[Federal Register: January 24, 2005 (Volume 70, Number 14)]
[Proposed Rules]
[Page 3339-3354]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja05-17]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390 and 395
[Docket No. FMCSA-2004-19608; formerly FMCSA-1997-2350]
RIN-2126-AA90
Hours of Service of Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: FMCSA is reviewing and reconsidering the regulations on hours
of service of drivers published on April 28, 2003 (68 FR 22456) and
amended on September 30, 2003 (68 FR 56208). The regulations were
vacated by the U.S. Court of Appeals for the District of Columbia
Circuit on July 16, 2004 (Public Citizen et al. v. Federal Motor
Carrier Safety Administration, 374 F.3d 1209). Congress subsequently
provided that the 2003 regulations will remain in effect until the
effective date of a new final rule addressing the issues raised by the
court or September 30, 2005, whichever occurs first (Section 7(f) of
the Surface Transportation Extension Act of 2004, Part V). FMCSA is
reconsidering the 2003 regulations to determine what changes may be
necessary to be consistent with the holdings and dicta of the Public
Citizen decision. In order to allow effective public participation in
the process before the statutory deadline, FMCSA is publishing this
NPRM concurrently with its ongoing research and analysis of the issues
raised by the court. To facilitate discussion, the agency is putting
forward the 2003 rule as the ``proposal'' on which public comments are
sought. This NPRM, however, asks the public to comment on what changes
to that rule, if any, are necessary to respond to the concerns raised
by the court, and to provide data or studies that would support changes
to, or continued use of, the 2003 rule. The NPRM includes specific
information on a variety of topics and specific questions for comment.
FMCSA is not considering changes to the hours-of-service regulations
applicable to drivers and operators of passenger-carrying commercial
motor vehicles (CMVs).
DATES: Comments must be received by March 10, 2005.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2004-19608 by any of the following methods. Do not submit the
same comments by more than one method. However, in order to allow
effective public participation in this rulemaking before the statutory
deadline, we encourage use of the web site that is listed first below.
It will provide the most efficient and timely method of receiving and
processing your comments.
Web site: http://dms.dot.gov: Follow the instructions for
submitting comments on the DOT electronic site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number (FMCSA-2004-19608) or Regulatory Identification Number
(RIN) for this rulemaking (RIN-2126-AA90). Note that all comments
received will be posted without change to http://dms.dot.gov, including
any personal information provided. Please see the Privacy Act heading
for further information. If addressing a specific request for comments
in this NPRM, please clearly identify the related ``request number(s)''
for each topic addressed in your comments. Further
[[Page 3340]]
important guidance for commenters is contained within individual
sections of this NPRM.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
practicable. FMCSA may, however, issue a final rule at any time after
the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Mr. Tom Yager, Hours-of-Service Team,
Federal Motor Carrier Safety Administration, 202-366-1425.
SUPPLEMENTARY INFORMATION:
Table of Contents
A. Legal Basis for the Rulemaking
B. Background Information
B.1. History of the Hours-of-Service Rule
B.2. Premise of the 2003 Hours-of-Service Rule
C. Purpose of This Rulemaking
D. Guidance for Commenters
E. Driver Health and Safety Relationships
E.1. Combined Effects
E.2. Sleep Loss and Deprivation
E.3. Exposure to Environmental Stressors
E.4. Workplace Injuries and Fatalities
E.5. Lifestyle Choices
F. Primary Components
F.1. Driving Time, On-Duty Time, and Off-Duty Time
F.2. The 34-Hour Restart and 60/70-Hour Rules
F.3. Sleeper-Berth Use
F.4. Electronic On-Board Recording Devices (EOBRs)
F.5. Other Provisions
G. Rulemaking Analyses and Notices
G.1. Executive Order 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
G.2. Regulatory Flexibility Act
G.3. Unfunded Mandates Reform Act of 1995
G.4. National Environmental Policy Act
G.5. Paperwork Reduction Act
G.6. Executive Order 13211 (Energy Supply, Distribution, or Use)
G.7. Executive Order 12898 (Environmental Justice)
G.8. Executive Order 13045 (Protection of Children)
G.9. Executive Order 12988 (Civil Justice Reform)
G.10. Executive Order 12630 (Taking of Private Property)
G.11. Executive Order 13132 (Federalism)
G.12. Executive Order 12372 (Intergovernmental Review)
H. List of Subjects
A. Legal Basis for the Rulemaking
This rulemaking is based on the authority of the Motor Carrier Act
of 1935 and the Motor Carrier Safety Act of 1984.
The Motor Carrier Act of 1935, as amended, provides that ``[t]he
Secretary of Transportation may prescribe requirements for: (1)
Qualifications and maximum hours of service of employees of, and safety
of operation and equipment of, a motor carrier; and (2) qualifications
and maximum hours of service of employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of
operation'' (49 U.S.C. 31502(b)).
For reasons explained in more detail below, this NPRM raises for
reconsideration the hours-of-service regulations applicable to drivers
and operators of property-carrying CMVs, which were promulgated by
FMCSA on April 28, 2003 (68 FR 22456) and amended on September 30, 2003
(68 FR 56208). The agency may ultimately modify those regulations as a
result of this review. The hours-of-service regulations deal directly
with the ``maximum hours of service of employees of * * * a motor
carrier (section 31502(b)(1)) and the ``maximum hours of service of
employees of * * * a motor private carrier'' (section 31502(b)(2)). The
adoption and enforcement of such rules were specifically authorized by
the Motor Carrier Act of 1935. This NPRM rests squarely on that
authority.
The Motor Carrier Safety Act of 1984 provides concurrent authority
to regulate drivers, motor carriers, and vehicle equipment. It requires
the Secretary of Transportation to ``prescribe regulations on
commercial motor vehicle safety. The regulations shall prescribe
minimum safety standards for commercial motor vehicles. At a minimum,
the regulations shall ensure that: (1) Commercial motor vehicles are
maintained, equipped, loaded, and operated safely; (2) the
responsibilities imposed on operators of commercial motor vehicles do
not impair their ability to operate the vehicles safely; (3) the
physical condition of operators of commercial motor vehicles is
adequate to enable them to operate the vehicles safely; and (4) the
operation of commercial motor vehicles does not have a deleterious
effect on the physical condition of the operators'' (49 U.S.C.
31136(a)).
This NPRM deals with the hours of service of drivers. It is based
primarily on the requirements of section 31136(a)(2) and (a)(4), and
secondarily on section 31136(a)(1) and (a)(3). The fundamental purpose
of the hours-of-service regulations is to ensure that driving
requirements and other employment obligations imposed on CMV operators
``do not impair [the drivers'] ability to operate the vehicles safely''
(section 31136(a)(2)). Broadly speaking, this NPRM is seeking public
comment on whether the April 2003, final rule achieves that goal
through a combination of three provisions (though others also play a
role) which require drivers to take 10 consecutive hours off duty
before driving a CMV, limit driving time after 10 hours off duty to 11
hours, and prohibit driving after the 14th hour after coming on duty
following 10 hours off duty.
FMCSA also seeks comment on whether that same combination of
provisions addresses some of the requirements of section 31136(a)(4) by
minimizing the ``deleterious effect[s]'' of sleep deprivation and
cumulative fatigue on ``the physical condition'' of CMV drivers, and
thus reducing the risk of fatigue-related accidents. This NPRM also
requests public comments and information about other possible
``deleterious effect[s]'' associated with hours of service and with the
operation of CMVs, which the agency is considering in the course of
this rulemaking. While section 31136(a)(1) deals primarily with vehicle
equipment and loading (now codified at 49 CFR part 393 and Sec.
392.9), it also requires that CMVs be ``operated safely,'' which
encompasses both the vehicle and the driver. Finally, section
31136(a)(3) requires regulations which ensure that ``the physical
condition'' of CMV drivers enables them to drive safely. Although that
subsection requires the agency to adopt general physical qualification
standards (now codified at 49 CFR 391.41(b)), a CMV driver's ``physical
condition'' may be affected by ``the responsibilities imposed'' on him/
her and by ``deleterious effect[s]'' associated with the operation of
large CMVs. To enable FMCSA to evaluate the need for any changes to the
April 2003, hours-of-service regulations, this NPRM requests comments
and information on all of these issues as they relate to the hours-of-
service regulations.
[[Page 3341]]
Before prescribing any regulations, however, FMCSA must also
consider the ``costs and benefits'' of its proposal (49 U.S.C.
31136(c)(2)(A)). For that reason, this NPRM seeks comment on the
economic effects of this proposal as well.
B. Background Information
B.1. History of the Hours-of-Service Rule
The Interstate Commerce Commission (ICC) promulgated the first
Federal hours-of-service regulations in the late 1930s. The rules were
based on the Motor Carrier Act of 1935. The regulations remained
largely unchanged from 1940 until 2003, except for a significant
amendment in 1962. Prior to 1962, driver hours-of-service regulations
were based on a 24-hour period from noon to noon or midnight to
midnight. A driver could be on duty no more than 15 hours in a 24-
consecutive-hour period. In 1962, among other rule changes, the 24-hour
cycle was removed and replaced by minimum off-duty periods. A driver
could ``restart'' the calculation of his or her driving and on-duty
limitations after any period of 8 or more hours off duty.
Section 408 of the ICC Termination Act of 1995 (ICCTA) (Pub. L.
104-88, 109 Stat. 803, at 958) required the Federal Highway
Administration (FHWA) to conduct rulemaking ``dealing with a variety of
fatigue-related issues pertaining to commercial motor vehicle safety.''
In response, FHWA published an advance notice of proposed rulemaking
(ANPRM) on November 5, 1996 (61 FR 57252). FMCSA was established as a
separate agency on January 1, 2000. At that time, responsibility to
promulgate CMV regulations was transferred from FHWA to FMCSA, which
published an hours-of-service NPRM on May 2, 2000 (65 FR 25540) and a
final rule on April 28, 2003 (68 FR 22456). Technical amendments to the
final rule were published on September 30, 2003 (68 FR 56208). Motor
carriers and drivers were required to comply with the final rule
starting on January 4, 2004.
FMCSA's 2003 final rule did not change any hours-of-service
requirements for motor carriers and drivers operating passenger-
carrying vehicles. They are required to continue complying with the
hours-of-service rules existing before the 2003 final rule (see 68 FR
22461-22462). Changes in hours-of-service provisions in the new rule
applied only to motor carriers and drivers operating property-carrying
vehicles. Compared to the previous regulations, the new rule: (1)
Required drivers to take 10, instead of 8, consecutive hours off duty
(except when using sleeper berths); (2) retained the prior prohibition
on driving after 60 hours on duty in 7 consecutive days or 70 hours in
8 consecutive days; (3) increased allowable driving time from 10 hours
to 11 hours; and (4) replaced the so-called 15-hour rule (which
prohibited drivers from driving after being on duty more than 15 hours,
not including intervening off-duty time) with a 14-hour rule (which
prohibited driving after the 14th hour after the driver came on duty,
with no extensions for off-duty time). Additionally, FMCSA allowed
drivers to ``restart'' the calculations for the 60- and 70-hour limits
by taking 34 consecutive hours off duty. Based on the data and research
available at the time, FMCSA was convinced that these new rules
constitute a significant improvement in the hours-of-service
regulations compared to the rules they replaced, by providing drivers
with better opportunities to obtain restorative sleep, thereby reducing
the incidence of crashes wholly or partially attributable to drowsiness
or fatigue.
On June 12, 2003, Public Citizen, Citizens for Reliable and Safe
Highways (CRASH) and Parents Against Tired Truckers (PATT) filed a
petition to review the new hours-of-service rule with the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit).
On July 16, 2004, the D.C. Circuit issued an opinion holding ``that the
rule is arbitrary and capricious [under the Administrative Procedure
Act] because the agency failed to consider the impact of the rules on
the health of drivers, a factor the agency must consider under its
organic statute. Because the agency has wholly failed to comply with
this specific statutory requirement [i.e., 49 U.S.C. 31136(a)(4)], this
single objection from petitioners is sufficient to establish an
arbitrary-and-capricious decision requiring vacatur \1\ of the rule.''
Public Citizen et al. v. Federal Motor Carrier Safety Administration,
374 F.3d 1209, at 1216. The court said that ``[t]he FMCSA points to
nothing in the agency's extensive deliberations establishing that it
considered the statutorily mandated factor of drivers' health in the
slightest.'' Id. Although FMCSA argued that the effect of driver health
on vehicle safety had ``permeated the entire rulemaking process,'' the
court said that ``[u]nder the statute, vehicle safety is a distinct
factor the agency must consider, so considering the effect of driver
health on safety cannot be equal to considering the impact on the
physical condition of the operators. * * * It may be the case, for
example, that driving for extended periods of time and sleep
deprivation cause drivers long-term back problems, or harm drivers'
immune systems. The agency may of course think that these and other
effects on drivers are not problematic (or are outweighed by other
considerations, like cost), but if so it was incumbent on it to say so
in the rule and to explain why. Its failure to do so, standing alone,
requires us to vacate the entire rule as arbitrary and capricious * *
*'' Public Citizen at 1217.
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\1\ Vacatur: An order of a court vacating (voiding or annulling)
a legal proceeding.
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The court also found fault with other aspects of the final rule and
in dicta stated that (1) FMCSA's justification for increasing driving
time from 10 to 11 hours (i.e., more off-duty time and a shorter 14-
hour driving window compensate for the additional driving time) may be
legally insufficient because the agency failed to adequately
demonstrate that other provisions of the rule offset the increase and
failed to take into account the fatigue effects of ``time on task'' in
the context of longer weekly on-duty periods allowed by the 34-hour
restart; (2) the justification for allowing drivers of CMVs equipped
with sleeper berths to split their 10-hour off-duty period into two
separate periods was probably arbitrary and capricious, since FMCSA
itself asserted that drivers need an opportunity for eight hours of
uninterrupted sleep each night; (3) the agency's failure to collect and
analyze data on the costs and benefits of requiring electronic on-board
recording devices (EOBRs) probably failed to meet the requirements of
section 408 of the ICC Termination Act, which requires FMCSA to ``deal
with'' EOBRs; and (4) the agency's explanation of the 34-hour restart
provision did not address or justify increases in the maximum weekly
driver hours permitted by that provision.
At the end of August 2004, FMCSA modified an existing contract with
the Transportation Research Board (TRB) of the National Academy of
Sciences. The modification requires TRB to review, first, the
literature published between 1975 and the present concerning the health
implications of the hours-of-service regulations for CMV drivers, and,
second, the literature relating to CMV drivers' hours of service and
fatigue from 1995 to the present. The review is expected to be complete
by early 2005. All pertinent information will be made available in the
public docket for this rulemaking.
On September 1, 2004, FMCSA published an ANPRM requesting
information about factors the agency should consider in developing
[[Page 3342]]
performance specifications for EOBRs. As the agency said in the
preamble to that document, ``FMCSA is attempting to evaluate the
suitability of EOBRs to demonstrate compliance with the enforcement of
the hours-of-service regulations, which in turn will have major
implications for the welfare of drivers and the safe operation of
commercial motor vehicles.'' The ANPRM asked for comments and
information, both on technical questions relating to EOBRs, and about
the potential costs and benefits of such devices.
On September 30, 2004, the President signed the Surface
Transportation Extension Act of 2004, Part V (Public Law 108-310, 118
Stat. 1144). Section 7(f) of the Act provides that ``[t]he hours-of-
service regulations applicable to property-carrying commercial drivers
contained in the Final Rule published on April 28, 2003 (68 FR 22456-
22517), as amended on September 30, 2003 (68 FR 56208-56212), and made
applicable to motor carriers and drivers on January 4, 2004, shall be
in effect until the earlier of : (1) the effective date of a new final
rule addressing the issues raised by the July 16, 2004, decision of the
United States Court of Appeals for the District of Columbia in Public
Citizen, et al. v. Federal Motor Carrier Safety Administration (No. 03-
1165); or (2) September 30, 2005.'' (118 Stat. 1144, at 1154).
B.2. Premise of the 2003 Hours-of-Service Rule
The premise of the current hours-of-service rule is that safety and
driver health related to the operation of a CMV will be improved by
regulations moving drivers toward a 24-hour work cycle and providing
drivers with sufficient time off to obtain eight hours sleep, while
allowing carriers flexibilities in meeting schedule demands. There is
general agreement among sleep researchers and industry participants
that the hours-of-service rules should build on the foundation of a 24-
hour day. Studies performed in laboratory settings, as well as studies
assessing operational situations, have explored the relationships
between the sleep obtained and subsequent performance. (Dinges, D.F., &
Kribs, N.B., ``Performing While Sleepy: Effects of Experimental-Induced
Sleepiness'' (1991); Bonnet, M.H., & Arrand, D.L., ``We are Chronically
Sleep Deprived'' (1995); Belenky, G., et al., ``The Effects of Sleep
Deprivation on Performance During Continuous Combat Operations''
(1994); Dinges, D.F., et al., ``Cumulative Sleepiness, Mood
Disturbances, and Psychomotor Vigilance Performance Decrements During a
Week of Sleep Restricted to 4-5 Hours Per Night'' (1997); Pilcher,
J.J., & Hufcutt, A.I., ``Effects of Sleep Deprivation on Performance: A
Meta-Analysis'' (1996); and Belenky, G., et al., ``Effects of
Continuation Operations on Soldier and Unit Performance: Review of the
Literature and Strategies for Sustaining the Soldier'' (1987)). The
results of these studies can be summarized simply: a person who is
sleepy is more prone to perform poorly on tasks requiring vigilance,
quick reaction time, and decision-making than a person who is alert.
The scientific basis for proposing daily restrictions is that an
individual experiencing multiple periods of insufficient sleep quantity
or quality incurs a cumulative sleep debt leading to increased levels
of fatigue. The current rule permits a maximum of 11 hours of
cumulative driving time, an increase of one hour from the previous
rule. This current rule is, however, more restrictive in that it does
not, as did the previous rule, permit a driver to extend on-duty time
by subtracting breaks and waiting time from the on-duty time
calculation. The 2003 rule reconsidered here adopted a number of
provisions that combine to enhance highway safety and the health of CMV
drivers as related to the operation of a CMV. The rule increased by two
hours (from 8 to 10) the amount of off-duty time drivers must take
between shifts and reduced the window in which driving can occur by one
hour (from 15 to 14). Because the rule also eliminated a loophole in
the previous rule permitting truckers to extend the 15-hour limit by
taking breaks of any length, the driving ``window'' was actually
shortened by more than one hour. Since these safety measures gave
drivers substantially more opportunity to obtain restorative sleep, the
agency concluded that a one-hour increase in driving time (from 10 to
11 hours) would not compromise the safe operation of CMVs or the health
of drivers related to the hours-of-service regulations. A 14-hour work
shift combined with a 10-hour off-duty period allows drivers to work in
a 24-hour cycle, in step with the normal 24-hour circadian \2\ rhythms.
The agency retained the previous prohibition on driving after 60 hours
on duty in 7 consecutive days, or 70 hours in 8 days, but it allowed
drivers to restart the 60/70-hour calculation after taking 34
consecutive hours off duty. This gave drivers an opportunity to take
two full 8-hour sleep periods and to return to duty close to their
previous starting times, thus helping to maintain their 24-hour
circadian rhythms. The agency retained the rule permitting truckers to
split their required off-duty time into two periods in a sleeper berth,
neither of which could be less than two hours. Total sleeper-berth
time, however, was increased from 8 to 10 hours. Finally, the agency
declined to adopt a rule that would have required electronic on-board
recording devices in all long-haul vehicles because both costs and
benefits were unknown at the time.
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\2\ Circadian rhythms: Biological functions or activities
naturally occurring in approximately 24-hour cycles.
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C. Purpose of This Rulemaking
This rulemaking is necessary to develop hours-of-service
regulations to replace those vacated by the Court. The vacated rule
remains in effect until replaced or until September 30, 2005, whichever
occurs first. This NPRM seeks public comment on what changes, if any,
should be made to the April 2003 final rule to address the concerns
raised by the D.C. Circuit, as outlined below. FMCSA's review of the
literature on driver health and the various hours-of-service issues
discussed by the Court will help the agency determine whether the 2003
final rule should be changed. The hours-of-service regulations for
drivers of passenger-carrying CMVs, i.e., the rules previously
applicable to the entire motor carrier industry, were not changed by
the 2003 final rule and, consequently, were not at issue in Public
Citizen. Therefore, the agency is neither requesting comment on, nor
proposing to change, the motorcoach regulations at this time.
D. Guidance for Commenters
See the ``Instructions'' subsection early in this NPRM for specific
methods of submitting comments. When you are addressing a specific
request for comments in this NPRM, please clearly identify the related
``request number(s)'' for each topic addressed in your comments.
FMCSA requests comments on the alternatives and issues
presented in this NPRM. Commenters are also welcome to present other
alternatives or raise additional issues directly related to the hours-
of-service regulations.
Commenters should address the incremental, direct impact
of any proposed changes in hours-of-service requirements on driver
health, the safe operation of CMVs, and economic factors. In other
words, for any aspect of the hours-of-service rule being commented
upon, please address the impact any change would have or has had on
driver health, the safe operation of CMVs, and economic factors. Only
issues directly related to the hours-of-
[[Page 3343]]
service regulations and the operation of a CMV are being considered in
this rulemaking.
Whenever possible, commenters should address the
relationship of the subject commented upon to other aspects of hours-
of-service requirements. For example, a recommendation to change the
current 11-hour maximum driving time to some other driving time should
discuss this in the context of any other changes being suggested to the
14-hour duty period or minimum 10-hours off-duty requirement, and, if
so, how the combination of these factors impacts driver health, the
safe operation of CMVs, and economic factors.
Commenters are requested to include a clear rationale for
any recommendations offered, along with documentation and data to
support the recommendation.
Specific references to scientific studies supporting a
recommendation are also requested.
For motor carriers and drivers, please provide information
on your current operations, such as (a) Whether your primary operations
are short-haul (i.e., operations limited to 150 miles or less, with
drivers typically spending each night at home) or long haul, (b)
whether you are a private or for-hire motor carrier (or drive for one),
(c) whether you are a truckload or less-than-truckload motor carrier
(or drive for one) and (d) the commodity or commodities you most
frequently haul.
E. Driver Health and Safety Relationships
The D.C. Circuit held in Public Citizen that FMCSA failed to
consider the possibly deleterious effect of the 2003 hours-of-service
rule on the physical condition of drivers, as required by 49 U.S.C.
31136(a)(4). This NPRM seeks information on that issue. The court in
dicta also addressed several safety issues. Health and safety issues,
while treated separately in the Motor Carrier Safety Act of 1984, are
inextricably related. Any post-1984 changes to the hours-of-service
regulations must ensure that driving a CMV does not harm drivers.
Conversely, the physical condition of drivers can have a direct impact
on highway safety, though all health problems do not have equally
immediate effects. The 2003 final rule addressed the impacts of changes
to the hours-of-service rules, but FMCSA is again inviting the public
to comment on safety and driver health issues related to changes in the
hours-of-service rule and the operation of a CMV.
Since publication of the 2003 final rule, the literature and
studies on driver safety and health have expanded and evolved. In
addition to any studies and reports referenced in the May 2000 NPRM,
the April 2003 final rule, and in this NPRM, FMCSA is continuing to
study emerging data and information on these related issues. The agency
will file in the docket (FMCSA-2004-19608) a copy or summary of any
study or report that is being considered in this rulemaking and has not
previously been referenced.
FMCSA requests comments on the relationships between driver health
and safety generally, but also between the net effect of the changes
produced by the 2003 hours-of-service rule and health and safety.
Background
Scientific research has made important contributions to the
development and assessment of regulatory proposals. A 1941 empirical
study of human fatigue and stress in a workplace environment was
completed under the direction of the U.S. Public Health Service to
support the ICC's initial activity in hours-of-service regulations.
Legislative and regulatory history, however, also show many examples of
``common sense'' proposals that are now seen as having had a scientific
basis. One example was the ICC's original regulatory proposal. It
limited CMV drivers to 12 hours of on-duty time (driving or not
driving) in a 15-hour duty period, allowing 3 hours for breaks. The ICC
rule required motor carriers to provide drivers 9 consecutive hours off
duty--a schedule that would have maintained circadian rhythms. This
provided a 15-hour duty period and 9-consecutive-hour minimum off-duty
period, similar to the 14-hour duty period and 10-consecutive-hour off-
duty periods of the current rule.
In developing its May 2000 proposed rulemaking, FMCSA reviewed
nearly 150 research studies and other documents, many of which were
submitted or referred to by docket commenters. Many of the reviewed
documents reported on research conducted on motor carriers and CMV
drivers. Others, such as studies on shiftwork, sleep and performance,
and the physiological nature of sleep, were relevant to the issue of
CMV driver safety.
The studies underlying this proposed rule make the point that
adverse effects of sleep deprivation can occur when the opportunity to
take sleep is curtailed, when people try to obtain sleep during periods
of the day when their systems are in a more active physiological state
(such as mid-morning and early evening), or when environmental
conditions are not conducive to obtaining sleep. Adverse effects
include slower reaction times, poor and variable responses,
deterioration of judgment, less vigilance and attention, and loss of
alertness. Lack of sleep can also produce subjective feelings of
tiredness, loss of motivation, and deterioration of mood.
Many of the studies germane to this NPRM, as well as to FMCSA's
prior regulatory activities, are referenced in An Annotated Literature
Review Relating to Proposed Revisions to the Hours-of-Service
Regulation for Commercial Motor Vehicle Drivers, Freund, D.M., Office
of Motor Carrier Safety, November 1999, Publication No. DOT-MC-99-129.
That review is available in DOT Docket No. 2350, entry 956.
In preparing the 2000 NPRM and the 2003 final rule, FMCSA
considered the effect of sleep quality and quantity, first and
foremost, in the context of safe driving. Hours-of-service regulations
exist to ensure a safe environment for the CMV driver, and for the
driving public that shares the nation's highways. That said, there
exists an extensive body of scientific literature that addresses the
influences of hours of work and work schedules on employees' health and
well-being.
Rutenfranz, J., Knauth, P., & Colquhoun, W. (1976), ``Hours of Work
and Shiftwork,'' Ergonomics 19(3), pp. 331-340, presents an overview of
health and social concerns arising from long working hours and
shiftwork. The authors consider elements of a workday (work, leisure,
sleep); they note work by others indicating that sleep during the day
may have less recuperative value than sleep during the night, and also
that an insufficient amount of ``genuine leisure time'' [i.e., time
over and above that needed for personal needs] could result in
decreased sleeping time. Although the authors hold that a daily working
time of 8 hours is optimal, they note that longer or shorter workdays
may be allowed or required, depending on environmental influences and
levels of mental or emotional stress associated with the job. The
authors cite research documenting digestive and sleep disorders among
shiftworkers. Shiftworkers' sleep is shorter and of poorer quality and
quantity as measured by quantitative clinical (i.e.,
electroencephalographic) criteria. They also have considerable
difficulties re-entraining [reestablishing timing of] physiological
functions after shiftwork. Finally, shiftwork has adverse impacts on
family and social life.
[[Page 3344]]
Research on CMV driver health issues generally falls into three
categories: (1) The effects of sleep loss or deprivation; (2) the
effects of exposure to noise, vibration, and exhaust gases and other
chemicals while operating a CMV; and (3) workplace injuries and
fatalities while operating a CMV.
E-1. Combined Effects
Request E-1-1. Because the new hours-of-service rule is a
combination of several elements (longer driving time, a reduced driving
window, more off-duty time, an optional restart section, etc.), FMCSA
requests studies and other data on the combined or net effects of these
hours-of-service recommendations on driver health, the safe operation
of CMVs, and economic factors. The agency also seeks comments on the
mutual interactions of the various elements of the rule, e.g., whether
they reinforce or conflict with each other, how the net effect of the
elements could be improved, etc. The agency further requests comparison
of the combined effect of the incremental changes in the 2003 rule
compared to the rule prior to 2003. Commenters should take into account
the combined effect of any recommendations they submit on the daily on-
and off-duty periods, circadian rhythms, accumulated duty time over
multi-day periods, and other relevant factors.
Request E-1-2. Do the new regulations provide drivers with
additional time for rest and relaxation, personal matters, and family
activities? How have the new regulations impacted the ``quality of
life'' for drivers?
E.2. Sleep Loss and Deprivation
Truck drivers have always worked long hours. This is especially
true for long-haul drivers. Particularly in the truckload sector of the
industry, drivers are required to spend many, and in most cases
uncompensated, hours waiting to pick up and unload goods. This affects
their ability to maintain their driving schedules and can have an
adverse impact on regular wake-sleep cycles. From a compliance point of
view, it can affect the driver's ability to operate within the bounds
of the hours-of-service regulations while still obtaining the mandatory
minimum off-duty time for sleep, meals, and attending to personal needs
(see Freund (1999) for discussions of studies by McCartt, et al.
(1995), Van Ouwerkerk (1988), and Belzer, M.H., et al., ``Proposed
Changes in Motor Carrier Hours of Service: Project Report'' (2002)).
Serious adverse health conditions appear to be associated with
chronic sleep deprivation. In his review, [Aring]kerstedt (1991) cited
findings by other researchers who noted increased sleep problems, as
well as increased incidence of myocardial infarcts and cardiovascular
disease in general. A 1999 study claimed to find that restricting sleep
in healthy young men to four hours per night for only six nights ``is
associated with striking alterations in metabolic and endocrine
function. The effects are similar to those seen in normal aging and,
therefore, sleep debt may increase the severity of age-related chronic
disorders'' such as diabetes and hypertension (Spiegel, K., et al.,
``Impact of Sleep Debt on Metabolic and Endocrine Function,'' The
Lancet, Vol. 354, No. 9188, 23 October 1999, pp. 1435-1439). However,
the implications of this study for this rulemaking appear to be
ambiguous. The amount and duration of sleep deprivation required to
exacerbate chronic disorders appear unclear, and the conditions under
which the effects of sleep deprivation can be reversed also appear to
be unclear. Finally, extended working hours tend to desynchronize the
internal circadian rhythms of long-haul drivers who have work/rest
cycles less than 24 hours (Stoynev, A.G., & Minkova N.K., ``Circadian
Rhythms of Arterial Pressure, Heart Rate and Oral Temperature in Truck
Drivers,'' Occupational Medicine (London), Vol. 47, No. 3, April 1997,
pp. 151-154).
Request E-2-1. Sleep Loss/Deprivation. FMCSA requests information
on all adverse and beneficial effects of the new hours-of-service rule
on the health of CMV drivers in contrast to the old rule. We are
particularly interested in identifying any increase or reduction in
sleep deprivation, and any measured changes in driver health impacts,
generated as a consequence of the 2003 rule. Sleep deprivation in
general: What identifies the presence or the absence of sleep
deprivation in the CMV driver population? Is there any differential
evidence of sleep deprivation in the CMV driver population subject to
the new hours-of-service rule compared to the previous rule? How much
sleep do drivers operating under the new regulations average on a daily
basis, and how has this average changed as a result of the new rule? In
other words, are drivers getting more or less sleep because of the new
rule? Are they getting the 8 hours of sleep each day considered
necessary to maintain alertness? Is there any evidence that 10
continuous hours of off-duty time does not provide adequate opportunity
for drivers to obtain 8 hours of sleep each day?
Request E-2-2. Naps/Rest Periods. Several studies have addressed
the effectiveness of naps and breaks in alleviating or preventing
fatigue and drowsiness (Wylie, C.D., et al. (1996, 1997, 1998) and
other studies referenced in Freund Annotated Literature Review (1999)).
Do naps or short rest periods improve driver alertness in the operation
of a CMV? How long should they be? At what point in the driving or duty
cycle would they provide the greatest benefit? At what time of day
would they provide the greatest benefit? If rest or other breaks from
driving improve alertness, is there some additional amount of
operational flexibility that could be afforded to a driver who chooses
to take certain minimum breaks that would not increase safety risks or
impair driver health? Are naps or rest periods beneficial to driver
health? Does napping in a seated position provide rest equivalent to
napping while lying flat (as in a sleeper berth)? Please explain.
E.3. Exposure to Environmental Stressors
CMV drivers may be exposed to harmful substances or conditions,
such as diesel engine exhaust emissions and chemicals. Drivers are also
exposed to vehicle vibration and noise. A number of research studies
are being evaluated to determine their relationship to CMV driver
hours-of-service regulations.
There has been some research on the relationship between exposure
to diesel engine exhaust emissions and driver health. A Danish study
claimed that a group of 14,225 truck drivers had a higher mortality
rate over a ten-year period from lung cancer and multiple myeloma than
did a group of 43,024 unskilled male laborers in other occupations
(Hansen, E.S., ``A Follow-Up Study on the Mortality of Truck Drivers,''
American Journal of Industrial Medicine, Vol. 23, No. 5, May 1993, pp.
811-821). Another study asserted that male truck drivers faced higher
risk of death than other men did from colon cancer, laryngeal cancer,
lung cancer, diabetes, ischemic heart disease, non-alcohol cirrhosis,
and motor vehicle crashes (Aronson, K.J., et al., ``Surveillance of
Potential Associations Between Occupations and Causes of Death in
Canada, 1965-91,'' Occupational and Environmental Medicine, Vol. 56,
No. 4, April 1999, pp. 265-269). A review of 30 epidemiological studies
in North America and Europe (including 10 studies of truck drivers, two
of bus drivers, and four of all professional drivers) similarly
concluded that
[[Page 3345]]
occupational exposure to diesel exhaust raised the risk of lung cancer
(Lipsett, M., & Campleman, S., ``Occupational Exposure to Diesel
Exhaust and Lung Cancer: A Meta-Analysis,'' American Journal of Public
Health, Vol. 89, No. 7, July 1999, pp. 1009-1017). Another review of 15
studies of truck drivers and 10 of bus drivers suggested that exposure
to diesel exhaust may also raise the risk of bladder cancer (Boffetta,
P., & Silverman, D.T., ``A Meta-Analysis of Bladder Cancer and Diesel
Exhaust Exposure,'' Epidemiology, Vol. 12, No. 1, January 2001, pp.
125-130). Finally, CMV drivers can be exposed to chemicals in liquid or
vapor form. One study, for example, found that drivers delivering
gasoline can experience acute headaches, dizziness, or nausea after
exposure to vapors during loading and unloading (Hakkola, M.L., et al.,
``Changes in Neuropsychological Symptoms and Moods Among Tanker Drivers
Exposed to Gasoline During a Work Week,'' Occupational Medicine
(London), Vol. 47, No. 6, August 1997, pp. 344-348).
Drivers face extended exposure to highway noise that may lead to
hearing loss (Van Den Heever, D.J., & Roets, F.J., ``Noise Exposure of
Truck Drivers: A Comparative Study,'' American Industrial Hygiene
Association Journal, Vol. 57, No. 6, June 1996, pp. 564-566). Highway
noise can also cause problems for drivers who are attempting to sleep
in the sleeper berth while their partners drive, thereby reducing the
adequacy of their restorative sleep (Seshagiri, B., ``Occupational
Noise Exposure of Operators of Heavy Trucks,'' American Industrial
Hygiene Association Journal, Vol. 59, No. 3, March 1998, pp. 205-213).
Additionally, drivers are exposed to whole body vibration (Palmer, K.,
``Prevalence and Pattern of Occupational Exposure to Whole Body
Vibration in Great Britain: Findings from a National Survey,''
Occupational and Environmental Medicine, Vol. 57, No. 4, April 2000,
pp. 229-236), which may lead to lower back pain (Pope M.H., et al.,
``Low Back Pain and Whole Body Vibration,'' Clinical Orthopedics and
Related Research, No. 354, September 1998, pp. 241-248). A Danish study
examining hospital admissions over several years concluded that truck
and bus drivers had higher age-standardized admission ratios for
prolapsed cervical or lumbar discs, and also markedly high admission
ratios for back injuries (Hannerz, H., & Tuchsen, F., ``Hospital
Admissions Among Male Drivers in Denmark,'' Occupational and
Environmental Medicine, Vol. 58, No. 4, 1 April 2001, pp. 253-260).
Many truck drivers must perform heavy lifting, often after spending
hours driving; this may contribute to injuries to the spine and
ligaments (Jensen, M.V., et al., ``Prolapsed Cervical Intervertebral
Disc in Male Professional Drivers in Denmark, 1981-1990: A Longitudinal
Study of Hospitalizations,'' Spine, Vol. 21, No. 20, 15 October 1996,
pp. 2352-2355).
The implications of these studies are not always clear. Some of the
research has suggested that the effect of exposure to diesel exhaust
was concentrated among older drivers--many of whom drove years ago when
few or weaker emissions standards existed. The mortalities of drivers
who drove in later time periods did not show a similar relationship.
The Environmental Protection Agency (EPA) has tightened its standards
on vehicle emissions in the last two decades and will again beginning
in 2006. In the past five years alone, many of the components of diesel
exhaust that are considered dangerous to health have been significantly
reduced (Bunn, W.B., et al., ``What is New in Diesel Emissions?''
International Archives of Occupational and Environmental Health, July
2002, pp 122-132). EPA regulations that will go into effect in 2007 and
2010 will reduce these emissions levels even further.
Modern CMVs have also evolved. Truck manufacturers have improved
ergonomics and driving comfort considerably. Noise levels in the cab--
whether from the engine, tires, or outside sources--have been reduced.
Manufacturers have continued to make great strides in reducing high-
frequency truck vibration through improved cab suspensions and engine
mounts. Air-suspension driver's seats are also commonplace. However,
the long-term effects of current emissions, noise levels, and
vibration, even in modern vehicles, are largely unknown. To this end,
FMCSA requests information on the impacts of exposure (noise,
vibration, and chemical emissions) on the health of commercial motor
vehicle drivers as they relate to driver hours of service.
Request E-3-1. Exposure. In this request and throughout this NPRM,
we are looking at only injuries or conditions directly related to the
hours-of-service regulations and operating a CMV, not other workplace
injuries, which are outside the jurisdiction of FMCSA. What are the
current standards and/or testing data regarding vehicle noise,
vibration, and emissions? How have these standards changed over time?
Does any research or data assess the impact on driver health of
exposure to diesel exhaust emissions, exposure via respiration or skin
contact with other chemicals, noise, and vibration during the operation
of a CMV or during rest periods in a sleeper berth? Since the new
hours-of-service rule allows drivers 11, rather than 10, hours of
driving time, what are the consequences to drivers of one additional
hour of such exposure in the vehicle per day? What are the exposure
effects of the new 14-hour rule, in contrast to the previous 15-hour
rule? What other exposure factors relating to the new hours-of-service
regulations adversely or beneficially affect CMV driver health? Is
revision of the hours-of-service rule the appropriate answer to adverse
exposure impacts? What are the economic costs of addressing exposure
through hours of service?
E.4. Workplace Injuries and Fatalities
According to information from the Bureau of Labor Statistics, U.S.
Department of Labor, transportation workers suffer more fatalities than
any other occupational group, accounting for 12 percent of all U.S.
worker deaths annually. Nearly two-thirds of these fatalities are
caused by highway crashes. Truck drivers also have more nonfatal
injuries than workers in any other occupation. Half of the nonfatal
injuries were serious sprains and strains.
Request E-4-1. Workplace Injuries and Fatalities. In this request
and throughout this NPRM, we are looking at only injuries directly
related to the hours-of-service regulations and operating a CMV, not
other workplace injuries that are outside the jurisdiction of FMCSA.
What is the impact of fatigue and loss of alertness on CMV driver
workplace injuries and fatalities? Does the evidence connect these
injuries or fatalities to specific aspects of the current or previous
hours-of-service regulations? Please distinguish injuries and
fatalities related to the hours-of-service regulations and operation of
a CMV from other workplace hazards such as those related to loading and
unloading.
E.5. Lifestyle Choices
Lifestyle choices, including diet and exercise, may impact driver
health and safety. Realistically, such choices cannot be regulated by
FMCSA. For example, while the hours-of-service regulations prohibit
driving during off-duty hours, they do not prevent the driver from
engaging in personal activities, rather than sleeping. Similarly, an
excessive or unhealthy diet can lead to obesity, which in turn may
predispose a driver to diabetes or back problems.
[[Page 3346]]
Request E-5-1. Lifestyle Choices. What effect do certain lifestyle
choices, such as diet, exercise, and the use of off-duty time, have on
driver safety and health?
F. Primary Components
F.1. Driving Time, On-Duty Time, and Off-Duty Time
Sleep researchers and the motor carrier industry generally agree
that the hours-of-service rules should promote work schedules built on
a 24-hour day. Studies exploring the relationship between sleep
obtained and subsequent performance, both in laboratory and operational
settings, generally indicate that a person who is sleepy is more prone
to perform poorly on tasks requiring vigilance, quick reaction time,
and decisionmaking than a person who is alert. The scientific basis for
restricting driving time includes research findings indicating that
inadequate sleep can lead to fatigue, and several periods of
insufficient sleep (inadequate in quantity or quality) cause sleep debt
or cumulative fatigue.
The 2003 hours-of-service rule permits up to 11 hours of driving
time after 10 consecutive hours off duty. Compared to the previous
rule, this permits up to one additional hour of driving time, but
requires at least 2 additional hours of off-duty time. The new rule
also limits driving to a 14-hour window after a driver comes on duty.
Unlike the previous 15-hour rule, the new rule does not permit a driver
to extend his or her on-duty time by subtracting breaks, waiting, and
other off-duty periods from the calculation of on-duty time. The new
rule addresses the issue of driver fatigue by providing drivers a daily
opportunity to obtain a full 8 hours of sleep and still have time
available for other personal activities within the minimum 10-hour off-
duty period. We believe that the net effect of these changes is that
the driver spends less time on duty, in most cases, and usually has the
time necessary to commute and attend to personal matters, while still
obtaining the 8 consecutive hours of sleep recommended in the
scientific literature to ensure alertness.
The mandatory minimum 10-hour off-duty time, combined with a
maximum 14-hour window in which driving can occur, establishes a 24-
hour day for the driver who maximizes on-duty time and minimizes off-
duty time. This routine is consistent with the well documented, near-
24-hour circadian cycle that regulates energy and alertness levels.
FMCSA concluded that the advantages of putting most drivers on a 24-
hour, or near-24-hour, work cycle, combined with the opportunity to
obtain 8 or more hours of sleep per night, will result in a well-rested
driver capable of driving the additional 1 hour per day. The new rule
also provides flexibility for the motor carrier industry and drivers.
If necessary, a driver can work a 21-hour ``day'' by driving for 11
hours, taking 10 hours off duty, using no other on-duty time, and then
resuming driving again. This compressed schedule may be useful to
address operational demands. We doubt drivers will use it regularly,
however, because their workload requires on-duty activities such as
loading and unloading, completing paperwork, fueling, daily vehicle
inspections, and dispatch call-ins beyond the 11-hour driving period.
But when the 21-hour cycle is used, it is considerably less disruptive
to the body's circadian rhythms than the 18-hour ``day'' allowed by the
old hours-of-service rules (10 hours of driving followed by 8 hours off
duty). We invite comments on the safety and health effects of the 21-
hour cycle, especially as compared to the 18-hour cycle allowed under
the old rule.
Among other dicta included in its Public Citizen decision, the D.C.
Circuit questioned whether FMCSA's argument that additional off-duty
time and a 14-hour driving window justified a one-hour increase in
total driving time. The court suggested the agency lacked supportive
scientific evidence to support allowing an additional hour of driving
per ``day.''
Each driver should have an opportunity for 8 consecutive hours of
uninterrupted sleep every day. Nine hours off duty were originally
required in 1937. For various reasons, organized labor objected to most
of the original regulations, and upon further deliberation, the ICC
reduced the 9-hour off-duty period to 8 hours in each 24 hours (6
M.C.C. 557, July 12, 1938). In 1962, the hours-of-service rule was
changed to move away from a strict 24-hour period, and allow driving to
resume again after 8 hours off-duty regardless of whether a new ``day''
(24-hour period) had begun. FMCSA's final rule of April 2003, required
a minimum of 10 consecutive hours off duty. This was a result of the
concern that many carriers were not providing drivers more than the
minimum 8 hours off duty (although the previous regulation allowed them
to do so) and that many drivers accept tight schedules without
objection. These drivers also had to commute home, eat one or two
meals, care for family members, bathe, get physical exercise, and
conduct other personal activities, all within an 8-hour off-duty
period. To afford the driver an opportunity to obtain a minimum period
of 8 hours of sleep, research showed that the off-duty period needed to
be increased from 8 hours to 10 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))
confirmed the need for additional off-duty time. 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 show that a
person who is sleepy is prone to perform more poorly on tasks requiring
vigilance and decision-making than a person who is alert. The time when
sleep is taken is important as well because sleep fragmentation can be
a byproduct of the timing or the quality of the sleep environment
(Bonnet, M.H. (1994); Roehrs, T., Zorick, F., & Roth, T. (1994);
Mitler, M.M., et al. (1997)); and Wylie, D. (1998)). It is virtually
impossible to get an adequate amount of sleep when time for commuting,
meals, personal errands, and family/social life is subtracted from an
8-hour off-duty period, as the ICC found in 1937. Wylie et al. (1996)
also addresses these issues.
Request F-1-1. What are the impacts on driver health, the safe
operation of CMVs, and economic factors of incremental increases in
maximum driving time? For example, to what extent does an increase in
maximum driving time from 10 hours to 11 hours affect driver health,
the safe operation of CMVs, and economic factors in the CMV industry?
Request F-1-2. What are the impacts on driver health, the safe
operation of CMVs, and economic factors of incremental increases in the
minimum required off-duty period? For example, to what extent does an
increase in minimum off-duty time from 8 hours to 10 hours affect
driver health, the safe operation of CMVs, and economic factors in the
CMV industry?
Request F-1-3. What are the impacts on driver health, the safe
operation of
[[Page 3347]]
CMVs, and economic factors of incremental decreases in the ``duty
period'' from 15 non-consecutive hours to 14 consecutive hours? For
example, to what extent does a decrease in the duty period from 15 non-
consecutive hours to 14 consecutive hours affect driver health, the
safe operation of CMVs, and economic factors in the CMV industry?
Request F-1-4. To what extent does a reduction of the ``daily''
duty-period from 15 non-consecutive hours to 14 consecutive hours, and
the increase in minimum off-duty time from 8 hours to 10 hours, offset
the increase in allowable driving time from 10 hours to 11 hours in
terms of driver health, the safe operation of CMVs, and economic
factors in the CMV industry? Are there clinical or other studies
examining the impact on driver health and the safe operation of CMVs of
up to 11 hours of limited physical activity, such as driving for up to
11 hours?
Request F-1-5. How has the length of a driver's total daily work
period changed under the new rules? How long was the typical total
workday, from start to finish, under the former rule compared to the
new 14-consecutive-hour rule?
F.2. The 34-Hour Restart and 60/70-Hour Rules
Few research studies address the effect of recovery periods between
work periods spanning multiple days. O'Neill et al. (1999) [referenced
in the 1999 Literature Review] assessed the interactions between
several trucking industry operating practices and driver fatigue-
related performance decrements. The activities studied were: loading
and unloading freight; the amount of non-duty time (``rest and
recovery'') required to reestablish baseline fitness for duty at the
end of a multiday series of work shifts; and a sustained schedule
consisting of 14 hours on duty and driving time followed by 10 hours
off duty. The study design included two days of orientation; five 14-
hour days (7 a.m. to 9 p.m.) followed by 58 hours off; five more 14-
hour days and a second 58-hour period off; and a final 14-hour day. The
14-hour duty periods included three scheduled breaks totaling
approximately two hours. The study participants alternated periods of
driving a high-fidelity fixed base simulator with performance of a
physical loading task. The researchers reported the drivers did not
appear to have accumulated significant sleep loss during the study but
their amount of measured sleep increased and their sleep latency
decreased on their first off-duty days. The researchers suggested,
among other things, that a full two nights and one day off (that is,
``Friday night'' to ``Sunday morning''--about 32 hours off duty) would
be a minimum safe restart period, under the conditions tested. They
also stated, as a caveat, that results of this study may not be
generalized to operations that are not day shifts, have shorter post-
shift off-duty periods, have few or no breaks during the duty period,
or vary from what the driver is accustomed to in terms of circadian
disruptions or longer-than-usual on-duty periods.
On the other hand, not all research studies have reached the same
conclusions. Wylie, C.D., et al. (1997) [referenced in Freund, 1999]
stated the following in the Abstract of their study report:
The purpose of the study was to assess the ``recovery'' effects
of zero, one, and two workdays off on driver fatigue, alertness, and
performance. It involved 25 of the 40 drivers who participated in
the two 13-hour observational conditions of the DFAS [Driver Fatigue
and Alertness Study]. Drivers had nominally 12, 36, and 48 hours
time off after the fourth workday.
For one workday off (36 hours), there was: (1) No objective
evidence of driver recovery; (2) some improvement in drivers
subjective feeling reflected by self-rating, although this could be
a reflection of driver expectation of recovery; (3) for day-start
drivers, some increase in the amount of sleep obtained during time
off; and (4) for night-start drivers, interference with work-rest
patterns and less sleep during time off.
For two workdays off (i.e., 48 hours), there was no objective
evidence of driver recovery although the statistical power of the
tests to detect recovery effects was not high because of random
variation associated with the smaller number of drivers. (p. iii)
Smiley, A., & Heslegrave, R. (1997) found only one study (Wylie et
al., 1997) that specifically dealt with an operational schedule that
would be permitted under a 36-hour reset scenario. The authors state
this is mainly because such a short reset period would result in
schedules that would exceed current hours-of-work regulations in most
countries. They note that Wylie and his co-authors, as well as the
reviewers, considered data from this study to be more suggestive of
trends because of the small number of subjects and the fact that sleep
during recovery periods was not recorded using full polysomnography (as
were the sleep periods during the work periods). They cited several
other scientific studies dealing with recovery time. The results of
these studies and CMV driver hours-of-service requirements may or may
not be related. For example, a 1967 study by Lille suggested that a
single day off was insufficient for night workers to recover after a
sleep debt accumulated over five days. Other studies indicated a
preference for a three-day rest period compared to a two-day period
after three 12-hour night shifts; a preference for two days and three
days off over one day off when comparing automatic brakings experienced
by locomotive engineers; and a 1994 literature review indicating two
nights of recovery sleep as usually being sufficient to allow near full
recovery after extended periods of sleep loss.
Under both the old and new hours-of-service regulations, most
drivers are prohibited from driving after reaching a maximum 60 hours
of on-duty time in any consecutive 7-day period, or 70 hours in 8 days.
A driver working the current maximum 14-consecutive-hour duty period
without a break and taking the minimum 10 hours off duty would reach
the 60-hour on-duty limit in slightly less than 4\1/2\ days (4\1/2\
days x 14 hours = 63 hours), after which he or she could not drive a
CMV until enough calendar days had passed to bring the driver within
the 60-hours-in-7-consecutive-days limitation. In this example, the
driver could only drive 4 hours on the fifth day (60 - (14 x 4) = 4)
and would then have to take an additional 2 full days off duty to fall
within the limit of 60 hours in any 7 consecutive days. This results in
nearly 3 days of required off-duty time.
A fairly common misunderstanding is the belief that the hours-of-
service rule establishes a limit on the number of hours a driver may
work in any time period. The rule only limits the driver's ability to
drive a CMV after a certain number of hours of work or driving. In
other words, the driver may work unlimited hours, but may not drive a
CMV unless he or she is within hours-of-service limits. For example, on
a Friday night a driver has reached the 60-or 70-hour on-duty limit
within 7 or 8 consecutive days. On a Friday night, Saturday, and
indefinitely thereafter, this driver could continue to perform non-
driving duties without being in violation of the hours-of-service rule.
However, before the driver could operate a CMV, the driver would have
to be completely off-duty for enough days to bring the total on-duty
hours within any 7- or 8-consecutive days under the 60- or 70-hour
limits.
As a matter of background, section 345 of the National Highway
Designation Act of 1995 [Pub. L. 104-50, 109 Stat. 568] created a ``24-
hour restart'' exemption from the 60- and 70-hour rules for drivers of
utility service vehicles, CMVs transporting ground-water well drilling
rigs, and
[[Page 3348]]
construction materials and equipment. This exemption is still in
effect.
In 49 CFR 395.3(c) FMCSA added a ``restart provision'' which
allowed any 7- or 8-day period to end with the beginning of any off-
duty period of 34 or more consecutive hours. In other words, at any
point before exceeding the 60/70-hour limit, a driver may restart the
60/70-hour clock (or calculation) after taking 34 or more consecutive
hours off duty. Consistent with previous interpretations of the 60/70-
hour rule, FMCSA interprets this provision to mean that if the driver
exceeded the 60 or 70 hours on duty, he or she could not start the 34-
hour restart period until enough calendar days had passed to bring the
driver within the 60 hours in 7 consecutive days (or 70 hours in 8
days) limitation. The 34-hour restart provides an option that permits
the driver to have enough time for two uninterrupted periods of 8 hours
sleep before returning to work in a new multi-day duty period. However,
it also allows a driver to drive more hours and be on duty more hours
before driving is prohibited in a 7- or 8-day period, as shown in the
table below.
This table is based on two hypothetical scenarios. The first is a
daily schedule in which the driver drives continuously for the maximum
allowable time (11 hours). The second is a daily schedule in which the
driver is on-duty/not-driving continuously for the maximum allowable
time (14 hours of which 11 are driving). In each case, the driver takes
only the minimum required off-duty (10 hours) period and, prior to
reaching the 60/70 hour limit, the driver invokes the 34-hour restart
provision and resumes the scenario of maximizing driving and on-duty
time for the remainder of the 7/8 day period.
Maximum Possible Driving and On-Duty Hours
----------------------------------------------------------------------------------------------------------------
Current (2003) rule Old rule Available hours off duty
-------------------------------------------------------------------------------
(Assuming minimum 10-hour off- Without
duty periods) 34-hour restart (note 60/70 rule Current rule Old rule
restart 1) (note 1) (note 2) (note 3)
----------------------------------------------------------------------------------------------------------------
Max. Hours Driving Only in 7 77 60 60 91 108
consecutive days, before
driving is prohibited..........
Max. Hours Driving & On-duty in 84 60 60 84 108
7 consecutive days, before
driving is prohibited..........
Max. Hours Driving Only in 8 88 70 70 104 122
consecutive days, before
driving is prohibited..........
Max. Hours Driving & On-duty in 98 70 70 94 122
8 consecutive days, before
driving is prohibited..........
----------------------------------------------------------------------------------------------------------------
Note 1: Under the current 2003 rule without imposing the 34-hour restart, and under the old rule, the maximum
hours a driver may work and continue to operate a commercial motor vehicle is capped at 60 hours in 7
consecutive days (70 hours in 8 consecutive days).
Note 2: The ``available hours off duty'' calculation assumes the driver is maximizing the driving and driving
and on-duty not driving hours (11/14 hours respectively), coupled with taking only the minimum mandatory off-
duty periods (10 hours).
Note 3: The old rules prohibited driving after 60 hours in 7 consecutive days (70 hours in 8 consecutive days).
Considering the total hours available within each period, 168 (7 x 24) and 192 (8 x 24) would provide 108 (168
less 60) and 122 (192 less 70) available hours off duty. However, the actual available off-duty hours may vary
since the 60/70 hour rule only prohibits driving after the 60- or 70-hour limit, but does not prohibit
additional hours on duty, not driving. The figure in the table represents the maximum available hours off duty
for a driver not working any additional hours after reaching the 60/70 hour limit.
The 60/70-hour limitation helps prevent a driver from developing
severe, cumulative fatigue and sleep deprivation when working and
driving the maximum ``daily'' limits for an extended period. However,
at times this provision may require the driver to remain off duty for
longer periods of time than necessary to gain adequate restorative
sleep. This occurs because the rule refers to the maximum hours on duty
in a certain number of ``days.'' The hours worked in the prior 7 or 8
consecutive days and the hours available to work in a future 7-or 8-
consecutive-day period are re-calculated at midnight when a new ``day''
begins. As noted previously, the restart provision avoids this
limitation by permitting the driver to ``restart the 60/70 hour clock''
after having 34 or more consecutive hours off duty, which would afford
two uninterrupted periods of 8 hours sleep before returning to work in
a new multi-day duty period.
The D.C. Circuit criticized FMCSA for not even acknowledging, much
less justifying, that the new rule ``dramatically increases the maximum
permissible hours drivers may work each week'' Public Citizen, at 1222-
1223. As shown in the table above, the restart increases the total
hours of permissible on-duty time in a 7-day period, after which a
driver may not drive a CMV, from 60 hours to 84 hours. It also
increases the maximum driving time permitted in a 7-consecutive-day
period (from 60 hours to 77 hours). Also as shown in the table above,
the restart increases the total hours of permissible on-duty time in an
8-day period, after which a driver may not drive a CMV, from 70 hours
to 98 hours. It also increases the maximum driving time permitted in an
8-consecutive-day period (from 70 hours to 88 hours).
In the 2003 final rule, the agency explained its rationale for the
adoption of the 34-hour restart period. In essence, studies indicated
that cumulative fatigue and sleep debt can develop over a weekly
period, and at least two full periods of sleep are needed to
``restore'' a driver to full alertness. The agency determined that the
34-hour restart period, based on a full 24-hour period plus an
additional 10-hour period available for sleep, was the minimum restart
which would provide adequate restorative rest.
The 34-hour restart was also seen in the 2003 final rule as a
flexible alternative to the ``mandatory weekend'' proposed in the 2000
NPRM. Not all motor carrier operations work on a ``fixed and recurring
7-day period,'' instead having intense days of work followed by slack
times. Other operations can be disrupted by weather. The 34-hour
restart allows motor carriers and drivers the option of restorative
rest during the times work is not available or is interrupted.
The agency is seeking research and other data to further ascertain
the effects of a 34-hour restart period on safety and driver health,
and whether 34 hours is the appropriate length of time for a restart,
compared to periods ranging from 24 hours (as in the NHS Act) to more
than 34 hours. The agency is also reviewing the alternative of
eliminating the restart provision, or of implementing it in a different
way, such as limiting its use within a given time period, so as to
preclude a driver accumulating an
[[Page 3349]]
excessive amount of on-duty time before driving.
Request F-2-1. What effect has the 34-hour restart had on driver
fatigue and the ability to obtain restorative sleep? Is a 34-
consecutive-hour off-duty period long enough to provide sufficient
restorative sleep regardless of the number of hours worked prior to the
restart? Is it different for a driver working a night or irregular
schedule? What length of continuous off-duty time provides adequate
opportunity for most drivers to obtain 8 hours of sleep per day?
Request F-2-2. How many drivers (or what percentage of the current
driver population) are currently using the 34-hour restart option to
accumulate more than 60 or 70 hours of driving time in any consecutive
7-or 8-day period? How consistently are they using this option? On the
average, how many hours of driving are they accumulating in 7 or 8
consecutive days? How many drivers, or what percentage of the current
driver population, are currently logging 11 hours of daily driving on a
consistent basis; i.e., the drivers consistently driving the maximum
permissible driving time?
Request F-2-3. If a driver has already exceeded 60 hours on duty in
7 days, or 70 hours in 8 days, should the driver be permitted to
utilize the 34-hour restart at any time, or should the driver be
required to take enough days off duty to be in compliance with the 60/
70 hour provision before starting the restart period?
Request F-2-4. What would be the impact on the industry of
eliminating the 34-hour restart option relative to productivity, annual
revenues, and operational costs such as labor, capital, and other? How
many additional drivers does the industry anticipate it would need to
hire to absorb the loss in weekly driving hours incurred if the 34-hour
restart period was increased? Eliminated?
Request F-2-5. What would be the safety impact of eliminating the
34-hour restart option in terms of crashes, fatalities, and injuries?
Request F-2-6. What would be the impact on driver health of
modifying or eliminating the 34-hour restart option? How would the
modification or elimination of the 34-hour restart period affect driver
health and the safe operation of CMVs, as a result of its effect on the
24-hour cycle (circadian rhythms)?
F.3. Sleeper-Berth Use
Historically, the sleeper berth is widely used by commercial
vehicle operators to obtain rest and restore available hours, making it
legal to drive without having to take 10 consecutive hours off duty.
The regulation of sleeper berth use was first considered by the ICC
under the Motor Carrier Act of 1935. At that time and since, the
economic and operational advantages of sleeper berths in some segments
of the trucking industry have been recognized. In one of its first
hours-of-service decisions, the ICC in 1937 discussed the economic need
for sleeper-berth use, but stated, ``We shall watch this matter closely
and if we see any tendency on the part of the carriers to use sleeper
cabs where such use does not appear to be reasonably necessary, steps
will be taken to put limits upon this practice'' (3 M.C.C. 689).
Under the 2003 final rule, drivers are permitted to accumulate the
mandatory off-duty period in four ways: (1) A minimum of 10 consecutive
hours off duty, (2) a minimum of 10 consecutive hours in a sleeper
berth, (3) a minimum of 10 consecutive hours in any combination of off-
duty and sleeper-berth periods, or (4) two sleeper-berth periods
totaling 10 or more hours, with neither period being less than 2 hours.
The split-sleeper-berth provision of the 2003 final rule only
permits a combination of two sleeper-berth periods for the purpose of
accumulating the required 10 hours off duty. A sleeper-berth period may
only be excluded in calculating compliance with the 14-hour rule when
it is combined with a second qualifying sleeper-berth period. Another
way of stating this is that a single sleeper-berth period of less than
10 consecutive hours is included in calculating the 14-hour tour-of-
duty provision. Thus, for a driver who starts the day at 5 a.m., and
later takes one sleeper-berth break for a few hours around noon, the
14-hour duty period would still end at 7 p.m. The single sleeper-berth
period cannot be excluded from calculation of the 14-hour limitation.
Informal communications with drivers and carriers indicate that
this limitation may create a hardship on drivers and may encourage them
to avoid taking rest breaks during the duty period. Under the previous
rule, drivers could exclude off-duty periods, such as ``breaks'' during
the day, from the 15-hour on-duty maximum. Under the current rule, the
14-hour duty period represents consecutive hours, meaning that drivers
may avoid breaks and meals in an attempt to accomplish as much work or
travel as far as possible in the 14 hours allowed. This is in contrast
to the indefinite period allowed under the old rule, because there was
no maximum amount of off-duty breaks which could be taken during the
duty ``day.''
The use of a split-sleeper-berth period affects calculation of the
maximum 11-hour driving time, 14-hour limitation, and the 60/70-hour
limitation. Because sleeper-berth periods may be taken by a driver at
any time, the calculations to determine whether a driver is in
compliance may be very difficult. In other words, a ``real world''
series of logbook pages may reflect that the driver has taken a variety
of sleeper-berth periods, as well as other on-duty and off-duty
periods. The way in which these periods interact to determine the hours
available for driving, or hours available under the 14-hour limitation,
can be very complex, and has required the agency to issue extensive
interpretations. Training of drivers and enforcement personnel
regarding the new rule has reportedly been very difficult due to the
complexities involved. Vendors of computer software for monitoring
hours-of-service compliance have reported difficulty in programming
their software to consistently calculate compliance. They have advised
the agency that the current regulatory language, even with extensive
interpretations and guidance, does not necessarily provide answers to
every scenario that may develop. Enforcement personnel have also
reported difficulty in calculating compliance during a roadside
inspection when split-sleeper-berth periods are used. For example, at
the time of inspection a driver may have only taken one sleeper-berth
period and could appear to be in violation of one or more limitations.
However, compliance would depend on whether the driver later takes a
second combinable sleeper-berth period. Determining compliance based on
potential future actions of the driver may create confusion and
inconsistency, and needs to be addressed in this rulemaking.
FMCSA will consider a variety of possible changes to the sleeper-
berth provisions, including but not limited to: (1) Not permitting any
split sleeper-berth use to count toward the minimum 10-hours off duty,
(2) allowing one continuous sleeper-berth period of less than 10-hours,
such as 8 hours, to substitute for the otherwise minimum 10 hours, (3)
eliminating split-sleeper-berth periods or establishing a minimum time
for one of the two ``splits,'' such as 5 hours, 8 hours, or some other
appropriate level, (4) revising the manner in which sleeper-berth
periods affect the calculation of the 14-consecutive-hour period, and
(5)
[[Page 3350]]
restricting variations on permissible sleeper-berth use to team drivers
only.
On November 3, 2003, the American Trucking Associations (ATA)
submitted a petition for rulemaking to FMCSA, requesting that the
hours-of-service rule be modified to permit a driver to extend the 14-
hour on-duty period by the use of one sleeper-berth period of a minimum
2 hours duration, provided the on-duty period is followed by a minimum
10-consecutive-hour off-duty period. A copy of the ATA petition is
filed in the docket for this rulemaking, and the subject matter of the
ATA petition will be addressed in this rulemaking.
Request F-3-1. Does sleeping in a sleeper berth, either in a moving
or stationary vehicle, have a detrimental effect on driver health and
the safe operation of CMVs? What are the obstacles to getting adequate
sleep in a sleeper berth? Does using a sleeper berth in a moving or
stationary CMV yield less restorative sleep (qualitatively or
quantitatively) than sleeping in a bed at home or at a motel? How do
in-vehicle temperature fluctuations due to ``no-idling'' laws, and
other environmental issues, impact sleeper-berth use?
Request F-3-2. What is the minimum time in each of two split-
sleeper-berth periods necessary to provide restorative sleep? What is
the impact of split-sleeper-berth periods on driver health and his or
her ability to obtain restorative sleep and manage fatigue? How often
is a single, continuous 10-hour sleeper-berth period used? How often
are consecutive off-duty time and a single sleeper-berth period (i.e.,
no split-sleeper-berth use) combined to meet the minimum 10-hour off-
duty requirement?
Request F-3-3. How often are split-sleeper-berth periods used to
obtain the required 10 or more hours of off-duty time? In a split-
sleeper-berth operation, how much time is usually spent in the sleeper
berth during a typical period? How are split-sleeper-berth periods
managed (i.e., number of hours in each of the two periods)? Why? How
does this provide restorative sleep or prevent sleep deprivation?
Request F-3-4. What impact does team drivers' use of sleeper berths
have on driver health, safe operation of CMVs, and economic factors and
how do such impacts differ from impacts on single drivers?
Request F-3-5. If the agency were to eliminate the split-sleeper-
berth exception and require a driver to take 10 consecutive hours off
duty (in a sleeper berth, or in combination with off-duty time), what
impact would this have upon driver health, the safe operation of CMVs,
and business operating practices?
Request F-3-6. If the agency were to retain the split-sleeper-berth
provision, but require that one of the two periods be at least 7, 8, or
9 hours in length, what impact would this action have on driver health,
the safe operation of CMVs, and economic factors? If one period is 7 or
more hours in length, is that equivalent to 10 consecutive hours of
non-sleeper-berth off-duty time (since little commuting and personal
time would be needed, allowing a greater percentage of the off-duty
period for sleep), or would a second sleeper-berth period still be
required?
Request F-3-7. What time and costs are saved by utilizing a sleeper
berth rather than commuting to other sleep locations such as home or a
motel, and what portion of the time saved is actually spent sleeping?
Request F-3-8. How does prohibiting extension of the 14-hour tour
of duty through the use of a single sleeper-berth period affect driver
health, safe operation of CMVs, and economic factors? How could
allowing the use of a limited sleeper-berth period to extend the 14-
hour limitation be accomplished without having a detrimental effect on
highway safety? What would be the appropriate length of such a limited
sleeper-berth rest period?
Request F-3-9. If the current hours-of-service rules are generally
retained ``as is,'' do you have any suggestions to simplify the
sleeper-berth calculations, yet provide the same or better levels of
driver health, safety, and operational flexibility? How could the
sleeper-berth provisions be modified or more clearly stated to simplify
calculations but not have a negative impact on driver health, safety,
and operational considerations?
Request F-3-10. Should the rule allow sleeper-berth periods to be
combined with off-duty periods when calculating a continuous off-duty
period? Should a sleeper-berth period that is part of a period of 10 or
more consecutive hours off duty also be combinable with a later
sleeper-berth period to allow a split-sleeper-berth calculation?
F.4. Electronic On-Board Recording Devices (EOBRs)
As indicated above, on September 1, 2004 (69 FR 53386), FMCSA
published an ANPRM requesting information about the use of electronic
on-board recording devices as a substitute for paper copies of driver
records of duty status (``logbooks''). As the agency said in the
preamble to that document, ``FMCSA is attempting to evaluate the
suitability of EOBRs to demonstrate compliance with the enforcement of
the hours-of-service regulations, which in turn will have major
implications for the welfare of drivers and the safe operation of
commercial motor vehicles.'' The ANPRM requested comments and
information on EOBR performance specifications and the potential costs
and benefits of such devices.
F.5. Other Provisions
General Requests
Request F-5-1. Please provide supplemental information or data on
any topic discussed in this NPRM that could augment existing
information for a final rule or other agency action regarding hours of
service in the future. Are there ``gaps'' in available data? Describe
the substantive nature of any data or information that you believe is
necessary to support a particular requirement but does not exist.
Explain what the ideal data or information set would contain. Include a
discussion not only of the individual requirements of the current rule,
but also of the interrelationships among those requirements and their
impact on driver health, the safe operation of CMVs, and economic
factors. In addition, suggest processes, methodologies, and sources
that would facilitate the collection and analysis of data on the topic
or topics. In responding here, commenters are requested to provide data
and other information in the context of driver hours-of-service
requirements and the incremental changes from the old rule to the new
rule.
Request F-5-2. What has been the effect of the new hours-of-service
regulations upon CMV-related crashes? Please provide detailed
information, if available.
Request F-5-3. What has been and will be the effect of CMV improved
or reduced driver compliance as a result of the changes made by the new
hours-of-service rules? Have CMV drivers become more or less compliant
with the regulations?
Short-Haul Exemption
For local short-haul drivers, driving is only part of their daily
work routine. These drivers perform a variety of tasks including, but
may not be limited to, receiving the day's driving schedule, driving,
loading and unloading the vehicle, getting in and out of the vehicle
numerous times, lifting and carrying packages, and engaging in customer
relations. The research on local short-haul operations has suggested
that fatigue is less of a problem than for long-haul drivers (``Impact
of the Local
[[Page 3351]]
Short Operations on Driver Fatigue,'' Hanowski, R., et al. (2000) and
``Short-Haul Trucks and Driver Fatigue,'' Massie, D.L., et al. (1997)).
Since local short-haul drivers typically work daytime hours, they are
much more likely to maintain regular schedules that are less intense
than many long-haul drivers. Short-haul drivers are significantly less
likely to be working 13 or more hours or to have irregular circadian
patterns. Also, local short-haul drivers typically sleep at home every
night in their own beds. Thus, local short-haul drivers are much more
likely to be getting the daily restorative sleep necessary to maintain
vigilance.
As a result, the 2003 hours-of-service rule provided a special
exemption for local short-haul operations, which included those drivers
who return to their normal work-reporting location on a regular daily
basis. The exemption provided greater flexibility with regard to on-
duty hours for local short-haul drivers. The rule provided an exception
to the 14-hour limit once a week (or after a 34-hour restart period),
which allows two additional non-driving hours.
Based on the data and research available at the time, FMCSA was
convinced that the 14-hour limit for most drivers, with a 16-hour limit
for short-haul drivers once a week, is materially better from a safety
standpoint than the earlier hours-of-service rule. Drivers under the
old rule could extend their daily working well beyond the allowed 15-
hour limit, because of ``off-duty'' breaks, meals, and weather-related
conditions. The added two hours of work time once a week could be
productively used by the short-haul segment to meet peak demands,
accommodate training, and complete required recordkeeping.
For these reasons, FMCSA is proposing to continue the local short-
haul exemption.
G. Rulemaking Analyses and Notices
Because FMCSA is reexamining the hours-of-service regulations for
drivers and operators of property-carrying CMVs that were published on
April 28, 2003 (68 FR 22456) and amended on September 30, 2004 (68 FR
56208), the rulemaking analyses and notices, and regulatory language
accompanying that final rule (see 68 FR 22505-22513) remain applicable
to this NPRM and are not being fully reprinted in this notice.
In the Regulatory Impact Analysis (RIA) to the 2003 final rule,
FMCSA evaluated three alternative proposals for the hours-of-service
rule. The alternative that was adopted and became the 2003 final rule
was referred to in the RIA as the ``FMCSA Proposal.'' The full text of
the RIA that was prepared for the 2003 final rule is located in that
docket (FMCSA-1997-2350-23302) and the docket to this rulemaking.
G.1. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined that this rulemaking constitutes an
economically significant regulatory action under Executive Order 12866
because the agency estimates this action will have an annual effect on
the economy of $100 million or more. This is the effect of the change
from the hours-of-service rule prior to 2003, compared to the current
rule published in 2003, which is being reexamined in this NPRM. FMCSA
has also determined that this regulatory action is significant under
the regulatory policies and procedures of DOT because of the high level
of interest concerning motor carrier safety issues expressed by
Congress, motor carriers, their drivers and other employees, State
governments, safety advocates, and members of the traveling public.
Finally, FMCSA has determined that this regulatory action is a major
rule under the Congressional Review Act, 5 U.S.C. 801 et seq.
The RIA for the final rule published on April 28, 2003 (Docket
FMCSA-1997-2350-23302), estimated net social benefits to be $1.1
billion annually, when compared to the previous hours-of-service rules
with full compliance. Alternatively, when compared to the previous
rules under an assumption of less than full compliance, the current
rule results in annual net social benefits of -$611 million. When
assuming less than full compliance by industry with the previous hours-
of-service rules, total annual costs of the new rules equal
approximately $1.3 billion. For major rules involving annual economic
effects of $1 billion or more, the Office of Management and Budget
requires several new issues to be considered as part of the RIA (OMB
Circular A-4, published September 17, 2003). Most notably, the RIA must
present a formal quantitative analysis of the relative uncertainties
concerning particularly important benefit and cost elements of the
rule. Additionally, a cost-effectiveness analysis is required for all
major rulemakings for which the primary benefits are improved public
health and safety, where valid effectiveness measures can be developed.
As such, FMCSA has prepared these two supplemental analyses to the RIA
and will include them in the docket to this rulemaking.
The original RIA that accompanied the 2003 final rule has not been
changed or reprinted, but answers to the following questions would help
FMCSA to prepare the new RIA that will be required when the agency
adopts a final rule.
Request G-1-1. What changes have been made by shippers and carriers
to adjust to the 14-hour rule? What was the cost of those changes? What
would be the additional costs if the 14-hour rule were changed again?
Has the loading and unloading of CMVs become more or less efficient as
a result of the 14-hour rule? What has been the economic impact of this
change?
Request G-1-2. What has been the economic impact of the new
regulations on all segments of the motor carrier industry? For example,
have motor carrier revenues and shipping costs increased or decreased
as a result of the new hours-of-service regulations?
Request G-1-3. What costs have been incurred in re-training
personnel to understand the new hours-of-service rule?
Request G-1-4. What is the impact of the driver wage structure
(either per mile or per hour) on the hours driven and/or health and
safety of drivers under the new rule?
Request G-1-5. How many, or what percentage of, motor carriers
provide health insurance for their drivers? If not covered by their
employer, how many drivers currently purchase their own health
insurance? How many are uncovered? If the agency reduced the driving
time allowed by the 2003 rule, or shortened the daily or weekly on-duty
period during which driving is allowed, would motor carrier revenues
and/or profits be sufficient to sustain employer-provided health
insurance? At what point, in terms of regulatory limits, would
employers curtail or end such health insurance? At what point would
shorter driving times or on-duty windows reduce driver income enough to
make health insurance unaffordable?
G.2. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), requires Federal
agencies to analyze the impact of rulemakings on small entities, unless
the agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. In its analysis for
the April 28, 2003, final rule, FMCSA determined that while large
numbers of small entities would be affected with regard to their short-
haul operations, no significant economic
[[Page 3352]]
impacts were projected for a substantial number of small entities.
Although the RFA section of the 2003 final rule is not being
changed or reprinted, answers to the following questions would help
FMCSA to prepare the small-business impact analysis that will be
required when the agency adopts a final rule.
Request G-2-1. Since implementation of the 2003 final rule starting
in January 2004, what has been the impact on small motor carriers
(those with less than $21.5 million in annual revenues) with short-haul
operations, specifically with regard to your revenues and costs (labor,
capital, and other)? In responding to this question, please be specific
as to the period for which the revenue and cost impacts are being
measured (e.g., monthly, biannual, or six months). In addition, please
indicate whether you are a truckload or less-than-truckload (LTL)
carrier (or drive for one), a private or for-hire motor carrier (or
drive for one), and those commodities you haul most frequently.
Request G-2-2. Since implementation of the 2003 final rule, what
has been the impact on small motor carriers (those with less than $21.5
million in annual revenues) with long-haul operations, specifically
with regard to your revenues and costs (labor, capital, and other)? In
responding to this question, please be specific as to the period for
which the revenue and cost impacts are being measured (e.g., monthly,
biannual, or six months). Please indicate whether you are a truckload
or LTL carrier (or drive for one), a private or for-hire motor carrier
(or drive for one), and those commodities you haul most frequently.
Request G-2-3. For small motor carriers with short-haul operations,
please provide a breakdown of the cost changes resulting from
implementation of the 2003 final rule. For example, please separate
cost increases or decreases by changes in labor costs (e.g., driver
salaries and fringe benefits), capital or equipment costs (e.g., recent
purchase or sale of tractors and trailers), and other capital (i.e.,
infrastructure) or operating costs. Please indicate whether you are a
truckload or LTL carrier (or drive for one), a private or for-hire
motor carrier (or drive for one), and those commodities you haul most
frequently.
Request G-2-4. For small motor carriers with long-haul operations,
please provide a breakdown of the cost changes resulting from
implementation of the 2003 final rule. For example, please separate
cost increases or decreases by changes in labor costs (e.g., driver
salaries and fringe benefits), capital or equipment costs (e.g., recent
purchase or sale of tractors and trailers), and other capital (i.e.,
infrastructure) or operating costs. Please indicate whether you are a
truckload or LTL carrier (or drive for one), a private or for-hire
motor carrier (or drive for one), and those commodities you haul most
frequently.
G.3. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires each agency to
assess the effects of its regulatory actions on State, local, and
tribal governments and the private sector. Any agency promulgating a
final rule resulting in a Federal mandate requiring expenditure by a
State, local, or tribal government or by the private sector of $120.7
million or more in any one year must prepare a written statement
incorporating various assessments, estimates, and descriptions that are
delineated in the Act. The hours-of-service final rule published in
2003 and being reexamined in this NPRM is a major rule that costs motor
carriers more than $120.7 million in a given year. FMCSA has prepared
the following statement which addresses each of the elements required
by the Unfunded Mandates Reform Act of 1995 (UMRA).
Qualitative and Quantitative Assessment of Costs and Benefits
The UMRA requires a qualitative and quantitative assessment of the
anticipated costs and benefits of this Federal mandate. The 2003 final
rule evaluated several proposals, including an ``FMCSA Staff'' option.
Relative to the previous rules with full compliance, the FMCSA option
was estimated to result in a cost savings of approximately $900 million
per year. Benefits under this ``full compliance'' scenario were
estimated to be approximately $200 million per year, resulting in net
benefits of $1.1 billion per year. The final rule does not impose any
cost on State, local, or tribal governments.
Effect on Health, Safety, and the Natural Environment
The UMRA also requires FMCSA to discuss the effect of the Federal
mandate on health, safety, and the natural environment. FMCSA prepared
an environmental assessment for the 2003 final rule, which was placed
in the docket (FMCSA-1997-2350-23303), and is also in the docket to
this rulemaking, showing that the rule would not have a significant
impact on the natural environment. The effects of the rule on health
and safety are much more significant: the primary benefit of the 2003
final rule (and thus of this reexamination) was a reduction in
accidents. The RIA that accompanied the 2003 final rule explains these
estimates in detail in Chapters 8 and 9.
Federal Financial Assistance
Section 202(a)(2)(A) of the UMRA requires that this qualitative and
quantitative assessment of costs and benefits include an analysis of
the extent to which costs to State, local, and tribal governments may
be paid with Federal financial assistance or otherwise paid for by the
Federal Government. Since this rulemaking action is applicable only to
motor carriers subject to the Federal Motor Carrier Safety Regulations
(FMCSRs), there would be no cost to State, local, and tribal
governments. Therefore, no Federal funds for these entities would be
necessary for motor carriers to comply with the requirements. All
States, however, receive Motor Carrier Safety Assistance Program
(MCSAP) grants requiring them to adopt and enforce most of the FMCSRs
or compatible State regulations, including the 2003 hours-of-service
rule.
Future Compliance Costs
To the extent feasible, section 202(a)(3) of the UMRA requires
estimates of the future compliance costs of this rulemaking action, and
any disproportionate budgetary effects upon particular regions, or upon
urban, rural, or other types of communities, or upon particular
segments of the private sector. The 2003 final rule, which is being
reexamined here, has no disproportionate budgetary effects upon
particular regions, or upon urban, rural, or other types of
communities. The RIA accompanying the 2003 final rule includes an
analysis of the impact of the ``FMCSA Proposal'' on various regions,
using the REMI Policy InsightTM Model. The model showed no
significant disparate impact on any region. These impacts are discussed
in chapter 11 of the RIA.
Effect on the National Economy
Section 202(a)(4) of the UMRA requires estimates of the effect on
the national economy, such as the effect on economic growth, full
employment, creation of productive jobs, and international
competitiveness. The REMI model mentioned above also yielded an
estimate of the macroeconomic \3\ costs of the options. Relative to the
previous rule with 100
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percent compliance, FMCSA estimated that the impact on gross regional
product \4\ (GRP) would be minimal, less than 0.1 percent of GRP for
all the alternatives. One alternative would have reduced GRP by almost
$12 billion per year, while all other alternatives would have resulted
in a small increase in GRP.
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\3\ Macroeconomics: concerned with the behavior of the entire
national economy, or major segments of it.
\4\ Gross Regional Product (GRP): the market value of all goods
and services produced by a regional (i.e., multi-State) economy. The
REMI model used in this analysis included six multi-state regions
that, when aggregated, comprise the entire U.S. economy.
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Because FMCSA believed the overall driving time for most CMV
drivers would not change, the agency concluded the alternatives would
not have a significant impact on full employment or the creation of
productive jobs. The agency also did not believe that the ``FMCSA
Proposal'' would have any significant impact on international
competitiveness.
Prior Consultations With Elected Representatives of Any Affected State,
Local, or Tribal Governments
This reexamined rule does not require action by State, local, or
tribal governments. Therefore, no prior consultations with elected
representatives of these governments were initiated.
Decision To Impose an Unfunded Mandate
When Congress created FMCSA, it provided that, ``[i]n carrying out
its duties the Administration shall consider the assignment and
maintenance of safety as the highest priority * * *'' [49 U.S.C.
113(b)]. As indicated above, section 408 of the ICCTA directed the
agency--then part of FHWA--to begin a 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 section 408 both demanded that the 2003 final rule
improve CMV safety.
The 2003 final rule, which is being reexamined, represents a
substantial improvement in addressing driver fatigue over the previous
rule. Together, the provisions 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, FMCSA adopted a rule that was marginally more
expensive than other alternatives but would reduce fatigue-related
accidents and fatalities more substantially, even though it imposes an
unfunded mandate.
G.4. National Environmental Policy Act
FMCSA analyzed the alternatives discussed in the RIA accompanying
the 2003 final rule as required by the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.) and DOT Order 5610.1C. As shown in
Table 25 of the 2003 final rule preamble (Environmental Assessment),
none of the alternatives had a significant adverse impact on the human
environment and all of the alternatives had beneficial impacts in some
areas. None of the alternatives stood out as environmentally
preferable, when compared to the other alternatives. This environmental
assessment and finding of no significant impact (FONSI) for the 2003
final rule are in the docket for that rule (FMCSA-1997-2350-23303), as
well as in the docket to this rulemaking. The National Environmental
Policy Act (NEPA) section of the 2003 final rule preamble is not being
changed or reprinted here. However, to assist the agency in preparing
the NEPA analysis that will be required when the agency adopts a final
rule, FMCSA requests comments.
Request G-4-1. What impact would the possible changes to the 2003
final rule discussed in this NPRM have on the environment?
G.5. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FMCSA determined that
this NPRM will affect a currently approved information clearance for
OMB Control Number 2126-0001, titled ``Hours of Service of Drivers
Regulation.'' OMB approved this information collection on April 29,
2003, at a revised total of 160,376,492 burden hours, with an
expiration date of April 30, 2006. The PRA requires agencies to provide
a specific, objectively supported estimate of burden that will be
imposed by the information collection. See 5 CFR 1320.8. The paperwork
burden imposed by FMCSA's record-of-duty-status (RODS) requirement is
set forth at 49 CFR 395.8.
The agency believes that the possible revisions to the 2003 final
rule discussed in this NPRM will not bring about an appreciable change
in the paperwork burden to the estimated 4.2 million drivers required
to complete and maintain the RODS, which is commonly referred to as a
``logbook.'' This NPRM and a supporting statement reflecting this
assessment have been submitted to OMB. You may submit comments on this
directly to OMB. OMB must receive your comments by March 10, 2005. You
must mail or hand deliver your comments to: Attention: Desk Officer for
the Department of Transportation, Docket Library, Office of Information
and Regulatory Affairs, Office of Management and Budget, Room 10102,
725 17th Street, NW., Washington, DC 20503.
G.6. Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed the 2003 final rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. As a part of the Environmental Assessment, FMCSA
analyzed the alternatives discussed in the preamble to the 2003 final
rule. Table 26 of that final rule preamble showed the energy
consumption effects of the alternatives. From a national energy
consumption perspective, the FMCSA alternative, which was adopted and
is being reexamined in this NPRM, had essentially a net zero effect on
national energy consumption. FMCSA does not consider this effect to be
significant.
In accordance with Executive Order 13211, the agency prepared a
``Statement of Energy Effects'' for the 2003 final rule. A copy of this
statement is in Appendix D to the Environmental Assessment of the 2003
final rule (Docket FMCSA-1997-2350-23303).
G.7. Executive Order 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of the alternatives
discussed in the 2003 final rule in accordance with Executive Order
12898 and determined that there were no environmental justice issues
associated with revising the hours-of-service regulations.
Environmental justice issues would be raised if there were
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations. FMCSA determined through the Environmental
Assessment that there were no high and adverse impacts associated with
any of the alternatives. In addition, FMCSA analyzed the demographic
makeup of the trucking
[[Page 3354]]
industry potentially affected by the alternatives and determined that
there was no disproportionate impact on minority or low-income
populations. This is based on the finding that low-income and minority
populations are generally underrepresented in the trucking occupation.
In addition, the most impacted trucking sectors do not have
disproportionate representation of minority and low-income drivers
relative to the trucking occupation as a whole. Appendix E of the
Environmental Assessment provides a detailed analysis used to reach
this conclusion.
G.8. Executive Order 13045 (Protection of Children)
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (April 23, 1997, 62 FR 19885), requires
agencies issuing ``economically significant'' rules to include an
evaluation of their environmental health and safety effects on
children, providing the agency has reason to believe the rule may
disproportionately affect children. FMCSA evaluated the projected
effects of the 2003 final rule and the various alternatives and
determined that they would not create disproportionate environmental
health or safety risks to children. The only adverse environmental
effect with potential human health consequences is the projected
increase in emissions of air pollutants. The final rule resulted in a
minor increase in emissions on a national scale. FMCSA projects no
adverse human health consequences to either children or adults because
the magnitude of emission increases is small. The 2003 final rule and
alternatives, however, reduced the safety risk posed by tired, drowsy,
or fatigued drivers of CMVs. These safety risk improvements accrued to
children and adults equally.
G.9. Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
G.10. Executive Order 12630 (Taking of Private Property)
This reexamined rule will not effect a taking of private property
or otherwise have ``taking implications'' under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
G.11. Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. FMCSA has determined the
2003 final rule, which is being reexamined here, does not have a
substantial direct effect on States, nor would it limit the
policymaking discretion of the States. Nothing in this document
preempts any State law or regulation.
A State participating in the Motor Carrier Safety Assistance
Program (MCSAP) that fails to adopt the 2003 final rule three years
after its effective date (June 27, 2003) will be deemed to have
incompatible regulations and will not be eligible for MCSAP Basic
Program or Incentive Funds in accordance with 49 CFR 350.335(b). MCSAP
has no federalism implications under Executive Order 13132.
G.12. Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this NPRM.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, FMCSA is reexamining the
amendments to 49 CFR chapter III, parts 385, 390, and 395 as set forth
in the final rule on hours of service of drivers published on April 28,
2003 (68 FR 22456) and amended on September 30, 2003 (68 FR 56208).
Those amendments are not being reprinted here.
Issued on: January 18, 2005.
Annette M. Sandberg,
Administrator.
[FR Doc. 05-1248 Filed 1-18-05; 4:20 pm]