[Federal Register: April 28, 2003 (Volume 68, Number 81)]
[Rules and Regulations]
[Page 22455-22517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap03-19]
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Part II
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 385, 390, and 395
Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations;
Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 395
[Docket No. FMCSA-97-2350]
RIN 2126-AA23
Hours of Service of Drivers; Driver Rest and Sleep for Safe
Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA revises its hours-of-service (HOS) regulations to
require motor carriers of property to provide drivers with better
opportunities to obtain sleep, and thereby reduce the incidence of
crashes attributed in whole or in part to drivers operating commercial
motor vehicles (CMVs) while drowsy, tired, or fatigued. This action is
necessary because the FMCSA estimates that between 196 and 585
fatalities occur each year on the Nation's roads because of drowsy,
tired, or fatigued CMV drivers transporting property. The FMCSA
estimates that this final rule when adhered to fully will save between
24 and 75 lives each year as a result of giving truck drivers an
increased incremental amount of time to obtain rest and sleep.
DATES: The effective date is June 27, 2003, except for Sec. 395.0
which is effective from June 27, 2003, through June 30, 2004.
FOR FURTHER INFORMATION CONTACT: Ms. Mary M. Moehring, Division Chief,
Driver and Carrier Operations Division, Office of Bus and Truck
Standards and Operations, FMCSA, (202) 366-4001, 400 Seventh Street,
SW., Washington, D.C. 20590-0001.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
The following is an outline of the preamble.
Preamble Table of Abbreviations
Statutory Requirement
Agency Determination
Advance Notice of Proposed Rulemaking
Supporting Documents Notice of Proposed Rulemaking
Development of the Notice of Proposed Rulemaking
ATA Recommendation Submitted While NPRM Was Under Review at OMB
Notice of Proposed Rulemaking
Comments to the NPRM
General Overview
Use of an Independent Consulting Firm
FMCSA Response
Use of Science
FMCSA Response
Discussion of Specific Issues of Concern to Commenters
Categories of operations
FMCSA Response
Passenger carrier operations
FMCSA Response
NHS Act Exemptions
For-hire Trucking
Associations and Carriers That May Have NHS Act Sec. 345 Subject
Operations
Special Operations
Private Carriers of Freight
Safety Advocacy Groups
FMCSA Response
Sleeper berth requirements
Motor Carriers
Safety advocacy groups
Law Enforcement
FMCSA Response
Carrier notification of drivers during their off-duty hours
Motor Carriers
Safety advocacy groups
FMCSA Response
Daily work/rest cycle
General concept
ATA and DLTLCA Recommendations
Industry Comments
Private Carriers of Freight
Truckload Carriers
LTL Carriers
Driver Associations
Special Operations
Shippers
Safety Advocacy Groups
FMCSA Response
Daily off-duty time
Industry comments
Private carriers of freight
Truckload carriers
LTL carriers
Driver associations
Safety advocacy groups
FMCSA Response
Daily on-duty time
Industry comments
Private carriers of freight
Truckload carriers
LTL carriers
Driver associations
Special operations
Safety advocacy groups
FMCSA Response
Daily driving time
Industry comments
Private carriers of freight
Truckload carriers
LTL carriers
Driver associations
Special operations
Safety advocacy groups
FMCSA Response
Distinctions in duty time
General concept
ATA Recommendation
Other industry comments
Safety advocacy groups
FMCSA Response
Weekly or longer cycle
General concept
ATA Recommendation
Other industry comments
Safety advocacy groups
FMCSA Response
Weekly recovery periods
General concept
Industry comments
Safety advocacy groups
FMCSA Response
Short rest breaks during a work shift
General concept
ATA Recommendation
Other industry comments
Safety advocacy groups
FMCSA Response
Economic Impacts
Proposed costs
Industry reaction
Other industry comments
Advocacy groups
Proposed benefits
Safety advocacy groups
FMCSA Response
Electronic on-board recorders (EOBRs)
Industry comments
Other industry comments
Law enforcement comments
Safety advocacy groups
Vendors' comments
FMCSA Response
Proposed compliance and enforcement
Industry comments
Law enforcement
Safety advocacy groups
FMCSA Response
Regulatory Impact Analysis
PATT Alternative
ATA Alternative
FMCSA Staff Alternative
Safety impacts
Safety benefits
Changes in Crash Damages Due to Schedule Changes
Changes in Fatigue-related Fatalities Due to Schedule Changes
Adjustments to Benefits Due to Secondary Effects
Costs of the alternatives
Net benefits
Discussion of net benefit results
Limitations and Sensitivities
Costs and Benefits Relative to the Status Quo
Changes Compared to May 2, 2000 NPRM
Categories of operations
Passenger carrier operations
NHS Act Exemptions
Sleeper berth requirements
Carrier notification of drivers during their off-duty hours
Daily work/rest cycle
Daily off-duty time
Daily on-duty time
Daily driving time
Distinctions in duty time
Weekly or longer cycle
Weekly recovery periods
Short rest breaks during a work shift
Electronic on-board recording devices
Use of Department of Labor time records
Conclusion
Section-by-section evaluation
Appendix B to Part 385 Explanation of Safety Rating Process
390.23 Relief from regulations.
395.0 Compliance date for certain requirements for hours of
service of drivers.
395.1 Scope of the rules in this part.
395.3 Maximum driving time for property-carrying vehicles.
395.5 Maximum driving time for passenger-carrying vehicles.
[[Page 22457]]
395.13 Drivers declared out of service.
395.15 Automatic on-board recording devices.
Rulemaking analysis and notices
Preamble Table of Abbreviations
The following are abbreviations of terms used as well as
abbreviations of commenters' names in the preamble.
ANPRM--Advance Notice of Proposed Rulemaking
AHAS--Advocates for Highway and Auto Safety
AAA--American Automobile Association
ABA--American Bus Association
ACOEM--American College of Occupational and Environmental Medicine
AMSA--American Moving and Storage Association
ARTBA--American Road and Transportation Builders Association
ARA--Agricultural Retailers Association
ATC--Agricultural Transporters Conference
ATA--American Trucking Associations, Inc.
AGC--Associated General Contractors
AAR--Association of American Railroads
CTA--California Trucking Association
CRASH--Citizens for Reliable and Safe Highways
CDL--Commercial Driver's License
CVSA--Commercial Vehicle Safety Alliance
CFI--Contract Freight, Inc.
DLTLCA--Distribution and Less-than-Truck-Load (LTL) Carriers
Association
DOL--U.S. Department of Labor, Employment Standards Administration,
Wage and Hour Division.
DOT--Department of Transportation
FARS--Fatality Analysis Reporting System
FAA--Federal Aviation Administration
FHWA--Federal Highway Administration
FMCSA--Federal Motor Carrier Safety Administration
FMCSR--Federal Motor Carrier Safety Regulations
FRA--Forest Resources Association
GES--General Estimates System
GRP--Gross Regional Product
IME--Institute of Makers of Explosives
IIHS--Insurance Institute for Highway Safety
IBA--International Bakers Association
IBT--International Brotherhood of Teamsters
IC--Collection of information
ICC--Interstate Commerce Commission
ICCTA--Interstate Commerce Commission Termination Act
IVI--Intelligent Vehicle Initiative
Landstar--Landstar System, Inc.
LTL--Less Than Truckload
LCM--Logistics Cost Model
MCMIS--Motor Carrier Management Information System
MFCA--Motor Freight Carriers Association
NAICS--North American Industry Classification System
NASTC--National Association of Small Trucking Companies
NASS--National Automotive Sampling System
NERA--National Economic Research Association
NHS--National Highway System Designation Act of 1995
NHTSA--National Highway Traffic Safety Administration
NITL--National Industrial Transportation League
NIOSH--National Institute for Occupational Safety and Health
NPTC--National Private Truck Council
NRMCA--National Ready-Mixed Concrete Association
NSC--National Safety Council
NSTA--National School Transportation Association
NSF--National Sleep Foundation
NPRM--Notice of Proposed Rulemaking
OOIDA--Owner Operators Independent Drivers Association
PATT--Parents Against Tired Truckers
PMTA--Pennsylvania Motor Truck Association
PMAA--Petroleum Marketers Association of America
RIA--Regulatory Impact Analysis and Small Business Analysis for HOS
Options, December, 2002
RODS--Records of Duty Status
RSP--Regulatory Studies Program, Mercatus Center, George Mason
University
TL--Truck Load
UMA--United Motorcoach Association
UMTIP--University of Michigan Trucking Industry Program
VMT--Vehicles Miles Traveled
Watkins--Watkins Motor Lines, Inc.
Statutory Requirement
Section 408 of the ICC Termination Act (Pub. L. 104-88, December
29, 1995, 109 Stat. 803, 958) (ICCTA) requires rulemaking to increase
driver alertness and reduce fatigue-related incidents.
Agency Determination
When Congress created FMCSA, it provided that, ``[i]n carrying out
its duties the Administration shall consider the assignment and
maintenance of safety as the highest priority * * *'' [49 U.S.C.
113(b)]. As indicated above, Sec. 408 of the ICCTA directed the
agency--then part of the Federal Highway Administration (FHWA)--to
begin rulemaking dealing with a variety of fatigue-related safety
issues, including ``8 hours of continuous sleep after 10 hours of
driving, loading and unloading operations, automated and tamper-proof
recording devices, rest and recovery cycles, fatigue and stress in
longer combination vehicles, fitness for duty, and other appropriate
regulatory and enforcement countermeasures for reducing fatigue-related
incidents and increasing driver alertness) * * *'' [109 Stat. 958]. The
agency's statutory focus on safety and the specific mandate of Sec. 408
both demand that this rulemaking improve commercial motor vehicle (CMV)
safety. While recognizing the primacy of its safety mission, the agency
must comply with a variety of statutes and executive orders requiring
detailed analysis of the cost of regulations and consideration of their
impact on regulated entities and other segments of society.
The FMCSA analyzed three alternative regulatory proposals in depth.
Compared to the status quo, which includes a degree of non-compliance
with the current HOS rules, the option proposed by the American
Trucking Associations (ATA), would have marginally reduced fatigue-
related fatalities and somewhat increased the cost of regulatory
compliance. This results in a negative cost/benefit ratio. The option
suggested by Parents Against Tired Truckers (PATT) would have reduced
fatalities far more than the ATA option, but would have generated
significant increases in compliance and operational expenses. This
results in a cost/benefit ratio far more negative than the ATA option.
The third alternative was proposed by the FMCSA staff. The analysis
shows that this option would save many more lives than the ATA
alternative, though not quite as many as the PATT option. While it
would cost more than the ATA option, it would be much cheaper than the
PATT alternative. The net result is a cost/benefit ratio slightly more
negative than the ATA option but not nearly as negative as the PATT
option.
The FMCSA has adopted the third alternative for this final rule.
The rule represents a substantial improvement in addressing driver
fatigue over the current regulation. Among other things, it increases
required time off duty from 8 to 10 consecutive hours; prohibits
driving after the end of the 14th hour after the driver began work;
allows an increase in driving time from 10 to 11 hours; and allows
drivers to restart the 60- or 70-hour clock after taking 34 hours off
duty. Together, these provisions (and others discussed in detail below)
are expected to reduce the effect of cumulative fatigue and prevent
many of the accidents and fatalities to which fatigue is a contributing
factor. Because the agency's statutory priority is safety, we have
adopted a rule that is marginally more expensive than the ATA option
but which will reduce fatigue-related accidents and fatalities more
substantially than that option. The FMCSA believes that the rule
represents the best combination of safety improvements and cost
containment that can realistically be achieved.
Advance Notice of Proposed Rulemaking
On November 5, 1996, the FHWA published an advance notice of
proposed rulemaking (ANPRM) for this ICCTA proceeding (61 FR 57252).
The FHWA received and transcribed comments at six nationwide public
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listening sessions in March 1997 and placed these comments in the
docket. The FHWA recorded more than 1,588 written (paper and electronic
submissions) and transcribed oral comments to this docket after the
November 1996 ANPRM. The FHWA extended the comment period for the ANPRM
once to June 30, 1997.
The ANPRM discussed 33 relevant research studies the FHWA was aware
of in 1996. The FHWA requested that the public provide additional
research studies it believed to be relevant. The ANPRM comments
provided or referenced an additional 30 studies. The FHWA obtained and
examined these studies and identified additional research from 1997
through 1999 while developing an NPRM. See the index to all relevant
research studies and the annotated literature review. The FHWA began
developing a set of alternatives to analyze based on more than 120
research studies included in the docket.
Supporting Documents Notice of Proposed Rulemaking
On April 20, 1998, the FHWA published a notice of proposed
rulemaking (NPRM) requesting comments on a proposed definition of
``supporting documents'' for the HOS regulations (63 FR 19457) in
response to the Hazardous Materials Transportation Authorization Act of
1994, Pub. L. 103-311, 108 Stat. 1673 (August 26, 1994) (HMTAA).
Section 113 of the Act requires the Secretary of Transportation to
prescribe regulations amending 49 CFR Part 395 to improve both (1)
compliance by CMV drivers and motor carriers with the HOS requirements,
and (2) the effectiveness and efficiency of Federal and State
enforcement officers reviewing such compliance.
The April 1998 NPRM proposed that motor carriers develop and
maintain effective auditing systems to monitor the accuracy of the
drivers' Records of Duty Status and HOS. The NPRM proposed that failure
to create and maintain such a system would result in motor carriers
being required to retain various types of business documents. The use
of electronic recordkeeping methods was also proposed as a preferred
alternative to paper records.
Development of the Notice of Proposed Rulemaking
The entire effort to revise the HOS regulations has been based on
the concept that new rules would be science-based. This was the theme
throughout the development of alternatives leading up to the
publication of the May 2000 NPRM. Science was often cited by industry
as the basis upon which the HOS rules should be reformed. Several modal
administrations within the DOT, including the FMCSA, had undertaken
significant research into fatigue causation and the dynamics of sleep.
There was general recognition that the existing rules for the truck and
bus industries had been implemented well before there had been a clear
scientific understanding of fatigue causal factors (e.g., time of day,
amount and timing of sleep, time awake, and time on task). The agency
collected many relevant studies by authorities in the area of fatigue.
It also completed its own comprehensive Commercial Motor Vehicle Driver
Fatigue And Alertness Study, a joint undertaking with Canada and the
trucking industry. In preparing the May 2000 proposal, the agency
assembled an expert panel of recognized authorities on traffic safety,
human factors, and fatigue to review the science and evaluate
potentially effective and reasonably feasible regulatory alternatives.
The resulting agency proposal relied heavily on scientific conclusions
based on the research and analysis in Belenky, G., McKnight, A.J.,
Mitler, M.M., Smiley, A., Tijerina, L., Waller, P., Wierwille, W.W.,
Willis, D.K., (1998), Potential Hours-Of-Service Regulations For
Commercial Drivers; Report of the Expert Panel on Review of the Federal
Highway Administration Candidate Options for Hours of Service
Regulations.
Regulatory reform of drivers' HOS in the truck and bus industries
had been the subject of consideration by the agency for close to ten
years before publication of the May 2000 NPRM. The FHWA's Office of
Motor Carriers maintained an intensive driver fatigue research program
starting in 1989. Truck and motorcoach driver fatigue had been
identified and discussed by many industry analysts and safety advocates
as a significant motor carrier safety issue. Major aspects of the
proposal had been the subject of trade journal stories for nearly a
year before the NPRM was published.
ATA Recommendation Submitted While NPRM Was Under Review at OMB
On December 3, 1999, the agency submitted the draft NPRM for review
to the Office of Management and Budget (OMB) as required by Executive
Order 12866.\1\ The ATA submitted Recommendations for Future Hours of
Service Rules to the DOT two weeks later on December 15, 1999. The ATA
proposed that the agency ``* * * issue a notice of proposed rulemaking
and ultimately a final rule based on the ATA recommendations.'' The ATA
stated that its proposal was based ``* * * on sound science, public
safety and the needs of the American economy.'' The 16th item of the
ATA recommendation stated that ``[u]pon publication of the [FMCSA]
proposal, ATA should contract with a firm to analyze the government's
cost/benefit analysis, and if warranted, conduct its own cost-benefit
analysis for comparison.''
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\1\ OMB Office of Information and Regulatory Affairs Internet
page for ``Regulations Pending and Reviews Completed Last 30 Days''
dated 08 Dec 99.
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The ATA addressed its recommendation both to the Secretary of
Transportation and the OMB director. The agency had already considered
and analyzed five alternatives it believed were reasonably feasible to
implement. The agency chose not to withdraw its draft NPRM from review
at OMB to add a sixth ATA alternative and delay the draft NPRM further.
The OMB approved the agency's draft NPRM for publication on April 24,
2000.
Notice of Proposed Rulemaking
On May 2, 2000, FMCSA published an NPRM covering a comprehensive
revision of the HOS regulations (65 FR 25540). The FMCSA received and
transcribed 700 comments at eight nationwide public hearings in May,
June, and July 2000 and placed these comments in the docket referenced
at the beginning of this document. After holding the first seven public
hearings, the agency identified several recurring themes and issues
that warranted additional stakeholder and public discussion. The agency
conducted three two-day public roundtable discussions in September and
October 2000 in Washington, D.C. for that purpose. A transcript of each
day of the public roundtable discussions is also in the docket. The
FMCSA extended the comment period for the May 2000 NPRM twice, first to
October 31, 2000, and then to December 15, 2000. The FMCSA has recorded
more than 53,750 written (paper and electronic submissions to the
docket) and transcribed oral comments in response to the May 2000 NPRM.
Comments to the NPRM
General Overview
The comments to the May 2000 proposal reflected widespread
recognition of the enormity of the undertaking, and many commenters,
even those strongly opposed to the NPRM, acknowledged the difficulty in
sifting through the data and presenting the issues. The hearings gave
many an opportunity to express themselves on a
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variety of issues. The roundtable discussions provided an opportunity
to focus on the specific major issues mentioned at the hearings and
helped some commenters to explain their reasons for opposing or
supporting the NPRM. The reactions of many commenters reflected
apprehension about the effects on their jobs, earnings, businesses,
method of operation, competitive status, and protection from what they
perceived to be a drastic change from the status quo.
The generally unfavorable comment and reaction to the NPRM led to
expressions of Congressional concern regarding any short-term effort to
promulgate a final rule. The FY 2001 DOT Appropriations Act, Pub. L.
106-346, prohibited the agency from moving to a final rule during that
year. The FY 2002 DOT Appropriations Act, Pub. L. 107-87, prohibited
promulgation of a final rule dealing with any of the HOS exemptions in
the National Highway System Designation Act of 1995, Pub. L. 104-59,
Sec. 345, 109 Stat. 568, 613 (NHS). This action reflects careful
consideration of the concerns expressed by members of Congress as well
as the more than 53,000 comments to the docket.
Use of an Independent Consulting Firm
The National Safety Council (NSC), American Bus Association (ABA),
American Trucking Associations, Inc., and Distribution and LTL Carriers
Association (DLTLCA) petitioned FMCSA to retain an independent
consulting firm to study the safety and economic impacts of any next
action. The DLTLCA believed ``that such an approach, used previously by
DOT in the prior proceeding on these hours-of-service rules, is in the
interest of all the participants, FMCSA, and the public.''
FMCSA Response
The FMCSA has chosen to grant this petition. The agency hired an
independent consultant who performed an exhaustive analysis of several
regulatory alternatives, described below.
Use of Science
Numerous trucking industry commenters applauded the agency for its
attempt to use science as the basis for HOS reform. Although these
commenters found little on which to disagree with the agency about the
actual research into the science of fatigue, they consistently faulted
the agency for the way it applied that science in the real world. They
commented that the proposed rules lacked the flexibility necessary to
apply the science in an operationally practical manner. The industry
position was perhaps best summed up in the comments of the National
Private Truck Council (NPTC). ``While the fatigue research may confirm
that people do get tired, and that they can become more tired between
midnight and 6 a.m., this must be weighed against the result of pushing
nighttime runs into daylight hours.''
The trucking industry also found much to disagree with regarding
the analysis of the accident and compliance data used by the agency to
justify many of the provisions of the proposal.
The ATA found little support for the agency's position that the
proposed rules would save 755 lives annually once industry adhered to
the proposal fully.
The ATA repeatedly cited crash statistics of the National Highway
Traffic Safety Administration and FMCSA showing fatigue to be a factor
in no more than five percent of fatal accidents involving trucks.
The ATA referred to work done by the Michigan State Police in
conjunction with the University of Michigan to try to isolate causes of
fatal truck crashes in Michigan. They identified 267 truck-involved
fatal crashes from 1966 to 1999, 72 of which were determined to be the
fault of the truck driver. They stated only five of those 267 crashes,
or 1.8 percent, were attributable to fatigue.
The National Association of Small Trucking Companies (NASTC)
commented that fatigue is a ``naturally occurring phenomenon'' and man
has been provided with naturally occurring defenses, which he has to
manage. NASTC believes the agency ought to rely on promoting fatigue
management alternatives rather than trying to regulate what is probably
individual to each person.
The industry was also critical of the FMCSA for failing to do
enough research into the safety consequences of shifting considerable
nighttime truck traffic to the daytime.
Several enforcement agencies including the New York State Police
applauded FMCSA's effort to utilize sleep research data in developing
new rules to combat driver fatigue. It cautioned the agency, however,
against placing total reliance ``on the data obtained through this
research since this data is certainly open to interpretation.''
The American Automobile Association (AAA) found positive attributes
in the proposal. The AAA believed the proposal represented a
significant effort to draft science-based HOS regulations. The NPRM, it
said, provided a workable framework taking into account science and
expert opinion in areas of sleep research and traffic safety.
The AAA, however, believed the agency had misapplied some of the
scientific findings. The AAA also stated the proposal should focus on
where ``we know we have a problem.'' The AAA believed long haul, over-
the-road drivers face challenges that could benefit from improved work/
rest practices. The AAA pointed to the Hanowski, Wierwille, Garness,
Dingus study Impact of Local/Short Haul Operations on Driver Fatigue
(2000), Report No. DOT-MC-00-203, a study that had not been completed
before the proposal. This study concluded that fatigue may be less
problematic for local/short haul drivers, as they are more like workers
in non-driving professions than long haul drivers. The AAA strongly
recommended that the agency reconsider those parts of the proposed
rulemaking that would apply HOS requirements to industries where there
is no demonstrable evidence that driver fatigue results in accidents.
The American College of Occupational and Environmental Medicine
(ACOEM) also had a cautionary message. Noting that fatigue is an
important issue, not only for safety, but also for productivity, the
ACOEM observed that occupational medicine's prime job is matching the
interface of the worker with the workplace, and then understanding that
interface. There is a tremendous amount of research in this area, but
it is relatively young, only 20 to 30 years old. The ACOEM found that
taking the science and making it operational, as in scheduling, is
quite challenging and questioned the value of regulating driving
schedules as the fatigue problem is much more complex. The ACOEM
recommended deferring further action on the proposal until more
information is available.
The National Sleep Foundation (NSF) was very supportive of the
proposal. It cited the three general principles in its Policy Statement
of February 2000 anticipating the publication of the proposed rules:
New regulations must be based on current scientific research and
understanding regarding fatigue and driver performance.
An effective system to manage fatigue should include
prescriptive regulations that can be monitored and enforced by
compliance officers and, above all, provide adequate rest periods
with reasonable, responsible limits on driving.
HOS rules alone cannot regulate driver fatigue and alertness.
Ultimately, it is the shared responsibility of all interested
parties to develop a system that helps promote proper fatigue
management through education and training.
[[Page 22460]]
The NSF concluded, ``Where science is clear, we state the proposed
rules conform to the best available science. Where science is less well
developed, we state the proposed rules represent a reasonable balance
between operational considerations and broad principals of sleep
practice.'' (sic) It also noted that the proposed rules tracked closely
the NSF's policy statement and the Expert Panel's recommendations, and
that they provided significant improvement over the current rules.
The Insurance Institute for Highway Safety (IIHS) mentioned several
drawbacks in studies trying to link fatigue to crashes. IIHS stated
that one cannot calculate fatigue-related crashes by looking at police
reports or National Automotive Sampling System (NASS) reports because
they will always understate fatigue. IIHS believes the correct method,
called ``population percent attributable risk calculations,'' is to
take the increased risk of crashes from driving longer hours and to put
that into a formula together with the rate of drivers driving longer
hours.
Many commenters urged the use of pilot studies to test some of the
rules before generally mandating them on the industry. There was
particular interest in piloting the use of on-board recorders.
There was also interest in developing a more holistic approach to
the fatigue problem through the use of education and training programs,
and screening for sleep apnea and other sleep disorders. This was
usually mentioned in the context of fatigue management.
FMCSA Response
There was no serious challenge to the scientific findings that
human beings are subject to a circadian, biological clock of about 24
hours, which controls the natural wake/sleep cycles. Nor was there any
serious doubt about the science concluding that humans require about
eight hours of restorative sleep daily and that a longer off-duty
period than currently required is necessary so that the needed sleep
can be obtained. The studies citing police accident reports for the
causal factors consistently show a lower proportion of crashes with
fatigue/drowsiness as a causal factor than do detailed studies of crash
causation.
The agency sought to develop rules that were science-based. It did
not promise rules that were science-``controlled'' to the point of
being completely impractical in operational environments.
After the agency completed reviewing the 53,000 comments, including
the hearing and roundtable transcripts, it began deliberating whether
all the provisions of the proposal continued to be feasible.
Discussion of Specific Issues of Concern to Commenters
The agency will discuss the comments received in the docket about
each of the following issues: categories of operations; passenger
carrier operations; NHS exemptions; sleeper berth requirements; carrier
notification of drivers during their off-duty hours; daily work/rest
cycle; 24-hour work/rest cycle; daily off-duty time; daily on-duty
time; daily driving time; distinctions in duty time; weekly or longer
cycle; weekly recovery periods; restarts; short rest breaks during a
work shift; economic impacts; electronic on-board recorders; proposed
compliance and enforcement; and regulatory impact analysis.
Categories of Operations
The FMCSA proposed a categorization of motor carrier operations
intended to address the diversity of the industry. The NPRM proposed
five types of operations, into which most motor carriers subject to
federal jurisdiction would fall. For each category a separate set of
duty restrictions was proposed for the drivers in that type of
operation. Types 1 and 2 were intended to cover all long-haul drivers,
i.e., national and regional operations, respectively. The remaining
three types were intended to include the various practices of local
operations. The agency proposed the additional requirement of
electronic on-board recording (EOBR) devices to monitor drivers in Type
1 and 2 operations, while reducing the paperwork burden for most local
operations. Type 3 was intended to cover local split shift drivers who
spend most of their on-duty time driving, but most are local (or home-
based), and their driving shifts are generally separated by several
hours. Type 4 was intended to cover drivers who work in the vicinity of
their normal work reporting location, have regular schedules extending
less than 12 consecutive hours from the time they report in until they
check out. Driving would have been a significant part of Type 4
drivers' work, more than half of their on-duty hours. Drivers currently
operating under the 100 air-mile radius exception in 49 CFR 395.1(e)
would have been considered Type 4 drivers, and would have been absorbed
into this category, eliminating the need for that exception. The FMCSA
also intended that most existing exemptions would be absorbed into one
of the local types of operations, primarily Type 5, to reduce the need
and the demand for individualized exemptions.
The comments from industry on the categories of carrier operation
were generally unfavorable. While many comments applauded the agency's
efforts to remove the ``one size fits all'' concerns about existing
regulations, most stated the proposal missed the mark. The National
Private Truck Council's (NPTC) comments perhaps best captured the
industry perception: ``It's true that one size does not fit all, but
neither should the agency decide how many sizes there are nor
anticipate how many sizes there will be in the future.''
The most consistent objection from motor carriers was that the
proposed categories unnecessarily complicated regulation for both the
industry and for enforcement.
Many carriers expressed concern that they had trouble finding the
type that best described their operation or that their operations
spanned more than one type, and sometimes as many as four. When a
driver's duties changed from one type to another within a workweek,
there was much confusion about whether the proposal required a
``weekend'' to intervene, whether EOBRs would be required for a single
run, and which daily or weekly limitations applied. Uniformly, however,
comments stated that some productive time would be lost in the
transition.
The industry comments did not offer significant advice as to
whether a better defined classification system was preferable or
workable.
Industry commenters did not seem uncomfortable with the concept of
``long-haul'' trucking, as that is a common term and generally
associated with freight movements over a considerable distance, as
opposed to local service. Comments, however, did have difficulty with
some of the other distinctions used in the NPRM.
Nearly all of the local carriers responding found some problems
with the attempted classification, often calling it confusing. However,
many found the effort to be supportive of their persistent attempts to
secure broad exemptions from HOS regulation for their type of
operations.
Types 3, 4, or 5 drew much attention from the other-than-long-haul
sectors, but a major focus of many comments was why the rules could not
or should not apply to their particular circumstances. Many noted that
their operations might fit into Type 4 but for the occasional trips
that take more than 12 hours or may require an overnight stay by the
driver, while others found
[[Page 22461]]
Type 5 more accommodating but could not fit because of an unexplained
exclusion of for-hire carriers.
Comments from the enforcement community stated that classification
by type would only create confusion and make their jobs at the roadside
more difficult and time-consuming.
Public interest groups gave little attention to the general concept
of classification and focused rather on the particular restrictions and
obligations that were tied to each of the operations.
FMCSA Response
This final rule establishes a uniform set of regulations for all
cargo-carrying operations while allowing passenger-carrying operations
to continue under the current rules. In addition, Congressionally-
mandated and historical exemptions and exceptions are retained. The
final rule will not categorize any segment of the industry in the
manner that the NPRM proposed. The agency believes the rule strikes a
balance between uniform, consistent enforcement and the need for
operational flexibility.
The FMCSA developed the categorization proposal to improve safety
based on calculated risk, to respond to ``one size fits all''
criticism, and to reflect the diversity of the industry. The primary
purpose for the categories was to address the highest risk, long-haul
operations, so that those operations with the least risk of serious
crashes would not be required to alter their operations.
Comments from across a spectrum of stakeholders found the proposed
categorization did not work for a multitude of reasons. The comments
have shown that the categories created confusion, problems for
enforcement, and did not fully meet the objective of accommodating the
diversity of the industry. The distinction between an over-the-road
truck driver and a local truck driver, however, had fairly broad
acceptance among the motor carrier commenters using trucks. The
agency's own research associated a significant portion of the fatigued
commercial driver problem with the long-haul operation of tractor-
trailer or tractor-semi-trailer combinations. For these reasons, FMCSA
has decided to drop the categories proposed in the NPRM.
Passenger Carrier Operations
The proposal made no separate provisions for operators engaged in
the transportation of passengers. The current rule also makes no
separate provisions for such operators. The FMCSA had no basis to
conclude that fatigue affects passenger carrier drivers differently
than truck drivers. Thus, the agency believed the same HOS rules should
apply. The NPRM recognized certain distinct characteristics in
motorcoach operations by proposing different types of trips for which
various restrictions would apply. The Type 3 category was meant to
accommodate some tour operations and commuter bus services. Motorcoach
industry associations, individual carriers and the Amalgamated Transit
Union (ATU), representing intercity bus drivers, filed extensive
comments, and participated actively in the public hearings and
roundtable discussions. The reaction from the motorcoach industry to
the proposal was disappointment with the proposed rules in general and
more particularly with the agency's failure to recognize the difference
between driving a bus and driving a truck.
The Conference Report for the 2001 DOT Appropriations Act contains
the following reference to this issue:
Motorcoach driver fatigue. The conferees note that the agency
acknowledged in its NPRM on hours-of-service that little is known
about the operations of over-the-road buses and motorcoachs. The
conferees state that there should be additional study of the
operations, driver practices and driver fatigue issues specific to
over-the-road buses before any revisions to the existing trucking
hours-of-service rules are finalized, and encourage the Secretary to
conduct such studies to inform additional regulatory proposals in
this area. See H. Conf. Rept. No. 106-940, 106th Cong., 2d Sess., p.
113 (2000).
The American Bus Association (ABA), the United Motorcoach
Association (UMA), and other motorcoach, convention, and tour
associations, ATU, NSC, and CVSA urged the agency to not subject
passenger transportation to the proposed rules, thus allowing them to
continue to operate under the currently existing rules. Among the
reasons given for their request taken from the ABA comment:
(1) There is no scientific, statistical, or other evidence to
support changes for bus drivers;
(2) Commercial passenger vehicles are operated in an environment
entirely different from commercial freight carriers;
(3) The exemplary safety record of the industry will be compromised
by the proposed rules; and
(4) The economic impact will be devastating.
The ABA agreed with other critics questioning the agency's estimate
that 15 percent of truck-involved fatalities are caused by the fatigue
of the commercial vehicle driver.
However, the ABA asked what part of that 15 percent was supposed to
be related to bus transportation. According to the ABA's review of the
Fatality Analysis Reporting System (FARS), an annual average of 42.5
fatalities was attributable to crashes involving intercity buses, which
the ABA disputed due to definitional problems. Even taking these data,
ABA stated that 15 percent of 42.5 amounts to less than 7 fatalities
per year. The ABA argued the commercial passenger carrier industry
averaged 0.01 passenger fatalities per 100 million passenger miles for
1995 through 1997 and asserted that this ranked well below the rate for
rail and air passenger transportation at 0.04 passenger fatalities per
100 million passenger miles (from Industry Facts 1999, NSC, p. 122.)
The ABA also pointed out the significant differences, both
operational and mechanical, between buses and trucks that would
undermine the agency's basis for the proposed revisions.
In its comments, the ABA pointed out that all intercity bus drivers
are paid by the hour and run on preset schedules, thereby eliminating
any incentives to violate the present HOS restrictions.
The ABA cited section 408 of the ICCTA for the proposition that DOT
is required to consider the economic vitality of the motor carrier
industry in its regulation of motor carriers, drivers, and CMVs. The
ABA claimed that FMCSA had made no attempt to assess the cost of this
proposal to the motorcoach industry and asserts FMCSA had failed to
meet its obligations under controlling law and policies.
The ABA reiterated most of the ATA and other commercial freight
carrier associations' criticisms of the agency's cost/benefit analysis.
It cited the ATA's submission to the docket of the Center for
Regulatory Effectiveness' (CRE's) The CRE Report Card on DOT's Proposed
Rule on Hours of Service For The Motor Carrier Industry, listing 62
legal and other procedural requirements that it believes the FMCSA must
use.
The National Tour Association claimed that never in 20 years have
its members experienced so much as a minor injury due to a motorcoach
accident. Motorcoach travel, in their opinion, is the safest form of
commercial passenger travel, and the NTA argues there is no
justification for regulating bus and truck operations together. Of the
150 studies cited in the preamble, NTA argued that none deal with bus
drivers. The NTA stated the proposal would only cause increased costs
and heartache for the bus industry with no safety benefit; in fact,
they
[[Page 22462]]
stated that the opposite effect is more probable. The proposal,
according to NTA, was simply unnecessary and unfair.
The Convention and Visitors Association, which promotes the
Washington, DC area as a primary tourism destination, commented that
about one-third of all visitors to the Washington, DC area arrive by
motorcoach. It estimated that the Washington area would lose 20 percent
or 1.5 million visitors because of the inconsistency between the
provisions of the proposal and the way the tour bus industry actually
operates.
National School Transportation Association (NSTA) members provide
transportation services to public school districts and private schools
nationwide. Noting the specific exemption from 49 CFR parts 387 and 390
through 399 for transportation of pupils from home to school and school
to home, the NSTA observed that school transportation nearly always
includes school activity transportation as well. Strict adherence to
the proposal would cause a disruption in current operations and could
result in a shortage of available drivers. If school bus companies
could use their regular route drivers to provide activity
transportation, they could not service their contracts, because more
drivers are simply not available. The NSTA recommended that all school
bus drivers be held to the same standard, whether public or private,
because they do the same things. It also recommended a separate
category for school bus operations, and suggested that the FMCSA
convene a roundtable discussion devoted to this issue. That would allow
all issues to be worked out consistent with safety and economic
practicality.
CVSA stated the agency must conduct medical and performance
research on the bus and motorcoach industry to validate (or invalidate)
the position in the proposal. It argued that basing such sweeping rule
changes on assumptions that are not substantiated is not prudent public
policy.
The NSC stated that the intercity motorcoach industry should be
excluded from the HOS proposal. NSC asserted that the statement that
the agency has ``assumed that bus drivers operate in ways similar to
truck drivers'' was questionable for a rule purported to be based on
``sound science'' and underscored the agency's lack of understanding of
the motorcoach industry's unique operating characteristics. NSC further
stated there is no safety evidence to support including the motorcoach
industry in the proposed changes.
FMCSA Response
The FMCSA is persuaded by comments that it does not have enough
data to indicate a problem in the motorcoach industry segment and is
not adopting any new rules for motorcoach drivers in this final rule.
The FMCSA may consider the feasibility of other alternatives to reduce
fatigue-related incidents and increase motorcoach driver alertness in
the future.
The FMCSA relied on four motorcoach studies in the NPRM, three
completed by the FMCSA's predecessor, the FHWA, and one from Australia.
See:
(1) Strategies to Combat Fatigue in the Long Distance Road
Transport Industry, The Bus and Coach Perspective, 1993, Australia
Transport and Communications' Federal Office of Road Safety;
(2) A Study of the Relationships Among Fatigue, HOS, and Safety of
Operations of Truck and Bus Drivers, 1972, Harris, et al.;
(3) Effects of HOS Regularity of Schedules, and Cargo Loading on
Truck and Bus Driver Fatigue, 1978, Mackie, Robert R., and Miller,
James C.; and
(4) Critical Issues Relating to Acceptance of CVO Services by
Interstate Truck and Bus Drivers, 1995, Penn + Schoen Associates, Inc.
In addition, the FMCSA is nearing completion of the study required
by the Conference Report for the 2001 DOT Appropriations Act. The
agency is reviewing the draft final report. The FMCSA is not adopting
any changes today because: (1) The agency has not yet confirmed that
the new study had been designed correctly, that the process used could
meet scientific scrutiny, and that the conclusions reached are
reasonable; and (2) the public has not had the opportunity to review
and comment on the study. When the study is approved, the agency will
publish it and consider whether non-regulatory actions or regulatory
revisions may be needed.
NHS Act Exemptions
The FMCSA hoped that categorizing operations would reduce the
continuing demand for exemptions from the HOS regulations. In the NPRM,
the agency noted that creating the Type 5 operation, Primary work not
driving, would remove the need for special exemptions. This category
was intended to include the various utility service workers,
construction equipment operators, environmental remediation
specialists, oilfield service workers, water well drilling operations,
mobile medical equipment drivers, driver-salespeople, as well as other
specialized driving operations.
Congress became involved in the consideration of exemptions,
culminating in Sec. 345 of the NHS Act where it mandated exemptions
from all of the HOS provisions of the Federal Motor Carrier Safety
Regulations (FMCSR) for those individuals transporting crops and farm
supplies during planting and harvesting seasons and partial relief from
the 7 or 8 day HOS limit for groundwater well drilling, construction,
and utility service vehicle operations of motor carriers. A fifth
provision allowed States to exempt from the commercial driver's license
(CDL) regulations employees of towns with a population of 3,000 or less
who are called to drive snow plows or salting/sanding vehicles when the
regular CDL holder is unavailable or needs assistance. With respect to
all, except the groundwater well drilling exemption, the Secretary was
authorized to prevent, modify, or revoke each exemption after a
rulemaking proceeding upon a determination that the exemption was not
in the public interest and would have a significant adverse impact upon
the safety of commercial motor vehicles. Under the terms of the
statute, two of the exemptions were to take effect immediately, and the
other three within 180 days of the date of enactment.
On April 3, 1996, the agency published a final rule codifying the
NHS Act exemptions [61 FR 14677]. This rule deferred any rulemaking
action concerning whether to modify or revoke any exemption.
The FHWA received a petition on July 3, 1996, from the Advocates
for Highway and Auto Safety (AHAS), which, citing the statement in the
April 3 notice that the agency had ``decided not to proceed with such a
rulemaking proceeding at this time,'' sought to have the agency
reconsider the exemptions. The FMCSA granted the AHAS petition.
The FMCSA noted its intention to modify 3 of the 4 NHS-legislated
HOS exemptions in the NPRM. In addition, the FMCSA proposed narrow
definitions for terms used in the legislation that Congress had not
defined. The FMCSA had been interpreting the terms narrowly since April
1996. The NPRM was intended to assist law enforcement officers by
explaining exactly what the definitions were for certain terms, such as
``agricultural commodities'' and ``farm supplies,'' based on the
agency's narrow interpretations of the terms used.
Except for the agricultural exemption, which was a general
exemption from all
[[Page 22463]]
HOS regulations for certain agricultural operations in a limited
geographic area during planting and harvesting seasons, the exemptions
granted were in the form of a 24-hour restart of the 60- or 70-hour
restrictions. In creating the Type 5 operational category, the FMCSA's
intent was to accommodate all existing 24-hour restart exemptions. The
ICC first allowed a 24-hour restart provision for drivers of specially
constructed oilfield servicing vehicles on April 13, 1962. It did not
discuss the safety or economic impacts in its decision, see 89 M.C.C.
19 and 27 FR 3553. It should be noted that the FMCSA intended that the
proposed 32-hour period would operate as a ``restart'' of a workweek
with respect to Type 5 operations.
However, associations and individuals representing agricultural
transporters, the construction industry, utility vehicle operators,
oil-well drillers and other operations that currently have a 24-hour
restart provision stated that FMCSA's proposal to use Type 5 as a
catch-all for current exemptions simply did not work. Each segment had
its own operational idiosyncrasies, many duty schedules in split days
off, but more often in unpredictable demand, making it, in their view,
impractical for them to use not only Type 5, but also any of the other
types proposed.
For-Hire Trucking
The ATA made several arguments against the NPRM's treatment of
exemptions or exceptions. First, it contended that several exceptions
(in addition to those created by Sec. 345) have been in place for
years, and that carriers have built their businesses around them. To
summarily remove them without any supporting evidence would create
substantial hardship.
Second, it noted that some of the exemptions were granted by the
NHS statute with a required procedure for eliminating or modifying
them. The ATA alleged the FMCSA failed to follow the required
procedures.
Third, it asserted that requiring the states to adopt the proposed
federal requirements, eliminating even State exemptions within three
years, was unreasonable and unnecessarily interfered with State
discretion. The ATA addressed each of the exceptions or exemptions
currently in the regulations.
Associations and Carriers That May Have NHS Act Sec. 345 Subject
Operations
The Agricultural Retailers Association (ARA) stated that although
farming and related supply businesses operate year round, their busiest
time is during planting and harvesting seasons. During those times,
which are defined by State law, many farmers and suppliers are eligible
for an exemption from the HOS regulations under Sec. 345 of the NHS
Act.
The ARA commented that most drivers operate locally, on farm roads,
and sleep at home every night. Although pleased that the agricultural
exemption was to be retained, the ARA commented that the proposal
appeared to negate the exemption. The ARA recommended that certain
language be deleted.
The ARA also pointed out an apparent inconsistency between the
proposed regulatory language and the section-by-section analysis. Both
refer to the ``weekend'' provision and when it would apply to drivers,
including agricultural exempt operations. One said ``more than five
consecutive days'' and the other said ``more than three consecutive
days.'' ARA stated both were in error because they would require a
driver and truck to be idled for up to 56 hours merely because a driver
completed a task at a farm taking three or five days. It recommended
the number of exempt driving days requiring a ``weekend'' rest period
be set at seven.
The Agricultural Transporters Conference (ATC) stressed the
importance of servicing crops at appropriate times, a situation ATC
argues is analogous to emergencies. ATC members have been operating
under the NHS exemption since 1995 and believe there is no evidence
that safety has been compromised. ATC stated that the agriculture
definitions in the NPRM are too restrictive and that problems will
inevitably arise. For example, a supplier's driver delivers anhydrous
ammonia to the farm, applies it to the fields, and then stops at a
wholesaler to fill his tank on the way back to the supplier's yard. He
would be exempt on the delivery, but not on the pick up.
The Forest Resources Association (FRA) wanted loggers and other
forest harvesters to be allowed to operate under the agricultural
exemption. According to FRA, its members' drivers deliver 86 percent of
all raw forest products consumed in the United States. The FRA
commented that drivers typically deliver three loads a day with an
average round trip of 126 miles, well within a 100 air-mile radius.
The National Rural Electric Cooperative Association argued that the
NPRM did not meet the statutory requirement in Sec. 345 for modifying
the exemptions through rulemaking.
The Edison Electric Institute suggested that the FMCSA look to
State and local experience for the handling of small, local emergencies
like power failures.
Qwest, a private motor carrier, claims that its crash rates are low
and that it has experienced no rise in crashes when it increases a
driver's time on-duty. In the past, Qwest claims it has worked drivers
extra hours pursuant to the emergency exemption of the current HOS
rules. On those occasions, Qwest claims it has had no increased crash
rate. Qwest also finds no significant difference in its crash rates in
States that afford it HOS exemptions as opposed to those that do not.
Qwest contends this is evidence that utility service drivers do not
present a highway safety risk sufficient to justify HOS regulation.
Qwest sought an exemption for telephone line repair drivers, who
operate mostly under emergency conditions.
Special Operations
The basic position of the Associated General Contractors (AGC) was
that construction industry truck drivers operate under conditions that
do not lead to fatigue or alertness problems and that HOS regulations
for them are unnecessary. AGC contends that the current regulations
were designed for over-the-road drivers, and that Congress recognized
this in 1995 by providing the construction industry with a 24-hour
restart provision in the NHS Act. AGC argues the FMCSA is seeking to
undo what Congress had directed it to do. AGC argues that Congress, in
the 1998 reauthorization of the national highway program, increased
funding by 44 percent, recognizing the need for infrastructure
improvements. The FMCSA's proposal, by placing unnecessary restrictions
on construction operations, would threaten to undercut that mission.
Private Carriers of Freight
The PMAA commented that the FMCSA treated the agricultural
exemption too narrowly, defining ``farm supplies'' to mean only those
products ``directly relating to farming activities of planting,
fertilizing, and harvesting crops that are delivered directly to a
farm.'' The fuel demands of farmers during the planting, harvesting and
crop-drying seasons only add to the constant demands of other
consumers. This places a great strain on the workday of typical
drivers, because of long delays at the terminal rack.
The PMAA argued that FMCSA: (1) Need not preempt the ability of
States to manage these matters; (2) should allow intermediate
deliveries to be covered under the exemption; and (3)
[[Page 22464]]
should permit longer workdays during critical seasons.
Safety Advocacy Groups
The AHAS determined that it could not support the agency's proposal
to eliminate the NHS exemptions through use of the Type 5 driving
category because the absence of an EOBR requirement would prevent
adequate monitoring and enforcement. It argued that the substituted
regime of a 78-hour week with only 32 hours off before the next week
begins was excessive and that enforcement problems would allow even
these liberal limits to be exceeded. In effect, AHAS said the agency
would extend NHS-type exemptions to all construction operations, even
beyond 50 miles, without sufficient opportunity for comment. The
agency's approach to eliminating NHS exemptions appeared to deregulate
construction and utility operations. Finally, the elimination of the
Tolerance Guidelines as proposed in the NPRM would effectively require
States to increase current driving limitations from 10 hours to 12.
The AHAS recommended that the agency treat construction and
agricultural exemptions in a separate rulemaking, which would better
conform to the requirements of the Administrative Procedure Act.
FMCSA Response
There are no data on fatigue that support either the 24-hour
restart provisions for oilfield, construction, ground water, or utility
carriers, or the total HOS exemption for agriculture provided by Sec.
345. The NPRM proposed modifying the 24-hour restart into a restart
provision of between 32 and 56 hours, depending on when the period
began. The agency cited data that did support a 32-hour restart
provision. The agency's expert panel verified that data.
The NPRM gave AHAS the opportunity to present its case that
modifications for the NHS exemptions were necessary. AHAS did not
provide any data.
The NPRM treated the agricultural exemption narrowly, as the agency
has done with all the NHS exemptions in interpretations and opinion
letters since 1996. Congress did not define the terms for which FMCSA
proposed definitions; the agency believes it must define the terms
narrowly to maintain safety and prevent abuse. The FMCSA, however, will
take no actions contrary to the statutes on the matter of NHS
exemptions.
Sleeper Berth Requirements
The appropriate use of sleeper berths to obtain required rest and
avoid the accumulation of sleep debt became an issue because of the
NPRM finding that drivers need about ten consecutive hours within which
to obtain the necessary seven to eight hours of daily sleep. The
sleeper berth exception in the current rules allows a driver to
accumulate the required eight (otherwise consecutive) hours off-duty in
a sleeper berth (that meets the requirements of 49 CFR 393.76) in two
periods totaling at least eight hours, neither period being less than
two hours.
Studies on the sleeper berth issue have generally found that, for a
number of reasons, sleeping in a berth, particularly when the vehicle
is moving, is less restorative than sleeping in a bed. The agency has
recently released a study begun after it developed the NPRM: Dingus,
Neale, Garness, Hanowski, Keisler, Lee, Perez, Robinson, Belz, Casali,
Pace-Schott, Stickgold, Hobson, (2002), Impact of Sleeper Berth Usage
on Driver Fatigue, FMCSA Report No. FMCSA-RT-02-050. This study
concludes that sleeping in a moving vehicle impairs the quality of
rest. Some studies also have determined that drivers using sleeper
berths had a higher crash risk than drivers obtaining their sleep in a
bed. The agency's Expert Panel, who reviewed the feasible alternatives
during development of the NPRM, recommended that until there was more
definitive information available on the relative quality of sleep in a
berth, drivers using sleeper berths should be afforded a greater
opportunity to obtain additional rest. The FMCSA proposed that only
team drivers be allowed to use sleeper berths to split their
accumulated required off-duty time, and then only in periods of not
less than five hours each. Single drivers would use the sleeper berth
during one block of off-duty time.
A study by Abrams C., Shultz, T., & Wylie, C.D. (1997) Commercial
Motor Vehicle Driver Fatigue, Alertness, and Countermeasures Survey
indicated that drivers using sleeper berths reported averaging about
six to seven hours at a stretch in the berths. Other industry surveys
indicated that drivers reported averaging about four hours at a stretch
in the sleeper berths. An ATA survey showed that only five percent of
team drivers use the sleeper berth while the vehicle is in motion. An
Owner Operators Independent Drivers Association (OOIDA) survey showed
that number to be higher, 11 percent.
Motor Carriers
The industry proposed that drivers with conforming sleeper berths
be permitted to split the required ten consecutive off-duty hours into
two non-consecutive periods, the duration of each to be determined by
the drivers. The industry believes that given the fact that the driver
must accumulate 10 hours off duty in a 24-hour period, drivers ought to
be able to determine the length of the two separate periods. The
industry believes drivers are in the best position to know how much
rest they need at a particular time. For example, the driver could
combine one long sleep period of six or seven hours with one separate,
shorter extended rest period of three or four hours to augment the
longer sleep. The industry proposed that off-duty time taken
immediately before or after a sleeper berth period may also be counted
toward the accumulation of the required ten hours off duty. They stated
that this merely carries over what is presently permitted under the
existing rules, and affords the driver the flexibility to maximize
sleep and rest time. Finally, the industry recommended that time spent
in the passenger seat, presumably even while the vehicle is in motion
under the control of a co-driver, be counted as off-duty time and be
credited toward the accumulation of the required ten hours. This
passenger-seat time would be subject to the restriction that it must
immediately precede or follow sleeper berth time. The rationale is that
a driver may need time merely to relax without sleeping before or after
his sleep period.
Comments from industry were uniformly in favor of retaining the
sleeper berth provision for all drivers, solo and team. The carrier
associations, large and small, individual carriers, owner-operators,
drivers and unions all found the proposal regarding sleeper berth use
unreasonably restrictive. The larger carriers lined up behind the ATA
recommendation, and the smaller carriers and the owner-operators
sounded similar themes. In fact, the OOIDA questioned why sitting in a
jump seat could not be combined with sleeper berth time to accumulate
the required rest period. What difference is there, OOIDA asked,
between a driver lying awake in a sleeper berth, who cannot sleep, and
a driver sitting in the jump seat reading or listening to the radio?
The ATA argued that the proposed sleeper berth provision is
inconsistent with available science. It stated that the FMCSA has
acknowledged a gap in the current research on sleeper berths and that
more research is required. ATA
[[Page 22465]]
argued the proposal even seems to contradict the recommendation of the
agency's Expert Panel. The ATA stated that science indicates that a
combination of a long period with shorter period is better than the
proposed split of five and five. The ATA was also critical of the
agency's failure to gauge the economic impacts of such a rule change.
Truckload carriers stated that the nature of the long-haul,
irregular-route business makes the elimination of split sleeper berth
time a major concern because it removes the needed flexibility from the
driver.
Similar positions were taken by the LTL sector, noting that drivers
must have the ability to manage their work/rest times more freely,
including sleeper berth time. Examples were given of drivers managing
sleeper berth time to get to the shipper location early and avoid
traffic.
Citing research finding that drivers sleeping in sleeper berths
while the vehicle was in motion obtained less restorative sleep than
those sleeping while the vehicle was at rest, some commenters said they
could not understand the agency limiting the exception to team drivers.
Although not mentioned in the proposed rule, some found it necessary to
ask whether the exception for team drivers would apply to sleeper berth
time acquired while the vehicle was in motion. Others found that even
the team driver exception was confusing. Still others looked for data
supporting a minimum period of five hours.
Many small carriers and owner-operators stated that drivers using
sleeper berths need less than the ten consecutive hours proposed in the
NPRM. They do not have to travel any distances to get to their sleeping
quarters; they just have to climb into the back. Many also strenuously
opposed the treatment of sleeper berth time in the proposal, seeing it
as discouraging the use of sleeper berths. In their view, the berths
are a valuable resource, readily available to the driver to get
necessary rest, and their use should be encouraged. OOIDA recommended
the agency retain the present sleeper berth exception to the
consecutive-hours requirement.
The International Brotherhood of Teamsters (IBT) took issue with
the findings of the studies on effectiveness of sleep in a berth. They
argued that the determinative factor was not the quality of the
accommodations, but rather environmental conditions, like noise levels.
Safety Advocacy Groups
Safety advocates applauded FMCSA for prohibiting split sleeper
berth periods for solo drivers and recommended extending the
prohibition to team drivers as well. The NSC, however, cautioned the
FMCSA to await further scientific data before proceeding one way or
another. The AHAS stated that some research studies indicate the
restorative benefits of napping are not entirely clear, but conceded
that more napping is better than less napping.
Law Enforcement
The CVSA stated the regulations should provide sleeper berth
flexibility for both short-term naps and longer sleep periods.
FMCSA Response
Because of the comments and the new studies released after the
NPRM's publication, the FMCSA has decided to retain the sleeper berth
exception. The agency, however, will modify the off-duty period to
align with the new off-duty period adopted in this final rule.
In the Impact of Sleeper Berth Usage on Driver Fatigue study, the
team driving operation highlighted the benefits of reducing drowsiness.
Unlike extremely tired single drivers who may have felt compelled to
continue to drive even when it was dangerous to do so, the individual
drivers in a team operation generally had no similar compulsion to
operate the vehicle when they were extremely tired. From the data
collected in this study, it was apparent that the team driving
operation translates into fewer bouts of drowsiness, fewer critical
incidents, and, in general, safer trucking operations. Critical
incidents are those incidents that resulted in a crash because the
driver did not perform evasive maneuvers or that would have resulted in
a crash, if the driver had not taken evasive maneuvers.
In addition, team drivers appeared to drive much less aggressively,
make fewer errors, and rely effectively on their relief drivers to
avoid instances of extreme drowsiness while driving. In effect, it
appeared as though team drivers undergo a natural ``screening''
process. This was indicated by a number of the truck drivers during the
focus groups conducted earlier in this project. Drivers indicated that
team drivers must be both considerate of their resting partner and
trustworthy with regard to their driving ability. Thus, the level of
``acceptance'' necessary to be a successful team driver seems to serve
as an effective screening criterion.
On the other hand, single drivers in the study had many more
critical incidents at all levels of severity as compared to team
drivers. Single drivers were involved in four times the number of
``very/extremely drowsy'' observer ratings as were team drivers, and
were more likely to push themselves to drive on occasions when they
were very tired.
Based on the agency's Commercial Motor Vehicle Driver Fatigue and
Alertness Study (1996), there were relatively few instances (about 2.5
percent) of ``extreme drowsiness,'' with most of these instances being
experienced by single drivers, again with a high rate of the occurrence
of this level of fatigue on the second or third shift after the first
day of a multi-day drive. Thus, it appears that the combination of long
driving times and multiple days provides the greatest concern, with
several results pointing to the presence of cumulative fatigue. This
means that the length of shifts in the later stages of a trip must also
be carefully considered.
Having mentioned this concern, it is important to point out that
critical incidents and/or driver errors did not increase directly with
the hours beyond the regulatory limits. In fact, there was a
substantial decrease in the rate of critical incidents during some of
the more extreme violations. However, one should exercise great caution
when interpreting these results. For the following reasons, they do not
necessarily mean that the HOS should be expanded:
(1) It may be possible that the drivers were making a point to
drive more carefully and cautiously because they were operating outside
of the regulatory limits and did not want to get stopped by law
enforcement officials; and
(2) They may have risked driving outside of the regulations only
because they felt alert and knew that they could continue to drive
safely.
There were a number of findings in this study indicating that the
quality and depth of sleep was worse on the road, particularly for team
drivers. Drivers in teams have significantly more sleep disturbances
than do single drivers. In addition, for team drivers who sleep while
the vehicle is in motion, factors such as vibration and noise adversely
affected their sleep, although lighting and temperature aspects of the
environment did not appear to be much of a factor.
However, it was found that many of the sleep disturbances that
occurred for single drivers could not be attributed solely to an
environmental factor.
The NPRM estimated that 90 percent of all long-haul drivers use
sleeper berths. Although the proposed rule would not have prohibited
the use of
[[Page 22466]]
sleeper berths, it would have diminished their flexibility by requiring
single drivers to have one uninterrupted rest period of at least ten
hours duration every 24 hours. As pointed out in the comments, however,
the proximity and convenience of the sleeper berth reduces the
importance of the length of the uninterrupted period. If a driver
obtained seven consecutive hours of sleep immediately in the sleeper
berth, it would be unnecessary to require him to remain in that
location for an additional three hours. The agency agrees with
commenters on these points. This is especially true when those three
hours of required rest could be used to better advantage to alleviate
fatigue later in the workday. Of course, drivers are free under the
rules to take rest breaks at any time, using a sleeper berth or
otherwise.
Use of sleeper berths in long-haul operations is firmly entrenched
in the practice, culture, and equipment of the trucking industry. This
does not mean that the use of sleeper berths should not be reviewed in
the interest of safety where a legitimate problem is identified and
established as such. It does mean, however, that to do so would require
more documented evidence of a safety problem than the agency now has.
In light of the agency's recently completed research, the very strong
opposition and persuasive arguments presented, the agency will continue
to allow single drivers to accumulate their required time off duty in
two sleeper berth periods.
The FMCSA has improved the regulatory text to ensure a clear
understanding of the sleeper berth rule. The FMCSA has borrowed from
and modified the Government of Canada's 1994 Commercial Vehicle Drivers
Hours of Service Regulations version of the sleeper berth rule (SOR/94-
716, s. 5), because it describes the rule in clearer terms than the
wording adopted by the ICC in 1938. Although the Canadian version is
clearly better, the FMCSA found that it may prevent a driver from
eating in a restaurant either (1) after leaving the sleeper berth and
before going on duty, or (2) after going off duty and before entering
the sleeper berth. The regulatory text has been modified from the
Canadian version to enable a driver to have off-duty time in
conjunction with sleeper berth time, which the agency has allowed over
the years.
Carrier Notification of Drivers During Their Off-Duty Hours
The NPRM proposed a kind of restart that would be triggered by
employers or their agents violating a proposed prohibition against
interrupting drivers' off-duty periods. The NPRM proposal was designed
to address complaints the agency has received over the years regarding
unreasonable calls from dispatchers and other carrier employees that
caused drivers to lose the opportunity to sleep. As proposed, such an
interruption would start the full interrupted off-duty period over
again from the time of the interruption. Therefore, if a driver were
contacted at 3 a.m. at the end of the sixth hour of his 10-hour off-
duty period, the required off-duty period would have to be extended by
ten full hours, or until 1 p.m. Similarly, if the proposed 32-hour
weekly recovery period were in force, and the driver were contacted by
the carrier at the end of the 30th hour, the entire 32-hour period
would have been required to start over again at that time. This
provision was part of the agency's effort to provide a meaningful
opportunity for drivers to obtain rest. Although some comments
recognized the good intention, most of those commenting on this part of
the proposal indicated significant practical and operational problems
with such a restriction on communicating with drivers.
Motor Carriers
The ATA recommended that FMCSA retain its current policy allowing
brief contacts with drivers during the off-duty period. Under that
policy, those contacts are considered de minimis interruptions that do
not cause a break in the off-duty period.
Con-Way Transportation Services (Con-Way), a large, non-union LTL
carrier, described typical LTL hub and spoke operations, i.e. both line
haul and local pick-up and delivery activities. About 80 percent of all
runs are prescheduled, but 20 percent vary based on tonnage expected.
Carriers maintain a flex-board for on-call drivers, who perform loading
and unloading. On a given day, most flex-board drivers would load/
unload, but if a run were not available, they would be sent home after
three or four hours. If things picked up, they could be recalled to
take a run. If they could not be called for 10 hours, Con-Way stated
scheduling would become impossible. It argued there has to be a way of
communicating with drivers to reflect changes in freight volume or
operating conditions.
The NASTC stated that about 15 to 20 percent of the time, truckload
operations rely on the spot market for back-hauls and that requires
timely notification to drivers or the day is lost to the driver, and
the load to the company.
Large and small freight carriers, both truckload and LTL, local
delivery operations and construction companies all agreed the proposed
rule was too restrictive for practical application. Many offered
examples of damaging outcomes to themselves and drivers if the ability
to communicate during off-duty hours were denied them. Utility
companies found that such a prohibition could not work when emergency
situations arise that need immediate mobilization of employees. The
general advice offered was: ``Do not try to micro-manage off-duty time,
particularly where there's no evidence of a problem.''
The IBT saw this not as a driver protection provision, but rather
as a potential opportunity for mischief by a dispatcher who is having a
problem with a driver. By calling the driver a number of times during
his off-duty periods, the dispatcher could significantly curtail that
driver's availability to work. The IBT stated that there is a better
way to fix the problem, agreeing in part with the ATA suggestion to
allow brief contacts. At least one driver, however, commented about
what he said was a well-documented unsafe practice of keeping on-call
drivers awake to protect and preserve the carriers' irregular work
schedules. That practice results in on-call drivers going to work
already fatigued.
Safety Advocacy Groups
Although commending the agency for providing a longer daily
recovery period and preventing it from being interrupted, the AHAS had
concerns that the prohibition would be unenforceable, except perhaps as
a result of a complaint investigation.
FMCSA Response
The agency is persuaded that practical enforcement problems
preclude moving forward with this element of the proposal. However, as
suggested in comments from ATA and AHAS, as well as drivers who have
expressed concern in the past, there ought to be a way to deal with
unnecessary interruptions. These interruptions while brief in duration
have a significant impact on the quality of rest drivers obtain if they
occur while the driver is sleeping. Enforcement, however, should always
be considered in proposing a prohibition. Communications between a
carrier and a driver that causes that driver to lose the opportunity
for restorative sleep is a safety issue that falls within the purview
of the FMCSA and its state partners. Therefore, FMCSA will continue to
gather data to
[[Page 22467]]
the greatest extent practicable on the degree to which driver
performance is adversely affected by these interruptions during the
rest period.
Daily Work/Rest Cycle
General Concept
The circadian cycle of a 24-hour workday was presented in the
NPRM's definition of workday as ``any fixed period of 24 consecutive
hours,'' and in the number of hours required to be off-duty combined
with allowable on-duty periods. The comments reflected a fairly general
agreement across the board that the rules should build on the
foundation of a 24-hour day and that the current allowance for 8
consecutive hours off duty was insufficient to assure that drivers had
the opportunity to get 7-8 hours of sleep. For example, nearly all of
the responding motor carriers and motor carrier associations mentioning
this issue agreed that the science clearly supports this change. The
safety advocacy groups and the scientific responders enthusiastically
supported the proposal to revert to a 24-hour work/rest cycle. The
issue of how these on-duty and off-duty periods apply to the proposed
five types of operations is reserved for another section. This is not
to say, however, that there was a total absence of dissent. As we will
see with many of the proposed restrictions, there were some problems in
the details, and that the problem usually cited was a lack of
flexibility.
The motorcoach industry had little interest in this issue,
primarily because it has already absorbed the principle into operating
practices. Its basic position is that the industry has adjusted well to
the existing rules.
ATA and DLTLCA Recommendations
The DLTLCA filed a petition on November 29, 2000, on behalf of
itself and nine other trade associations, including the ATA, which,
among other things, presented The Trucking Industry's Hours-of-Service
Proposal. The document was described as the product of a 2-year effort
by the petitioners' motor carrier members, who had it reviewed by Drs.
Mark R. Rosekind and David F. Dinges, noted experts in sleep science,
to ensure consistency with the latest safety research. Referring to a
24-hour rest/work schedule, the petitioners said:
We now know, based on research regarding the circadian rhythm,
our bodies function on a 24-hour cycle. The rules should mirror this
biological rhythm so that time on and off duty equals 24 hours. The
current rules do not adhere to this pattern since they require 8
hours off duty and allow 15 hours on duty. We recommend a 14-hour
on-duty period and 10-hour off-duty period.
As discussed above, the ATA had earlier submitted recommendations
to the DOT in December 1999 while the draft NPRM was being reviewed at
OMB before publication. The ATA championed the concept of a 24-hour
work/rest cycle but did not describe their ``14 duty hours'' as a
period limited to 14 consecutive hours.
Regarding the issue of the 10-hour off-duty and 14-hour on-duty
components of the 24-hour cycle, the ATA said in its recommendations:
This is a decrease in allowable work hours from the current
rules. When combined with the increased amount of off-duty time
(from 8 to 10 hours), a 14-hour on-duty period promotes driver
scheduling which mirrors more closely the body's 24-hour clock.
The 1999 ATA recommendations included a daily ``flex-time'' option,
which was not mentioned in the November 2000 DLTLCA multi-association
petition. Flex-time would allow drivers to add up to 2 hours to the
daily on-duty time no more than twice in any 7-day period, provided at
least 48 hours separated the two extended on-duty periods and an amount
of extra off-duty time equal to the ``extended'' time taken within 24
hours. The ATA said it found the ``flex-time'' provision necessary to
accommodate ``certain segments of industry [which] find themselves in a
position where a 14-hour workday places the drivers in a position, on
an irregular basis, of not being able to complete their assigned
tasks.'' In its docket submittal of December 15, 2000, the ATA,
referring to the 24-hour work/rest cycle, merely said: ``Work shifts
should not be required to begin at the same time each day.'' It also
included the daily flex-time provision, and suggested regulatory
language to implement this option.
The ATA cited no scientific source for the following three elements
of its proposals:
(1) Extending the workweek to 70 hours in 7 days, all of which
could be, but probably would not be, driving time;
(2) An averaging provision allowing drivers to work 140 hours in 14
days by averaging one 84-hour workweek with one 56-hour workweek with a
minimum of 34 hours off in between; and
(3) Split off-duty time for sleeper berth drivers, and a limited
allowance for combining sleeper-berth time with other off-duty time.
At the second FMCSA ``roundtable'' discussion on September 28,
2000, the DLTLCA representative hypothesized that the ATA recommended
eliminating the distinction between driving and on-duty not driving
time, ``because as a practical matter, no driver is going to be beyond
12 * * * we are never going to be beyond 12 * * * because we have 3 to
4 hours loading time. We have pre-trip inspections. We have all these
other activities built in.''
Industry Comments
The National Tank Truck Carriers (NTTC) supported the 24-hour clock
as the basis for work/rest cycles. However, it refuted any assumptions
that the tank truck industry has operational predictability and
asserted that the rigidity of the rules unnecessarily restricted driver
flexibility.
Private Carriers of Freight
The NPTC recommended adopting a 24-hour work/rest cycle. The NPTC
believes drivers' HOS regulations should be based on a 24-hour clock,
reflecting a significant body of science that has determined that human
beings have a natural circadian rhythm.
The International Bakers Association (IBA) favored efforts to
promote a 24-hour work/rest cycle without requiring work to start at
the same time every day.
Truckload Carriers
Large truckload carriers, such as Schneider National, J.B. Hunt,
and Landstar, several of which participated in the formulation of
industry's counter-proposal, generally favored a 24-hour work/rest
cycle. The smaller truckload carriers were a little more reserved in
their support for the 24-hour work/rest cycle, and that was primarily
due to concern about the lack of flexibility in the proposal.
The NASTC explained that its members have to depend upon the spot
market to obtain back-hauls to maximize earnings. The unpredictable
nature of such commerce may make it difficult to adhere to a strict 24-
hour workday. Several of its members opposed the rigidity of a ``fixed
period of 24 consecutive hours.''
LTL Carriers
The reaction of the LTL carriers was also generally positive on the
issue of the 24-hour work/rest cycle. This may be because the nature of
LTL operations is more closely in line with a 24-hour day. Most LTL
carriers reported that runs are generally scheduled so they can be
completed within 12 hours with no more than 10 hours driving. They need
the flexibility of the extra two hours, however, to deal with
exigencies. Yellow Freight System (Yellow), one of the largest LTL
carriers and a member of Motor Freight Carriers Association (MFCA),
recommended that the agency
[[Page 22468]]
withdraw its proposal and reissue its provisions piecemeal starting
with the most beneficial--the 24-hour cycle.
Overnite Transportation Company (Overnite), one of the nation's
largest LTL carriers, strongly objected to the inference it drew from
the proposal that the 24-hour cycle had to remain constant throughout
the workweek. It stated the nature of LTL operations would never
conform to a uniform 24-hour schedule. If a driver takes a 6-hour run
at 8 a.m. after 10 consecutive hours off, he should not have to remain
off duty 18 hours until 8 a.m. the next day. He should be able to go on
duty after 10 consecutive hours off, and let the daily and weekly duty-
time maximums control.
AAA Cooper Transportation found the 24-hour work/rest cycle as a
positive step to improve drivers' sleep possibilities.
Driver Associations
The OOIDA submitted an alternative proposal that gave due deference
to a 24-hour work/rest cycle. The OOIDA, however, specifically rejected
any notion that its proposal would require adherence to a fixed
starting time each day.
The IBT and most owner-operators and other small to medium-sized
truckload carriers comments did not comment specifically on the 24-hour
work/rest cycle.
Special Operations
The American Road and Transportation Builders Association (ARTBA)
would use 24 hours as a base. The ARTBA's alternative proposal for a
``construction industry driver'' and the associated daily driving and
on-duty time limits within a 24-hour period drew support from the AGC
and the National Ready-Mixed Concrete Association (NRMCA).
Shippers
The National Industrial Transportation League supported a 24-hour
work/rest cycle but did not provide any detail or statistics.
Safety Advocacy Groups
On the issue of the 24-hour work/rest cycle, safety advocacy groups
joined with others from the public sector and scientific community to
express strong support of the agency's position.
The AHAS, CRASH, and PATT commended the agency for proposing a 24-
hour work/rest cycle, which they believe is supported by an enormous
body of research over many years.
The NSC commended the DOT for addressing this contentious issue
which has not been fundamentally analyzed in over 60 years, and stated
that the agency had done the fundamental research necessary to take it
on. The NSC believed the research was strong enough to make the
conclusion about reverting to a 24-hour cycle, and strongly supported
that part of proposal.
The National Institute for Occupational Safety and Health (NIOSH)
of the Department of Health and Human Services agreed that most
provisions of the proposed rules would produce positive safety
outcomes. It recommended limiting driving within a 24-hour work/rest
cycle.
FMCSA Response
There is general agreement on the concept of a 24-hour work/rest
cycle and the scientific support for it. The FMCSA agrees with the
general concept of ATA's statement that increasing the amount of off-
duty time (from 8 to 10 hours) and having a 14-hour on-duty period
promotes driver scheduling which would move the regulations closer to
the body's 24-hour clock. The FMCSA believes that the strict 24-hour
work/rest cycle would be ideal from a scientific viewpoint, but it is
simply not practical and too inflexible to require of the industry. A
strict 24-hour work/rest cycle would cause unavoidable impacts to motor
carrier operations that the agency cannot justify from a safety or
economic standpoint.
A requirement that all on-duty time including driving must occur
within the 24-hour period creates the flexibility problems that
carriers identified in their comments. Each of the options analyzed in
the NPRM prevents the operational flexibility the industry desired.
Most of the recommendations made by industry commenters to the NPRM,
did not include a strict 24-hour period; operational flexibility was
given higher priority.
Moving towards a 24-hour work/rest cycle without requiring a rigid
starting time could achieve safety benefits while causing less
productivity disruptions to motor carrier operations than adopting the
strict 24-hour work/rest cycle the NPRM and PATT proposed.
The PATT and ATA alternatives incorporated a 24-hour work-rest
cycle. The FMCSA staff also developed an alternative that incorporated
a 24-hour work-rest cycle to provide a more operationally feasible
alternative for analysis.
The FMCSA has decided to move towards a 24-hour work/rest cycle
containing an extended consecutive-hour off-duty period within which
drivers can obtain necessary daily sleep. Logically, off-duty time must
always be referred to in terms of the minimum, while on-duty time will
continue to be referred to in terms of the maximum.
The FMCSA is selecting its staff alternative incorporating a 24-
hour work-rest cycle and a 21-hour drive-rest cycle for the final rule
because it provides the most favorable combination of reduced fatigue-
related incidents, increased driver alertness, and other safety
benefits along with minimal costs to society.
Daily Off-Duty Time
Industry Comments
The proposal provided three different consecutive off-duty periods
to obtain the same 7 to 8 hours of sleep: 10 consecutive hours off-duty
for Types 1 and 2; 9 consecutive hours off-duty for Types 3 and 5; and
12 consecutive hours off-duty for Type 4.
As discussed above, the ATA had earlier submitted recommendations
to the DOT in December 1999 while the draft NPRM was being reviewed at
OMB before publication. The ATA championed the concept of a 10-hour
off-duty period and 14-hour on-duty period of the 24-hour cycle.
The Pennsylvania Motor Truck Association (PMTA), in supporting
ATA's alternative proposal for 10 hours off, commented that there was
enough time in the day for drivers to rest if necessary while
maintaining a productive schedule. It also observed that the FMCSA's
proposed rules do not enable drivers to take advantage of downtime at
loading docks.
The California Trucking Association (CTA) believes a 10-hour off-
duty period is potentially effective.
Tom Carrigan, the director of corporate safety for the Martz Group,
testified that in the early days of his career as a Greyhound driver,
he could recall reporting to work fully rested and well within legal
limits, yet so fatigued that he wondered how he would manage to get out
of the terminal, let alone complete his trip. He stated Greyhound
provided its drivers with 10 hours of off-duty time between trips and
faithfully abided by all of the HOS limitations, yet Mr. Carrigan
claimed Greyhound had no control over its drivers' activities while
away from work. There were many other occasions when Mr. Carrigan was
provided 24 hours or more of off-duty time yet reported for his next
trip in a fatigued state due to faulty time management on his part.
Private Carriers of Freight
The NPTC recommended an alternative extending the required daily
[[Page 22469]]
off-duty period to nine hours. The NPTC believes there is general and
indisputable agreement that truck drivers need more opportunity for
rest. The IBA supported 10 consecutive hours daily for rest.
Truckload Carriers
Schneider National recommended a 10 consecutive hour off duty
period ``to implement regulations that make sense for the industry,
drivers, and the public.''
J.B. Hunt also supported changing to 10 hours off duty instead of
the current 8-hour resting period. It stated drivers would get ample
opportunity for restorative sleep every day and sleep deprivation
should not be an issue.
LTL Carriers
The reaction of the LTL carriers was also generally positive on the
issue of off duty time. Overnite submitted a recommendation of a
minimum off-duty time of 10 consecutive hours, which could be split for
drivers using sleeper-berth equipment.
AAA Cooper Transportation believes the daily 10-consecutive hour
period off-duty as a positive step to improve drivers' sleep
possibilities.
Con-Way commented that the off-duty period should be 10 hours off
duty within which to get 7 to 8 hours of sleep.
Driver Associations
The OOIDA proposed a daily off-duty period of 10 hours instead of
the current eight hours. It stated: ``Ten hours off duty will allow
drivers more than sufficient time to get restorative sleep each day and
will help drivers resist pressure from shippers, brokers, and motor
carriers to drive longer hours.''
Safety Advocacy Groups
PATT and NIOSH were very supportive of the proposal's 12 hours of
rest.
The IIHS supported the agency's approach of taking the needed
amount of daily sleep (7 hours) and the time within which such sleep
can be obtained (10 hours). Together with the 60 hours in 7 days limit,
the driver gets an average of 12 hours off and accumulation of fatigue
would be avoided.
FMCSA Response
Each driver should have an opportunity for eight consecutive hours
of uninterrupted sleep every day. The current rules require a minimum
of eight consecutive hours off. Many motor carriers do not provide
drivers more than the minimum 8 hours off duty, although the present
regulations certainly allow them to do so, and many drivers accept
tight schedules without objection. These drivers may have to commute
home, eat one or two meals, care for family members, bathe, get
physical exercise, and conduct other personal activities, all within
their 8-hour off-duty period.
To afford the driver an opportunity to obtain a minimum period of 7
to 8 hours to sleep, the research shows that the off-duty periods need
to be increased. Nine hours off duty was originally required in 1937.
For various reasons, organized labor objected to most of the original
regulations, and upon further deliberation, the ICC reduced the 9-hour
off-duty period to 8 hours. 6 M.C.C. 557, July 12, 1938.
The NPRM found that several studies strongly suggest the FMCSA
should require an even longer consecutive off-duty period than the 9
hours the ICC required in its original 1937 HOS regulations. To provide
additional off-duty periods each day for necessary personal activities
and rest, docket comments and research strongly suggest the need for
total off-duty periods from 10 to 16 hours. Studies in aviation
(Gander, et al. (1991)), rail (Thomas, et al. (1997), Moore-Ede et al.
(1996)), and maritime environments (U.S. Coast Guard Report No. CG-D-
06-97, U.S. Coast Guard (1997) (MCS 68/INF.11)) illustrate the same
point. Studies of truck drivers, including Lin et al. (1993) and
McCartt, et al. (1995), point specifically to increased crash risk and
recollections of increased drowsiness or sleepiness after fewer than
nine hours off-duty.
Studies performed in laboratory settings, as well as studies
assessing operational situations, explore the relationships between the
sleep obtained and subsequent performance (Dinges, D.F. & Kribbs, N.B.
(1991); Bonnet, M.H. & Arand, D.L. (1995); Belenky, G. et al. (1994);
Dinges, D.F. et al. (1997); Pilcher, J.J., & Hufcutt, A.I. (1996);
Belenky, G. et al. (1987). The results of the studies can be summarized
simply: a person who is sleepy is more prone to perform poorly on tasks
requiring vigilance and decisionmaking than a person who is alert.
It is virtually impossible for a driver to get an adequate amount
of sleep when the driver must subtract time for commuting, meals,
personal errands, and family/social life from an 8-hour off duty
period, as the ICC found in 1937. Wylie et al. (1996), for example,
showed that drivers in the study obtained nearly 2 hours less sleep per
principal sleep period than their stated ``ideal'' (5.2 hours versus
7.2 hours). However, many of them did not manage their off-duty time
efficiently or effectively to obtain sufficient sleep. All commuting,
meals, personal hygiene, social interaction within the study setting,
the study protocol itself, and sleep had to fit into their off-duty
periods. The U.S. and Canadian drivers participating in that study
operated under schedules set up to allow driving up to the maximum time
periods permitted under U.S. or Canadian regulations. The drivers
returned to regular work-reporting locations at the end of a shift. The
elapsed time between beginning and ending a shift included many
ancillary duties and other activities in addition to driving so that
time available for sleep was generally limited to 8 hours. Participants
who drove a regular 10-hour daytime schedule every day spent 5.8 hours
in bed and 5.4 hours asleep. Study drivers who ran a regular 13-hour
schedule starting in the daytime spent 5.5 hours in bed and 5.1 hours
asleep. This was about 2 hours less than the drivers would have
preferred to sleep. The time-in-bed similarities between the 13-hour
and 10-hour daytime drivers was likely due primarily to their proximity
to the sleep center--the 13-hour drivers had to commute less than 10
minutes from their home terminal to the sleep laboratory and 10-hour
drivers had to commute between 20 to 30 minutes. (All times cited are
for the principal sleep periods, and do not include the naps that some
drivers took during their work shifts.) Also, the drivers in both of
these daytime-driving groups were able to obtain their principal sleep
during optimal times of the day, starting in late evening and ending in
the early morning.
Other studies have found that the amount of sleep obtained by CMV
drivers is variable and often short. Arnold, P. et al. (1996),
interviewed over 700 CMV drivers in the state of Western Australia,
which has no formal HOS regulations. Of the drivers interviewed, about
5 percent reported having no sleep on one day during the prior week,
12.5 percent reported obtaining less than 4 hours of sleep one or more
work days in the prior week, and about 30 percent reported obtaining
less than 6 hours of sleep on at least one work day. Prior to
commencing their current trips, about two-thirds of drivers had between
6 and 10 hours of sleep, but about 20 percent had less than 6 hours of
sleep (pp. 27-28). VanOuwerkerk, F. (1988) in a study based on
interviews with 650 international European Economic Community (EEC)
drivers, noted that drivers reported a median sleep time of
[[Page 22470]]
6.7 hours and a median rest period of 7 hours. They reported that the
``minimum rest time [reduction from 11 hours to eight hours not more
than two times per week, as permitted under the current EEC Council
Directive] has become the rule'' as far as both drivers and enforcement
officials were concerned.
In their survey of 511 medium- and long-distance truck drivers in
the United States, Abrams, C., Shultz, T., & Wylie, C.D. (1997), found
no statistically significant differences in the stated rest needs among
the categories of drivers (owner-operator, company driver, regular
route, irregular route, solo, team): on an average day, a driver
reported needing an average of 7 hours of sleep. There was a slight
difference between union and non-union drivers; the former reported
needing about 31 minutes less sleep. Just over 90 percent of the
drivers reported that they usually used a sleeper berth while on the
road. Almost three-fourths of the drivers reported taking their sleep
in a single period, spending eight to nine hours in the berth. Just
over two-thirds of the drivers who split their sleeper berth period
reported usually spending 4 to 5 hours in the berth during one period.
After reviewing the research, comments, and regulatory analysis,
the FMCSA selected three alternatives to analyze in detail: the PATT
and ATA proposals and its own staff alternative. The PATT alternative
would set off-duty time at 12 consecutive hours and the ATA and FMCSA
alternatives at 10 consecutive hours.
The FMCSA is convinced that requiring two additional hours of off-
duty time to obtain additional sleep and accommodate commuting, meals,
personal errands, and family/social life is enough minimum time for the
majority of drivers. A driver may need additional time, such as for
longer than normal commutes, medical appointments, and family/social
life needs, but those additional times can be handled through labor-
management arrangements. The agency's 10-hour limit is materially
better from a safety standpoint than the current rule. Under the
current rule a driver who resides one hour from the normal work
reporting location, could conceivably be required to return to the
wheel within 8 hours after being released from duty and at most could
get only 6 hours of sleep. This final rule's requirement, however, is
not so restrictive as to impose an unreasonable burden on productivity
and generates the most favorable combination of reduced fatigue-related
incidents, increased driver alertness, and other safety benefits, along
with minimal costs to society.
Daily On-Duty Time
Industry Comments
The PMTA, in supporting ATA's alternative proposal for 14 hours on
duty followed by 10 hours off, commented that there was enough time in
the day for drivers to rest if necessary while maintaining a productive
schedule. It also observed that the FMCSA's proposed rules do not
enable drivers to take advantage of downtime at loading docks,
suggesting that the agency adopt a more liberal interpretation of the
14-hour block of on-duty time.
The CTA observed that the 24-hour workday should be split into only
two periods, a 14-hour work period and a 10-hour off-duty period.
Private Carriers of Freight
The NPTC recommended a 15-hour on-duty limit. The NPTC commented:
``Any limit on maximum daily on-duty time of less than 15 hours would
disrupt many private carriers' operating schedules and practices. We do
not believe a limit of less than 15 hours can be cost-justified.''
The IBA supported 14 hours of productive time with flexibility to
extend twice a week by one to two hours under ``certain'' (undefined)
circumstances.
Truckload Carriers
Schneider National agreed with the ATA recommendation to change
from the current 15-hour rule to a 14-hour on-duty rule within any 24-
hour cycle ``to implement regulations that make sense for the industry,
drivers, and the public.''
J.B. Hunt also supported changing the work/rest cycle to 14 hours
on duty and 10 hours off instead of current 10-hour driving/15-hour
working/8-hour resting cycle, but also favored the proposed 12-hour
work limit in 24-hour workday, preferably with no multi-day cumulative
limit. Hunt observed that the biggest negative impact comes from the
rigidity of the proposal.
Perfetti Trucking, which actively participated in the hearings and
roundtable discussions in addition to submitting written comments,
stated drivers should get credit for rest time and that rest time
should extend the 14-hour duty period.
The NASTC pointed out a problem with the 14-on, 10-off daily cycle
in that all productive time would have to be condensed into a 14-hour
block of time. If a driver has to take a nap or rest from 1 to 2 hours,
he would pay the price in productivity and would therefore more likely
disregard his condition and continue to operate.
LTL Carriers
Watkins Motor Lines, Inc. (Watkins) reported it has approximately
2,400 drivers engaged in pickup and delivery operations or short hauls
that would best fit in the Type 4 operations provided in the proposal.
These drivers work five days a week, begin work about the same time
every day and return to their home terminal at the end of the workday.
All of these drivers are scheduled for no more than 12 consecutive
hours each day. However, because of unforeseen circumstances
(breakdowns, weather, traffic, etc.) on any given day, an average of 4
percent, or 95 drivers, are required to extend their scheduled day by
an average of less than 60 minutes.
Overnite recommended a maximum on-duty time of 14 hours.
Con-Way recommends 14 hours on duty with no distinction between
driving and non-driving time.
Driver Associations
OOIDA stated: ``The maximum available time of 14 hours that OOIDA
proposes is very reasonable and more than sufficient time to allow
drivers to accomplish their work.'' The OOIDA, however, specifically
rejected any notion that its proposal would require adherence to a
fixed starting time each day.
Many other comments from owner-operators and small to medium-sized
truckload carriers focused on those provisions in the proposal that
they found most troublesome, i.e., failure to display an understanding
of the flexibility needed in irregular route, truckload business.
Special Operations
The ARTBA would limit duty time to 16 hours and was supported by
the AGC and the NRMCA.
Safety Advocacy Groups
AHAS cited numerous studies finding that risk geometrically
increases during the 10th and 11th hours on duty. The studies cited in
the preamble as showing that performance degrades dramatically after
the 12th hour, AHAS noted, actually stand for the proposition that
performance starts to degrade after the 8th hour. The AHAS stated that
it would be more comfortable if the proposal limited on-duty time to 12
hours, but believes that would not change the industry's tendency to
violate the rules.
[[Page 22471]]
PATT, NSC, and NIOSH all concurred with the proposal limiting duty
time to 12 hours in each 24 hours.
FMCSA Response
The environment in which motor carriers and their drivers operate
is significantly different from the environment in which they operated
in 1938. The CMVs and highways they operate on are dramatically
improved, making the driving task, while still a demanding one,
considerably less arduous than was the case then. The FMCSA believes
there can be little doubt that fatigue directly attributable to the
exertion required to operate the modern CMV is less of a factor now.
Society has learned a lot about the science of sleep since 1938 and
understands the more relevant issue is how long the driver can be awake
and ``at work'', and still be allowed to drive, before safety is
significantly compromised.
After reviewing the research, comments, and RIA, the FMCSA is
convinced that 14 hours after the beginning of a duty tour is long
enough for most drivers, given the significantly increasing degradation
of performance which occurs in the later stages of a work shift.
The FMCSA found that restricting those drivers who return to the
normal work reporting location at the end of every shift has the
unintended consequence of requiring a significant increase in new
drivers. These new drivers would increase both costs and crashes. The
analyses showed that by allowing these short-haul drivers the
flexibility to work up to 16 hours one day in a week would reduce the
number of additional drivers needed for the staff alternative. This
flexibility would result in cost savings of nearly $500 million and
safety benefits of nearly $10 million.
The FMCSA believes this 14-hour limit for most drivers, and 16-hour
limit for short-haul drivers once a week, is materially better from a
safety standpoint than the current rule. A driver under the current
rule could conceivably still be allowed to return to the wheel several
hours after the 15-hour limit has passed (because ``off duty'' breaks
that can extend the workday). The limit, however, is not so restrictive
as to impose an unreasonable burden on productivity.
In conducting its RIA, the FMCSA made sure it included analysis of
private carriers' operating schedules in view of the NPTC claims. The
RIA, however, has justified the cost to reduce the number of available
off-duty hours to 14 hours after the driver begins work. The FMCSA does
not believe 16 hours every day, as supported by the ARTBA, AGC, and
NRMCA, would reduce fatigue-related incidents and increase driver
alertness as these commenters contend.
AHAS correctly cited studies showing that performance begins to
degrade after the 8th hour on duty and increases geometrically during
the 10th and 11th hours. The agency's RIA, however, demonstrated that
the FMCSA staff alternative produces substantial net safety benefits
compared to the current rule, despite allowing up to 11 hours of
driving, because it also requires 10 hours off duty, instead of 8, and
reduces the backward rotation of drivers' sleep/wake schedules. See the
discussion above under the FMCSA Response to the Daily Off-Duty Time.
In reviewing the recommendations made by commenters to the NPRM,
the FMCSA found the PATT, ATA, and its staff-developed alternatives the
most feasible. The PATT alternative would set on-duty time at 12
consecutive hours. The ATA alternative would allow a driver to be on
duty 14 cumulative hours with up to 16 cumulative hours twice per 7-day
period. The FMCSA alternative would set on-duty time at 14 consecutive
hours once the duty tour begins for long-haul and short-haul drivers,
while short-haul drivers would have the opportunity to work up to 16
consecutive hours one day per week.
The FMCSA has chosen to promulgate its staff alternative because it
provides the best combination of safety and compliance costs.
Daily Driving Time
Industry Comments
The CTA believes the workday should include a 14-hour work period
and strongly argued for preservation of intrastate exemptions allowing
drivers transporting farm products to drive 12 hours in a 16-hour day.
Private Carriers of Freight
The NPTC recommended adopting a daily driving limit of 12 hours
within a 15-hour on-duty limit.
The IBA supported a 14-hour productivity time with flexibility to
extend it twice a week by one to two hours under ``certain''
(undefined) circumstances.
Truckload Carriers
Schneider National agreed with the ATA recommendation to change
from the current 10-hour driving rule to a 14-hour on-duty rule ``to
implement regulations that make sense for the industry, drivers, and
the public.''
J.B. Hunt also supported changing the work/rest cycle to 14 hours
on duty and 10 hours off duty instead of the current cycle, but it also
favored the proposed 12-hour work limit in 24-hour workday. J.B. Hunt
believed this would enable a driver to average 10 hours of work a day,
extending to 12 hours of work as circumstance demands. Hunt observed
that the biggest negative impact comes from the rigidity of the FMCSA
proposal.
LTL Carriers
Overnite recommended a maximum of up to 10 hours driving.
Con-Way recommended 14 hours on duty with no distinction between
driving and non-driving time.
Driver Associations
The OOIDA recommended no restrictions on daily driving time, which
OOIDA believes should be left to the discretion of the driver.
Special Operations
The ARTBA would limit driving time to 12 hours in a single 24-hour
day and 72 hours in seven days, and it drew support from the AGC and
NRMCA.
Safety Advocacy Groups
AHAS stated that ``[FMCSA] has reversed its own policy stance of
record on the dangers of driving more than 10 consecutive hours.'' AHAS
pointed to the FHWA's November 1990, Report to Congress On Commercial
Driver Hours of Service, where the agency openly endorsed research
findings about the adverse effects of longer continuous driving times
and of cumulative fatigue over several consecutive days of driving.
AHAS argued that this report acknowledged that ``[t]he risk of
accidents appears to increase with the number of hours driven.'' With
regard to the current 10-hour driving limit, AHAS argued the agency had
asserted in 1990 that ``this requirement is consistent with the
research finding that the potential for accidents rises as the hours of
driving increase and the driver is more likely to become fatigued.''
AHAS stated that the FHWA report also ``favorably cites the [IIHS']
1987 study by Jones and Stein, [Effects of Driver Hours of Service on
Tractor-Trailer Crash Involvement], showing ``that driving in excess of
8 hours may be associated with a significantly increased risk of crash
involvement. This reported increase in relative risk confirmed other
findings [citing Mackie and Miller, Effects of HOS Regularity of
Schedules, and Cargo Loading on Truck and Bus Driver Fatigue, 1978]'.''
AHAS quoted the FHWA report: ``Research indicates that
[[Page 22472]]
the time spent on-duty may be a more important factor in driver loss of
alertness [citing Harris and Mackie, A Study of the Relationships Among
Fatigue, HOS, and Safety of Operations of Truck and Bus Drivers,
1972].'' AHAS argued that ``there has been no research since this
Congressional report, including research completed for the OMCS over
the past decade, which has refuted the accuracy of these observations
or of the research on which they are based.''
AHAS also extensively quoted a Federal Register notice from 1980
stating:
The [rationale] for the hours of service regulations is
justified by the concept that the longer a person drives, the more
[fatigued] that person becomes and consequently, the more prone to
becoming involved in accidents.
45 FR 82284, at 82286.
Fatigue, however it is defined, appears to be the chief factor
limiting a person's output. Various studies have shown that when the
working day is lengthened, productivity goes down, when the number
of hours worked is reduced, performance increases.
The influence of fatigue in accident causation has been
demonstrated and where there has been a reduction in hours worked,
there has been a reduction in accidents. There is some evidence that
8 hours of work a day, where the work is fairly demanding, is the
maximum that should be permitted for highest productivity and lowest
accident rate.
45 FR 82284, at 82288.
AHAS also argued that FMCSA's predecessor agency in 1987 endorsed
findings that increased consecutive driving hours and consecutive days
of driving both directly contribute to driver errors and crashes. See
52 FR 45215. AHAS argued that FHWA made assertions to the same effect
in the November 29-30, 1988, Symposium on Truck and Bus Driver Fatigue.
AHAS also argued that ``[n]one of the research findings showing the
increased safety and productivity of fewer hours worked and driven than
the maximum 10 hours permitted under the current regulation are cited
or discussed anywhere in the instant proposed rule.''
AHAS continued that ``no credible studies in the intervening years
have countermanded the accuracy and wisdom of these observations.
Indeed, scores of new studies have amply and repeatedly corroborated
the FHWA's policy statements over the past 20 years about the dangers
of driving and working longer hours.''
Finally, AHAS argued that ``the FMCSA has categorically altered its
position in this rulemaking on the merits of driving and working longer
hours without demonstrating why and how these prior conclusions are no
longer valid. AHAS does not believe the agency has countered these
documented policy views with any new facts and information which moot
their application to the revision of the current HOS standards to
ensure that drivers work and drive fewer hours to ensure a reduction in
both the relative and absolute risks of truck crashes. Instead, the
agency, against all the evidence of record, including their own policy
statements over the years, has offered amendments to the current
regulation which demonstrably will promote truck and bus drivers to
drive longer consecutive hours at a greatly increased risk of crashes
due to an increased prevalence of fatigue among commercial operators.''
AHAS believes that nighttime driving is less safe than daytime
driving because of the circadian effects on the driver. It rejects,
however, as speculative and unsupported by any evidence, the potential
that displacement of nighttime operations to daytime could create
additional safety problems due to increased congestion.
CRASH's principal objection is that the proposal increases by two
hours the amount of time a driver can drive in one day. CRASH cited
studies showing that crash risk nearly doubles after 8 hours and
doubles again after the 9th hour.
PATT joined AHAS and CRASH in strongly opposing any increase in the
10-hour driving limitation because of research that shows the risk of
crashes increases after 8 hours and even more significantly after 9 to
10 hours. PATT recommended limiting driving to 10 hours out of 12 hours
of allowable duty time each 24 hours, or to put it another way, no more
than 50 hours driving in 60 duty hours per week. On these issues, the
safety advocates were in harmony with the position of the IBT.
The IIHS commented that there are ``gold standard'' studies
relating crashes of truck drivers to driving hours showing that
performance degrades starting after the 5th hour, but the risk
dramatically increases after the 10th hour.
NIOSH recommended limiting driving to 10 hours within a 24-hour
work/rest cycle of 12 hours on duty and 12 hours off duty. NIOSH also
said the FMCSA should consider allowing up to 12 hours of driving per
day on rare occasions as required by emergencies or other unusual
circumstances where continued driving would be safer than stopping.
FMCSA Response
Just as industry was inclined to interpret the science as allowing
greater productivity without facing greater risk, the safety advocates
cite the science as requiring the agency to go further to restrict
driving time.
Although AHAS argued that there have been no credible studies since
1981 and 1990 countermanding the agency's previous position, FMCSA
believes recent studies have provided new information requiring the
agency to reevaluate its former policy statements.
America's transportation system has changed significantly since the
late 1930's. Long-haul truckers in the 1930's could average only 25
miles per hour (mph)--the top speed was 40 mph--and the best daily run
was about 250 miles (11 M.C.C. 203). These truckers used drafty, noisy,
and underpowered trucks to labor up long hills and other rough, narrow,
and poorly-marked winding roads. The construction of the Interstate
Highway System has contributed to significantly higher traffic speeds
and volumes. Trucking, once a relatively minor adjunct to the
railroads, has become the dominant form of transportation for most
commodities. Much of the nation's truck traffic moves on the
Interstates and other high-speed roads, sometimes for very long
distances using modern, heated/air-conditioned, air-suspension,
sleeper-berth, cruise-control equipped tractors for drivers' comfort
and safety.
The high volume and speed of traffic on the Interstates and many
other roads require a higher level of driver alertness, for the sheer
mass of a truck can make it deadly when accidents occur. Of course,
trucks also operate in local or regional environments, often in heavy
traffic, and drivers are required to perform an ever-wider range of
duties. The results of scientific research into fatigue causation,
sleep, circadian rhythms, night work, and other matters were
unavailable decades ago when the HOS rules were formulated. The FMCSA
believes there can be little doubt that fatigue directly attributable
to the exertion required to operate the modern CMV is less of a factor
now.
By limiting daily duty hours, the NPRM would have imposed a more
regular work/rest cycle, assuming that very few, if any, drivers would
drive their entire on-duty period. This is consistent with testimony
from carriers and drivers alike about customary practices. The AHAS
pointed out, however, that the degraded performance in the eleventh and
twelfth hours on duty should not, at least regularly, be spent behind
the wheel. The AHAS position does create potential issues with
operational practicality. The AHAS insisted science would require the
agency to include both a reduction in a
[[Page 22473]]
driver's nighttime operations and an increase in time off to compensate
for driving at night when the sleep debt accumulates because daytime
sleep is inferior to nighttime sleep. It dismissed as purely
speculative any impact on safety from displacing many drivers from
nighttime to daytime operations and the great number of inexperienced
drivers necessary to replace the drivers whose availability would be
substantially limited.
The FMCSA initially considered the proposals submitted in the ATA
comments and in the petition of the DLTLCA the same; however, when the
agency began considering whether the ATA recommendation could be
potentially effective and reasonably feasible, we found significant
differences with the DLTLCA proposal that raised serious questions
about the effectiveness and reasonableness of both. The ATA asserted
that its proposal was based upon research showing that humans function
on approximately a 24-hour cycle, and therefore that new rules should
promote rest/work cycles synchronous with the body's natural 24-hour
biological rhythms.
The so-called circadian cycle or rhythm has two general tendencies
on the wake/sleep cycle of humans. During daylight hours, the human
body tends to be wakeful, and during nighttime, the human body tends
toward sleepiness. Therefore, people would not only tend toward
drowsiness during the late night and early morning hours, they would
also tend to have more difficulty obtaining restorative sleep during
the daylight hours. The latter situation may lead to the accumulation
of sleep debt, resulting in increased tendency toward drowsiness not
only in subsequent nighttime periods of required wakefulness but at
other times as well.
This is not to say there are no safety benefits to be derived from
promoting regular work/rest cycles, and industry is to be commended for
proposing one. It should be noted, however, that nothing in the current
rules would preclude more regular schedules.
The FMCSA believes that allowing one additional hour of driving
activity can be safely accommodated within the context of a somewhat
reduced overall tour of duty as discussed above. The FMCSA staff
alternative selected for evaluation includes no driving after 14 hours
from the start of duty tour notwithstanding intermittent breaks off
duty for meals, naps, and other rest. In arriving at 14 hours, the
agency believes drivers would realistically take some breaks during
that time and the work period may well accumulate 12 or 13 hours, with
up to 11 hours driving.
The FMCSA relied upon 12 studies to select a 10 consecutive hour
off-duty period, a 14-hour tour of duty, and a maximum of 11 hours of
driving. The 12 studies are included within the agency's review of all
research studies used in the NPRM. The agency's review is by Freund,
D.M., November 1999, ``An Annotated Literature Review Relating to
Proposed Revisions to the Hours-of-Service Regulation for Commercial
Motor Vehicle Drivers,'' that is in the docket. The FMCSA staff
alternative concluded that, after 14 hours from the start of the work
period, it is time to stop driving, as the risk of fatigue-affected
incidents is increasing rapidly.
The PATT alternative would set driving time to no more than 10
cumulative hours. The ATA alternative would allow drivers to drive up
to 14 cumulative hours with up to 16 cumulative hours twice per 7-day
period. The FMCSA staff alternative would allow driving time up to 11
cumulative hours for long-haul and short-haul drivers. The FMCSA has
decided to allow drivers to drive up to 11 cumulative hours for all
long-haul and short-haul freight drivers.
Although the agency focused on science in developing the NPRM, it
cannot allow science alone to dictate the form or content of a rule, as
many safety groups advocate. On the other hand, while reviewing
economic, operational, and environmental issues with great care for
this final rule, FMCSA has not allowed itself to be bound by those
considerations either.
Distinctions in Duty Time
General Concept
The expert panel assembled by the agency to review the options
under consideration before publication of the NPRM recommended
eliminating the distinction between on-duty time and driving time. The
scientific basis for the recommendation is the belief that driving is
no more tiring than many of the other tasks a truck driver would be
called upon to perform.
The agency's practical basis for the proposed elimination was to
reduce the paperwork burden. Under the existing rules, drivers are
required to account for both driving time and non-driving duty time.
Eliminating the distinction, moreover, would achieve consistency with
the terminology used by the Wage and Hour Division of the U.S.
Department of Labor (DOL), allowing FMCSA to rely on DOL records in
place of driver records of duty status.
ATA Recommendation
When developing its recommendations, the ATA stated it was aware of
the expert panel's findings that driving is no more fatiguing than
other work. Therefore, it proposed to eliminate the distinction between
driving time and other on-duty time as unnecessary, leaving the
possibility of 14 consecutive hours of driving. The ATA opined that
hours of driving time would always be less than the overall duty time
within which the driving takes place. The ATA cited its HOS survey in
which commenters reported driving an average of 9.1 driving hours in an
11.4-hour day.
The DLTLCA commented that they ``went along with ATA'' although
they wanted a 12-hour limit on driving. They stated that the 12-hour
driving limitation was consistent with DOT's proposal and its research,
and noted that five states already allow 12 hours of driving (for
intrastate trips). The industry petitioners ``recognized that the
business, operational and safety needs of trucking companies and their
customers will continue to consume several hours of a driver's time
each day,'' so that ``a limit of driving time to 12 hours would
result.''
The NPTC alternative was much more direct. With little explanation,
the private carriers recommended a maximum of 12 hours driving in a 15-
hour on-duty period.
Other Industry Comments
The MFCA made no comment specifically on this issue, because its
constant position is that the present rules should remain in force. The
fact that the IBT strongly opposed eliminating the distinction seems to
support the validity of this assumption.
The NTTC supported the elimination of any distinction between duty-
time and driving-time.
Throughout the public hearings on the NPRM, notwithstanding vocal
support for the ATA recommendation, nearly all carriers and most
drivers testified that daily driving rarely exceeded 10 hours, and then
it was only due to some exigent circumstance. For example, Con-Way
surveyed its line-haul drivers, who were described as combination
drivers and dock-workers. Most runs are at night and the driver's
average duty time was 10.88 hours. Their average driving time, however,
was only 6.22 hours and their average load time was 4.5 hours. Con-Way
also did a study of all its line-haul operations on one day, which was
the last workday of the month and admittedly a worst-case scenario.
3900
[[Page 22474]]
drivers were dispatched and 42 percent exceeded 12 hours on duty, but
none exceeded ten hours of driving.
The IBT maintained a consistent position throughout the
proceedings, dating back to its initial response to the ANPRM in June
of 1997. One of the four elements of a rule that IBT could support was
maintaining the distinction between driving and non-driving duty. The
IBT observed that the agency's proposal failed three of its tests,
including this one. It argued that eliminating the distinction is what
permits driving time to be extended, and agreed with the safety
advocates that some drivers would push the envelope and drive 14 hours
a day. The IBT noted that the union is successful in getting driving
limitations into contracts because of the DOT rules.
The Snack Food Association, the National Soft Drink Association,
and the PMAA all reported that drivers in these segments of the
industry are also salespeople and customer service representatives.
They spend considerable portions of their daily duty time in non-
driving activities, and actual driving time would not exceed 10 hours.
The construction industry's recommendation to create another
category--``construction industry driver'' within a 100 mile radius of
operation--would continue a distinction between driving time and on-
duty time. Because of the seasonal and weather-dependent nature of the
industry, the proposal, supported by AGC and ARTBA, would:
(1) Extend limits to 12 hours of driving and 16 hours of duty
during a 24-hour period;
(2) Extend weekly limits to 72 hours driving and 80 hours on duty;
(3) Average driving and duty time over 14 days;
(4) Allow 90 hours of driving during the first 8 days, a 34-hour
restart, and a 45-hour driving limit over the remaining 4\1/2\ days,
followed by a 24-hour restart; and
(5) Provide for a 24-hour restart of time accumulation at any time,
presumably even to avoid the 34-restart.
The need for such increased driving time is not apparent from
testimony and comments regarding industry practices. An alternative
suggested by the AGC sheds some light. In construction, most drivers
have no responsibility for loading and unloading. Mostly, they wait in
line for loads and then wait in lines at sites to unload. Therefore,
AGC would retain the distinction between driving and non-driving
duties, but change what is meant by on-duty time to exclude time
waiting in lines to load and unload.
The American Moving and Storage Association (AMSA), which also
claims that its operations are unique, reported that drivers do not
really spend the majority of their on duty hours behind the wheel,
averaging about 75,000 miles a year. AMSA claims most of the driver's
on duty hours are spent loading and unloading.
The Institute of Makers of Explosives (IME) complained that the 12-
hour on-duty restriction for Type 4 drivers will severely impact on
``shot service,'' which entails loading ``shot'' holes with explosives,
setting the charge, and initiating the shot. The operators for IME
members apparently need at least a 14-hour day to provide the
flexibility needed for that activity, but not to accommodate more
driving.
Small truckload carriers, represented by NASTC, opposed both
reducing daily on-duty time and removing the distinction between
driving and non-driving time. They stated that, under the present
rules, a driver can drive up to 15 hours in any given 24-hour period,
giving a range of 750 miles. Under the proposed rule, the range would
be reduced to 600 miles.
The OOIDA's survey, on the other hand, found its members spend an
average of 10 hours per day driving and 2.4 hours per day loading and
unloading. An average of 10 hours of driving per day, of course, would
mean that on some days the 10 hours would be exceeded.
Private carriers, according to NPTC, advocated a limit of 12
driving hours within a maximum of 15 duty hours daily. The need for
this increase in driving time was unexplained except that the NPTC
stated it was consistent with safe operating practices. Wal-Mart,
moreover, stated the 12-hour on-duty limitation within 14 consecutive
hours is more restrictive than the 10-hour driving limitation and 15
hours on duty. Under the proposal, drivers would have to drive more
within a smaller window to maximize earnings.
Safety Advocacy Groups
Safety advocates contended that failure to distinguish on-duty time
from driving time would increase violations of HOS regulations.
The AHAS asserted that pay-per-mile practices would cause drivers
to continue to maximize driving time at the expense of the required ten
consecutive hours off duty and two hours of rest periods. It argued
that because drivers can presently use non-driving duty time each day
to perform non-driving tasks, this ``has helped'' to limit even more
flagrant abuses that would occur if there were no non-driving hours
available in the regulations. The principal concern of the safety
advocates was the belief that allowing 12 hours of unspecified ``duty
time'' would necessarily translate into 12 consecutive hours of
driving. They cited numerous studies finding that risk dramatically
increased during 10th and 11th hours, and predicted that pressures from
efficiency-minded schedulers would assure that the industry would fully
exploit this additional driving time.
CRASH stated that eliminating the distinction between driving time
and other on-duty time would result in motor carriers squeezing drivers
for every possible minute of driving time, and carriers would pressure
drivers to work during rest periods.
The IIHS commented that the safety community would prefer a driving
limit of eight to nine hours in a 24-hour period. They are realistic
enough to know that they should be content with keeping close to the
status quo.
The NIOSH, agreeing that most provisions in the proposal would
produce a beneficial safety outcome, recommended limiting driving to
ten hours within a 24-hour work/rest cycle of 12 hours of duty and 12
hours free. It also stated, however, that the agency should consider
allowing up to 12 hours of driving per day on rare occasions as
required by emergencies or other unusual circumstances where continued
driving would be safer than stopping.
FMCSA Response
The FMCSA and PATT alternatives distinguished between duty and
driving time, the ATA's did not. The FMCSA has decided to retain the
distinction between driving and on-duty-not-driving time. Each driver
required to prepare records of duty status must continue to record all
driving time separately from all time on-duty.
The paperwork reductions sought by the agency in eliminating the
distinctions in drivers' work hours received little support. That
objective even drew some criticism because the proposed substitute for
the paper log, the EOBR, is incapable of directly monitoring non-
driving duty time. The ATA opposed the use of DOL records, as did the
MFCA, which contends that few motor carriers are even aware of their
responsibility under the DOL regulations.
The ATA recommendation would eliminate the distinction between
driving and other on-duty time, ostensibly securing a more favorable
work/rest cycle for drivers. The ATA
[[Page 22475]]
and other sponsors of the industry alternative stated that their
support for a 14-on duty, 10-off duty work/rest cycle is a
``substantial positive change'' for which they should receive some
compensation to offset productivity losses. That compensation would be
in the form of more daily driving hours, potentially making 14
consecutive hours of driving legal. In the context of ``pay-by-the-
mile'' incentives, that possibility looms large, although the industry
sponsors were confident that the exigencies of the working day would
impose a natural 12-hour driving limit.
Support for this alternative from the rest of the for-hire industry
was fractional. Aside from the small truckload carriers, there was a
fairly broad consensus in favor of retaining the current limits on
driving time, subject to greater flexibility in usage. Imposing a 10-
hour driving limit in a 24-hour period would have a substantial impact
on small truckload carriers. They are presently permitted to drive up
to 16 hours in a 24-hour period under a 10-hours-on duty/8-hours-off
duty rotation. If limiting actual driving to eleven hours is a
legitimate safety measure, it would not seem equitable to allow
exceptions simply because drivers could make more money under more
liberal rules. On the other hand, if most drivers operate safely under
current rules, it would seem inequitable to subject them to more
stringent regulations that would cut into their earning capacity or
disrupt their life.
The FMCSA has decided to continue the distinction between driving
time and on-duty time. The comments, particularly from safety groups,
adamantly opposed allowing as much as 12 hours of driving time. Because
the FMCSA believes that a reasonable person could find that the last
hour of a driver's duty tour would be expected to be driving time that
comes near the end of a 13- or 14-hour workday, the FMCSA is persuaded
that 11 hours is a more reasonable limit. Within the limits of a tour
of duty usually lasting no more than 14 hours, the FMCSA believes there
is little doubt that modern CMVs can be driven safely up to 11 hours,
particularly because rest breaks can be expected to naturally occur
during the course of that tour.
Weekly or Longer Cycle
General Concept
The scientific basis for proposing weekly restrictions is the
finding from research studies that sleep debt from multiple periods of
insufficient (poor quality or insufficient quantity) sleep is the major
cause of cumulative fatigue. The recommended countermeasure is a
recovery period during which restorative sleep may be obtained and the
``sleep debt'' repaid. The concept of a weekly recovery period was
presented in the NPRM in the definition of workweek, i.e., ``any fixed
and regularly recurring period of seven consecutive workdays,'' and in
the number of hours required to be off-duty before beginning the next
workweek.
The comments raised concerns over the agency's proposal for a
``workweek,'' starting with the definition, which many thought
confusing. In some segments of the industry the concept of a Monday to
Friday workweek is alien. The language of the definition (``fixed * * *
workweek'') did appear to give these carriers cause for alarm, which
the agency acknowledged during the hearings and roundtable discussions.
A more logical definition of ``workweek'' might have been ``the
workdays between extended off-duty periods,'' although how the term
might be used in regulatory context is not clear. The recovery period
or ``weekend'' requirement will be discussed elsewhere in this
document.
ATA Recommendation
The ATA recommendation would limit drivers to 70 hours on duty in a
7-day period (with no distinction between driving and other on-duty
time). It would provide a minimum recovery period of 34 hours, which
would serve as a restart provision. The ATA recommendation also
provides an averaging option of 140 hours on duty in 14 days. Under
this option, according to the petitioners, a driver could accumulate 84
hours on duty in the first seven days before a 34-hour recovery period
would be required. A driver taking advantage of this option would then
be limited to 56 hours on duty over the remaining 5\1/2\ days.
Other Industry Comments
The alternative proposal of the NPTC would simply maintain the
present 60-hours-in-seven-days or 70-hours-in-eight-days limitations.
OOIDA's proposal would place no limits on cumulative time beyond
the daily restrictions.
Large truckload carriers generally supported the industry
alternative of limiting on-duty time to 70 hours in 7 days with
provision for a 34-hour restart. They also supported the 14-day
averaging option.
J.B. Hunt supported the proposed 12-hour work limit in a 24-hour
workday, but with no cap on the length of the workweek, reasoning that
drivers would get ample opportunity for restorative sleep every day and
sleep deprivation should not be an issue. If a cap were necessary, Hunt
would implement a limit of 140 on-duty hours in 14 days with a 36-hour
restart period. The 36-hour off-duty break would have to be taken
during or at the conclusion of 14-day period, which then would start
another 14-day period. This means a driver could average 10 hours of
work a day, but could extend to 12 hours of work, as circumstances
required.
Landstar commented that it fully supports using 24-hour and 7-day
work/rest cycles, but found provisions in the proposal that do not make
sense from either a safety or practical aspect. It recommended a
limitation of 70 hours driving in a 7-day period, followed by 24 hours
off duty, which would actually be an 8-day week.
The State trucking associations collaborated in the ATA alternative
and therefore must be considered to have supported it.
PMTA noted that the loss of the 70 hours in 8 days provision under
the existing rules will cause major schedule disruptions and reduce
productivity by 15 percent.
CTA commented that a maximum 60-hour workweek is too restrictive.
It will aggravate the driver shortage, place more inexperienced drivers
in more trucks on the road, reduce drivers' incomes, and severely harm
the economy.
The unionized LTL carriers demurred on this issue, apparently
reflecting the position of the MFCA that they were content with the
present rules and saw no reason for change.
Many LTL carriers joined in support of the ATA recommendation co-
sponsored by the DLTLCA.
Con-Way promoted the industry alternative with the averaging option
of 140 hours over 14 days and a 34-hour restart.
Overnite, however, took a more conventional position: On-duty time
should be limited to 62 hours in a 7-day period. That would simply be a
conversion of the present restriction of 70 hours in 8 days, or
productivity neutral.
The small truckload carriers represented by NASTC adhered to a
philosophy that drivers should have the opportunity to drive during the
``week'' and be home on weekends with their families. Therefore, they
recommended the present limit of 70-hours in 8 days be retained. They
further recommended an exception, which would allow drivers returning
home to continue at a 10-hours-on and 8-hours-off pace until he reaches
his destination. So long as the drivers maintained that pace on
[[Page 22476]]
their return journey, there could be no violation of the 70-hours-in-8-
day rule. However, if the drivers exceeded the 70-hour limit on the
home trip, they would be required to take a minimum of 56 hours off.
OOIDA took the position that requiring 10 hours off and limiting
available duty time to 14 hours daily is sufficient regulation to
assure opportunity to rest for drivers throughout the industry. Any
further limitations should be entirely at the driver's discretion.
The NPTC pointed out a concern in the proposal's fixed workweek.
Its reading of the proposal is that it would force drivers into a
``fixed seven-day workweek'' with the two consecutive days off at the
end, regardless of how many hours they worked during the week.
Therefore, ``a driver could apparently work 24 hours over three days,
take two days off and then be required to take another two days off at
the end of the `workweek.' Since the driver clearly would have adequate
rest by any standard, there is no possible safety rationale for this
requirement.'' The NPTC recommends retaining the current cumulative 7-
and 8-day on-duty limits.
Wal-Mart, on the other hand, preferred the ATA recommendation's
workweek of 70 hours in 7 days. This would allow Wal-Mart to maintain
the flexibility of its 7 days on, 7 days off schedule and actually
enhance safety.
The PMAA sought clarification of the proposal's ``workweek,'' and
offered an example. Driver A starts work at 8 a.m. Sunday and quits at
8 p.m. He continues this for 5 days, ending at 8 p.m. Thursday. After
the mandatory 56-hour weekend, he could start a new week at 8 a.m.
Saturday, but would he be violating a ``seven consecutive days''
provision.
The moving industry and the construction industry, each contending
for a sixth category that would better address their unique needs, had
problems with the proposed workweek. The moving industry comments
indicated it needs more flexibility because movers could not operate on
a fixed 7-day schedule.
The logging industry also pleaded a hardship because it can only
transport tree-length loads in daylight hours under State size and
weight laws, which severely restricts operations in the winter months.
Their problem dealt more with the fixed nature of a ``workweek'' as
defined in the proposal, and presented an example of losing the first
two days of a workweek to rain and the inability to restart a new
workweek as defined.
The oil and gas drillers stated that their industry is a 7-day/24-
hour operation, so workweeks have little meaning. In some cases drivers
are scheduled on rotations of 9 days on and 3 days off to provide full
coverage.
Safety Advocacy Groups
Advocates stated that the proposed workweeks were too long,
focusing on the possibility that an entire 60-hour workweek could be
spent behind the wheel. It also stated that a 60-hour workweek would
cause a build up of sleep debt because longer daily shifts adversely
affect the ability to obtain restorative sleep. The AHAS objected to
the NPRM's allowance of alternating long and short workweeks and
weekends, claiming that this only promotes fatigue, primarily because
the long workweek is followed by the short weekend under the proposal.
They also objected to the liberal allowances proposed for long work
schedules for Type 5 drivers (whose driving duties, limited to five
hours a day, are only incidental to their primary duties). AHAS
recommended extending the minimum recovery period by 24 hours to 56
hours, including three periods from 11 p.m. to 7 a.m. and reversing the
alternating weekends so that long follows long, etc.
CRASH was pleased the agency was proposing to retain the 60-hours-
in-7 day limitation, but stated that allowing incidental drivers to
work up to 78 hours in a week was a grave mistake.
PATT recommended limiting driving to 10 hours out of allowable 12
hours on duty each 24 hours, and also put it another way, no more than
50 hours driving in 60 duty hours per week.
The NSC recognized the issue of cumulative fatigue and supported
required time off after 7 days.
FMCSA Response
The agency agrees with industry commenters' concerns that the
proposed ``fixed and recurring 7-day periods,'' within which duty
limitations would apply, is simply not practical. The clear inference
to be drawn from the ``workweek'' definition is that once a driver
begins a workweek, for example, at 7 a.m. on a Monday, the next
workweek would also have to start at 7 a.m. on the following Monday.
When coupled with the required ``weekend,'' carriers saw this as a huge
infringement on their ability to maintain productivity. A driver in a
weather-sensitive occupation could start work on Monday after a weekend
off, then be idle for Tuesday and Wednesday due to rain, return on
Thursday to resume the workweek with no credit for the Tuesday-
Wednesday ``weekend.''
The flaws and unintended consequences in the proposed fixed
workweek are undeniable. A strictly fixed workweek was what the agency
intended, to be consistent with DOL regulations. Throughout the freight
industry, particularly but not limited to the truckload sector,
established workweeks are rare. Any attempt to ``shoehorn'' existing
operations into some concept of what ought to be, as at least one
commenter observed, is ``fraught with peril.'' The resulting costs in
lost productivity would probably outweigh benefits.
The NPRM did propose to place limits on on-duty time over the
course of a seven-day period to prevent accumulation of sleep debt.
Abandoning the idea of a fixed workweek means that an alternative must
be found, and at least three are readily available. The first is to
define the workweek in terms of time between ``weekends.'' In other
words, the so-called week would start to run after the accumulation of
a stated period of consecutive off-duty time.
In terms of the NPRM, one alternative would allow the 32-hour
period containing two periods between midnight and 6 a.m. to be used as
a restart provision. In seeking clarification, the representative from
the DLTLCA had pointed out that the proposal's ``weekend'' provision
only made sense if it were treated as a restart. Whether the proposed
``weekend'' could survive as a restart mechanism, or whether another
period would be preferable, are discussed elsewhere in this document.
The second alternative is to retain the limitations in the existing
rules with adjustments, in order to redirect the restriction toward
duty time rather than driving time. This option is similar to what
private carriers proposed. The current rules restrict any further
driving after a driver accumulates 60 hours on duty in a seven-day
period or 70 hours on duty in an eight-day period. If the focus were to
be on duty time, the restriction would simply limit drivers to 60 hours
of any duty in a seven-day period and 70 hours in an eight-day period.
This is the most neutral alternative. It would provide a floating block
of time, as in the existing rules.
The availability for duty would be determined by looking back over
the immediately preceding seven or eight days, similar to the way
availability for driving is determined under current rules.
Fortunately, potential negative impacts on productivity did not
materialize. FMCSA found that in the 7-day option, for example, an LTL
driver
[[Page 22477]]
may routinely end a run at the home terminal in the 60th hour. The
driver's routine would include assisting in unloading, which is
permitted under the existing regulations, and would continue to be
allowed under the alternative being adopted today.
The third possibility is the ATA recommendation, which is more
complex and requires some explanation. The first part of the proposed
``weekly on-duty period'' is straightforward. A driver may not be on
duty more than 70 hours in any seven consecutive days. This would
replace the current 60-in-seven and 70-in-eight restrictions, except
that the ATA recommendation refers to duty time and not driving. The
industry's interpretation of the 14-hour duty segment could also
confuse the construct of a workweek. Use of the flex-time provision
should eliminate this confusion. Under the ATA recommendation, the
``seven-day period'' would end with the beginning of 34 consecutive
hours off duty. In other words, once a driver is off duty for a minimum
of 34 consecutive hours another seven-day period would begin to run
when the driver resumes work.
FMCSA calculates that if each 14-hour block of productive time were
extended by an average of 4 hours to compensate for meal periods, rest
breaks, and off-duty downtime at shipper facilities, the result would
be six 18-hour ``workdays'' in the seven-day period. This example may
be somewhat extreme, but no more so than some of the examples presented
in the comments to demonstrate lost productivity.
The second part of the industry's ``weekly on-duty period,'' i.e.,
the 14-day averaging option, is a little more complicated. The industry
petition likened its 140-hours-in-14-days averaging option to the
agency's proposed option for two-week averaging. Under the agency's
proposal, long-haul drivers could opt to accumulate 72 duty hours in
the first week, followed by 48 duty hours in the second week for a
weekly average of 60 hours. The purpose of the agency proposal was to
enable long haul drivers to use a short weekend while on the road and
reserve a longer weekend for the time when they were in their home
area. It was not well received for several reasons, particularly
because of confusion about the ``fixed workweek.'' Invariably,
according to commenters, drivers would be stranded in a remote location
and away from their families for their long weekend, a new version of
Murphy's Law, apparently.
The industry averaging option would purportedly allow drivers to
average 10 duty hours a day over a 14-day period by accumulating up to
84 on-duty hours in the first six days (6 days times 14 hours per day).
After 34 consecutive hours off duty, the driver would then be limited
to 56 hours on duty during the second seven consecutive days. If he
accumulated those 56 hours in the following slightly more than three
and a half days, he would have to take a minimum of nearly three full
days off before driving again. If Murphy's Law held true, however,
those drivers would still inevitably find themselves in a remote
location for those three days. And the three days would be mandatory
off-duty time, even under the ATA recommendation.
This flexibility could present enforcement problems, as drivers
seeking to use the 14-day option could be found in violation of the 70-
hours-in-seven-days restriction before they demonstrated compliance
with the second week's limitation. Reversing the long and short
workweeks could solve the enforcement problem, but it would become too
complicated an issue for roadside enforcers. It would also require
carrying 14 days worth of logs or using an on-board recording device
capable of storing 14 days of duty-time records. Another issue would be
the operation of the 34-hour off-duty provision as a restart under the
ATA recommendation in the context of the 14-day option. Drivers and
carriers could easily be confused after the second period and return to
work after a 34-hour break without fully repaying the time owed from
the first week.
Acute and cumulative sleep debt arises from sleep deprivation
generally, and particularly loss of sleep during nighttime hours. The
argument over workweeks places too much reliance on imperfect science.
The comments of the ACOEM were particularly instructive in this regard.
The ACOEM recognized that fatigue is an important concern for both
safety and productivity in commercial driving, but cautioned against
placing too much emphasis on what it considers incomplete science. Only
the ACOEM recommended deferral of any further action on the proposal
until an adequate scientific basis is available.
The agency agrees there is not sufficient scientific or operational
justification for a fixed 7-day week. The economic impact of such a
``week'' on scheduling efficiencies and driver compensation is simply
too great, given the uncertain benefits in fatigue reduction.
The agency has concluded that the current 60-hour-in-7-day and 70-
hour-in-8-day limitations continue to be generally acceptable for CMV
drivers operating in the United States.
Weekly Recovery Periods
General Concept
Having already addressed daily off-duty periods, two related issues
are dealt with in this section. They are weekly rest breaks or
``weekends'' and restart provisions. These concepts are related, but
could have entirely different effects depending on how they are
implemented. The mandatory weekend recovery period was perhaps the
single most criticized element in the proposed rules.
In the NPRM, the agency introduced the concept of a weekly off-duty
period or ``weekend,'' which was intended to provide a regularly
recurring opportunity to compensate for any accumulated sleep debt. The
NPRM noted ``the research indicates that to negate the effect of
accumulated week-long sleep deprivation and restore alertness to the
human body it is necessary to have at least two consecutive nights off
duty.''
Several commenters correctly pointed out that imposing a regulatory
requirement for a weekly off-duty period containing two midnight to 6
a.m. blocks assumes that every driver is subject to weeklong sleep
deprivation. The agency may have overreached trying to prevent the most
extreme abuses by imposing restraints on the whole driver population.
There are numerous examples in the comments and testimony to the effect
that most drivers have ample opportunity for normal sleep every night
and presumably would never be subject to severe sleep deprivation as a
result of their working conditions.
The most frequent objections to the agency's ``weekend'' proposal,
however, were the economic and safety implications of restricting
nighttime driving. Comment after comment stated how requiring two
consecutive nights off would create havoc on the already overcrowded
highways in the daylight hours. The requirement would also, according
to numerous commenters, disrupt current and entirely safe business
operations and result in much greater replacement costs than forecast
in the preliminary regulatory evaluation.
The proposal did not offer any opportunity for a restart of the
weekly clock after a certain amount of consecutive off-duty time had
accumulated. The agency even proposed to restructure the statutory
exceptions in Sec. 345 of the NHS Act, within the proposed weekend
recovery period. The
[[Page 22478]]
only reason for a restart provision is to allow increased productive
time notwithstanding the general regulatory requirements when
consecutive off-duty hours substantially exceed daily minimums. In
other words, restarts are exceptions to the general rule. The agency
considered a general 24-hour restart in 1992, but withdrew the proposal
when it determined that there was insufficient data available to
support the action on safety grounds. Comments to the NPRM raised the
issue again, both in objecting to the treatment of the statutory
exceptions and in offering an alternative to the agency's 1992
proposal.
Industry Comments
The for-hire industry offered no alternative weekly or other
greater-than-daily recovery period, except in the context of its two-
week averaging alternative to cumulative restrictions discussed
elsewhere in this document. Its 70-hours-in-7-days cumulative period
would operate as the present regulations do, i.e., look back over the
past seven days to determine if duty time is available to a driver. The
DLTLCA petition did, however, request a cost/benefit analysis on an
extended rest period within the range of 24 to 34 hours, which could
then serve as a restart. The specific recommendation of the petitioners
was for a 34-hour restart provision that would effectively end a
consecutive seven-day period within which accumulation of duty time is
taking place. Once the driver had been off duty for 34 consecutive
hours, which would include a mandatory 10-hour daily recovery period,
the petition argued that the driver should be considered fully
recovered so that another seven-day period could start to run. The 34-
hour period was conceived by combining one 10-hour off-duty period with
one full 24-hour day, which could return the driver to the same cycle
he was operating when the 34-hour period started. This could add an
extra 14-hour shift every 7 days. It would also enable short weeks to
be restarted. For example, a flex-board driver could be called in to
work two consecutive days of 14-hour shifts at the beginning of a
seven-day period and then be idle the following day. Once his off-duty
time amounted to 34 consecutive hours, a seven-day period would begin
all over again.
Landstar stated that its review of the available research and its
experience lead it to believe the NPRM was flawed. Landstar cited
Cabon, Mollard, and Coblentz, Sleep Deprivations and Irregular Work
Schedules, Proceedings of the Human Factors Society 35th Annual
Meeting--1991, Paris, France and McCartt, Rohrbaugh, Hammer, and
Fuller, Factors Associated with Falling Asleep at the Wheel Among Long
Distance Truck Drivers, Accident Analysis and Prevention. Landstar used
these studies to argue that ``the research shows that a period of
sleep, no matter how long, cannot `reset' or restore the human body.
Sleep, which has been `lost', cannot be `made up.' If an operator
misses sleep, that missed sleep cannot be restored by a two day off-
duty break. Studies also indicate that rest on the road is not the same
quality of rest one experiences when at home.''
Landstar also stated that ``at the same time, `missed' sleep is
important. The effect of lost sleep is cumulative. The impact of lost
sleep is compounded as an operator misses more and more sleep. Yet,
when it is time for the operator to rest,'' Landstar cited Coleman,
Richard, Wide Awake at 3:00 a.m. by Choice or by Chance, as showing
``the length of his sleep is affected most by (1) his body time (i.e.,
where he is in his circadian rhythm) and (2) the cumulative amount of
his sleep deprivation.'' Landstar argues that ``when it is time for the
operator to rest, once he sleeps for the length of time required by his
body (as affected by his body time and amount of sleep deprivation), he
is restored and ready to resume alert performance of his activities. In
most every instance, the amount of rest required by an operator will be
substantially less than the required 32 to 56 hour period set forth in
this proposed rule.''
Landstar stated that Cabon, Mollard, and Coblentz further ``show
that rest is affected not by the specific hours (i.e., midnight to 6
a.m.) that one rests, but instead by an operator sleeping according to
his own established regular schedule of working and resting, whatever
that regular schedule may be for the individual operator. Studies show
that it is irregular sleeping schedules that lead to troubles with
biological rhythms. Sleeping according to the operators' established
schedule provides rest, but sleeping during abnormal hours affects the
quality of sleep and can cause sleep deprivation.'' In the context of
earlier starting times, Landstar also found scientific support for the
notion that regular hours of sleep, no matter when they occur, are
preferable.
The NPTC alternative for private carriers contained no greater-
than-daily recovery period, preferring to operate under the present
rule's restrictions on cumulative operations. They did note, however,
that ``the flexibility to provide non-consecutive days off is critical
to many private fleets and is adequate for drivers to achieve needed
rest.''
The OOIDA proposal specifically rejected any mandatory recovery
period beyond the daily 10 hours of rest.
Safety Advocacy Groups
The AHAS believed a minimum weekly off-duty time block of 32 hours
is too short to counter fatigue and sleep debt. They contended that
drivers would regularly violate the ``weekend'' recovery period because
of the difficulty of enforcement. They also concluded that even two
consecutive nights off is inadequate to compensate for the accumulated
fatigue caused by longer shifts. Finally, the AHAS recommended
extending the minimum recovery period by 24 hours to 56 hours,
including three periods from 11 p.m. to 7 a.m.
FMCSA Response
The science supports the notion that drivers should be provided
recovery periods after a sustained period of daily work to avoid the
build-up of cumulative fatigue and/or sleep deprivation. This notion
was the basis for the proposed rule that every driver must have a
``weekend'' off every seven days, i.e., a period of time including two
consecutive midnight to 6 a.m. periods. The agency was attempting to
ensure that drivers had a weekly opportunity to obtain restorative
sleep and avoid a significant build up of a sleep deficit. Industry
comments criticized what they considered the lack of scientific
evidence to support the need for an extended period of rest. Depending
upon the driver's schedule, a separate midnight-to-6 a.m. recovery
period may be unnecessary, or it may be necessary after a period less
than 7 days duration if the driver has been assigned night work.
The industry's position is that the required ``weekend'' reflects
the agency's intent to significantly curtail nighttime driving. That is
incorrect. The agency clearly stated in the NPRM that it was not
acceding to the Expert Panel's recommendation on limiting nighttime
driving. However, the NPRM with an off-duty period including two
midnight-6 a.m. periods (effectively 11 p.m. to 7 a.m.) would have
caused some displacement of drivers from nighttime duties.
The proposed rules contained a requirement for a daily recovery
period providing the driver a regular opportunity to obtain restorative
sleep and hence avoid acute sleep deprivation in large measure. In many
cases, drivers can sleep every night; others obtain mostly nighttime
sleep; and some rarely sleep at night. We know the science
[[Page 22479]]
indicates that, because of the circadian influence, sleep during
daylight hours is generally less restorative than sleep at nighttime.
That in itself can lead to sleep deprivation and consequent build up of
sleep debt, but not always if carriers carefully monitor schedules to
avoid too many successive nights of work and if drivers follow proper
sleep regimen. The alternative would be to control the cause of sleep
deprivation by limiting the hours that may be worked in a given period.
Although there is nothing scientific or magical about seven days, the
present rules have been employing that time period as a baseline for
many years.
The present rules impose restrictions on driving after 60 duty
hours in seven days for drivers of carriers who operate only six days
per week, or 70 duty hours in eight days for those who operate every
day of the week. Simply continuing those limitations in a revised
proposal including a 10-hour daily recovery period in a flexible day
should satisfy many carriers, particularly LTL carriers and local
delivery operators. As noted earlier, the restrictions in the existing
rules only apply to further driving, so that a violation of the rule
occurs only when the driver begins or continues driving after the
prescribed duty time has accumulated. Therefore, a driver could easily
squeeze in a few more non-driving duty hours at the end of the workweek
(or after 60 or 70 duty hours had already accumulated in the
corresponding period).
An alternative would be to target accumulated duty time and apply
the restrictions accordingly. That would mean that further on-duty time
must cease when 60 or 70 duty hours within the corresponding period
have accrued. The loss of those few additional non-driving duty hours
would undoubtedly raise costs in some segments of the industry.
The ATA recommendation would combine the 60- and 70-hour
limitations into one 70-hours-in-seven-days limit, and would apply it
to all duty time. Therefore, the opportunity to squeeze in extra duty
hours after completing driving responsibilities in the 70th hour would
not be available. At least one carrier calculated that a limitation of
61.25 hours in seven days is the mathematical equivalent of 70 hours in
eight days. It did not attempt to factor in the accrual of any
additional duty time possible under the present regulations. The DLTLCA
alternative also provided for a 34-hour restart, which would make it
possible to accrue as many as 84 duty hours in any seven-day period.
The ATA recommendation, therefore, would provide opportunities for
considerable gains in productivity.
After reviewing the research, comments, and RIA, the FMCSA is
convinced that a minimum 34 consecutive hours of off-duty time can
begin a new 7- or 8-day period, during which a driver could drive or be
on duty a cumulative total of 60 or 70 hours (i.e., the 7- or 8-day
``clock'' is restarted by a 34-hour off-duty period). The FMCSA
selected 34 hours based on the industry's arguments that it be based on
scientific guidance, operational needs, common sense, and realistic
assumptions. ATA cited Carskadon and Dement, ``Effects of Total Sleep
Loss on Sleep Tendency,'' (1979) which they say suggests that people
who have experienced total sleep loss, or have accumulated significant
sleep debts over an extended period, may need 2 nights of sleep to
completely recover. ATA also argued that ``a recovery and restart
period of 34 hours off-duty will allow a driver to have two
uninterrupted sleep periods of 7-8 hours * * * Moreover, compliance
with the minimum 34 hours would result in a driver restarting work at
approximately the same time of day as his or her prior shift. This will
avoid the shifting of daytime to nighttime schedules which research
indicates can disturb the circadian rhythm and decrease alertness.''
This allows drivers to get at least two sleep periods, without
restraining the driver by the unworkable midnight-to-6-a.m. period from
the NPRM.
The PATT alternative did not provide a ``restart'' provision. The
ATA alternative provided that drivers who obtain 34 consecutive hours
of off-duty time could begin a new 7-day period, during which they
could drive or be on duty a cumulative total of 70 hours (i.e., the 7-
day ``clock'' is restarted by a 34-hour off-duty period).
The FMCSA is selecting its staff alternative incorporating a 34
consecutive hour off-duty time can begin a new 7- or 8-day period for
the final rule because it provides the most favorable combination of
increased driver alertness and reduced fatigue-related incidents.
Short Rest Breaks During a Work Shift
General Concept
In proposing a daily work/rest cycle, the FMCSA stopped short of
dividing the 24-hour period into two blocks (on and off duty), as was
proposed by industry. The agency sought to place further restrictions
on the 14-hour block. One of the reasons for the restriction was to
acknowledge operational differences among motor carriers. Another
reason was the proposed elimination of the distinction between driving
time and other on-duty time. The principal reason, however, for
reserving two hours out of the 14-hour block for rest periods was to
ensure that road drivers, who spend most of their time in the driving
mode, were afforded the opportunity to improve safety by alleviating
potential drowsiness through strategic use of break time. The FMCSA
assumed that drivers would rarely, if ever, spend an entire 14-hour
period behind the wheel. There are simply too many naturally occurring
personal and occupational demands that would require the driver's
presence elsewhere. The FMCSA stated, therefore, that regularizing such
personal time away from driving would not be a burden on productivity
and would empower drivers to insist upon necessary break time.
ATA's Recommendation
Behind the ATA's recommendation in converting to a 24-hour work/
rest cycle was apparently the understanding that whereas 10 consecutive
hours would belong to the driver, the remaining 14 hours belonged to
the carrier. In the NPTC proposal, only nine hours would belong to the
driver. As noted earlier, an aspect of the ATA recommendation that the
FMCSA considered problematic is that personal breaks taken by the
driver during the 14-hour block would only extend that block thereby
upsetting the integrity of a recurring 24-hour work/rest cycle.
Other Industry Comments
Industry was uniformly opposed to mandatory rest breaks for a
variety of reasons. The theme running through the comments was that the
requirement is unnecessary.
The ATA advised the agency to promote, but not mandate, rest breaks
that do not diminish driver's work time.
The PMTA commented that requiring rest breaks would cause driver
shortages. PMTA stated there is enough time in the day for drivers to
rest, if necessary, while maintaining a productive schedule. It also
contended that the proposed rules do not enable drivers to take
advantage of downtime at loading docks.
The NPTC asserted that mandating breaks interferes with the
carrier's ability to manage distribution schedules. It also argued that
the paucity of available rest areas would make it difficult to find a
place to take breaks.
The National Soft Drink Association stated that required breaks
adding up to two hours for Types 1, 2, and 5 are
[[Page 22480]]
unnecessary and costly. It contended that breaks occur naturally
throughout the workday.
The IBA also stated that flexible rest breaks were already being
taken at the driver's discretion.
ARTBA found that the requirements for two hours of uninterrupted
breaks and the 5-hour driving limit under Type 5 operations were both
too restrictive and unwarranted intrusions by government into employer-
employee relationships.
The Institute of Makers of Explosives observed that the
Department's own Hazardous Materials Regulations requiring explosives-
laden vehicles to be attended at all times precludes the mandatory
breaks provided in the proposal.
Intermodal operators stated that mandatory breaks, along with the
other proposed requirements, would adversely impact their operations,
and probably cause many companies to go out of business.
American Freightways opposed mandatory breaks, believing that
drivers should determine if, when, and for how long breaks are
necessary.
ABF Freight Systems noted an inconsistency in the proposal.
Although the proposal stated that Types 1 and 2 drivers are more likely
to be involved in an accident, they are allowed to log breaks off duty,
thus preserving on-duty time. Type 4 drivers, who go home and sleep in
their own beds every night, are limited to 12 hours per day, including
lunch and breaks.
Worldwide Van Lines supported the ATA's 14-10 breakdown so long as
the 14 hours are productive hours. It might consider a one-hour break
that is currently in vogue in the moving industry. It would prefer to
allow carriers and owner-operators the flexibility to schedule rest
periods consistent with safety and operational requirements.
Safety Advocacy Groups
Although supportive of rest breaks, AHAS had some reservations.
First, It stated that drivers will abuse them and spend the time on
non-driving duties, and second, it was concerned with a driver's post-
nap sleep inertia and how it might contribute to a crash before the
driver was fully awake after the nap.
FMCSA Response
With a limitation of 11 hours on daily driving, the FMCSA believes
the need for additional break time diminishes. Rest breaks are still a
significant tool in combating fatigue and FMCSA will encourage their
use. But the difficulty in enforcing required breaks reduces the
likelihood of realizing the benefits intended.
The ATA and PATT alternatives did not incorporate any breaks
occurring during a tour of duty. The FMCSA staff alternative provides
that any breaks occurring during a tour of duty will not extend the
work day.
Economic Impacts
Perhaps the gravest concern expressed by the motor carrier industry
was the projected cost of the proposed rules. Virtually all of the
industry commenters took issue with the agency's cost/benefit analysis,
believing, for the most part, that the agency exaggerated the benefits
in terms of accident avoidance and significantly underestimated the
compliance costs.
Proposed Costs
Comments from the industry side reflected the common theme that the
costs associated with the proposed rule were prohibitive, much higher
than the costs projected by the agency. Predicted consequences were not
limited to individual company failure, but extended to a ruinous impact
on the economy. Other commenters lamented the economic condition of the
motor freight industry, which they regarded as critical. Operating as
they do on thin margins, many companies contended that they could not
absorb the increasing price of fuel, let alone the regulatory costs
proposed by DOT and OSHA (in its ergonomics rule).
The increased costs were primarily associated with the number of
drivers and vehicles required to deliver the same amount of freight
with what was perceived to be substantially reduced productive time
allowable under the proposal. Estimates varied, but it appeared that
most commenters arrived at their conclusions by applying a straight-
line comparison of the maximum amount of productive time for each
driver allowable under the present rules with the maximum duty hours
stated to be allowable under the proposal.
Industry Reaction
The position of the motor freight industry on the economic impact
of the proposal was perhaps best summarized in the DLTLCA petition
filed on November 29, 2000. This association represents regional less-
than-truckload (LTL) carriers engaged in transportation and
distribution of LTL freight locally and regionally. The petitioners
found the preliminary economic evaluation, particularly the cost/
benefit analysis, to be ``woefully inadequate.'' They contrasted this
effort with a study commissioned by the FHWA in 1980-1981 to assess the
economic and safety impacts of proposed revisions to the HOS
regulations.
Regarding the proposed rules, the DLTLCA surveyed 150 LTL carrier
members, which concluded the proposal would increase costs by 5
percent. The regional LTL market is $10 billion and the national LTL
market is another $10 billion. So that industry's estimated costs would
be three times what the FMCSA estimated.
The ATA stated that the trucking industry employs 9.7 million
people, including three million truck drivers, has annual revenues of
$486 billion (1998 estimates) and logs 414 billion miles on the road
each year (110 billion miles by large trucks over 16.5 tons).
The ATA reported the results of a survey it conducted of members,
which estimated that the average loss of productivity would be 17
percent. ATA instructed the commenters to compare drivers' logs in
actual operation with ``what they think could be done under proposed
rules.''
The ATA also commissioned the National Economic Research
Association (NERA) to review the agency's preliminary regulatory
evaluation, particularly the cost/benefit analysis. The entire NERA
report was submitted to the docket by the ATA, but the primary findings
are set forth here for ease of reference:
(1) The FMCSA's economic analysis failed to support the proposed
rule. After corrections for what were identified as methodological and
mathematical errors and omissions, NERA's economic analysis determined
that the cost of the proposed rules were more than five times as large
as the benefits--for a net loss of $15.4 billion over ten years;
(2) The FMCSA's bundling of the rule's components obscured the
Administration's own findings. Separating the costs and benefits
associated with the paperwork reduction component of the rule revealed
that the rule's other components--a reduction in driver's hours and an
on-board monitor requirement--failed a cost-benefit test, even based on
the FMCSA's own assumptions;
(3) The FMCSA understated the costs of compliance by
underestimating the number of new truck drivers required; by ignoring
the cost of non-wage benefits, recruiting and training, additional
trucks, and supporting personnel and infrastructure; and by
underestimating the costs of on-board monitoring equipment. Correcting
for these errors increased the cost of the
[[Page 22481]]
proposed rule by $15.7 billion over the next 10 years. NERA considered
this to be a conservative estimate, as many other costs, which are
difficult to quantify but which could be substantial, were not
included;
(4) The FMCSA overstated benefits by overestimating the number of
fatal crashes attributable to truck driver fatigue. Once the baseline
was adjusted for crashes from other causes, benefits fell by $3.1
billion over 10 years. NERA estimated that the proposed rule would lead
to approximately 19 avoided fatalities per year, compared to the
FMCSA's finding of 115 per year;
(5) The FMCSA failed to substantiate the rule's potential
effectiveness. The Administration stated the number of fatigue-related
fatalities would fall by 20 percent--without reference to any specific
studies or statistical support. In fact, available crash statistics
indicate that only 3 percent of fatigue-related fatalities can be
attributed to drivers driving more than 12 hours; and
(6) The FMCSA failed to recognize the negative consequences of the
rule for small regional and long haul trucking companies. Many of these
companies operate on thin profit margins and face competition from
other modes unaffected by the proposed rule. These companies also face
increased costs from other proposed regulations, such as OSHA's
ergonomics rule. Consequently, they could not readily absorb additional
costs or easily pass additional costs through to their customers.
The ATA argued that the agency ignored numerous factors when
conducting its benefit-cost analysis, including the number of new
drivers, additional wages, driver non-wage benefits, recruiting costs,
additional equipment, supporting infrastructure costs, additional
maintenance, insurance premiums, LTL restructuring, electronic on-board
recorder (EOBR) purchase and maintenance, and increased inventory
carrying costs. The ATA did not rely exclusively on the NERA report for
this criticism, particularized in its comments, and was even critical
of NERA for being too conservative.
Other Industry Comments
Although many motor carriers estimated substantial costs arising
from various aspects of the proposal, their computation methods were
not always clearly articulated.
Covenant Transportation, a truckload carrier, shed some light on
the methodology used by many carriers to estimate the costs of the
proposal on their operations. Covenant compared the number of
productive hours per month available to a driver under the existing
rules (280) with the number of productive hours it stated would be
available under the proposed rules (240) and arrived at a difference of
17 percent. It did the same comparison for vehicles and concluded that
17 percent more trucks would be needed. Covenant opined that converting
to relay operations would not work. The loads do not match up. It
stated the trucking ``industry is very, very sick.'' The new rules
would drive the small operators out of business. The main cause of
sickness, according to Covenant, is driver pay. The company increased
pay four times in the last four years so that the average at the time
it submitted comments was about $42,000 per annum, which it said was
not enough. Whatever enough may be, ``until you reach that magic
number, turnover will continue to kill you.''
J.B. Hunt Transport, Inc., a carrier with one of the largest
truckload operations, found that if the proposal were not amended,
productivity would decrease 2 percent on face value. That estimate was
based on comparing 61.25 hours a week permitted under the present 70-
hours-in-8-days limit with 60 hours in 7 days as proposed, but noted
that this was only the surface. The biggest negative impact would come
from the rigidity of the proposal. The loss of flexibility, if not
corrected, would cost Hunt an estimated $250 million per year and
increase rates to customers by an estimated 20 percent.
Contract Freight, Inc. (CFI), a large truckload carrier, did an
analysis by mile, which it noted is the bottom line in trucking.
Comparing logbooks of current drivers with what CFI could project under
the proposed rules showed a 13 percent reduction in miles. CFI also
included logistics costs, relocating facilities, positioning drivers,
etc. that would add another 7 percent reduction in miles. To move the
same amount of freight that it does with 2100 tractors, CFI estimated
that it would need 400 more, and with a ratio of 2.9 trailers to each
tractor, CFI would need almost 1200 more trailers. CFI stated that it
used to do the most relays of any trucking company, but believed that
it would not be possible to do the same volume of relays under the
NPRM. CFI calculated average driver trips for one of its ``priority
teams,'' which runs about 18,000-19,000 miles per month. An average
single CFI driver runs about 10,500 miles per month, while a low
producing single CFI driver will run about 9,000.
Schneider National, Inc. with its affiliated companies employ in
excess of 15,000 drivers with a fleet of over 13,000 tractors and
34,000 trailers. Schneider stated that the FMCSA dramatically
underestimated the financial costs of its proposal and, by focusing
only on fatigue-related crashes, FMCSA also failed to recognize that
the proposal might result in an increase in the number and severity of
other accidents if the proposal were implemented as drafted. The
limitation of 12 hours on duty in any 24-hour period, together with the
``weekend,'' will reduce productivity by 25-30 percent and require an
additional 100,000 inexperienced drivers and vehicles to move the same
amount of freight.
Werner Enterprises, Inc. operated 7,425 trucks, 6,225 of which are
company-owned and 1,200 of which are independent contractors. Werner
stated that the proposal was at best safety neutral, but extremely
costly. It supported ATA's analysis of the proposed rule and did
provide some detailed analysis of the economic impact of the proposal
on Werner and its drivers. Arriving at a 20 percent productivity
decrease, meaning also that drivers would lose 20 percent of their
income, Werner projected an annual operating cost increase of $290
million. If Werner were to stay in business, these costs would have to
be passed on to shippers and consumers.
Bestway Express, employing 325 drivers, cited the U.S. Chamber of
Commerce's crediting of trucking for the sustained economic boom
through calendar year 2000, noting that efficient transportation took 5
percent off the cost of consumer goods. For the industry as a whole,
Bestway stated that the proposal would add $100 billion for inventory
costs, $50 billion for additional trucking services, $25 billion for
inventory carrying costs and that it would cause U.S. jobs to be lost
to Mexico.
NASTC stated that under current rules, a driver could drive up to
15 hours in any given 24-hour period, giving him a range of 750 miles.
Under the proposed rule, his range would be reduced to 600 miles.
Because of a ``pay-to-wait'' provision, a requirement in the proposal
to log waiting time as on-duty time, NASTC predicted the productivity
loss could go to 25 to 33 percent.
The ATC Leasing Company stated that it represents a majority
portion of the truck transport industry in the country. It involves the
drive-away operation of newly manufactured trucks from factories to
dealers or to intermediary facilities for modification. In 1999, ATC
reports that 540,443 Class 5 through Class 8 vehicles were produced in
the
[[Page 22482]]
United States. ATC estimates it delivered approximately 75 percent of
those vehicles. The vehicles are usually delivered in saddle-mounted
combinations with a to-be-delivered truck as the power unit. Upon
reaching his delivery destination, a driver typically removes the
temporary identification devices and proceeds by public transportation
to his next pick-up point.
State trucking associations generally concluded that the proposal
did not account for significant costs.
The U.S. Chamber of Commerce believed the FMCSA's estimate of costs
per driver was unrealisticly low.
The Intermodal Association of North America's (IANA) survey
reported direct operating cost increases of 20 to 30 percent, primarily
from the reduction of on-duty time limits from 15 to 12 hours a day and
the mandatory off-duty periods when shifting from one type to another.
Advocacy Groups
The Mercatus Center of George Mason University conducts a
Regulatory Studies Program (RSP) dedicated to advancing knowledge of
the impact of regulations on society. The proposed HOS rulemaking for
truckers was chosen for such an assessment, and the resultant report
was submitted as a comment to the docket. It concluded ``the DOT and
FMCSA estimates of the likely effects of the proposed regulation are
tenuous if not faulty on a number of bases.''
The RSP recommended better enforcement of current rules. Built-in
flexibility and common sense rules appeared to RSP to present a better
field for improving highway safety.
The National Sleep Foundation described the NERA study submitted by
ATA as nothing more than an advocacy piece that failed to look at
alternative scenarios. The NSF considered the analysis in the report to
be a series of conclusions and self-serving narrative with no
quantification.
Safety advocates and other public interest groups faulted some of
the methodology used by industry to compute expenses and were critical
of industry's lack of foresight in adapting to change and in
confronting the inefficiencies they state are so prevalent in dealing
with shippers and receivers.
Proposed Benefits
In addition to criticizing the NPRM's cost calculations, many
commenters also found fault with the allegedly overestimated benefits.
The industry in general took issue with the figures used by the agency
in projecting the safety benefits to be gained from the proposal.
Although acknowledging that there is a serious fatigue-related safety
problem, they stated that it does not approach the magnitude assumed by
the agency to justify the draconian solutions proposed.
A basic reaction to the proposal was the issue of problem
identification, and many distanced themselves from what they said was
the core problem group: long-haul, for-hire freight carriers. The
motorcoach industry was particularly adamant about the elemental
differences between hauling freight and transporting passengers. They
did not argue, as others did, for an exemption from regulation, rather
they insisted that no evidence had been developed or presented
indicating there was any safety problem arising from bus industry
performance under the existing regulations. Therefore, in their view
disruptive change was totally unwarranted.
Short-haul distributors of wholesale and retail commodities
distinguished themselves from long-haul carriers and cited the agency's
own studies showing a lesser safety problem in their operations. The
construction industry, for example, noted that its truck operations are
short-haul, sporadic, and incidental to other functions, and therefore
are not at risk to accumulate fatigue while driving. Construction
industry commenters also stated that the NPRM would actually impede
safety by extending the time construction zones remain open and
delaying the completion of safety improvements being made to the
highways.
Utility companies strongly contend that the nature of their work
and services warranted total exclusion from HOS regulations. Limiting
the ability of utilities to respond to service interruptions would be
much more likely to create other safety problems than to prevent
crashes involving responding vehicles, they stated.
LTL carriers, where union representation is more prevalent,
commented their drivers' schedules conform to the existing rules. The
carriers believe these schedules, negotiated with the drivers through
the IBT, eliminate many of the fatigue-inducing factors while
preserving the needed flexibility that they find so lacking in the
proposal.
The LTL industry believes that if particular segments of the
regulated community are already performing safety at or close to the
maximum allowable hours under the existing rules, there could be no
benefits from changing the rules applicable to them, only costs.
As noted above by the NERA and RSP analyses, as well as other
commenters, most of the benefits cited by the NPRM involved paperwork
savings, which are not safety improvements. Virtually every commenter
who noted the understated costs of increased drivers and equipment
needed to implement the proposed rules also noted that the NPRM did not
account for the safety impact of more trucks and more inexperienced
drivers on the highway at more congested hours of the day.
Industry commenters cited studies done by and for the DOT showing
fatigue to be a factor noted in police reports in only 1.5 to 3.0
percent of all truck-involved fatalities. The ATA and others pointed
out what they considered a basic flaw in the agency's calculation of
lives saved by the proposal, i.e., 20 percent of the fatalities
attributable to fatigue. Some commenters noted that, even using what
they considered an inflated attribution, other agency studies show the
truck driver to be at fault in no more than 30 percent of truck-
involved crashes. Therefore, instead of using 775 fatalities resulting
from fatigue related crashes as the basis for arriving at 155 lives
saved (20 percent), the agency should have used only 30 percent of the
775 figure, or 233. Computing its stated 20 percent reduction from that
figure produces a maximum of about 47 lives saved.
The ATA pointed out what it considered additional flaws in the
FMCSA's computation of projected benefits, including these four:
(1) FMCSA overestimated the role of fatigue in truck crashes. The
agency estimated 15 percent of all truck-involved fatal crashes were
``fatigue-relevant,'' a new, non-scientific term coined by FMCSA for
this rule. The 15 percent figure combined the 4.5 percent of those
crashes where fatigue was the primary cause with another 10.5 percent
where fatigue was assumed to have contributed to mental lapses that
caused the crash. Citing several studies in the DOT database, the ATA
believed the range is 2.8 to 6.1 percent, 4 percent on average, but
strenuously objects to inflating that figure by including fatigue
involvement in mental lapses, inattention and distraction.
(2) FMCSA failed to use the proper baseline number of fatalities in
its cost/benefit analysis. The agency used 5,035 (average of all truck-
involved fatalities from 1991-96) as the basis for its estimates of
crash elimination benefits. However, driver error is not the cause of
all fatal crashes (maybe 90 percent), nor is the truck driver at fault
in more than 30 percent of multi-vehicle truck-involved fatalities.
Citing FMCSA and
[[Page 22483]]
UMTRI studies, ATA considered 942 to be the proper baseline number for
multi-vehicle, fatal-to-non-truck-occupant crashes and 800 the proper
number for single-vehicle, fatal-to-truck-occupant crashes. The
baseline fatality number should be between 200 and 240, instead of
FMCSA's base of 755;
(3) FMCSA used effectiveness assumptions which ATA contends could
not be viewed as reasonable or even possible. ATA contended the agency
stated the proposal would be 5 percent effective with Type 3, 4 and 5
drivers. ATA claimed the agency included no cost figures for this
category, saying that for the majority of drivers in compliance with
existing rules the costs would be minimal. ATA objected, finding the
two assumptions inconsistent; and
(4) FMCSA ignored the best available compliance information. The
agency relied on three different surveys to support its contention that
a ``significant percentage'' of drivers violate the HOS regulations.
ATA claimed FMCSA has data from thousands of compliance reviews that it
totally ignored. Instead of asking for data and analysis from the
public on an array of issues, FMCSA ought to analyze the best
compliance data available `` its own completed compliance reviews.
Many of the industry comments about overstated benefits could be
summed up in the comments of the Minnesota Trucking Association: ``The
proposal will not have the intended safety benefits because DOT failed
to consider the law of unintended consequences:
(1) DOT failed to account for the accident exposure from over
48,000 new trucks needed to move the same amount of freight;
(2) The proposed rules would cause greater congestion in urban
areas both from the greater number of trucks, and more trucks shifted
from nighttime hours due to the mandatory `weekends'; and
(3) The proposed rules would cause a dramatic increase in the
number of young, inexperienced drivers on the road creating even
greater risks of accidents.''
Safety Advocacy Groups
The IIHS disputed the figure of 49,000 new drivers as too many
because it does not account for efficiencies and old drivers returning
for better working conditions.
AHAS criticized the agency's economic analysis because it failed to
measure proposed rules against the existing rules, ``as most agencies
do.'' AHAS agreed with the FMCSA's finding that the contribution of
fatigue to crashes has been undervalued and cited the Australian
parliament's massive report finding that 20 to 30 percent of road
accidents involve driver fatigue. One cannot rely on police reporting
because police are unable to detect or infer fatigue as a triggering
factor.
CRASH observed: ``Trucking deregulation, a booming economy and the
concepts of ``just in time deliveries'' and ``rolling warehouses'' have
produced a deadly trend in the commercial trucking industry.'' Truck
drivers are exploited by pressuring them to speed and drive over the
legal HOS limits. CRASH stated that NHTSA and NTSB have documented that
driver fatigue is a major factor in 15 to 40 percent of all big truck
crashes.
PATT argued that truck drivers provide labor for which they are not
adequately remunerated, that such labor is a major contributor to
fatigue and that such labor practices have continued too long without
resolution. It stated the basic rule in the industry should be:
``Shippers count, load, and seal--drivers drive--receivers count and
unload.''
The CVSA stated that the proposal relied too heavily on relative
exposure rather than on relative risk, which appeared to them to be the
same across all types of operations.
The NSC claimed that the NHTSA data attributing 2 to 5 percent of
accidents to driver fatigue is more reliable, and that the FMCSA's
estimate of 755 fatalities is inflated. Until the agency completes
fundamental accident analysis studies, NSC believes the agency must
rely on FARS; therefore, it must stay with no more than 5 percent or
250 fatalities. It recommended an external panel of experts to
establish a lower and upper bound of the fatigue problem, in which the
NSC would be glad to participate. It also recommended a cost/benefit
analysis similar to the one prepared by Booz, Allen & Hamilton, Inc.
for the FHWA on May 28, 1981.
FMCSA Response
Although it appears that the agency underestimated costs in its
economic analysis, it is also clear that industry overestimated costs
in its comments. The ATA instruction to carriers responding to its
survey was to compare drivers' logs in actual operation with what they
think could be done under proposed rules. The comments from individual
carriers indicated that some followed the ATA instructions, but many
others merely assumed that every driver was presently using all
available hours. Other comments make it clear that this was not the
case. Stating that a reduction in allowable duty hours from 15 to 12
represents a 20 percent loss in productivity when drivers rarely work
the 15 hours, is a clear overstatement.
The examples offered throughout the comments, moreover, generally
presented worst case scenarios. In nearly every case when a carrier
stated it could not complete a run under the proposed rules, it also
stated it would have to add a truck and driver to continue that run.
Otherwise, it would lose the business. Rarely was there any attempt to
reconcile operations or schedules with the proposed rules, or to
suggest minimal changes that could make them work. For example, an LTL
carrier reported that its drivers double as dock workers. They normally
drive up to five hours from a hub to a terminal, load or unload for two
to five hours, and then drive back to the hub in up to five hours. The
carrier believed it would have to hire twice as many drivers and make
them stay overnight at the terminal, because it could not complete
those runs under the proposed rules. No mention was made of relieving
the driver of loading/unloading responsibilities; shortening the time
the driver has to spend loading or unloading by providing some help at
the terminal; or otherwise adjusting operations at the terminal so that
the driver is not detained as long, rather than literally doubling the
number of drivers.
The case for the truckload segment, particularly the small,
irregular-route carriers, is more problematic, especially if the
sleeper berth provision in the proposal were not adjusted. J.B. Hunt
computed the basic productivity loss from the proposal to be two
percent by comparing the average allowable workweek (seven days) under
the existing rule (61.25 hours) with that proposed (60 hours), but it
also found a much greater loss from the lack of flexibility. Although
further examination of the impact of flexible alternatives on the
operations of large truckload carriers would have to be done, much of
this greater loss could apparently be mitigated.
NASTC, representing small carriers, based its analysis of lost
productivity on a comparison of a daily range of operation. It stated
that under the present rule a driver could drive up to 15 hours in any
given 24-hour period, giving him a daily range of 750 miles. This could
only be accomplished under full exploitation of an alternating 10-
hours-driving, 8-hours-off schedule. Under the proposed rule, NASTC
stated the same driver's daily range would be reduced to 600 miles.
Projecting the NASTC driver's schedule over longer periods of time, the
average difference
[[Page 22484]]
in the daily range would undoubtedly come closer to Hunt's two percent.
The NASTC driver, however, would have to work more days in the week.
The NPRM may also cause lost opportunities. NASTC predicted the
productivity loss could go as high as 25 to 33 percent because of the
requirement in the proposal to log waiting time as on-duty time. This
was not an absolute under the proposal. A driver could log up to two
hours waiting time as break time, provided it qualified as off-duty
time. If it did not, it must be logged as duty time even under the
existing rules.
The NPTC offered no explanation for its position that anything less
than a 15-hour workday for private carriers could not survive a cost-
benefit analysis. It did not appear to relate to the lack of
flexibility in the proposal, but rather to an assumption of
inflexibility in private carrier operations. Drivers for private
carriers could not sustain a 15-hour day schedule for very long under
the present rules without coming afoul of the seven-or eight-day
limitations. This issue would require additional attention to learn the
particulars of their position.
Although the NERA study made some valid points about errors in the
agency's analysis, its own analysis of the costs of the proposal was
not based on any independent findings regarding industry practices.
Rather, its conclusions appeared to be based on assumptions provided by
its industry sponsor. It also cited the results of the ATA survey as
the basis for its estimate of the degree to which the FMCSA had
understated the costs for additional drivers and equipment. Similarly,
the review performed by the RSP, which appeared to misunderstand part
of the proposal, did not rely on independent examination of industry
practices. Neither the ATA nor any of the other associations proposing
alternative rules made any attempt to quantify their related costs or
benefits.
On the benefit side, industry severely criticized the agency's
reliance on ``fatigue relevant crashes'' to increase the pool of
fatalities from which it could draw an estimated benefit (fatalities
avoided) from the proposed rules. The NTSB uses the phrase ``fatigue-
related'' in its reports and recommendations involving human fatigue.
The IIHS and the safety advocates, although not supporting the agency's
methodology, stated the FMCSA arrived at an accurate number of deaths
caused by fatigue related crashes, and would have done so had it used
the methodology discussed earlier in this document, namely ``population
percent attributable risk calculations'' taking the increased risk of
crashes from driving longer hours and placing it into a formula
together with the rate of drivers driving longer hours. Industry,
however, also noted that the agency should have at least reduced the
number of those fatalities by applying a percentage equal to the ratio
of collisions determined to be the fault of the truck driver, about 30
percent. The agency notes there is a big difference between the ``at
fault'' crashes the industry uses and the ``contributed to,'' ``fatigue
relevant,'' and ``fatigue-related'' crashes the agency, safety
advocates, and NTSB use.
Industry was also critical of the agency's overreach in stating
benefits from the use of EOBRs by reducing the level of non-compliance,
an estimated level that industry stated was far too high. The public
interest commenters observed that the evidence of non-compliance was
very strong, and even drivers and owner-operators agreed that daily
logs are routinely abused.
In conducting the RIA for this final rule, the FMCSA used a more
conservative approach to estimating fatigue-related crashes and how
benefits would be reduced if the number of fatigue-related crashes were
smaller. See the RIA's Section 8.2 for a discussion of the estimates of
the number of crashes involving trucks, by severity of crash. In
addition, it discusses methods for estimating the percentage of crashes
attributable to fatigue, and the results of applying those methods.
In determining the effects of the HOS rules on the mode split
between truck and rail (which was not done for the NPRM), we used the
Logistics Cost Model (LCM) developed by Paul Roberts. The LCM is a
computer model that determines the total logistics cost of transporting
a product from a vendor to a receiver. It is an updated variant of
models developed by Mr. Roberts for the Association of American
Railroads (AAR) and the FHWA. The model determines the lowest cost for
ordering, loading, transporting, storing, and holding a product. The
model assumes the shipper selects the alternative that minimizes total
logistics costs. Total logistics cost in this case may include the
costs occasioned by service frequency, transit time, reliability, loss
and damage, spoilage and other service-related factors occurring during
ordering, transport or storage. By converting all of these factors into
their quantitative impacts on total logistics cost, the analysis can
address the tradeoffs among service quality, inventory carrying and
transportation charges.
The mode shift analysis was limited to movements of 250 miles or
more. The RIA did this because the probability of switching traffic
from truck to rail is effectively zero for moves under 250 miles. Most
authorities would assert, in fact, that this probability is quite low
for shipments under 500 miles. Two hundred fifty miles was chosen for
the RIA as a minimum, however, to ensure a thorough analysis.
The RIA exercised the mode shift model over a range of changes in
trucking rates from a 2.0 percent decrease to a 2.0 percent increase.
From this analysis, the RIA was able to estimate a price elasticity of
(1.4). This means that, for a 1.0 percent change in trucking rates,
there is 1.4 percent change in truck shipments, truck shipments
increasing with a rate decrease and diminishing with a rate increase.
This measure of elasticity was used, in turn, to estimate impacts on
truck and rail traffic for each of the HOS rule alternatives. Details
of the computational method and data used are presented in the RIA's
Appendix D.
In addition to calculating the social costs, benefits, and net
benefits of the alternatives, the RIA also considered the impacts on
the carriers, and on the economy as a whole. The changes in labor
productivity, costs for labor and other inputs, and changes in the mode
split between truck and rail were disaggregated to six regions and fed
into the REMI Policy Insight regional economic model (developed by
Regional Economic Models Incorporated). The model's outputs give an
approximate picture of the relative effects of the alternatives on
economic growth and employment across the country.
The RIA found that the PATT alternative would be more expensive to
comply with than current rules, especially for short-haul operations,
while the ATA alternative would be less expensive. The FMCSA staff
alternative would be more expensive for short-haul operations, though
it would be less expensive overall due to its savings for long-haul
operations.
The basis of the benefits analysis is the estimation of the total
number of crashes involving vehicles subject to the rule, the damages
imposed by those crashes, and the assessment of the percentage of those
crashes and damages attributable to fatigue. The FMCSA found an
estimated 8.15 percent of the total crashes and damages result from
fatigue. Thus, the total damages from fatigue-related crashes have a
value of about 8 percent of $32 billion, or about $2.5 billion per
year. Excluding a fraction of crashes that occur in operations that
would be little affected by the changes in the HOS rules, the fatigue-
related crashes subject to the
[[Page 22485]]
alternatives are estimated to impose costs of about $2.3 billion per
year.
The analysis of the effects of the rules and alternatives on crash
risks showed that these damages could be reduced substantially. The
percentage of fatigue-related crashes is substantially higher in long-
haul than in short-haul operations. Similarly, the changes in fatigue-
related crashes attributable to the alternatives are greater in long-
haul than in short-haul. These differences result from the more arduous
schedules that long-haul drivers currently have, and from the effects
of the rules and alternatives on those schedules.
The ATA alternative provides net benefits in both long-haul and
short-haul operations, though its net benefits are much greater in
long-haul. Similarly, the PATT alternative has much smaller net costs
in long-haul than in short-haul operations, and the FMCSA staff
alternative has net benefits in long-haul that are partially offset by
its net short-haul costs.
The observation that the alternatives are less cost-effective in
short-haul operations was part of the motivation for providing more
flexibility in the FMCSA staff alternative for short-haul drivers,
allowing one 16-hour shift per week. The RIA assessed the effects of
this flexibility by examining the costs and benefits of the staff
alternative without allowing any 16-hour shifts.
Our analysis showed that, for short-haul operations, this change
would more than triple the annual costs of the FMCSA staff alternative
relative to the current rules with full compliance. Costs would
increase from $168 million to $641 million, or by almost $500 million
per year. These additional costs would translate almost directly into a
reduction in net benefits, because the effects of the reduced
flexibility on crashes would be very small. The FMCSA estimates that,
because the increase in the need for new short-haul drivers would more
than offset the slight reduction in fatigue, prohibiting any 16-hour
shifts would actually worsen the crash-reduction benefits slightly:
total benefits would fall by about $10 million per year, and fatalities
would rise by one or two per year.
With this change to the FMCSA staff alternative, its net benefits
compared to current rules with full compliance would drop to about half
a billion dollars per year.
The analysis of the economy-wide changes revealed that, as expected
for a set of rules that has moderate effects on an industry that itself
is only one component of the economy, the alternatives would cause
changes well within one tenth of one percent of total employment, gross
domestic product, prices, and disposable income. The impacts on
carriers were more noticeable, with the PATT alternative imposing net
costs and the ATA and FMCSA staff alternatives having small positive
effects on net income and profitability.
Electronic On-Board Recorders (EOBRs)
The FMCSA based the proposal to require EOBRs for Type 1 and Type 2
operations on two facts:
(1) Data indicated that fatigue-related crashes are much more
likely to involve long-haul drivers than local or short-haul drivers;
and
(2) Data indicated there is substantial non-compliance with the
hours of service regulations, particularly among some segments of long-
haul drivers.
The agency assumed that:
(1) EOBR-equipped vehicles used in long-haul movements would
significantly improve compliance, which the agency demonstrated in a
pilot project;
(2) Improved compliance by long-haul drivers with HOS regulations
would help reduce fatigue-related crashes; and
(3) Conforming devices would be available in a sufficient supply at
reasonable cost.
On-board recording devices have been in use at least since 1985,
when the agency granted a waiver to Frito-Lay, Inc. (50 FR 15269, April
17, 1985) to allow their use as a substitute for handwritten records of
duty status. The agency is also aware of substantial investments since
the late 1990's made by motor carriers in on-board technology for
tracking cargo and equipment performance. Global positioning systems
are increasingly in use, and the agency is piloting the application of
such a system to monitor drivers' compliance with the HOS rules in
cooperation with a large truckload carrier. The agency also believed
that once it issued a mandate, market forces would assure that EOBRs
would become increasingly available. To allow time for this to happen,
the NPRM proposed a phase-in period within which to comply.
The FMCSA also believed that the presence of EOBRs on the vehicles
would facilitate enforcement both by reducing the time required to
inspect records, and improving the quality of the evidence upon which
compliance with the rules would be determined and, when appropriate,
violations charged.
Industry Comments
The industry was not uniformly opposed to the EOBR provision. The
ATA raised numerous objections. Several large carriers, however, and
even an ATA State association, supported the initiative subject to
certain conditions. The industry objections primarily revolved around
four concerns:
(1) Many commenters believed that the NPRM failed to consider or
understated per-unit costs and other related costs;
(2) Many commenters considered the ability of the available
technology to track individual drivers to be suspect;
(3) Several commenters noted that the level of compliance they
already achieved, or the rarity of occasions when their drivers would
be subject to the requirement, rendered the EOBR requirement irrelevant
or redundant in their situations; and
(4) Many comments expressed concern about the use by law
enforcement and others of the information incidentally obtained through
the EOBRs unrelated to HOS compliance.
The ATA's primary position was that the agency underestimated the
costs of the technology and overestimated the benefits. The ATA faulted
the agency for proposing the use of devices, while ignoring the
promising applications of fatigue monitoring devices to prevent crashes
and ``black-box'' technology to evaluate crash causation. The ATA noted
that the agency neglected to include costs of both the ``smart card''
adaptations, which may be the least expensive means of maintaining
driver identity in a mobile industry, and the back-office integration
into the carriers' computer systems.
The ATA claimed that the FMCSA reversed its position on EOBR
requirements because it first issued a final rule allowing on-board
recorders as an alternative to records of duty status on May 19, 1988,
53 FR 18058, and then denied a petition from the Insurance Institute
for Highway Safety to mandate use of on-board recording devices. The
ATA faulted the FMCSA for failing to gather any data during compliance
reviews from the thousands of EOBRs that are presently in use, which
might have supported the agency's claim that EOBR use would improve
compliance. The ATA noted that the information EOBRs would be required
to gather under the NPRM does not even include an identification of the
driver.
The ATA contested the claim that EOBRs would facilitate enforcement
at roadside. According to ATA, the
[[Page 22486]]
experience reported by enforcement personnel is that EOBR records are
more difficult to review. The ATA argued that the FMCSA overlooked the
biggest shortcoming of EOBRs--they do not track what a driver is doing
when the vehicle is stopped and the engine is shut off. The ATA was
critical of present methods that do not discover intentional
lawbreakers, who know how to avoid detection. The ATA noted that the
agency even failed to address the issue of off-duty driving of the
truck, so that a trip to the diner or to a movie theater could very
well be recorded as driving time and possibly result in a violation.
The ATA noted that the phase-in schedule belied the agency's
contention that safety benefits will flow from improved compliance. The
proposed schedule gave small carriers, the least compliant segment of
the industry, according to an ATA study of FMCSA's Motor Carrier
Management Information System (MCMIS) data, more time than the large
carriers, the most compliant.
The ATA criticized the FMCSA for failing to evaluate potential
risks of requiring drivers to manually enter location codes when
crossing state lines in spite of NHTSA's concerns about driver
distractions.
The ATA expressed its disappointment with the lack of discussion of
privacy concerns or limitations on the use of data for purposes
unrelated to regulatory compliance. It also suggested that the proposal
could be subject to legal challenge based on U.S. Supreme Court
decisions defining the parameters of lawful, warrantless searches in
closely regulated industries.
The ATA accused the FMCSA of violating advice from ITS America, an
advisory committee to the DOT, and particularly Principles 1, 5, 6, and
7 of the Fair Information Principles for ITS/CVO.
Other Industry Comments
The State trucking associations were not unanimous in their
opposition to the EOBR provision in the proposal. Many did not comment
on this issue, perhaps relying on the ATA, their national
representative, to express their views.
The Arkansas Trucking Association unanimously supported the
required use of EOBRs. It was particularly persuaded by the opportunity
to replace a very expensive and inefficient paperwork system. It
recommended to its members that EOBRs be installed and maintained in
all CMVs over 26,000 pounds. The members reportedly were tired of
competing with cheaters, and believed that EOBRs would provide a level
playing field.
CTA supported the use of time recording devices (not necessarily an
EOBR) for all drivers and trucking operations only under the following
six conditions:
(1) The implementation of EOBR devices must be the same for all
carriers;
(2) The time recording device must be readable at roadside
inspections by law enforcement officials;
(3) The data obtained from a recording device must be used by law
enforcement officials for HOS enforcement purposes only and not for
reconstruction of other events or operations;
(4) The recording device must identify individual drivers and
include the option of personal technology devices, as well as EOBR's
installed in the vehicle;
(5) There must be an investment tax credit for purchase and
installation costs associated with the recording devices, retroactive
to existing devices; and
(6) The mandatory record retention period for recorded data must
not exceed six months.
CTA opposed the use of additional information that may be recorded
to enforce other statutes not relative to a driver's HOS. CTA believes
that due process and driver privacy require this consideration.
The PMTA, on the other hand, reported that many of its carriers
believed EOBRs would be redundant for their type of operation, under
which drivers' HOS are already closely controlled or monitored. The
PMTA recommended assembling a multi-disciplinary committee to hammer
out HOS reform regulations.
The large truckload carriers were somewhat divided over the
provision, but several supported it.
J.B. Hunt believed that EOBRs would ensure compliance with HOS
regulations, but attached certain conditions to its support:
(1) They must be required of all carriers at the same time;
(2) Their use must be limited to immediate enforcement of
compliance; and
(3) They must have legally enforceable prohibitions on the use of
EOBR data for other purposes.
J.B. Hunt also suggested that EOBRs should be phased in based on a
motor carrier's safety performance, using Safestat as a reference, so
that the worst performing carriers would be required to comply earlier,
e.g., ``A'' list first, then ``B'' list, etc. It also urged the FMCSA
to set performance standards that allow for innovative technology.
M.S. Carriers (M.S.) found the EOBR proposal to be basically sound,
but believed the FMCSA should require standard equipment in all CMVs so
it could be used interchangeably. M.S. also recommended a condition
that information from these devices could not be used in court.
Schneider National, while not in outright support of the provision,
felt that if EOBRs were to be required, implementation should be the
same for all commercial fleets, regardless of size.
U.S. Xpress Enterprises believed it would be prudent to separate
out the EOBRs from the rest of the proposed rules because ``black
boxes'' perform a variety of functions. They suggested it would be
better to combine all functions in a single device and test them so
everyone could get the ultimate benefits. They noted, for example, that
the NTSB is very interested in getting black boxes installed for crash
investigation purposes.
Landstar believed the implementation schedule for EOBRs would be
unfair to owner-operators leased to larger carriers because they would
have to meet a more expedited schedule by reason of the size of the
carrier to which they lease. Landstar also supported requiring EOBRs on
a performance basis, e.g., carriers with above average accident rates
should be first to implement.
Great Coastal Express pointed out that EOBRs are good for
monitoring driving time, but not very good for tracking non-driving on-
duty time.
Smaller truckload carriers and owner-operators were more uniform in
their opposition to the mandatory EOBR provision. Perfetti Trucking,
for instance, was totally opposed to EOBRs, believing they would cause
older drivers to leave in large numbers. They believe younger drivers
in the 30 to 45 age bracket, who may possess some degree of computer
literacy, might be more comfortable. The older drivers, however, view
EOBRs as an intrusion on their liberties, an insult to their
intelligence, and a way of making them look inferior. Perfetti also
believed the proposal would put many owner-operators and small trucking
companies out of business.
The NASTC found the proposed use of EOBRs to be intrusive and would
``treat drivers on a par with convicted felons under house arrest.''
NASTC noted, however, that if EOBRs are to be required, the agency, in
conjunction with CVSA and the industry, should design specifications
that are uniform, cost-effective, tamper-proof, and can be incorporated
as a mass-manufactured component.
[[Page 22487]]
Other small truckload carriers and owner-operators reported the
devices would be too expensive; they could not afford them; and they
would likely have to go out of business.
The OOIDA believed that dividing the day into a 10-hour rest period
and a 14-hour duty period would make compliance and enforcement so
simple that EOBRs would be redundant.
The less-than-truckload (LTL) sector was generally opposed to the
mandatory use of EOBRs.
The MFCA claimed its carriers now achieve virtually 100 percent
compliance with the HOS regulations. The only possible noncompliance is
failing to keep up the record of duty status. Therefore, at least as
concerns the MFCA, there is no benefit, only cost.
Yellow recommended that the EOBR provision simply be removed from
rule until more information is available.
Watkins was concerned about unproductive costs. Watkins believes
that EOBRs have no direct safety benefit; that there is no equipment
currently available; and that the cost to convert to the requirement
would be $2,650 per EOBR. After making a case for exempting LTL
operations from the EOBR requirement, Watkins projected its total cost
of converting to the proposed monitoring and record-keeping system at
$15,053,465.
The OOIDA complained that ``[FMCSA leaps] from regulations that may
or may not prevent driver fatigue to requiring black boxes to assure
compliance with those regulations.'' OOIDA believes the regulations
should be reasonable and should rely on voluntary compliance. OOIDA
believes EOBRs would expose carriers to greater liability, as
plaintiffs' attorneys would have more ammunition with which to impress
juries, regardless of actual fault. OOIDA also objected to EOBRs based
on Fourth Amendment privacy protections.
OOIDA participated in a DOT European safety scan in 1999. OOIDA
stated the mandatory use of EOBR type devices in Europe had been
delayed four times due to industry objections. OOIDA also found that
drivers did not embrace the product at the time, they hated it. The
system was too restrictive and limited their earning capacity. OOIDA
claimed that drivers and employers worked out unofficial arrangements
so drivers would not plug in their drivers' cards until they were a
couple of hundred miles down the road to enable them to get the
overtime the drivers needed to make a living. OOIDA believed VDO North
America, a vendor that commented at the hearings and roundtables,
``took literary license in the interest of sales.'' OOIDA acknowledged
that the United States system is not foolproof, and drivers would find
ways of beating it. OOIDA believes a truly foolproof system would be
too expensive.
The IBT commented that it has not opposed EOBRs in the past,
provided limitations are placed on the use of the data, because record
of duty status falsification has been a big problem. The IBT asserted,
though, that the requirement for EOBRs would contribute nothing to
safety without strong enforcement. The IBT also doubted whether the
information collected by EOBRs would have much value for enforcement
since they only directly track driving time.
The ABA cited a General Accounting Office report to Congress
finding in relation to the agency's estimate of a 20 percent safety
benefit from the use of EOBRs that the FMCSA ``did not have an analytic
basis to support this estimate.'' The ABA concludes that mandating
EOBRs for long-haul buses would result in a large expense with no
safety benefit.
Commercial Vehicle Training Associations (CVTA) is a trade
association representing the nation's private training programs for CMV
operators. Regarding EOBR training, CVTA commented that if a uniform
set of specifications were developed and required, the schools could,
and probably would, include a module on EOBR use.
The U.S. Small Business Administration (SBA) noted the cost of the
required EOBRs and believed that even four years lead time may not be
sufficient to reduce costs significantly. It further believed the cost
estimates were understated. The SBA provided no substantiation for its
estimate, except its concept of ``average,'' which was to add the
lowest estimate it had heard to the highest estimate and divide by two,
resulting in a per-unit cost estimate of $17,000 to $19,000. It
recommended examination of feasible alternatives to general EOBR use,
including one that is performance-based. If the FMCSA imposed the
requirement on those with the worst safety records, it would provide an
added incentive to operate safely. The SBA strongly urged the FMCSA to
consider all information from small businesses and include full
discussion of costs and assumptions, as well as feasible alternatives
and why they were not chosen.
Law Enforcement Comments
The CVSA opposed the requirement for EOBRs as premature and
recommended more study to ensure standardization. It suggested using
the DOT's Intelligent Vehicle Initiative (IVI) to conduct operational
evaluation and possible pilot tests. In addition to suspecting the
quality of the equipment presently available, CVSA has concerns about
access, availability and use of the data. CVSA noted that most
tachometer-type equipment is used by industry as asset management tools
and not necessarily for driver management, and noted, ``The EOBR
requirements as currently written in the proposal offer no benefit to
industry or enforcement in having the ability to proactively manage
fatigue.'' In this context, the CVSA was distinguishing the EOBR from
other developing technologies that measure and project driver alertness
(e.g., PerclosTM and ActigraphTM devices).
The California Highway Patrol (CHP) was not opposed to the use of
automated time record systems for Types 1 and 2. CHP noted such
equipment has been in use in California since the mid-1980s. CHP has
problems with Types 3, 4 and 5 drivers because they may be caught in
positions where they suddenly need an EOBR on a limited basis, such as
a required overnight stay. CHP suggested the development of an
alternate means of compliance in those situations. CHP also believed
that with no records required for Types 3, 4 and 5, roadside
enforcement would be impossible. It recommended building into the rules
a rebuttable presumption of regularity with toll receipts and other
time-dated records regularly issued in the course of business.
Safety Advocacy Groups
Safe Drive America (SDA) described itself as an organization
improving highway safety by observing and reporting unsafe practices
and promoting improvements in training and working conditions for
drivers. SDA supported the NPRM overall as a positive step in the right
direction, in particular, the requirement for EOBRs. It recommended a
six month phase-in period for all motor carriers. SDA claimed it is not
unusual under the current rules for a driver, with three pickups in a
given town, to spend all night making those pickups and then record
0.75 hours loading, and 11.25 hours in a sleeper berth. SDA claims the
driver then shows on the record of duty status as emerging from the
sleeper at 6 a.m. with an eligible 10 hours of driving and 15 hours on
duty. SDA claims the driver could still do this under the proposal
unless there is a device like the EOBR to keep the driver honest, and
even then, enforcement would be required.
[[Page 22488]]
The AHAS supported mandating EOBRs for road drivers, claiming that
current cost estimates run well below even the lowest estimate used by
the agency. It strongly recommended the agency consider requiring EOBRs
for Type 3 drivers as well because of added risks associated with
split-shift driving and tendency of drivers to falsify records. It
would even include Type 4 (local) drivers and was not persuaded by
reliance on DOL timecards, as AHAS believes there are no independent
means of corroboration. The AHAS found that requiring EOBRs would at
least protect drivers from being compelled to exceed hour limitations.
The AHAS disagreed with industry's privacy concerns and favored
addition of global positioning system (GPS) technology, which AHAS
believes would not be very expensive, certainly not double the quoted
$300 base cost. The AHAS noted that in this age of automation, in an
industry that operates on razor-thin margins, any carrier that does not
take advantage of technological advances would be left behind and would
fail to survive.
CRASH supported requiring EOBRs, but suggested that more safety
technologies already exist and should be brought into play. PATT also
supported mandatory use of EOBRs, which it found long overdue. PATT
believed the devices did not cost too much and that any changes in HOS
regulation without them would be useless.
The NSC supported technology integration for safety purposes, but
found the NPRM lacked data showing that the safety benefit would equal
the cost of $1,500 per unit. The NSC recommended piloting required use
on the poorest performers, e.g., those with accident rates double the
national average.
Vendors' Comments
VDO claimed to be the world's largest independent manufacturer of
automotive instrumentation. VDO claimed to have an EOBR meeting the
performance standards listed. VDO claimed the device, also known as an
electronic tachograph, has become widely used in the European Union
with strong support from fleet owners, drivers, unions, and
enforcement. VDO claimed its version of the European B1TM
Tachograph answers all of the negative comments and concerns of the
motor carrier industry.
VDO had talked to several U.S. companies and was told by Qualcomm
and Cadec that they believed they could not meet the requirements for
EOBRs as proposed.
VDO contended the opportunities its digital tachograph affords
users go far beyond merely the time saved on doing paper logs. The
device automatically recorded everything fed into it, and the user
could decide what to do with the information. VDO has done studies that
it believes reflect the beneficial results of what it refers to as a
``driver feedback loop.'' VDO claimed that no matter what device is
used, management and society need feedback to correct the poor driver
behavior detected, e.g., speeding, tailgating, harsh braking, excessive
hours, etc. The benefits did not come from the EOBR, but from the
attitude of the carrier that chooses to use it for safety purposes.
Diversified Auto Technology (Diversified) claimed it was on the
verge of completing a 13-year project researching and developing on-
board recording devices. The company claimed it had been involved
primarily in the EU market and that initial cost of Diversified's
complete system built to comply with proposal would be estimated to be
$2,500.
QUALCOMM Incorporated commented that it offered two primary
products to the transportation industry, a geo-stationary satellite-
based, mobile communications system and a terrestrial mobile
communications system that uses a digital, wireless network. QUALCOMM
claimed it was developing an onboard computer solution that would
fulfill the requirements of the EOBR requirement. It believed the
regulations on electronic recordkeeping should be crafted to promote
both safety and productivity in order that carriers can have a return
on investment with onboard technology. They projected their device
could cost as much as $1,600 per vehicle with an additional charge of
$15,000 to $25,000 for host software, plus additional costs for
firmware and GPS upgrades, installation, downtime on vehicles and
training. These costs would be in addition to the cost of hardware for
those fleets not already equipped with mobile communications equipment.
Marconi InfoChain reported that its company and others, including
Bristow and E-Truck, were offering an inexpensive alternative to VDO's
European solution--a personal digital assistant.
FMCSA Response
The FMCSA has decided not to adopt regulations on EOBRs at this
time. However, there are several technologies that offer significant
promise for HOS recordkeeping and enforcement. The agency plans to
continue research on EOBRs and other technologies, seeking to stimulate
innovation in this promising area. There are several reasons for this
decision and the planned research.
First, neither the costs nor the benefits of EOBR systems are
adequately known. Cost estimates vary enormously, mainly because there
is no significant market for such devices at the moment and thus no
hard prices available from competing vendors. There appear to be only a
limited number of vendors that could offer a suitable system in the
near future, and no guarantee that they could satisfy all of initial
demand, should EOBRs be required. Meanwhile, other technologies offer
potential for HOS record keeping and compliance and should be evaluated
alongside of EOBRs.
The benefits of EOBRs are easier to assume than to estimate. Full
voluntary compliance with the HOS rules is unlikely, but the amount of
cheating that could be deterred by EOBRs is unknown and the amount that
could be detected depends on the tamper-resistance of the design and
the ability of roadside enforcement quickly and easily to access the
information recorded by the system. FMCSA did not test the (very few)
EOBRs currently available, so both issues remain unresolved.
Second, the agency's EOBR proposal was drafted as a performance
standard, but enforcement officials generally argued that a design
standard was necessary to ensure that they did not have to waste time
and effort mastering incompatible read-out procedures created by
different EOBR vendors. In retrospect, it might have been better to
propose a partial design standard governing driver-identification and
information read-out procedures, while setting a performance standard
for all other features of the device. FMCSA can neither adopt such far-
reaching requirements without prior notice nor ignore the concerns of
the enforcement community. The solution, at least for now, is to adopt
a rule that does not require EOBRs.
Third, FMCSA proposed that long-haul motor carriers with more than
50 power units be required to adopt EOBRs within 2 years, while those
with less than 20 power units would have up to 4 years to comply with
the rule. Many commenters argued that this phase-in schedule was
irrational because the smallest motor carriers generally have higher
accident rates than large ones. Furthermore, the first carriers subject
to a regulatory mandate would probably pay more, and perhaps
substantially more, for EOBRs than carriers allowed to defer compliance
to a later date.
[[Page 22489]]
Carriers that discussed the phase-in period generally insisted that, if
a mandate were adopted, all carriers should be required to begin using
EOBRs at the same time. The Small Business Administration (SBA), though
critical of the financial burden of on-board recorders for small
entities, suggested that the agency consider requiring them only for
carriers with the worst safety records. In short, there was no
consensus on the phase-in issue.
Fourth, although the agency proposed EOBRs only to capture HOS
information, most commenters viewed these devices in a wider context.
Many drivers regard electronic monitoring as a direct assault on their
dignity and privacy. Motor carriers, on the other hand, are deeply
concerned that HOS functions handled by the on-board electronic systems
of modern tractors would expose all other information recorded by those
systems (e.g., speed, frequency of brake application, etc.) to demands
for production in lawsuits resulting from accidents. Many carriers and
trucking organizations expressed adamant hostility to any EOBR
requirement that did not protect data generated by recording devices
from any use except HOS enforcement. Although the commenters may have
exaggerated the impact of EOBRs, they did raise issues the agency did
not consider in the NPRM and is not prepared to address in this final
rule.
For all of these reasons, FMCSA has concluded that it has neither
the economic and safety data needed to justify an EOBR requirement at
this time, nor the support of the transportation community at large.
The agency, however, does plan to continue research on EOBRs and other
technologies, including evaluating alternatives for encouraging or
providing incentives for their use. Key research factors will include:
(1) Ability to identify the individual driver;
(2) Tamper resistance;
(3) Ability to produce records for audit;
(4) Ability of roadside enforcement to quickly and easily access
the HOS information;
(5) Level of protection afforded other personal, operational or
proprietary information;
(6) Cost; and
(7) Driver acceptability.
Proposed Compliance and Enforcement
The ATA and a substantial number of other industry commenters
expressed concern that enforcement would suffer if the proposed rules
were adopted. Motor carriers, associations, unions, and shippers all
found the proposed rules too complex, particularly the provision for
five types of operations. They stated that roadside inspections would
take much longer as enforcement officers sorted out what category each
driver fit into so they would know what rules to apply. Longer times
per inspection would translate into fewer inspections and a less
effective enforcement effort.
Industry Comments
The ATA found that the proposed shifting among 5 types of
operations would cloud compliance and enforcement. Although the
proposal allowed ``good faith'' compliance with the perceived type of
operation, too many variables made the proposal unworkable. Customer
demands, weather, loading and unloading delays, and other unforeseen
circumstances would impact schedules. Inflexible categories and the
subjective interpretation by law enforcement personnel would make
confusion unavoidable.
The ATA stated that regulations have to be clear and concise. The
ATA stated that it has been a consistent supporter of effective
enforcement, but that reliance on EOBRs is not the answer. The ATA
comments also recommended removing the link to the DOL requirements and
reverting to the current record keeping requirements in 49 CFR part
395.
The DLTLCA made no mention of record keeping in its petition or in
its comments, noting agreement with ATA's view on this matter.
Werner Enterprises recommended an alternative regulatory scheme. It
stated that a better objective would be to achieve uniform enforcement
of existing rules before attempting any industry-wide change.
Consideration should be given to retaining the present HOS rules, but
to implement the proposed on-board recorder requirement. The agency
could then determine whether that initiative with adequate training
would achieve desired level of regulatory compliance and safety
improvement.
J.B. Hunt counseled that rules should not be difficult for drivers
and enforcement personnel to understand. It believes effective
enforcement and meaningful sanctions change behavior. It supported
requiring immediate enforcement against violators at the time and place
of occurrence to reinforce compliance. Placing the driver out-of-
service until he is in compliance is not enough. Uniform fines should
also be imposed. J.B. Hunt believes that reliance on carriers to
discipline drivers is impractical because of the gap between the time
of the violation and the time the carrier learns of it, as well as the
mobility of drivers. Finally, J.B. Hunt urged the government to mandate
speed control devices on all CMVs limiting truck speeds to a standard
national rate (60 to 65 mph) for everyone.
Landstar believes that the proposed provision for different types
of operations would make enforcement difficult. It also stated that
reliance on DOL records is misplaced: historically, carriers have
considered themselves subject to DOT rules and interpretations of them.
Without any meaningful explanation, the FMCSA ``would throw out decades
of industry practice.'' The complexity of the proposed rules would have
an adverse impact on enforcement. Landstar believes that both
compliance reviews and roadside inspections would take longer because
the investigator would have to determine what type of operation
carriers and drivers are engaged in before they know what rules to
apply.
Overnite was convinced that stricter enforcement is the key to
improved compliance with HOS regulations and to safety. Overnite
strongly endorses the use of EOBRs to bolster enforcement. On the
whole, Overnite found the proposal too complex. It offered comments
from a driver, Thomas Hawks, a 10-year driver based in Memphis, TN with
an exemplary safety record. Mr. Hawks stated the NPRM provisions would
confuse drivers and enforcement people, but more importantly, it would
prevent drivers from doing their jobs in a professional way. Although
he does not load or unload, he believes enforcement action should be
taken about time wasted at the docks of shippers and receivers.
The Minnesota Trucking Association found that the five categories
of drivers would be very confusing for both companies and law
enforcement to follow.
The California Trucking Association agreed that ``typing'' drivers
serves no useful purpose and only confuses industry and enforcement.
The CTA would support use of time-recording devices for enforcement,
provided certain other conditions apply. Although a vigorous supporter
of efforts to make highways safer, CTA would stress better drug/alcohol
testing and reporting procedures and more funds for roadside
enforcement.
The NTTC deferred to CVSA comments regarding enforcement, but
agreed that five types of operations are unnecessarily confusing and
would hamper uniformity.
The NITL and the NAM also found the proposed rules overly complex,
[[Page 22490]]
using the five categories of operations as an example. The complexity
would adversely affect enforcement.
Wal-Mart recommended improving enforcement activities while waiting
for a new rule.
The IBT said the complexity of the proposed rule, particularly
regarding the five categories of operations, would be a challenge for
the enforcement community and a problem for the regulated community as
well.
Law Enforcement Groups
CVSA and the Connecticut Department of Motor Vehicles argued that
the complexity of the NPRM would create problems with training and
application at the roadside. They state that FMCSA's estimate of four
hours needed to train investigators in the proposed rules is very much
understated and is likely to be two to four times as long. One CVSA
member estimated that the time required to complete a Level 1
inspection at the roadside would be increased by one-third. Finally,
CVSA opposed the requirement for EOBRs as premature, and recommended
more study to ensure standardization.
The New York State Police noted that the proposal, as written, was
very difficult to understand for enforcement purposes, which is likely
to diminish enforcement actions taken on the roadside and therefore
would minimize the likelihood of widespread carrier compliance.
The Wisconsin Department of Transportation (WisDOT) believed the
five categories would create confusion: the distinction between types 1
and 2 is not precise enough, and roadside enforcement for types 3, 4
and 5 would be virtually impossible. Substantial training for both
drivers and enforcement personnel would be necessary. Enforcement
personnel would need to know how to deal with both paper and EOBR
systems. WisDOT also believes the removal of the Tolerance Guidelines
is premature without accurate and extensive crash data.
The Minnesota Department of Transportation and the Minnesota
Department of Public Safety filed joint comments. They performed a
section-by-section critique, noting that significant modifications and
clarifications that would be needed so that enforcement could be
effective and consistent.
The Maine Department of Transportation concluded that requiring
EOBRs would set back enforcement because of lack of standardization of
the devices.
PennDOT recommended regulations that are easily understood by all,
enforceable at the roadside, provide for safer operations, and meet the
needs of the public, particularly the uninterrupted continuity of
utility services.
Safety Advocacy Groups
AHAS contended that difficulty in enforcing the provisions of the
NPRM would provide opportunities for drivers to violate the ``already
inadequate'' weekend rest period the proposal would mandate. The AHAS
agreed with most commenters that enforcement must be improved, and
strongly supported the proposed requirement of EOBRs for Type 1 and 2
operations. It strongly recommended the agency consider requiring them
for Types 3 and 4 drivers as well.
CRASH believes that making a distinction among the five different
categories of drivers would present enormous problems for police. CRASH
also believes relaxing the record carrying requirements by using the
DOL records and supporting documents in all categories further
complicates enforcement.
PATT, on the other hand, supported the use of DOL time records, but
recognized need for vigorous enforcement, and recommended retention of
records for 24 months. The NSC, however, believes that the use of the
DOL timecard may not be practical for roadside enforcement.
FMCSA Response
The rule being made final today is significantly simpler than the
NPRM and should be much easier to understand and enforce. The agency is
modifying the existing rules and exemptions to update them with the
appropriate off-duty, on-duty, and driving times, as well as adding a
restart provision for truck drivers. The agency is retaining the paper-
based record of duty status system, including retention of supporting
documents and allowing, but not requiring, continued use of Sec.
395.15-compliant automatic on-board recording devices.
The motor carrier's responsibility for compliance with the HOS
regulations remains clear. The motor carrier is responsible for and
must police the actions of its employees. This obligation under the
FMCSRs was affirmed by the Associate Administrator for what was then
the Office of Motor Carriers (of the FHWA) In the Matter of Horizon
Transportation, Inc., 55 FR 43292 (October 26, 1990) (Final Order
February 12, 1990). A motor carriers' responsibility for the actions of
independent contractors and owner operators they use was outlined In re
R.W. Bozel Transfers, Inc., 58 FR 16918 (March 31, 1993) (Final Order
August 6, 1992); and more recently In the Matter of Commodity Carriers,
Inc., (Order Appointing Administrative Law Judge March 25, 1997).
Likewise, each motor carrier must have a system in place that allows it
to effectively monitor compliance with the FMCSRs, especially those
aimed at the issue of this final rule--driver fatigue (See In re
National Retail Transportation, Inc., (Final Order: Decision on Review
September 12, 1996.)) The United States Court of Appeals for the Sixth
Circuit affirmed in A.D. Transport Express Inc. v. Federal Motor
Carrier Safety Administration, 290 F. 3d 761 (6th Cir. 2002) that
supporting documents must be maintained in a common sense manner so
that FMCSA investigators can ``verify dates, times, and locations of
drivers recorded on the RODS.'' More recently, the D.C. Circuit agreed
that the term ``supporting documents'' in the current rule encompasses
any document that could be used to support the RODS. That decision also
found an FMCSA requirement that supporting documents must be maintained
in a fashion that permits the matching of those records to the original
drivers' RODS as a reasonable interpretation of 49 CFR 395.8(k)(1). In
fact, the Court concluded that all the FMCSA is asking is that carriers
refrain from destroying the agency's ability to match records with
their associated drivers (Darrell Andrews Trucking v. Federal Motor
Carrier Safety Administration, 296 F. 3d 1120 (D.C. Cir. 2002).
Regulatory Impact Analysis
The NSC, ABA, ATA, and DLTLCA petitioned FMCSA to retain an
independent consulting firm to study the safety and economic impacts of
any final rule. The FMCSA selected a large, well-respected contractor
with extensive experience in transportation and the regulatory process.
After reading and analyzing the 53,750 written comments, the FMCSA
identified three potentially effective and reasonably feasible
regulatory models within the scope of the NPRM for further
consideration. The analysis of these alternatives is entitled
Regulatory Impact Analysis and Small Business Analysis for HOS Options,
December 2002 (RIA) and is in the docket.
The benefits and costs of each alternative must be measured against
a baseline, as AHAS pointed out in its comments. The Office of
Management and Budget's (OMB) guidance to federal agencies has been
that the baseline
[[Page 22491]]
should be the existing regulation. This baseline can then be compared
against reasonable alternatives.
Thus, the first alternative was to take no action, keeping the
current rules. The other three alternatives are referred to as the PATT
alternative, the ATA alternative, and the FMCSA staff alternative. The
RIA, however, compares the costs and benefits of the alternatives
relative to two distinct baselines.
Much of the RIA shows the effects of the PATT, ATA, and FMCSA-staff
alternatives relative to the current rules under the assumption of 100
percent compliance with the current regulations and each alternative.
This approach ensures that the full effects of the alternatives'
provisions on costs and benefits are captured. On the other hand,
because there have been studies that have shown that drivers do not
always comply with the existing rules, OMB requested that FMCSA also
assess the differences that would appear if motor carriers and drivers
improved current compliance levels and achieved 100 percent compliance.
Thus, the alternatives are also shown relative to a baseline in which
the current rules are in effect, but there is a certain degree of non-
compliance. The University of Michigan Trucking Industry Program
(UMTIP) provided the FMCSA with customized statistical outputs for
particular subsets of an UMTIP driver survey that the FMCSA analyzed to
estimate the percent of non-compliance with the existing regulations.
These subsets were designed to match, as closely as possible and where
appropriate, the industry segments reflecting the most relevant
profiles in the RIA. The FMCSA found that approximately 8 percent of
long-haul driver hours exceed the current daily and weekly limits of
Sec. 395.3.
The FMCSA did not analyze alternatives for passenger carrier
transportation. As stated above, the FMCSA was persuaded by the
comments that it does not have enough data to indicate a problem in the
motorcoach industry segment. This RIA only analyzes carriers using CMVs
to transport (1) goods or (2) crews and equipment to places where they
are needed to provide services of one kind or another. This would
include service trucks belonging to telephone and electric utility
companies; trucks of a variety of types of service contractors--
plumbers, electricians, roofers, landscapers, etc.; trucks taking crews
and equipment to construction sites, including mobile cranes; dump
trucks; trash trucks; beverage, bakery, and snack food distributors'
trucks and other like vehicles.
The FMCSA distinguishes two distinct baselines by referring to the
current rules with 100 percent compliance as ``Current-100 percent,''
and the current rules with existing estimated compliance levels as the
``Status Quo'' scenario.
The NPRM analyzed five alternatives, in many commenters' view
incompletely, that could have required comprehensive changes to the
motor carrier industry, with possibly significant implications for the
national economy. The agency considered all of the alternatives
suggested by commenters. Some had to be eliminated to provide a
manageable number for evaluation under Executive Order 12866. The
agency chose three alternatives that were both feasible and could
potentially be effective at reducing fatigue-related incidents and
increase driver alertness.
The Baseline
The baseline, current rule provides that no driver may drive:
(1) More than 10 hours following 8 consecutive hours off duty;
(2) For any period after having been on duty 15 hours following 8
consecutive hours off duty; and
(3) For any period after--
(a) Having been on duty 60 hours in any 7 consecutive days if the
employing motor carrier does not operate commercial motor vehicles
every day of the week; or
(b) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates commercial motor vehicles
every day of the week.
This current rule allows drivers to have work/rest cycles as short
as 18-hours, if the drivers maximize driving time and rest the minimum
8 consecutive hours. The 18-hour cycle provides a potential 6-hour
backward rotation that inverts drivers' schedules on cross county
trips. Such schedules allow a driver to begin driving during the day on
the first day, but on subsequent days allow the driver to drive at
night, and then during the day, and then at night again. This
alternating day-and-night driving has been proven to be detrimental to
a driver's sleep thereby increasing the risk that the driver will cause
a crash.
PATT Alternative
The first alternative selected by the FMCSA for detailed safety and
economic analysis was that suggested by PATT. The PATT alternative
provides that no driver may drive:
(1) More than 10 cumulative hours following 12 consecutive hours
off duty;
(2) For any period after having been on duty 12 consecutive hours
after first beginning on-duty status following 12 consecutive hours off
duty;
(3) More than 50 cumulative hours over the last 6 consecutive 24-
hour periods plus the current 24-hour period; and
(4) For any period after having been on duty 60 hours over the last
6 consecutive 24-hour periods plus the current 24-hour period.
The PATT alternative allows drivers to have regularly recurring
work/rest cycles of 24 hours. The 12-hour on duty, 12-hour off duty
cycle would provide drivers with two more off-duty hours than the FMCSA
staff alternative for meals, personal errands, and to contact family
and friends. Many long-haul drivers commented that they do not need
these additional hours during a trip because commuting, doing personal
errands and socializing are mainly home-based activities. This type of
rule, like the NPRM, would require drivers to waste off-duty time (in
their view) in a location where there is little for them to do.
This alternative had the possibility for sharply reducing fatigue-
related incidents, but it was also likely to reduce motor carrier
productivity and increase transportation costs by increasing the need
for more drivers.
ATA Alternative
The second alternative selected by the FMCSA for detailed analysis
was the ATA proposal. It was not clear whether this alternative would
reduce fatigue-related incidents, as ATA claimed, but it would almost
certainly increase productivity and provide cheaper transportation.
The ATA alternative provides that no driver may be on-duty:
(1) More than 14 cumulative hours with up to 16 cumulative hours
twice per 7-day period following 10 consecutive hours off duty;
(2) More than 70 hours over the last 7 24-hour periods (ending with
the last completed 24-hour period); and
(3) More than 140 hours over the last 14 24-hour periods, with no
more than 84 hours allowed in one of the 7 24-hour periods, if followed
by a 34-hour off-duty period, and no more than 56 hours in the
remaining 7 24-hour periods.
The ATA alternative allows drivers to have regularly recurring
work/rest cycles of at least 24 hours. The 14-hour on duty cycle
provides drivers with the opportunity to drive the entire 14 hours. It
also allows the driver to drive after
[[Page 22492]]
the 14th hour after the driver's shift began. If the driver takes rest
breaks during the 14 hour period, those breaks would extend the work
day, as the current rule does. The DLTLCA argued that drivers would not
drive the entire 14 hour period ``because as a practical matter, no
driver is going to be beyond 12 * * * we are never going to be beyond
12 * * * because we have 3 to 4 hours loading time. We have pre-trip
inspections. We have all these other activities built in.'' However, it
would be possible for a cross-country driver who did no loading enroute
and had pre-trip inspections performed by others to drive (potentially)
14 hours straight.
This rule could cause safety problems, including reduced driver
alertness and increased fatigue-related incidents, but it could provide
productivity increases and could reduce the need for drivers and the
``shortage'' experienced by the industry today.
FMCSA Staff Alternative
The agency's staff developed the third alternative. This
alternative would create incremental changes to the current on-duty,
off-duty, and driving requirements; provide an exception for ``short-
haul'' drivers; and adopt a restart provision for weekly on-duty time
limits. Exceptions for daily off-duty, on-duty, and driving time would
be modified, along with the restart provision after direct assistance
for an emergency relief effort. The alternative would retain all
exceptions for weekly restarts provided by the NHS Act as well as those
for oilfield operations. It would retain all other rules, including the
current methods of notifying drivers to report for work.
The local/short-haul study has persuaded the FMCSA that fatigue may
be less problematic for local/short haul drivers, though the agency
does not believe all regulation should be removed because these drivers
would continue to be at risk of having fatigue-related crashes. The
staff alternative could reduce regulatory oversight for local/short
haul drivers that could also reduce fatigue-related incidents and
fatalities.
The agency considered the experiences of the governments of
Australia, Alberta, Ontario, and Quebec with fatigue management
alternatives to traditional HOS regulations. The FMCSA is assessing the
feasibility of conducting a pilot project that would substitute fatigue
management for driver HOS requirements. Although a possibility in the
future, it was not included in the staff-developed alternative for this
final rule.
The agency is also considering the use of education and training
programs for reducing fatigue and increasing driver alertness, as well
as medical alternatives and countermeasures, including the feasibility
of screening for sleep apnea and other sleep disorders. These
possibilities are not included in the staff-developed alternative for
this final rule.
Many commenters argued that the agency did not do enough research
into the safety consequences of shifting considerable nighttime truck
traffic to the daytime. The FMCSA agrees and therefore decided to
consider alternatives that concentrate on approaches that do not
promote shifting traffic from the nighttime to daytime. The FMCSA
specifically excluded such options from its staff-developed
alternative.
The agency staff wanted to formulate an alternative that would be
intermediate between the PATT and ATA proposals. The staff believed
that the combined effect of the changes it suggested would reduce
fatigue-related incidents and increase driver alertness without
creating serious safety or economic costs to society. The FMCSA-
developed alternative provides that no driver may drive:
(1) More than 11 hours following 10 consecutive hours off-duty;
(2) For any period after 14 consecutive hours from the start of a
duty tour following 10 consecutive hours off-duty;
(3) For any period after 16 consecutive hours from the start of a
duty tour following 10 consecutive hours off-duty once each 7 or 8
consecutive day period, when the driver returns to the normal work
reporting location and is released from work within 16 consecutive
hours that duty tour; and
(4) For any period after having been on duty 60 hours in any 7
consecutive days if the employing motor carrier does not operate
commercial motor vehicles every day of the week or any period after
having been on duty 70 hours in any period of 8 consecutive days if the
employing motor carrier operates commercial motor vehicles every day of
the week. Any period of 7 or 8 consecutive days may end with the
beginning of any off-duty period of 34 or more consecutive hours for
drivers operating vehicles transporting freight or other property.
There can be little doubt that fatigue directly attributable to the
exertion required to operate the modern CMV is less of a factor now
than it was when the 10 hour limit was adopted in 1939, and the FMCSA
believes allowing one additional hour of driving activity can be safely
accommodated within the context of a somewhat reduced overall tour of
duty. The FMCSA also has learned a lot about the science of sleep since
1938 and understands that the more relevant issue is how long the
driver can be awake and ``at work,'' and still be allowed to drive,
before safety is significantly compromised.
After the comments, regulatory analysis, and upon further review of
the research studies by Vespa et al. (1998), O'Neill et al. (1998),
Folkard (1997), Arnold et al. (1996) Fatigue in the Western Australian
Transport Industry, Part Two: The Drivers' Perspective, and Arnold et
al. (1996) Part Three: The Company Perspective, discussed in Freund
(1999), the FMCSA is convinced that 14 hours after the beginning of a
duty tour is long enough, given the significantly increasing
degradation of performance which occurs in the later stages of a work
shift. The FMCSA believes this limit is materially better from a safety
standpoint than the current rule, under which a driver could
conceivably still be allowed to return to the wheel several hours after
the 15 hour limit has passed (because ``off duty'' breaks can extend
the workday). The limits, however, are not so restrictive as to impose
an unreasonable burden on productivity.
Safety Impacts
The FMCSA estimated the benefits of the HOS alternatives using a
multi-step process to relate changes in HOS rules to changes in
crashes. Conceptually, the FMCSA took the following steps for each
alternative:
(1) Constructed a set of sample working and driving schedules of
different intensities and degrees of regularity;
(2) Used the results of the modeling performed for the cost
analysis to determine the percentages of drivers following each sample
schedule and to determine the shifts in these percentages caused by
different HOS alternatives;
(3) Translated the amount of on-duty time in each schedule into
expected amounts of sleep, using a function based on Effects of Sleep
Schedules on Commercial Motor Vehicle Driver Performance, 2000, by
Balkin et al. (Walter Reed Army Institute of Research) in the docket;
(4) Used a version of the Walter Reed Sleep Performance Model
(WRSPM) to estimate the effects of different sleep and driving
schedules on a measure of alertness;
(5) Translated changes in alertness into relative changes in crash
risks on
[[Page 22493]]
the basis of a laboratory study of performance on a driving simulator;
(6) Calibrated the results of the modeling of simulated crash risks
to the real world using independent estimates of the total numbers and
percentages of crashes attributable to fatigue; and
(7) Translated the estimated changes in fatigue-related crashes
into dollar values for avoided crashes using existing estimates of the
damages from fatal, injury, and property-damage only crashes.
Safety Benefits
The quantified and monetized benefits of the options derive from
their effects on truck crashes. Changes in work and sleep schedules
induced by the HOS alternatives can be translated into relative changes
in modeled fatigue-related crashes, can be calibrated to correspond to
independent estimates of numbers of fatigue-related crashes, and the
damages from fatigue-related crashes can be projected for each of the
alternatives. First, the FMCSA shows changes for crash damages for
long-haul and short-haul operations. Two other sources of benefits (or
reductions in benefits) are then described: changes in damages
resulting from the employment of different numbers of new drivers, and
changes in damages in long-haul operations resulting from shifts
between truck and rail.
Changes in Crash Damages Due to Schedule Changes
The FMCSA found the benefits of the alternatives, in terms of the
annual values of the crash reductions shown in Table 1 (RIA Exhibit 9-
6), by subtracting the damages under each alternative from the damages
for the current rules with 100 percent compliance.
Table 1.--Value of Crashes Avoided Due to Operational Changes Relative to Current Rules With Full Compliance
[(Millions of dollars per year) (Number in parentheses equal cost of additional crashes)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Benefits of Avoided Long-haul Crashes.................................... 364 (267) 224
Benefits of Avoided Short-haul Crashes................................... 36 (8) 10
--------------
Total Benefits......................................................... 400 (275) 234
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6.
Overall, the FMCSA predicts fatigue-related crashes to be
significantly more of a problem in long-haul than short-haul
operations. This fact can be attributed in part to the somewhat heavier
work schedules of long-haul drivers, but also to the fact that long-
haul operations appear more likely to subject drivers to irregular and
rotating schedules. The FMCSA projected two of the alternatives, PATT
and FMCSA, to reduce accidents substantially relative to the current
rules with full compliance. Much of their effectiveness stems from the
greater likelihood of moving towards a 24-hour work-rest cycle with
decreased schedule rotation; they also allowed for increased sleep
during the workweek. Reductions in short-haul crashes were much smaller
than the reductions in long-haul crashes, both in relative and absolute
terms.
Changes in Fatigue-related Fatalities Due to Schedule Changes
Beyond valuing the benefits of the alternatives, it is useful to
present the changes in fatalities that they cause. Estimating fatigue-
related fatalities and changes in them under each alternative can be
done most easily by referring to the total annual number of fatalities
in truck crashes, presented in RIA Exhibit 8-1, splitting that number
between long-haul and short-haul operations using the data presented in
RIA Exhibit 8-3, and then multiplying by the fatigue-related
percentages by alternative shown in RIA Exhibit 8-14. Changes in
fatalities can then be calculated by comparing the fatigue-related
fatalities for the different alternatives.
RIA Exhibit 8-1 gives the total annual fatalities in truck crashes
as 5,346; this is slightly larger than the number of fatal crashes
because some crashes cause multiple fatalities. Of these, 61.8 percent
or 3,304 are estimated to occur in long-haul operations, with the other
2,042 in short-haul operations. Among the long-haul fatalities, the
FMCSA concentrated on the 85.4 percent or 2,821 that it estimated to
occur in those portions of the long-haul sector that would be most
affected by the rules (i.e., excluding team-driver and LTL operations).
Multiplying the 2,821 long-haul fatalities and 2,042 short-haul
fatalities by the fatigue-related percentages shown in RIA Exhibit 8-15
yields fatigue-related fatalities. For the Status Quo, these
calculations yielded estimates of 316 for long-haul and 80 for short-
haul, for a total of 396. For the alternatives, the estimates are shown
below in Table 2 (RIA Exhibit 9-7). The table also shows the changes in
fatalities relative to the current rules with full compliance.
Table 2.--Annual Fatigue-Related Fatalities by Alternative
[Numbers in parentheses are negative]
----------------------------------------------------------------------------------------------------------------
Current/
100% PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
Fatalities in Crashes Attributable to Fatigue................. 240 176 287 201
Differences by Alternative Relative to Current/100%........... NA (64) 47 (39)
Short-haul:
Fatalities in Crashes Attributable to Fatigue................. 77 71 78 75
Differences Relative to Current/100%.......................... NA (5) 1 (2)
------------
[[Page 22494]]
Total:
Fatalities in Crashes Attributable to Fatigue......... 317 247 365 276
Differences by Alternative Relative to Current/100%... NA (70) 48 (41)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 8-1 and 9-6. Totals do not add due to rounding.
Adjustments to Benefits Due to Secondary Effects
The crash reduction benefits shown in Table 1 (RIA Exhibit 9-6)
include only effects of schedule changes on driver fatigue. While these
are the primary effects of HOS rules, two secondary effects need to be
considered. First, the changes in drivers resulting from the schedule
changes and mode shifts, presented in Tables 5 and 9 (RIA Exhibits 9-1
and 9-5), will result in changes in the number of relatively
inexperienced drivers in the industry. As described in RIA Section 8.7,
these drivers tend to have somewhat higher accident rates than the
average driver, even over the fairly long time horizon considered in
this analysis. Second, the changes in long-haul Vehicle Miles Traveled
(VMT) resulting from the mode shift can be expected to result in
proportionate changes in long-haul accidents. Both of these secondary
effects are presented in Table 3 (RIA Exhibit 9-8), which shows the
effects in terms of their impacts on benefits: increased crashes are
shown as negative impacts on benefits in the exhibit, while reduced
crashes are shown as positive values. The table also shows the total
benefits of each alternative after the adjustments for these secondary
effects.
Table 3.--Adjustments to Benefits Due to Secondary Effects of Alternatives: New Drivers and Mode Shift
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Change in Benefits due to New Long-haul Drivers............................. (51) 67 49
Change in Benefits due to New Short-haul Drivers............................ (70) 4 (6)
Change in Benefits due to New Long-haul and Short-haul Drivers.............. (121) 71 42
Changes in Benefits due to Increases in Long-haul VMT Due to Mode Shift..... 61 (69) (48)
Change in Benefits due to Both Secondary Effects............................ (60) 2 (5)
Total Unadjusted Benefits (from Table 1 above).............................. 400 (275) 234
Total Adjusted Benefits..................................................... 341 (272) 228
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6. Totals may not add due to rounding.
Along with these adjustments to benefits, there would be small
adjustments to the changes in fatalities. These adjustments are shown
in Table 4 (RIA Exhibit 9-9) below.
Table 4.--Adjustments to Changes in Fatalities Due to Secondary Effects of Alternatives, Relative to the Current
Rules With Full Compliance
[Values in parentheses are negative]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
Increase in Long-haul Fatalities due to New Drivers......................... 9 (12) (9)
Increase in Short-haul Fatalities due to New Drivers........................ 11 (1) 1
Increase in Total Fatalities due to New Drivers............................. 20 (13) (8)
Increase in Long-haul Fatalities due to Changes in Long-haul VMT............ (11) 12 8
Net Increase in Fatalities due to Secondary Effects......................... 9 0 1
Total Unadjusted Change in Fatalities....................................... (70) 48 (41)
Total Adjusted Change in Fatalities......................................... (61) 48 (40)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-7. Totals do not add due to rounding.
Costs of the Alternatives
This section presents the results of the cost analysis. First, the
FMCSA summarizes the required changes in drivers for long-haul and
short-haul operations. Initially, the changes are shown under
assumptions of constant demand for trucking services; the adjustment
for mode shifts is presented later. The agency later presents the
implications to costs of these changes in numbers of drivers.
Given the primary changes in drivers and costs, FMCSA considered
two secondary effects: changes in drivers' wages, and mode shifts
between long-haul truck and rail. Feedback from these secondary changes
would, in theory, cause further ramifications, but these are not
analyzed due to their small magnitude.
Table 5 (RIA Exhibit 9-1) presents the percentage changes in
drivers required that were calculated in the analysis of changes in
operations, and then shows their implications for total numbers of
drivers on the basis of the FMCSA's
[[Page 22495]]
estimates of total long-haul and short-haul drivers subject to this
final rule.
Table 5.--Changes in Drivers Needed in Response to HOS Limits Relative
to Current Rules With Full Compliance
[Values in parentheses are negative]
------------------------------------------------------------------------
PATT ATA FMCSA
------------------------------------------------------------------------
Percentage Change:
Long-haul.................... 4.0% (5.3)% (3.9)%
Short-haul................... 7.7% (0.4)% 0.7%
Numbers:
Long-haul.................... 60,000 (79,500) (58,500)
Short-haul................... 115,500 (6,000) 10,500
--------------
Total.................... 175,500 (85,500) (48,000)
------------------------------------------------------------------------
Source: RIA Exhibit 9-1.
Table 6 (RIA Exhibit 9-2) shows, for the long-haul sector, the cost
implications of the changes in drivers shown in Table 5 (RIA Exhibit 9-
1). The cost changes are divided into directly driver-related cost
changes, and the costs of non-driver related changes that are necessary
as a result of the changes in numbers of drivers. For each alternative,
there are costs related to new driver wages and benefits, which
counteract the changes in wages and benefits for current drivers whose
hours of work have changed. The net cost (or cost savings) for the
drivers comes about because the per-hour cost of work that has been
shifted between existing drivers and newly hired drivers is not the
same for the two groups: average employment costs for newly hired
drivers tend to be higher than the per-hour cost of extra hours for
existing drivers, in part because of fixed payroll costs (e.g.,
benefits) per driver. Other costs include costs for purchasing,
maintaining, insuring, and parking additional tractors and trailers for
the new drivers, and hiring a larger staff of non-driving personnel to
handle larger numbers of drivers.
Table 6.--Direct Cost Changes--Long-Haul
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
Cost category PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Driver Labor Cost........................................................ 287 (792) (636)
Avoided Labor Wages.................................................. (1,953) 2,258 1,546
Avoided Labor Benefits............................................... (117) 136 92
New Labor Wages...................................................... 1,799 (2,433) (1,736)
New Labor Benefits................................................... 558 (754) (538)
Other Costs.............................................................. 478 (563) (437)
Non-driver Labor..................................................... 11 (32) (25)
Trucks............................................................... 228 (216) (179)
Parking.............................................................. 54 (72) (53)
Insurance............................................................ 40 (52) (39)
Maintenance.......................................................... 70 (93) (68)
Recruitment.......................................................... 75 (99) (73)
--------------
Total Costs...................................................... 764 (1,356) (1,073)
----------------------------------------------------------------------------------------------------------------
Table 7 (RIA Exhibit 9-3) shows similar calculations for short-haul
operations, and Table 8 (RIA Exhibit 9-4) reports total direct cost
changes.
Table 7.--Direct Cost Changes--Short-Haul
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
Cost category PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Driver Labor Cost........................................................ 1,557 (38) 90
Avoided Labor Wages.................................................. (3,655) 165 (298)
Avoided Labor Benefits............................................... (219) 10 (17)
New Labor Wages...................................................... 3,798 (150) 309
New Labor Benefits................................................... 1,633 (64) 96
Other Costs.............................................................. 1,038 (49) 78
Non-driver Labor..................................................... 62 (2) 4
Trucks............................................................... 517 (23) 33
Parking.............................................................. 105 (5) 10
Insurance............................................................ 76 (4) 7
Maintenance.......................................................... 134 (7) 12
[[Page 22496]]
Recruitment.......................................................... 144 (7) 13
--------------
Total Costs...................................................... 2,595 (87) 168
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-3. Totals do not add due to rounding.
Table 8.--Total Direct Cost Changes
(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul................................................................ 764 (1,356) (1,073)
Short-haul............................................................... 2,595 (87) 168
--------------
Total................................................................ 3,360 (1,442) (905)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-4. Totals do not add due to rounding.
The FMCSA analyzed two secondary effects of the need to change the
number of drivers in response to the HOS rule alternatives: wage rate
changes due to the need to draw new drivers into the industry, and mode
shifts in response to changes in the costs of long-haul operations. The
changes in drivers shown in Table 5 (RIA Exhibit 9-1) were first
translated into changes in market wage rates for drivers using a driver
supply elasticity of 5.0. The resulting percentage changes in wages are
shown in the second line of Table 9 (RIA Exhibit 9-5). The effects of
that increase on the total costs of the long-haul sector are presented
in the next line, followed by the total increase in long-haul costs
including both the costs for changes in labor and capital, and the
costs due to the wage increases. This total cost increase is then
compared to the total costs for all long-haul operations to yield a
percentage increase in long-haul costs.
Table 9.--Long-haul Cost Changes Including Wage Increases and Resulting Mode Shifts
[(Costs in millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Direct HOS-Induced Costs, Long-haul Only................................. 764 (1,356) (1,073)
Percentage Change in Wages due to Driver Supply Elasticity............... 1.2% (0.6)% (0.3)%
Increase in Long-haul Wage Bill due to Wage Increases.................... 752 (366) (206)
Total Increase in Long-haul Costs........................................ 1,517% (1,722)% (1,279)%
Percentage Increase in Long-haul Costs................................... 0.4% (0.4)% (0.3)%
Percentage Change in Long-haul VMT due to Mode Shift..................... (0.32)% 0.37% 0.25%
Change in Long-haul Drivers due to Mode Shift............................ (4,875) 5,535 3,820
----------------------------------------------------------------------------------------------------------------
Given this percentage increase in long-haul costs, the assumption
that this cost increase is passed on to shippers, a measure of the
sensitivity of mode choice to prices, and an estimate of the portion of
the long-haul sector that is sensitive to competition from rail, the
FMCSA estimated the percentage change in long-haul VMT that would
result from changes in the mode split. Assuming a constant relationship
between drivers and VMT allowed the agency to estimate the change in
long-haul drivers resulting from the projected mode shift. The long-
haul wage increases and changes in mode shifts are not included
elsewhere in the RIA, because these represent transfers in welfare
among groups and not net social costs to society.
Net Benefits
The net social benefits of the alternatives, relative to the
current rules with full compliance, are found by subtracting the social
costs from the benefits. The results are shown in Table 10 (modified
RIA Exhibit 9-10), below.
Table 10.--Net Benefits Relative to Current Rules With Full Compliance
[(Millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Total Benefits.................................................... 341 (272) 228
Total Cost........................................................ 3,360 (1,442) (905)
Net Benefits...................................................... (3,019) 1,170 1,133
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-4 and 9-8.
[[Page 22497]]
Discussion of Net Benefit Results
The analyses presented above show that both the ATA and FMCSA
alternatives have net benefits compared to the current rules with full
compliance. Of these two alternatives, only the FMCSA alternative
provides positive benefits compared to the current rules with full
compliance; the ATA alternative has negative benefits that are
outweighed by larger cost savings. The PATT alternative has somewhat
higher benefits than the FMCSA alternative, but imposes costs that
outweigh the additional benefits.
The relative costs and benefits of the alternatives differ
considerably between the long-haul and short-haul segments. Most of the
costs of the more protective alternatives, PATT and FMCSA, arise in the
short-haul segment, but all of their benefits come from reducing long-
haul crashes. Fatigue and fatigue-related crashes are considerably less
common in short-haul operations, and the alternatives that limit hours
of work appear to be unlikely to make substantial reductions in those
crashes. On the other hand, the need to hire many more drivers in
response to the restrictions would cause increases in crashes over the
ten-year time horizon of this study, and those additional crashes would
counterbalance the small predicted reductions in fatigue-related
crashes.
In long-haul alternatives, though, the fraction of crashes
attributable to fatigue is considerably larger, and the two protective
alternatives are predicted to reduce those crashes considerably.
Considering the long-haul segment only, the FMCSA alternative is
superior on net benefit grounds to the ATA and PATT alternatives as
well as the current rules with full compliance.
Table 11.--Net Benefits by Length of Haul Relative to Current Rules With Full Compliance
[(Millions of dollars per year) (values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
Total Benefits....................................................... 374 (269) 225
Total Cost........................................................... 764 (1,356) (1,073)
--------------
Total Net Benefits............................................... (390) 1,087 1,298
Short-haul:
Total Benefits....................................................... (34) (4) 4
Total Cost........................................................... 2,595 (87) 168
--------------
Total Net Benefits............................................... (2,629) 83 (164)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-4, 9-4, and 9-8.
Limitations and Sensitivities
One important source of complete certainty is the magnitude of the
effects of ``time on task'' on crash risks. As discussed in RIA Chapter
8.1.5, there is likely to be an increase in risk as continuous hours of
driving increase that is independent of the effects of circadian
rhythms and sleep deficits. The FMCSA was not able to model this
independent effect, however, due to uncertainty about its magnitude for
very long hours of driving. If that effect were actually large, the
more protective alternatives would show relatively higher benefits.
Uncertainty about the time-on-task effect is particularly great for
very long hours of driving, in part because very long driving shifts
are not permitted. They are therefore both rare and difficult to study.
In particular, the 16-hour driving shifts that would be allowed at
times under one of the alternatives (a provision that we did not model
for this analysis) would be very rare and hard to study under real
world conditions.
Another place where complete certainty may not be found is in the
8.15 percent estimate of crashes in the status quo that can be
attributed to fatigue. The NPRM regulatory evaluation included an
estimate that 15 percent of all crashes were fatigue-relevant. The
estimate of 15 percent was supported in the docket and at public
hearings by some safety groups, while the ATA and others argued that
the correct value was closer to 4 to 5 percent. The NPRM's estimate was
comprised of 2 separate components: 5 percent fatigue crashes, and 10
percent fatigue relevant crashes. The 5 percent figure came from FMCSA
and NHTSA summary of data from NHTSA databases and other studies. Most
of these databases and studies estimated fatigue by counting the number
of citations for fatigue from police accident reports. The 10 percent
fatigue relevant figure was based on FMCSA's best estimate at the time
about the percent of inattention crashes that are at least indirectly
related to fatigue. The agency had no studies to suggest that 10
percent was correct, but the data suggested that some percent of
inattention crashes were related to driver fatigue.
Because of these criticisms, and because we did not have a specific
reason to pick 10 percent, FMCSA revisited the NPRM's estimate in this
regulatory evaluation. The agency only used data from police reports
and national databases, with no qualitative adjustments. As explained
in Chapter 8 of the RIA, we used FARS data from 1997 through 2000, and
found that fatigue was cited in an average of 7.25 percent of crashes;
4.33 percent of crashes were cited for inattention. The FMCSA sponsored
study by Hanowski, Wierwille, Garness, Dingus, Impact of Local/Short
Haul Operations on Driver Fatigue, found that fatigue was a factor in
20.8 percent of inattention crashes. Therefore, FMCSA added 0.9 percent
(20.8 times 4.33) to 7.25 to obtain our final estimate of 8.15 percent.
As noted in Discussion of Net Benefit Results above, reviewing the
costs and benefits by length of haul reveals that the alternatives have
very different cost/benefit profiles for long-haul compared to short-
haul operations. The FMCSA alternative, for example, provides net
benefits in long-haul operations, but has net costs for short-haul.
Although the estimated costs for imposing new HOS requirements on
short haul motor carrier operations exceeds the potential benefits for
that specific segment of the industry, the population of drivers
employed by these carriers and the VMT by them each year suggests that
it is necessary to include short haul operations in this final rule.
The population of short haul drivers is approximately equal to the
population of long-haul drivers, about 1.5 million drivers in each of
the two categories. However, the vehicle miles traveled (VMT) by short-
haul drivers is
[[Page 22498]]
about one half that of the long-haul drivers, with short-haul
operations accounting for 80 billion VMT versus 166 billion VMT for
long-haul operations. When consideration is given for VMT, short-haul
operations represent a significant risk of accident involvement that is
comparable to, if not greater than, the risks presented by long-haul
operations. While the economic analyses of the costs and benefits
indicates that most of the costs of fatigue-related accidents, and the
benefits of this final rule appear to be associated with long-haul
operations, the obligation of the FMCSA to improve to the greatest
extent practicable the safety of all CMV operations necessitates the
inclusion of short-haul operations.
The research studies FMCSA reviewed as part of the rulemaking
process indicates that the current HOS rules do not provide drivers
with sufficient opportunities for restorative sleep. Under the current
rules, a driver operating on a minimally compliant schedule would only
be provided eight consecutive hours off duty. This eight-hour period
includes the time for the driver to leave his/her work-reporting
location, travel to a location for rest, rest, and return to the work-
reporting location. Generally, this means that under the current
regulations, the driver would have significantly less than eight hours
to obtain meaningful rest. The consequences of this type of minimally
compliant schedule are typically most severe during emergency driving
maneuvers or other high-risk driving tasks such as driving in inclement
weather or in heavy traffic, as the driving demands may exceed the
capability of the driver suffering from a decreased level of alertness.
The risks and potential consequences are present for both long-haul and
short-haul operations such that excluding short-haul operations from
the final rule would needlessly subject the motoring public to an
unnecessarily high level of risk. The risk of an accident that could be
attributable in whole or in part to a driver's minimally compliant
work-rest cycle, could be significantly reduced if short-haul
operations are covered by the final rule.
Since the overall benefits of the rulemaking exceed the overall
costs for the freight transporters operating at full compliance, FMCSA
believes the inclusion of short-haul operations in the final rule is
appropriate despite the seemingly disproportionate costs of compliance
with the rule. There is clearly a need to ensure better opportunities
for restorative sleep for all CMV drivers working minimally compliant
schedules. Moving forward with a final rule that excludes short-haul
drivers would fragment this initiative in such a manner that it may
prove extremely difficult to complete a separate rulemaking at a later
date that would provide a better potential safety outcome at a lower
cost than this final rule. Given the choice between (1) continuing to
allow minimally compliant work-rest cycles to be used by approximately
half the regulated drivers for the sake of improving estimated benefit-
to-cost ratios, or (2) sacrificing a portion of the benefits of the
rulemaking to ensure that all drivers transporting freight are required
to adhere to work-rest cycles that are more consistent with sleep
research, the FMCSA has chosen to ensure the highest practicable level
of safety, based on the data currently available.
The observation that the alternatives are less cost-effective in
short-haul operations was part of the FMCSA staff's motivation for
providing more flexibility in the staff alternative for short-haul
drivers, allowing one 16-hour shift per week. The FMCSA assessed the
effects of this flexibility by examining the costs and benefits of the
staff alternative without allowing any 16-hour shifts.
As stated above under the FMCSA Response to the Daily On-Duty Time
section, the FMCSA found that restricting those drivers who return to
the normal work reporting location at the end of every shift has the
unintended consequence of requiring a significant increase in new
drivers. These new drivers would increase both costs and crashes. The
analyses showed that by allowing these short-haul drivers the
flexibility to work up to 16 hours one day in a week would reduce the
number of additional drivers needed for the staff alternative. This
flexibility would result in cost savings of nearly $500 million and
safety benefits of nearly $10 million.
With this change to the FMCSA staff alternative, its net benefits
compared to current rules with full compliance would drop to about one
half of one billion dollars per year. These results are shown in Table
12 (RIA Exhibit 9-12).
Table 12.--Net Benefits by Length of Haul Relative to Current Rules With Full Compliance
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
FMCSA, without
PATT ATA FMCSA short-haul
flexibility
----------------------------------------------------------------------------------------------------------------
Long-haul:
Total Benefits.......................... 374 (269) 225 225
Total Cost.............................. 764 (1,356) (1,073) (1,073)
------------------
Total Net Benefits.................. (390) 1,087 1,298 1,298
Short-haul:
Total Benefits.......................... (34) (4) 4 (5)
Total Cost.............................. 2,595 (87) 168 641
------------------
Total Net Benefits.................. (2,629) 83 (164) (646)
==================
Total:
Total Net Benefits.................. (3,019) 1,170 1,133 652
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-11. Totals may not add due to rounding.
[[Page 22499]]
Costs and Benefits Relative to the Status Quo
This section reviews the costs and benefits presented in chapter 9
of the RIA relative to a baseline representing the status quo. Table 13
(RIA Exhibit 9-13) presents the changes in drivers needed relative to
the Status Quo scenario; because the difference in drivers needed
between the Status Quo and the Current Rules/100 percent is 8.1 percent
for long-haul, that amount was added to the estimates that were
presented in Table 5 (RIA Exhibit 9-1) for each of the alternatives.
Similarly, the amount shown in the other rows of the ``Current/100
percent'' column in Table 13 (RIA Exhibit 9-13) was added to the
estimates presented in Table 5 (RIA Exhibit 9-1) for each of the other
alternatives. Because achieving full compliance with the current rule
would require more drivers, all of the values in Table 13 are higher
than those in Table 5.
Table 13.--Changes in Drivers Needed in Response to HOS Limits, Relative to the Status Quo
----------------------------------------------------------------------------------------------------------------
Current/100
percent PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Percentage Change:
Long-haul................................... 8.1 12.1 2.8 4.2
Short-haul.................................. 0.7 8.4 0.3 1.4
=================
Numbers:
Long-haul................................... 121,500 181,500 42,000 63,000
Short-haul.................................. 10,800 126,300 4,800 21,300
-----------------
Total................................... 132,300 307,800 46,800 84,300
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-1.
The direct costs of the alternatives relative to the Status Quo are
shown in Table 14 (RIA Exhibit 9-14). This exhibit shows the costs of
the current rules with full compliance in the fourth column from the
right. The other columns show selected cost data from Table 6 and 7
with the cost of compliance with the current rules added. Because there
would be costs for compliance with the current rules, the costs of each
of the alternatives are higher relative to the status quo than relative
to the current rule with full compliance.
Table 14.--Direct Cost Changes Relative to Status Quo
[Millions of dollars per year]
----------------------------------------------------------------------------------------------------------------
Current/100
Cost category percent PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Long-haul:
Driver Labor Cost....................................... 1,185 1,472 393 550
Other Costs............................................. 769 1,247 206 332
--------------
Total Costs......................................... 1,954 2,719 599 882
Short-haul:
Driver Labor Cost....................................... 143 1,700 105 233
Other Costs............................................. 90 1,128 41 168
--------------
Total Costs......................................... 232 2,827 146 400
==============
Total Costs, Long-haul and Short-haul............... 2,187 5,546 744 1,282
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-2 and 9-3. Totals may not add due to rounding.
Tables 15 and 16 (RIA Exhibits 9-15 and 9-16) show the benefits and
adjusted benefits of compliance with the current rule, as well as the
alternatives, relative to the status quo. These tables are based on
Tables 1 and 3, with the benefits of compliance with the current rules
added to the values in those tables. Because there would be substantial
benefits to achieving full compliance with the current rule, the
benefits shown in these tables are higher than those shown in Tables 1
and 3.
Table 15.-- Value of Crashes Avoided Due to Operational Changes Relative to Status Quo
[Millions of dollars per year]
----------------------------------------------------------------------------------------------------------------
Current/100
percent PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Benefits of Avoided Long-haul Crashes....................... 429 794 162 653
Benefits of Avoided Short-haul Crashes...................... 22 58 14 32
--------------
Total Benefits of Operational Changes................... 451 852 176 685
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-6.
[[Page 22500]]
Table 16.--Adjustments to Benefits Due to Secondary Effects of Options Relative to the Status Quo
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
Current/100
percent PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Change in Benefits due to New Long-haul Drivers............. (103) (154) (36) (54)
Change in Benefits due to New Short-haul Drivers............ (7) (77) (3) (13)
Change in Benefits due to New Long-haul and Short-haul (110) (230) (38) (67)
Drivers....................................................
Change in Benefits due to Change in Long-haul VMT........... 101 162 32 54
Net Damages (i.e., Reduction in Benefits due to Secondary (9) (68) (6) (14)
Effects)...................................................
Total Unadjusted Benefits................................... 452 851 176 685
Total Adjusted Benefits..................................... 443 783 170 671
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibit 9-8. Totals may not sum due to rounding.
Finally, Table 17 (RIA Exhibit 9-17) shows the net benefits of
compliance with the current rule and of the alternatives, relative to
the Status Quo. This table presents the total cost and total benefits
lines from Tables 14 and 16, and subtracts costs from benefits to yield
net benefits.
Table 17.--Net Benefits Relative to Status Quo
[(Millions of dollars per year) (Values in parentheses are negative)]
----------------------------------------------------------------------------------------------------------------
Current/
100% PATT ATA FMCSA
----------------------------------------------------------------------------------------------------------------
Total Benefits.............................................. 443 783 170 671
Total Costs................................................. 2,187 5,546 744 1,282
Net Benefits................................................ (1,744) (4,763) (574) (611)
----------------------------------------------------------------------------------------------------------------
Source: RIA Exhibits 9-12 and 9-14.
Table 18 shows the impact of different assumed baseline percentages
of fatigue-related crashes. Specifically, it includes estimates of the
benefits and number of fatalities assuming that 5 percent and 15
percent of all current crashes are fatigue-related (compared to a
baseline figure of 8.15 percent). These values were chosen because the
majority of the figures submitted to the docket or in public hearings
fall within this range. The FMCSA's interpretation of the crash
literature indicates that it is very unlikely that the true percent of
fatigue-related crashes falls outside this range.
Table 18.--Sensitivity Analysis of Number of Fatalities Using Different
Baseline Percent Fatigue-related Crashes
[Values in parentheses are negative]
------------------------------------------------------------------------
Status 100%
Quo Compliance FMCSA
------------------------------------------------------------------------
5% Baseline Fatalities............... 243 196 171
Change from Status Quo............... 0 (47) (71)
Change from 100%..................... NA 0 (24)
8.15% Baseline Fatalities............ 396 318 278
Change from Status Quo............... 0 (79) (120)
Change from 100%..................... NA 0 (40)
15% Baseline Fatalities.............. 729 584 510
Change from Status Quo............... 0 (144) (219)
Change from 100%..................... NA 0 (75)
------------------------------------------------------------------------
Numbers may not add because of rounding.
Based on Table 18, if motor carriers were adhering fully to the
current HOS regulations, the FMCSA estimates that between 196 and 585
fatalities would occur each year on the Nation's roads because of
drowsy, tired, or fatigued CMV drivers transporting property. The FMCSA
estimates that this final rule, when motor carriers adhere to it fully,
would save between 24 and 75 lives each year as compared to complying
fully with the current rules.
The RIA shows that both the ATA and FMCSA alternatives have net
benefits compared to the current rules with full compliance. Only the
FMCSA alternative, however, provides positive safety benefits compared
to the current rules with full compliance; the ATA alternative has
large cost savings that outweigh negative safety benefits. The PATT
alternative has somewhat higher safety benefits than the FMCSA
alternative, but imposes costs that outweigh the additional benefits.
After careful consideration of the regulatory impacts of the
alternatives analyzed, the FMCSA has decided to make final the
alternative proposed by the agency staff. All of the changes are within
the range of changes proposed in the NPRM. The FMCSA has also chosen to
maintain most existing rules for passenger carriers, including carriers
of migrant workers.
The FMCSA believes these requirements will increase driver
alertness and reduce fatigue problems, if
[[Page 22501]]
drivers and motor carriers adhere to them. The FMCSA has no control
over the manner in which a driver may spend his time off duty, although
some of his spare time activities may tire him as much as any work
would do. The FMCSA can only emphasize the driver's responsibility to
assure himself of adequate rest and sleep, in the time available for
this purpose, to insure safety of his driving, and, similarly, the
motor carrier's responsibility to see that its drivers report for work
in fit condition.
Drivers must manage their off-duty time intelligently if this final
rule is to be effective. Some drivers may continue to drive more hours
than this final rule allows in order to earn more money. Others may
perform non-driving jobs during their off-duty time; commute long
distances to and from home; or engage in other pursuits that interfere
with their obligation to obtain proper sleep and be prepared to drive
safely. Under this final rule, all time spent in any work must be
counted as on-duty time, since all work can either induce fatigue or
deprive the driver of sleep.
The FMCSA believes this economically significant and major final
rule is a reasonable balance of factors because it provides the best
combination of increased driver alertness and reduced numbers of
fatigue-related incidents, while providing cost effective safety
benefits to society.
Changes Compared to May 2, 2000 NPRM
Categories of Operations
The NPRM proposed five types of operation. As explained above, the
FMCSA has chosen to drop categorization based on comments showing
categories created confusion, problems for enforcement, and did not
fully meet the objective of accommodating the diversity of the
industry.
Passenger Carrier Operations
The NPRM proposed regulating passenger carriers the same as
property carriers. As explained in the discussion of the comments, the
FMCSA has decided to retain the existing rules for passenger carriers;
those operators will continue to be subject to the rules in effect
before this final rule was adopted.
NHS Act Exemptions
The NPRM proposed to maintain the HOS exemption for groundwater
well drillers without change. It would have narrowed the exemptions for
agricultural commodities and farmers by defining certain terms
narrowly. Finally, the NPRM would have subjected the construction and
utility-service-vehicle exemptions to the proposed off-duty time
periods (56 to 32 hours) every seven consecutive days. As explained in
the discussion of comments about NHS Act exemptions, the FMCSA has
chosen to withdraw these proposals.
The agricultural exemption in effect before this final rule was
published will remain in effect. The 24-hour restart provisions
applicable to drivers of ground water well drilling rigs and utility
service vehicles, and to drivers who transport construction materials
and equipment, will also remain in effect. Eligible drivers, however,
will now be subject to the new 11-hour driving limit, with no driving
after the end of the 14th hour after coming on duty, and will be
required to take 10 consecutive hours off duty. Such drivers will also
be eligible to take the exemption in Sec. 395.1(o) allowing up to a
16-hour work day, when they meet the conditions in that paragraph.
Sleeper Berth Provision
The NPRM proposed to eliminate the use of sleeper berths for solo
drivers to comply with the HOS rules. It would have allowed team
drivers to accumulate 10 hours off duty in two periods in a sleeper
berth, one of which would have to be at least 5 hours long. As
explained in the discussion of comments on this issue, the FMCSA will
maintain the split off-duty period of the current sleeper berth
provision. However, the agency is increasing the requirement for
cumulative off-duty time to 10 hours for property carriers. Thus,
property-carrying drivers who use sleeper berths may take their minimum
10 hours off-duty in two periods, the shorter period must be at least 2
hours. Passenger-carrying drivers who use sleeper berths may take their
minimum 8 hours off-duty in two periods, the shorter period must be at
least 2 hours.
Carrier Notification of Drivers During Their Off-Duty Hours
The NPRM proposed a kind of restart that would be triggered by
employers or their agents violating the proposed prohibitions against
interrupting drivers' off-duty periods. The proposal was designed to
address complaints the agency has received over the years regarding
unreasonable calls from dispatchers and other carrier employees that
caused drivers to lose the opportunity to sleep. As proposed, such an
interruption would start the full interrupted off-duty period over
again from the time of the interruption. As explained above in the
discussion of this provision, the FMCSA has decided to withdraw the
proposal.
Daily Work-Rest Cycle
The NPRM proposed duty and off-duty periods that would have added
up to a regularly recurring 24-hour work day. As explained in the
discussion of the relevant comments above, the FMCSA will maintain the
current rules for passenger carriers. The rules for property carriers
are being modified to reduce the allowable amount of backward rotation
of the ``daily'' schedule.
Daily Off-Duty Time
The NPRM proposed consecutive daily off-duty periods for obtaining
sleep from 9 to 12 hours depending on the category of operation. As
explained earlier in this document, the FMCSA has chosen to maintain
the rule requiring 8 consecutive hours off-duty for passenger carriers
and to increase the minimum daily off-duty period to 10 consecutive
hours for property carriers.
Daily On-Duty Time
The NPRM proposed that drivers could accumulate no more than 12
hours of driving and non-driving duty time (15 hours for ``Type 5''
drivers) in any 24-hour period. The FMCSA has decided to retain the
current HOS rule for passenger-carrying drivers. Property-carrying
drivers will have an on-duty limit of 14 hours from the start of each
tour of duty to do all work, naps, and meal breaks. Property-carrying
drivers must not drive after 11 cumulative hours of driving after
starting each tour of duty. Property-carrying drivers who have returned
to their normal work reporting location each of the last five work days
(short-haul), may be on duty, one day out of each 7-day period, for up
to 16 consecutive hours after starting the tour of duty.
Distinctions in Duty Time
The expert panel assembled by the agency to review the options
under consideration before publication of the NPRM recommended
eliminating the distinction between on-duty time and driving time. The
scientific basis for the recommendation was the conclusion that driving
is no more tiring than many of the other tasks a truck driver would be
called upon to perform.
In addition to striving for a productivity-neutral outcome, the
agency's practical basis for proposing the elimination was to reduce
the paperwork burden. Under the existing rules, drivers are required to
account for both driving time and non-driving duty time. Eliminating
the distinction,
[[Page 22502]]
moreover, would have achieved consistency with the terminology used by
the DOL, allowing FMCSA to rely on DOL records in place of driver
records of duty status.
The agency has decided to continue the distinction between driving
time and on-duty time. Within the limits of a tour of duty usually
lasting no more than 14 hours, the FMCSA believes there is little doubt
that modern CMVs can be driven safely up to 11 hours, particularly
because rest breaks can be expected to naturally occur during the
course of that tour. The FMCSA believes that the last hour of a
driver's duty tour would be expected to be driving time that comes near
the end of a 13- or 14-hour workday and is persuaded that 11 hours is a
more reasonable limit. FMCSA will continue to rely on the driver-
prepared records of duty status and the documents that support those
records.
Weekly or Longer Cycle
The scientific basis for proposing weekly restrictions is the
finding from research studies that sleep debt from multiple periods of
insufficient (poor quality or insufficient quantity) sleep is the major
cause of cumulative fatigue. The recommended countermeasure is a
recovery period during which restorative sleep may be obtained and the
sleep debt repaid. The concept of a weekly recovery period was
presented in the NPRM in the definition of workweek, i.e., ``any fixed
and regularly recurring period of seven consecutive workdays,'' and in
the number of hours required to be off-duty before beginning the next
workweek.
The FMCSA has concluded that the current 60-hour in 7-day and 70-
hour in 8-day limitations continue to be generally acceptable for CMV
drivers and will retain those limits.
Weekly Recovery Periods
The NPRM proposed to require between 32 and 56 consecutive hours
off duty every seven consecutive days. As explained previously in this
document, the FMCSA has decided to retain the current requirement for
passenger-carrying drivers, i.e., these drivers may not drive
passenger-carrying vehicles after accumulating 60 hours on-duty in any
7 consecutive days or 70 hours in any 8 consecutive days. If the driver
accumulated duty time at the maximum rate he/she would reach the limit
in 4\1/4\ days and would have to take three consecutive days off-duty
before he/she could drive CMVs again.
The FMCSA is modifying the rule for property-carrying drivers to
include a restart provision. A property-carrying driver may not drive
CMVs after accumulating 60 hours on-duty in any 7 consecutive days or
70 hours in any 8 consecutive days. If the driver accumulated duty time
at the maximum rate, he/she would reach the limit in approximately 5
days and would have to take at least 34 consecutive hours off-duty
before he/she could drive CMVs again. However, the driver could start a
new seven- or eight-day period anytime he/she took 34 consecutive hours
off duty.
Short Rest Breaks During a Work Shift
The NPRM proposed that additional off-duty time for personal
reasons such as mid-shift meals, naps, and rest break periods would be
allowed, but would result in no extension of the workday. As explained
in the discussion of the comments on this provision, the FMCSA has
decided to continue allowing off-duty periods for passenger-carrying
drivers that may result in extension of the workday. The FMCSA will
allow property-carrying drivers to take off-duty mid-shift meal, nap,
and other rest break periods, but those breaks will not extend the
workday.
Electronic On-Board Recording Devices
The NPRM proposed to require EOBRs for Type 1 and 2, i.e., long-
haul and regional operations, that would have replaced driver-prepared
paper records of duty status. The FMCSA has decided to maintain the
current requirement for driver-prepared paper records of duty status,
while allowing automatic recording devices to be used in lieu of the
driver-prepared paper records of duty status at the motor carrier's
option.
Use of Department of Labor Time Records
The NPRM proposed to use U.S. Department of Labor (DOL) time
records for Types 3, 4, and 5 drivers (i.e., local-split shift, local
and primary work not driving) and to remove the distance-based
limitation on use of such time records. As explained in the discussion
of comments about the compliance and enforcement provisions of the
NPRM, the FMCSA has chosen to maintain the current requirement for
driver-prepared records of duty status and timecard records for 100
air-mile radius drivers.
Conclusion
This final rule incorporates the FMCSA staff alternative because it
provides the best combination of increased driver alertness and reduced
numbers of fatigue-related incidents, while providing cost effective
safety benefits to society.
Section-by-Section Analysis
The FMCSA's jurisdiction over the HOS regulations for motor
carriers and drivers is shown in Table 19. Motor carriers and drivers
are also subject to applicable State motor vehicle and highway safety
laws and regulations.
Table 19.--Applicability of FMCSA Hours of Service (HOS) of Drivers
Rulemaking
------------------------------------------------------------------------
In interstate In intrastate
If you operate a: commerce commerce
------------------------------------------------------------------------
CMV, i.e., a motor vehicle(s)
that has any of the following
four characteristics:
1. A gross vehicle weight, You must comply You are not subject
gross vehicle weight with all FMCSA to the FMCSA HOS
rating or gross HOS regulations. You may
combination weight rating regulations.\2\ currently be subject
of at least 4,537 to similar State
kilograms (10,001 pounds) rules and may be
whichever is greater; or subject to the final
rule in this
document, if your
State or local
government adopts
final rules in order
to participate in
the Motor Carrier
Safety Assistance
Program, 49 CFR part
350.
2. Is designed or used to
transport more than 8
passengers, including the
driver, for compensation;
or
3. Is designed or used to
transport more than 15
passengers, including the
driver, and is not used
to transport passengers
for compensation; or
[[Page 22503]]
4. Is used to transport
hazardous materials in
quantities requiring the
vehicle to be marked or
placarded under the
Hazardous Materials
Regulations (49 CFR part
172, subparts D & F).
------------------------------------------------------------------------
\2\ Most motor carriers engaged in interstate commerce are exempt from
the overtime requirements of the FLSA. The FLSA exemption from the
overtime pay requirement applies only to certain employees of
interstate motor carrier employers subject to the Motor Carrier Act of
1935 (Pub. L. 74-255, 49 Stat. 543, August 9, 1935), but not to those
subject only to the Motor Carrier Safety Act of 1984 (Pub. L. 98-554,
October 30, 1984) (98 Stat. 2829). The only substantial group of
interstate carrier employers subject to the 1984 Act that are not also
subject to the 1935 MCA are private motor carriers of passengers
(e.g., churches, musicians, civil and charitable organizations,
scouts, companies transporting their own employees, etc.). See 29 CFR
782.2(b)(1).
Appendix B to Part 385 Explanation of Safety Rating Process
Section VII of appendix B to part 385 lists acute and critical
regulations, which play an important role in assigning a safety rating.
The descriptions of some of the HOS regulations listed there are being
updated to conform to the requirements of this final rule. For example,
Sec. 395.3(a)(1), a critical rule, is now summarized as ``requiring or
permitting a driver to drive more than 10 hours.'' While Sec.
395.3(a)(1) remains critical, the new summary will say: ``requiring or
permitting a property-carrying commercial motor vehicle driver to drive
more than 11 hours.'' Updating and adding appropriate citations allows
the agency to accurately update the safety rating process on the
compliance date of the rule. The citations being updated and added
include Sec. Sec. 395.1(h)(1)(i), 395.1(h)(1)(ii), 395.1(h)(1)(iii),
395.1(h)(1)(iv), 395.1(h)(2)(i), 395.1(h)(2)(ii), 395.1(h)(2)(iii),
395.1(h)(2)(iv), 395.1(o), 395.3(a)(1), 395.3(a)(2) 395.3(a)(2),
395.3(b)(1), 395.3(b)(2), 395.3(c)(1), 395.3(c)(2), 395.5(a)(1),
395.5(a)(1), 395.5(a)(2), 395.5(b)(1), and 395.5(b)(2).
Section 390.23 Relief From Regulations
Paragraphs (b) and (c) of Sec. 390.23 address the restart
provisions the agency provided in the emergency relief exemption of
July 30, 1992 (57 FR 33638, at 33647). This rule amends the daily and
weekly restart provisions for normal duty in interstate commerce and
the agency believes it must conform the emergency relief exemption to
the standard being adopted today. This amendment requires that drivers
who provide direct assistance, as defined by Sec. 390.5, to emergency
relief efforts must, before returning to normal duty in interstate
commerce, (1) take at least 10 consecutive hours off-duty, if they have
driven more than 11 hours or have been on duty more than 14 hours, and
(2) take at least 34 consecutive hours off duty, if they have been on
duty more than 60 hours in 7 days or 70 hours in 8 days.
Section 395.0 Compliance Date for Certain Requirements for Hours of
Service of Drivers.
The agency is adding Sec. 395.0 to specify when motor carriers and
drivers must comply with this final rule. The effective date cited in
the DATES: heading at the top of this document is the date that this
final rule's amendments affect the current Code of Federal Regulations
published by the Government Printing Office. Motor carriers of property
and drivers of property-carrying commercial motor vehicles may not
begin to comply with this final rule on that date.
The compliance date is the date that motor carriers of property and
drivers must begin to comply with this final rule. Motor carriers of
property, drivers of property-carrying commercial motor vehicles,
Federal, State, and local law enforcement officers, and the FMCSA must
do many necessary things before the rules can be enforced. The FMCSA
must update motor carrier information, compliance, and enforcement
computer systems and manuals. The FMCSA has eight computer software
packages where it must find the correct code, write new code, test the
new software, and distribute it to its division offices and State and
local partners.
The agency must develop training, distribute training materials,
and ensure training materials are read, taught, and understood by
approximately 8,000 Federal, State, and local law enforcement officers.
The agency also plans to provide training and presentations to the
public about the new rules.
Motor carriers must develop training or use FMCSA's training
materials, distribute training materials, and ensure training materials
are read, taught, and understood by the millions of drivers engaged in
interstate commerce who transport freight and other types of property.
The FMCSA must also ensure the CVSA updates its Out-Of-Service
criteria. The FMCSA cannot do its part, and cannot expect motor
carriers to do their part, within 60 days after today.
The agency believes a compliance date on a Sunday will be the least
burdensome to all carriers and enforcement officials. Most affected
carriers subject to this final rule operate on a Sunday to Saturday
basis and most affected carriers would suffer less disruption to their
operations if the rule took effect at the beginning of a new week.
Therefore, the agency is providing a compliance date when all carriers,
drivers, and enforcement officials will switch from the current rule to
the new rule: Sunday, January 4, 2004.
Finally, this section is only necessary for a few months until all
affected motor carriers learn about the new rule and begin complying
with it. Therefore, the FMCSA has added language to the DATES section
that will only make this section effective in the Code of Federal
Regulations temporarily from June 27, 2003, through June 30, 2004.
After June 30, 2004, the Government Printing Office will remove this
section from the Code of Federal Regulations. Thus, the October, 1,
2004, edition and all subsequent editions of the Code of Federal
Regulations will not contain Sec. 395.0.
Section 395.1 Scope of Rules in This Part
Section 395.1 is amended by revising paragraphs (b), (e)(3),
(e)(4), (g), (h), and (j) to use the new off-duty, on-duty, and driving
limits for drivers of property-carrying vehicles, while maintaining the
current off-duty, on-duty, and driving limits for drivers of passenger-
carrying vehicles.
Paragraph (b) is the adverse driving condition exception. It is
being revised to update the daily limits. The adverse driving condition
exception applies only to the driving time limitation of 11 hours for
property-carrying vehicles or 10 hours for passenger-carrying vehicles.
The adverse driving condition exception cannot be used if the driver
[[Page 22504]]
has accumulated driving time and on-duty (not driving) time, that would
put the driver over on duty hour limit or over the 60 hour in 7 day or
70 hours in 8 consecutive day limits. In addition, the adverse driving
condition exception cannot be used for loading and unloading delays. An
absolute prerequisite for claiming the adverse driving condition
exception is that the trip involved is one which could normally and
reasonably have been completed without a violation and that the
unforeseen event occurred after the driver began the trip.
Drivers who are dispatched after the motor carrier has been
notified or should have known of adverse driving conditions are not
eligible for the two hours additional driving time.
Paragraphs (e)(3) and (e)(4) are being revised to update the 100-
air mile radius exception to the record of duty status requirement.
When all five of the conditions in paragraph (e) are met, a carrier may
maintain time records for the driver.
Paragraph (g) is being revised to update the off-duty, on-duty, and
driving limits of the sleeper berth exception. The FMCSA is improving
the regulatory text for the sleeper berth provision to ensure a clear
understanding of the rule. The agency has borrowed, but modified, the
Government of Canada's 1994 version of the sleeper berth rule (SOR/94-
716, s. 5) because its language is clearer than the wording adopted by
the ICC in 1938. This change will not affect the way the FMCSA now
enforces the sleeper berth exception.
The provisions requiring the summation of the driving and on-duty
hours immediately before and after each rest period are necessary to
ensure that drivers on irregular schedules do not accumulate
significant amounts of fatigue. These provisions, which reflect many
decades of enforcement practice, are well understood in the motor
carrier industry. Paragraphs (g)(1)(iv), (g)(2)(iv), and (g)(3)(iv),
requiring at least 10 consecutive hours off duty or in a sleeper berth,
or a combination of at least 10 consecutive hours of sleeper-berth and
off-duty time before returning to regular driving, has also been part
of the agency's traditional enforcement practice for sleeper berth
operations.
For example, a driver can stretch out her driving and on-duty time
by using sleeper berth equipment, although she will continue to be
limited by the driving time and on-duty time limits. A driver does not
have to take her sleeper berth time all at once. She can get her 10
hours off duty by splitting it into two periods. A sleeper berth period
of less than 2 hours does not count towards the 10 hour total, but the
driver must record a period of less than 2 hours as sleeper berth time.
This is an example of how the rule works for drivers of property-
carrying vehicles:
1. Drive for part of your 11 hours;
2. Rest in the sleeper berth for at least 2 hours;
3. Drive the remaining part of your 11 hours; and
4. Rest in the sleeper berth again to finish your 10 hours off duty
before driving again.
After the second sleeper-berth period, the driver cannot drive 11
hours. The driver must count the time she was driving between the two
sleeper berth periods, so she must subtract the previous driving time
in between the two sleeper-berth periods from the allowed 11 hours to
figure her hours left to drive.
Paragraph (h) and (j) are being revised to update the daily off-
duty limit in the exceptions for drivers operating in the State of
Alaska and for travel time.
Paragraph (k) is being revised to modify the reference to Sec.
395.3 in the exception for drivers transporting agricultural
commodities or farm supplies for agricultural purposes in certain
States and during certain times of the year. The wording of the
agricultural exemption in the NHS Act is not entirely clear. The FHWA
initially interpreted the exemption as limited to Sec. 395.3, a
conclusion reflected in the interim final rule published on April 3,
1996 [61 FR 14677]. Subsequent consideration of the legislative
history, however, made it clear that Congress intended farmers who
qualified to be exempt from all of the HOS regulations. The agency
therefore issued an interpretation to its field staff clarifying the
reach of the regulation. This revision simply conforms the language of
the exemption to the interpretation and the intent of the statute.
Paragraph (o) adds an exception/exemption for certain drivers of
property-carrying vehicles. Drivers who meet all three of the
conditions in this paragraph (o) are eligible for the exception/
exemption. First, a property-carrying driver must have returned to the
normal work reporting location and the carrier must have released the
driver from duty at that location for the previous five days that the
driver has worked. Second, the driver must return to the normal work
reporting location and the carrier must release the driver from duty
within 16 hours after coming on duty. Finally, the driver must not have
used this paragraph's exception/exemption within the previous 7
consecutive days, unless the property-carrying driver has begun a new
7-or 8-consecutive day period. Such a driver will have had 34 or more
consecutive hours off-duty thereby restarting the driver's week, which
is allowed by new Sec. 395.3(c). Thus, the driver could take the next
16-hour day on the first, second, or third day immediately following
the 34 or more consecutive-hour off-duty period.
Section 395.3 Maximum Driving Time for Property-Carrying Vehicles
The section heading and text of Sec. 395.3 are being revised to
use the new off-duty, on-duty, and driving limits for drivers of
property-carrying vehicles.
A driver of a property-carrying vehicle that does not use a sleeper
berth must not drive more than 11 cumulative hours following 10
consecutive hours off duty. Such a driver also must not drive after the
end of the 14th hour after coming on duty following 10 consecutive
hours off duty. This means that once the driver begins a tour of duty,
the driver's driving duties must end within 14 consecutive hours. The
current 15 hour rule allows drivers to extend the work day by taking
off-duty time, including meal stops and other rest breaks, of less than
8 hours duration other than sleeper berth time. This rule requires that
taking off-duty time, including meal stops and other rest breaks, of
less than 10 hours duration, other than sleeper berth time, will not
extend the work day.
The new rule, like the current rule, does not limit the length of
time a person can be on duty. The current rule states that a driver
cannot drive after being on duty for 15 hours, but the driver could
remain on duty indefinitely. This final rule states that a driver
cannot drive after being on duty after the end of the 14th hour after
coming on duty, but the driver also can remain on duty indefinitely.
That time, however, would apply towards the maximum 60 or 70 hours on
duty over 7 or 8 consecutive days. Because there will be a requirement
for 10 consecutive hours off duty, most drivers will usually go off
duty after 14 hours (at worst) under the new rule, not after 15 hours,
as often happens under the current rule. But drivers will be allowed to
drive up to 11 hours, not the 10 hours of the current rule. Shorter on-
duty time, generally, but longer driving time.
This rule retains the current 60 hours on duty in any period of 7
consecutive days and 70 hours on duty in any period of 8 consecutive
day rules.
The new rule will allow any period of 7 or 8 consecutive days to
end with the beginning of any off duty period of 34 or more consecutive
hours.
[[Page 22505]]
Thus, the new rules in Sec. 395.3 would allow a driver of a
property-carrying vehicle, who is working under the 70-hour-in-8-day
rule, to start an 8-day period at 7 a.m. on Monday and remain on duty
for 14 hours each day (11 hours of which could be driving time). If the
driver reached the 70-hour limit at 9 p.m. Friday (14 hours/day x 5
days = 70 hours), he would not be able to drive again until 7 a.m. on
the following Tuesday (8 days after the start of the period) unless he
immediately began an off-duty period of 34 consecutive hours, in which
case he could begin driving again at 7 a.m. Sunday, which would be the
start of a new 70-hour-in-8-day period.
Likewise, a short-haul driver of a property-carrying vehicle who is
working under the 60-hour-in-7-day rule could start a 7-day period at 6
a.m. on Monday and remain on duty for 14 hours per day (11 hours of
which could be driving time) Monday through Wednesday, for a total of
42 on-duty hours. If the driver invoked the 16-hour exception in Sec.
395.1(o) on Thursday and returned to his work reporting location at 10
p.m., having been on duty for 15 of those 16 hours, he would have 3 on-
duty hours left (42 hours + 15 hours = 57 hours). In addition, the
driver could not return to duty for 10 consecutive hours, i.e., until 8
a.m. Friday morning. The driver could then drive from 8 a.m. until 11
a.m. on Friday, but could not drive again until 6 a.m. the following
Monday (7 days after the start of the period) unless he took 34
consecutive hours off duty starting at 11 a.m., in which case he could
begin a new 60-hour-in-7-day period at 9 p.m. Saturday.
Section 395.5 Maximum Driving Time for Passenger-Carrying Vehicles
Section 395.5 moves the current rules in Sec. 395.3 to this new
section exclusively for drivers of, and carriers using, passenger-
carrying vehicles. The current rules in Sec. 395.3 have been moved
here verbatim, though the agency has added the qualifying phrase of ``a
driver of a passenger-carrying vehicle'' since only these drivers may
use the current rules after this rule's effective date.
A driver of a passenger-carrying vehicle that does not use a
sleeper berth must not drive more than 10 hours following 8 hours off
duty. Such a driver also must not drive after having been on duty 15
hours following 8 hours off duty. This rule allows drivers to extend
the work day by taking off-duty time, including meal stops and other
rest breaks, of less than 8 hours duration other than sleeper berth
time. This rule retains the current 60 hours in 7 consecutive day and
70 hours in any period of 8 consecutive day rules.
Section 395.13 Drivers Declared Out of Service
The agency is revising Sec. 395.13 paragraphs (c)(1)(ii) and
(d)(2) to use the new off-duty, on-duty, and driving limits for drivers
of property-carrying vehicles, while maintaining the current off-duty,
on-duty, and driving limits for drivers of passenger-carrying vehicles.
Section 395.15 Automatic on-Board Recording Devices
The agency is revising Sec. 395.15 paragraph (j)(2)(ii) to also
use the new off-duty, on-duty, and driving limits for drivers of
property-carrying vehicles, while maintaining the current off-duty, on-
duty, and driving limits for drivers of passenger-carrying vehicles.
Rulemaking Analysis and Notices
Executive Order 12866
(Regulatory Planning and Review) and DOT Regulatory Policies and
Procedures
The FMCSA has determined that this document contains an
economically significant regulatory action under Executive Order 12866
because the FMCSA estimates this action will have an annual effect on
the economy of $100 million or more. The agency completed an RIA for
this final rule that projects net benefits of $1.1 billion per year to
society relative to the current rules with full compliance.
The FMCSA has also determined that this regulatory action is
significant under the regulatory policies and procedures of the DOT
because of the high level of interest concerning motor carrier safety
issues expressed by Congress, motor carriers, their drivers and other
employees, State governments, safety advocates, and members of the
traveling public.
Finally, the FMCSA has determined that this regulatory action is a
major rule under the Congressional Review Act, 5 U.S.C. 801 et seq. The
FMCSA discussed the RIA earlier in this document under the heading
Regulatory Impact Analysis.
Regulatory Flexibility Act
The ICCTA requirement for an ANPRM also began a review in
compliance with the Regulatory Flexibility Act's requirement under 5
U.S.C. 610 to determine whether the HOS rules should be continued
without change, should be amended, or should be rescinded, consistent
with the stated objectives of the applicable statutes, to minimize any
significant economic impact of the rules upon a substantial number of
small entities.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has evaluated the effects of this proposed rule on
small entities, including small businesses, small non-profit
organizations, and small governmental entities with populations under
50,000. Many of these small entities operate as motor carriers of
passengers or property in interstate or intrastate commerce.
Of the three alternatives evaluated in the RIA, only the PATT
alternative would result in significant, adverse financial impacts
(reduced profits) on most carriers. Although both the ATA alternative
and the FMCSA alternative affect carrier finances, the resulting
impacts generally would be favorable to carriers--that is, most
carriers could experience reduced costs under either alternative. Also,
all carriers would be impacted more favorably under the ATA alternative
than under the FMCSA alternative. These findings are consistent with
the cost results presented in Section 9 of the RIA. (See section 10.2
of the RIA for further discussion of the results by alternative.)
In general, smaller firms are hurt more (under the PATT
alternative) or helped less (under either the ATA alternative or the
FMCSA alternative) than are larger firms. Nevertheless, the RIA finds
that the FMCSA alternative will result in favorable impacts on all
carriers (including owner/operators with one tractor) except for firms
in the 2-9 tractor size category. Firms in the 2-9 tractor size
category are initially expected to lose approximately 8 percent of
their net income, compared to the current rules with full compliance.
For the median firm in this category, this results from a loss of
approximately 0.5 of revenue per carrier, about $2,700. Revenue will
fall from about $534,000 to about $531,000.
This reduction is based on industry-wide adjustments, as the wage
rate and price of trucking are both expected to drop when compared to
the current rules with full compliance. Wages will decline somewhat
less than trucking rates. The analysis used several conservative
assumptions in estimating the impact on these small carriers.
Specifically, the agency assumed that shipping prices drop immediately
(lowering revenue to carriers), while shipments grow more slowly
(delaying carriers revenue growth). Realistically, both these
adjustments are likely to take some time, so that the overall impact on
these carriers is likely to be smaller than estimated in our analysis.
As soon as carriers increase shipments to take
[[Page 22506]]
advantage of these extra hours, carrier revenue and net income will
return to, or surpass, their current levels. (See RIA section 10.3 for
further information addressing differential impacts on carriers in
different size categories.)
The entities affected by the HOS rules include long-haul and short-
haul operations. Chapter 10 of the RIA presents detailed analyses of
the effects of the rules on long-haul operations, and shows that any
adverse effects of the FMCSA option on small entities would be slight
and of very limited duration. That chapter did not examine firms
engaged in short-haul trucking due to the small magnitude of the rule's
effects on short-haul operations. The FMCSA, however, offers a fuller
explanation of the reasons for expecting minimal short-haul impacts
here.
The FMCSA has divided this analysis into five sections, covering
the affected entities; the definitions of ``small'' used for the
analysis; the number of small entities; the thresholds used for the
analysis; the costs of the HOS rules, on average and for the most
affected firms; and the factual determination of the numbers of small
entities significantly affected.
The basic findings of this analysis are that, although large
numbers of small entities are affected by the HOS rules regarding
short-haul operation, no significant impacts are projected for
substantial numbers of these small entities. The FMCSA finds that among
trucking companies, the most heavily affected 7.5 percent of small
firms bear costs that average less than 0.8 percent of revenues. Among
non-trucking companies that have short-haul operations incidental to
their main business, the impacts are even smaller: the most affected
small firms bear costs no higher than 0.03 percent of revenues.
Affected Entities
Short-haul operations include three basic types of firms:
1. For-hire LTL firms;
2. For-hire TL firms with short average hauls, including local
hauls; and
3. Firms in industries other than trucking that operate fleets in
short-haul operations for their own purposes (i.e., private carriage).
The LTL firms engage both long-haul and short-haul operations.
Their long-haul operations are generally scheduled terminal-to-terminal
runs, which are unlikely to be affected by the HOS rules. Their short-
haul operations involve runs from shippers to the terminals to collect
freight for the long-haul runs, and then from the terminals to the
ultimate destinations for the freight. LTL firms tend to be large, with
35 companies accounting for 85 percent of revenue. The rest of the for-
hire firms include both firms that provide local pick-up and delivery
services for LTL firms and firms that deliver cargos locally or within
a short range. Firms involved in private carriage span a very wide
range of industries, including construction; stone, clay, glass, and
concrete; groceries and related products; eating and drinking places;
and repair services. One common type of operation is the delivery of
product along a route to numerous retail outlets.
Definition of Small Firms
To determine how many small affected firms there are, we first
identified industries in which at least one percent of all employees
are truck drivers, using data from the Current Population Survey for
2000. These industries are shown in Table 20, along with SBA's size
thresholds distinguishing small and large firms.
Table 20.--Small Business Administration's Size Standard for Small Businesses by North American Industry
Classification System (NAICS)
----------------------------------------------------------------------------------------------------------------
Size standard in
Industry NAICS millions of dollars Size standard in number of employees
----------------------------------------------------------------------------------------------------------------
Trucking or For-Hire............ 484110, 484210, $21.50............. Not Applicable.
484220.
Private......................... ................... Not Applicable.....
Ag, forest, fisheries........... 11................. 0.75-6.0........... 500.
Groceries and related products.. 4224............... Not Applicable..... 500.
Stone, clay, glass, concrete.... 327................ Not Applicable..... 500-1000.
Mining.......................... 21................. 6.0................ 500.
Eating and Drinking Places...... 445................ 6.0-23.0........... Not Applicable.
Wholesale trade (excludes 42................. Not Applicable..... 500.
Groceries).
Petroleum + coal products....... 324................ Not Applicable..... 500-1500.
Construction.................... 23................. 12.0-28.5.......... Not Applicable.
Food and kindred products....... 311, 312........... Not Applicable..... 500-1000.
Lumber, wood products, furniture 321, 337........... Not Applicable..... 500.
Transportation, communications, 22, 492, 51........ 6.0-25.0........... 500-1,500.
utilities, except trucking.
Retail trade (excludes Eating 44, 451, 452, 453, 6.0-24.5........... Not Applicable.
and Drinking Places). 454.
Pulp, Paper, Printing........... 322, 323........... Not Applicable..... 500-750.
----------------------------------------------------------------------------------------------------------------
These thresholds tend to be at least at the level of 500 employees,
or (where the thresholds are not based on employment) in the range of
$6 to $25 million in revenues.
Size Distributions and Numbers of Firms
Table 21 shows the breakdown of firms in these industries in terms
of employment. An estimate of the numbers of small firms is shown in
the column at the right, using the size distribution and the
approximate size cutoffs developed by SBA. In all affected industries,
the large majority of firms are small. In all, over two million
affected firms fall into the category of small firms.
[[Page 22507]]
Table 21.--Distribution of Firms by Size, in Year 2000
----------------------------------------------------------------------------------------------------------------
Number of firms
---------------------------------------------------------------
Approximate
Industry: \1\ Employment Employment 20- Employment number of
less than 20 500 500+ small firms
\2\
----------------------------------------------------------------------------------------------------------------
Short-haul Trucking or For-Hire................. 54,281 4,943 227 56,752
Non-Trucking:
Agriculture, forest, fisheries.............. 23,814 1,539 97 25,353
Groceries and related products.............. 27,074 5,515 451 32,589
Stone, clay, glass, concrete................ 7,784 3,319 352 11,103
Mining...................................... 15,880 2,541 335 18,421
Eating and Drinking Places.................. 105,595 11,455 447 111,323
Wholesale trade (excludes Groceries)........ 301,595 49,258 3,300 350,853
Petroleum + coal products................... 633 363 140 996
Construction................................ 639,129 61,812 1,006 670,035
Food and kindred products................... 17,876 5,842 672 23,718
Lumber, wood products, furniture............ 25,414 8,460 499 33,874
Transportation, communications, utilities, 79,844 13,302 1,351 93,146
except trucking............................
Retail trade (excludes Eating & Drinking)... 841,109 83,204 3,385 882,711
Pulp, Paper, Printing....................... 31,899 8,363 574 40,262
-----------------
Total................................... 2,171,927 259,916 12,836 2,351,136
----------------------------------------------------------------------------------------------------------------
\1\ Industries in which drivers represent less than 1% of the labor force are not presented in the table.
\2\ Assumes small firms are those with 500 or fewer employees for industries with employment-based cutoffs. For
other industries, the number of small firms was assumed to be all of those with employment below 20, and half
of those with employment between 20 and 500.
Source: Statistics of U.S. Businesses (SUSB), developed by U.S. Census Bureau for SBA, retrieved from SBA Office
of Advocacy Web site http://www.sba.gov/advo/stats/us88_00.pdf.
Thresholds Used for This Analysis
To construct a factual basis for certifying that the rules will not
impose significant costs on substantial numbers of small entities, the
FMCSA must select thresholds for significant costs and substantial
numbers. Selecting these thresholds is complicated, but not rendered
impossible, by the lack of an accepted definition for either
significant or substantial. The FMCSA started by considering the
standard practices in other federal agencies. In general, a test of
costs to revenues is more common than a test of costs to profit or
other measures. The FMCSA believes that, because profit levels are
harder to measure, comparing costs to revenues is more appropriate for
this analysis. In the HOS case, the FMCSA considers a profit test to be
misleading because typical profit levels are not likely to be
reflective of the profitability of the most affected entities. The
FMCSA bases this observation on the specific way that the rules affect
firms. Because the rules limit maximum working and driving hours, they
will affect only operations in which drivers and equipment are
intensely utilized--those in which drivers habitually work more than 13
hours per day. These operations will tend to bring in the most revenues
per driver, will have the greatest ability to spread out their
overhead, capital, and fringe benefit costs, and are likely to have the
most stable and predictable operations (given the frequency of high-
utilization days). Furthermore, they will tend to have the lowest wage
costs per hour (as explained in Chapter 6 of the RIA). Thus, the FMCSA
can expect that the most efficient and profitable firms are over-
represented among the most heavily affected operations. Firms that are
among the most affected by the HOS rules can still operate more
efficiently (in terms of the intensity of work by their drivers) than
large majorities of their competitors, and can therefore still be
competitive. These observations minimized the need to compare large
impacts to average profit rates as a way to judge whether the rules
would have significant impacts.
In setting the threshold for ascertaining no significant impacts,
the FMCSA selected a threshold of costs equal to one percent of
revenues because a low threshold would minimize the chance of
inappropriately certifying the rules. The FMCSA notes that this
threshold is only one third as high as the 3 percent cut-off used by:
the Environmental Protection Agency's (EPA) Office of Air and
Radiation; EPA's Office of Prevention, Pesticides, and Toxic
Substances; EPA's Office of Water; and EPA's Office of Solid Waste and
Emergency Response. It is only one fifth of that used by Department of
Commerce's National Marine Fisheries Service, at the low end of the
range used by DOT's Federal Aviation Administration, and no higher than
that used by the Department of Health and Human Service's Food and Drug
Administration or Department of Labor's Occupational Safety and Health
Administration (OSHA). Though the use of these thresholds by other
agencies does not prove that a threshold of costs equal to 1 percent of
revenues is not significant, it does show that it is not out of line
with other estimates.
For setting the threshold for substantial numbers, we have selected
10 percent of the small entities. This value, which is an order of
magnitude smaller than the population as a whole, is considerably below
the 20 percent selected by several EPA offices. These thresholds are
not intended to set precedents for other regulations, and are not
intended to imply that any cost above 1 percent revenues is a
significant impact, nor that more than 10 percent is a substantial
number.
Estimation of Cost Impacts
The FMCSA's method for estimating the costs imposed by the FMCSA
option on short-haul operations is described in detail in Chapters 5
and 6 of the RIA. Here, the agency provides a brief summary of that
approach.
The two main parts of the method are, first, the estimation of the
change in labor productivity resulting from the HOS rules, and second,
the estimation of the costs of that change in productivity. To estimate
the change in labor productivity on short-haul operations, the agency
first determined that the daily limits on work are more important
constraints to short-haul operations than the weekly limits. Second,
the agency constructed a
[[Page 22508]]
distribution of desired hours of daily work for short-haul drivers.
This was based on two sets of data: the Hanowski, Wierwille, Garness,
and Dingus focus group study of short-haul work patterns for
determining the distribution of average hours of work per day; and
Balkin et al. (Walter Reed Army Institute of Research) Field Study,
which provided an estimate of the day-to-day variability in hours
worked. Using the distribution of desired hours of daily work, the
agency was able to estimate the number of times when the FMCSA option
would limit a driver's work. The agency found that, compared to the
current rules, the FMCSA option would reduce the hours that short-haul
drivers could work by an average of 0.7 percent.
For some drivers, the rules would limit their working hours more
frequently. Six out of 81 short-haul drivers (or about 7.5 percent)
reported working an average of 13 hours per day or more, and the
estimated impact on their work amounted to a reduction of 4.3
percent.\3\ The impact on a firm employing one of the most affected
drivers would depend on whether the firm also has other drivers who are
less severely affected by the rules. In the extreme, a firm whose
drivers were all among the hardest-working 7.5 percent of the industry
would have the productivity of its entire staff of drivers reduced by
4.3 percent.
---------------------------------------------------------------------------
\3\ These estimates could somewhat overstate the impacts of the
HOS rules, because they considered only the effects of the daily
rules: very intense daily schedules could cause drivers to be
limited by the weekly HOS rules. Working 13 hours per day for 5
days, for example, results in 65 hours of work, which would exceed
the 60 hours allowed per 7 days.
---------------------------------------------------------------------------
These changes in productivity are translated into changes in costs
using the method described in Chapter 6 of the RIA. The results of that
analysis, and a brief summary of how it was conducted, is presented
below.
Translation of Productivity Changes Into Cost Impacts
Under the FMCSA option for the short-haul segment discussed in the
RIA, the agency showed an increase in labor demand by about 0.7
percent. That translated to a cost increase of about $168 million for
the short-haul/local segment (see Exhibit 9-3 in the RIA). The FMCSA
also estimated short-haul total revenue of $198 billion (see Exhibit 3-
1 in RIA), implying a 0.08 percent increase in costs in terms of their
revenue. Under the worst-case scenario analyzed as part of the impact
on small businesses, a 4.3 percent increase in labor demand translates
to a corresponding cost increase for short-haul of about $1.32 billion
or a 0.67 percent increase as a share of short-haul revenue. Table 22
shows the breakdown of the cost increases for these two scenarios.
The labor cost changes are calculated based on the wage-hours
worked relationship estimated for truck drivers from the Current
Population Survey data. The details of the estimated wage equation are
explained in Chapter 6, Sections 2 and 3 in the RIA. Under the worst-
case scenario, a 4.3 percent increase in labor demand means that the
short-haul segment would have to hire the equivalent of 64,500 new
drivers (though smaller firms are assumed to be able to increase their
use of part-time drivers rather than adding a whole employee) at 0.67
percent increase in their costs as a share of revenue. The percentage
increase in costs is smaller than the drop in productivity by the
existing drivers because the pay for the new drivers (or additional
part-time labor) is offset by reductions in the pay for the existing
drivers whose hours are limited. Under this scenario, firms incur $2.7
billion in driver labor costs for the new drivers or part-time drivers
used to make up for the hours that existing drivers cannot work, but
save $1.9 billion in avoided labor costs, giving a net labor cost of
$786 million. Corresponding increases in the other cost categories are
for new equipment and facilities for the 64,500 new drivers, as well as
for hiring other types of workers related to the hiring of new drivers
(``non-driver labor''--see explanation in RIA Chapter 6).
Table 22.--Direct Cost Changes for the Short-Haul Under FMCSA Option
[(Million of Dollars) (Values in parentheses are negative)]
------------------------------------------------------------------------
Proposed
Scenario modeled option Worst-case
------------------------------------------------------------------------
Change in Labor Demand (percent)................ 0.7 4.3
Change in Number of Drivers..................... 10,500 64,500
Driver Labor Cost: 90 786
Avoided Labor Wages........................... (298) (1,774)
Avoided Labor Benefits........................ (17) (106)
New Labor Wages............................... 309 2,034
New Labor Benefits............................ 96 631
Other Costs: 78 536
Non-driver Labor.............................. 4 31
Trucks........................................ 33 249
Parking....................................... 10 58
Insurance..................................... 7 43
Maintenance................................... 12 75
Recruitment................................... 13 80
-------------
Total................................... 168 1,322
=============
Cost Increase as Share of Short-Haul Revenue 1.. 0.08 0.67
------------------------------------------------------------------------
1 Assuming short-haul total revenue of $198 billion ($76 billion + $122
billion). See Exhibit 3-1 in the RIA.
Sensitivity Analysis for Higher Impacts on Smaller Firms
These estimated changes in costs apply to all firms, not to small
entities in particular. Some types of regulation tend to hit small
firms harder than large firms, generally because they impose costs that
are the same for all firms, or require equipment that exhibits
substantial economies of scale. Small firms tend to have higher per-
unit costs of compliance with these kinds of regulations because they
have fewer units of output over which to spread the regulatory costs.
The FMCSA does not consider the HOS rules to fall into that category of
regulations, however, because the costs they impose affect individual
drivers, not firms. Thus, total cost impacts are likely to be roughly
proportional to the number of drivers, and costs for small firms will
not tend to be out of proportion with costs for large firms.
In recognition of the SBA's finding that small businesses shoulder
costs 60 percent greater that large businesses, the FMCSA conducted a
sensitivity analysis that assumed costs were higher for small firms.
See page 24 of ``The Regulatory Flexibility Act: an Implementation
Guide for Federal Agencies,'' The Office of Advocacy, U.S. Small
Business Administration, November 2002, http://www.sba.gov/advo/laws/rfaguide.pdf.
To calculate a more conservative cost impact for small
firms using SBA's finding, the agency started with the distribution of
employment by number of employees across all for-hire trucking firms.
This distribution is shown in Table 23.
[[Page 22509]]
Table 23.--Calculation for Sensitivity Analysis
----------------------------------------------------------------------------------------------------------------
Employment
Trucking or For-Hire less than Employment Employment Total
20 20-500 500+
----------------------------------------------------------------------------------------------------------------
Number of Short-Haul Firms.................................. 54,281 4,943 227 59,451
Number of Employees......................................... 202,116 225,180 64,493 491,789
Distribution of Employees (percent)......................... 41 46 13 100
Average Impact per Firm (percent)........................... ........... ........... ........... 0.67
Magnitude of Impact by Firm Size............................ 1.6 x 1.3 x x ...........
Adjusted Average Impact per Firm (percent).................. 0.775 0.629 0.484 0.670
----------------------------------------------------------------------------------------------------------------
Source: Statistics of US Businesses (SUSB), developed by U.S. Census Bureau for SBA and FMCSA calculations.
Under the worst-case scenario, the agency estimates that, on
average, a short-haul firm will bear a burden equal to a 0.67 percent
increase in its costs as a share of revenue. An SBA study completed in
2001 shows that the economic impact on a firm with less than 20
employees may be up to 60 percent greater per employee than on firms
with more than 500 employees, see ``The Regulatory Flexibility Act,
Implementation Guide for Federal Agencies,'' November 2002, which cites
W. Mark Crain and Thomas D. Hopkins, ``The Impact of Regulatory Costs
on Small Firms'' (Springfield, Va.: National Technical Information
Service, 2001). As a result, the FMCSA adjusts the ``worst-case''
impact estimate to account for the possible disparity of the regulatory
impact across firms. The adjustment is based on firms' size and
employees' distribution. As no information is available on the
magnitude of economic impact on firms with 20 to 500 employees relative
to the firms in other size categories, we assume that the impact on
firms in this category is equal to the average of impacts on firms in
the other two size categories (i.e., that the impact is 30 percent
greater for the mid-size firms as for the large firms, and an
equivalent amount less than the impacts on the smallest firms). The
adjusted average impact per firm was found by setting up the following
equation for X, the average impact per firm with more than 500
employees:
41 percent * 1.6 * X + 46 percent * 1.3 * X + 13 percent * X = 0.67
percent Rearranging terms and solving, the FMCSA finds that X= 0.484
percent. The agency second multiplies X by 1.6 to calculate the average
economic impact on firms with less than 20 employees. The agency's
results show that economic impact on firms with less than 20 employees
is 0.775 percent of revenues, which is below the threshold of
significance chosen for this analysis.
Estimation of Costs for Non-Trucking Companies
The cost impact for non-trucking companies is calculated on the
basis of the cost increases per existing driver. Assuming there are 1.5
million existing short-haul/local drivers (see Exhibit 6.7 in RIA), a
$1.32 billion cost increase means that firms face an increase of $881
per existing driver. Given the distribution of drivers from the Current
Population Survey, the agency chose industries that employed a
substantial number of drivers, and calculated the increase in their
operating costs due to the FMCSA option. Table 24 shows these selected
sectors and the estimated number of drivers they employed in 2000.
Among non-trucking industries that use drivers, construction (NAICS
23) bears the largest dollar impact, followed by the eating and
drinking places (NAICS 445), under the retail industry. Another
industry segment that has a relatively large impact is the groceries
and related products sector (NAICS 4224). However, for all these and
the others in Table 24, the increase in cost as share of their labor
cost is very small (second from last column). In these terms, the
highest impact is for the agriculture sector (0.35 percent), probably
because labor costs are not so well-defined for mostly family-owned
farms. For all the other sectors, impacts are significantly lower than
1 percent of labor costs, since driver labor is a relatively small
fraction of their total labor costs.
The cost impacts are even lower when the agency calculates them in
terms of their total revenue (last column in Table 24). Similar to the
reasoning given above, since labor costs are only a small portion of
most industries' total costs (or total revenue), the impact of the
worst-case scenario is significantly smaller than one percent, with the
highest impact shown for the stone, clay, glass, and concrete industry
(NAICS 327) at 0.03 percent.
Table 24.--Worst-Case Scenario Impact on Different Industry Segments
----------------------------------------------------------------------------------------------------------------
Cost
increase Cost
Short-haul Number of due to increase as Cost
Private industry classification drivers in short-haul worst-case share of increase as
total labor drivers in option labor costs share of
(%) 2000 (millions (%) revenue (%)
of dollars)
----------------------------------------------------------------------------------------------------------------
Agriculture, Forest, Fisheries................. 11.2 18,375 17 0.35 0.01
Groceries & Related Products................... 7.3 64,233 57 0.18 0.01
Stone, Clay, Glass, Concrete................... 6.6 34,793 31 0.16 0.03
Mining......................................... 4.6 20,965 18 0.08 0.01
Eating & Drinking Places....................... 2.7 82,076 72 0.15 0.02
Petroleum & Coal Products...................... 2.0 2,230 2 0.03 0.001
Construction................................... 1.6 103,487 91 0.04 0.01
Food & Kindred Products........................ 1.6 26,318 23 0.05 0.004
Lumber, Wood Products, Furniture............... 1.4 17,843 16 0.05 0.01
Transportation, communications, utilities, 1.4 68,694 61 0.02 0.01
(excludes For-Hire Trucking)..................
Pulp, Paper, Printing.......................... 1.0 14,274 13 0.02 0.005
Wholesale Trade, (excludes Groceries & Related 2.5 134,265 118 0.05 0.003
Prod).........................................
[[Page 22510]]
Retail Trade, (excludes Eating & Drinking 1.1 179,317 158 0.05 0.01
Places).......................................
----------------------------------------------------------------------------------------------------------------
Given that the estimated impacts, expressed both in terms of labor
cost shares and revenue shares, are well below 1 percent of their
revenue, the FMCSA does not expect this rule to have any significant
impact on small businesses in the short-haul private sector.
Therefore, the FMCSA, in compliance with the Regulatory Flexibility
Act (5 U.S.C. 601-612), has considered the economic impacts of these
requirements on small entities and certifies that this final rule does
not have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires each agency to
assess the effects of its regulatory actions on State, local, and
tribal governments and the private sector. Any agency promulgating a
final rule resulting in a Federal mandate requiring expenditure by a
State, local or tribal government or by the private sector of
$100,000,000 or more in any one year must prepare a written statement
incorporating various assessments, estimates, and descriptions that are
delineated in the Act. In light of the fact that revisions to the HOS
regulations is a major rule that would cost motor carriers more than
$100,000,000 in a given year, the FMCSA has prepared the following
statement which addresses each of the elements required by the Unfunded
Mandates Reform Act of 1995. Most of these required elements have
already been covered in the regulatory impact analysis, and the
sections of that evaluation containing the preexisting analyses are
referenced in this statement. Any elements not included in the final
regulatory evaluation have been addressed directly in this statement.
Qualitative and Quantitative Assessment of Costs and Benefits
The Unfunded Mandates Reform Act requires a qualitative and
quantitative assessment of the anticipated costs and benefits of this
Federal mandate. The options discussed in this final rule would cost
between $744 million and $5.5 billion per year, relative to the Status
Quo. The FMCSA option would cost an estimated $1.3 billion per year.
Relative to the status quo with full compliance, the options will cost
between positive $3.4 billion and negative $1.4 billion per year
(meaning that they will result in cost savings). The FMCSA option would
result in savings of about $900 million per year. Cost estimates are
discussed in chapter 9 of the RIA. The cost applies only to motor
carriers subject to the FMCSRs. The final rule does not impose any cost
on State, local, or tribal governments.
The FMCSA estimates that the annual monetary value of the benefits
ranges from $170 million to $780 million, relative to the status quo.
The FMCSA staff alternative has a benefit of $670 million. Relative to
the status quo with full compliance, the alternatives yield net
benefits of $1.2 billion to negative $3 billion. The FMCSA staff
alternative yields a net benefit of $1.1 billion relative to the
current rules with full compliance. The development of these estimates
is discussed in the RIA chapter 9.
Effect on Health, Safety, and the Natural Environment
The Unfunded Mandates Reform Act also states that the FMCSA must
discuss the effect of the Federal mandate on health, safety, and the
natural environment. The FMCSA prepared an environmental assessment,
which has been placed in the docket, which shows that this proposal
would not have a significant impact on the natural environment.
The effects of this rule on health and safety will be much more
significant: the primary benefit of this proposal would be a reduction
in accidents. The FMCSA estimates that this final rule, when motor
carriers adhere to it fully, would save between 24 and 75 lives each
year as compared to complying fully with the current rules. Injuries
will experience a commensurate fall. The RIA explains these estimates
in detail in Chapters 8 and 9.
Federal Financial Assistance
Section 202(a)(2)(A) of the Unfunded Mandates Reform Act requires
that this qualitative and quantitative assessment of costs and benefits
include an analysis of the extent to which costs to State, local, and
tribal governments may be paid with Federal financial assistance or
otherwise paid for by the Federal Government. Since this rule is
applicable only to motor carriers subject to the Federal Motor Carrier
Safety Regulations, there is no cost to State, local, and tribal
governments. Therefore, no Federal funds for these entities will be
necessary for motor carriers to comply with the proposed requirements.
Future Compliance Costs
To the extent feasible, section 202(a)(3) of the Unfunded Mandates
Reform Act requires estimates of the future compliance costs of this
Federal mandate and any disproportionate budgetary effects upon
particular regions, or upon urban, rural, or other types of
communities, or upon particular segments of the private sector. There
are no disproportionate budgetary effects upon particular regions, or
upon urban, rural, or other types of communities. The RIA included an
analysis of the impact of the option on various regions, using the REMI
Policy Insight TM Model. The model showed no significant
disparate impact on any region. These impacts are discussed in chapter
11 of the RIA.
Effect on the National Economy
Section 202(a)(4) of the Unfunded Mandates Reform Act requires
estimates of the effect on the national economy, such as the effect on
economic growth, full employment, creation of productive jobs, and
international competitiveness. The REMI model mentioned above also
yielded an estimate of the macroeconomic costs of the options. Relative
to the status quo with 100 percent compliance, FMCSA estimates that the
impact on gross regional product (GRP) will be minimal, less than 0.1
percent of GRP for all the alternatives. One alternative would reduce
GRP by almost $12 billion per year, while all other alternatives would
result in a small increase in GRP. Because the overall driving time for
most CMV drivers would not change, the FMCSA does not believe the
[[Page 22511]]
alternatives would have a significant impact on full employment or the
creation of productive jobs. The FMCSA also does not believe that the
proposal would have any significant impact on international
competitiveness.
Prior Consultations With Elected Representatives of Any Affected State,
Local, or Tribal Governments
This rule does not require action by State, local, or tribal
governments. Therefore, no prior consultations with elected
representatives of these governments were initiated.
Decision To Impose an Unfunded Mandate
When Congress created FMCSA, it provided that, ``[i]n carrying out
its duties the Administration shall consider the assignment and
maintenance of safety as the highest priority * * * '' [49 U.S.C.
113(b)]. As indicated above, Sec. 408 of the ICCTA directed the
agency--then part of the FHWA--to begin rulemaking dealing with a
variety of fatigue-related safety issues, including ``8 hours of
continuous sleep after 10 hours of driving, loading and unloading
operations, automated and tamper-proof recording devices, rest and
recovery cycles, fatigue and stress in longer combination vehicles,
fitness for duty, and other appropriate regulatory and enforcement
countermeasures for reducing fatigue-related incidents and increasing
driver alertness) * * * '' [109 Stat. 958]. The agency's statutory
focus on safety and the specific mandate of Sec. 408 both demand that
this rulemaking improve CMV safety.
The FMCSA analyzed three alternative regulatory proposals in depth.
Compared to the status quo, which includes a degree of non-compliance
with the current HOS rules, the option proposed by the ATA would have
marginally reduced fatigue-related fatalities and somewhat increased
the cost of regulatory compliance. This results in a negative cost/
benefit ratio. The option suggested by PATT would have reduced
fatalities far more than the ATA option, but would have generated
significant increases in compliance and operational expenses. This
results in a cost/benefit ratio far more negative than the ATA option.
The third alternative was proposed by the FMCSA staff. The analysis
shows that this option would save many more lives than the ATA
alternative, though not quite as many as the PATT option. While it
would cost more than the ATA option, it would be much cheaper than the
PATT alternative. The net result is a cost/benefit ratio slightly more
negative than the ATA option but not nearly as negative as the PATT
option.
The FMCSA has adopted the third alternative for this final rule.
The rule represents a substantial improvement in addressing driver
fatigue over the current regulation. Among other things, it increases
required time off duty from 8 to 10 consecutive hours; prohibits
driving after the end of the 14th hour after the driver began work;
allows an increase in driving time from 10 to 11 hours; and allows
drivers to restart the 60-or 70-hour clock after taking 34 hours off
duty. Together, these provisions (and others discussed in detail below)
are expected to reduce the effect of cumulative fatigue and prevent
many of the accidents and fatalities to which fatigue is a contributing
factor. Because the agency's statutory priority is safety, we have
adopted a rule that is marginally more expensive than the ATA option
but which will reduce fatigue-related accidents and fatalities more
substantially than that option. The FMCSA believes that the rule
represents the best combination of safety improvements and cost
containment that can realistically be achieved, even though it imposes
an unfunded mandate.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information (IC)
they conduct, sponsor, or require through regulations. The FMCSA has
determined that this final rule will affect a currently approved
information clearance for OMB Control Number 2126-0001, titled ``Record
of Duty Status (RODS).'' The OMB approved this information collection
on March 4, 2002, at a revised total of 161,364,492 burden hours, with
an expiration date of March 31, 2005.
Comments received on the information collection proposed in the
NPRM are discussed above under the heading ``Electronic On-board
Recorders (EOBRs).'' The NPRM proposed that the title of this
information collection be changed to ``Hours of Service of Drivers
Regulations.'' The FMCSA believes that this title is more appropriate.
The FMCSA did not receive any comments on the change of title for this
IC. Therefore, today the supporting statement sent to OMB will bear the
revised title change.
The PRA requires agencies to provide a specific, objectively
supported estimate of burden that will be imposed by the information
collection. See 5 CFR 1320.8. The paperwork burden imposed by the
FMCSA's RODS requirement is set forth at 49 CFR 395.8. Paragraph (a)(1)
requires drivers to record their duty status. Paragraph (f)(8)(i)
requires them to submit the RODS to their motor carrier. Paragraph (k)
requires motor carriers to maintain the RODS and all supporting
documents for each driver it employs for a period of six months from
the date of receipt. The currently-approved information collection for
RODS does not include time and cost burdens associated with the
collection and retention of supporting documents because these costs
were calculated into past paperwork burdens (See 47 FR 53383, 53389
(Nov. 26, 1982) and 63 FR 19464).
As noted in the preamble to this rule, under the above heading
``Compliance and Enforcement,'' the FMCSA collects this information to
ensure motor carriers comply with the HOS regulations. The HOS
regulations require motor carriers be responsible for and police the
actions of its employees, including the actions of independent
contractors and owner operators they use. Likewise, each motor carrier
must have a system in place that allows it to effectively monitor
compliance with the FMCSRs, especially those aimed at the issue of this
final rule--HOS to increase driver alertness and reduce fatigue-related
incidents.
This final rule does not amend the language of section 395.8. The
new HOS rule, like the current rule, does not limit the length of time
a person can be on duty. The current rule states that a driver cannot
drive after being on duty for 15 hours, but the driver could remain on
duty indefinitely. This aspect of the current rule will continue to be
applicable to drivers of passenger-carrying CMVs. This final rule,
however, will not enable a driver of a property-carrying CMV to drive
after being on duty after the end of the 14th hour after coming on
duty, but such a driver also can remain on duty indefinitely. Because
there will be a requirement for 10 consecutive hours off duty, most
property-carrying CMV drivers will usually go off duty after 14 hours
(at worst) under this final rule, not after 15 hours, as often happened
under the current rule and will continue to happen for drivers of
passenger-carrying CMVs. But property-carrying CMV drivers will now be
allowed to drive up to 11 hours, not the 10 hours of the current rule
that will be applicable to passenger-carrying CMV drivers only. Thus,
this final rule will allow property-carrying CMV drivers shorter on-
duty time, generally, but longer driving time.
[[Page 22512]]
The agency believes that the industry will respond to this HOS
requirement for property-carrying CMV drivers by employing, over a
period of time, an estimated 48,000 fewer property-carrying CMV
drivers, compared to the current rules with full compliance. Thus, this
final rule will bring about a small decrease in the estimated 4.2
million drivers required to complete and maintain the RODS. This final
rule and a supporting statement reflecting this small decrease in
burden hours have been submitted to OMB.
You may submit comments on this adjustment in the information
collection burden directly to OMB. The OMB must receive your comments
by July 28, 2003. You must mail or hand deliver your comments to:
Attention: Desk Officer for the Department of Transportation, Docket
Library, Office of Information and Regulatory Affairs, Office of
Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC
20503.
National Environmental Policy Act
The FMCSA analyzed the three alternatives in the RIA as required by
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
and DOT Order 5610.1C. The FMCSA evaluated impacts in terms of the
percent change from the status quo (No Action Alternative). ``Minor''
is defined here as a 0 to 1 percent change from the status quo (0 plus/
minus 1 percent), while ``Moderate'' is defined as a plus/minus 10
percent or greater change. Note that the FMCSA measured these impacts
as change from the No Action Alternative (i.e. not from the Full
Compliance Alternative). As shown in Table 25 (Environmental Assessment
Table 22), none of the Alternatives would have a significant adverse
impact on the human environment and all of the Alternatives would have
beneficial impacts in some impact areas. None of the Alternatives
stands out as environmentally preferable, when compared to the other
Alternatives.
Table 25.--Comparison of Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact area No action Full compliance PATT alternative ATA alternative FMCSA alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Pollutant Emissions from No Change............. Minor Benefit (0.5 Moderate Impact (2 Minor Benefit (1 Minor Impact (0.6
Affected CMVs. percent decrease). percent increase). percent decrease). percent increase).
Air Pollutant Emissions from No Change............. Minor Benefit (0.02 Moderate Impact (0.09 Minor Benefit (0.01 Minor Impact (0.03
Transportation. percent decrease). percent increase). percent decrease). percent increase).
Land Use........................... No Change............. Minor Induced Impact Minor Induced Impact No Impact............ No Impact.
(2,350 acres). (3,408 acres).
Sensitive Resources................ No Change............. Minor Potential Impact Minor Potential No Impact............ No Impact.
Impact.
Noise.............................. No Change............. No Change............. Minor Impact Minor Benefit Minor Impact
(unquantifiable). (unquantifiable). (unquantifiable).
Safety............................. No Change............. Major Benefit ($443 Major Benefit ($783 Major Benefit ($170 Major Benefit ($671
million per year). million per year). million per year). million per year).
Socioeco[chyph]nomic Effects....... No Change............. Minor Impact Minor Impact Minor Impact Minor Impact
(unquantifiable). (unquantifiable). (unquantifiable). (unquantifiable).
Transportation Energy Consumption.. No Change............. Minor Benefit (less Minor Impact (0.1 Minor Benefit (0.1 Minor Impact (0.1
than 0.1 percent percent increase). percent decrease). percent increase).
decrease).
Environmental Justice.............. No Impact............. No Impact............. No Impact............ No Impact............ No Impact.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Environmental Assessment for Hours of Service (HOS) Rule, Table 22.
This final rule's environmental assessment and finding of no
significant impact (FONSI) are in the docket.
Executive Order 13211 (Energy Supply, Distribution, or Use)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. As a part of the environmental assessment, the
FMCSA analyzed the three alternatives discussed earlier in this final
rule.
The greatest reduction in energy consumption would occur under the
ATA alternative and the greatest increase would occur under the PATT
alternative. The FMCSA alternative would increase consumption, but to a
lesser degree than the PATT alternative. Energy consumption would
decrease under the Full Compliance alternative, but to a lesser degree
than the ATA alternative. Table 26 shows that the energy consumption
effects of the alternatives would range from a reduction of 1 percent
to an increase of 2 percent in energy consumption for the affected CMV
operations. Effects on energy consumption by all medium and heavy-duty
trucks would range from a 0.3 percent reduction to a 1.2 percent
increase. Effects of the alternatives on energy consumption from all
transportation sources would range from a 0.1 percent reduction to a
0.2 percent increase. From a national energy consumption perspective,
the PATT alternative has a net increase in energy consumption of about
one tenth of one percent. All other alternatives have essentially a
zero effect on national energy consumption. The FMCSA does not consider
these effects to be significant.
Table 26.--Net Change in Energy Consumption by Consumer by Alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
No action
Energy consumer alternative Full compliance baseline PATT alternative ATA alternative FMCSA alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Affected CMV Operations....... 0 (0.05 percent)............ 2.0 percent.............. (1.0 percent)............ 0.6 percent.
Medium and Heavy Duty Trucks.. 0 (0.03 percent)............ 1.2 percent.............. (0.6 percent)............ 0.4 percent.
Total Transportation.......... 0 (0.01 percent)............ 0.2 percent.............. (0.1 percent)............ 0.1 percent.
[[Page 22513]]
Total U.S..................... 0 (0.00 percent)............ 0.10 percent............. (0.00 percent)........... 0.00 percent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Environmental Assessment for Hours of Service (HOS) Rule, Table 21.
In accordance with Executive Order 13211, the agency prepared a
Statement of Energy Effects for this final rule. A copy of this
statement is in Appendix D to the environmental assessment.
Executive Order 12898 (Federal Actions to Address Environmental Justice
in Minority Populations and Low Income Populations)
The FMCSA evaluated the environmental effects of the Proposed
Action and alternatives in accordance with Executive Order 12898 and
determined that there were no environmental justice issues associated
with revising the hours of service regulations. Environmental justice
issues would be raised if there were ``disproportionate'' and ``high
and adverse impact'' on minority or low-income populations. The FMCSA
determined through the analyses documented in the Environmental
Assessment in the docket prepared for this final rule that there were
no high and adverse impacts associated with any of the alternatives. In
addition, FMCSA analyzed the demographic makeup of the trucking
industry potentially affected by the alternatives and determined that
there was no disproportionate impact on minority or low-income
populations. This is based on the finding that low-income and minority
populations are generally underrepresented in the trucking occupation.
In addition, the most impacted trucking sectors do not have
disproportionate representation of minority and low-income drivers
relative to the trucking occupation as a whole. Appendix E of the
Environmental Assessment provides a detailed analysis that was used to
reach this conclusion.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing ``economically significant'' rules that also
concern an environmental health or safety risk that an agency has
reason to state may disproportionately affect children must include an
evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a ``covered regulatory action'' an evaluation of
its environmental health or safety effects on children.
The FMCSA evaluated the projected effects of the proposed action
and alternatives and determined that they would not create
disproportionate environmental health risks or safety risks to
children. The only adverse environmental effect with potential human
health consequences is the projected increase in emissions of air
pollutants. The FMCSA has projected that the PATT alternative and the
FMCSA alternative would result in a minor increase in emissions on a
national scale. The FMCSA projects no adverse human health consequences
to either children or adults because the magnitude of emission
increases is small. The proposed action and alternatives, however,
would reduce the safety risk posed by tired, drowsy, or fatigued
drivers of CMVs. These safety risk improvements would accrue to
children and adults equally.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. The FMCSA has determined
this rule does not have a substantial direct effect on States, nor
would it limit the policymaking discretion of the States. Nothing in
this document preempts any State law or regulation.
A State that fails to adopt the new amendments in this final rule
within three years of the effective date of June 27, 2003, will be
deemed to have incompatible regulations and will not be eligible for
Basic Program nor Incentive Funds in accordance with 49 CFR 350.335(b).
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number or 20.217,
Motor Carrier Safety. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
0
In consideration of the foregoing, the FMCSA is amending Title 49, CFR,
chapter III, parts 385, 390, and 395 as set forth below:
PART 385--SAFETY FITNESS PROCEDURES [AMENDED]
0
1. The authority citation for part 385 continues to read as follows.
Authority: 49 U.S.C. 113, 504, 521(b), 5113, 31136, 31144,
31148, and 31502; and 49 CFR 1.73.
0
2. Amend appendix B to part 385 as follows:
0
a. Revise section II.(c) as follows;
0
b. Amend section VII as follows:
(i) Revise the citations and text for Sec. Sec. 395.1(h)(1)(i)
through (h)(1)(iv) and 395.3(a)(1) through 395.3(b)(2) as follows; and
(ii) Add the citations and text for Sec. Sec. 395.1(h)(2)(i)
through (h)(2)(iv), 395.1(o), and 395.3(c)(1) through 395.5(b)(2) in
numerical order as follows:
[[Page 22514]]
Appendix B to Part 385 Explanation of Safety Rating Process
* * * * *
II. Converting CR Information Into a Safety Rating
* * * * *
(c) Critical regulations are those identified as such where
noncompliance relates to management and/or operational controls.
These are indicative of breakdowns in a carrier's management
controls. An example of a critical regulation is Sec. 395.3(a)(1),
requiring or permitting a property-carrying commercial motor vehicle
driver to drive more than 11 hours.
* * * * *
VII. List of Acute and Critical Regulations.
* * * * *
Sec. 395.1(h)(1)(i) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive more than 15 hours (Driving
in Alaska) (critical).
Sec. 395.1(h)(1)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty 20 hours (Driving in Alaska) (critical).
Sec. 395.1(h)(1)(iii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty more than 70 hours in 7 consecutive days (Driving in Alaska)
(critical).
Sec. 395.1(h)(1)(iv) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been
on duty more than 80 hours in 8 consecutive days (Driving in Alaska)
(critical).
Sec. 395.1(h)(2)(i) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive more than 15 hours
(Driving in Alaska) (critical).
Sec. 395.1(h)(2)(ii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty 20 hours (Driving in Alaska) (critical).
Sec. 395.1(h)(2)(iii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty more than 70 hours in 7 consecutive days (Driving in Alaska)
(critical).
Sec. 395.1(h)(2)(iv) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been
on duty more than 80 hours in 8 consecutive days (Driving in Alaska)
(critical).
Sec. 395.1(o) Requiring or permitting a short-haul property-
carrying commercial motor vehicle driver to drive after having been
on duty 16 consecutive hours (critical).
Sec. 395.3(a)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive more than 11 hours
(critical).
Sec. 395.3(a)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after the end of the 14th
hour after coming on duty (critical).
Sec. 395.3(b)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after having been on duty
more than 60 hours in 7 consecutive days (critical).
Sec. 395.3(b)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after having been on duty
more than 70 hours in 8 consecutive days (critical).
Sec. 395.3(c)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to restart a period of 7 consecutive
days without taking an off-duty period of 34 or more consecutive
hours (critical).
Sec. 395.3(c)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to restart a period of 8 consecutive
days without taking an off-duty period of 34 or more consecutive
hours (critical).
Sec. 395.5(a)(1) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive more than 10 hours
(critical).
Sec. 395.5(a)(2) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
15 hours (critical).
Sec. 395.5(b)(1) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
more than 60 hours in 7 consecutive days (critical).
Sec. 395.5(b)(2) Requiring or permitting a passenger-carrying
commercial motor vehicle driver to drive after having been on duty
more than 70 hours in 8 consecutive days (critical).
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
3. The authority citation for part 390 is revised to read as follows:
Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,
and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49
CFR 1.73.
0
3a. Revise paragraphs (b) and (c) of Sec. 390.23 to read as follows:
Sec. 390.23 Relief from regulations.
* * * * *
(b) Upon termination of direct assistance to the regional or local
emergency relief effort, the motor carrier or driver is subject to the
requirements of parts 390 through 399 of this chapter, with the
following exception: A driver may return empty to the motor carrier's
terminal or the driver's normal work reporting location without
complying with parts 390 through 399 of this chapter. However, a driver
who informs the motor carrier that he or she needs immediate rest must
be permitted at least 10 consecutive hours off duty before the driver
is required to return to such terminal or location. Having returned to
the terminal or other location, the driver must be relieved of all duty
and responsibilities. Direct assistance terminates when a driver or
commercial motor vehicle is used in interstate commerce to transport
cargo not destined for the emergency relief effort, or when the motor
carrier dispatches such driver or commercial motor vehicle to another
location to begin operations in commerce.
(c) When the driver has been relieved of all duty and
responsibilities upon termination of direct assistance to a regional or
local emergency relief effort, no motor carrier shall permit or require
any driver used by it to drive nor shall any such driver drive in
commerce until:
(1) The driver has met the requirements of Sec. Sec. 395.3(a) and
395.5(a) of this chapter; and
(2) The driver has had at least 34 consecutive hours off-duty when:
(i) The driver has been on duty for more than 60 hours in any 7
consecutive days at the time the driver is relieved of all duty if the
employing motor carrier does not operate every day in the week, or
(ii) The driver has been on duty for more than 70 hours in any 8
consecutive days at the time the driver is relieved of all duty if the
employing motor carrier operates every day in the week.
PART 395--HOURS OF SERVICE OF DRIVERS
0
4. The authority citation for part 395 is revised to read as follows:
Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.
0
5. Add Sec. 395.0 to read as follows:
Sec. 395.0 Compliance date for certain requirements for hours of
service of drivers.
(a) Motor carriers and drivers must comply with the following
requirements of this chapter through January 3, 2004, that were in
effect before June 27, 2003, and are contained in 49 CFR Chapter III
revised as of October 1, 2002:
(1) Sec. Sec. 395.1(b), (e)(3), (e)(4), (g), (h), and (j) of this
part;
(2) Sec. 395.3 of this part;
(3) Sec. 390.23(b) and (c) of this subchapter; and
(4) The citations and text for Sec. Sec. 395.1(h)(1)(i) through
395.3(b)(2) in section VII. List of Acute and Critical Regulations in
appendix B to part 385 of this subchapter.
(b) Motor carriers and drivers must comply beginning on January 4,
2004 with the amendments made to the following sections that took
effect on June 27, 2003, and are contained in 49 CFR chapter III
revised as of October 1, 2003:
(1) Sec. Sec. 395.1(b), (e)(3), (e)(4), (g), (h), (j), and (o) of
this part;
(2) Sec. 395.3 of this part;
(3) Sec. 395.5 of this part;
(4) Sec. Sec. 390.23(b) and (c) of this subchapter; and
[[Page 22515]]
(5) The citations and text for Sec. Sec. 395.1(h)(1)(i) through
395.5(b)(2) in section VII. List of Acute and Critical Regulations in
appendix B to part 385 of this subchapter.
* * * * *
0
6. Section 395.1 is amended by revising paragraphs (b)(1), (e)(3),
(e)(4), (g), (h), (j), (k), and adding paragraph (o) to read as
follows:
Sec. 395.1 Scope of rules in this part.
* * * * *
(b) Adverse driving conditions. (1) Except as provided in paragraph
(h)(2) of this section, a driver who encounters adverse driving
conditions, as defined in Sec. 395.2, and cannot, because of those
conditions, safely complete the run within the maximum driving time
permitted by Sec. Sec. 395.3(a) or 395.5(a) may drive and be permitted
or required to drive a commercial motor vehicle for not more than 2
additional hours in order to complete that run or to reach a place
offering safety for the occupants of the commercial motor vehicle and
security for the commercial motor vehicle and its cargo. However, that
driver may not drive or be permitted to drive--
(i) For more than 13 hours in the aggregate following 10
consecutive hours off duty for drivers of property-carrying commercial
motor vehicles;
(ii) After he/she has been on duty after the end of the 14th hour
after coming on duty following 10 consecutive hours off duty for
drivers of property-carrying commercial motor vehicles;
(iii) For more than 12 hours in the aggregate following 8
consecutive hours off duty for drivers of passenger-carrying commercial
motor vehicles; or
(iv) After he/she has been on duty 15 hours following 8 consecutive
hours off duty for drivers of passenger-carrying commercial motor
vehicles.
* * * * *
(e) * * *
(3)(i) A property-carrying commercial motor vehicle driver has at
least 10 consecutive hours off duty separating each 12 hours on duty;
(ii) A passenger-carrying commercial motor vehicle driver has at
least 8 consecutive hours off duty separating each 12 hours on duty;
(4)(i) A property-carrying commercial motor vehicle driver does not
exceed 11 hours maximum driving time following 10 consecutive hours off
duty; or
(ii) A passenger-carrying commercial motor vehicle driver does not
exceed 10 hours maximum driving time following 8 consecutive hours off
duty; and
* * * * *
(g) Sleeper berths. (1) General property-carrying commercial motor
vehicle. A driver who is driving a property-carrying commercial motor
vehicle that is equipped with a sleeper berth, as defined in Sec. Sec.
395.2 and 393.76 of this subchapter, may accumulate the equivalent of
10 consecutive hours of off-duty time by taking two periods of rest in
the sleeper berth, providing:
(i) Neither rest period is shorter than two hours;
(ii) The driving time in the period immediately before and after
each rest period, when added together, does not exceed 11 hours;
(iii) The on-duty time in the period immediately before and after
each rest period, when added together, does not include any driving
time after the 14th hour; and
(iv) The driver may not return to driving subject to the normal
limits under Sec. 395.3 without taking at least 10 consecutive hours
off duty, at least 10 consecutive hours in the sleeper berth, or a
combination of at least 10 consecutive hours off duty and sleeper berth
time.
(2) Specially trained driver of a specially constructed oil well
servicing commercial motor vehicle at a natural gas or oil well
location. A specially trained driver of a specially constructed oil
well servicing commercial motor vehicle who is off duty at a natural
gas or oil well location in a commercial motor vehicle that is equipped
with a sleeper berth, as defined in Sec. Sec. 395.2 and 393.76 of this
subchapter, or other sleeping accommodations, may accumulate the
equivalent of 10 consecutive hours of off-duty time by taking two
periods of rest in the sleeper berth or other sleeping accommodations,
providing:
(i) Neither rest period is shorter than two hours;
(ii) The driving time in the period immediately before and after
each rest period, when added together, does not exceed 11 hours;
(iii) The on-duty time in the period immediately before and after
each rest period, when added together, does not include any driving
time after the 14th hour; and
(iv) The driver may not return to driving subject to the normal
limits under Sec. 395.3 without taking at least 10 consecutive hours
off duty, at least 10 consecutive hours in the sleeper berth, or a
combination of at least 10 consecutive hours off duty and sleeper berth
time.
(3) Passenger-carrying commercial motor vehicles. A driver who is
driving a passenger-carrying commercial motor vehicle that is equipped
with a sleeper berth, as defined in Sec. Sec. 395.2 and 393.76 of this
subchapter, may accumulate the equivalent of 8 consecutive hours of
off-duty time by taking two periods of rest in the sleeper berth,
providing:
(i) Neither rest period is shorter than two hours;
(ii) The driving time in the period immediately before and after
each rest period, when added together, does not exceed 10 hours;
(iii) The on-duty time in the period immediately before and after
each rest period, when added together, does not include any driving
time after the 15th hour; and
(iv) The driver may not return to driving subject to the normal
limits under Sec. 395.5 without taking at least 8 consecutive hours
off duty, at least 8 consecutive hours in the sleeper berth, or a
combination of at least 8 consecutive hours off duty and sleeper berth
time.
(h) State of Alaska. (1) Property-carrying commercial motor
vehicle. The provisions of Sec. 395.3(a) do not apply to any driver
who is driving a commercial motor vehicle in the State of Alaska. A
driver who is driving a property-carrying commercial motor vehicle in
the State of Alaska must not drive or be required or permitted to
drive--
(i) More than 15 hours following 10 consecutive hours off duty; or
(ii) After being on duty for 20 hours or more following 10
consecutive hours off duty.
(iii) After having been on duty for 70 hours in any period of 7
consecutive days, if the motor carrier for which the driver drives does
not operate every day in the week; or
(iv) After having been on duty for 80 hours in any period of 8
consecutive days, if the motor carrier for which the driver drives
operates every day in the week.
(2) Passenger-carrying commercial motor vehicle. The provisions of
Sec. 395.5 do not apply to any driver who is driving a passenger-
carrying commercial motor vehicle in the State of Alaska. A driver who
is driving a passenger-carrying commercial motor vehicle in the State
of Alaska must not drive or be required or permitted to drive--
(i) More than 15 hours following 8 consecutive hours off duty;
(ii) After being on duty for 20 hours or more following 8
consecutive hours off duty;
(iii) After having been on duty for 70 hours in any period of 7
consecutive days, if the motor carrier for which the driver drives does
not operate every day in the week; or
(iv) After having been on duty for 80 hours in any period of 8
consecutive
[[Page 22516]]
days, if the motor carrier for which the driver drives operates every
day in the week.
(3) A driver who is driving a commercial motor vehicle in the State
of Alaska and who encounters adverse driving conditions (as defined in
Sec. 395.2) may drive and be permitted or required to drive a
commercial motor vehicle for the period of time needed to complete the
run.
(i) After a property-carrying commercial motor vehicle driver
completes the run, that driver must be off duty for at least 10
consecutive hours before he/she drives again; and
(ii) After a passenger-carrying commercial motor vehicle driver
completes the run, that driver must be off duty for at least 8
consecutive hours before he/she drives again.
* * * * *
(j) Travel time. (1) When a property-carrying commercial motor
vehicle driver at the direction of the motor carrier is traveling, but
not driving or assuming any other responsibility to the carrier, such
time must be counted as on-duty time unless the driver is afforded at
least 10 consecutive hours off duty when arriving at destination, in
which case he/she must be considered off duty for the entire period.
(2) When a passenger-carrying commercial motor vehicle driver at
the direction of the motor carrier is traveling, but not driving or
assuming any other responsibility to the carrier, such time must be
counted as on-duty time unless the driver is afforded at least 8
consecutive hours off duty when arriving at destination, in which case
he/she must be considered off duty for the entire period.
(k) Agricultural operations. The provisions of this part shall not
apply to drivers transporting agricultural commodities or farm supplies
for agricultural purposes in a State if such transportation:
(1) Is limited to an area within a 100 air mile radius from the
source of the commodities or the distribution point for the farm
supplies, and
(2) Is conducted during the planting and harvesting seasons within
such State, as determined by the State.
* * * * *
(o) Property-carrying driver. A property-carrying driver is exempt
from the requirements of Sec. 395.3(a)(2) if:
(1) The driver has returned to the driver's normal work reporting
location and the carrier released the driver from duty at that location
for the previous five duty tours the driver has worked;
(2) The driver has returned to the normal work reporting location
and the carrier releases the driver from duty within 16 hours after
coming on duty following 10 consecutive hours off duty; and
(3) The driver has not taken this exemption within the previous 7
consecutive days, except when the driver has begun a new 7- or 8-
consecutive day period with the beginning of any off duty period of 34
or more consecutive hours as allowed by Sec. 395.3(c).
0
7. The section heading and text of Sec. 395.3 is revised to read as
follows.
Sec. 395.3 Maximum driving time for property-carrying vehicles.
Subject to the exceptions and exemptions in Sec. 395.1:
(a) No motor carrier shall permit or require any driver used by it
to drive a property-carrying commercial motor vehicle, nor shall any
such driver drive a property-carrying commercial motor vehicle:
(1) More than 11 cumulative hours following 10 consecutive hours
off duty; or
(2) For any period after the end of the 14th hour after coming on
duty following 10 consecutive hours off duty, except when a property-
carrying driver complies with the provisions of Sec. 395.1(o).
(b) No motor carrier shall permit or require a driver of a
property-carrying commercial motor vehicle to drive, nor shall any
driver drive a property-carrying commercial motor vehicle, regardless
of the number of motor carriers using the driver's services, for any
period after--
(1) Having been on duty 60 hours in any 7 consecutive days if the
employing motor carrier does not operate commercial motor vehicles
every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates commercial motor vehicles
every day of the week.
(c)(1) Any period of 7 consecutive days may end with the beginning
of any off duty period of 34 or more consecutive hours; or
(2) Any period of 8 consecutive days may end with the beginning of
any off duty period of 34 or more consecutive hours.
0
8. Section 395.5 is added to read as follows.
Sec. 395.5 Maximum driving time for passenger-carrying vehicles.
Subject to the exceptions and exemptions in Sec. 395.1:
(a) No motor carrier shall permit or require any driver used by it
to drive a passenger-carrying commercial motor vehicle, nor shall any
such driver drive a passenger-carrying commercial motor vehicle:
(1) More than 10 hours following 8 consecutive hours off duty; or
(2) For any period after having been on duty 15 hours following 8
consecutive hours off duty.
(b) No motor carrier shall permit or require a driver of a
passenger-carrying commercial motor vehicle to drive, nor shall any
driver drive a passenger-carrying commercial motor vehicle, regardless
of the number of motor carriers using the driver's services, for any
period after--
(1) Having been on duty 60 hours in any 7 consecutive days if the
employing motor carrier does not operate commercial motor vehicles
every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates commercial motor vehicles
every day of the week.
0
9. Section 395.13 paragraphs (c)(1)(ii) and (d)(2) are revised to read
as follows:
Sec. 395.13 Drivers declared out of service.
* * * * *
(c) * * *
(1) * * *
(i) * * *
(ii) Require a driver who has been declared out of service for
failure to prepare a record of duty status to operate a commercial
motor vehicle until that driver has been off duty for the appropriate
number of consecutive hours required by this part and is in compliance
with this section. The appropriate consecutive hours off-duty period
may include sleeper berth time.
* * * * *
(d) * * *
(1) * * *
(2) No driver who has been declared out of service, for failing to
prepare a record of duty status, shall operate a commercial motor
vehicle until the driver has been off duty for the appropriate number
of consecutive hours required by this part and is in compliance with
this section.
* * * * *
0
10. Section 395.15(j)(2)(ii) is revised to read as follows:
Sec. 395.15 Automatic on-board recording devices.
* * * * *
(j) * * *
(2) * * *
(i) * * *
(ii) The motor carrier has required or permitted a driver to
establish, or the driver has established, a pattern of
[[Page 22517]]
exceeding the hours of service limitations of this part;
* * * * *
Issued on: April 16, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-9971 Filed 4-24-03; 8:45 am]