Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations
Federal RegisterApr 28, 2003
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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.
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 § 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.
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
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.”
1
OMB Office of Information and Regulatory Affairs Internet page for “Regulations Pending and Reviews Completed Last 30 Days” dated 08 Dec 99.
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
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.
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
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
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
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)
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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 a
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