternative. The FMCSA

believes the NPRM may not have been

clear; many commenters misunderstood

the options in the original proposal, or,

more likely, feared too much discretion

on the part of safety investigators in

determining the effectiveness of any

alternate system. This was particularly

evident in the extensive comments of

the NASTC. The comments described a

carrier program that would definitely

have satisfied a requirement for an

effective system, but the writer was

apprehensive about the possibility that

such a model program (although it was

entirely a paper system) could be

thwarted by a finding by a safety

investigator that some element was

lacking.

The actual intent of the proposal was

captured much more accurately in the

comments of Bestway, the NPGA and

the IIHS. The FMCSA attempted to

convert what appeared to be a very

prescriptive statutory requirement into a

way of breaking the mold of paperwork

reliance. There still appears to be a

pervasive reluctance on the part of

industry to employ technology to verify

compliance with HOS rules. The agency

understands that certain segments of the

for-hire motor carrier industry do not

favor the FMCSA’s and FHWA’s

Intelligent Transportation System (ITS)

joint program encouraging the

installation and use of such satellite

technologies for ITS purposes, and at

the same time, permitting FMCSA

investigators the use of the same

technology devices to assist in

discovering violations of HOS

regulations. On the other hand, there is

a great deal of anxiety about increasing

administrative burdens by requiring

more verifying records to be used and

maintained. What is missing is the

acknowledgment by management of the

widespread noncompliance with both

the HOS restrictions and the preparation

of RODS.

With respect to the retention period,

the GPSC has persuaded the FMCSA

that six months worth of records is

needed for proper reviewing by Federal

and State officials of a driver’s and

carrier’s compliance with the rules and

for crash investigations. The FMCSA

has decided to retain the six-month

requirement for this reason.

4. Modified Supporting Documents

Proposal

The WHD regulations specify other

business records motor carrier

employers subject to the FLSA need to

preserve for two or three years, records

which the FMCSA proposes to use as its

own under 49 U.S.C. 31133(a). The

agency needs four pieces of information

from 29 CFR 516.6 Records to be

preserved 2 years, paragraphs (a)(1), (b),

and (c), including:

(1) Supplementary basic employment

and earnings records from the date of

last entry, all basic time cards or sheets

on which are entered the daily starting

and stopping time of individual

employees;

(2) Order, shipping, and billing

records from the last date of entry, the

originals or true copies of all customer

orders or invoices received, incoming or

outgoing shipping or delivery records, as

well as all bills of lading and all billings

to customers (not including individual

sales slips, cash register tapes or the

like) which the employer retains or

makes in the usual course of business

operations;

(3) Records of additions to or

deductions from wages paid, including

those records relating to individual

employees referred to in § 516.2(a)(10);

and

(4) All records used by the employer

in determining the original cost,

operating and maintenance cost, and

depreciation and interest charges, if

such costs and charges are involved in

the additions to or deductions from

wages paid.

The FMCSA is now attempting to go

further than the 1998 supporting

documents NPRM by proposing basic

changes to both the HOS and the means

of verifying compliance. This would

address the issues raised by those

commenters who believed the

supporting documents proposal invited

a ‘‘one size fits all’’ approach. The

instant proposal focuses on those

operations involving long or regional

trips away from a home base with little

supervision, contact with, or control

over the driver. The paperwork burden

for all other operations would be

minimized, and, whenever possible, the

FMCSA would be prepared to accept

records that are required by other

Federal agencies, notably the DOL’s

Wage and Hour Division.

The FMCSA believes this approach is

consistent with the requirements of

Section 113 of the HMTAA. The

objective of that statute was to improve

the enforcement of the HOS regulations

and to simplify the recordkeeping

requirements of motor carriers. The

proposal we are publishing today will

achieve both of those goals.

Section 113(b)(4) requires the agency

to allow ‘‘motor carrier self-compliance

systems that ensure driver compliance

with hours of service requirements and

allow Federal and State enforcement

officers the opportunity to conduct

independent audits of such systems to

validate compliance * * * The proposal

to allow the use of WHD time records

by Type 3, 4, and 5 operations is even

broader than the ‘‘self-compliance’’

system the HMTAA envisioned.

Sec. 113(b)(5) requires case-by-case

waivers ‘‘of certain [unspecified]

requirements of section 395.8(k) of title

49, Code of Federal Regulations (or

successor regulations thereto), when

sufficient supporting documentation is

provided directly and at a satisfactory

frequency to enforcement personnel by

an intelligent vehicle highway system

* * * Section 395.8(k) requires (1) that

motor carriers retain each driver’s RODS

and supporting documents for six

months from the date of receipt and (2)

that drivers retain possession of each

RODS for the previous 7 consecutive

days and make them available for

inspection. Today’s FMCSA proposal

would require motor carriers to retain

WHD-type time records for at least a full

six months (motor carriers subject to the

FLSA and WHD regulations, of course,

must continue to maintain these records

for at least two to three years). Only

Type 1 and 2 drivers would be required

to have time records available for

inspection on the CMV. Those records

would still have to cover the previous

7 consecutive days, but they would be

maintained automatically by an EOBR;

the driver would only have to register

on-duty, non-driving time and locations

where changes in duty status occur.

Finally, while case-by-case waivers are

not included in this NPRM, the proposal

to eliminate paper logs for Type 3, 4,

and 5 drivers more than meets the spirit

of this paragraph. Furthermore, the

agency is proposing to use as supporting

documents those business documents

already required by the WHD rules. The

FMCSA obviously cannot provide caseby-case waivers of the regulations of

another agency.

H. Revised Regulatory Options

After receiving the Expert Panel’s

report and reviewing the monitoring

needs of motor carriers and the law

enforcement communities, the FMCSA

decided to revise its options based on

the panel’s recommendation to limit

nighttime driving. The FMCSA revised

25568 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

options A through E by developing five

new options 1 through 5 that included

the panel’s recommendation in option 3.

The FMCSA examined the benefits and

costs for each option 1 through 5

explained below in the section headed

VII. I. Benefits and Costs.

Under revised option 1 similar to

option D, all driver types would have to

be off duty for at least 12 consecutive

hours each 24-hour cycle, and could be

on duty the remaining 12 hours each 24-

hour cycle. There would be no

distinction between on-duty driving

time and on-duty non-driving time.

Drivers would be encouraged to begin

work at approximately the same time

each day, and would be required to have

a mandatory ‘‘weekend’’ of at least 58

consecutive hours off duty per work

week, i.e., a 58-hour ‘‘weekend.’’

Under revised option 2 similar to

option B, most drivers would face the

same requirements as under option 1.

Type 1 and 2 drivers could work and

drive up to 12 hours within a 14-hour

work period during each 24-hour cycle,

and would need a minimum of 10

consecutive hours off duty in each 24-

hour cycle. The 2 additional off-duty

hours could be taken during the on-duty

period or added to the consecutive offduty period. Type 1 and 2 drivers would

also be allowed to use a two-week

schedule for determining ‘‘weekend’’

off-duty time, with one short and one

long weekend, each to include two sleep

periods between midnight and 6:00 a.m.

Type 5 drivers would need a minimum

of 9 consecutive hours off-duty in each

24-hour cycle, and could work up to 13

consecutive hours, including driving, in

each 24-hour cycle. Type 5 drivers

would be limited to 30 hours of driving

per week and like Type 1 and 2 drivers

would need to take 2 additional off-duty

hours during the on-duty period.

Revised option 3 is a variation of

revised option 2 (up to a 14 consecutive

hour work/drive/break/nap period),

with the added provision that drivers

would not be allowed to drive more

than 18 hours per week between

midnight and 6:00 a.m. as

recommended by the panel.

Revised option 4 is a variation of

revised option 2 (14-consecutive-hour

work/drive/break/nap period), with the

added provision that all Type 1 drivers

would be required to use an EOBR.

Revised option 5 is a variation of

revised option 2 and 4 (14-hour work/

drive/break/nap period), with the added

provision that both Type 1 and 2 drivers

would be required to use an EOBR. See

Table 5.

TABLE 5.—FMCSA REVISED REGULATORY OPTIONS

Potential policy

These many

hours off duty

for sleep in

one consecutive period

With at least

these many

additional

hours off duty

Allowing the driver to

work up to this many

hours, including driving, in any

combination

A weekly recovery period

of at least

Records to be kept

1—Maximum 12 on,

minimum 12 off.

12 hours ........ N A ................ 12 hours .................... 758 hours ...... Type 1 and 2 drivers use records similar to

29 CFR 516 with location changes and

have available on the CMV, all other drivers’ carriers use records similar to 29

CFR 516.

2—Maximum 14 on,

minimum 10 off.

10 hours ........ 2 hours .......... 12 hours .................... 32 to 56 hours Type 1 and 2 drivers use records similar to

29 CFR 516 with location changes and

have available on the CMV, all other drivers’ carriers use records similar to 29

CFR 516.

3—Maximum 14 on,

minimum 10 off.

10 hours ........ 2 hours .......... 12 hours daily (only

18 hours per workweek during the

hours from midnight

to 6:00 a.m.).

32 to 56 hours Type 1 and 2 drivers use records similar to

29 CFR 516 with location changes and

have available on the CMV, all other drivers’ carriers use records similar to 29

CFR 516.

4—Maximum 14 on,

minimum 10 off.

10 hours ........ 2 hours .......... 14 daily hours, 12

hours daily limited

to driving, and only

18 hours of driving

between midnight

to 6:00 a.m. each

workweek.

32 to 56 hours Type 1 drivers required to use EOBR, Type

2 drivers use records similar to 29 CFR

516 with location changes and have available on the CMV, all other drivers’ carriers use records similar to 29 CFR 516.

5—Maximum 14 on,

minimum 10 off.

10 hours ........ 2 hours .......... 8 hours ...................... 32 to 56 hours Type 1 and 2 drivers required to use

EOBRs, all other drivers’ carriers use

records similar to 29 CFR 516.

I. Benefits and Costs

As discussed above in III. The Safety

Problem, the agency estimates that

fatigue is directly or indirectly involved

in 15 percent of all fatal and injury

crashes involving large CMVs,

contributing to 755 fatalities and 19,705

injuries annually.

A complete discussion of the benefits

and costs of this NPRM and alternatives

the agency considered is in the PRE in

the docket. The FMCSA invites

comment on any aspect of the PRE used

by the FMCSA. Please provide with

your comments all data, studies, and

reports relevant to the assumptions you

rely upon that you believe the FMCSA

should use. The PRE’s discussion of

crash reduction benefits, paperwork

reduction benefits, total benefits,

quantitative costs, and qualitative

impacts can be summarized as follows.

1. Crash Reduction

Based on the FMCSA’s review of all

the research studies, the Expert Panel’s

review of those studies, the

development of options to improve

safety and health of CMV drivers and

reduce CMV crashes caused by CMV

driver fatigue, the FMCSA believes that

options 1 and 2 could lower crashes by

at least 5 percent. The FMCSA believes

that at least 5 percent could be realized

by its requiring motor carriers to

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25569

provide drivers with: (1) A 24-hour rest/

work cycle rather than an 18 to 23 hour

rest/work cycle; (2) opportunities for

two additional hours to sleep; (3) a

mandatory ‘‘weekend’’ minimum off

duty period that includes two

consecutive midnight to 6:00 a.m. sleep

periods to resume baseline levels of

sleep structure and waking performance

and alertness; and (4) reducing daily

duty time. The FMCSA also believes

that an additional 2.5 percent could be

realized through the limitation on

nighttime driving, thus option 3 could

realize at least an estimated 7.5 percent

crash reduction. Options 1 and 2 are

very similar. The agency made no

attempt to differentiate between their

safety impacts. Option 3 is a variant of

option 2 by adding the limitation on

nighttime driving.

The agency believes that, when fully

phased in, option 4 could lower crashes

by Type 1 drivers by at least 20 percent,

and by all other drivers by at least 5

percent. The agency believes that option

5 could lower crashes by Type 1 and 2

drivers by at least 20 percent when fully

phased-in, and by all other drivers by at

least 5 percent. The agency believes that

options 4 and 5 could have a significant

impact on the crash rate of drivers who

use an EOBR, because the proposal

would help drivers and motor carriers

make a dramatic change in their present

attitude toward compliance in long-haul

and regional operations. The FMCSA

must insist on persuasive evidence that

compliance occurs, is monitored, and

enforced. The presence of the proposed

objective tamper-proof monitor on board

long-haul and regional operating CMVs

is expected to achieve the extra 15

percent crash reduction by those Type

1 and 2 operations where the greatest

percent of fatigue-related crashes are

currently found. The FMCSA considers

all our crash reduction estimates to be

conservative. Table 6 displays the

agency’s minimum crash reduction

levels for each option.

The FMCSA has estimated that motor

carriers would phase in use of EOBRs in

equal increments over the entire phasein period, with 1/x (one divided by x)

of EOBRs installed per year, where x

equals the phase-in-period. Within one

year of promulgation, one-half of large

motor carriers’ vehicles and drivers

would use EOBRs, one-third of medium

motor carriers, and one-fourth of small

motor carriers. Benefits were estimated

in conjunction with EOBR use. If

carriers were unable to meet these

installation schedules, they would be

required to follow existing HOS and

RODS requirements until they are able

to comply. The estimated baseline crash

reduction from the regulatory changes is

5 percent, while the reduction for motor

carriers using EOBRs is 20 percent. This

evaluation added in the 15 percent

increment (20 percent minus 5 percent)

over 1/x years for each size of motor

carrier. For the first effective year of this

rule, crashes by large Type 1 motor

carriers would fall by 20 percent, for

medium motor carriers by 10 percent,

and for small motor carriers by 8.5

percent.

TABLE 6.—MINIMUM FATIGUE-RELATED CMV CRASH REDUCTION

Option Description Minimum reduction in fatigue-related CMV crashes

1 ........................................... 12 consecutive hours off duty, 12 consecutive hours on

duty.

5 percent for all CMV crashes.

2 ........................................... Type 1 drivers take 10 consecutive hours off duty 14-

hour work period including 2 hours for breaks/meals/

naps.

5 percent for all CMV crashes.

3 ........................................... Limit on night time driving of 18 hours per week, Type

1 drivers take 10 consecutive hours off duty 14-hour

work period including 2 hours for breaks/meals/naps.

7.5 percent for all CMV crashes.

4 ........................................... Type 1 drivers use EOBRs, Type 1 drivers take 10 consecutive hours off duty 14-hour work period including

2 hours for breaks/meals/naps.

15 percent for Type 1 CMV crashes, 5 percent for all

other CMV crashes.

5 ........................................... Type 1 and 2 drivers use EOBRs, Type 1 drivers take

10 consecutive hours off duty 14-hour work period including 2 hours for breaks/meals/naps.

15 percent for Type 1 and 2 CMV crashes, 5 percent

for all other CMV crashes.

The collective result of all the

research performed on this subject leads

the agency to believe that the effects of

the proposals will be crash reduction.

The agency has considered that by

allowing drivers longer consecutive offduty periods to obtain sleep, these

options should reduce fatigue-related

CMV crashes. As discussed above under

VII. A. Research Findings, the research

suggests that many CMV drivers are not

getting sufficient sleep. Insufficient

sleep leads to degradations of cognitive

performance, including increased

mental errors, lapses in vigilance,

slower reaction time, and errors in

judgment. These errors in turn heighten

the likelihood of CMV crashes. The

proposal would require longer

continuous off-duty time periods, which

will enable CMV drivers to have

increased sleep time.

The FMCSA estimated a reduction of

crashes for option 3, limiting nighttime

driving. Chart 4, shown earlier in this

NPRM, shows that the relative risk of

fatigue-related crashes is higher during

the night than at other times. The Expert

Panel argued not only that the risk of

fatigue-related CMV crashes is higher at

night, but also that the overall crash risk

is elevated during these hours. While

mileage data that would allow for

definitive calculations of the overall

CMV crash rates by time of day are not

available, it is clear that both fatigue

propensity and the risk of fatiguerelated CMV crashes peak at night.

The ultimate safety impact of option

3 would largely depend on how motor

carriers adjusted their nighttime

operations. Motor carriers could comply

with this option in a number of ways:

shifting traffic to daytime, hiring

additional nighttime drivers, rotating

existing drivers’ schedules, or, most

likely, using some combination of these

options.

These adjustments needed for option

3, however, might have some safety

downside. The most significant problem

would occur if drivers alternated

between daytime and nighttime driving.

This would disrupt drivers’ circadian

rhythms, since they would not have a

consistent start or stop time. The Expert

Panel believes that ‘‘if driving occurs at

night or on an irregular schedule, 72

hours within 6 days is not scientifically

defensible, and 36 hours off duty is not

sufficient for recovery’’ (Smiley and

Heslegrave, 1997; Wylie et al., 1997;

A

 ̊

kerstedt, 1997; Johnson et al., 1998).

Shifting traffic to early morning for

option 3 might increase congestion

during what is already one of the busiest

25570 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

times of the day. While there might be

an overall reduction in nighttime

crashes, the extra traffic during already

congested times of the day might result

in an increase in daytime crashes. While

the higher relative risk of fatigue-related

CMV crashes at nighttime (Chart 3)

suggests that daytime travel is safer,

there would undoubtedly be an increase

in daytime crashes on a per mile basis

commensurate with the increased

traffic. While the overall number of

fatigue-related CMV crashes would

likely fall somewhat, the FMCSA

believes the number of fatalities and

injuries per fatigue-related CMV crash

might increase. The agency notes above

that it is the truck driver who is the

fatality in approximately 70 percent of

crashes for which truck drivers are

coded as fatigued. This is partly due to

the fact that truck drivers are most

fatigued during the part of the night that

other drivers are least likely to be on the

road. By increasing the amount of

driving during hours when total vehicle

traffic is higher, the smaller number of

crashes that do occur are more likely to

involve occupants of other vehicles.

This may somewhat offset the reduction

in the total number of fatigue-related

crashes.

Options 4 and 5 have the most

dramatic safety impact, with an

estimated 20 percent reduction in

certain fatigue-related crashes. Although

these options allow the same number of

driving hours as option 2, they also

require use of an EOBR by Type 1

drivers (option 4) or Type 1 and 2

drivers (option 5). The agency’s analysis

of the research concludes that use of an

EOBR reduces fatigue-related crashes by

an extra 15 percent. This extra safety

would result from increasing driver

compliance with the HOS regulations.

The FMCSA noted above that the

research indicates that HOS regulation

violations are widespread. Surveys of

drivers have found that 40 to 75 percent

violate the HOS regulations, depending

on the definition of violation used. The

precise level of violation is less

significant than the fact that it appears

to be encountered constantly. EOBRs

make it easier to verify drivers’

compliance with the proposed rules,

improve motor carrier ability to

effectively manage driver compliance

and enable safety investigators to better

verify the driver’s adherence to the

proposed requirements. While EOBRs

will not eliminate HOS violations, they

would undoubtedly make violations

more difficult to conceal. A driver who

drives over hours currently can falsify

any one of a number of entries on the

RODS to make it appear that the driver

is in compliance. The EOBR would

provide certain pieces of driverunalterable data, which would

complicate the process of falsifying

driving hours. An EOBR would make it

easy for crash and other safety

investigators to determine when a driver

began to drive. Depending on the type

of driver, the investigator would know

that drivers working 12 to 14 hours after

their starting time are in violation.

By making it easier for crash and

other safety investigators to check

adherence to new HOS requirements,

the EOBRs should reduce the extent of

violations by deterrence. If this is true,

increased compliance with the HOS

regulations should lead to a reduction in

crashes. The agency concludes that

EOBR use could result in a 20 percent

reduction in fatigue-related crashes, 15

percent more than the estimated

reduction from the change in hours

alone. Because of the uncertainty about

the precise reduction brought on by

options 4 and 5, the agency has

included sensitivity analysis of different

possible safety impacts in chapter 6 of

the PRE in the docket. Once again, the

FMCSA invites comment on any aspect

of the PRE, the data and estimates used

by the FMCSA, and the conclusions

reached as a result of the analyses of the

benefits and costs. Please provide with

your comments all data, studies, and

reports you rely upon that you believe

the FMCSA should use.

Table 7 shows the baseline estimates

of the number of fatalities prevented by

the different options. Table 8 shows the

same estimates for injuries. Figures may

not sum because of rounding.

TABLE 7.—ESTIMATED REDUCTION IN CRASH FATALITIES, BY OPTION AND DRIVER TYPE

Option Type 1

carriers

Type 2

carriers

All other

carriers Total

Adjusted annual average baseline number of crash fatalities (based on 1991 to 1996) ....... 298 215 243 755

1 ............................................................................................................................................... 15 11 12 38

2 ............................................................................................................................................... 15 11 12 38

3 ............................................................................................................................................... 22 16 18 57

4 ............................................................................................................................................... 60 11 12 83

5 ............................................................................................................................................... 60 43 12 115

TABLE 8.—ESTIMATED REDUCTION IN CRASH INJURIES, BY OPTION AND DRIVER TYPE

Option Type 1

Carriers

Type 2

Carriers

All Other

Carriers Total

Adjusted annual average baseline number of crash injuries (based on 1991 to 1996) ......... 7,785 5,613 6,307 19,705

1 ............................................................................................................................................... 389 281 315 985

2 ............................................................................................................................................... 389 281 315 985

3 ............................................................................................................................................... 584 421 473 1,478

4 ............................................................................................................................................... 1,557 281 315 2,153

5 ............................................................................................................................................... 1,557 1,123 315 2,995

2. Paperwork Reduction

All drivers of CMVs in interstate

commerce are presently covered by the

RODS requirement, except for certain

drivers who operate within a 100 airmile radius of their home base. These

excepted drivers must be relieved from

duty within 12 consecutive hours of the

time they begin work. Their motor

carriers must record information similar

to the WHD-required information of

starting time, ending time, and total

time on duty. The RODS contains a

series of graph grid pages, and the driver

must categorize each 15-minute

increment as either driving, on-duty not

driving, sleeper berth, or off-duty.

Drivers must also record the location of

all stops, deliveries, and pickups, and

the location of any change of duty status

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25571

(for example, from sleeper berth to

driving). Drivers must keep their RODS

of the previous 7 or 8 days on their

CMV. The RODS must also contain

identifying information about both the

vehicle and the specific shipment. The

complete RODS requirements may be

found at 49 CFR 395.8 and 395.15.

As discussed above, employers

subject to the FLSA also need to prepare

a time record for drivers for wage and

hour purposes. The employer of the

driver may be the motor carrier, or it

may be an owner-operator or

independent contractor leasing

employed drivers to the motor carrier.

While the RODS and the WHD time

record overlap somewhat, the DOT and

DOL use different definitions of work

time.

Because these options propose to

eliminate the distinction between

driving and non-driving work time, the

FMCSA also proposes to remove the

RODS requirement. Under options 1, 2,

and 3, long-haul (Type 1) and regional

(Type 2) drivers would be required to

prepare a modified WHD time card,

which would include the time and

location of any change of duty status

(i.e., from on-duty to off-duty). These

drivers would also be required to keep

their time record on their vehicle when

driving. Under option 4, Type 1 drivers

would be required to use an EOBR,

while both Type 1 and 2 drivers would

be required to use an EOBR under

option 5. For all five options, motor

carriers would be allowed to use the

unmodified WHD time card for all Type

3, 4, and 5 drivers, and would not have

to keep the time card on their CMVs.

The agency would use the WHD time

record to monitor compliance with the

HOS regulations for specific drivers.

On March 11, 1998 (63 FR 11948), the

FHWA published a notice and request

for comment on its intent to request the

Office of Management and Budget

(OMB) to approve continuation of a

paperwork collection request. Only one

general comment was received in docket

FHWA–98–3393. The IIHS supported

continuation of the paper handwritten

RODS until they are replaced by

onboard computers. The FHWA had

proposed in that docket that each driver

works 240 days each year. This would

be equivalent to working 5 days per

week for 48 weeks per year. No

comments were received about the

FHWA’s proposed estimates that

include drivers taking 2 minutes a day

completing an RODS, and that motor

carriers spend 31 seconds per driver per

day filing these records. Rounding down

to 2.5 minutes per driver per day, and

estimating that drivers work 240 days

per year, this amounts to 10 hours per

driver per year. Many Type 5 drivers

already are exempt from this

requirement, under the 100 air-mile

radius exemption. Some drivers defined

as Type 3 and 4 in this NPRM are also

able to take advantage of the 100 airmile radius exemption and forgo

completing an RODS.

Most Type 3 and 4 drivers, however,

would have this burden eliminated.

Based on our knowledge of the motor

carrier industry and our investigations

of motor carriers, the FMCSA concludes

that many Type 3 and 4 drivers drive

shorter distances than a full 100 air-mile

radius of their normal work reporting

location and are relieved within 12

hours, and therefore are not currently

required to fill out an RODS. We deduce

from our knowledge and experience that

one-fourth of the 3.997 million Type 3

and 4 drivers are eligible for the current

100 air-mile radius exemption, and the

remaining 3 million Type 3 and 4

drivers are not. The FMCSA would

appreciate comments whether our

estimates of these numbers is on target.

Under all the options 1 through 5,

most drivers would be able to use their

time record in lieu of an RODS, and so

would save 2.5 minutes per day. Under

options 1, 2, and 3, Type 1 and 2 drivers

would also be able to discontinue using

the RODS, but they would have to carry

their time records with them on the

CMV and add city and State locations of

all changes of duty status (from on-duty

to off-duty, or the reverse). Option 4

would require Type 1 drivers to use an

EOBR, while Type 2 drivers would be

required to complete the RODS. Option

5 proposes that both Type 1 and 2

drivers use EOBRs. Option 4 requires

Type 1 drivers use the RODS until their

CMV is equipped with an EOBR, and

option 5 requires both Type 1 and 2

drivers use the RODS until their CMV

is equipped with an EOBR to fill out the

RODS.

The additional location information

that would be required on the modified

WHD time record is not currently

required on WHD time records. Based

on its knowledge and experience of the

motor carrier industry and the current

requirements to record city and State/

Province locations on the RODS, the

FMCSA estimates that drivers would

accumulate one-half (0.5) minute per

day recording locations each time a

driver changes duty status from on duty

to off duty and back to on duty. The

agency also estimates based on its

knowledge and experiences requiring

the current § 395.15 automatic on-board

recording device requirements that it

would take an additional half minute

per day for drivers to supplement the

electronic records, complete them, and

transmit the electronic file information

generated by the EOBRs. Therefore, the

net reduction for drivers using a

modified WHD time card or an EOBR is

one and a half minutes per day (the

elimination of the RODS saves them 2.5

minutes, which is partly offset by the

half minute required for the additional

change of duty status requirement on

the time cards and an additional half

minute for filing). Type 3, 4, and 5

drivers shifting to the standard WHD

time card from the RODS would save

two and a half minutes per day.

Table 9 shows that drivers and clerks

in interstate and intrastate commerce

currently spend approximately 42.5

million hours completing and filing the

RODS. Three of the five options would

result in the elimination of 37.5 million

of these hours, while option 4 lessens

the burden by 33.2 million hours and

option 5 by 39.5 million hours. For

options 4 and 5, the table presents the

reduction occurring when the EOBR

requirement is fully phased in. The

reduction is somewhat smaller in the

initial years. With an estimated wage of

$11.91 per hour from the Current

Population Survey (CPS), the resulting

savings vary from almost $400 million

to $470 million per year.

TABLE 9.—REDUCTION IN PAPERWORK BURDEN

Driver type Long haul Regional Other Total

Baseline Hours for Interstate and Intrastate Commerce ................................. 4,248,040 8,238,622 29,977,665 42,464,327

Reduction Option 1 .......................................................................................... 2,548,824 4,943,178 29,977,665 37,469,672

Reduction Option 2 .......................................................................................... 2,548,824 4,943,178 29,977,665 37,469,672

Reduction Option 3 .......................................................................................... 2,548,824 4,943,178 29,977,665 37,469,672

Reduction Option 4 .......................................................................................... 3,228,520 0 29,977,665 33,206,185

Reduction Option 5 .......................................................................................... 3,228,520 6,261,352 29,977,665 39,467,537

25572 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

TABLE 10.—ANNUAL BENEFITS OF PROPOSALS AFTER FULL IMPLEMENTATION BY ALL CARRIERS

Annual

fatal

crashes

avoided

Annual

injury

crashes

avoided

Annual

crash

benefits,

millions

Annual

paperwork benefits, millions

Total annual benefits, millions

10-year

discounted

benefits,

billions

Option 1 ................................................................................................... 32 676 $183 $446.0 $629.0 $4.4

Option 2 ................................................................................................... 32 676 $183 $446.0 $629.0 $4.4

Option 3 ................................................................................................... 48 1,014 $274 $446.0 $720.0 $5.1

Option 4 ................................................................................................... 70 1,744 $400 $396.0 $795.0 $5.4

Option 5 ................................................................................................... 98 2,514 $558 $470.0 $1,028.0 $6.8

3. Total Benefits

Table 10 presents the agency’s

estimates of the crash reductions of the

five options, along with the estimated

monetary benefits. Because options 1

and 2 would reduce crashes by the same

amount, they would result in an

equivalent level of benefits.

The benefits of this rule would recur,

as crashes are avoided, and paperwork

reduced, every year the rule is in effect.

Over a ten-year analysis period, all

options would yield substantial

benefits, ranging from $4.4 billion to

almost $6.8 billion. Figures in the

rightmost column of Table 10 are

discounted at a 7 percent rate.

4. Quantitative Costs

The FMCSA has summarized the

PRE’s discussion of quantitative costs

and qualitative impacts as follows:

The FMCSA defined a Type 1 driver

as discussed above under the heading

VII. C. Types of Motor Carrier

Operations. The FMCSA used a

University of Michigan Trucking

Industry Program (UMTIP) driver

survey, Belzer et al. (1999), to conduct

the analysis discussed in this section.

Since the FMCSA’s definition of a Type

1 (long-haul) driver was different than

the Belzer et al. (1999) definitions, the

FMCSA used averages of the figures for

long-haul and regional drivers from the

Belzer et al. (1999) study.

As discussed in the PRE, the FMCSA

found that at both the mean and

median, Type 1 drivers work about 11

hours per day, 8.5 of which are driving.

These drivers would be in compliance

under these options, as they are within

the existing regulations. At the 80th

percentile, Type 1 TL drivers work 14.5

hours and drive 11 hours. These drivers

may be in compliance with existing

regulations if their driving time is not

consecutive, but they would clearly be

violating options 1 and 2, as they would

exceed the maximum number of hours

working. Chart 6 (shown previously in

this NPRM) indicates that at

approximately the 60th percentile, Type

1 drivers work 12 hours per day. This

suggests that 40 percent of Type 1 TL

drivers work more than 12 hours, and

would have to reduce their daily

working (and possibly driving) time

under these options. The FMCSA

concludes that some percentage of this

40 percent of Type 1 TL drivers are

violating the existing rules.

The FMCSA estimates that at the 80th

percentile, regional truck load drivers

drive 13 hours, 1.5 hours fewer than

their long haul counterparts. This

adjustment accounts for the shorter trip

lengths of these drivers.

LTL drivers operate quite differently

than TL drivers. Instead of the highly

variable long distance trips common

among TL drivers (particularly owneroperators), LTL drivers tend to drive the

same routes, often working at the same

time of day. The UMTIP survey likely

undersampled LTL drivers, as they are

less likely to stop at rest areas than are

TL drivers. Anecdotal evidence also

suggests that LTL drivers are unlikely to

violate the HOS regulations.

According to the 1997 Vehicle

Inventory and Use Survey (VIUS), the

successor to the TIUS, 31.4 percent of

large trucks are used in LTL operations.

We estimate that 80th percentile LTL

drivers drive 12.5 hours per day, rather

than the 14.5 hours of national TL

drivers.

Approximately forty percent of long

haul drivers, those between the 60th

and 100th percentile working time,

would have to reduce their working

hours under the provisions in this

NPRM. Drivers at the 61st percentile

would only need a modest reduction in

working time to come into compliance,

while those at the 99th percentile would

require a substantial reduction in hours.

The FMCSA estimated the cost of

bringing the midpoint over-hours driver,

at the 80th percentile, into compliance

with this NPRM.

The FMCSA calculated the number of

hours motor carriers would ‘‘lose’’ if all

over-hours drivers drove 12 hours per

day. Carriers would need to make up

approximately 586,000 missing hours,

which translates into almost 49,000

drivers (586,185 lost hours per day

divided by 12 hours per driver = 48,849

drivers).

Table 11 shows the number of drivers,

hours at the 80th percentile, and

assumed percentage of total drivers, and

the number of drivers needed to make

up for lost hours, for the different driver

types used for the cost analysis in the

PRE.

TABLE 11.—DRIVER CHARACTERISTICS BY DRIVER TYPE

Percent

drivers, by

distance

Number

Hours

worked,

80th percentile

New drivers

needed

Long haul LTL .......................................................................................................... 31 133,320 12.5 1,944

Long haul TL ............................................................................................................ 69 291,484 14.5 24,290

Regional LTL ........................................................................................................... 31 258,560 12.5 3,771

Regional TL ............................................................................................................. 69 565,303 13 18,843

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25573

Motor carriers would need to hire a

total of 48,849 new drivers, the vast

majority of them in the truckload sector.

This equals 3.9 percent of the current

number of regional and long haul

drivers, so with an elasticity of 10

(explained in the PRE), drivers wages

will have to increase by 0.39 percent to

induce 48,800 individuals to become

truck drivers.

As discussed in the PRE, the cost to

motor carriers would be determined by

three interacting forces: (1) A reduction

in wages to drivers who currently drive

more than 12 hours per day; (2) an

increase in wages for current drivers as

a result of the need for higher wages to

attract additional drivers; and (3) the

wages for new drivers. Regression

analysis of 1997 data from the March

1998 Current Population Survey shows

that the average 60 hours a week truck

driver makes $35,737, while the average

70 hours a week driver makes $38,959

annually. Just under 480,000 long haul

drivers currently drive more than 12

hours, and would have their wages

lowered under the options considered

in this NPRM. Motor carriers would

save $1.55 billion in wages for these

drivers (479,843 drivers x ($38,959–

35,737)).

The new equilibrium 60 hours per

week wage would be $35,877 ($35,737

wage multiplied by 0.39 new drivers

multiplied by 10.0 elasticity). This is

$139.81 greater than the previous 60

hour a week wage, and all 1,248,667

long haul and regional drivers would get

this raise. This would cost motor

carriers approximately $175 million per

year (1,248,667 drivers x $139.81 =

$174.57 million).

The largest cost for motor carriers will

be hiring new drivers. At an average

wage of $35,877, the 48,849 new drivers

needed will cost motor carriers $1.75

billion per year ($35,877 new wage

multiplied by 48,849 new drivers). The

net effect of these three changes will be

an increase in drivers costs of $384

million per year ($1.755 billion for new

drivers plus $174.57 million for existing

drivers minus $1.545 billion for over-60-

hour drivers).

Motor carriers could also attempt to

make up for lost hours by increasing the

number of hours current drivers work.

Table 6 of the PRE indicates that many

drivers drive significantly fewer than 12

hours per day, and it is possible that

some of these drivers may be able to

assume some of the lost hours

previously worked by their colleagues.

While this may be possible for some

LTL operations, it seems unlikely to be

feasible for TL motor carriers. A driver

who runs out of hours distant from the

home terminal in most cases can not be

efficiently replaced with a new driver.

While it is possible to imagine some

circumstances where hours could be

shifted to drivers who work less than 12

hours, it is unlikely that many hours

could be replaced this way.

Finally, motor carriers could make up

for lost drivers hours by increasing the

efficiency of existing drivers. About one

quarter of long haul drivers’ time

consists of non-driving work, much of

which generates little value to carriers

(or the economy). A moderate reduction

in this proportion of non-driving work

would allow for more hours of driving,

which could offset the reduced hours of

other long haul drivers. A smaller but

still significant percentage of drivers

time is spent waiting, which is entirely

unproductive.

Motor carriers do not entirely control

how many hours drivers wait or are

engaged in non-driving work; and,

therefore, would have difficulty

dramatically reducing this percentage

on their own. Drivers schedules are

dependant upon the conditions and

demands of shippers and receivers, so

any concerted effort to reduce nondriving time would need their

cooperation. It is not clear what

incentive shippers, receivers, and others

would have to cooperate, as wasted

drivers time is generally no cost to

them. Motor carriers could presumably

squeeze some inefficiency out of the

delivery system, but it is unlikely they

could achieve a significant reduction in

the amount of non-driving work time or

waiting time without widespread

cooperation from their customers.

Whether waiting time meets the legal

definition of time worked depends upon

particular circumstances. The

determination involves scrutiny and

construction of the agreements between

particular parties, appraisal of their

practical construction of the working

agreement by conduct, consideration of

the nature of the service, its relationship

to the waiting time, and all of the

circumstances. Facts may show that

drivers were engaged to wait or they

may show that they waited to be

engaged (Skidmore v. Swift, 323 U.S.

134 (1944)). Such questions ‘‘must be

determined in accordance with common

sense and the general concept of work

or employment.’’ (Central Mo. Tel. Co.

v. Conwell, 170 F. 2d 641 (C.A. 8, 1948))

Driver-repairpeople are working while

they wait for their motor carrier’s

customer to get the premises in

readiness. The time is work time even

though they are allowed to leave the

premises or the job site during such

periods of inactivity. The periods during

which these occur are unpredictable.

They are usually of short duration. In

either event they are unable to use the

time effectively for their own purposes.

It belongs to and is controlled by the

motor carrier. In all of these cases

waiting is an integral part of the job. The

drivers are engaged to wait.

Periods during which drivers are

completely relieved from duty and

which are long enough to enable them

to use the time effectively for their own

purposes are not hours worked. Drivers

are not completely relieved from duty

and cannot use the time effectively for

their own purposes unless they are

definitely told in advance that they may

leave the job and that they will not have

to commence work until a definitely

specified hour has arrived. Whether the

time is long enough to enable them to

use the time effectively for their own

purposes depends upon all of the facts

and circumstances of the case.

Drivers who have to wait at or near

the job site for goods to be loaded are

working during the loading period. If

drivers reach their destination and

while awaiting the return trip are

required to take care of their motor

carrier’s property, they are also working

while waiting. In both cases the drivers

are engaged to wait. Waiting is an

integral part of the job. On the other

hand, for example, if a driver is sent

from Washington, DC to New York City,

leaving at 6:00 a.m. and arriving at

noon, and is completely and specifically

relieved from all duty until 6:00 p.m.

when he again goes on duty for the

return trip the idle time is not working

time. He is waiting to be engaged.

Drivers paid by the mile reported

working an average of 66.3 hours in the

week prior to the Belzer et al. (1999)

survey, with 75.3 percent of those hours

spent in driving, for an estimated 49.9

weekly driving hours at the mean (66.3

multiplied by 0.753 = 49.9). Option 3

would limit drivers to 18 hours of

driving between midnight and 6:00 a.m.

per week; 18 hours represents 36

percent of mean driving hours (18

divided by 49.9 = 0.36). However, the

Belzer et al. (1999) survey asked drivers

about driving between 11:00 p.m. and

7:00 a.m., whereas option 3 limits

driving between midnight and 6:00 a.m.

If the agency estimates a uniform

distribution of driving over the eight

hours, then hours between midnight

and 6:00 a.m. should be 75 percent of

those for the longer period. Thirty-six

percent of nighttime driving for the

longer period translates into 13.5 hours

for the shorter period (18 multiplied by

0.75 = 13.5). To accumulate 18 hours of

driving between midnight and 6:00 a.m.,

48 percent of drivers’ time must fall

between 11:00 p.m. and 7:00 a.m. (1

divided by (0.75) multiplied by 0.36 =

25574 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

0.48). This is approximately equal to the

percentage of night driving at the 75th

percentile of the survey distribution,

which suggests that about one-quarter of

all drivers would be affected by an 18-

hour limitation.

To calculate the marginal effect of this

limitation, the agency computed the

increase in wages required to shift

someone at the 90th percentile of the

percent night driving distribution down

to the 75th percentile. To estimate the

total social cost, the agency scaled this

figure up by applying this change to

one-quarter of the Type 1 and 2 drivers

and one-eighth of Type 3, 4, and 5

drivers. The 90th percentile night driver

has 66.7 percent of his driving at night,

and to cut this level to the 46.7 percent

of the 75th percentile night driver is a

drop of 30 percent. The point estimate

of the effect of the percent of night

driving on the wage is ‘‘0.0415. (This is

based on the wage equation discussed in

the PRE in the docket). This estimate is

statistically significant at the 6.25

percent level. This estimated value can

be interpreted as the elasticity of the

wage with respect to the percent of

night driving at the mean of the wage.

At the mean wages but the 90th

percentile of the night driving

distribution, the elasticity equals 0.091

percent (‘‘0.0415 x (0.667/0.303) = 0.091

percent). Hence, a 30 percent drop in

the night driving percent should be

associated with approximately a 2.74

percent increase in the wage (30 x 0.091

percent = 2.74 percent) or 0.027 x $.303

= $0.0083 per mile. This figure

represents the extra per-mile wages

drivers would have to be paid to

compensate for their lost income from

reduced nighttime driving.

Drivers classified as local in the

Belzer et al. (1999) survey reported

somewhat less nighttime driving than

drivers classified as long-haul and

regional. As discussed in the PRE, by

surveying drivers at truck stops, the

Belzer et al. (1999) survey probably does

not capture a representative sample of

local drivers. Most local drivers do not

stop at truck stops, and those who do

are likely to be systematically different

from drivers who do not visit truck

stops. Accordingly, the agency

estimated that Type 3, 4, and 5 drivers

are only half as likely as Type 1 and 2

drivers to drive more than 18 nighttime

hours per week. Belzer et al. (1999)

estimated that 25 percent of long-haul

and regional drivers (those between the

75th and 100th percentile) would have

to reduce their nighttime driving; the

FMCSA reduced this figure to 12.5

percent for Type 3, 4, and 5 drivers.

The agency then multiplied $0.0083

per mile by the average annual miles for

each operational type. The definition of

drivers from the survey probably does

not match those envisioned in this

proposal. The agency estimated that

those labeled long haul and regional in

the survey are Type 1 according to its

definition, and drivers who call

themselves local in the survey are closer

to Type 2 drivers in the options. Type

3, 4, and 5 drivers were effectively

outside the scope of the survey.

Accordingly, the agency estimates that

Type 1 drivers drive 114,000 miles

annually, the average for long-haul and

regional drivers, and Type 2 drivers

drive 82,000 miles. The agency

estimates that Type 3, 4, and 5 drivers

operate 25,000 miles per year.

The average number of miles was

multiplied by the 25 percent of Type 1

and 2 drivers, and the 12.5 percent of

Type 3, 4, and 5 drivers, who drive

more than 18 nighttime hours per week.

The calculation for the total cost is as

follows: $0.0083 per mile multiplied by

the number of miles per year, times the

percent of drivers who drive more than

18 hours per week. The total cost is

high, approximately $375.3 million per

year. See Table 12. This represents an

annual cost, as motor carriers would

continue to pay drivers extra to

compensate for missing earnings. At a 7

percent discount rate, the ten-year cost

of compensating drivers for reduced

nighttime driving is $2.64 billion.

TABLE 12.—ANNUAL COST OF OPTION 3

Driver type Number of

drivers

Average

miles

Cost per

driver

Total cost,

millions

Type 1 .............................................................................................................................. 424,804 114,000 $946 $100.5

Type 2 .............................................................................................................................. 823,863 82,065 $681 $140.3

Type 4 .............................................................................................................................. 3,997,023 25,000 $208 $103.7

Type 5 .............................................................................................................................. 1,190,740 25,000 $208 $30.9

Total .......................................................................................................................... 6,436,430 $375.3

Option 4 is similar to option 2, except

that all Type 1 operation CMVs must be

equipped with an electronic on-board

recorder. This requirement raises the

cost (and, as explained in the PRE, the

benefit) of option 4 considerably.

The March 11, 1998 (63 FR 11948)

notice and docket FHWA–98–3393

estimated that 5 percent of Type 1

operation motor carriers currently use

EOBRs on all their CMVs. There were

no comments objecting to this estimate.

The FMCSA excluded any costs and

benefits in this NPRM for the estimated

5 percent of EOBRs that motor carriers

use. Motor carriers, therefore, would

have to purchase 252,798 EOBRs (0.95

× 266,102).

The cost of EOBRs built only for HOS

compliance is unclear. Queries of

manufacturers, surveys of users and

manufacturers of EOBRS, and comments

to the ANPRM docket reveal a wide

range of estimated costs. A 1997 motor

carrier survey undertaken for the FHWA

reported an average cost of $2,000 per

EOBR. Campbell (1998). While the

survey had a fairly low response rate, it

is the only survey the FMCSA is

familiar with which queried users about

the cost of EOBRs. In comments to the

ANPRM docket, the IIHS cited a

telephone survey of on-board computer

manufacturers. IIHS (1995) The cost for

the first CMV ranged from $1,089 to

$19,000. Most of the manufacturers

cited a high and low cost, and the mean

low cost was $4,500, while the mean

high cost was approximately $9,000. For

additional CMVs, prices ranged from

$585 to $4,000, with a low cost mean of

$1,150 and a high cost mean of $2,200.

IIHS prices are presumably in 1994

dollars. Other ANPRM comments

offered estimates between $700

(Rockwell Transportation Electronics)

and $5,000 per vehicle (ROCOR

Transportation).

The FMCSA also contacted two

manufacturers of EOBRs, which quoted

prices of $2,000 and $2,400. These

manufacturers also cited other costs,

such as software, driver cards, card

readers, and training. These items could

double the per unit cost, depending on

the specific configuration and

assumptions about the number of

drivers per carrier and terminal.

However, it appears that these prices are

for high-end models, which have many

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25575

capabilities in addition to the ability to

record HOS. These extra capabilities

include such items as speed governors,

recording various engine and

mechanical data, and global positioning

system tie-ins. Options 4 and 5 would

require carriers to use an EOBR for HOS

compliance only. Therefore, the costs

for the extra capabilities should not be

included as a cost of these options.

The FMCSA also contacted a

manufacturer of electronic tachographs

for the European market that could also

be produced for the U.S. market, too.

Electronic tachographs have not yet

been mandated in Europe, but

requirements for them have continually

been proposed by the European

Economic Community. This

manufacturer states its electronic

tachographs for the European market are

EOBRs with built-in global positioning

system (GPS) technology. During an

FMCSA site visit, this manufacturer

stated anticipated prices for its new

model being designed for the European

market. The manufacturer anticipates a

unit purchased by a power unit

manufacturer for the European market

and installed by that power unit

manufacturer on the assembly line to be

about $180 per power unit, while

aftermarket versions of the same new

model for the European market could be

$600 to $700. Costs of installation for

the power unit manufacturer during

power unit assembly should add about

0.25 hours to the process, the

manufacturer estimated. Aftermarket

and retrofit European electronic

tachographs should require up to 2

hours additional labor and possibly a

wiring harness adding $50 to $60 to the

aftermarket equipment cost, the

manufacturer estimated.

The manufacturer’s system would

record the information on an individual

driver’s smart card as this manufacturer

believes the European requirements

would expect them to require. The

licensing agencies in Europe would

issue the cards to the drivers. The

additional cost of the smart card’s could

be $1.00 to $2.00, though the

manufacturer stated that if the European

licensing agencies incorporate a silkscreened commercial driver’s license

(CDL) onto the smart card, the cost may

be even less for those licensing agencies

as the card would be multi-functional.

The manufacturer stated it would expect

the quantity of multi-function CDL/HOS

smart cards to be required would be in

the millions so the cost should be small.

This would, of course, depend upon

whether such a system were to be

mandated by European licensing

agencies, since it is not being proposed

as a requirement in this NPRM. The

manufacturer was targeting its price of

the hardware located at the terminal or

principal place of business to be less

than $500. No software would be

required for the manufacturer’s basic

system to fulfill an HOS mandate. The

manufacturer currently has a similar

product offered for sale at $695. The

manufacturer believes one day of

training per driver would be adequate

for its products and that the cost of the

training would range from $400 to $650

per day. Thus, taking all of these prices

into account, this manufacturer would

be able to provide a factory-installed

European electronic tachograph,

support systems, and training for one

vehicle at about $1,080. This would not

include any additional costs marked up

by the power unit manufacturer.

This analysis uses a purchase price of

$1,000, with annual costs (for

maintenance, training, etc) of $100 per

unit. The FMCSA also estimated that

drivers of vehicles with EOBRs would

need 2 hours of training, at $11.91 per

hour (from the CPS). Because of the

wide range of estimates, the FMCSA

analyzed the impact of higher and lower

EOBR prices.

Over ten years, Type 1 operation

motor carriers would pay $253 million

for the purchase of EOBRs, $229 million

for maintenance, and $9.6 million for

training, for a total undiscounted cost of

approximately $492 million.

Option 4 has the same driving

limitations as option 2, and, therefore,

the analysis carried out above is

applicable for this option. The FMCSA

calculated the discounted cost to be $2.7

billion. At a 7 percent discount rate, the

net present value (NPV) of these costs is

approximately $3.024 billion.

Option 5 is the same as option 4,

except both Type 1 and 2 drivers would

be required to use EOBRs. Minimum offduty hours, maximum driving time, and

‘‘weekend’’ rest provisions are

unchanged.

The FMCSA estimates that there are

266,102 Type 1 CMV power-units, and

242,069 Type 2 CMV power units. A

total of 508,171 CMVs would be affected

by this option. Five percent of CMVs are

already equipped with EOBRs, so the

remaining 482,766 vehicles would have

to be equipped with them.

Over ten years, purchasing EOBRs

would cost motor carriers $483 million,

maintaining the devices would cost

$438 million, and training would add

another $28.3 million. The total NPV of

the driver and EOBR costs is

approximately $3.444 billion, with an

annualized cost of approximately $490

million.

5. Small Business Costs

Approximately 500,000 motor carriers

were listed on the FMCSA’s Motor

Carrier Management Information System

(MCMIS) census file in the fall of 1999,

and the FMCSA has data on the number

of vehicles owned by 413,000 of them.

Almost one half of the motor carriers

with size data have only one truck, and

95 percent of motor carriers, almost

395,000, have 20 or fewer trucks. These

small motor carriers owned

approximately 37 percent of the

registered trucks. The average small

motor carrier operated just under 3

trucks.

Small long-haul and regional carriers

would face significant costs from this

proposal, particularly options 4 and 5.

These motor carriers would bear 37

percent of the higher wages and EOBRs.

The FMCSA estimated that driver wages

would rise by $384 million per year.

Small carriers would bear 37 percent of

that cost, approximately $142 million

annually, which equals $361 per small

motor carrier. Small motor carriers with

larger fleets will pay more than their

smaller counterparts.

Under option 4, small long-haul

motor carriers would face an extra $177

million over ten years for EOBRs ($135

million discounted). Purchasing the

EOBR constitutes approximately $100

million of this cost, and it is split evenly

between the first four years. Ongoing

maintenance accounts for the bulk of

the remaining costs, and it is spread out

over ten years. EOBRs will cost the

average small long-haul motor carrier

$2,850 to purchase and $282 annually

for maintenance (undiscounted).

Option 5 would cost small long-haul

and regional motor carriers $180 million

undiscounted to purchase EOBRs, $152

million discounted. Annual costs equal

$17.9 million undiscounted, for a total

of approximately $103 million

discounted over ten years. Per carrier

costs are the same as for option 4,

because of the method used for

calculating costs.

Data on firms and receipts from the

Small Business Administrations (SBA)

web site were used to generate an

estimate of average receipts for small

motor carriers. See http://www.sba.gov.

The FMCSA used data from Standard

Industrial Classification (SIC) codes for

trucking, SIC codes 4200 through 4214.

Small motor carriers, defined as those

with fewer than 20 employees, had

average annual receipts of just over

$400,000 in 1996. First year costs of

$3,132 ($2,850 plus $282) equal

approximately three fourths of one

percent of the average small motor

carriers receipts.

25576 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

The previous calculations include

only motor carriers in SIC codes 4200

through 4214, which include motor

freight transportation and warehousing,

trucking and courier services, local

trucking without storage, non-local

trucking, and local trucking with

storage. Many small establishments

covered by this NPRM are in other

industrial sectors, and therefore would

not be included in this estimate. There

are a large number of private carriers,

those which do not accept for-hire

shipments, but instead serve as a

shipping subsidiary of an establishment

in a different line of business. Examples

include bakeries or groceries which own

small fleets of trucks to deliver their

goods, or a touring musician who travels

via a privately owned motor coach. The

FMCSA was not able to generate data on

these private motor carriers.

It is likely that both EOBR and driver

costs could be lower than estimated

above. First, we assumed that small

motor carriers would purchase one

quarter of their EOBRs in each of the

first four years. In reality, it is likely that

most small motor carriers will wait until

the latter years to buy an EOBR. This

will lower the discounted EOBR costs,

as later year purchases are discounted

more highly than earlier ones. In

addition, small motor carriers who

purchase EOBRs in year 4 will have to

pay for maintenance for 3 fewer years

than those who purchase in the first

year.

Second, the FMCSA believes it is

likely that the price of EOBRs will fall

as production increases. As

manufacturers gain proficiency in

producing a good, improved use of labor

and materials tend to lower the costs of

production. Improvements include

reducing the number and complexity of

component parts, improved production

of components, improved assembly

speed and processes, reduced error

rates, and better manufacturing

processes. In a 1984 study of 108

manufacturing items from 22 field

studies, Dutton and Thomas found a

progress ratio of slightly higher than 80

percent, which means that each

doubling of cumulative production

reduces the cost level by 20 percent

(Dutton and Thomas). Because of the

phase-in period for small motor carriers,

larger motor carriers are likely to bear

the higher initial production costs.

In addition, wage costs may also be

lower than estimated. Small motor

carriers, like many small businesses,

tend to pay lower wages than their

larger competitors (Brown and Medoff

for overall wage differential; Hirsch and

Macpherson for motor carriers).

Therefore, a given percent increase in

wages will translate into a smaller

absolute change than is the case for

higher wage firms. The overall

percentage figure used in this analysis

may overstate the wage increases faced

by small motor carriers.

As noted above, the FMCSA assumed

that EOBRs will cost motor carriers $100

per year. This figure includes such

items as maintenance, search costs,

other transaction costs, and learning

curve costs. While we were not able to

directly estimate the separate cost

components, we do not believe they will

be significant. Manufacturers and

salespeople for EOBRs will have a

substantial incentive to provide

information about their products to

drivers. Unions, magazines, and trade

associations are also likely sources of

information for drivers. The costs to

reach the long-haul and regional drivers

who will be required to purchase EOBRs

are fairly low, as these drivers often

congregate at rest areas and loading

docks, and many drivers communicate

with other drivers via citizens band

radio. The relatively high concentration

of drivers lowers the cost of reaching

drivers, provides further incentives for

manufacturers, salespeople, and other to

provide information on EOBRs to

drivers.

The analysis also assumes that many

motor carriers will be able to have

EOBRs installed during routine annual

checkups. Motor carriers are required by

the FMCSRs to inspect their trucks

annually, and many carriers routinely

inspect their vehicles more frequently.

The FMCSA believes that many motor

carriers may be able to have an EOBR

installed while their trucks are

undergoing routine maintenance,

lowering the opportunity cost of

obtaining an EOBR. For most motor

carriers, the opportunity cost of an

EOBR is only the additional time

required for installation once a truck is

already available for service.

6. Qualitative Impacts

The FMCSA expects different

qualitative effects from two aspects of

the various options. The following

section discusses the likely impact of

options 1 (12 off, 12 on) and 3 (limiting

nighttime operations) on the motor

carrier industry. The agency does not

believe options 2, 4, or 5 would have

significant qualitative, intangible effects

to warrant a discussion of them. The

FMCSA invites comment on whether

you believe there are significant

qualitative, intangible effects to warrant

a discussion for options 2, 4, or 5. Please

provide with your comments the

significant qualitative, intangible effects

you believe must be considered along

with all data, studies, and reports you

rely upon that you believe the FMCSA

should use.

Option 1 has two primary

dimensions’daily and weekly

scheduling requirements.

Daily Scheduling. The regional LTL

industry would have the least difficulty

conforming with option 1’s daily

schedule, as most freight follows the

overnight rhythm. The ability to use the

driver for 12 hours regardless of activity

(driving or other labor) would give the

motor carriers more flexibility. The

agency is not sure how much of this

additional capability carriers might use,

but it would allow them to adjust

according to the demands on their

business. The national LTL industry

would also be able to adjust to this

option as carriers now use their drivers

for less than 10 hours of driving at a

time (at least the union carriers do not

require drivers to do other work) and

would have the additional flexibility to

use drivers beyond 10 hours, if

necessary.

One difficulty the national and

regional LTL industry segments may

face would be a possible reduction in

overall labor time: option 1 specifies

that 12 hours includes all breaks, so the

net effect might be to reduce total daily

labor by as much as 10 percent or as

little as zero. Assuming drivers work 11

hours per day for five days per week,

that gives them a 55-hour work week,

which is about what the agency would

expect in the industry.

The long-haul truckload industry, at

the other extreme, would have to make

major changes to adjust to this schedule.

Many TL drivers currently work more

hours than this proposed rule and any

option considered would allow. If other

reforms reduced drivers’ non-productive

time, the effect might be minimized.

That is, since the median Type 1 driver

drives only 8.5 hours daily, this might

not affect the driving experience of

drivers at the median. However, at the

75th percentile Type 1 drivers drive 11

hours, suggesting that the only way

many drivers could comply would be by

eliminating non-driving hours entirely.

In sum, the Type 1 TL industry probably

may have to hire more drivers than it

currently has, assuming drivers and

motor carriers comply with the

regulation and assuming no change in

the current framework that does not

discourage shippers and consignees

(and even carriers) from requiring

drivers to wait.

Type 2 trucking-segment motor

carriers generally operate in a fashion

closer to LTL than to the Type 1

trucking-segment motor carriers. The

Belzer et al. (1999) survey suggests

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25577

regional trucking falls approximately in

the middle between local and long haul,

depending on the measure. Regional

drivers are more likely on average to

perform labor other than driving than

the long-haul TL drivers, though the

latter have larger blocks of nonproductive time. It is difficult to

generalize among such a wide set of

possibilities, in terms of industry

segments and markets, so conclusions

are difficult to make based on the option

and the current work schedule. Work

schedules vary quite widely among

industry segments.

Weekly Scheduling. The options

would require at least two nights off

duty to obtain restorative sleep at the

end of a work week. For option 1, the

regional LTL industry already is

structured in a way that accommodates

this main research finding, at least as

closely as any other group. The typical

regional LTL driver begins his work

week Monday evening or night and

works five ‘‘shifts’’ of driving and labor

ending up back at his home domicile by

Saturday morning (some motor carriers

might add an additional shift to allow

drivers to reach maximum hours and

earnings or to meet its service

requirements). While the options would

limit the flexibility of these carriers with

respect to extra driving (because of the

requirement of a minimum of 58

consecutive hours off once per week),

they would have the least effect on these

drivers.

The long-haul LTL industry does not

schedule this same way. While the

agency believes these LTL carriers could

adapt to this schedule, they could do so

only with some effort and dislocation.

Their operations currently depend on a

mix of regular bid runs, on-call drivers,

and casual drivers. City drivers (pickup

and delivery) have reasonably regular

shifts, ordinarily are paid by the hour,

and probably stick pretty close to the

recommended HOS limits and schedule.

Regular bid road drivers run steady

operations between cities and haul the

most predictable freight. As a result,

their schedules are predictable and can

most likely conform to the daily and

weekly HOS options. Lower-seniority

irregular road drivers who maintain a

position on a seniority list (‘‘road

board’’) are called in to work as the

carrier is able to ‘‘close out’’ a trailer

and send it to another destination. Such

destinations vary, but sharp cutoff times

needed for regional LTL aren’t needed

in national LTL and hence the daily

discipline is not as critical. Larger

terminals generally have a higher

number of bid drivers, and may be able

to create relatively restricted time

windows during which daily dispatch

can occur. Weekly regularity is a bigger

problem, since that is not a current

requirement. The agency has found no

way to estimate the cost of compliance

for this industry, though it would like

comments from those in that industry

about how to do it.

Both the regional and national LTL

industries may find it difficult to adapt

structurally to different options

regarding HOS. Currently, these carriers

take both business and regulatory

constraints into consideration when

planning terminal networks. That is,

they consider the metropolitan area in

which they may pick up and deliver

freight (or where they have appropriate

freight density) along with the distances

between terminals where they transfer

freight throughout their network. Any

changes in daily HOS regulations could

induce them to move terminals closer

together or farther apart. Some

readjustment would undoubtedly take

place, but the agency believes this

should not be considered a cost of this

proposal. Motor carriers that do not

relocate terminals would not face any

additional costs because of this option,

they would merely be bypassing an

opportunity to realize savings.

The regional trucking industry

(particularly TL and other-than-generalfreight) probably could adapt to this

change relatively easily also, since they

are better able to get drivers home on

weekends or on a weekly basis.

Currently these carriers advertise ‘‘home

weekends’’ as a recruiting tool, so their

workers and potential workers

presumably view this as a benefit. While

they scarcely comply with the current

weekly limit (Belzer et al. (1999) shows

they work 60 hours per week at the

median), their biggest problem probably

would come more in adapting to each

option’s 60-hour limits than in adapting

to the schedule providing for 58 hours

of consecutive off-duty time weekly.

As was the case with the daily

restrictions, the long-haul TL industry

would find it the most difficult to adapt

to the weekly limitations. Currently

drivers are working through this period

and view lengthy delays on the road as

time wasters. Since these drivers

typically sleep in their trucks and may

have to spend this time in truck stops

when their weekly break occurs on the

road, they might not achieve the level of

rest anticipated by the rule even if they

obey the regulation. For analytic

purposes, however, it might make sense

to divide the long-haul TL industry into

two broad segments.

Smaller TL motor carriers run their

drivers long distances and generally

have their drivers spending weeks on

the road. While the agency has not

analyzed this phenomenon in detail,

research suggests the smaller carriers

have fewer alternatives to this form of

operation. That is, if they dispatch a

driver on a long cross-country run they

alone are responsible for locating freight

for the return trip. The agency suspects

their inability to locate freight on a

timely basis contributes to the ‘‘wasted

time’’ phenomenon observed in the

Belzer et al. (1999) survey. Larger motor

carriers may be more likely to locate

freight for the return at a distance,

though most carriers historically have

faced challenges maintaining freight

balance over long routes and between

far-flung city pairs. See 3 MCC 665, at

675–678, December 29, 1937.

Perhaps the biggest advantage larger

motor carriers (or more precisely, motor

carriers with denser regional

concentrations and freight lanes) have

over smaller ones is some ability to

relay freight from one region to another.

The ability to relay freight from one

driver to another would allow the motor

carrier to keep drivers within a

reasonable proximity of home and allow

them greater opportunities to return

home for the 58-hour breaks. Without

this option, long-haul carriers and their

drivers would find it rather difficult to

adapt to these options. One unintended

consequence might be a continuation of

the current situation, whereby drivers

extend their overall HOS by manually

recording ‘‘unpaid’’ waiting time as off

duty on the EOBRs, so that they can

maximize driving time, which is paid.

Option 3 has two primary

dimensions. The first dimension has

potential HOS requirements that are the

same as option 1. The second dimension

is the limitation on nighttime driving.

The proposed limitation on nighttime

driving could cause major restructuring

in the LTL industry. Most LTL carriers,

especially in the regional industry, run

throughout the night. The regional LTL

industry relies on nighttime driving. Its

primary niche is the overnight service

lane, and the structure of operations

requires nighttime driving. To

summarize and simplify their

operations, they pick up freight during

the afternoon and take it to a terminal

where it is stripped off local trailers and

reloaded on road trailers for delivery.

The dock operation may take anywhere

from three to five hours, after which the

loaded trailers are dispatched over-theroad to a terminal or terminals in

another city. The freight may be

handled once or twice en route during

the night. In any case, the freight arrives

at its destination terminal the following

morning, is stripped off the road trailer

and loaded onto a city trailer. A city

driver (‘‘pickup and delivery driver’’)

25578 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

takes the freight to the customer, and

repeats the pickup process. This pattern

ordinarily continues Monday through

Friday, with most freight picked up and

delivered on those days.

Variations on this theme apply to the

inter-regional LTL carriers as well as to

national package delivery carriers, much

of whose revenue actually consists of

regional and local freight. National LTL

carriers (along with inter-regional LTL

carriers and package carriers) have

wider variation in operations. The

pickup-and-delivery processes are the

same, but longer lanes mean that the

intermediate dispatch can take place

around the clock. Some motor carriers

are structured such that inter-regional

movement of freight would tend to

happen on the same nighttime lanes on

which their overnight shipments travel,

and some motor carriers are structured

so that second- and third-day freight

will travel during the day for at least

some of its intermediate movement. In

any case, the entire industry depends on

nighttime freight movement, and

limiting drivers to 18 nighttime hours

per week could cause major

restructuring. Indeed, since this option

likely would restrict drivers to three

days of work per week (less than full

time), carriers might adapt by switching

their drivers between nighttime and

daytime shifts throughout the week.

While this would comply with the

option, it could disrupt drivers’

circadian cycles, eliminate the

possibility of regular schedules, and

possibly reduce overall safety.

The Belzer et al. (1999) survey

suggests the extent of nighttime driving

is somewhat lower than previously

thought. The survey reveals that, on

average, drivers already are well in

compliance with such an option. The

discrepancy comes at the extremes.

People who are on the night shift

perform all of their work during these

hours, so as individuals they would be

far from compliant with a potential 18-

hour limit. This group includes those

who drive for most regional LTL

carriers, for package carriers, and

probably for much of the inter-regional

and national LTL industry. Those who

drive for TL firms (particularly Type 1

drivers) may well drive a small enough

percentage of their hours during this

period that they would be in

compliance. However, the drivers most

likely to be compliant with the 60-hour

limit probably are the very drivers

whose industry would be altered

dramatically as a result of such an

option. Finally, while data are sketchy

some analysts believe the LTL and

package industry have a lower than

average fatigue crash rate, so this option

could affect the operations of those

carriers that may contribute least to the

nation’s highway safety problem.

Regularity. The FMCSA also

examined the cost of requiring drivers to

begin work at the same time each day.

The specific option under consideration

would have prevented drivers from

working until 23 hours after the

previous day’s start time. A driver who

started work at 6:00 a.m. Monday would

not have been allowed to begin again

until 5:00 a.m. Tuesday, regardless of

how many hours the driver had driven

on Monday.

The agency used a wage equation

described in the PRE to estimate the cost

of regularity. The coefficient on the

proxy constructed for irregularity (a

binary variable) is ¥0.0196. It is

statistically significant at the 14.5

percent level, which means it is

estimated relatively imprecisely,

lowering confidence in the estimate’s

numerical value. Under the assumptions

outlined above, in equilibrium the

agency expects that the typical irregular

driver gets on average more miles (or

more paid hours, where applicable), and

so makes about the same annual income

as a regular driver, other things being

equal. If the agency prohibited

irregularity, then these drivers would

have to be paid almost 2 cents per mile

more on the smaller number of miles

they would then run to make the same

annual wages.

Using the average annual miles from

above (hence not trying to explicitly

capture any implied change in miles),

carriers would have to pay between

$500 and $2,200 per year in higher per

mile wages over fewer miles for the

average irregular driver in order to

restore his wages to their approximate

pre-prohibition level. Hence society

would pay that much more in higher

freight rates for the freight each irregular

driver now hauls, if irregularity were

prohibited and all drivers complied

with this prohibition.

The agency treated all drivers

(including owner-operators and

independent contractors) like the

average mileage-paid driver, and

estimated that 23.4 percent of this entire

population is ‘‘irregular,’’ the percentage

found in the Belzer et al. (1999) survey.

This results in total costs of nearly $1.5

billion per year, as shown in Table 13.

Regional drivers account for more than

55 percent of the total cost of a

regularity potential option.

TABLE 13.—COST OF REGULARITY

Driver types Number of

drivers

Average

miles

Cost per

driver

Total cost,

millions

1 ....................................................................................................................................... 424,804 114,000 $2,234 $207

2 ....................................................................................................................................... 823,863 82,065 1,608 837

4 ....................................................................................................................................... 3,997,023 25,000 490 69

5 ....................................................................................................................................... 1,190,740 25,000 490 369

Total .......................................................................................................................... 6,436,430 .................... .................... 1,482

Because of the substantial cost, the

FMCSA is not proposing to require

regularity in this NPRM. The FMCSA

recommends that carriers and drivers

keep regular schedules to the maximum

extent possible.

7. Benefits and Costs Combined

All options yield net benefits, with

the benefits generally increasing with

the option number. When paperwork

benefits are excluded, only option 5 has

net benefits, while the remaining

options yield net costs.

Table 14 reprints the estimated fatal

and injury crashes avoided from table

25 of the PRE, and presents estimates of

the number of fatalities and injuries

avoided. The rightmost column

calculates the monetary value of these

avoided incidents, based on a value of

$3.388 million per fatal crash avoided

and approximately $110,000 per injury

crash avoided. Appendix C of the PRE

explains the derivation of these values.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25579

TABLE 14.—BENEFITS OF OPTIONS

Fatalities

avoided

Fatal crashes avoidedInjuries

avoided

Injury crashes avoided

Total benefits, 10 year,

billions,

NPV

Option 1 ................................................................................................... 38 32 985 676 4.4

Option 2 ................................................................................................... 38 32 985 676 4.4

Option 3 ................................................................................................... 57 48 1,478 1,014 5.1

Option 4 ................................................................................................... 83 70 2,153 1,744 5.4

Option 5 ................................................................................................... 115 98 2,995 2,514 6.8

Table 15 repeats the benefits from the

previous table, along with cost figures

from Chapter 5 of the PRE. It shows that

all options yield large net benefits,

ranging from almost $1.7 billion for

options 1 and 2 to $3.4 billion for option

5. Costs and benefits are for ten years,

and discounted at a 7 percent rate.

Figures do not add because of rounding.

TABLE 15.—COSTS AND BENEFITS

Discounted

benefits, billions

Discounted

costs, billions

Net benefits,

billions

Option 1 ................................................................................................................................. $4.418 $2.696 $1.721

Option 2 ................................................................................................................................. 4.418 2.696 1.721

Option 3 ................................................................................................................................. 5.059 2.636 2.423

Option 4 ................................................................................................................................. 5.364 3.083 2.281

Option 5 ................................................................................................................................. 6.803 3.444 3.359

The costs and benefits of options 1

and 2 are identical, with net benefits of

$1.7 billion. Although, as discussed in

chapter 5 of the PRE, the flexibility of

option 2 might lower motor carrier costs

somewhat, no attempt was made to

quantify lower costs. Option 3 has

greater benefits and similar costs,

resulting in net benefits of more than

$2.4 billion. Option 4 yields a net

benefit of almost $2.3 billion, while

option 5 has the highest net benefits at

almost $3.4 billion.

Thirty percent of the benefit of

options 1 and 2 is due to the reduction

in crashes, with the remaining 70

percent accounted for by paperwork

savings. Forty percent of the benefit of

option 3 is due to the reduction in

crashes, with the extra 2.5 percent

assumed reduction in crashes of option

3 accounting for this difference.

Approximately fifty percent of the

benefit of options 4 and 5 results from

the reduction in crashes. Table 16

displays the costs and benefits of the

proposals excluding this paperwork

benefit.

TABLE 16.—COSTS AND BENEFITS EXCLUDING PAPERWORK BENEFITS

Discounted

benefits,

billions

Discounted

costs,

billions

Net

benefits,

Millions

Option 1 ................................................................................................................................................... $1.283 $2.696 ($1.413)

Option 2 ................................................................................................................................................... 1.283 2.696 (1.413)

Option 3 ................................................................................................................................................... 1.925 2.636 (0.711)

Option 4 ................................................................................................................................................... 2.619 3.083 (0.465)

Option 5 ................................................................................................................................................... 3.597 3.444 153

Ignoring the paperwork benefits does

not affect costs. However, the impact on

benefits is substantial. The resulting

reduction in benefits lowers net benefits

for all options, with options 1 through

4 yielding net costs.

Table 17 shows the marginal costs,

benefits and net benefits of moving from

one option to a more stringent option.

For all the changes in the table, costs

increase, but not as much as benefits, so

net benefits also rise. Net benefits jump

by one third between options 2 and 4,

and almost double between options 2

and 5. Moving from option 4 to option

5 increases net benefits by one half.

TABLE 17.—MARGINAL CHANGES IN COSTS, BENEFITS, AND CRASHES

Change Fatal

crashes

Costs,

millions

Benefits,

millions

Net

benefits,

millions

Net

benefits,

millions, no

paperwork

2 to 4 ........................................................................................................ (343) $387 $946 $559 $948

2 to 5 ........................................................................................................ (597) 748 2,386 1,638 1,566

4 to 5 ........................................................................................................ (254) 361 1,439 1,079 618

25580 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

Lowering the assumed accident

reduction rates reduces the net benefits

of all options. Because paperwork

savings constitute a large part of total

benefits, a given percent reduction in

crashes results in a smaller reduction in

net benefits. Halving the assumed crash

reduction rate for all options lowers the

net benefits of options 1 and 2 by

approximately one third, and options 3,

4, and 5 by approximately 40 percent.

The PRE discussed the uncertainty

concerning the percent of fatigue-related

crashes. While the FMCSA estimates

that 15 percent of all truck crashes are

fatigue-related, analysts disagree about

the precise figure. Accordingly, the

following table shows the impact of

lowering the baseline fatigue-related

crash rate. Table 18 shows the costs,

benefits, and reductions in accidents

that would occur if 7.5 percent of all

truck crashes were fatigue-related.

TABLE 18.—IMPACT OF 7.5 PERCENT BASELINE FATIGUE RELATED CRASH RATE

Fatal crash

reduction

Injury crash

reduction

Safety

benefits,

millions

Net

benefits,

millions

Option 1 ........................................................................................................................... 16 338 $642 $1,080

Option 2 ........................................................................................................................... 16 338 642 1,080

Option 3 ........................................................................................................................... 24 507 962 1,461

Option 4 ........................................................................................................................... 35 738 1,341 1,003

Option 5 ........................................................................................................................... 48 1,027 1,829 1,591

Lowering the assumed fatigue-related

crash rate reduces the benefits of all the

options, but all options continue to

show sizeable net benefits. Increasing

the baseline fatigue-related crash rate

obviously results in higher gross and net

benefits.

Chapter 4 of the PRE noted the

uncertainty surrounding the price of

EOBRs, with estimates ranging from

$700 to $19,000 per unit. Because of

doubt about the true cost, the FMCSA

analyzed the consequences of higher

and lower EOBR costs. Increasing the

purchase price to $2,000 and the annual

operating cost to $200 raises the cost of

option 4 by almost $380 million, from

$3.08 billion to $3.46 billion. Benefits

continue to exceed costs, with net

benefits of $1.9 billion. Excluding

paperwork benefits, costs exceed

benefits by $843 million over ten years.

For option 5, costs shoot up

approximately three quarter of a billion

dollars, to $4.167 billion, while net

benefits fall by the same amount, to $2.6

billion.

The FMCSA also analyzed the impact

of halving the cost of EOBRs, to $500

per unit and $50 per year. Not

surprisingly, costs for both options

plummet. For option 4, costs falls by

almost $189 million, and net benefits

increase by that amount. The cost of

option 5 declines by approximately

$362 million, and net benefits increase

commensurately. Neither option

appears to be overly sensitive to changes

in the cost of EOBRs. Only when the

cost of EOBRs reaches $6,000 does the

cost of option 5 equal the benefits. For

option 4, the breakeven EOBR cost is

approximately $7,000.

The FMCSA believes it is likely that

the price of EOBRs will fall as

production increases. As manufacturers

gain proficiency in producing a product,

improved use of labor and material tend

to lower the costs of productions.

Improvements include reducing the

number and complexity of component

parts, improved production of

components, improved assembly speed

and processes, reduced error rates, and

better manufacturing processes. In a

1984 study of 108 manufacturing items

from 22 field studies, Dutton and

Thomas found a progress ratio of

slightly higher than 80 percent, which

means that each doubling of cumulative

production reduces the cost level by 20

percent (Dutton and Thomas).

The effectiveness of EOBRs in

reducing fatigue-related crashes is also

subject to disagreement. The FMCSA

argued in Chapter 4 of the PRE that

drivers of vehicles with an EOBR will

have 20 percent fewer fatigue-related

crashes than those without the devices,

because EOBRs will enhance

enforcement officers to capabilities to

detect violations and will thereby

increase compliance. The FMCSA also

evaluated the impact of varying the

assumed level of reduction in fatiguerelated crashes brought on by EOBRs.

Table 19 shows the costs, benefits and

number of accidents that would be

avoided if EOBRs only reduced fatiguerelated crashes by 10 percent. Costs are

unchanged, but fewer accidents are

avoided, so total and net benefits drop

for options 4 and 5. Benefits for both

options remain positive. However, the

net benefit of option 4 falls by $900

million, and that of option 5 by $1.5

billion. The net benefit of option 4,

$1.34 billion, is less than that of options

1, 2 and 3. The new benefit of option 5

exceeds that of all options except option

3.

TABLE 19.—IMPACT OF REDUCING EOBR CRASH REDUCTION RATE TO 10 PERCENT

Fatal crash

reduction

Injury crash

reduction

Safety

benefits,

millions

Net

benefits,

millions

Option 4 ........................................................................................................................... 44 943 $1,717 $1,379

Option 5 ........................................................................................................................... 53 1,135 2,054 1,816

The benefits and costs of this

proposal, and of alternative options,

depend on the values of several key

parameters which can be substantiated

by robust, empirical data. These include

the following:

1. The relationship between on-duty

and off-duty hours of service and crash

risks;

2. The cost of relocating fixed

terminals that motor carriers may have

to incur in transitioning from the

current to the proposed HOS rules;

3. The extent to which the proposal or

some alternative would effectively

reduce the driving time of current

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25581

drivers and thus result in the hiring of

additional drivers;

4. The change in the driver workforce

a motor carrier might reasonably

anticipate in terms of numbers and

levels of experience;

5. The cost of hiring additional

drivers;

6. The effect of additional hiring on

the average wages of new and existing

drivers;

7. The effect of reduced hours on

existing drivers’ income;

8. The effect of experience on overall

accident risk for existing drivers’

experience levels and that of additional

drivers required to make up the lost

hours;

9. The baseline percentage of overall

crashes that one could reasonably

expect to be affected by a change in the

HOS rules;

10. The rate of crash reduction caused

by changes in HOS;

11. The effect of a change in HOS on

the distribution of driving between

nighttime and daytime hours and the

effect of any such change on overall

accident risks;

12. The effect of the requirement that

motor carriers notify drivers about their

responsibility for loading and

unloading;

13. The effect of requiring or

recommending that drivers take the

opportunity provided by off-duty

periods to obtain rest.

14. The cost of purchasing, installing,

maintaining, and using EOBRs,

particularly for small entities;

15. The effect of EOBRs on

compliance with HOS rules; and

16. The reduction in paperwork

burden for Type 1 and 2 operations

(attributable to replacing RODS with

EOBRs) and Type 3 through 5

operations (due to replacement of RODS

with DOL time records).

The FMCSA seeks comments on the

quantitative information presented on

each of the parameters listed above and

requests data and analysis regarding

them and on any other aspects of the

regulatory evaluation. Such information

would be most useful if, to the extent

feasible and relevant, it were: (1) Broken

out by driver Type (i.e., 1 through 5)

and (2) provided in such a way as to

enable an analysis of alternative

options. For example, data indicating an

option would result in hiring of a

substantially different number of

additional drivers or have a

demonstrably different effect on overall

safety would be useful. Similarly,

concerns about the data presented in

this NPRM should be as specific and

quantitative as possible to be helpful.

J. The Option Selected to Propose

Based on the options, the

recordkeeping options, the benefit-cost

analyses summarized above, and other

regulatory analyses, the FMCSA has

chosen to propose option 5. This option

proposes to require EOBRs for Type 1

and 2 operations for compliance

purposes only. EOBRs are not intended

for other types of surveillance (e.g.,

audio or video recording). They are

intended solely to satisfy HOS reporting

and recordkeeping requirements. The

information they collect and provide

should not be used for other purposes.

This option also requires Type 1 and 2

drivers have at least 10 consecutive

hours off duty, work up to a 14-

consecutive-hour period including

taking 2 hours for breaks, meals, and

naps. Option 5 saves the most lives, 115,

prevents the most injuries, 2,995, and

provides the highest net benefits to

society, almost $3.359 billion, assuming

that 15 percent of all CMV-involved

crashes are fatigue-related and the

proposed rules cut fatigue-related

deaths each year by 20 percent for longhaul and regional motor carrier

operations and 5 percent for all other

motor carrier operations.

The FMCSA proposal would divide

the motor carrier industry into the five

types of motor carrier operations

discussed in section VII.C., Types of

Motor Carrier Operations, earlier in this

NPRM.

Type 1—Long haul. These drivers are

away from their normal work reporting

location and home for more than three

days at a time; in total, they are away

from home for a large part of the year.

Type 2—Regional. These operations

are similar to Type 1, except that drivers

are away from their home base only 3

or fewer days at a time.

Type 3—Local split shift. Split-shift

drivers spend most of their on-duty time

driving, but most are local (or homebased), and their driving shifts are

generally separated by several hours.

Type 4—Local pickup and delivery.

Type 4 drivers work in the vicinity of

their normal work reporting location.

They are generally on regular schedules

extending less than 12 consecutive

hours from the time they report in until

they check out. Driving is a significant

part of their work, more than half of

their on-duty hours.

Type 5—Primary work not driving.

These drivers also work in the vicinity

of their normal work reporting location.

Unlike Type 4, however, they spend

only one-third (or less) of their on-duty

hours behind the wheel. The

classification covers operators of CMVs

whose duties do not center around

driving, but who operate these vehicles

as a necessary part of their work

assignments.

In a document to be published at a

later date in the Federal Register, the

FMCSA will propose a new version of

the FMCSRs using a question-andanswer format in which regulations

applicable to drivers and motor carriers

will be printed in separate sections. The

HOS rules being proposed today are

drafted in that format. Part 394 would

apply to motor carriers and Part 395 to

drivers.

VIII. Additional Petitions Received

The Office of the Secretary of

Transportation (OST) and the FHWA

received three petitions from motor

carrier associations in August 1999. On

August 5, 1999, the OST received a

petition from the ATA requesting an

addition to 49 CFR 5.1(d) and providing

suggested rule text. ATA explained its

purpose was to:

give those affected by [FMCSA] hours of

service regulations the opportunity to furnish

to the Department comments on the scientific

studies, findings and principles upon which

the Department intends to base its decisions

on [FMCSA] hours of service regulations.

The OST created docket number OST–

99–6075 for this petition, denied the

petition on September 29, 1999, and

notified the ATA of its decision.

On August 11, 1999, the DLTLCA

(Distribution and LTL Carriers

Association) petitioned the FHWA to

adopt an amended rule providing a nondistance-based exemption when a driver

meets the following three conditions:

1. The driver reports to and is

released from a normal work reporting

facility.

2. The driver complies with the daily

driving and on-duty time limits set forth

in current § 395.3.

3. The motor carrier maintains records

of the driver’s on-duty status.

The FMCSA addresses the subject of

the DLTLCA petition in the above

discussions about time records and

believes this NPRM incorporates a

discussion of this matter.

On August 12, 1999, the FHWA

received another petition from the

DLTLCA asking the agency to adopt

further procedures under 49 CFR 389.25

Additional rule making proceedings to

allow the participants of this NPRM to

review and comment on the safety and

fatigue research which the FMCSA

gathered and relies upon in this

document to propose revising the

current HOS rules. Further, the DLTLCA

requested that the FHWA implement

these procedures before issuing this

NPRM. The Office of Motor Carrier

Safety denied this petition, notified the

25582 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

DLTLCA of its decision, and has filed

the decision in the docket for review.

Commenters are also requested to

provide and justify values for the types

of parameters specified in FMCSA’s

proposal. These parameters, for

example, include:

1. The need for and duration of

mandatory rest breaks during the daily

on-duty period;

2. The number of hours per day and

per week that drivers would be allowed

to be on-duty, with or without averaging

over more than one day or one week;

3. The length and timing of any

weekly recovery period; and

4. The allowance for drivers to reset

their weekly on-duty total back to zero

after any minimum weekly recovery

period.

IX. Implementation

The FMCSA is proposing that all

motor carriers would continue to have

to comply with the current Part 395

until 6 months after publication of the

final rule. On that date, all motor

carriers would begin complying with

most requirements of the final rule. The

agency believes this should be sufficient

time to make any necessary adjustments

to schedules and to familiarize drivers,

other motor carrier personnel, and

Federal, State, and local enforcement

personnel with the details of the new

rules.

The requirements for installed and in

use EOBRs in Type 1 and Type 2

operations would be mandatory within

2, 3, or 4 years of that date 6 months

after publication of the final rule. The

deferred mandatory compliance dates

for EOBRs in Type 1 and 2 operations

are staggered according to the size of the

motor carrier on that 6-month effective

date: 2 years for carriers with 51 or more

power units; 3 years for carriers with 20

to 50 power units; and 4 years for

carriers with 20 or fewer power units on

the effective date of the rule. The intent

of the deferred implementation

schedule is to mitigate the start-up

costs, particularly for small entities. The

agency believes that the more universal

the use of these devices, the more likely

the price will drop. The analysis of cost

is provided elsewhere in this NPRM.

Type 1 and 2 motor carriers and their

drivers would continue to use the

current part 395 recordkeeping

requirements until they purchase,

install, and begin using the mandatory

EOBRs. If a motor carrier chooses to

wait until the applicable date 2 to 4

years in the future to begin using

EOBRs, that motor carrier would have to

comply with the current § 395.8 RODS

or § 395.15 automatic on-board

recording device requirements. This

should provide an incentive for those

motor carriers that would like to take

advantage of the various cost savings to

do so as soon as they begin using

compliant EOBRs.

As discussed above in VII. F. 1., the

WHD records in 29 CFR part 516 do not

include change of duty status location

data that is needed by the FMCSA and

its State and local partners in law

enforcement to enforce the proposed

rules for safety purposes. The FMCSA

cannot effectively enforce the proposed

safety rules to discover whether drivers

are operating CMVs while tired or

unalert without locations added. The

location of duty status changes is

important only for those drivers who do

not return to their normal work

reporting location at the end of each

work shift to determine where duty is

occurring and is necessary for

enforcement of the rule. For Type 1 and

2 drivers, the FMCSA needs locations of

CMV drivers duty status changes either

on a WHD-required time record or an

EOBR.

The FMCSA believes requiring the

continued use of the historical § 395.8

RODS would reduce unnecessary

confusion. Requiring a WHD time

record with the additional location data

on it would create unnecessary

confusion and would probably create

enforcement problems. First, many

motor carrier employers probably have

not been creating the WHD time record

in the first place. This, of course, is

possibly a violation of FLSA

requirements. The FMCSA has spoken

with numerous driver-employees of

non-unionized motor carriers who have

no knowledge that they are covered

under the FLSA minimum wage

requirements. This leads FMCSA to

believe that the motor carriers are only

requiring the RODS, but are not also

creating the WHD time record to

calculate the minimum wage required to

be paid. Motor carriers would have to

create a temporary time record system

adding appropriate location data for the

2 to 4 years until they install and begin

using EOBRs. Second, motor carriers

would have to scrap the temporary

system once they do install compliant

EOBRs. The FMCSA believes this is too

much burden and unnecessary

confusion. It expects motor carriers and

drivers to understand and have the

ability to implement that temporary

system to be in compliance and then

scrap it. Third, Federal, State, and local

law enforcement would have to learn

how to interpret each carrier’s

temporary time record system for

roadside enforcement. Delays of freight

and passengers would probably result

when officers begin asking questions

that drivers could not answer. Officers

would begin contacting the motor

carriers directly for the answers before

allowing drivers to proceed. Fourth,

drivers, carriers, and officers know the

current RODS system and automatic onboard recording system to be able to

enforce the rules immediately.

Of course, those motor carriers that

have chosen to use current § 395.15

EOBRs may be able to begin using the

new recordkeeping rules on the 6-month

effective date, depending upon whether

their EOBRs are compliant with the

final rule (including the proposed

requirement to upgrade warning, sensor

failure, and edited data requirements).

As an alternative, for Type 1 and 2

drivers operating non-compliant EOBRs,

the FMCSA is considering a

requirement that motor carriers would

implement the proposed daily off-duty

limitation, but would delay

implementing the proposed on-duty

limitations for those Type 1 and 2

drivers. The motor carriers would have

to use the proposed off-duty limitation

(i.e., 10 hours) each day and record time

using RODS until all their CMVs were

compliant with the EOBR requirements.

Creating another split recordkeeping

situation within a carrier’s operation

would make compliance verification in

the field extremely difficult where a

driver may drive EOBR-compliant

CMVs some of the time and noncompliant CMVs at other times. In

particular, this alternative would focus

on the proposed 12-hour daily driving

limitation and possibly the current

weekly 60-hour and 70-hour limitations

for on-duty time, because of the

difficulty of verifying off-duty times

without EOBRs or with the existing

RODS. The agency is particularly

interested in comments concerning

these implementation options.

X. Additional Proceedings

The FMCSA will also hold seven

public hearings during the comment

period. The hearing locations will be

dispersed geographically around the

United States. The purpose of these

hearings will be to accept oral

comments from the public. A notice will

be published in the near future with the

dates, locations, and other particulars of

each hearing.

XI. Section-by-Section Evaluation

A. Conforming Amendments

Changes to other parts of the

regulations not contained in the revised

parts 394 and 395 are necessary to

conform them to the new requirements

in this proposal.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25583

1. The first deals with the extent to

which State laws and regulations

governing the operations of CMVs in

intrastate commerce may differ from the

FMCSRs without jeopardizing funds

authorized under the Motor Carrier

Safety Assistance Program.

Section 350.341 What Specific

Variances From the FMCSRs Are

Allowed for State Laws and Regulations

Governing Motor Carriers, CMV Drivers,

and CMVs Engaged in Intrastate

Commerce and Not Subject to Federal

Jurisdiction?

On April 16, 1992 (57 FR 13572, at

13580), the FHWA discussed how

section 4002(l) of the Intermodal

Surface Transportation Efficiency Act of

1991 required the FHWA to specify

tolerance guidelines and standards for

ensuring compatibility of intrastate

CMV safety laws and regulations with

the FMCSRs under the MCSAP. It has

always been the FHWA’s policy—and

now that of the FMCSA—to work

toward eventual uniformity of interstate

and intrastate laws and regulations

under the MCSAP.

This NPRM is based on numerous

research studies that have direct

applicability to all CMV drivers,

regardless of whether the driver

operates in interstate or intrastate

commerce. The FMCSA believes it

should remove any tolerance guidelines

that allow intrastate exceptions and

exemptions not based on applicable

science. As discussed previously in this

NPRM, if every CMV driver needs 7 to

8 hours of sleep each night and

additional time to attend to personal

hygiene, nutrition, and commuting time,

16 hours on duty as MCSAP currently

tolerates would not provide those

additional opportunities. The 12-hour

driving limit would also be removed

since that would become the new

maximum on-duty limit that includes

driving. The agency also believes it

must require States to adopt and enforce

the weekly off-duty period that includes

at least two midnight to 6:00 a.m.

periods to be consistent with the

research findings above. Therefore, all

States would be required to achieve full

compatibility for both intrastate and

interstate transportation within three

years after the effective date of the final

rule to this NPRM.

This section would remove the last

phrase from the second sentence of

paragraph (d) that reads ‘‘nor to the

extension of the mileage radius

exemption contained in 49 CFR

395.1(e), from 100 to 150 miles.’’ This

would conform the tolerance guidelines

to the proposed replacement of the 100

air-mile radius driver with Type 3, 4, or

5 drivers. Paragraph (e) would also be

removed.

2. The second conforming amendment

relates to the time off required to be

taken by a driver before returning from

operations excluded from regulation

under the ‘‘emergency exception’’

provision.

Section 390.23 Relief from Regulations

This section would be amended to

increase the minimum off-duty time

after emergencies from eight hours to

ten hours to conform with the new 10-

consecutive-hour minimum in this

proposal. It would also replace the

current ‘‘24-hour clock reset’’ provision

with the proposed minimum

requirement for two consecutive nights

off-duty, including the core sleep

periods from midnight to 6:00 a.m.,

before returning to normal driving

subject to the HOS rules. The rules also

would require the driver to begin at or

after 7:00 a.m. to be consistent with

proposed §§ 394.163 and 395.163.

The FMCSA would also make a

technical amendment by replacing the

term ‘‘Regional Director’’ wherever it is

found in §§ 390.23 and 390.25 with the

term ‘‘State Director.’’ The FHWA

reorganized its field offices in January

1999 while FMCSA was still a part of

the FHWA. The title of ‘‘Regional

Director’’ no longer exists. This action

will formally permit FMCSA State

Directors to declare and extend

Statewide emergencies under these two

sections. For emergencies that are of a

regional nature, several State Directors

may issue the same exemption.

B. Proposed Hours of Service Parts 394

and 395

The proposed rule would replace the

current part 395 with two parts, one

directed at the motor carrier and the

other, the driver. The numbered section

in each part correlates with the same

numbered section in the other part, so

long as they address the same subject

matter. The corresponding sections are

combined for purposes of this analysis,

and to avoid repetition.

Purposes, Standards, Penalties, and

Exemptions

Sections 394.101, 395.101 What Are

the Purpose and Standards of This Part?

These sections describe the purpose

of the rule. These would immediately

and clearly emphasize the need to use

well-rested, alert, and attentive drivers

by stressing off-duty time, daily and

weekly, to ensure drivers have an

opportunity to get sufficient, restorative

sleep. The lead section in both the

motor carrier and driver parts would fix

responsibilities to make sure this

happens.

These sections also clarify the

responsibilities and standards that

require sufficient off-duty time daily

and weekly to ensure drivers have an

opportunity to get sufficient, restorative

sleep, and that these responsibilities

reside with both drivers and motor

carriers. The rule would provide three

standards for motor carriers to achieve.

It also would have three things a motor

carrier should do as additional guiding

principles. The advisory items in

paragraph (d) have no regulatory effect,

but are standards of care to assist motor

carriers and drivers to operate CMVs

safely. The FMCSA believes it is

necessary to establish these guiding

principles so that the connection

between the rules and their objectives is

not lost, and the carriers and drivers are

reminded that their responsibility to

avoid the risks associated with driving

while fatigued is not limited to minimal

compliance with prescriptive rules.

Sections 394.103, 395.103 What Must I

Do To Enhance Driver Alertness?

These sections describe how motor

carriers and drivers should carry out

their respective responsibilities to

ensure that the drivers are alert and

otherwise fit to operate CMVs safely.

Drivers and motor carriers would be

responsible for ensuring that drivers

who have more than one job work no

more than 12 or 13 hours depending

upon the type of operation they work in.

These responsibilities would

incorporate the various interpretations

provided over the years concerning

drivers working for other motor carriers

and entities. The FMCSA does not

propose to extend this policy to

volunteer work or National Guard/

Reserve duty, such as drill weekends, or

to try to control other types of unpaid

activities (e.g., roofing a friend’s home,

painting the driver’s own house), which,

realistically, are beyond the agency’s

enforcement reach. The FMCSA,

however, believes drivers and motor

carriers must be aware that any type of

physical or mental exertion can produce

fatigue. Drivers and motor carriers

should take into account these other

types of fatigue-producing activities

when planning their off-duty periods so

that they ensure they protect highway

safety to the maximum extent possible.

The FMCSA’s goal is to ensure CMV

drivers are well-rested, alert, and

attentive while driving. CMV drivers

who work during off-duty periods

circumvent the purpose of the

regulations, create risks to highway

safety, and increase the chances of

fatigue-related crashes.

25584 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

Sections 394.105, 395.105 What Are

the Penalties for Failing To Comply

With This Part?

These sections describe the penalties

for motor carriers and drivers who fail

to comply with the requirements of

these parts. This provision is placed in

the beginning of the parts to advise

drivers and motor carriers that failure to

meet their responsibilities under the

regulations carries severe consequences.

Sections 394.107, 395.107 What

Definitions Apply to This Part?

These sections provide definitions

that are unique to these parts. They will

eventually be included in a part devoted

to definitions when the agency

completes the zerobase revision of the

FMCSRs.

The FMCSA would define an

automated time-record system. This

would be the equivalent of what is now

commonly known as the EOBR, but

would allow various technologies that

currently exist or may be developed,

providing they meet the performance

requirements of proposed part 394,

subpart C. Allowing new and alternative

technologies was the subject of an

interpretation published in the Federal

Register on April 6, 1998 (63 FR 16697),

authorizing a pilot demonstration

project for monitoring drivers’ HOS

using GPS technology. The definition

would be similar to the definition of

automatic on-board recording device

currently in § 395.2. The last two

sentences of the current definition

would be moved to subpart C, since

these are actually performance

requirements for a system.

The FMCSA would add definitions

for the new terms ‘‘off-duty time,’’

‘‘workday,’’ and ‘‘workweek,’’ modify

the definition of the term ‘‘on-duty

time,’’ and keep the definition of

‘‘driving time’’ from the current rule in

§ 395.2. Consistent with the overall

objectives of these parts, the FMCSA is

incorporating references to the

regulations of the WHD. The definition

of ‘‘off-duty time’’ would be similar to

the WHD’s definitions in Application of

Principles in 29 CFR 785.16, Off-duty,

§ 785.18 Rest, and § 785.19 Meal.

Similarly, off-duty time would be

required to last at least 30 minutes if it

is to be counted toward the required

accumulation, which is also consistent

with WHD’s definitions. Any time less

than 30 minutes would be considered

on-duty time because such short breaks

are insufficient to meet the need for

restorative rest. This is also similar to

the way WHD treats shorter periods for

minimum wage purposes.

The FMCSA definition of ‘‘on-duty

time’’ would be revised to make it

consistent with the term ‘‘hours

worked’’ as explained in the WHD’s

regulation at 29 CFR 785.7 Judicial

construction, referencing a series of U.S.

Supreme Court cases: Tennessee Coal,

Iron, and Railroad Co. v. Muscoda Local

No. 123, 321 U.S. 590 (1944), Armour &

Co. v. Wantock, 323 U.S. 126 (1944),

Skidmore v. Swift, 323 U.S. 134 (1944),

and Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680 (1946).

In consultations between the FMCSA

and the WHD, the WHD believes for

consistency of rule application, subject

motor carrier employers must ensure

that: (1) driver-employees must be

completely relieved from duty; (2) the

period must be long enough for the

employee to use the time effectively for

the driver’s own purposes; and (3) the

employee is told explicitly in advance

that the driver may leave the job and

that the driver will not have to

commence work until a definite,

specific hour has arrived. The WHD has

had recent minimum wage enforcement

cases involving motor carrier employers

failing to count on-duty waiting time

while drivers wait at shipper and

receiver locations as hours worked.

These definitions and the removal of the

duplicative recordkeeping systems

should end motor carriers failing to

properly count on-duty waiting time of

drivers.

The FMCSA would define the terms

‘‘workday’’ and ‘‘workweek’’ to be

compatible with the WHD’s definitions

of these terms in 29 CFR 516.2(a)(7).

The use of common terms and

definitions would allow time records

created by drivers and by motor carriers

to be used to comply with the

recordkeeping requirements of both the

FMCSA and the WHD. Records

currently created for FMCSA

compliance purposes use definitions

and interpretations created over the

years by the ICC, FHWA, and the

FMCSA; and they differ somewhat from

those used by the WHD. The differences

often create confusion for motor carriers

and drivers—and for officials from both

the FMCSA and the WHD—when it

comes to assessing a motor carrier’s

compliance with FMCSA and WHD

regulations.

Two key examples of potential

problem areas are the recording of duty

time to determine a motor carrier’s

compliance with the minimum-wage

provisions of the Fair Labor Standards

Act, and a motor carrier’s use of a WHD

time card to verify drivers’ entries on

their records of duty status entries.

Comparing separate records using the

two different sets of definitions may

make it appear the driver has a false

RODS under current part 395. In fact,

both sets of records may be accurate and

correct for their respective purposes.

The FMCSA’s regulations and

regulatory guidance have allowed

drivers to record some periods of time

during the workday as off-duty time.

However, the WHD requires the motor

carrier to record the same period as time

‘‘worked’’ and to compensate the driver

for that time.

In summary, the definitions the

FMCSA proposes to revise in this

section would make the FMCSA’s ‘‘onduty time’’ the equivalent of WHDrequired ‘‘paid work.’’ The FMCSA

would also revise its conditions

necessary for determining ‘‘off-duty’’

time so they would correspond to the

WHD’s definition. This change should

fix the problems described above,

reduce the need for regulatory

interpretation by tying into an

established body of WHD

interpretations, and provide clear

guidelines for motor carriers and the

FMCSA to make accurate

determinations of how many hours offduty the driver had prior to beginning

work.

Sections 394.109, 395.109 What Types

of Operations Are Exempt From the

Requirements of This Part?

These sections would only cover the

agricultural operations exempted by

Congress from hour limits under the

NHS Act. The NHS Act exempted

drivers transporting agricultural

commodities and farm suppliers from

the maximum driving time, maximum

duty time, and minimum off-duty time

limit provisions of the FMCSRs. This

provision covers only transportation of

agricultural commodities or farm

supplies for agricultural purposes, and

is limited to an area within a 100 airmile radius from the source of the

commodities or the distribution point

for the farm supplies. It must take place

only during the planting and harvesting

seasons in each State, as determined by

that State.

The FMCSA interprets the NHS Act

provision to exempt this class of carriers

and drivers from HOS restrictions in the

present part 395, but does not exempt

them from the general responsibilities

that ensure drivers obtain sufficient

restorative sleep and that prohibit ill

and drowsy, tired, or inattentive drivers

from continued driving. Consequently, a

note is provided in subsection (b) to that

effect.

Paragraph (c) of this section would

provide a new requirement for those

drivers who have been working under

the exemption regarding when they may

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25585

begin or resume services not subject to

the exemption. The FMCSA has

patterned this requirement after the

declared emergency exemption and

would allow drivers needing immediate

rest to obtain such rest. The motor

carrier would be required to provide at

least ten consecutive, uninterrupted

hours off duty, including the core sleep

period from midnight to 6:00 a.m.,

before requiring the driver to perform

non-exempt driving duties. This would

allow the driver to obtain at least one

night’s sleep to be fit and safe for the

next workday subject to this proposal. If

the driver has been in exempt

transportation service for more than five

consecutive days, the proposed rule

would require the driver be provided a

continuous off-duty period that includes

two consecutive midnight to 6:00 a.m.

periods. The driver could return to

service at 7:00 a.m. like all other drivers

required to take a ‘‘weekend’’ off duty

as required by proposed § 394.163. The

FMCSA believes the regulations have to

allow the driver a period of sleep time

necessary to restore any sleep debt the

driver may have accumulated while

providing the exempt transportation

services.

Paragraph (d) proposes definitions

limited to this section only, i.e., the

terms ‘‘agricultural commodities,’’

‘‘farm supplies,’’ and ‘‘source of the

commodities.’’ The NHS Act did not

provide definitions for these terms, and

the terms have sometimes been

confusing to the public and enforcement

officials. These narrowly defined terms

should limit the exemption to those

drivers and motor carriers that are

farmers having field crops and those

suppliers that provide farm supplies

directly to farmers.

Paragraph (e) provides clarification

that this exemption does not preempt

other Federal and State laws or

regulations. The exemption does not

exempt a motor carrier from the FLSA.

States are also free to restrict

agricultural operations to applicable

HOS regulations.

Implementation Schedule

Sections 394.111, 395.111 When Must

I Begin To Comply With the Rules in

This Part?

These sections would require the new

hourly limits to begin immediately on

the effective date of the final rule, 180

days after publication in the Federal

Register. All motor carrier operations

engaged in interstate commerce must

begin complying with the new hours of

rest and service requirements at that

time of the effective date of the final

rule; however, the agency is proposing

that the requirements for use of EOBRs

by Type 1 and 2 operations be phased

in over a period of 4 years after the

effective date of the final rule. The

largest motor carriers, i.e., those with

more than 50 power units, would have

to be in full compliance within two

years after the effective date; the

medium range, those with 20 to 50

power units, would have to reach full

compliance within 3 years; and the

small carriers, i.e., those with fewer

than 20 power units, could take 4 years

to come into full compliance. The

proposal defines full compliance as (1)

having fully operational automated time

record systems meeting the proposed

requirements installed, (2) the drivers

properly trained in their use, and (3) a

systematic monitoring program in place

and operational.

Until any Type 1 and 2 carrier

complies with the EOBR requirements,

that carrier must comply with the

recordkeeping rules that were in effect

immediately before the effective date of

the final rule. That means that motor

carriers in Type 1 and Type 2 operations

that do not have compliant EOBRs must

comply with the presently existing

requirements for daily records of duty

status in § 395.8 or § 395.15 automatic

on-board recording devices.

These transitional rules, i.e., the

existing § 395.8, will be set forth in the

codified CFR as published by the

Government Printing Office in smaller

type after an explanatory note of the

effective date of the new rules.

Types of Operations

Sections 394.121, 395.121 Are There

Different Rules For Different Types of

Operations?

These sections specify five different

types of motor carrier operations. For

each type of operation, the regulations

would require specific off-duty periods

during each workday and each

workweek. The FMCSA believes each

type of operation has characteristics that

reflect a different level of daily

management contact that corresponds to

more or less control or supervision over

the driver. The ability of management to

assess the alertness and attentiveness of

the driver is different in each type of

operation. As will be seen in later

sections, the proposed regulations

would specify different off-duty,

driving, and on-duty periods for each

type of operation, depending on the

fatigue-related crash history, amount of

driving, and the relative opportunity for

direct control or verifiability of the

driver’s adherence with rest period

requirements.

In Type 1 operations motor carriers

generally have less daily management

control over drivers than in any other

type of operation, although, because of

unique systems, some individual motor

carriers may exercise more control than

others. These drivers spend most of

their working time behind the wheel,

operate at all hours of the day and night

under a wide variety of conditions, and

are usually most lacking in off-duty time

for regular restorative sleep. Motor

carrier management should monitor

these drivers more closely as they have

a higher crash risk, as discussed earlier

in this NPRM in the ‘‘Safety Problem’’

and ‘‘Benefits’’ sections. Because of the

remoteness of their working locations,

however, these drivers generally do not

have much daily direct contact with

management. Based on the scientific

and experiential evidence, the FMCSA

believes EOBRs are the best way to

improve monitoring and ensure that

drivers follow the rules. While the new,

prescribed work/rest hours should go a

long way toward improving the drivers’

ability to obtain needed sleep, that

objective is only attainable if the rules

are followed.

These motor carriers would have to

ensure these devices and their

associated equipment, software, and, if

the motor carrier chooses, satellite

monitoring systems have been properly

installed. In addition, motor carriers

would need to ensure the devices,

systems, and software are maintained

according to the manufacturer’s

directions, as well as train drivers and

staff to use them. The costs are

somewhat mitigated by the growing

inclination toward investment in

electronic and other automated systems

that can be adapted to perform the

functions of the EOBRs. The agency

believes the costs would be justified by

improved regulatory compliance and

reduced crashes.

Type 1 carriers and drivers would be

able to use a flexible schedule allowing

an extra day of work in the first of two

workweeks, take a short ‘‘weekend,’’

and then conclude a shorter second

workweek with an extended ‘‘weekend’’

at home or other location. This 2-week

flexible alternative to the standard

workweek could be used to alleviate the

stress and other pressures caused by

compliance with the present 60- and 70-

hour limitations. Drivers often complain

that they ‘‘run out of hours’’ at remote

locations and are faced with the choice

of taking a long stressful off-duty period,

or breaking the rules. Many admit they

often choose to break the rules in those

circumstances. Rather than being forced

to take long breaks at remote,

inconvenient locations, these drivers

25586 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

could begin a return trip sooner or take

a longer break at locations more

conducive to regular, restorative sleep.

Type 2 operations are similar to those

of Type 1 except that the drivers are

away from their home base three or

fewer days at a time and thus are able

to sleep more often in a familiar home

or other desirable environment.

As described in the rule development

sections, drivers in Type 3 operations

also spend most of their on-duty time

driving, but their driving patterns are

different from the Type 1 and Type 2

drivers. They are generally local or

home-based, and their driving periods

are split into two parts, most often

separated by several hours.

Drivers in Type 4 operations work in

the geographic vicinity of their normal

work reporting location. They are

generally on regular schedules, and they

are not on duty more than 12

consecutive hours from the time they

report in until the time they are

released. Driving is a significant part of

their work (more than one-third of their

on-duty hours). Establishing this

category eliminates the need for the

several existing exemptions, including

the 100 air-mile radius exception

currently found in 49 CFR 395.1(e).

Drivers in Type 5 operations also

work in the vicinity of their home or

normal work reporting location. The

difference between a Type 4 and 5

operation is that in the latter category,

driving is usually incidental to the

primary occupation of the drivers. Type

5 drivers spend less than one-third of

their on-duty hours behind the steering

wheel. Type 5 operations might include

utility workers such as electrical, water,

natural gas, or communications lines

specialists; construction equipment

operators; environmental mitigation

specialists; oilfield service workers;

ground water well drilling workers;

operators of mobile medical equipment

providing community patient services;

and driver-salespeople. Establishing this

category eliminates the need for an array

of exemptions for these specialized

operations.

Sections 394.123, 395.123 How do I

determine Which Requirements Apply

to my Operations?

These sections would make it clear to

the motor carriers and drivers that they

must comply with the rules applicable

to the type of operation that best

describes their own. The actual facts

and circumstances at the time

compliance is required would

determine the appropriate category, but

carriers and drivers would not be liable

to penalty if they are complying in good

faith with requirements applicable to a

type of operation they reasonably

believed included their own.

Sections 394.125, 395.125 May I

Assign my Drivers to More Than One

Type Operation Within a Workweek?

These sections provide flexibility for

drivers and motor carriers to switch

between types of operations after the

drivers have accrued an appropriate

amount of off-duty time. For example, if

drivers who have been working in a

Type 5 operation for a workweek have

to be switched to a Type 4 operation,

they could do that after taking an offduty period that includes two

consecutive midnight to 6:00 a.m.

periods.

Fatigued Drivers

Sections 394.131, 395.131 What must I

do if my driver becomes impaired by

fatigue or illness?

These sections would require drivers

to cease driving when their ability is

impaired due to illness or fatigue. These

sections parallel the prohibition

contained in the current 49 CFR 392.3,

and we have added the prohibition that

motor carriers must not retaliate,

penalize, discipline, dismiss, or

otherwise discriminate against drivers

who exercise their obligations to stop

driving. Drivers would report violations

of this section to the U.S. Department of

Labor’s Occupational Safety and Health

Administration (OSHA), as required by

49 U.S.C. 31105 and OSHA’s

implementing regulations at 29 CFR part

1978 Rules for Implementing Section

405 of the Surface Transportation

Assistance Act of 1982 (STAA).

The OSHA has procedures

implementing the statutory provisions

for the handling of complaints of

discrimination made by drivers, or

persons acting on their behalf. The

rules, together with those set forth at 29

CFR part 18, specify the procedures for

submission of complaints under 49

U.S.C. 31105, investigations, issuance of

findings and preliminary orders,

objections, litigation before

administrative law judges, post-hearing

administrative review, withdrawals and

settlements, judicial review and

enforcement, and deferral to other

forums.

Generally, after considering all the

relevant information collected during an

investigation, OSHA will issue, within

60 days of the filing of the complaint,

written findings as to whether there is

reasonable cause to believe that the

motor carrier or others have

discriminated against the driver in

violation of 49 U.S.C. 31105. If OSHA

concludes that there is reasonable cause

to believe that a violation has occurred,

it will accompany its findings with a

preliminary order providing for relief

and will include, where appropriate, a

requirement that the motor carrier abate

the violation; reinstate the driver to his

or her former position, together with the

compensation (including back pay),

terms, conditions and privileges of the

driver’s employment; and payment of

compensatory damages. At the driver’s

request the order may also assess the

motor carrier for the driver’s costs and

expenses (including attorney’s fees)

reasonably incurred in pursuing the

complaint.

Daily Time

Sections 394.141, 395.141 How Many

Consecutive Hours Must my Drivers

Remain Off-Duty Before Beginning Each

Workday?

These sections specify the minimum

number of consecutive hours drivers in

each type of operation must have off to

obtain restorative sleep. Only Type 1

team drivers would be allowed to split

their off-duty time into two sleeper

berth periods. This would allow one

member of the team to continue to drive

while the other sleeps in the berth. Solo

drivers would be prohibited from

splitting their sleep period. The Expert

Panel recommended that until there is

more definitive information available on

the relative quality of sleeper berth

sleep, drivers using sleeper berths

should be allowed greater opportunity

to obtain additional rest. The panel

found that:

Rest or sleep acquired in a sleeper berth is

not equivalent to rest or sleep in a bed

(Mackie and Miller, 1978; Williamson et al.,

1992; Neale et al., 1998). Hertz (1988)

reported that drivers using sleeper berths had

a higher crash risk than drivers obtaining

sleep in a bed. Mackie and Miller (1978)

found that drivers using sleeper berths

showed earlier signs of performance

decrement and earlier signs of fatigue,

compared to drivers sleeping in a bed. The

circumstances surrounding sleeper berth use,

e.g., typically, split sleep periods, vehicle

motion, highway and/or truck stop noise, and

other conditions associated with sleeper

berth use, are disruptive of restorative sleep.

It is assumed, but not documented, that sleep

acquired in a sleeper berth while the vehicle

is in motion (i.e., while another driver is

driving) is not so restorative as sleeper berth

sleep in a stationary vehicle. However, both

have been reported to be less restful. Single

drivers who use a sleeper berth report that

they are not able to sleep well because of

concerns for their personal safety (Neale et

al., 1998)

Team drivers, like other drivers, must be

limited to 12 hours on duty during any 24-

hour period, with 12 hours off duty. The offduty time should include an uninterrupted

time period of at least 7 hours to allow for

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25587

6 hours of continuous sleep, with another

period of at least 2 hours for sleep. There

should also be another 3 hours for other

activities.

Although the Panel was not able to

quantify the difference between sleeper berth

sleep and sleep acquired in the home, there

must be recognition of the difference in

quality of sleep in a sleeper berth compared

to sleep acquired under more normal

circumstances. The practical and economic

limitations on sleeper berth use restrictions

are acknowledged by the Panel.

The FMCSA is proposing to increase

the current minimum sleeper-berth

period (2 hours) to five hours to provide

the drivers a better opportunity to

obtain restorative sleep. To obtain the

minimum 10 hours off duty for drivers

in type 1 operations under this

proposal, team drivers must split their

time into two periods of at least 5 hours

each. Of course, these drivers could also

each sleep 10 consecutive hours in the

sleeper berth while the CMV is moving,

though the driving member would be

limited by the additional 2-hour rest,

nap, and meal breaks and the on-duty

time limitations.

Although the NTSB and others

recommend the removal of the sleeper

berth exception, the FMCSA believes

such a decision would be premature.

The marine industry, for example, has

an international treaty requirement for

10 hours of rest daily, which may be

broken into two periods where one must

be at least 6 consecutive hours. This is

similar to the sleeper berth practice that

has evolved in the trucking industry.

The FMCSA does not believe the

evidence in support of those

recommendations is sufficient to

warrant that step. The FMCSA has a

research study underway on sleeperberth use and the quality and quantity

of restorative sleep drivers obtain in

these berths while the CMV is traveling

on the road at highway speeds. The

agency’s position will be reevaluated

when the results of the study are

available.

Sections 394.143, 395.143 What Are

the Consequences of Interrupting a

Driver’s Minimum Consecutive Off-Duty

Hours?

These sections would provide that

motor carriers that interrupt a driver’s

off-duty period would have to ‘‘restart

the clock’’ with respect to that driver’s

consecutive off-duty time. This

provision would also apply to team

drivers using the sleeper berth

exception so that motor carriers cannot

disturb the sleeping driver.

Drivers frequently complain that

motor carriers call them at any hour of

the day and night, frequently

interrupting their sleep. Bonnet (1994)

notes that the continuity of sleep is

integral to its quality: ‘‘Evidence has

begun to demonstrate that sleep is a

time-based cumulative process, and that

frequent awakenings can slow or stop

that process . . .’’ Bonnet’s research

shows that drivers who are awakened

during their principal sleep period are

more likely to have reduced alertness.

The WHD regulations at 29 CFR

§ 785.22 Duty of 24 hours or more also

address interruptions of sleep in

paragraph (b) of that section, stating that

if the sleeping period is interrupted by

a call to duty, the interruption must be

counted as hours worked. If the period

is interrupted to such an extent that the

employee cannot get a reasonable

night’s sleep, the entire period must be

counted. For enforcement purposes, the

WHD divisions have adopted the rule

that if the employee cannot get at least

5 hours’ sleep during the scheduled

period the entire time is working time.

(See Eustice v. Federal Cartridge Corp.,

66 F. Supp. 55 (D. Minn. 1946).) These

sections therefore make it very costly for

motor carriers to interrupt drivers’ offduty hours.

Sections 394.145, 395.145 Must I

Allow My Drivers Additional Off-Duty

Time After They Begin Work?

These sections would require motor

carriers to provide time for Types 1, 2,

and 5 drivers to take at least two offduty hours each workday to rest and

nap, at the driver’s discretion. The 2-

hour period could also be used to meet

personal necessities or to perform

personal errands.

The driver may use the additional offduty time during the driving shift or at

the end of the workday. The FMCSA

believes most drivers would use the

time throughout the day to stop at truck

stops and other rest areas for meals,

naps and breaks, and to contact their

families. These sections would also

allow drivers to take rest breaks,

including naps, while at the driving

controls of the motor vehicle as long as

it is properly parked and secured.

Sections 394.147, 395.147 How Long

May Drivers Be on Duty?

These sections set forth maximum

amounts of on-duty time for drivers in

each of the five types of operations. The

general on-duty limit is 12 hours per

day, or 13 in the case of Type 5 drivers.

Drivers in Type 3 and 4 operations

would usually drive considerably less

than 12 hours in any duty period,

because of the amount of non-driving

work typically required in these types of

operations. Drivers in Type 3 operations

also would be off duty at least 3 hours

in between the two on-duty periods.

Sections 394.149, 395.149 How Long

May Drivers Drive Motor Vehicles?

These sections set forth maximum

amounts of driving time for drivers in

each of the five types of operations. The

general driving limit is the same as the

on-duty time, i.e., 12 hours per

workday, or, in the case of Type 5

drivers, 5 hours. The FMCSA defined a

Type 5 driver to be one who drives

CMVs only incidental to primary work

responsibilities, e.g., repairman,

salesman, carpenter, plumber, etc. In

addition, the rule would limit the

drivers’ exposure to increased highway

safety risks that could result from

conceivably driving a CMV in the 14th

to 15th consecutive hour after beginning

work. Since the research indicates

increased safety risks after 12 hours on

duty in almost every occupation, the

FMCSA believes that allowing drivers

who primarily do work other than

driving should be limited in their

driving tasks to protect the public.

Weekly Time

Sections 394.161, 395.161 How Many

Consecutive Off-Duty Hours Per

Workweek Must I Give My Drivers?

These sections describe the

‘‘weekend’’ requirement. These

minimum off-duty periods were

designed to afford the drivers the

opportunity for restorative sleep based

on the amount of driving and other

work they perform. The ‘‘weekend’’ may

be longer depending on when the motor

carrier releases the driver from duty on

the last workday of the workweek. The

rules would allow drivers to take as few

as 32 consecutive hours off duty on a

‘‘weekend,’’ provided the time period

includes two consecutive midnight to

6:00 a.m. periods to obtain restorative

sleep and the driver is released from

work at exactly 11:00 p.m. on the last

workday of the workweek.

As the ICC found in 1937,

[A]llowance must be made for eating,

dressing, getting to and from work, and the

enjoyment of the ordinary recreations’’ (3

M.C.C. 665, at 673). Logically, a driver cannot

get full advantage of the minimum two

consecutive midnight to 6:00 a.m. sleep

periods if he/she is released at or just before

midnight, and required to return to work at

or just after 6:00 a.m. The FMCSA has chosen

11:00 p.m. as the latest time drivers could get

off work and still get to sleep for the first full

midnight to 6:00 a.m. period on the first

night of a ‘‘weekend.’’ Likewise, the agency

has chosen 7:00 a.m. as the earliest time

drivers could start a new workweek and still

sleep the last full midnight to 6:00 a.m.

period on the last night of a ‘‘weekend.’’

Generally, drivers would be off duty

for more than the minimum 32

consecutive hours, but fewer than the 64

25588 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

consecutive hours in a ‘‘normal

weekend’’ (4:00 p.m. Friday to 8:00 a.m.

Monday). A driver completing a

workweek at 11:00 p.m., for example,

could take only the minimum 32 hours

before beginning the next workweek. A

driver completing a workweek at 11:10

p.m., though, would have to be off duty

for at least 55 hours, 50 minutes before

beginning the next workweek since the

driver was released after 11:00 p.m. and

would not have the full ‘‘allowance . .

. for eating, dressing, getting to and from

work, and the enjoyment of the ordinary

recreations.’’

The FMCSA is not suggesting that

motor carriers provide only 32 hours

that include the two consecutive

midnight to 6:00 a.m. periods, or up to

55 hours 59 minutes off duty at the end

of a workweek. The off-duty period that

includes two consecutive midnight to

6:00 a.m. periods is only a minimum.

The ICC made the mistake of assuming

motor carriers would not ‘‘believe that

the maximums herein prescribed will

become either the minimum or the

standard of hours’ (3 M.C.C. 665, at

686). The FMCSA expects motor carriers

to provide, and drivers to take, as much

time as necessary to recover from any

sleep debts and other conditions

resulting from cumulative weekly

fatigue.

The rules would allow Type 1 drivers

the option to take a short ‘‘weekend’’ at

the end of one extended on-duty

workweek and a long ‘‘weekend’’ at the

end of the second reduced on-duty

workweek. For example, a driver could

take the minimum 32 consecutive hours

off duty at the end of the first

workweek, if released from duty at

exactly 11:00 p.m. The driver could

work during this workweek for up to 72

hours. The second consecutive

workweek, though, would average the

off-duty and on-duty time periods over

the two workweeks. This would require

the driver to only work for up to 48

hours during the second workweek and

take at least 80 consecutive hours off

duty at the end of the second workweek,

thus producing an average of 60 or

fewer hours on duty per workweek and

at least 56 hours off-duty hours per

‘‘weekend.’’

The FMCSA believes that the 1962

oilfield exception and the 1995 NHS Act

exemptions for utility and construction

motor carrier operations, allowing a

restart of the cumulative duty period

after 24 hours off duty, are inconsistent

with the modern understanding of

fatigue and should be modified.

Therefore, the proposed rule would

require those drivers to obtain at least

two consecutive midnight to 6:00 a.m.

periods, which could be as few as 32

consecutive hours off duty. This would

allow those drivers to get the restorative

sleep the research suggests they need to

ensure their own safety and that of

others who also use the highways. It

would also accommodate the needs of

those industries presently using the 24-

hour restart provision. In practice, the

24-hour period translates into a full day

off, meaning two sleep periods. Those

exemptions would henceforth be subject

to the weekend requirements of these

sections.

The FMCSA is proposing to provide

a specific exception for the groundwater

well drilling industry. Paragraph (c) of

§ 345 of the NHS Act (109 Stat. 613)

provided a specific prohibition that

prohibits this NPRM and any other

NPRM from determining whether

granting the groundwater well drilling

exception is not in the public interest

and would have a significant adverse

impact on the safety of CMVs. The

FMCSA cannot propose to modify the

24-hour restart exception for this

industry segment, even though it is

inconsistent with the modern

understanding of fatigue.

Sections 394.163, 395.163 When May

My Drivers Start Working After Being

Off Duty at the End of a Workweek?

This is a table showing the time of

day a driver may begin a new workweek

after taking the required 32 or more

consecutive hours off duty. The starting

times for the new workweek are

calculated based upon the particular

time of day the driver was released from

duty at the end of the previous

workweek. As was discussed in the

section above headed §§ 394.161,

395.161 How many consecutive off-duty

hours per workweek must I give my

drivers?, the FMCSA has determined

that the driver must be provided an offduty period long enough to obtain at

least two consecutive core sleep periods

including the hours between midnight

and 6:00 a.m. for the purpose of

obtaining restorative sleep in each of the

two nights needed and an additional

‘‘allowance . . . for eating, dressing,

getting to and from work, and the

enjoyment of the ordinary recreations’’

at the beginning and end of each such

period.

Sections 394.165, 395.165 How Many

Hours per Week May My Drivers Work?

These sections would limit on-duty

time up to 60 hours in a workweek for

Types 1, 2, 3, and 4 drivers and 78

hours for Type 5 drivers. This would

basically allow each type of driver to

work their maximum daily limit and

accumulate their maximum total within

a 5- or 6-consecutive-day period,

depending on the exact time the driver

begins duty and is released from duty

each workweek.

Motor carriers and drivers involved in

nighttime operations would only be able

to fit a 5-full-day schedule into the

limits proposed in this NPRM. These

daily and weekly limitations together

should compensate the drivers for any

accumulated sleep debt, especially for

drivers who operate CMVs consistently

between midnight and 6:00 a.m. For

example, generally, Type 2 less-thantruckload drivers are the greatest

proportion of all drivers who operate

CMVs consistently between midnight

and 6:00 a.m. See the discussion above

under VII. I. 5. Qualitative Impacts,

Weekly Scheduling. Table 20 shows a

typical Type 2 less-than-truckload

driver’s off-duty and on-duty daily

cycles and the off-duty and on-duty

hours the driver would accumulate

throughout a typical workweek. The

table shows that the requirement for a

minimum ‘‘weekend’’ off-duty period

consisting of two midnight to 6:00 a.m.

periods, the daily off-duty minimum

requirement, the daily on-duty

maximum limit, and a regular

workweek start time at 9:00 p.m. would

only allow the driver to work, including

driving, for up to 60 hours in a

workweek. Note the driver accumulates

the time between Monday night and

Saturday morning.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25589

TABLE 20—TYPICAL TYPE 2 DRIVER’S WORKWEEK

[Allowed to be on duty up to 12 hours and required to be off duty at least 12 hours daily. Motor carrier assigns driver to begin work at 9:00 p.m.

on Monday]

Description Time of day when occurs Cumulative

on-duty time

Cumulative

off-duty time

Workweek begins for a typical Type 2 driver ............................................ 9:00 p.m. Monday ........................... 0 0

12 hours on duty and took 2 additional hours off duty for rest and meal

breaks.

9:00 p.m. Monday to 11:00 a.m.

Tuesday.

12 2

Minimum 10 consecutive hours off duty .................................................... 11:00 a.m. Tuesday to 9:00 p.m.

Tuesday.

12 12

12 hours on duty and took 2 additional hours off duty ............................. 9:00 p.m. Tuesday to 11:00 a.m.

Wednesday.

24 14

Minimum 10 consecutive hours off duty .................................................... 11:00 a.m. Wednesday to 9:00 p.m.

Wednesday.

24 24

12 hours on duty and took 2 additional hours off duty ............................. 9:00 p.m. Wednesday to 11:00 a.m.

Thursday.

36 28

Minimum 10 consecutive hours off duty .................................................... 11:00 a.m. Thursday to 9:00 p.m.

Thursday.

36 36

12 hours on duty and took 2 additional hours off duty ............................. 9:00 p.m. Thursday to 11:00 a.m.

Friday.

48 38

Minimum 10 consecutive hours off duty .................................................... 11:00 a.m. Friday to 9:00 p.m. Friday.48 48

12 hours on duty and took 2 additional hours off duty and begins

‘‘weekend’’.

9:00 p.m. Friday to 11:00 a.m. Saturday.60 50

Off-duty time has now consisted of two consecutive midnight to 6:00

a.m. periods.

11:00 a.m. Saturday to 7:00 a.m.

Monday.

60 94

End of typical workweek ............................................................................ 9:00 p.m. Monday ........................... 60 108

Type 5 drivers, of course, have

limited exposure on the highways

because of the nature of their work. To

emphasize the uniqueness of this

category, the proposal limits driving

time to a maximum of 5 hours per day.

These drivers have one of the lowest

estimated fatigue-related crash rates the

agency found for the last five-year

period for which data were available.

Type 5 drivers are subject to a

‘‘weekend’’ requirement that includes

two consecutive midnight to 6:00 a.m.

periods that the research indicates are

necessary to overcome any sleep debt

accumulated during the previous 5 to 6

consecutive days of work. Thus, these

drivers would be required to take the

minimum 32 to 56 consecutive hours off

duty like all other drivers. The FMCSA

believes these factors compensate for

allowing Type 5 drivers to work one

extra hour per day and one extra day per

week up to 78 hours in a workweek.

Table 21, similar to table 20, shows a

typical driver-salesperson’s, utility

service CMV driver’s, or other Type 5

driver’s off-duty and on-duty daily

cycles and the off-duty and on-duty

hours these drivers would accumulate

throughout a typical workweek. Table

21, like table 20, shows that the

requirement for a minimum ‘‘weekend’’

off-duty period consisting of two

midnight to 6:00 a.m. periods, the daily

off-duty minimum requirement, the

daily on-duty maximum limit, and a

regular workweek start time at 7:00 a.m.

would only allow the driver to work,

including driving, for the Type 5

driver’s applicable 78 hours in a

workweek. Note the driver accumulates

the time between Monday morning and

Saturday evening.

TABLE 21—TYPICAL TYPE 5 DRIVER’S WORKWEEK

[Allowed to be on duty up to 13 hours and required to be off duty at least 11 hours daily. Motor carrier assigns driver to begin work at 7:00 a.m.

on Monday.]

Description Time of day when occurs Cumulative

on-duty time

Cumulative

off-duty time

Workweek begins for a typical Type 5 driver ............................................ 7:00 a.m. Monday ........................... 0 0

13 hours on duty and took 2 additional hours off duty for rest and meal

breaks.

7:00 a.m. Monday to 10:00 p.m.

Monday.

13 2

Minimum 9 consecutive hours off duty ...................................................... 10:00 p.m. Monday to 7:00 a.m.

Tuesday.

13 11

13 hours on duty and took 2 additional hours off duty ............................. 7:00 a.m. Tuesday to 10:00 p.m.

Tuesday.

26 13

Minimum 9 consecutive hours off duty ...................................................... 10:00 p.m. Tuesday to 7:00 a.m.

Wednesday.

26 22

13 hours on duty and took 2 additional hours off duty ............................. 7:00 a.m. Wednesday to 10:00 p.m.

Wednesday.

39 24

Minimum 9 consecutive hours off duty ...................................................... 10:00 p.m. Wednesday to 7:00 a.m.

Thursday.

39 33

13 hours on duty and took 2 additional hours off duty ............................. 7:00 a.m. Thursday to 10:00 p.m.

Thursday.

52 35

Minimum 9 consecutive hours off duty ...................................................... 10:00 p.m. Thursday to 7:00 a.m.

Friday.

52 44

13 hours on duty and took 2 additional hours off duty ............................. 7:00 a.m. Friday to 10:00 p.m. Friday.65 46

25590 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

TABLE 21—TYPICAL TYPE 5 DRIVER’S WORKWEEK—Continued

[Allowed to be on duty up to 13 hours and required to be off duty at least 11 hours daily. Motor carrier assigns driver to begin work at 7:00 a.m.

on Monday.]

Description Time of day when occurs Cumulative

on-duty time

Cumulative

off-duty time

Minimum 9 consecutive hours off duty ...................................................... 10:00 p.m. Friday to 7:00 a.m. Saturday.65 55

13 hours on duty and took 2 additional hours off duty and begins

‘‘weekend’’.

7:00 a.m. Saturday to 10:00 p.m.

Saturday.

78 57

Off-duty time has now consisted of two consecutive midnight to 6:00

a.m. periods and end of typical workweek.

10:00 p.m. Saturday to 7:00 a.m.

Monday.

78 90

Summary of Hours Limits

Sections 394.167, 395.167 Can These

Requirements Be Summarized in a

Chart?

The preceding sections would be

summarized in a chart for easier

understanding and to make clear the

differences between the limits for

drivers in each type of operation. A week consists of 168 consecutive

hours. If a Type 1 driver starts at 7:00

a.m. Monday and works 12 hours over

a 14-consecutive-hour period for each of

five work days, the driver would get off

duty at 9:00 p.m. Friday and have to

have a minimum of 34 consecutive

hours off duty for the ‘‘weekend.’’ The

rules would allow flexible start times

during the workweek, but §§ 394.163

and 395.163 would require the driver to

be off duty by 11:00 p.m. Saturday in

order to have a consistent start time for

the following Monday morning.

Otherwise, the driver may not begin

work for the following workweek until

7:00 a.m. Tuesday.

Loading and Unloading Practices

Sections 394.169, 395.169 What Are

the Loading and Unloading

Responsibilities of Drivers?

These sections would require the

motor carrier to advise its drivers about

who is responsible for loading and

unloading services. The services of

loading and unloading cargo by laborers

are known in the motor carrier industry

as ‘‘lumping.’’ The Motor Carrier Act of

1980, Public Law 96–296, July 1, 1980,

which addressed the issue of lumping,

prohibits extortion and coercion to load

and unload trucks (49 U.S.C. 14103).

Also see H. Rpt. 96–1069, 96th Cong.,

2nd Sess., June 3, 1980, pages 30 and

31, about the intent of Congress with

respect to loading and unloading trucks. The proposed provisions are intended

to answer the frequent complaints the

FHWA had received, and the FMCSA

now receives, from drivers of for-hire

motor carriers about lumping and other

pressures on drivers to perform

unexpected and unscheduled loading

and unloading operations. Lessors’

drivers (owner-operators, independent

contractors, employees, and others)

often are not informed about who is

responsible for loading and unloading

services. It is often the lessor’s drivers

who are responsible for loading and

unloading cargo as a part of the lease

contract. The lessee (motor carrier) or

lessor often fails to inform the driver of

such responsibilities or the driver was

informed at one time but fails to

remember the information.

The FMCSA requires certain for-hire

motor carriers to place specific items in

every written lease. A lease is defined

in 49 CFR 376.2(e) as a ‘‘contract or

arrangement in which the owner grants

the use of equipment, with or without

driver, for a specified period to an

authorized carrier for use in the

regulated transportation of property, in

exchange for compensation.’’ Section

376.12(e) requires motor carriers

executing written leases to ‘‘clearly

specify who is responsible for loading

and unloading the property onto and

from the motor vehicle, and the

compensation, if any, to be paid for the

service.’’

The FMCSA believes that motor

carriers must do a better job of

communicating to all their drivers their

policies regarding loading and

unloading services; providing for

loading and unloading in their contracts

with shippers, receivers, or brokers; and

enforcing those provisions when the

loading and unloading occurs. Many drivers often confuse lumping

with specific requirements to sort or

segregate deliveries in receiverdemanded configurations or patterns,

including re-palletizing, and restrictions

on using loading docks, pallet jacks,

fork lifts, or other package handling

equipment. These services are not

generally considered lumping. These

services do, however, lead to

unanticipated delays and extend the

driver’s workday. Motor carriers should

clarify these issues for all drivers before

trips are scheduled so that sufficient

time and energy may be reserved to

avoid unforeseen fatigue-causing delays

or exertions.

This section specifies that a driver’s

time performing loading and unloading

services is on-duty time for purposes of

this proposed rule.

Since a disclosure to a third party is

considered a collection of information

under 5 CFR 1320.3(c), the FMCSA is

requesting the OMB to assign this

information collection requirement the

number 2126–0001.

Subpart B—Records and Reports

Time Records To Be Prepared and Kept

By Motor Carriers/Drivers

Sections 394.201, 395.201 What

Records Must I Create Showing That My

Drivers Comply With the Off-Duty and

On-Duty Requirements?

Motor carriers must require drivers in

Type 1 or 2 operations to use, operate,

and accurately record time in EOBR

automated time record systems; and the

drivers must carry those records on

CMVs. This is not a requirement for

drivers in Types 3, 4, or 5 operations,

though EOBRs would be allowed for

them. The rationale for not requiring

EOBRs for Types 3, 4, and 5 drivers

follows the rationale for the current 49

CFR 395.1(e), except that the

requirement that the driver operate

within a 100 air-mile radius of the

normal work reporting location and be

released within 12 consecutive hours, is

modified to include only the 12-hourrelease provision.

The current § 395.1(e) has its roots

dating back to 1940. On May 29, 1940,

the American Transit Association filed

a petition ‘‘so as to relieve drivers

engaged in certain types of operations

from the requirement to prepare a daily’’

record of duty status. In 24 MCC 413, at

414, July 30, 1940, the ICC stated it:

appreciate[s] that it is difficult and

burdensome for a driver of such a vehicle to

note accurately the many stops made and the

times of such stops. It frequently happens

that in the course of the day such a motor

vehicle will cross and recross a State line

many times, and it is likewise burdensome to

require the driver to note the time of such

crossing.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25591

Our purpose in requiring the maintenance

of a driver’s log was twofold. We desired a

standardized type of record to be maintained

of the daily driving time and the weekly

hours on duty which would be in the

possession of each driver and which would

enable a highway patrolman or other

enforcement officer to determine

immediately upon the stopping of a vehicle

whether the driver had been on duty or was

driving in violation of our regulations. We

recognize that highway patrolmen and other

enforcement officers seldom stop passenger

busses operating wholly in urban and

suburban areas such as those under

discussion here. Our other purpose in

requiring the maintenance of a driver’s log

was to provide a record from which our field

representatives could readily determine

whether or not the carriers are complying

with the regulations. Because of the records

other than the log maintained by the carriers

engaged in this type of transportation and

because, as stated, highway patrolmen and

other enforcement officers rarely stop busses

operating in urban and suburban territories,

the maintenance of a driver’s log is not

necessary for the purposes which we had in

mind.

The ICC alluded to ‘‘the records other

than the log maintained by the carriers.’’

The FMCSA believes that one could

deduce that the ICC was writing about

the WHD time records. The WHD

published on October 22, 1938 (3 FR

2533), and made effective on the date of

publication, the requirements in 29 CFR

part 516 for employers, including motor

carriers, to record information for the

FLSA’s Section 11. The original

exemption had a limit of 35 miles from

the garage or terminal and the carrier

had to maintain records showing the

total number of hours of driving per

day, the total number of hours on duty

per day, and the total number of hours

on duty per week of each driver.

In 54 MCC 337, at 356 (April 14,

1952), the ICC expanded the distance

limit to a 50-mile radius and placed a

further condition that no such driver

taking the exception remains on duty for

more than 12 hours in any period of 24

consecutive hours, though the agency

did not explain the rationale for the

added condition.

On October 13, 1977 (42 FR 55109),

the FHWA proposed expanding the

distance limit to a 100-mile radius

because of the numerous changes

affecting pickup-and-delivery

operations that had occurred. Among

the obvious changes cited were: The

improvement and increase in the

number of limited access highways;

improved highway designs; the

expansion of most metropolitan areas;

and improved truck and bus designs.

The proposal also stated that ‘‘in order

to insure the removal of fatigued drivers

from highly congested city highways

without restricting economy of

operations, a limitation of a 12

consecutive hour work period is being

proposed.’’

The details of the recordkeeping

requirements for Type 3, 4, and 5

drivers would be similar to the WHD

regulation at 29 CFR 516.1(a). Motor

carriers would be allowed to use any

forms or records so long as the forms or

records contain the necessary

information.

As discussed previously, the FMCSA

intends to use recordkeeping

requirements as close as practical to

those used by the WHD under 29 CFR

516.2(a)(1), (2), (5), and (7), and

§ 516.6(a)(1) to avoid duplication. These

proposed regulations would be used by

all motor carriers, including motor

carriers employing owner-operator

drivers and independent contractors,

not just driver-employees. The FMCSA,

like the WHD, would not prohibit motor

carriers from requiring Type 3, 4, and 5

drivers to prepare these records for the

motor carriers. Motor carriers would be

responsible for ensuring the records are

produced, that the records are accurate,

and that they are made available for

inspection by authorized FMCSA and

State and local enforcement officials.

All motor carriers and drivers would

be required to complete records only for

workdays drivers perform any on-duty

function. Motor carriers would be

responsible for ensuring drivers who

work for non-motor carrier employers

do not exceed the on-duty limits and

have at least the required off-duty hours

prior to reporting for duty to drive

CMVs. The records of full off-duty days

for any type of driver would not have

to be prepared by any driver or motor

carrier, except at the discretion of the

motor carrier. The FMCSA would

assume, as the WHD does, that missing

records denote days off duty, unless the

agency has or discovers evidence

showing a driver worked on a presumed

day off.

The FMCSA is requesting the OMB to

assign the general information

collection requirements of this section

for all driver types the number 1215–

0017 (the number assigned to 29 CFR

part 516 records). The FMCSA is

requesting the OMB to assign the

additional required EOBR information

collection requirements of this section

for Type 1 and 2 drivers the number

2126–0001 (the current OMB number

for 49 CFR part 395 records).

Sections 394.203, 395.203 Must Time

Records Be Prepared in a Particular

Order or on Particular Forms?

All records would be prepared as

daily records, although the simpler

systems allowed by WHD’s regulation at

29 CFR 516.1(a) under OMB number

1217–0017 could be used. Motor

carriers and drivers in Type 1 and 2

operations would be required to use

EOBRs to record time worked and offduty. The WHD does not require that

employers prepare records in any

particular order, form, or manner. The

FMCSA would adopt this practice for all

motor carriers using Type 3, 4, and 5

drivers.

Section 395.205 What Are My

Responsibilities If I Use an Automatic

Time Record System to Record My Duty

Status?

This section would explain the Type

1 and 2 driver’s responsibilities for

preparing the required automated time

records. The responsibilities would

include: (1) accurately recording all offduty, driving, and on-duty time,

including daily starting and ending

times for work periods and the place

where work changes (i.e., town and

State, town and Province, or location

codes for such places), intervening

times and locations during each work

period when business is transacted (e.g.,

picking up freight or passengers, fueling

stops, deliveries, roadside inspections),

intervening times and locations during

each work period when the required 2

hours off duty for rest and meals are

taken; (2) system operational

knowledge, following instructions of

carriers and system manufacturers; (3)

submission of records and documents

obtained during each trip; and (4)

production of records upon the request

of a special agent of the FMCSA or any

authorized law enforcement official.

If the system fails, the drivers would

have to reconstruct any defective

records for the current day and the

previous 7 days, using the format

required by carriers; prepare written

records of all subsequent time periods

until the system is operational, using

the format required by the carrier; and

produce the current records upon the

request of a special agent of the FMCSA

or any authorized law enforcement

official.

The FMCSA would request the OMB

to assign the information collection

requirements of this section the number

2126–0001 for requiring EOBRs since

they are not required by the WHD. The

FMCSA has submitted new time and

cost estimates associated with this

information collection based upon the

new requirements that are not already

covered by the WHD regulations.

25592 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

Time Record Maintenance and

Preservation

Section 394.207 What Time Records

Must I Preserve? For How Long?

This section is directed to the motor

carrier. Paragraphs (a), (b), and (c) of

these sections are similar to 29 CFR

516.6(a)(1), (b), and (c2).

Motor carriers must maintain records

for two years to comply with WHD

requirements. The FMCSA’s current

regulations require motor carriers to

maintain these records for six months,

and the FMCSA is proposing to

maintain the retention period at six

months. The FHWA has generally

focused its compliance reviews of motor

carriers on the last 90 to 120 days before

the time of the investigation. The

FMCSA has continued this practice. In

most cases, this period is long enough

to show a continuing pattern of

behavior. This factor is important

because it precludes a motor carrier’s

defense that previously discovered

violations have ceased.

The FMCSA, however, would reserve

the right to inspect all records the WHD

requires motor carriers to maintain for

the two-year period. If a motor carrier

uses drivers who are not subject to WHD

regulations, the motor carrier may not

be required to maintain the records past

the FMCSA retention period.

Monitoring Driver Time

Section 394.209 Must I Monitor My

Drivers’ Compliance With This Part and

Part 395?

This section is directed to the motor

carrier. It would set forth the

requirements for motor carriers to

systematically monitor driver

compliance with the HOS requirements.

This would make explicit the FMCSA’s

current implied requirement, that motor

carriers monitor their drivers’ HOS to

ensure the drivers are fit and safe to

operate CMVs. The FMCSA would

require motor carriers to verify the

accuracy of the drivers’ on-duty and offduty times and also monitor the records

for violations.

Motor carriers should monitor

continuously to discover a driver’s HOS

and off-duty hours for the past workday

and workweek. Motor carriers that do so

are able to calculate the driver’s

available hours for that workday and

subsequent workdays before dispatching

that driver.

Inspection of Records

Sections 394.211, 395.211 Must I

Present My Equipment and Records If

an FMCSA Special Agent Asks To

Inspect Them?

These sections describe the

obligations of motor carriers and drivers

to provide access to equipment and

records for inspection. Upon request by

an FMCSA representative who displays

proper credentials as a special agent,

motor carriers and drivers must permit

the inspection of all lands, buildings,

equipment, and records, and the

copying of records. Many drivers have

inquired about State authorities’ right to

inspect equipment and records. State

and local officials should have

inspection authority similar to that of

the FMCSA.

Sections 394.213, 395.213 What

Records May Be Used To Determine My

Compliance With This Part?

These sections specify the FMCSA’s

intention to use any information,

whether or not in a motor carrier’s or

driver’s possession, to determine a

motor carrier’s and driver’s regulatory

compliance and verify the accuracy of

their records.

Sections 394.215, 395.215 Where Must

I Keep Records Available for Inspection?

These sections tell motor carriers and

drivers where to maintain time records:

for inspection purposes, on the CMV

and at the motor carrier’s principal

place of business or central

recordkeeping office. It also would

require motor carriers to ensure that

drivers in Type 1 and 2 operations

comply with § 395.215(a) (2) and (3) by

requiring the motor carrier to collect

and maintain the records required by

§ 394.207(b). These sections require

Type 1 and 2 motor carriers and drivers

to maintain time records and supporting

records in the CMV where they will be

available for inspection. Drivers in Type

3, 4, and 5 operations would not have

to comply with this requirement.

Subpart C—Automated Time Record

System Performance Standards

Section 394.301 What Standards Must

Automated Time Record System

Devices Meet?

Motor carriers required to use

automated time record systems would

have to ensure the systems meet certain

manufacturing design and performance

standards. These standards are similar

to the current § 395.15 standards,

though many of the prescriptive

requirements have been removed to

allow for innovative future technologies.

The automated time record system

would have to be integrally

synchronized with specific operations

of the commercial motor vehicle in

which it is installed, including

synchronized with engine use, road

speed, the date, and time of day. The

FMCSA would update the rule requiring

‘‘miles driven’’ by adding to it

‘‘kilometers or miles driven each day’’

as required by the Omnibus Trade and

Competitiveness Act of 1988 (Pub. L.

100’418, sec. 5164) which amended the

Metric Conversion Act of 1975. The

FMCSA would require automated time

record systems to be capable of

maintenance and calibration, be

tamperproof, and designed to prohibit

drivers from editing data.

The systems must also warn the

driver visually and/or audibly when the

systems cease to function or when they

identify sensor failures or data edited by

anyone when reproduced in printed

form. The systems must also permit

duty status to be updated only when the

commercial motor vehicle is at rest,

except when registering the time a

commercial motor vehicle crosses a

State, Provincial, or national boundary.

This would ensure that the driver’s

attention is on the road rather than

electronic devices within the CMV.

The information must be shown on a

chart, electronic display, or printout and

the system must allow the FMCSA and

authorized State or local officials to

check the driver’s daily duty at the

roadside.

Support systems used in conjunction

with automated time record systems at

a driver’s home terminal or the motor

carrier’s principal place of business

must be capable of providing the

FMCSA or authorized State or local

officials with summaries printed on

paper of an individual driver’s duty

records. The support systems must also

provide information concerning system

sensor failures and identification of

edited data.

The system on the CMV must

automatically record duty and

additional standard information as

follows ‘‘Off duty,’’ ‘‘Driving,’’ ‘‘On duty

not driving,’’ or equivalent codes for

these items; the date; total kilometers or

miles driven per day; truck, tractor,

coach, and trailer number(s); name of

motor carrier; and home terminal

address, including zip code; 24-hour

period starting time (e.g., midnight, 9:00

a.m., noon, 3:00 p.m.); name of codriver, if applicable; total hours on duty

per day; and the name or location code

of the city, town, or village, with State

or Provincial abbreviation where the

driver changes duty status (off duty, on

duty, driving). A list of location codes

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25593

2The Internal Revenue Code of 1954 was

replaced by the Tax Reform Act of 1986.

3Replaced by Public Law 97–470 (1983) the

Migrant and Seasonal Agricultural Worker

Protection Act (MSAWPA) (29 U.S.C. 1801 et seq.).

showing all possible location identifiers

must be available in the CMV and at the

motor carrier’s principal place of

business or central recordkeeping office.

An information packet containing the

following two items must also be on the

CMV: an instruction sheet describing in

detail how data may be stored and

retrieved from the system and a supply

of blank driver’s duty records sufficient

to record the driver’s duty status and

other related information for the

duration of the current trip.

Automated time record systems on

CMVs with electronic displays must

have the capability to display the

driver’s total hours of driving per day,

the total hours on duty per day, total

kilometers or miles driven each day,

total hours on duty for the previous 7

consecutive days, including today, the

sequential changes in off-duty, on-duty,

and driving status and the times the

changes occurred for each driver using

the system. The system must also be

capable of recording separately each

driver’s off-duty, on-duty, and driving

status when there is a multiple-driver

operation.

The current rule in § 395.15 provides

an exception for systems installed and

in operation since October 31, 1988,

based on the original pilot

demonstration project. The exception

allows for no visual or audible warning

and it allows for sensor failures and

edited data not to be identified in

printed form. The FMCSA is interested

in specific comments from motor

carriers that are using such excepted

systems about the number being used

and any costs that may be incurred in

upgrading those systems to the

proposed EOBR standard requiring the

visual or audible warning and printed

records of sensor failures and edited

data. The FMCSA is proposing not to

allow those systems upon the

implementation dates of the final rule

and would like to know the extent such

systems continue to be used. The

FMCSA may modify whether upgrades

are needed based on the extent the

excepted systems continue to be used

and the costs to be incurred.

Section 394.303 How Must I Maintain

and Regularly Calibrate Automated

Time Record System Devices?

This section would require motor

carriers to have a systematic

maintenance process to ensure that each

automated time record system remains

accurate in accordance with the

manufacturer’s directions.

Section 394.305 Must I Train My

Drivers Regarding the Proper Operation

of the Devices I Use?

This section would require drivers be

trained in the proper operation of the

devices installed on CMVs. This does

not require the motor carrier to do the

actual training, but to ensure the driver

understands how the devices work. The

driver may have acquired the

knowledge while working for a different

motor carrier.

Subpart C—Roadside Out-of-Service

Orders

Section 395.301 What Must I Do If I

Am Declared Out of Service for

Violations of This Part?

This section specifies what a driver

must do if he or she has been placed out

of service because the FMCSA or

another authorized enforcement official

has determined the driver has violated

one or more of the regulations in this

part.

Subpart D—Emergency Operations

Section 395.401 What Must I Do If I

Need Immediate Rest After Providing

Direct Assistance in an Emergency?

This section would expressly require

drivers to take an additional minimum

off-duty period after emergency service.

This increased time would be at least

ten hours. It would be correlated to the

motor carrier requirements in § 390.23

discussed above.

Section 395.403 What Conditions

Must I Meet Before I Operate in

Interstate Commerce After Providing

Direct Assistance in an Emergency?

This section would require drivers to

obtain two consecutive nights of sleep

including the core periods from

midnight to 6:00 a.m. for the purpose of

obtaining restorative sleep after an

emergency.

Transportation of Migrant Workers

Section 398.6 Hours of Rest and Work;

Minimum Rest and Maximum Work

Time.

The applicability of part 398 is

confined to a small population of

private motor carriers of passengers and

contract carriers that transport migrant

agricultural workers in interstate

commerce. This is due to the limited

authority of the Migrant Farm Workers

Regulation of Interstate Transportation

Act of 1956, Pub. L 84–939, 70 Stat. 958,

August 3, 1956 (MFW) (now codified at

49 U.S.C. 31502(c)). This law required

the ICC to establish reasonable

requirements with respect to the safety

and comfort of migrant agricultural

workers who are transported by certain

private and for-hire motor carriers.

The term ‘‘migrant worker’’ as defined

by the 1956 Act and part 398 means any

individual proceeding to or returning

from employment in agriculture as

defined in section 3(f) of the FLSA, as

amended (29 U.S.C. 203(f)), or section

3121(g) of the Internal Revenue Code of

1954 2 (26 U.S.C. 3121(g)). The term

‘‘carrier of migrant workers by motor

vehicle’’ as defined by the 1956 Act and

part 398 means any person, including

any ‘‘contract carrier by motor vehicle,’’

but not including any ‘‘common carrier

by motor vehicle,’’ who or which

transports in interstate or foreign

commerce at any one time three or more

migrant workers to or from their

employment by any motor vehicle other

than a passenger automobile or station

wagon, except a migrant worker

transporting himself/herself or his/her

immediate family. ‘‘Immediate family’’

in this context comes directly from the

Farm Labor Contractor Registration Act

of 1963 (FLCRA),3 Public Law 88–582,

with regulations at 29 CFR 40.2(f) and

29 CFR 500.20(o) which define

‘‘immediate family’’ as: (1) A spouse; (2)

children, stepchildren, and foster

children; (3) parents, stepparents, and

foster parents; and (4) brothers and

sisters. Under this definition, a truck

carrying an uncle, a brother-in-law, or

another unrelated laborer would be

subject to part 398.

Part 398 applies to motor carriers of

migrant workers only in the case of

transportation of any migrant worker for

a total distance of more than seventyfive miles, and then only if such

transportation is across the boundary

line of any State, the District of

Columbia, a Territory of the United

States, or a foreign country.

Motor carriers of migrant workers

currently comply with the 10-hour

driving rule as it applied to all motor

carriers prior to 1962. This rule has

continued the limitation for 10 hours of

driving within any 24-hour period. Such

carriers and drivers have not been

subject to the 15-hour rule, the weekly

limitations, nor the recordkeeping

requirements. Many of these motor

carriers have been subject to the

recordkeeping provisions of the FLSA

and the MSAWPA. The WHD

administers and enforces the FLSA and

MSAWPA. The WHD has the same

25594 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

§ 398.6 HOS regulations for migrant

workers in 29 CFR part 500.

This section would direct motor

carriers of migrant workers to comply

with the proposed requirements of part

394. Drivers working for motor carriers

of migrant workers would have to

comply with the applicable

requirements of part 395. Thus, these

motor carriers of migrant workers would

become subject to all of the general and

specific responsibilities that ensure

drivers obtain sufficient restorative

sleep and that prohibit ill and drowsy,

tired, or inattentive drivers from

continued driving. It would be

expanding their responsibilities to better

ensure the migrant workers are

protected from ill, drowsy, tired, or

inattentive drivers that have not had

sufficient restorative sleep.

Under the FMCSA’s zerobase

initiative discussed earlier in this

document, migrant motor carrier

regulations are also being rewritten and

reformatted. That proposed rulemaking

will be published later. It contains the

balance of the FMCSA’s consideration

of migrant worker transportation rules

covered under RIN 2125–AD81. See the

section headed ‘‘XII. Rulemaking

Analysis and Notices’’ for more

information about RINs.

XII. Rulemaking Analysis and Notices

All comments received before the

close of business on the comment

closing date indicated above will be

considered and will be available for

examination using the docket number

appearing at the top of this document,

FHWA–97–2350, in the docket room at

U.S. DOT Dockets, Room PL–401, 400

Seventh Street, SW., Washington, DC.

Internet users may access the comments

received by the U.S. DOT Dockets

Room, by using the universal resource

locator (URL): http://dms.dot.gov and

the docket number FHWA–97–2350.

The FMCSA will file in the docket

comments received after the comment

closing date and will consider late

comments to the extent practicable. The

FMCSA may, however, issue a final rule

at any time after the close of the

comment period. In addition to late

comments, the FMCSA will also

continue to file in the docket relevant

information becoming available after the

comment closing date, and interested

persons should continue to examine the

docket for new material.

Regulatory Identification Number

An RIN is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document, RIN

2126–AA23, can be used to cross

reference this action with the Unified

Agenda. This action formerly was

identified under RIN 2125–AD93 during

FHWA development. This action

contains a total consolidation of RINs

2125–AD52 and 2126–AA29 (formerly

2125–AE09) (HOS of Drivers;

Supporting Document Recordkeeping

and FMCSRs; HOS and CDL

Exemptions; respectively) into this RIN

2126–AA23, a partial consolidation

with respect to hours of service under

RIN 2125–AD81 (Transportation of

Migrant Workers) and RIN 2126–AA16

(formerly 2125–AD65) (Advanced

Technology in Commercial Motor

Vehicle Operations), a discussion of the

comments received to RIN 2125–AD52,

and a modified proposal based upon the

comments received to RIN 2125–AD52.

Motor Carrier Safety Act

The MCSA was the first broad

legislation dealing with truck safety

since the Motor Carrier Act of 1935. It

required the FHWA and requires the

FMCSA to establish safety standards for

CMVs which ensure, at a minimum,

that:

(1) Commercial motor vehicles are

maintained, equipped, loaded, and

operated safely;

(2) The responsibilities imposed on

operators of commercial motor vehicles

do not impair their ability to operate the

vehicles safely;

(3) The physical condition of

operators of commercial motor vehicles

is adequate to enable them to operate

the vehicles safely; and

(4) The operation of commercial

motor vehicles does not have a

deleterious effect on the physical

condition of the operators. 49 U.S.C.

31136(a).

Section 31136(a)(2), (3), and (4)

authorizes the FMCSA to consider very

broadly all operational factors that may

adversely impact the health and

physical condition of drivers, and thus

highway safety.

Before prescribing regulations, the

agency must also consider, to the extent

practicable and consistent with the

purposes of the MCSA, the costs and

benefits of any rules (49 U.S.C.

31136(c)(2)(A)). The Senate Committee

on Commerce, Science, and

Transportation explained the intent of

the cost-benefit requirement.

The [FMCSA] is required to consider,

where practicable, costs and benefits before

establishing or revising such rules,

regulations, standards, and orders. In

requiring the [FMCSA] to consider the costs

and benefits, where practicable, in the course

of regulatory activities, the Committee

realizes that many aspects of safety and

health regulations do not lend themselves to

detailed cost-benefit analysis. However, the

Committee intends that the [FMCSA], in

issuing a regulation, will perform some type

of cost-benefit analysis, recognizing that

while the benefits of a particular rule or

regulation may be substantial, they may not

be quantifiable. Additionally, the Committee

does not intend such requirement to have the

effect of precluding, preventing, or

suspending the promulgation or revision of

rules, regulations, standards, or orders due to

difficulty in establishing specific, quantified

cost or benefit data. S. Rep. No. 98–424, at

8 (1984).

A portion of the anticipated effect of

this action would come from changes to

the information collection burdens

associated with the proposed rule. A

proposed requirement, however, would

impose a substantial financial burden in

start-up and continuing maintenance

and operating costs. Purchasing EOBRs

would burden motor carriers with a

$253 million start-up cost for the first

four years of a final rule, maintaining

the devices would cost $229 million

annually, and training would add

another $5.6 million annually. This

would be offset by an annual savings of

$262.3 million based upon the

information collection burden hour

reduction of 37.47 million hours at an

hourly rate of $7.00 per driver.

The proposed information collection

burdens are described in more detail

below under the heading XII. F.

Paperwork Reduction Act.

This regulatory action contains

proposed provisions that should affect

public safety by preventing 115 fatalities

and 2,995 injuries each year. The net

result in benefits to society should be at

least a discounted $5,321,000,000 over

10 years assuming a 7 percent discount

rate.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FMCSA has determined that this

document contains an economically

significant regulatory action under

Executive Order 12866 and under the

DOT’s policies and procedures because

the FMCSA estimates this action will

have an annual effect on the economy

of $100 million or more.

The FMCSA has also determined this

regulatory action is significant under the

regulatory policies and procedures of

the DOT because of the high level of

interest concerning motor carrier safety

issues expressed by Congress, motor

carriers, their drivers and other

employees, State governments, safety

advocates, and members of the traveling

public.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25595

The FMCSA does not anticipate that

this regulatory action would adversely

affect in a material way a sector of the

economy, competition, jobs, the

environment, or State, local, or tribal

governments or communities. It will not

create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency. The

FMCSA does not anticipate that this

proposed action will materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients of

those programs.

This action was reviewed by the

Office of Management and Budget.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–612), the

FMCSA has evaluated the effects of this

proposed rule on small entities,

including small businesses, small nonprofit organizations, and small

governmental entities with populations

under 50,000. Many of these small

entities operate as motor carriers of

passengers or property in interstate or

intrastate commerce. The FMCSA has

placed a copy of the analysis in the

docket.

The FMCSA believes that this

proposal will effect a substantial

number of small entities. What we do

not know with certainty is the full

economic impact of the proposal on

small entities. We, therefore,

specifically request on the costs and

impacts of this proposal on small

entities. If after receiving and reviewing

public comments, our analysis indicates

that the cost and impacts comparable to

those used in this analysis, the FMCSA

would then certify that the final rule

does not have a significant impact on a

substantial number of small entities.

The Regulatory Flexibility Act seeks

to ensure that federal agencies take

small businesses’ particular concerns

into account when developing, writing,

publicizing, promulgating and enforcing

regulations. To achieve this, the Act

requires agencies to detail how they

have met these concerns, by including

a Regulatory Flexibility Analysis (RFA).

An initial RFA, which accompanies an

NPRM, must include the following six

elements:

(1) A description of the reasons why

action by the agency is being

considered;

(2) A succinct statement of the

objectives of, and legal basis for, the

proposed rule;

(3) A description of and, where

feasible, an estimate of the number of

small entities to which the proposed

rule will apply;

(4) A description of the proposed

reporting, recordkeeping and other

compliance requirements of the

proposed rule, including an estimate of

the classes of small entities which will

be subject to the requirements and the

type of professional skills necessary for

preparation of the report or record;

(5) An identification, to the extent

practicable, of all federal rules which

may duplicate, overlap, or conflict with

the proposed rule; and

(6) A description of any significant

alternatives to the proposed rule which

accomplish the stated objectives of

applicable statutes and which minimize

and significant economic impact of the

proposed rule on small entities.

A discussion of these requirements

follows.

(1) A description of the reasons why

action by the agency is being

considered.

The FMCSA developed this NPRM

because of Congressional action and

independent safety concerns. Section

408 of the ICC Termination Act of 1995

directs the FMCSA to issue an ANPRM

and NPRM ‘‘dealing with a variety of

fatigue-related issues pertaining to

commercial motor vehicle safety

(including 8 hours of continuous sleep

after 10 hours of driving * * * and

other appropriate regulatory and

enforcement countermeasures for

reducing fatigue-related incidents and

increasing driver alertness).’’ In

addition, evidence suggests that fatigue

continues to be an important

contributing factor in some CMV

crashes. The FMCSA believes that

updating the regulations to reflect

advances in understanding of sleep and

fatigue will increase compliance with

the regulations, ease enforcement, and

enhance overall highway safety.

(2) A succinct statement of the

objectives of, and legal basis for, the

proposed rule.

The objective of this NPRM is to

ensure that drivers are adequately rested

before driving CMVs. The proposals

seek to do this by increasing the

continuous off-duty periods of time

afforded to drivers to obtain sleep,

providing additional opportunities for

some categories of drivers to obtain rest

during breaks, and improving the daily

sleep-wake cycle to correspond more

closely with circadian rhytymicity. The

proposals also seek to minimize the

paperwork burden on carriers by

eliminating the RODS for many drivers.

The legal basis for the rule, in

addition to the provisions of the ICC

Termination Act cited above, include

the MCA codified at 49 U.S.C. 31502(a)

and (b), the MFW codified at 49 U.S.C.

31502(c), the MCSA codified at 49

U.S.C. 31136, section 113 of the

HMTAA, and section 345 of the NHS.

The HMTAA instructs the FHWA to

issue regulations improving ‘‘(A)

compliance by commercial motor

vehicle drivers and motor carriers with

hours of service requirements; and (B)

the effectiveness and efficiency if

Federal and States enforcement officers

reviewing such compliance’’.

(3) A description of and, where

feasible, an estimate of the number of

small entities to which the proposed

rule will apply.

This NPRM proposals would apply to

a large number of small carriers. Of the

497,000 motor carriers on the MCMIS

census file, almost 250,000 own 6 or

fewer power-units, 50 percent of the

total. These 250,000 motor carriers own

approximately 703,000 power-units, an

average of about almost 3 per carrier,

accounting for approximately 22.5

percent of all power-units on MCMIS.

Not all of these motor carriers are

considered small businesses under the

definitions issued by the SBA. The SBA

defines a small business as one with

annual gross receipts of less than $18.5

million. We do not know what

percentage of motor carriers fit into this

category. While it is likely that the

majority of motor carriers with fewer

than 6 drivers have gross receipts of less

than $18.5 million, the Agency believes

some of them surpass that revenue

threshold. The FMCSA’s safety

regulations apply to all operators of

CMVs in interstate commerce, not only

traditional motor carriers. Some of these

CMV operators may make the majority

of their revenue from non-trucking

sources, but only own 2 or 3 CMVs.

Examples include musicians who own

buses for transportation between

performances, or millwork distributors

which operate a few CMVs to distribute

finished millwork. While the small

number of vehicles these operations

own would suggest they are small

entities, their gross revenues from nontrucking sources could result in their

being classified as large entities.

In the PRE, the FMCSA estimated that

option 5 would cost small long-haul and

regional motor carriers $180 million

undiscounted to purchase EOBRs, $152

million discounted. Annual costs equal

$17.9 million undiscounted, for a total

of approximately $103 million

discounted over ten years. EOBRs will

cost the average small long-haul motor

carrier $2,850 to purchase and $282

annually for maintenance

(undiscounted).

Data on firms and receipts from the

SBA web site show that for SIC codes

4200 through 4214, small motor carriers

had average annual receipts of just over

25596 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

$400,000 in 1996. First year costs of

$3,132 ($2,850 plus $282) equal

approximately three fourths of one

percent of the average small motor

carriers receipts.

While overall costs are fairly high for

small motor carriers, we believe it is

likely that EOBR costs could be lower

than estimated above. First, we assumed

that small motor carriers would

purchase one quarter of their EOBRs in

each of the first four years. In reality, it

is likely that most small motor carriers

will wait until the latter years to buy an

EOBR. This will lower the discounted

EOBR costs, as later year purchases are

discounted more highly than earlier

ones. In addition, small motor carriers

who purchase EOBRs in year 4 will

have to pay for maintenance for 3 fewer

years than those who purchase in the

first year.

Second, the FMCSA believes it is

likely that the price of EOBRs will fall

as production increases. As

manufacturers gain proficiency in

producing a product, improved use of

labor and material tend to lower the

costs of productions. Improvements

include reducing the number and

complexity of component parts,

improved production of components,

improved assembly speed and

processes, reduced error rates, and

better manufacturing processes. In a

1984 study of 108 manufacturing items

from 22 field studies, Dutton and

Thomas found a progress ratio of

slightly higher than 80 percent, which

means that each doubling of cumulative

production reduces the cost level by 20

percent (Dutton and Thomas). Because

of the phase-in period for small motor

carriers, larger motor carriers are likely

to bear higher initial production costs.

Finally, many small motor carriers

will be able to purchase EOBRs through

larger motor carriers, thereby realizing

the same scale economies as large motor

carriers. Anecdotal information suggests

that a majority of owner-operators are

on long term leases with large motor

carriers. One source of this information

was oral communication between the

executive-director of the OwnerOperator Independent Drivers

Association (OOIDA) and Department of

Transportation staff. OOIDA’s executive

director estimated that 70 percent of

owner-operators work as long-term

contractors with other motor carriers.

Many of these long-term contractors will

presumably be able to purchase EOBRs

at the same cost as the larger motor

carriers to which they are contracted.

The economic impact of this proposal

on each motor carrier would vary

depending on its operations and the

number of drivers it uses. For motor

carriers engaged in local operations

(proposed regulatory Types 3, 4, and 5)

subject to the requirements of the Fair

Labor Standards Act, the economic

impact should be zero because the

motor carriers are already required to

maintain time records and supporting

documents to comply with U.S.

Department of Labor regulations, and

the FMCSA is proposing to allow these

time records and documents to satisfy

the recordkeeping requirements

proposed in this NPRM. For motor

carriers engaged in long-haul (Type 1)

and regional (Type 2) operations, the

majority of the economic impact would

be caused by the proposed requirement

to ensure CMVs have properly installed

EOBRs and that its drivers use them as

required. These impacts are directly

related to the number of CMVs, and the

number of CMV drivers, in those

operations.

As an example of the potential

economic effect of this proposed rule on

a small motor carrier subject to the

FMCSRs, consider one that operates

three power units and has annual

receipts of $400,000. See the discussion

of the cost of EOBRs in the sections

above headed VII. I. 2. Paperwork

Reduction, VII. I. 3. Total Benefits, and

VII. I. 4. Quantitative Costs. If the motor

carrier were to purchase and install

EOBRs in all these power units in one

year, the estimated cost of the

equipment and the initial year’s

operation would be $3,300, or 0.825

percent of its annual receipts (($1,000

plus 100) times 3 divided by $400,000).

Next, consider a motor carrier that

operates 20 power units and has annual

receipts of $18.5 million. The economic

impact would be $22,000, or 0.12

percent of its annual receipts (($1,000

plus 100) times 20 divided by $18.5

million). If a motor carrier operated 100

power units and had annual receipts of

$18.5 million, the economic impact

would be approximately 0.59 percent of

the carrier’s annual receipts ($110,000

divided by $18.5 million).

Consider the cost of EOBRs per CMV

power unit. If a new CMV truck tractor

costs $100,000, a $1,000 EOBR would be

one percent of the cost of the truck

tractor.

These figures do not include costs to

train drivers and other staff on the

operation and use of these EOBRs, nor

do they account for savings in driver

and other motor carrier staff resources

associated with the elimination of the

requirement to use paper RODS. They

also present a worst-case economic

scenario, because the motor carriers

would probably amortize EOBR

purchase and installation costs over

several years.

Based on this summarized analysis,

the FMCSA believes that this rule

would affect a substantial number of

small entities, but would not have a

significant impact on these entities.

Therefore, the FMCSA, in compliance

with the Regulatory Flexibility Act (5

U.S.C. 601–612), has considered the

economic impacts of these requirements

on small entities and certifies that this

rule would not have a significant

economic impact on a substantial

number of small entities.

Unfunded Mandates Reform Act of 1995

and Executive Order 12875 (Enhancing

the Intergovernmental Partnership)

This rule does not impose any

unfunded mandates on State, local, or

tribal governments as defined by the

Unfunded Mandates Reform Act of 1995

(2 U.S.C. 1531 et seq.). However, this

rule would impose a Federal mandate

on the private sector requiring

expenditure by motor carriers of $100

million or more in any one year.

Therefore, the FMCSA has prepared a

separate written statement incorporating

various assessments, estimates, and

descriptions that are delineated in the

Act. A copy of the FMCSA’s Regulatory

Accountability and Reform Analysis is

included in the docket.

The FMCSA considered several

regulatory alternatives and believes that

this proposal achieves the objectives of

the rulemaking to reduce CMV crashes

involving fatigue-induced CMV drivers.

The FMCSA believes the benefits of

this NPRM can be achieved only by

forcing motor carriers and Type 1 and

2 drivers to make a dramatic change in

their present attitude toward

compliance in long-haul and regional

operations. Their attitudes are unlikely

to change without requiring persuasive

evidence that compliance would be

monitored and enforced. The American

public expects the motor carrier

industry to do a better job for safety,

based on the numerous comments from

concerned victims and citizens in the

docket. The FMCSA’s proposal to

require an objective tamper-proof

monitor on board long-haul and regional

operating CMVs should achieve that

objective, even though the option

selected is not the least burdensome,

least costly, nor the most cost effective

for society.

The FMCSA estimates that the hours

of rest and service of drivers rule will

cost the public approximately $817

million over ten years. The cost applies

not only to motor carriers subject to the

FMCSRs, but also to motor carriers

subject to compatible State HOS of

driver laws and regulations to be

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25597

adopted as proposed to be required

under 49 CFR part 350 to be eligible for

MCSAP grant-in-aid type program

funds. The agency estimates that the 10-

year discounted monetary value of the

benefits (fatalities and injuries

prevented, property damage savings) is

$6.138 billion.

The FMCSA intends to assist State

MCSAP agencies in revising and

adapting their motor carrier safety

regulations and safety assurance

programs in two ways. First, the agency

intends to allow a phase-in period for

the final rule, after it is promulgated, to

ensure that those responsible for safety

regulation implementation and

oversight functions can become fully

familiar with the new format and

content of the HOS rules. Second, the

agency is developing model State

legislation and regulations to aid States

in adopting the rules proposed today or

adapting them to their own regulatory

programs. The agency would also make

special efforts to provide education,

training, and guidance materials for

MCSAP agencies and their staffs. The

FMCSA welcomes comments from State

and local government agencies

concerning any potential difficulties

they anticipate in making the transition

to, and adopting, compatible regulations

promulgated as a result of this action.

The FMCSA estimates that transition

costs for States that wish to continue

receiving MCSAP grant-in-aid funds to

revise and implement their regulations

to remain compatible with the proposed

revisions would be approximately 5

percent of a year’s MCSAP allocation.

Nationwide, MCSAP allocations total

approximately $80–85 million per year.

Because States are given three years to

adopt revisions to the FMCSRs, this

estimated transition cost of between $4

million and $4.25 million would be

distributed over that same time period.

As described earlier in this section, the

FMCSA plans to assist the States with

the development of model legislation,

transition planning, and data entry and

analysis to ensure that there would be

continuity between the regulations

comprising the current CMV safety

program and those revisions that may

result from the changes proposed today.

The FMCSA believes that one

significant cost element would involve

training of State and local government

MCSAP officials in the proposed new

structure of the HOS regulations and the

accompanying revisions to the

microcomputer software suites used to

perform roadside CMV safety

inspections and motor carrier

compliance reviews. The MCSAP

program funds the work of 7,500 to

8,000 safety officials (6,000 full-time

and 1,500–2,000 part-time). The FMCSA

estimates it would take one-half day of

instruction (4 hours) to familiarize these

officials with the new software. The

FHWA has paid average loaded salaries

of State safety officials at $30.00 per

hour in the past year. At an average

loaded salary of $30.00 per hour

(including benefits), the approximate

salary costs would be $960,000. Costs of

notebooks and other classroom

materials (at $10 per student) would

amount to another $80,000. Software

upgrades would be required in

centralized State information systems,

as well as in desktop and laptop

computers used in the field. Because

some States’ centralized information

systems are housed on mainframe

computers, and others depend on the

FMCSA’s system, estimates of upgrade

costs will vary considerably. The

FMCSA estimates an additional $2

million to $3 million in other costs

(software revisions, other training and

testing) associated with the transition.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995 (PRA) (44 U.S.C. 3501, et. seq.)

Federal agencies must obtain approval

from the Office of Management and

Budget (OMB) for each collection of

information they conduct, sponsor, or

require through regulations. The

FMCSA has determined that this

proposal, when promulgated as a final

rule, would revise several existing

aspects and add new requirements to a

currently approved clearance for OMB

Control Number 2126–0001 (which is

due to expire on October 31, 2001).

The FMCSA, in previous estimations

of time and cost burdens associated

with OMB Control Number 2126–0001,

omitted burdens imposed upon State

governments. Title 5 CFR 1320.3

requires the FMCSA to include in its

information clearance package burdens

imposed upon a recipient of a Federal

grant if the terms and conditions of the

grant require specific approval by the

agency of the collection of information

or collection procedures. As a condition

to receive an FMCSA Motor Carrier

Safety Assistance Program (MCSAP)

grant, State governments are required to

adopt and enforce compatible

regulations for intrastate motor carriers

and CMV and, therefore, should be

considered when estimating burdens

associated with the Driver’s Record of

Duty Status information collection.

When the FHWA last published a 60-

day notice in compliance with 5 CFR

1320.8 on March 11, 1998 (63 FR

11948), the IIHS was the only

commenter to the public docket. The

IIHS supported continuation of the

paper ‘‘logs’’ until they are replaced by

on-board computers. The agency also

sought OMB’s approval of an emergency

extension for a six-month period of

time. That notice was published in the

Federal Register on May 13, 1998 (63

FR 26675). Neither opportunity for

comments brought to the FHWA’s

attention the fact that it had omitted

intrastate motor carrier information

collections. When the FMCSA

conducted its regulatory analysis for

this NPRM, the agency discovered the

error. The FMCSA is correcting the

intrastate operations error as well as

providing better data of the number of

respondents in a revised submission to

the OMB.

Currently, the inventory indicates a

burden for 2126–0001 of 42,464,327

burden hours, rounded to 42.5 million

hours. Based on the regulatory

evaluation and the option selected to

propose, the FMCSA is submitting to

the OMB for review in accordance with

the PRA requirements a burden of

3,003,050 burden hours for this NPRM.

OMB Control Number: 2126–0001.

Proposed New Title: Hours of Service

of Driver Regulations.

Affected Public: Approximately

483,000 motor carriers using

approximately 6.43 million drivers who

operate in interstate and intrastate

commerce.

Estimated Annual Hour Burden:

3,003,050 million burden hours.

The paper RODS and automatic onboard recording devices have been the

primary regulatory tools used by motor

carriers and CMV drivers to determine

compliance with the maximum driving

and duty time limitations prescribed in

the FMCSRs. The FMCSA also uses the

current RODS and automatic on-board

recording device records to determine

compliance during compliance reviews.

Federal, State, and foreign government

officials use the information for

roadside enforcement. The FMCSA also

considers compliance with the HOS

requirements as a factor in its

determination of a motor carrier’s safety

fitness.

Information Collections for Type 3, 4,

and 5 Drivers

For CMV drivers who return to their

normal work reporting location at the

end of the work day (Types 3, 4, and 5

as described in this NPRM), the FMCSA

proposes to conform the requirements

similar to those of the WHD. A

requirement to use a time record is

currently codified at 49 CFR 395.1(e).

The provision is currently available to

motor carriers whose drivers operate

within a 100 air-mile radius of their

normal work reporting location and who

25598 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

return to the work reporting location

and are released from duty within 12

consecutive hours. The FMCSA

proposes to extend this provision to

drivers who return to the work reporting

location and are released from duty

within the same 12 consecutive hours

generally, removing the distance-based

limitation of the current regulation.

Like the ‘‘100 air-mile radius’’ CMV

drivers of today (49 CFR 395.1(e)), Type

3, 4, and 5 drivers would not be

required to carry their time records with

them on their CMVs. Enforcement

officials inspecting Type 3, 4, or 5

drivers at the roadside would have the

opportunity, as they do now, to

investigate the driver’s claim by

contacting or visiting the driver’s

normal work reporting location to

review the driver’s time record.

Information Collections for Type 1 and

2 Drivers

For CMV drivers in long-haul and

regional operations (Types 1 and 2 as

defined in this NPRM), the FMCSA is

proposing a requirement for installation

and use of EOBRs (electronic on-board

recorders, i.e., a semi-automated time

record). The requirement would include

identifying the locations where changes

in duty status occur. The FMCSA

estimates that 1.25 million drivers

would be affected by this element of the

proposed rule.

The agency is proposing a phased-in

requirement for these motor carriers

based upon the number of power units

(e.g., truck-tractors, straight trucks,

buses, specialized equipment) they

operate. During the phase-in period,

motor carriers and drivers that are not

yet required to use EOBRs may install

and use them, at their option. If they are

not yet using EOBRs, however, they

must comply use RODS that conform to

the requirement contained at the current

49 CFR 395.8.

The FMCSA proposes to require

motor carrier fleets with more than 50

power units to use EOBRs two years

after the effective date of a final rule.

Fleets with 21 to 50 power units would

have three years, and fleets with 20 or

fewer power units would have four

years before they are required to use

these devices. During this phase-in

period, motor carriers may use EOBRs

prior to the time they are required to do

so. However, motor carriers and their

drivers that have not begun using

EOBRs would be required to use the

RODS currently required under 49 CFR

395.8 as well as retaining the

appropriate supporting documents.

For Type 1 and 2 motor carriers and

drivers, the FMCSA and its State partner

safety officials would use the on-duty

and off-duty periods of time recorded by

EOBRs and drivers to enforce the new

safety regulations. During the proposed

phase-in period, motor carriers and

drivers not yet using EOBRs, and the

FMCSA and State officials reviewing

their compliance with the HOS

requirements, would continue to use the

RODS.

For all Driver types

The FMCSA intends to continue to

require motor carriers to retain drivers’

time records and supporting documents

for six months from the date they

receive them from their drivers. Motor

carrier employers are required to

maintain for two years time records and

documents required by the U.S.

Department of Labor under 29 CFR Part

516 (OMB control number 1215–0017).

The FMCSA proposes to use those

records, at its option, for the purpose of

verifying motor carriers’ and drivers’

compliance with the hours of work and

hours of rest regulations during the twoyear period.

For all operations, motor carriers

would be required to systematically

monitor compliance with these

proposed rules in order to detect

drivers’ failures to make records or

detect false entries on records that point

towards potential HOS violations, and

to maintain records of the violations

found. All motor carriers would also be

required to disclose to their drivers their

loading and unloading practices so that

drivers may reserve sufficient time and

energy to prevent unforeseen fatiguecausing delays or exertions, and avoid

misunderstandings about possible

lumping violations.

The FMCSA believes these

requirements meet the principles of the

Paperwork Reduction Act of 1995 by

ensuring—

(1) The information collection is the

least burdensome necessary for the

proper performance of the FMCSA’s

safety mandate.

(2) The information collection does

not duplicate information collected by

other agencies. The FMCSA believes the

information collected by DOL to comply

with the WHD regulations would also

satisfy the FMCSA’s requirements.

Further, since motor carrier employers

are required to make this information

accessible to the WHD for all

employees, there should be no

additional burdens associated with

making it accessible to the FMCSA.

(3) The information collection has

practical utility. The FMCSA has sought

to minimize the cost to itself of

collecting, processing, and using the

information, but not to accomplish this

by shifting disproportionate costs or

burdens onto the public.

The FMCSA seeks public comment on

this proposed information collection

requirement. Interested parties are

invited to send comments regarding any

aspect of these information collection

requirements, including, but not limited

to:

(1) Evaluating whether the collection

of information is necessary for the

proper performance of the functions of

the agency, including whether the

information will have a practical use;

(2) Evaluating the accuracy of the

agency’s estimate of the burden of the

collection of information, including the

validity of the methodology and

assumptions used;

(3) Enhancing the quality, usefulness,

and clarity of the information to be

collected; and

(4) Minimizing the burden of

collection of information on those who

are to respond, including through the

use of appropriate automated electronic,

mechanical, or other technological

collection techniques or other forms of

information technology, such as

permitting electronic submission of

responses.

The collections of information

contained in this NPRM relating to OMB

Control Number 2126–0001 have been

submitted to OMB for review under

section 3507(d) of the PRA. Please direct

all comments to the Office of

Information and Regulatory Affairs of

OMB, Attention: Desk Officer for the

Department of Transportation.

Comments may be received within 30

days of publication up to the close of

the rule’s comment period, but

comments to OMB will be most useful

if received by OMB within 30 days of

publication.

National Environmental Policy Act

The agency has analyzed this action

for the purposes of the National

Environmental Policy Act of 1969, as

amended (42 U.S.C. 4321 et seq.) and

has determined that this action will not

have any effect on the quality of the

environment.

Executive Order 12988 (Civil Justice

Reform)

This action meets applicable

standards in sections 3(a) and 3(b)(2) of

Executive Order 12988, Civil Justice

Reform, to minimize litigation,

eliminate ambiguity, and reduce

burden.

Executive Order 13045 (Protection of

Children)

The FMCSA has analyzed this action

under Executive Order 13045,

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25599

Protection of Children from

Environmental Health Risks and Safety

Risks, and found it to be economically

significant. This NPRM, however, does

not concern an environmental risk to

health or safety that may

disproportionately affect children.

Executive Order 12630 (Taking of

Private Property)

This rule will not effect a taking of

private property or otherwise have

taking implications under Executive

Order 12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights.

Executive Order 13132 (Federalism

Assessment)

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

13132. The FMCSA has determined this

proposed rule does not have sufficient

federalism impacts to warrant the

preparation of a Federalism Assessment.

The proposed changes to the HOS

rules would not preempt any State law

or regulation. However, the FMCSA is

proposing to eliminate the hours of

service of drivers’ tolerance guidelines

that allow State governments to have

and enforce compatible HOS regulations

for intrastate commerce. The current

tolerance guidelines consider the

following to be compatible with the

FMCSRs: a 12-hour driving limit; a

prohibition on driving after 16 hours on

duty; and prohibitions on driving after

70 hours on duty in 7 consecutive days

or 80 hours in 8 consecutive days.

The FMCSA is proposing to revise the

MCSAP Tolerance Guidelines and the

compatibility guidelines for regulatory

review concerning intrastate HOS

regulation compatibility. The FMCSA is

proposing to require compatible State

intrastate rules within three years from

the effective date when the last group of

interstate motor carriers, those with

fewer than 20 power units, must comply

with the automated time record system

requirements (1,305 days after the date

of publication of the final rule in the

Federal Register). This would allow

States to review and modify existing

laws and regulations as allowed by Part

355, Appendix A, State Determinations,

section 3.

The FMCSA is proposing to revise

§ 350.341 of the FMCSRs to require

States to adopt and enforce the

proposed regulations. After this threeyear period, States that are not

compatible would not be eligible to

participate in MCSAP until they became

compatible. This action would not have

an impact on the States’ ability to

execute traditional State governmental

functions.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number or 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

List of Subjects

49 CFR Part 350

Grant programs—transportation,

Highway safety, Motor carriers.

49 CFR Part 390

Highway safety, Highways and roads,

Motor carriers, Motor vehicle

identification and marking, Reporting

and recordkeeping requirements.

49 CFR Part 394

Global positioning systems, Highway

safety, Highways and roads, Intelligent

Transportation Systems, Motor carriers,

Motor vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 395

Drivers, Global positioning systems,

Highway safety, Highways and roads,

Intelligent Transportation Systems,

Motor vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 398

Highway safety, Migrant labor, Motor

carriers, Motor vehicle safety, Reporting

and recordkeeping requirements.

Issued on: April 24, 2000.

Julie Anna Cirillo,

Acting Deputy Administrator.

In consideration of the foregoing, the

FMCSA is proposing to amend Title 49,

CFR, chapter III, as set forth below:

PART 350—COMMERCIAL MOTOR

CARRIER SAFETY ASSISTANCE

PROGRAM

1. The authority section of part 350

continues to read as follows.

Authority: 49 U.S.C. 31100–31104, 31108,

31136, 31140–31141, 31161, 31310-31311,

31502; and 49 CFR 1.73.

2. Section 350.341 is revised to read

as follows.

§ 350.341 What specific variances from the

FMCSRs are allowed for State laws and

regulations governing motor carriers, CMV

drivers, and CMVs engaged in intrastate

commerce and not subject to Federal

jurisdiction?

(a) A State may exempt a CMV from

all or part of its laws or regulations

applicable to intrastate commerce,

provided that neither the GVW, GVWR,

GCW, nor GCWR of the vehicle exceeds

11,801 kg (26,001 lbs.). However, a State

may not exempt a CMV from such laws

or regulations if the vehicle:

(1) Transports hazardous materials

requiring a placard.

(2) Is designed or used to transport 16

or more people, including the driver.

(b) State laws and regulations

applicable to intrastate commerce may

not grant exemptions based upon the

type of transportation being performed

(e.g., for-hire, private, etc.).

(c) A State may retain those

exemptions from its motor carrier safety

laws and regulations that were in effect

before April 1988, are still in effect, and

apply to specific industries operating in

intrastate commerce.

(d) State laws and regulations

applicable to intrastate commerce must

not include exemptions based upon the

distance a motor carrier or driver

operates from the work reporting

location. This prohibition does not

apply to those exemptions already

contained in the FMCSRs.

(e) Age of CMV driver—All CMV

drivers must be at least 18 years of age.

(f) Grandfather clauses—States may

provide grandfather clauses in their

rules and regulations if such exemptions

are uniform or in substantial harmony

with the FMCSRs and provide an

orderly transition to full regulatory

adoption at a later date.

(g) Driver qualifications. (1) Intrastate

drivers who do not meet the physical

qualification standards in 49 CFR

391.41 may continue to be qualified to

operate a CMV in intrastate commerce if

the following three conditions are met:

(i) The driver was qualified under

existing State law or regulation at the

time the State adopted physical

qualification standards compatible with

the Federal standards in 49 CFR 391.41.

(ii) The otherwise non-qualifying

medical or physical condition has not

substantially worsened.

(iii) No other non-qualifying medical

or physical condition has developed.

(2) The State may adopt or continue

programs granting variances to intrastate

drivers with medical or physical

conditions that would otherwise be nonqualifying under the State’s equivalent

of 49 CFR 391.41 if the variances are

based upon sound medical judgment

combined with appropriate performance

standards ensuring no adverse affect on

safety.

25600 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

PART 390—FEDERAL MOTOR

CARRIER SAFETY REGULATIONS;

GENERAL

3. The authority citation for part 390

continues to read as follows.

Authority: 49 U.S.C. 13301, 13902, 13902,

31132, 31133, 31136, 31502, and 31504; sec.

204, Pub. L. 104–88, 109 Stat. 803, 941 (49

U.S.C. 701 note); and 49 CFR 1.73.

4. Section 390.23 is revised to read as

follows.

§ 390.23 Relief from regulations.

(a) Parts 390 through 399 of this

chapter do not apply to any motor

carrier or driver operating a commercial

motor vehicle to provide emergency

relief during an emergency, subject to

the following time limits:

(1) State emergencies. (i) The

exemption provided by paragraph (a)(1)

of this section is effective only when:

(A) An emergency has been declared

by the President of the United States,

the Governor of a State, or their

authorized representatives having

authority to declare emergencies; or

(B) The State Director of the Federal

Motor Carrier Safety Administration has

declared that a State emergency exists

which justifies an exemption from parts

390 through 399 of this chapter.

(ii) Except as provided in § 390.25,

this exemption will not exceed the

duration of the motor carrier’s or

driver’s direct assistance in providing

emergency relief, or 30 days from the

date of the initial declaration of the

emergency or the exemption from the

regulations by the State Director of the

Federal Motor Carrier Safety

Administration, whichever is less.

(2) Local emergencies. (i) The

exemption provided by paragraph (a)(2)

of this section is effective only when:

(A) An emergency has been declared

by a Federal, State, or local government

official having authority to declare an

emergency; or

(B) The State Director of the Federal

Motor Carrier Safety Administration has

declared that a local emergency exists

which justifies an exemption from parts

390 through 399 of this chapter.

(ii) This exemption shall not exceed

the duration of the motor carrier’s or

driver’s direct assistance in providing

emergency relief, or 5 days from the

date of the initial declaration of the

emergency or the exemption from the

regulations by the State Director of the

Federal Motor Carrier Safety

Administration, whichever is less.

(3) Tow trucks responding to

emergencies. (i) The exemption

provided by paragraph (a)(3) of this

section is effective only when a request

has been made by a Federal, State or

local police officer for tow trucks to

move wrecked or disabled motor

vehicles.

(ii) This exemption shall not exceed

the length of the motor carrier’s or

driver’s direct assistance in providing

emergency relief, or 24 hours from the

time of the initial request for assistance

by the Federal, State, or local police

officer, whichever is less.

(b) Termination of assistance. (1)

Direct assistance terminates as provided

in paragraph (a) of this section or when

a driver or commercial motor vehicle is

used in interstate commerce to transport

cargo not destined for the emergency

relief effort, or when the motor carrier

dispatches such driver or vehicle to

another location to begin operations in

commerce.

(2) Upon termination of direct

assistance to the emergencies covered

by this section, the motor carrier or

driver is subject to all of the

requirements of parts 390 through 399

of this chapter.

(3) Exception: The relief from

regulations extends, without the prior

approval required under § 390.25, to a

driver’s return trip directly from the

location of the emergency assistance to

the motor carrier’s terminal or the

driver’s normal work reporting location.

However, any driver who informs the

motor carrier that he or she needs

immediate rest must be permitted at

least 10 consecutive, uninterrupted

hours off duty before the driver is

required to return to such terminal or

location.

(c) When the driver has been relieved

of all duty and responsibilities upon

termination of direct assistance to an

emergency covered by this section, no

motor carrier must permit or require its

driver to drive nor must any such driver

drive in commerce until the driver has

met the following three conditions:

(1) The driver has been off duty for at

least 10 consecutive, uninterrupted

hours, including one period from

midnight to 6:00 a.m.

(2) After providing direct assistance

for more than three consecutive days,

the driver has been continuously off

duty for a period that consists of two

consecutive midnight to 6:00 a.m.

periods.

(3) The driver has at least one hour off

duty after 6:00 a.m.

5. Section 390.25 is revised to read as

follows.

§ 390.25 Extension of relief from

regulations—emergencies.

(a) The State Director of the Federal

Motor Carrier Safety Administration

may extend the 30-day time period of

the exemption contained in

§ 390.23(a)(1), but not the 5-day time

period contained in § 390.23(a)(2) or the

24-hour period contained in

§ 390.23(a)(3). The decision to extend

the exemption is based on a

determination whether such relief is

necessary taking into account both the

severity of the ongoing emergency and

the nature of the relief services to be

provided by the carrier or driver. Any

extension must establish a new time

limit and may place on the motor carrier

or driver any other restrictions deemed

necessary.

(b) Any motor carrier or driver

seeking to extend the 30-day limit must

obtain approval from the State Director

of the Federal Motor Carrier Safety

Administration in the State in which the

emergency was declared before the

expiration of the 30-day period. The

motor carrier or driver must give full

details of the additional relief requested.

6. Part 394 is added to read as follows:

PART 394—MOTOR CARRIER

FATIGUE PREVENTION

Subpart A—Motor Carrier Operations

Purpose, Standards, Penalties, and

Exemptions

394.101 What are the purpose and

standards of this part?

394.103 What must I do to enhance driver

alertness?

394.105 What are the penalties for failing to

comply with this part?

394.107 What definitions apply to this part?

394.109 What operations are exempt from

the requirements of this part?

Implementation Schedule

394.111 When must I begin to comply with

the rules in this part?

Types of Operations

394.121 Are there different rules for

different types of operations?

394.123 How do I determine which

requirements apply to my operations?

394.125 May I assign my drivers to more

than one type operation within a

workweek?

Fatigued Drivers

394.131 What must I do if my driver

becomes impaired by fatigue or illness?

Daily Time

394.141 How many consecutive hours must

my drivers remain off duty before

beginning each workday?

394.143 What are the consequences of

interrupting a driver’s minimum

consecutive off-duty hours?

394.145 Must I allow my drivers additional

off-duty time after they begin work?

394.147 How long may drivers be on duty?

394.149 How long may drivers drive motor

vehicles?

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25601

Weekly Time

394.161 How many consecutive off-duty

hours per workweek must I give my

drivers?

394.163 When may my drivers start work

after being off duty at the end of a

workweek?

394.165 How many hours per week may my

drivers be on duty?

Summary of Hour Limits

394.167 Can these requirements be

summarized in a chart?

Loading and Unloading Practices

394.169 What must I do regarding the

loading and unloading responsibilities of

drivers?

Subpart B—Records and Reports

Time Records To Be Prepared and Kept By

Motor Carriers

394.201 What records must I create

showing that my drivers comply with the

off-duty and on-duty requirements?

394.203 Must time records be prepared in a

particular order or on particular forms?

Time Record Maintenance and Preservation

394.207 What time records must I preserve?

For how long?

Monitoring Driver Time

394.209 Must I monitor my drivers’

compliance with this part and part 395?

Inspection of Records

394.211 Must I present my equipment and

records if an FMCSA special agent asks

to inspect them?

394.213 What records may be used to

determine my compliance with this part?

394.215 Where must I keep records

available for inspection?

Subpart C—Automated Time Record

System Performance Standards

394.301 What standards must automated

time record systems meet?

394.303 How must I maintain automated

time record system devices?

394.305 Must I train my drivers regarding

the proper operation of the devices I use?

Authority: 49 U.S.C. 504, 14122, 31133,

31136, and 31502; sec. 113, Pub. L. 103–311,

108 Stat. 1673, 1676; and 49 CFR 1.73.

Subpart A—Motor Carrier Operations

Purpose, Standards, Penalties, and

Exemptions

§ 394.101 What are the purpose and

standards of this part?

(a) Purpose. The purpose of this part

is to improve highway safety by

promoting the use of well-rested, alert,

and attentive drivers.

(b) Requirements. This part requires

you, the motor carrier, to provide your

drivers with sufficient off-duty time,

daily and weekly, to ensure they have

adequate opportunity for restorative

sleep prior to reporting for duty. You

must comply with paragraph (c) of this

section. You should also make every

effort to comply with paragraph (d) of

this section.

(c) Standards. As a motor carrier, you

must:

(1) Provide each driver a minimum

consecutive off-duty period of time each

day and cumulative off-duty time each

week to obtain restorative sleep.

(2) Make available an additional

minimum off-duty period of time each

workday to allow each driver to attend

to personal necessities and rest at the

driver’s discretion.

(3) Empower the driver to accept or

refuse a driving assignment or

continuation of a trip based upon the

driver’s self-assessment of his/her

alertness.

(d) Advisories. As a motor carrier, you

should:

(1) Develop scheduling, dispatching,

and operating practices to avoid the use

of drivers who are not sufficiently well

rested to operate CMVs safely and that

their workday driving schedules occur

during periods of higher alertness (6:00

a.m. to midnight).

(2) Maximize your knowledge of and

ability to implement operational safety

management techniques, including

fatigue prevention.

(3) Educate your employees, shippers,

receivers, brokers, and others about the

dangers and possible consequences of

scheduling shipments that do not allow

your drivers to obtain proper amounts of

restorative sleep.

§ 394.103 What must I do to enhance

driver alertness?

(a) You must comply with the

following five requirements.

(1) You must restrict your drivers in

Types 1, 2, 3, and 4 operations (see

§ 394.121) to no more than 12 hours on

duty in any workday.

(2) You must restrict your drivers in

Type 5 operations (see § 394.121) to no

more than 13 hours on duty in any

workday.

(3) In any workweek, you must

provide your drivers the opportunity to

obtain at least 32 to 56 consecutive

hours off duty, including at least two

periods from midnight to 6:00 a.m.

(4) You must not use or allow to be

used a driver who is too ill or fatigued

to complete a driving assignment safely.

You must not penalize, discipline,

dismiss, or discriminate against drivers

who refuse to begin or continue a

driving assignment due to illness or

fatigue.

(5) You must comply with the other

specific limitations contained in this

part, as applicable to your operations.

(b) The Types of Operations are

described in § 394.121.

§ 394.105 What are the penalties for failing

to comply with this part?

(a) You are subject to civil penalties

under 49 U.S.C. 521 and part 386 of this

subchapter.

(b) The Federal Motor Carrier Safety

Administration (FMCSA), or an official

of a State or political subdivision of a

State with authority over the safety of

your motor carrier operations, may

place your driver out of service.

(c) Knowing and willful violations of

this part may give rise to criminal

penalties under 49 U.S.C. 521(b)(6).

(d) Repeated violations of the

regulations in this part may result in a

determination under part 385 of this

subchapter that you are unfit and lead

to an order that you must cease

operations.

§ 394.107 What definitions apply to this

part?

The following definitions apply to

this part:

Automated time record system means

an electric, electronic,

electromechanical, or mechanical

system, including a device capable of

recording driver’s duty status

information accurately and

automatically as required by § 394.211

and subpart C of this part.

Driving time means all time at the

driving controls of a motor vehicle in

operation.

Off-duty time means any period when

a driver is relieved from duty and is free

to attend to personal necessities

including sleep, meals, refreshment,

rest, and relaxation. Each off-duty

period must be at least 30 minutes long.

Off-duty time may be taken in a CMV so

long as the driver is relieved of other

duties and responsibilities to the motor

carrier. See also 29 CFR 785.16.

On-duty time means any period when

a driver provides physical or mental

exertion (whether burdensome or not)

necessarily and primarily for the benefit

of the driver’s motor carrier. It includes

all time when a motor carrier requires

a driver to be on the motor carrier’s

premises, vehicles, equipment, or at

other prescribed work places, except

when the motor carrier expressly allows

the driver to take rest breaks in vehicles

or at a terminal. It also includes all such

work for any other motor carrier or nonmotor carrier employers. See also 29

CFR 785.16.

Workday means any fixed period of

24 consecutive hours.

Workweek means any fixed and

regularly recurring period of seven

consecutive workdays.

25602 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

§ 394.109 What operations are exempt

from the requirements of this part?

The following types of operations are

exempt from the requirements of this

part.

(a) Agricultural operations. The

exemption in this section is based on

Section 345(a)(1) of the National

Highway System Designation Act of

1995 (49 U.S.C. 31136 note).

(b) Exemption. The requirements of

§§ 394.141 through 394.165 do not

apply to any driver who is transporting

agricultural commodities within a State

if the transportation takes place entirely

within a 185-kilometer (100-air-mile)

radius of the source of the commodities

or the distribution point for the farm

supplies during the planting and

harvesting seasons in that State, as

determined by the State.

Note: This exemption does not relieve

motor carriers of the responsibility to meet

the general standards in § 394.101(c).

(c) After concluding exempt

agricultural operations. (1) If a driver

asks for immediate rest after completing

exempt agricultural transportation, you

must allow the driver to have at least

ten consecutive, uninterrupted hours off

duty before requiring the driver to

return to non-exempt work.

(2) You must not permit or require a

driver who has completed exempt

agricultural transportation to drive in

non-exempt operations until the driver

has met the following three conditions:

(i) The driver has been off duty for at

least ten consecutive, uninterrupted

hours, including a period from midnight

to 6:00 a.m.

(ii) After providing exempt

agricultural transportation for more than

three consecutive days, the driver has

been continuously off duty for a period

of at least 32 to 56 consecutive hours

that includes two consecutive midnight

to 6:00 a.m. periods.

(iii) The driver has at least one hour

off duty after 6:00 a.m.

(d) Specific definitions. The following

definitions apply to this section: (1)

Agricultural commodities means farm

crops that are produced from the soil on

a farm, but does not include timber.

(2) Farm supplies means those items

directly relating to the farming activities

of planting, fertilizing, or harvesting

crops that are delivered directly to a

farm. This does not include materials

that are used as a part of a non-farm

business or materials to be used in a

residence or home, including the

farmer’s residence.

(3) Source of the commodities means

a farm where farm crops are produced,

but does not include a farm planting or

harvesting timber.

(e) No preemptive effect. This

exemption does not preempt any other

Federal, State, or local law for hours of

service, safety of operation, or

recordkeeping requirements.

Implementation Schedule

§ 394.111 When must I begin to comply

with the rules in this part?

(a) You must begin using subpart A of

this part applicable to each type of

operation on [date 180 days after the

date of publication of the final rule in

the Federal Register].

(b) For Type 1 and 2 operations, you

must comply fully with the

requirements of subpart B and C of this

part according to the following

schedule. If on [date 180 days after the

date of publication of the final rule in

the Federal Register]:

(1) You operate more than 50 power

units (owned or leased)—[date 2 years

and 180 days after the date of

publication of the final rule in the

Federal Register].

(2) You operate between 20 and 50

power units (owned or leased)—[date 3

years and 180 days after the date of

publication of the final rule in the

Federal Register].

(3) You operate fewer than 20 power

units (owned or leased)—[date 4 years

and 180 days after the date of

publication of the final rule in the

Federal Register].

(c) To be in full compliance with the

requirements of this part:

(1) General. All motor carriers must

have in place an operating systematic

monitoring program as required in

subpart B of this part.

(2) Type 1 and 2 motor carriers. All

Type 1 and 2 motor carriers must:

(i) Have installed fully operational

automated time record systems meeting

the requirements of subpart C of this

part.

(ii) Ensure you or your managers and

supervisors are properly trained in their

use as required in subpart C of this part.

(iii) Require your drivers to use them,

and ensure they are properly trained.

(d) If you are not yet required to

comply with the rules in subpart B of

this part, regarding records and reports,

and opt not to comply, you must, at a

minimum, comply with the

recordkeeping rules of 49 CFR 395.8

that were in effect on the day before

[date 180 days after the date of

publication of the final rule in the

Federal Register] (See 49 CFR Parts

200–399 revised as of October 1, 1999.).

Types of Operations

§ 394.121 Are there different rules for

different types of operations?

(a) There are five different types of

operations. For each type, specific

requirements apply for off-duty, onduty, and driving periods during each

workday and workweek. See §§ 394.141

and 394.161.

(b) The five types of operations are as

follows.

(1) Type 1. Long-haul operations that

require the driver to be away from his/

her normal work reporting location for

three or more consecutive workdays.

(2) Type 2. Long-haul operations that

require the driver to be away from his/

her normal work reporting location

overnight, but for less than three

consecutive workdays.

(3) Type 3. Operations that require the

driver to operate a CMV during two

separate scheduled duty periods on the

same workday. The driver returns to

his/her normal work reporting location

and is released from work within 15

consecutive hours after first beginning

work. The two duty periods are

separated by at least a three-hour offduty period during the workday.

(4) Type 4. Operations in which the

driver returns to his/her normal work

reporting location and is released from

work within 12 consecutive hours after

beginning work.

(5) Type 5. Operations in which

driving is incidental to other primary

work activities, and the driver returns to

his/her normal work reporting location

and is released from work within 15

consecutive hours after beginning work.

The driving duties do not exceed 5

hours in a workday. For-hire carriers are

not Type 5 operations.

§ 394.123 How do I determine which

requirements apply to my operations?

(a) Your operations must fit within

one of the categories described in

§ 394.121, and you must adjust your

hours of operation to conform to the

requirements applicable to that type of

operation.

(b) Your compliance with

requirements applicable to the type of

operation will be determined by the

actual facts and circumstances of your

operations at the time compliance is

required.

(c) If there is some reasonable doubt

about your operational type, you must

comply in good faith with the

regulations applicable to the type that

you believe best describes your

operation.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25603

§ 394.125 May I assign my drivers to more

than one type operation within a workweek?

Your driver may move between the

different types of operations after the

appropriate off-duty time at the end of

a workday or workweek for the previous

type operation.

Fatigued Drivers

§ 394.131 What must I do if my driver

becomes impaired by fatigue or illness?

(a) You must instruct your drivers to

stop when they are drowsy, ill, or have

other signs of fatigue. However, you

may allow your drivers to drive the

motor vehicle to the nearest place where

the vehicle can be parked without

creating a greater risk to safety than that

caused by the continued operation by

the ill or fatigued driver. Failure to

comply with this paragraph may subject

you to penalties specified in 49 U.S.C.

521 or subpart G of part 386 of this

subchapter.

(b) You must not retaliate, penalize,

discipline, dismiss, discriminate,

demote, blacklist, threaten, or take any

other retaliatory action against drivers

who refuse to violate any Federal

commercial motor vehicle safety

regulations in this subchapter or State or

local commercial motor vehicle safety

laws, ordinances, or regulations.

(c) Actions contrary to paragraph (b)

of this section are also violations of 49

U.S.C. 31105 and will subject you to

action by the U.S. Department of Labor,

which may require you to reinstate the

driver, and pay back pay and

compensatory damages, among other

things.

(d) Drivers who believe they have

suffered retaliation in violation of 49

U.S.C. 31105 may submit a complaint to

any of the regional or area offices of the

U.S. Department of Labor’s

Occupational Safety and Health

Administration within 180 days of the

retaliation for investigation. This is not

a complete description of the

requirements of 49 U.S.C. 31105. See 29

CFR part 1978 for details about your

rights and responsibilities during the

investigation.

Daily Time

§ 394.141 How many consecutive hours

must my drivers remain off-duty before

beginning each workday?

(a) You must require your drivers to

remain off duty for at least the following

number of hours before starting duty

each workday:

If your driver

is in this type

of operation

(see

§ 394.121)

Your driver must remain

off duty for a minimum of

Type 1 ......... 10 consecutive hours of

each workday

Type 2 ......... 10 consecutive hours of

each workday

Type 3 ......... 9 consecutive hours of

each workday

Type 4 ......... 12 consecutive hours of

each workday

Type 5 ......... 9 consecutive hours of

each workday

(b) Exception. (1) Your team drivers in

Type 1 operations may take their 10

hours off duty in sleeper berth

equipment in no more than two off-duty

periods of at least 5 consecutive hours

each. The on-duty and driving time

between the two sleeper-berth periods

must be counted as part of the on-duty

period that begins after the second

sleeper-berth period. On-duty periods

may be interrupted by off-duty periods

of less than 5 hours, but only periods of

5 or more consecutive hours in a sleeper

berth count towards the required 10-

hour off-duty period. Your drivers are

limited by the on-duty and driving rules

for the workday and workweek.

(2) Sleeper berth equipment is defined

in § 393.76 of this subchapter.

§ 394.143 What are the consequences of

interrupting a driver’s minimum

consecutive off-duty hours?

(a) If you interrupt your driver’s

consecutive off-duty hours, the

minimum period before the driver may

return to duty starts anew at the

conclusion of the interruption. The time

required to deal with your interruption

must be counted as on-duty time.

(b) ‘‘Interrupt,’’ in this section, means

you require drivers to undertake any

responsibility for you as a motor carrier.

An interruption includes, but is not

limited to:

(1) Causing drivers to answer

personally any type of communication

device, including, but not limited to, a

telephone, pager, beeper, facsimile mail

machine, doorbell, global positioning

system message, or any other type of

device.

(2) Notifying drivers personally about

an assignment.

(3) Requiring drivers to contact you or

anyone else about the status of trips or

conditions of loads.

(c) If you are subject to the minimum

wage provisions of the Fair Labor

Standards Act (29 U.S.C. 206), you and

your drivers may also have to comply

with the counting-of-hours principles in

29 CFR part 785.

§ 394.145 Must I allow my drivers

additional off-duty time after they begin

work?

(a) In Type 1, 2, and 5 operations, you

must provide drivers at least two

additional off-duty hours each workday

to nap, rest, or attend to personal

necessities.

(b) This two-hour period may be taken

in segments of not less than 30 minutes

at the discretion of your driver at any

location, including the CMV.

(c) Drivers in Type 3 operations must

have at least 3 consecutive hours off

duty between their two split work shifts.

§ 394.147 How long may drivers be on

duty?

(a) Type 1, 2, 3, and 4 drivers may be

on duty no more than 12 hours within

a 14-consecutive-hour period in any

workday.

(b) Type 5 drivers may be on duty no

more than 13 hours within a 15-

consecutive-hour period in any

workday.

§ 394.149 How long may drivers drive

motor vehicles?

(a) You may require your drivers in

Type 1, 2, 3, and 4 operations to drive

no more than 12 hours in any workday.

(b) You may require your drivers in

Type 5 operations to drive no more than

5 hours in any workday.

Weekly Time

§ 394.161 How many consecutive off-duty

hours per workweek must I give my

drivers?

(a) You must give every driver an offduty period of at least 32 to 56

consecutive hours that includes at least

two consecutive midnight to 6:00 a.m.

periods before the start of the next

workweek.

(b) In Type 1 operations, you must

provide your drivers, for every two

consecutive workweeks, with two such

off-duty periods with a combined total

of at least 112 hours.

(c) Exception. If you operate a

groundwater well-drilling operation

exclusively, you must give your driver

at least 24 consecutive hours off duty at

the end of each workweek. This

exception is required by 49 U.S.C.

31136 note. To meet the standards of

this part, however, you should provide

your driver with the opportunity to

sleep during two consecutive midnight

to 6:00 a.m. periods of time and not

begin work until 7:00 a.m.

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§ 394.163 When may my drivers start work

after being off duty at the end of a

workweek?

Your drivers may start work after

being off duty at the end of a workweek

as follows:

The driver stops

work between

11:01 p.m. on the

workday immediately before this

day and 11:00 p.m.

on this workday

The driver may

begin to work the

next workweek on

this workday no

earlier than 7:00

a.m.

(a) Saturday .......... Monday

(b) Sunday ............ Tuesday

(c) Monday ............ Wednesday

(d) Tuesday ........... Thursday

(e) Wednesday ..... Friday

The driver stops

work between

11:01 p.m. on the

workday immediately before this

day and 11:00 p.m.

on this workday

The driver may

begin to work the

next workweek on

this workday no

earlier than 7:00

a.m.

(f) Thursday .......... Saturday

(g) Friday .............. Sunday

§ 394.165 How many hours per week may

my drivers be on duty?

(a) Your drivers in Types 1, 2, 3, and

4 operations may be on duty up to, but

no more than, 60 hours in any

workweek.

(b) Your drivers in Type 5 operations

may be on duty up to, but no more than,

78 hours in any workweek.

(c) Exception. When your Type 1

driver is on a trip requiring two or more

consecutive workweeks away from his

normal work reporting location, the

driver may average two weekly

maximum on-duty periods, i.e. 120

hours. The longer period may be no

more than 72 hours on duty before the

end of the workweek.

Summary of Hour Limits

§ 394.167 Can these requirements be

summarized in a chart?

In general, the following hourly limits

apply, subject to any specific conditions

listed in §§ 394.141, 394.145, 394.147,

394.149, 394.161, 394.163, and 394.165:

In this type

of operation, the

driver

Must have

this many

consecutive hours

off duty

every

workday

Must have

this many

additional

hours off

duty every

workday

May be on

duty for up

to this

many

hours

every

workday

May drive

only this

many

hours

every

workday

Must have an off-duty

period every workweek that includes at

least two consecutive

midnight to 6:00 a.m.

periods and at least

this many consecutive

hours off duty

May drive

only this

many hours

every workweek

May be on

duty only this

many hours

every workweek

(a)(1) One-week .... Type 1 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 standard ≤60 standard

(2) Two-week flexible.Type 1 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... One week ≥32 to 56

& Other week ≤80.

One week

≤72 &

Other week

≤48.

One week

≤72 &

Other week

≤48

(b) .......................... Type 2 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ............... ≤60

(c) .......................... Type 3 ..... ≥9 ............. ≥3 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ............... ≤60

(d) .......................... Type 4 ..... ≥12 ........... .................. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ............... ≤60

(e) .......................... Type 5 ..... ≥9 ............. ≥2 ............. ≤13 ........... ≤5 ............. ≥32 to 56 ................... ≤30 ............... ≤78

Loading and Unloading Practices

§ 394.169 What must I do regarding the

loading and unloading responsibilities of

drivers?

If you are a motor carrier of property,

(a) You must agree in advance with

your shipper, receiver, or other

consignee whether the driver has the

responsibility for loading or unloading

cargo.

(b) If these agreements make your

driver responsible for loading and

unloading, you must inform the driver

of that fact.

(c) If your driver is required to

provide any loading or unloading

services, notwithstanding an agreement

to the contrary, those services and time

spent waiting count as on-duty time,

and you must require the driver to

include all time spent waiting, loading,

and unloading in his/her duty hours.

See 29 CFR part 785.

(d) The OMB has assigned the

information collection requirements of

paragraphs (a) and (b) of this section the

number 2126–0001.

Subpart B—Records and Reports

Time Records To Be Prepared and Kept

By Motor Carriers

§ 394.201 What records must I create

showing that my drivers comply with the

off-duty and on-duty requirements?

(a) Type 1 and 2 drivers. You must

require each driver in a Type 1 and 2

operation to accurately record driving

and on-duty time, as defined by this

part and 29 CFR part 785, in an

automated time record system meeting

the requirements of subpart C of this

part.

(b) Type 3, 4, and 5 drivers. You must

create or cause to be created for each

Type 3, 4, and 5 driver, accurate time

and work records containing at least the

following five items of information.

(1) Identity of driver.

(2) Daily starting and ending times for

each on-duty period.

(3) Home terminal address, including

zip code.

(4) Time of day and day of week each

driver’s workweek begins. If all

employees, including drivers, have a

workweek beginning at the same time

on the same day, a single notation for

the entire workforce or establishment

will suffice.

(5) Total hours each driver was on

duty each workday and workweek, as

defined by this part and 29 CFR part

785.

(c)(1) The OMB has assigned the

information collection requirements of

paragraph (a) of this section the number

2126–0001.

(2) The OMB has assigned the

information collection requirements of

paragraph (b) of this section the number

1215–0017. The U.S. Department of

Labor’s Wage and Hour Division

regulations require you to create other

records, if you are a subject employer.

See 29 CFR part 516.

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25605

§ 394.203 Must time records be prepared

in a particular order or on particular forms?

(a) A particular order or form of

records is required by this part only for

Type 1 and 2 drivers.

(b) For all other types of drivers, you

may maintain and preserve the records

you create in paper, microfilm,

microfiche, or electronic format.

(c) If you use electronic or mechanical

word or data processing media, you

must make adequate projection,

viewing, and reproduction equipment

available to the authorized FMCSA,

State, and local enforcement personnel

during inspections and investigations.

The reproductions must be clear and

identifiable by date or time period.

(d)(1) The OMB has assigned the

information collection requirements of

paragraph (a) of this section the number

2126–0001.

(2) The OMB has assigned the

information collection requirements of

paragraphs (b) and (c) of this section the

number 1215–0017.

Time Record Maintenance and

Preservation

§ 394.207 What time records must I

preserve? For how long?

(a) Basic records. (1) You must

preserve and retain all basic time

records showing daily starting and

ending times of individual drivers, or of

separate work forces, for at least six

months from the date of last entry.

(2) You must require all Type 1 and

2 drivers to provide you, and you must

obtain, within 13 days following

completion of the time record, all time

records they create and maintain as

required by § 395.201 of this subchapter.

You must preserve and retain all Type

1 and 2 driver time records for at least

six months from the date of the record.

(b) Order, shipping, and billing

records. (1) You must preserve and

retain for at least six months originals or

true copies of all customer orders or

invoices received, incoming or outgoing

shipping or delivery records, as well as

all bills of lading and all billings to

customers (not including individual

sales slips, cash register tapes or the

like) that you retain or make in the

usual course of business operations.

(2) You must require all Type 1 and

2 drivers to provide you, and you must

obtain, within 13 days following

completion of the time record, all order,

shipping, billing, and other receipt

records they create, receive, and

maintain as required by § 395.201 of this

subchapter. You must preserve and

retain Type 1 and 2 driver time, order,

shipping, billing, and other receipt

records for at least six months from the

date of the record.

(c) You must preserve and retain for

at least six months records of additions

to and deductions from driver pay or

compensation that you make in the

usual course of business operations,

including:

(1) Total additions to or deductions

from driver pay or compensation for

each pay or compensation period,

including purchase orders and pay or

compensation assignments. The dates,

amounts and nature of the items which

make up the total additions and

deductions.

(2) All records used by the motor

carrier in determining the original cost,

operating and maintenance cost, and

depreciation and interest charges, if

such costs and charges are involved in

the additions to or deductions from

driver pay or compensation.

(d) Manufacturer’s certificate. You

must preserve and retain for the length

of time your automated time record

system is in operation, and for at least

six months after you no longer use such

system, a copy of a written statement

from the manufacturer of the system(s)

certifying that the design of the system

has been sufficiently tested under

operational conditions to meet the

requirements of subpart C of this part.

(e) Back-up copies. You must preserve

and retain for at least six months a

second copy (back-up copy) of the

electronic time record system files

required by this subpart, by month, in

a physical location different from where

the original data is stored.

(f)(1) The OMB has assigned the

information collection requirements of

paragraphs (a), (b), and (c) of this

section the number 1215–0017. The U.S.

Department of Labor’s Wage and Hour

Division regulations require you to

preserve and maintain these and other

records for at least two years, if you are

a subject employer. See 29 CFR part

516.

(2) The OMB has assigned the

information collection requirements of

paragraphs (d) and (e) of this section the

number 2126–0001.

Monitoring Driver Time

§ 394.209 Must I monitor my drivers’

compliance with this part and part 395?

(a) You must systematically monitor

each driver’s compliance with the

requirements of this part and part 395

of this subchapter. If you do not take

effective action to penalize drivers’

violations of, and thus to ensure their

compliance with, these requirements,

the FMCSA may hold you and/or the

drivers responsible for the violations.

(b) The monitoring system must verify

the accuracy of your drivers’ on-duty

and off-duty times recorded as required

by § 394.201.

(c) Upon request of authorized

FMCSA, State, or local enforcement

personnel conducting an investigation,

you must produce a written description

of your monitoring system with an

explanation of how it works.

(d) The OMB has assigned the

information collection requirements of

this section the number 2126–0001.

Inspection of Records

§ 394.211 Must I present my equipment

and records if an FMCSA special agent asks

to inspect them?

You must immediately comply with a

request by an FMCSA special agent or

other authorized law enforcement

official who displays proper credentials

and demands to inspect your equipment

and records.

§ 394.213 What records may be used to

determine my compliance with this part?

FMCSA officials or a State or local

government official with authority over

the safety of your motor carrier

operations may use any information,

whether or not in your possession, to

determine your compliance with the

requirements of this part and to verify

the accuracy of the records you are

required to maintain.

§ 394.215 Where must I keep records

available for inspection?

(a) Location of records while the

motor vehicle is in operation. You must

require each of your drivers in Type 1

and 2 operations to keep in the

commercial motor vehicle accurate

daily off-duty, on-duty, and drivingtime records for the day of work and the

previous seven consecutive days

showing the items required by subpart

C of this part.

(b) Location of records at all other

times. You must keep the records

required by this part at the place or

places of use, or at one or more

established central recordkeeping

offices where such records are

customarily maintained. If you have

more than one business location and

maintain the records at a location other

than your principal place of business,

you must make the records available

within 48 hours following notice from

an FMCSA special agent or an official of

a State or political subdivision of a State

with authority over the safety of your

motor carrier operations.

(c) Inspection of records. (1)

Automated time records and

handwritten records for drivers in Types

1 and 2 operations must be available for

inspection and transcription at roadside

for the day of work and the previous

25606 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

seven consecutive days. The record

must be available for inspection at your

place of business within 13 days after

the record is made.

(2) Time records for drivers in Types

3, 4, and 5 operations need only be

available for inspection and

transcription at your place of business.

(d) OMB numbers. (1) The OMB has

assigned the information collection

requirements of paragraphs (a) and (c)(1)

of this section the number 2126–0001.

(2) The OMB has assigned the

information collection requirements of

paragraphs (b) and (c)(2) of this section

the number 1215–0017. The U.S.

Department of Labor’s Wage and Hour

Division regulations require you to

provide for inspection for other records,

if you are a subject employer. See 29

CFR part 516.

Subpart C—Automated Time Record

System Performance Standards

§ 394.301 What standards must automated

time record systems meet?

You must ensure the automated time

record system(s) you use meet the

following design and performance

standards:

(a) The automated time record system

installed on your commercial motor

vehicles generate records that can be

read, directly or remotely, at the driver’s

home terminal.

(b) The automated time record system

must record the date, whether the

engine is on or off, vehicle speed,

kilometers and/or miles driven per day,

and a continuous time scale.

(c) The automated time record system

and associated support systems are

capable of maintenance and calibration.

(d)(1) The automated time record

system and associated support systems

are, to the maximum extent practicable,

tamperproof.

(2) The automated time record system

prohibits drivers from editing data.

(e) The automated time record system

warns the driver visually and/or audibly

that the system has ceased to function.

(f) The automated time record system

identifies sensor failures and data edited

by anyone when reproduced in printed

form.

(g) The automated time record system

must permit duty status to be updated

only when the commercial motor

vehicle is at rest, except when

registering the time a commercial motor

vehicle crosses a State, Provincial, or

national boundary.

(h) Information collection standards.

(1) Automated time record systems must

produce, upon demand, a driver’s duty

status chart, electronic display, or

printout showing the time and sequence

of duty status changes, including the

driver’s starting time at the beginning of

each day.

(2) The system must provide a means

whereby authorized Federal, State, or

local officials can immediately check

the driver’s duty status at roadside.

(3) Support systems used in

conjunction with automated time record

systems at a driver’s home terminal or

the motor carrier’s principal place of

business must be capable of providing

the FMCSA or authorized State or local

officials with summaries of an

individual driver’s duty records. The

support systems must also provide

information concerning system sensor

failures and identification of edited

data.

(4) The system must automatically

record the driver’s duty status and

additional standard information as

follows:

(i) ‘‘Off duty’’ or ‘‘OFF’’, or by an

identifiable code or character;

(ii) ‘‘Driving’’ or ‘‘D’’, or by an

identifiable code or character (i.e.,

whenever the commercial motor vehicle

is in any forward or reverse gear);

(iii) ‘‘On-duty not driving’’ or ‘‘ON’’,

or by an identifiable code or character;

(iv) Date;

(v) Total kilometers or miles driven

each day;

(vi) Truck, tractor, coach, and trailer

number(s), as appropriate;

(vii) Name of motor carrier;

(viii) Home terminal address,

including zip code;

(ix) Workday starting time (e.g.,

midnight, 9:00 a.m., noon, 3:00 p.m.);

(x) Name of co-driver, if applicable;

and

(xi) Total hours on duty each day as

defined by this part and 29 CFR part

785.

(5) The name or location code of the

city, town, or village, with State or

Provincial abbreviation, where the

driver changes duty status (off duty, on

duty, driving). A list of location codes

showing all possible location identifiers

must be available in the cab of the

commercial motor vehicle and available

at the motor carrier’s principal place of

business.

(6) An information packet containing

the following two items:

(i) An instruction sheet describing in

detail how data may be stored and

retrieved from the system; and

(ii) A supply of blank driver’s duty

records sufficient to record the driver’s

duty status and other related

information for the duration of the

current trip.

(7) Automated time record systems

with electronic displays must have the

capability of displaying the following

five pieces of information:

(i) Driver’s total hours of driving each

day;

(ii) The total hours on duty each day,

as defined by this part and 29 CFR part

785;

(iii) Total kilometers or miles driven

each day;

(iv) Total hours on duty for the

previous 7 consecutive days, including

the current day, as defined by this part

and 29 CFR part 785;

(v) The sequential changes in off-duty,

on-duty, and driving status and the

times the changes occurred for each

driver using the system.

(8) In a multiple-driver operation, the

automated time record system is capable

of recording separately each driver’s offduty, on-duty, and driving status.

§ 394.303 How must I maintain automated

time record system devices?

You must systematically maintain

each automated time record system to

ensure its accuracy in accordance with

the manufacturer’s specifications.

§ 394.305 Must I train my drivers regarding

the proper operation of the devices I use?

You must ensure your drivers are, or

have been, adequately trained regarding

the proper operation of the devices you

have installed on your CMVs.

7. Part 395 is revised to read as

follows.

PART 395—DRIVER REST AND SLEEP

FOR SAFE OPERATIONS

Subpart A—Rest and Sleep for Safe

Operations

Purpose, Standards, Penalties, and

Exemptions

Sec.

395.101 What are the purpose and

standards of this part?

395.103 What must I do to enhance my

alertness?

395.105 What are the penalties for failing to

comply with this part?

395.107 What definitions apply to this part?

395.109 What types of operations are

exempt from the requirements of this

part?

Implementation Schedule

395.111 When must I begin to comply with

the rules in this part?

Types of Operations

395.121 Are there different rules for

different types of operations?

395.123 How do I determine which

requirements apply to my work?

395.125 May I drive in more than one type

operation within a workweek?

Fatigued Drivers

395.131 What must I do if I become

impaired by fatigue or illness?

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25607

Daily Time

395.141 How many consecutive hours must

I remain off duty before beginning each

workday?

395.143 What must I do when my

minimum consecutive off-duty hours are

interrupted?

395.145 Must I take additional off-duty time

after I begin working?

395.147 How long may I be on duty?

395.149 How long may I drive motor

vehicles?

Weekly Time

395.161 How many consecutive hours per

workweek must I take off duty?

395.163 When may I start work after being

off duty at the end of a workweek?

395.165 How many hours per week may I

work?

Summary of Hour Limits

395.167 Can these requirements be

summarized in a chart?

Loading and Unloading Practices

395.169 What are the loading and

unloading responsibilities of drivers?

Subpart B—Records and Reports

Time Records To Be Prepared and Kept By

Drivers

395.201 What records must I make and

maintain while working?

395.203 Must I prepare time records in a

particular order or on particular forms?

395.205 What are my responsibilities if I

use an automatic time record system to

record my duty status?

Inspection of Records

395.211 Must I present my equipment and

records if an FMCSA special agent asks

to inspect them?

395.213 What records may be used to

determine my compliance with this part?

395.215 Where must I keep records

available for inspection?

Subpart C—Roadside Out-Of-Service

Orders

395.301 What must I do if I am declared out

of service for violations of this part?

Subpart D—Emergency Operations

395.401 What must I do if I need immediate

rest after providing direct assistance in

an emergency?

395.403 What conditions must I meet before

I operate in interstate commerce after

providing direct assistance in an

emergency?

Authority: 49 U.S.C. 504, 14122, 31133,

31136, and 31502; sec. 113, Pub. L. 103–311,

108 Stat. 1673, 1676; and 49 CFR 1.73.

Subpart A—Rest and Sleep for Safe

Operations

Purpose, Standards, Penalties, and

Exemptions

§ 395.101 What are the purpose and

standards of this part?

(a) Purpose. The purpose of this part

is to improve highway safety by

promoting the use of well-rested, alert,

and attentive drivers.

(b) Requirements. This part requires

you to get sufficient off-duty time, daily

and weekly, to ensure that you have

adequate opportunity for restorative

sleep prior to reporting for duty. You

must schedule your activities to take at

least the prescribed off-duty time. You

must comply with paragraph (c) of this

section. You should also make every

effort to comply with paragraph (d) of

this section.

(c) Standards. As a driver, you must:

(1) Drive only when you are sufficiently

well rested to operate CMVs safely.

(2) Take a minimum consecutive offduty period each day and cumulative

off-duty period each workweek to obtain

restorative sleep.

(3) Accept or refuse a driving

assignment or continuation of a trip

based upon your self-assessment of your

alertness.

(d) Advisories. As a driver, you

should:

(1) Take off-duty periods each

workday to attend to personal

necessities and rest at your discretion.

(2) Take off-duty periods each

workday and workweek to ensure you

are sufficiently well rested to operate

CMVs safely, generally during periods

of higher alertness (6:00 a.m. to

midnight).

(3) Educate others about the dangers

and possible consequences of not

allowing you to obtain proper amounts

of restorative sleep.

§ 395.103 What must I do to enhance my

alertness?

You must comply with the following

requirements.

(a) If you are a driver in a Type 1, 2,

3, or 4 operation (see § 395.121), you

must not be on duty for more than 12

hours in any 24-hour period, no matter

how many motor carriers or other

employers you work for.

(b) If you are a driver in Type 5

operations (see § 395.121), you must not

be on duty for more than 15 hours in

any 24-hour period, no matter how

many motor carriers or other employers

you work for.

(c) In any workweek, you must take at

least 32 to 56 consecutive hours off

duty, including at least two periods

from midnight to 6:00 a.m.

(d) You must refuse dispatch or

continuation of a trip if you believe you

are not alert enough to drive safety.

(e) You must comply with the other

specific limitations contained in this

part.

§ 395.105 What are the penalties for failing

to comply with this part?

(a) You are subject to civil penalties

under 49 U.S.C. 521 and part 386 of this

subchapter.

(b) The FMCSA, or an official of a

State or political subdivision of a State

with authority over the safety of your

motor carrier operations, may order you

out of service.

(c) Knowing and willful violations of

this part may give rise to criminal

penalties under 49 U.S.C. 521(b)(6).

§ 395.107 What definitions apply to this

part?

The following definitions apply to

this part:

Driving time means all time at the

driving controls of a motor vehicle in

operation.

Off-duty time means any period when

you are relieved from duty and are free

to attend to personal necessities

including sleep, meals, refreshment,

rest, and relaxation. Each period of offduty time must be at least 30 minutes

long. See also 29 CFR 785.16.

On-duty time means any period when

you provide physical or mental exertion

(whether burdensome or not)

necessarily and primarily for the benefit

of your motor carrier. It includes all

time when you are on your motor

carrier’s premises, vehicles, equipment,

or at other prescribed work places,

except when your motor carrier

expressly allows you to take rest breaks

in vehicles or at a terminal. It includes

all work for non-motor carrier

employers. See also 29 CFR 785.16.

Workday means any fixed period of

24 consecutive hours.

Workweek means any fixed and

regularly recurring period of seven

consecutive workdays.

§ 395.109 What types of operations are

exempt from the requirements of this part?

The following types of operations are

exempt from the requirements of this

part.

(a) Agricultural operations. The

exemption in this section is based on

Section 345(a)(1) of the National

Highway System Designation Act of

1995 (49 U.S.C. 31136 note).

(b) Exemption. The requirements of

§§ 395.141–395.165 do not apply to you

when you are transporting agricultural

commodities within a State if the

transportation takes place entirely

within a 185-kilometer (100 air-mile)

radius of the source of the commodities

or the distribution point for the farm

supplies during the planting and

harvesting seasons in that State, as

determined by the State. (Note: This

exemption does not relieve you of the

25608 Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules

responsibility to meet the general

standards in § 395.101(c) or comply

with the general requirements of

§ 395.103.)

(c) After concluding exempt

agricultural operations. (1) If you ask for

immediate rest after completing exempt

agricultural transportation, you must

take at least ten consecutive,

uninterrupted hours off duty before

returning to non-exempt work.

(2) You must not drive in non-exempt

operations until you have met the

following three conditions:

(i) You have been off duty for at least

ten consecutive, uninterrupted hours,

including a period from midnight to

6:00 a.m.

(ii) After providing exempt

agricultural transportation for more than

three consecutive days, you have been

continuously off duty for a period of at

least 32 to 56 consecutive hours that

includes two consecutive midnight to

6:00 a.m. periods.

(iii) You have at least one hour off

duty after 6:00 a.m.

(d) Specific definitions. The following

definitions apply to this section:

(1) Agricultural commodities mean

farm crops that are produced on a farm,

but does not include timber.

(2) Farm supplies mean those items

directly relating to the farming activities

of planting, fertilizing, or harvesting

crops that are delivered directly to a

farm. This does not include materials

that are used as a part of a non-farm

business or materials to be used in a

residence or home, including the

farmer’s residence.

(3) Source of the commodities means

a farm where farm crops are produced

from the soil, but does not include a

farm planting or harvesting timber.

(e) No preemptive effect. This

exemption does not preempt any other

Federal, State, or local law for hours of

service, safety of operation, or

recordkeeping requirements.

Implementation Schedule

§ 395.111 When must I begin to comply

with the rules in this part?

(a) You must begin complying with

subpart A of this part applicable to each

type of operation on [date 180 days after

the date of publication of the final rule

in the Federal Register].

(b) For Type 1 and 2 operations, you

must comply fully with the

requirements of subpart B and C of this

part according to the following

schedule. If your motor carrier on [date

180 days after the date of publication of

the final rule in the Federal Register]:

(1) Operates more than 50 power units

(owned or leased)—[date 2 years and

180 days after the date of publication of

the final rule in the Federal Register].

(2) Operates between 20 and 50 power

units (owned or leased)—[date 3 years

and 180 days after the date of

publication of the final rule in the

Federal Register].

(3) Operates fewer than 20 power

units (owned or leased)—[date 4 years

and 180 days after the date of

publication of the final rule in the

Federal Register].

(c) To be in full compliance with the

requirements of this part:

(1) General. All drivers must comply

with the record keeping requirements of

subpart B of this part.

(2) Type 1 and 2 drivers. All Type 1

and 2 drivers must:

(i) Have installed fully operational

automated time record systems meeting

the requirements of subpart C of part

394 of this subchapter.

(ii) Be properly trained and use the

automated time record systems.

(d) If you are not yet required to

comply with the rules in subpart B of

this part, regarding records and reports,

and opt not to comply, you must, at a

minimum, comply with the

recordkeeping rules 49 CFR 395.8 that

were in effect on the day before [date

180 days after the date of publication of

the final rule in the Federal Register]

(See 49 CFR Parts 200–399 revised as of

October 1, 1999.).

Types of Operations

§ 395.121 Are there different rules for

different types of operations?

(a) There are five different types of

operations. For each type, the

regulations require specific off-duty, onduty, and driving periods during each

workday and workweek. See §§ 394.141

and 394.161.

(b) The five types of operations are as

follows.

(1) Type 1. Long-haul operations that

keep you away from your normal work

reporting location for three or more

consecutive workdays.

(2) Type 2. Long-haul operations that

keep you away from your normal work

reporting location overnight, but for less

than three consecutive workdays.

(3) Type 3. You operate a CMV during

two separate scheduled duty periods on

the same workday. You return to your

normal work reporting location and are

released from work within 15

consecutive hours after beginning work.

The two duty periods are separated by

at least a three-hour off-duty period

during the workday.

(4) Type 4. You return to your normal

work reporting location and are released

from work within 12 consecutive hours

after beginning work.

(5) Type 5. Your driving duties are

incidental to other primary activities.

You return to your normal work

reporting location and are released from

work within 15 consecutive hours after

beginning work. Your driving duties do

not exceed 5 hours in any workday. You

do not drive for a for-hire motor carrier.

§ 395.123 How do I determine which

requirements apply to my work?

(a) Your work must fit within one of

the categories described in § 395.121,

and you must adjust your hours of

operation to conform to the

requirements applicable to that type of

work.

(b) Your compliance with

requirements applicable to the type of

operation will be determined by the

actual facts and circumstances of your

work at the time compliance is required.

(c) If there is some reasonable doubt

about your operational type, you must

comply in good faith with the

regulations applicable to the type that

you believe best describes your work.

§ 395.125 May I drive in more than one

type operation within a workweek?

Yes, you may move between the

different types of operations after you

have the appropriate off-duty time at the

end of a workday or workweek for the

previous type operation.

Fatigued Drivers

§ 395.131 What must I do if I become

impaired by fatigue or illness?

(a) You must stop driving when you

are drowsy, ill, or have other signs of

fatigue. However, you may drive the

motor vehicle to the nearest place where

the vehicle can be parked without

creating a greater risk to safety than

continued operation would cause.

Failure to comply with this paragraph

may subject you and your motor carrier

employer to penalties specified in 49

U.S.C. 521 or subpart G of part 386 of

this subchapter.

(b) It is illegal for a motor carrier to

take retaliatory actions against you for

refusing to violate any Federal

commercial motor vehicle safety

regulations in this subchapter or State or

local commercial motor vehicle safety

laws, ordinances, or regulations.

Retaliatory actions include, but are not

limited to, being penalized, disciplined,

discharged, discriminated against,

demoted, blacklisted, and threatened.

(c) Actions contrary to paragraph (b)

of this section are also violations of 49

U.S.C. 31105 and will subject your

motor carrier employer to action by the

U.S. Department of Labor which may

require your employer to reinstate you

and pay you back pay and

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25609

compensatory damages, among other

things.

(d) If you believe that a motor carrier

has taken retaliatory action against you

in violation of 49 U.S.C. 31105, you may

submit a complaint to any of the

regional or area offices of the U.S.

Department of Labor’s Occupational

Safety and Health Administration

within 180 days of the retaliation for

investigation. This is not a complete

description of the requirements of 49

U.S.C. 31105. See 29 CFR part 1978 for

details about how to file a complaint.

Daily Time

§ 395.141 How many consecutive hours

must I remain off-duty before beginning

each workday?

(a) You must remain off-duty for at

least the following number of hours

before starting duty each workday:

If you are in

this type of

operation

(see

§ 395.121)

You must remain off-duty

for a minimum of

Type 1 ......... 10 consecutive hours of

each workday.

Type 2 ......... 10 consecutive hours of

each workday.

Type 3 ......... 9 consecutive hours of

each workday.

Type 4 ......... 12 consecutive hours of

each workday.

Type 5 ......... 9 consecutive hours of

each workday.

(b) Exception. (1) If you operate as a

member of a team in a Type 1 operation,

you may take your 10 hours off duty in

sleeper berth equipment in no more

than two off-duty periods of at least 5

consecutive hours each. The on-duty

and driving time between the two

sleeper-berth periods must be counted

as part of the on-duty period that begins

after the second sleeper-berth period.

On-duty periods may be interrupted by

off duty periods of less than 5 hours, but

only periods of 5 or more consecutive

hours in a sleeper berth count towards

the required 10-hour off-duty period.

You continue to be limited by the onduty and driving rules for the workday

and workweek.

(2) Sleeper berth equipment is defined

in § 393.76 of this subchapter.

§ 395.143 What must I do when my

minimum consecutive off-duty hours are

interrupted?

(a) If your motor carrier interrupts

your minimum consecutive off-duty

hours, the minimum off-duty period

must start anew at the conclusion of the

interruption. In addition, you must

count the time required to deal with the

interruption as on-duty time.

(b) ‘‘Interrupt,’’ in this section, means

your motor carrier requires you to

undertake any responsibility for the

carrier, including, but not limited to any

of the following:

(1) Answer any type of

communication device, including, but

not limited to, a telephone, pager,

beeper, facsimile mail machine,

doorbell, global positioning system

message, or any other type of device.

(2) Contact it for a new dispatch.

(3) Contact it about the status of a trip

or the condition of a load.

(c) If your motor carrier is required to

pay you minimum wages under the

minimum wage provisions of the Fair

Labor Standards Act (29 U.S.C. 206), the

counting-of-hours principles in 29 CFR

part 785 may also apply.

§ 395.145 Must I take additional off-duty

time after I begin working?

(a) If you are a driver in a Type 1, 2,

or 5 operation, you must take at least

two additional off-duty hours each

workday to nap, rest, or attend to

personal necessities. This two-hour

period may be taken at your discretion

at any location, including the CMV. You

may divide the two-hour period into

periods of not less than 30 minutes.

(b) If you are a driver in a Type 3

operation, you must have at least 3

consecutive hours off duty between

your two split work shifts.

§ 395.147 How long may I be on duty?

(a) Type 1–4 drivers may be on duty

no more than 12 hours within a 14-

consecutive-hour period in any

workday.

(b) Type 5 drivers may be on duty no

more than 13 hours within a 15-

consecutive-hour period in any

workday.

§ 395.149 How long may I drive motor

vehicles?

(a) You must not drive more than 12

hours per workday in Type 1, 2, 3, or

4 operations.

(b) You must not drive more than 5

hours per workday in a Type 5

operation.

Weekly Time

§ 395.161 How many consecutive hours

per workweek must I take off duty?

(a) You must take an off-duty period

of at least 32 to 56 consecutive hours

that includes at least two consecutive

midnight to 6:00 a.m. periods before the

start of the next workweek.

(b) In Type 1 operations, for every two

consecutive workweeks, you must take

two such off-duty periods with a

combined total of at least 112 hours.

(c) Exception. If you operate as a

driver exclusively for a groundwater

well drilling operation, you must take at

least 24 consecutive hours off duty at

the end of each workweek. This

exception is required by 49 U.S.C.

31136 note. To meet the standards of

this part, however, you should have the

opportunity to sleep during two

consecutive midnight to 6:00 a.m.

periods of time and not begin work until

7:00 a.m.

§ 395.163 When may I start work after

being off duty at the end of a workweek?

You may start work after being off

duty at the end of a workweek as

follows:

You stop work between 11:01 p.m.

on the workday immediately before

this day and 11:00

p.m. on this workday

You may begin to

work the next

workweek on this

workday no earlier

than 7:00 a.m.

(a) Saturday .......... Monday

(b) Sunday ............ Tuesday

(c) Monday ............ Wednesday

(d) Tuesday ........... Thursday

(e) Wednesday ..... Friday

(f) Thursday .......... Saturday

(g) Friday .............. Sunday

§ 395.165 How many hours per week may

I work?

(a) If you are a driver in a Type 1, 2,

3, or 4 operation, you may be on-duty

up to, but no more than, 60 hours in any

workweek.

(b) If you are a driver in a Type 5

operation, you may be on-duty up to,

but no more than, 78 hours in any

workweek.

(c) Exception. If you are a Type 1

driver on a trip requiring two or more

consecutive workweeks away from your

normal work reporting location, you

may average two weekly maximum onduty periods, i.e., 120 hours. The longer

period may consist of no more than 72

hours on duty before the end of the

workweek.

Summary of Hour Limits

§ 395.167 Can these requirements be

summarized in a chart?

In general, the following hourly limits

apply, subject to any specific conditions

listed in §§ 395.141, 395.145, 395.147,

395.149, 395.161, 395.163, and 395.165:

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In this type

of operation, the

driver

Must have

this many

consecutive hours

off duty

every

workday

Must have

this many

additional

hours off

duty every

workday

May be on

duty for up

to this

many

hours

every

workday

May drive

only this

many

hours

every

workday

Must have an off-duty

period every workweek that includes at

least two consecutive

midnight to 6:00 a.m.

periods and at least

this many consecutive

hours off duty

May drive

only this

many

hours

every

workweek

May be on

duty only

this many

hours

every

workweek

(a)(1) One-week ............. Type 1 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 standard.≤60 standard

(2) Two-week flexible ..... Type 1 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... One week ≥32 to 56

& Other week ≤80.

One week

≤72 &

Other

week

≤48.

One week

≤72 &

Other

week

≤48

(b) ................................... Type 2 ..... ≥10 ........... ≥2 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ........... ≤60

(c) ................................... Type 3 ..... ≥9 ............. ≥3 ............. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ........... ≤60

(d) ................................... Type 4 ..... ≥12 ........... .................. ≤12 ........... ≤12 ........... ≥32 to 56 ................... ≤60 ........... ≤60

(e) ................................... Type 5 ..... ≥9 ............. ≥2 ............. ≤13 ........... ≤5 ............. ≥32 to 56 ................... ≤30 ........... ≤78

Loading and Unloading Practices

§ 395.169 What are the loading and

unloading responsibilities of drivers?

(a) Your motor carrier must inform

you about your responsibility for

loading and unloading services. See

§ 394.169 of this subchapter.

(b) If you are responsible for loading

and unloading cargo, you must include

all such time in your daily on-duty

hours. See also 29 CFR part 785.

(c) The OMB has assigned the

information collection requirements of

paragraph (a) of this section the number

2126–0001.

Subpart B—Records and Reports

Time Records To Be Prepared and Kept

By Drivers

§ 395.201 What records must I make and

maintain while working?

(a) Type 1 and 2 drivers. If you are a

driver in a Type 1 or 2 operation, you

must accurately record your driving and

on-duty time records in an automated

time record system meeting the

requirements of § 394.201 and subpart C

of part 394 of this subchapter and any

additional requirements imposed on

you by your motor carrier.

(b) If your motor carrier is not yet

required to comply with the rules in

subpart B of part 394, regarding records

and reports, and opts not to comply, you

must, at a minimum, comply with the

rules that were in effect on the day

before [date 180 days after the date of

publication of the final rule in the

Federal Register] (See 49 CFR Parts

200–399 revised as of October 1, 1999.).

(c) If you are a driver in a Type 1 or

2 operation, you are legally responsible

for the accuracy of off-duty, on-duty,

and driving-time records prepared by

you.

(d) Type 3, 4, and 5 drivers. If you are

a driver in a Type 3, 4, or 5 operation,

you are not required to make or

maintain on-duty and off-duty time

records, unless your motor carrier

requires you to do so. You are legally

responsible for the accuracy of rest and

work time records prepared by you.

(e)(1) The OMB has assigned the

information collection requirements of

paragraph (a) of this section the number

2126–0001.

(2) The OMB has assigned the

information collection requirements of

paragraph (d) of this section the number

1215–0017. The U.S. Department of

Labor’s Wage and Hour Division

regulations require your motor carrier to

create other records, if your motor

carrier is a subject employer. See 29

CFR part 516.

§ 395.203 Must I prepare time records in a

particular order or on particular forms?

(a) If you are a driver in a Type 1 or

2 operation, you must record and

maintain records in the order or form

prescribed by your motor carrier for its

automated time record system.

(b) If you are a driver in a Type 3, 4,

or 5 operation, a particular order or form

of records is not required by this part.

Your motor carrier may require that you

create the records in its own format in

paper, microfilm, microfiche, electronic,

or automated time record format.

§ 395.205 What are my responsibilities if I

use an automatic time record system to

record my duty status?

You must:

(a) Record accurately all your offduty, driving, and on-duty time,

including the following.

(1) Daily starting and ending times for

each work period and the place where

you start and end each work period (i.e.,

town and State, town and Province, or

location code of such locations).

(2) Intervening times and locations

during each work period when you

transact business, e.g., picking up

freight or passengers, fueling stops,

deliveries, roadside inspections.

(3) Intervening times and locations

during each work period when you take

your required 2 hours off duty for rest

and meals.

(b) Make sure you understand the

system and how it operates.

(c) Follow the instructions of your

motor carrier and the manufacturer of

the automatic time record system.

(d) Retain in the commercial motor

vehicle the records prescribed in

paragraph (a) of this section for the

current workday and the previous seven

workdays.

(e) Submit or forward your original

time record and all documents obtained

during each trip supporting the time

record to your motor carrier within 13

days after completing each record.

(f) Produce the current records from

the automatic time record system upon

the request of a special agent of the

FMCSA or any authorized law

enforcement official.

(g) If the system fails:

(1) Reconstruct accurate records for

the current day and the previous seven

days, in the manner prescribed in

paragraph (a) of this section, using the

format required by your motor carrier.

(2) Prepare a written record of all

subsequent time periods, in the manner

prescribed in paragraph (a) of this

section, until the system is operational,

using the format required by your motor

carrier.

(3) Produce the current records upon

the request of a special agent of the

FMCSA or any authorized law

enforcement official.

Inspection of Records

§ 395.211 Must I present my equipment

and records if an FMCSA special agent asks

to inspect them?

You must immediately comply with a

request by an FMCSA special agent or

Federal Register / Vol. 65, No. 85 / Tuesday, May 2, 2000 / Proposed Rules 25611

other authorized law enforcement

official who displays proper credentials

and demands to inspect your equipment

and records.

§ 395.213 What records may be used to

determine my compliance with this part?

FMCSA officials or a State or local

government official with authority over

the safety of your motor carrier

operations may use any information,

whether or not in your possession, to

determine your compliance with the

requirements of this part and to verify

the accuracy of the records you are

required to maintain.

§ 395.215 Where must I keep records

available for inspection?

(a) Place of records for type 1 or 2

drivers. (1) As indicated in § 395.205(d)

if you are a driver in a Type 1 or 2

operation, you must keep time records

required by §§ 395.201 and 395.205 in

your possession while on duty and for

seven consecutive days after the record

is made.

(2) You must keep originals or true

copies of all customer orders or invoices

received, incoming or outgoing shipping

or delivery records, all bills of lading

and all billings to customers (not

including individual sales slips, cash

register tapes, or the like), and any other

receipts in your possession while on

duty. If the documentation for previous

trips have been given to your motor

carrier, you must have all

documentation for your current trip in

your possession.

(3) You must keep accessible while on

duty and for at least seven consecutive

days records of items to be added to and

deducted from your pay or

compensation for your services in the

usual course of business operations,

including:

(i) Total additions to or deductions

from pay or compensation for each pay

or compensation period including the

dates, amounts, and nature of the items

which make up the total additions and

deductions.

(ii) All records used by you in

determining the original cost, operating

and maintenance cost, and depreciation

and interest charges, if such costs and

charges are involved in additions to or

deductions from your pay or

compensation.

(b) Location and inspection of records

for type 3, 4, and 5 drivers. Customer

orders or invoices received, incoming or

outgoing shipping or delivery records,

all bills of lading and all billings to

customers (not including individual

sales slips, cash register tapes, or the

like), and any other receipts and time

records for drivers in Types 3, 4, and 5

operations need only be available for

inspection and transcription at your

motor carrier’s principal place of

business.

(c)(1) The OMB has assigned the

information collection requirements of

paragraph (a) of this section the number

2126–0001.

(2) The OMB has assigned the

information collection requirements of

paragraph (b) of this section the number

1215–0017. The U.S. Department of

Labor’s Wage and Hour Division

regulations require your motor carrier to

provide other records for inspection, if

your motor carrier is a subject employer.

See 29 CFR part 516.

Subpart C—Roadside Out-Of-Service

Orders

§ 395.301 What must I do if I am declared

out of service for violations of this part?

You must not drive a CMV until you

have taken the minimum consecutive

hours off duty required to restore

compliance with §§ 395.141, 395.161,

and 395.163; complied with the terms of

the out-of-service order; and, for Type 1

or 2 drivers only, updated your time

record(s) to show the time on duty,

driving, and off duty accurately.

Subpart D—Emergency Operations

§ 395.401 What must I do if I need

immediate rest after providing direct

assistance in an emergency?

(a) Inform your motor carrier.

(b) Take at least ten consecutive,

uninterrupted hours off duty before

returning to your normal work reporting

location.

§ 395.403 What conditions must I meet

before I operate in interstate commerce

after providing direct assistance in an

emergency?

You must not drive in interstate

commerce until you have met the

following three conditions:

(a) You have been off duty for at least

ten consecutive hours, including a

period from midnight to 6:00 a.m.

(b) After providing direct assistance

for more than three consecutive days,

you have been continuously off duty for

a period of time that includes two

consecutive midnight to 6:00 a.m.

periods and at least 32 to 56 consecutive

hours.

(c) You have had at least one hour off

duty after 6:00 a.m.

PART 398—TRANSPORTATION OF

MIGRANT WORKERS

8. The authority citation for part 398

is revised to read as follows.

Authority: 49 U.S.C. 504, 14122, 31133,

31136, and 31502; sec. 113, Pub. L. 103–311,

108 Stat. 1673, 1676; and 49 CFR 1.73.

9. Section 398.6 is revised to read as

follows:

§ 398.6 Hours of rest and work; minimum

rest and maximum work time.

(a) If you are a motor carrier, you must

comply with the requirements of part

394 of this subchapter when

transporting migrant workers.

(b) If you are a driver, you must

comply with the requirements of part

395 of this subchapter when

transporting migrant workers.

[FR Doc. 00–10703 Filed 4–26–00; 4:10 pm]

BILLING CODE 4910–22–P