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Safety Recommendation Details

Safety Recommendation H-07-041
Details
Synopsis: On Friday, July 16, 2004, about 12:00 p.m., a 1999 Sterling tractor towing a 1997 Great Dane semitrailer was part of a traffic queue moving slowly east on Interstate 94 (I-94), behind a 2004 Saturn station wagon approaching the Fletcher Road overpass near Chelsea, Michigan. The queue had formed following an earlier accident in the eastbound lanes of a highway maintenance zone. At the same time, a 2000 Kenworth tractor towing a 2000 Hyundai semitrailer, owned by Equity Transportation Company, Inc. (Equity), was traveling behind the queue on I-94, approaching the Fletcher Road overpass at a witness-estimated speed of 60 mph. The Kenworth driver failed to slow in time for the traffic queue ahead. A 115-foot preimpact skid mark indicated that the Kenworth driver applied the brakes and swerved to the right just before his truck collided with the Sterling’s semitrailer. The left front of his truck struck the right rear of the Sterling’s semitrailer, compressing the cab of the Kenworth about 6 feet to the rear, trapping and fatally injuring its driver. The impact propelled the Sterling tractor-semitrailer into the Saturn in front of it, resulting in minor injuries to the Sterling driver and to a passenger in the Saturn.
Recommendation: TO THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION: Require all interstate commercial vehicle carriers to use electronic on-board recorders that collect and maintain data concerning driver hours of service in a valid, accurate, and secure manner under all circumstances, including accident conditions, to enable the carriers and their regulators to monitor and assess hours-of-service compliance.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Acceptable Alternate Action
Mode: Highway
Location: Chelsea, MI, United States
Is Reiterated: Yes
Is Hazmat: No
Is NPRM: No
Accident #: hwy04mh031
Accident Reports: Rear-End Chain Reaction Collision, Interstate 94 East
Report #: HAB-07-01
Accident Date: 7/16/2004
Issue Date: 12/17/2007
Date Closed: 3/29/2016
Addressee(s) and Addressee Status: FMCSA (Closed - Acceptable Alternate Action)
Keyword(s): Fatigue,

Safety Recommendation History
From: NTSB
To: FMCSA
Date: 3/29/2016
Response: We are pleased that, on December 16, 2015, you published your rule, titled Electronic Logging Devices [ELD] and Hours of Service Supporting Documents. Although this rule is not the universal mandate that we recommended, we recognize that it represents significant progress toward improving HOS compliance and safety by mandating ELDs for most motor carrier operations. By extending the population of affected drivers, establishing technical specifications for reliable ELD performance and for tamper-resistance, clarifying the supporting documents requirement and making it applicable to all drivers currently required to prepare HOS records of duty status, and adopting anti-harassment provisions to protect drivers, this rule constitutes an acceptable alternate method of satisfying the recommended actions. Accordingly, Safety Recommendations H-07-41 and -42 are classified CLOSED—ACCETPABLE ALTERNATE ACTION. As we continue to link the cause of fatigue-related accidents to HOS violations, we encourage you to consider further expansion of the mandate in the future, to include the remaining driver population that is currently exempt from the new ELD requirements. Thank you for your continued efforts to improve commercial vehicle safety.

From: FMCSA
To: NTSB
Date: 1/28/2016
Response: -From T.F. Scott Darling, III, Acting Administrator: On December 16, 2015, FMCSA published the Electronic Logging Devices (ELD) and Hours of Service (HOS) Supporting Documents final rule (80 FR 78292). The final rule will be effective on February 16, 2016, with a compliance date of December 18, 2017. I have enclosed a copy of the final rule for your information. The requirements for ELDs will improve compliance with HOS rules. Specifically, the final rule: (I) requires new technical specifications for ELDs that address statutory requirements; (2) mandates ELDs for drivers currently using records of duty status; (3) clarifies supporting document requirements so that motor carriers and drivers can comply efficiently with HOS regulations; and (4) adopts both procedural and technical provisions aimed at ensuring that ELDs are not used to harass commercial motor vehicle operators. FMCSA respectfully requests that NTSB close safety recommendations H-07-041 and H-07-042. FMCSA shares NTSB's goal of improving motor carrier safety and is committed to improving commercial motor vehicle safety. I believe publication of this final rule addresses the intent of NTSB's safety recommendations.

From: NTSB
To: FMCSA
Date: 9/15/2015
Response: As we pointed out in our May 27, 2014, comments (enclosed) on your March 28, 2014, supplemental NPRM, your proposed rule neither addresses crash damage resistance and data survivability performance standards, nor mandates electronic logging device (ELD) use by all commercial vehicle drivers subject to the hours-of-service requirements. Nevertheless, we are encouraged by your intent to expand the ELD mandate to include all drivers required to maintain record-of-duty-status logs and to ensure that ELD providers develop compliant systems that are reliable, tamper-resistant, and facilitate methods for providing authorized safety officials with drivers’ ELD data. The proposed rule represents a significant improvement over the April 5, 2010, rule. Accordingly, pending our review of the final rule when it is published, Safety Recommendation H-07-41 is classified OPEN—ACCEPTABLE RESPONSE.

From: NTSB
To: FMCSA
Date: 5/27/2014
Response: The National Transportation Safety Board (NTSB) has reviewed the Federal Motor Carrier Safety Administration (FMCSA) supplemental notice of proposed rulemaking (SNPRM), titled “Electronic Logging Devices and Hours of Service Supporting Documents,” which was published at 79 Federal Register (FR) 17656 on March 28, 2014. The SNPRM supplements the FMCSA notice of proposed rulemaking (NPRM), titled “Electronic On-Board Recorders and Hours of Service Supporting Documents,” published on February 1, 2011 (76 FR 5537). The FMCSA defines an ELD as a recording technology that is connected to the engine of a CMV to track the time a CMV is operating. An ELD also allows drivers or motor carrier representatives to make annotations to explain or correct records. Properly designed, used, and maintained ELDs enable drivers, motor carriers, and authorized safety officials to track on-duty driving hours more effectively and accurately, thus preventing both inadvertent and deliberate HOS violations. Driver compliance with the HOS regulations helps ensure drivers are provided time to obtain restorative rest to enable them to operate their CMVs safely. The NTSB first recommended mandating the use of on-board recorders to enforce HOS regulations in 1990 as the result of a safety study it conducted focusing on fatal-to-the-driver heavy truck crashes. The NTSB recommended that the Federal Highway Administration, the states, Puerto Rico, the Virgin Islands, and the US territories Require automated/tamper-proof on-board recording devices such as tachographs or computerized logs to identify commercial truck drivers who exceed hours-of-service regulations. (H-90-28 and -48) The NTSB added those recommendations to its Most Wanted List in 1990; however, both recommendations were ultimately classified “Closed—Unacceptable Action,” due to a lack of progress or response from the recipients. In 1998, the NTSB issued similar recommendations to multiple industry and labor groups following the investigation of a 1997 multiple-vehicle accident in Slinger, Wisconsin. Again, because of the recipients’ lack of action or response, the NTSB classified the recommendations “Closed—Unacceptable Action.” In 2007, as a result of the investigation of a rear-end collision involving two tractor-semitrailers and a passenger vehicle that occurred in Chelsea, Michigan, the NTSB recommended that the FMCSA Require all interstate commercial vehicle carriers to use electronic on-board recorders that collect and maintain data concerning driver hours of service in a valid, accurate, and secure manner under all circumstances, including accident conditions, to enable the carriers and their regulators to monitor and assess hours-of-service compliance. (H-07-41) In 2008, Safety Recommendation H-07-41 was added to the NTSB Most Wanted List. Subsequent NTSB reports concerning accidents caused by fatigued CMV drivers reiterated Safety Recommendation H-07-41 and encouraged the FMCSA to take action to mandate ELDs for all interstate CMV carriers as soon as possible. In 2007, the FMCSA published an NPRM proposing mandatory ELD installation for motor carriers with a demonstrated history of serious noncompliance with HOS rules (72 FR 2340), and, in April 2010, the agency published a final rule (75 FR 17209), which, similar to the 2007 NPRM, mandated ELDs only as a form of “remediation” for motor carriers with a history of HOS violations. In promulgating the final rule, the FMCSA committed to exploring a broader ELD mandate in a future rulemaking process; however, because of the limited scope of the 2007 NPRM and 2010 final rule, the NTSB reclassified H-07-41 “Open—Unacceptable Action.” In its February 1, 2011, NPRM, FMCSA proposed that all motor carriers using records of duty status (RODS) for HOS recordkeeping be required to use ELDs to monitor driver compliance with HOS requirements. The NTSB responded favorably to the NPRM proposal to expand ELD use to considerably more drivers, but encouraged the FMCSA to extend the requirement to all CMV operations subject to the HOS requirements.

From: NTSB
To: FMCSA
Date: 4/19/2011
Response: Notation 8298: The National Transportation Safety Board (NTSB) has reviewed the Federal Motor Carrier Safety Administration (FMCSA) notice of proposed rulemaking (NPRM) titled “Electronic On-Board Recorders and Hours of Service Supporting Documents,” which was published at 76 Federal Register (FR) 5537 on February 1, 2011. The NPRM proposes to require certain motor carriers operating commercial motor vehicles (CMV) in interstate commerce to use electronic on-board recorders (EOBR) to document their hours of service (HOS). However, the NPRM would exempt from the EOBR requirement those drivers who are not currently required to maintain records of duty status (RODS) for HOS recordkeeping. The NTSB maintains, based on its safety studies and CMV accident investigations involving a variety of industry sectors, that a universal and mandatory requirement for EOBRs would create a level playing field for compliance with HOS regulations and make our highways safer for all drivers. A rule that would apply the EOBR mandate to all CMV drivers subject to the HOS requirements would have the most positive impact on highway safety. Although the NPRM falls somewhat short of this ideal, the current proposal represents a significant improvement over the previous (April 5, 2010) EOBR rule, and the NTSB commends the FMCSA for making progress toward improving HOS compliance and CMV safety. Background The NTSB has a long history of advocating the use of in-vehicle recording systems to improve highway safety. In 1977, the NTSB issued its first highway recommendation concerning the use of on-board recording devices, which asked the Federal Highway Administration (FHWA) to conduct research to determine the effects and merits of the use of tachographs, also referred to as “recording speedometers,” on commercial vehicles in reducing accidents (Safety Recommendation H-77-32). The FHWA responded in April 1978 that it had rejected the concept of using tachographs due to the technical limitations of existing recording speedometers and a lack of evidence that the technology would lead to accident prevention. The FHWA stated, however, that it was studying the use of modified tachographs as an alternative to paper logs and expected testing to be completed within a year. The NTSB classified this recommendation “Closed—Acceptable Action” on June 3, 1980. The NTSB first recommended mandating the use of on-board recorders in 1990, after concluding that on-board recording devices could provide a tamper-proof mechanism to help enforce the HOS regulations. The National Transportation Safety Board made the following recommendations to the Federal Highway Administration, the states, Puerto Rico, the Virgin Islands, and the U.S. territories: Require automated/tamper-proof on-board recording devices such as tachographs or computerized logs to identify commercial truck drivers who exceed hours of service regulations. (H-90-28 and -48) The NTSB also added the recommendations to its Most Wanted List of Transportation Safety Improvements (Most Wanted List) in 1990. However, both recommendations were ultimately classified “Closed—Unacceptable Action” due to lack of effective progress or response. In 1998, the NTSB issued similar recommendations to multiple industry and labor groups following the investigation of a 1997 multiple-vehicle accident in Slinger, Wisconsin. Again, because of the recipients’ lack of action or response, the NTSB classified the recommendations “Closed—Unacceptable Action.” In January 2007, the FMCSA published an NPRM that would have required mandatory installation of EOBRs by motor carriers that are “pattern violators,” that is, those with a “demonstrated history of serious noncompliance with hours-of-service rules.” According to the 2007 NPRM, a carrier would be recognized as a pattern violator of HOS regulations if it had a violation rate of 10 percent or greater during any two compliance reviews performed over a 2 year period. Carriers identified as pattern violators would be required to use EOBRs, instead of paper logs, to track and record driver HOS for 2 years. In its response to the NPRM, the NTSB noted that using EOBR installation as a punitive compliance measure would be less effective in promoting adherence to HOS regulations than enacting a universal EOBR mandate, especially given the limitations of the compliance review process. The NTSB’s response also called on the FMCSA to take steps to ensure EOBR damage resistance and data survivability, because such data have proven invaluable in the reconstruction of events leading to an accident and the postaccident assessment of driver HOS status. In December 2007, the NTSB issued a report documenting a rear-end collision involving two tractor-semitrailers and a passenger vehicle that occurred in Chelsea, Michigan. The NTSB determined that the probable cause of the Chelsea accident was the truck driver’s failure to stop upon encountering traffic congestion due to a reduced state of alertness associated with his failure to obtain adequate rest. Factors contributing to the accident included the carrier’s insufficient regard for, and oversight of, driver compliance with the HOS regulations, as well as the FMCSA’s failure to require motor carriers to use tamper-proof driver’s logs. As a result of the accident investigation, the National Transportation Safety Board made the following recommendations to the Federal Motor Carrier Safety Administration: Require all interstate commercial vehicle carriers to use electronic on-board recorders that collect and maintain data concerning driver hours of service in a valid, accurate, and secure manner under all circumstances, including accident conditions, to enable the carriers and their regulators to monitor and assess hours of-service compliance. (H-07-41) As an interim measure and until industrywide use of electronic on-board recorders is mandated, as recommended in Safety Recommendation H-07-41, prevent log tampering and submission of false paper logs by requiring motor carriers to create and maintain audit control systems that include, at a minimum, the retention of all original and corrected paper logs and the use of bound and sequentially numbered logs. (H-07-42) Based on the FMCSA’s intention to limit mandatory EOBR use to carriers with a demonstrated history of serious noncompliance, on October 14, 2008, the NTSB classified Safety Recommendations H-07-41 and -42 “Open—Unacceptable Response.” On October 25, 2008, the NTSB added Safety Recommendation H-07-41 to its Most Wanted List. In subsequent NTSB reports concerning accidents caused by fatigued drivers, the NTSB reiterated Safety Recommendation H-07-41 and encouraged the FMCSA to take action to mandate EOBRs for all interstate CMV carriers as soon as possible. On April 5, 2010, the FMCSA issued a final EOBR rule (75 FR 17209) which, like the 2007 NPRM, mandated EOBRs only as a form of “remediation” for motor carriers with a history of HOS violations. The FMCSA estimated that the rule would result in the annual issuance of 5,419 remedial directives, affecting 104,428 power units. In the 2010 final rule, the FMCSA acknowledged that many responses to the 2007 NPRM expressed concern that the limited scope of the rule would cause it to have no meaningful effect on highway safety. Consequently, the FMCSA committed to exploring a broader EOBR mandate in a new rulemaking process. In its response to the 2010 rule, the NTSB encouraged the FMCSA to expand the scope of the rule to require EOBR use by all drivers covered by the HOS regulations and to include in the rule standards for EOBR damage resistance and data survivability. Proposed Rule Revisions Under the February 1, 2011, proposed rule, all motor carriers would continue to be required to systematically monitor their drivers’ compliance with HOS requirements. Motor carriers with drivers currently required to maintain RODS for HOS recordkeeping would be required to use EOBRs to monitor their drivers’ compliance with HOS requirements. Those drivers not currently required to use RODS under the provisions of 49 Code of Federal Regulations (CFR) 395.1(e)(1) and (2)—that is, certain short-haul drivers—could continue to track their hours with timecards, as they do now. The FMCSA estimated in its regulatory impact analysis that there are approximately 4.0 million CMV drivers, of which about 1.6 million are long-haul and 2.4 million are short-haul drivers. The FMCSA further estimated that approximately 25 percent of short-haul drivers, or about 594,000 drivers, are not currently required to use RODS and would be exempt from the EOBR mandate. Therefore, under the proposed rule, approximately 3.4 million CMV drivers, comprising about 85 percent of all CMV drivers, would be required to use EOBRs to facilitate the monitoring of HOS compliance. The proposed rule would also revise the definition of “supporting documents” within the HOS management system to make it consistent with the definition used in the Hazardous Materials Transportation Authorization Act (HMTAA). The supporting documents would be required to provide information about the driver’s identification and a complete and accurate history of the driver’s duty status by date, time, and location. The NTSB is pleased that the NPRM would require EOBR use by considerably more motor carriers and drivers than were covered under the April 2010 final rule. The expanded scope of the EOBR mandate will ensure the availability of valid, accurate, and secure HOS data for those drivers affected by the rule. The monitoring of these data by motor carriers and the FMCSA is likely to have the effect of reducing HOS violations and may ultimately reduce CMV crashes, as suggested by research conducted by the FMCSA and others. Although it supports the FMCSA’s intention to extend the EOBR use requirement to more carriers and drivers, the NTSB continues to advocate further expansion of the mandate to include all CMV operations subject to HOS requirements. The FMCSA acknowledges that among the approximately 15 percent of operations that would be exempt from the EOBR requirements in the NPRM are some passenger-carrying and hazardous materials transporting motor carriers. The NTSB is concerned that exempting such operations from this rule could result in increased risk of HOS violations by their drivers (relative to drivers required to use EOBRs) and, thus, a heightened potential for fatigue-related accidents involving mass fatalities. The NTSB further notes that the NPRM does not address EOBR damage resistance and data survivability. The NTSB believes the rulemaking would be enhanced by the addition of performance standards to ensure that data captured by EOBRs survive in the event of a crash. Summary The NTSB continues to believe that only by mandating EOBR use by all CMV drivers subject to the HOS requirements can the greatest safety benefits be realized. Nevertheless, the NTSB is encouraged by the FMCSA’s intention to expand the EOBR mandate to the approximately 85 percent of CMV drivers required to maintain RODS and considers that the current proposal represents a significant improvement over the April 5, 2010, rule. The NTSB appreciates the opportunity to comment on this NPRM.

From: NTSB
To: FMCSA
Date: 3/3/2011
Response: Notation 8286: Carrier Safety Administration (FMCSA) notice of proposed rulemaking (NPRM) titled “Hours of Service of Drivers,” which was published at 75 Federal Register (FR) 82170 on December 29, 2010. The notice proposes to revise the regulations for hours of service (HOS) for drivers of property-carrying commercial motor vehicles (CMV). Background of HOS Rule The NTSB has a long history of making recommendations to reduce the likelihood of fatigue-related highway accidents, including recommendations concerning HOS, electronic on board recorders (EOBR), obstructive sleep apnea (OSA), fatigue education and training, vehicle- and environment-based countermeasures, and fatigue risk management programs. With respect to HOS, in 1995, the NTSB issued Safety Recommendation H-95-1, which urged the Federal Highway Administration (FHWA) to require sufficient rest provisions to enable drivers to obtain at least 8 continuous hours of sleep. At the same time, the NTSB issued Safety Recommendation H-95-2, which asked the FHWA to eliminate the provision that allowed drivers to split the required 8 hours off duty into two separate periods, so that drivers would have the opportunity to obtain 8 continuous hours of sleep. Both of these recommendations were added to the NTSB Most Wanted List of Transportation Safety Improvements (Most Wanted List) in 1995. On May 11, 1999, the NTSB classified both recommendations “Closed—Unacceptable Action/Superseded” and issued Safety Recommendation H-99-19, which asked the FMCSA to do the following: Establish within 2 years scientifically based hours-of-service regulations that set limits on hours of service, provide predictable work and rest schedules, and consider circadian rhythms and human sleep and rest requirements. At a minimum, and as recommended by the National Transportation Safety Board in 1995, the revised regulations should also (a) require sufficient rest provisions to enable drivers to obtain at least 8 continuous hours of sleep after driving for 10 hours or being on duty for 15 hours, and (b) eliminate 49 Code of Federal Regulations 395.1 paragraph (h), which allows drivers with sleeper berth equipment to cumulate the 8 hours off-duty time in two separate periods. (H-99-19) On April 28, 2003, the FMCSA promulgated a final rule (68 FR 22455) for CMV drivers that extended the driving time from 10 to 11 hours but limited the driving window to 14 consecutive hours after coming on duty. The daily off-duty period requirement was extended from 8 to 10 hours. Although the maximum weekly limits were not changed, drivers were allowed to restart the calculation of weekly hours by taking an off-duty break of 34 consecutive hours (termed the “34-hour restart” provision). Based on this new rule, the NTSB classified Safety Recommendation H-99-19 “Closed—Acceptable Alternate Action” at a Board Meeting on November 18, 2003. In a letter to the FMCSA dated February 23, 2004, the NTSB commended the FMCSA for revising the HOS regulations for truck drivers for the first time in more than 60 years and stated that, although the sleeper berth provision was not eliminated as requested, the revision met the main objectives of the safety recommendation. On July 16, 2004, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) vacated the 2003 rule, stating that the FMCSA “failed to consider the impact of the rules on the health of drivers, a factor that the agency must consider under its organic statute.” Subsequently, Congress directed that the 2003 regulations remain in force until the effective date of a new final rule or until September 30, 2005, whichever occurred first. On January 24, 2005, the FMCSA issued an NPRM on CMV driver HOS published at 70 FR 3339. On March 10, 2005, the NTSB responded to this NPRM by first acknowledging the FMCSA’s efforts to develop a rule based on current scientific research on fatigue. Additionally, the NTSB’s comments on the proposed rule reiterated concerns about issues that were not addressed by the 2003 rulemaking. Specifically, the NTSB urged the FMCSA to eliminate provisions or exemptions that would permit a daily sleep period for drivers of less than 8 continuous hours. The NTSB also highlighted the continuing need for tamper-proof EOBRs to assist in the enforcement of HOS regulations. On August 25, 2005, the FMCSA published a revised final rule, which, while similar to the 2003 rule, also revised the sleeper berth provision to require at least 8 consecutive hours in the sleeper berth. Drivers using the sleeper berth provision were required to take an additional 2 hours either off duty or in the sleeper berth. The 2005 rule also provided an exception for CMV drivers who operate within 150 air miles of their work-reporting location and who drive CMVs that do not require a commercial driver’s license (CDL). The rule permitted such drivers to extend the driving window and on-duty time to 16 hours twice a week. Based on additional legal challenges to the 2005 rule, on July 24, 2007, the DC Circuit vacated provisions of the 2005 rule that involved the 11-hour driving limit and the 34-hour restart provision. Subsequently, the FMCSA published an interim final rule on December 17, 2007, and a final rule on November 19, 2008, which repromulgated both the 11-hour driving limit and the 34-hour restart provision and provided the full regulatory evaluation and an explanation of the agency’s methodology in support of its rationale. In 2009, a new petition was filed with the DC Circuit challenging the 2008 rule, and a settlement was reached whereby the petition would be held in abeyance pending the publication of a revised final rule by July 26, 2011. Proposed HOS Rule Revisions The NTSB understands that the subject NPRM proposes to make several changes to the current HOS rule, as summarized in the table on page 4 of this letter. The NTSB supports those provisions of the proposed rule that are scientifically based and would reduce continuous duty or driving time, encourage break-taking, promote nighttime sleep, and foster scheduling patterns that are predictable and consistent with the normal human diurnal circadian rhythm, because extended periods of time awake and time on task, as well as inverted or rotating schedules, have been associated with fatigue-related performance decrements and increased accident risk. By limiting on-duty time to 13 hours and consecutive driving time without breaks to 7 hours, and by choosing to reduce the 11-hour maximum driving time to 10 hours, the FMCSA will reduce continuous time on task and increase rest periods for some drivers. Additionally, limiting how often drivers may use the restart provision and requiring that the 34-hour restart interval include two periods between midnight and 6 a.m. should have the effect of increasing the amount of sleep that drivers receive during the restart period and may encourage drivers to adopt schedules that are more diurnally oriented. Table. Summary of changes to the current HOS rule proposed in the December 29, 2010, NPRM issued by the FMCSA. Provision Current Rule Proposed Rule Daily off-duty period 10 consecutive hours No change Daily driving window For most drivers, 14 consecutive hours (may continue on duty/not driving after 14 hours); "Regional" drivers allowed one 16-hour period "weekly," but release from duty required after 16 hours; Non-CDL drivers within 150 miles of work reporting location allowed two 16 hour periods "weekly" (may continue on duty/not driving after 16 hours) For all property-carrying CMV drivers (unless excepted): • 14 consecutive hours with release from duty required at end of driving window; • 16 consecutive hours no more than twice "weekly," with release from duty required at end of driving window Maximum on-duty time within driving window Normally 14 hours; 16 hours once per week for "regional" drivers; 16 hours twice per week for non-CDL drivers within 150 miles of work-reporting location 13 hours* Maximum driving within driving window 11 hours 10 or 11 hours (both being considered) Maximum consecutive driving No limit May drive only if it has been 7 hours or less since last off-duty period of at least 30 minutes* Weekly on-duty maximum 60 hours in 7 days or 70 hours in 8 days No change Weekly restart May restart weekly limits after at least 34 hours off duty 34-hour restart retained but may only be used once per week and must include two off-duty periods between midnight and 6 a.m. Sleeper berth exception May split off duty into two periods: one period must be at least 8 consecutive hours in sleeper berth; the other, at least 2 hours in sleeper berth or off duty (shorter period does not extend the driving window) No change, but apply same new driving, on duty, and duty-period limits as proposed for non-sleeper-berth drivers Definition of “on duty” Includes any time in CMV except in sleeper berth Does not include any time resting in a parked CMV; In a moving CMV, does not include up to 2 hours in passenger seat immediately before or after 8 consecutive hours in sleeper berth Oilfield exemption “Waiting time” for certain drivers at oilfields (which is off duty but does not extend 14 hour duty period) must be recorded and available to the FMCSA, but no method or details are specified for recordkeeping “Waiting time” for certain drivers at oilfields must be shown on record of duty status or electronic equivalent as off duty and identified by annotations in “remarks” or a separate line added to “grid” *Provision is not applicable to non-CDL drivers operating within 150 air miles of work-reporting location. The NTSB acknowledges the challenges associated with establishing HOS regulations that promote safety and driver health while still providing drivers and operators sufficient flexibility to make scheduling decisions and carry out operations in a competitive manner. Although many drivers do not have schedules that extend to the regulatory limits, as the NPRM notes, some carriers have elected to incorporate maximum on-duty periods into their supply chain planning. This fact shows that some carriers will routinely schedule drivers to the regulatory limits. Because some carriers will inevitably incorporate the minimum rest periods and maximum duty periods into their standard operating practices, in the absence of scientific data, the NTSB encourages the FMCSA to select conservative thresholds to protect the safety and health of drivers, as well as the safety of the traveling public. The NTSB commends the FMCSA for acknowledging in this NPRM that there are insufficient scientific data to support a specific maximum driving time and for particularly requesting data from stakeholders to address this issue. The NTSB has continually and consistently recommended scientifically based HOS regulations. In the absence of relevant scientific data, a conservative maximum driving period is warranted. For these reasons, the NTSB supports reducing the 11-hour maximum driving period within the driving window to a 10-hour maximum, unless or until relevant scientific data justify a departure from this limit. The NTSB has significant reservations about several of the other proposed rule changes. Although allowing the driving window to be extended to 16 hours up to 2 days per week may not lead to an increase in duty or driving hours, it is likely to lead to a forward schedule rotation and may, therefore, adversely affect drivers’ circadian rhythms and sleep quality. Further, the NTSB is strongly opposed to special provisions providing exemptions to certain HOS requirements, such as those the proposed rule applies to passenger-carrying CMVs, oilfield operations, and various other groups. Such exemptions are likely to lead to increased risk for the exempted population and the driving public. NTSB Fatigue Recommendations As stated above, the NTSB supports those provisions of the proposed HOS rule that are likely to reduce driver fatigue. Nevertheless, the NTSB notes that, although driver scheduling is a foundational factor in reducing driver fatigue, an improved HOS rule alone cannot solve the problem of fatigue-related crashes. The NTSB believes several additional issues must be addressed concerning driver fatigue and safety. In recent years, the NTSB has made recommendations to the FMCSA concerning additional actions that can reduce the likelihood drivers will have fatigue-related crashes. Such actions include the following: • Requiring the use of EOBRs for monitoring and assessing HOS compliance; • Reducing the incidence of drivers with undetected, or untreated, OSA; • Developing and employing in-vehicle technologies to reduce the occurrence of fatigue-related accidents; • Providing education about fatigue and fatigue countermeasures; and • Requiring motor carriers to adopt fatigue management programs. Because we believe these actions are vital in addressing the risks posed by driver fatigue, we would like to highlight the relevant open NTSB recommendations to the FMCSA in these areas. Electronic On-Board Recorders. EOBRs have the potential to efficiently and accurately collect and verify HOS information for all drivers, establish the proper incentives and a level playing field for compliance with HOS requirements, and, ultimately, make our highways safer. For more than 30 years, the NTSB has advocated the use of in-vehicle recording devices to improve highway safety. The first NTSB recommendation urging mandatory use of on-board recorders resulted from our 1990 safety study on Fatigue, Alcohol, Other Drugs, and Medical Factors in Fatal-to-the-Driver Heavy Truck Crashes, which concluded that on-board recording devices could provide a tamper-proof mechanism to enforce HOS regulations. More recently, as a result of the NTSB investigation of a 2004 multiple-vehicle accident near Chelsea, Michigan, which resulted in one fatality, the NTSB issued Safety Recommendations H-07-41 and -42 to the FMCSA on December 17, 2007. The recommendations call on the FMCSA to take the following actions: Require all interstate commercial vehicle carriers to use electronic on-board recorders that collect and maintain data concerning driver hours of service in a valid, accurate, and secure manner under all circumstances, including accident conditions, to enable the carriers and their regulators to monitor and assess hours of-service compliance. (H-07-41) As an interim measure and until industrywide use of electronic on-board recorders is mandated, as recommended in Safety Recommendation H-07-41, prevent log tampering and submission of false paper logs by requiring motor carriers to create and maintain audit control systems that include, at a minimum, the retention of all original and corrected paper logs and the use of bound and sequentially numbered logs. (H-07-42) In January 2007, the FMCSA published an NPRM proposing to require motor carriers with a “demonstrated history of serious noncompliance with hours-of-service rules” to be subject to mandatory installation of EOBRs meeting proposed standards of accuracy, validity, and security. In response, the NTSB asserted that, because of deficiencies in the compliance review program, the FMCSA did not have the resources or processes necessary to identify all carriers and drivers that are pattern violators of HOS regulations. The NTSB reiterated its long-held position that the only way by which EOBRs can effectively stem HOS violations is to mandate their installation and use by all operators subject to HOS regulations. On April 5, 2010, the FMCSA issued a final rule (75 FR 17209) that required EOBRs only for those motor carriers found during compliance reviews to have a 10 percent (or higher) violation rate for HOS regulations. In the final rule, the FMCSA acknowledged that many responses to the 2007 NPRM stated the limited scope of the rule would keep it from making a meaningful difference in highway safety. Consequently, the FMCSA committed to exploring a broader EOBR mandate in a new rulemaking process. Safety Recommendations H-07-41 and -42 are currently classified “Open—Unacceptable Response” because the FMCSA has not yet mandated the use of EOBRs by all motor carriers. Under the framework we envision, HOS regulations will be refined and, of necessity, more detailed; there will continue to be temptations for companies and drivers to evade the rules to gain economic advantage over their competitors, or they may inadvertently violate the rules due to the complexity of the regulatory scheme; and, accordingly, enforcement will remain a challenge for state and federal officials. EOBRs can provide readily accessible, objective, and convincing information to maintain the integrity of the new HOS rule. The NTSB is aware that the FMCSA issued an NPRM concerning EOBRs on February 1, 2011. The NTSB is currently reviewing the NPRM and anticipates providing comments to the FMCSA. Obstructive Sleep Apnea. OSA is a condition in which an individual’s airway becomes obstructed while sleeping, typically resulting in hypoxia at night, interruptions in breathing lasting several seconds at a time, loud snoring, and nonrestful sleep. Individuals with the disorder are frequently unaware of the condition and may have extreme daytime sleepiness. OSA is associated with significant cognitive and psychomotor deficits, which are at least partially reversible with appropriate treatment. Such deficits are particularly problematic during commercial highway operations where immediate and appropriate responses to external stimuli are often essential to safety. Accident rates have been shown to be considerably higher in drivers with OSA than in those without the disorder, with one case-control study demonstrating a more than six-fold higher risk of traffic accidents in drivers with OSA, after controlling for other possible confounding factors. On October 20, 2009, the NTSB recommended that the FMCSA do the following: Implement a program to identify commercial drivers at high risk for obstructive sleep apnea and require that those drivers provide evidence through the medical certification process of having been appropriately evaluated and, if treatment is needed, effectively treated for that disorder before being granted unrestricted medical certification. (H-09-15) Develop and disseminate guidance for commercial drivers, employers, and physicians regarding the identification and treatment of individuals at high risk of obstructive sleep apnea (OSA), emphasizing that drivers who have OSA that is effectively treated are routinely approved for continued medical certification. (H-09-16) In a letter dated February 1, 2010, the FMCSA noted it was in the process of developing medical examiner, employer, and driver guidance on sleep disorders, including OSA. The letter also described several other actions the agency had taken or was planning to take, including sponsoring a National Sleep Apnea and Trucking Conference, developing a chapter in its on-line medical examiner handbook to include guidance on sleep disorders, providing a revised medical examination report form to include items specific to the assessment of sleep disorders, developing a best practices guide on medical certification of drivers with OSA, and possibly conducting rulemaking to strengthen the pulmonary/respiratory requirements for driver medical qualification to include sleep disorders. Pending completion of the described efforts and implementation of the recommended program, guidance, and requirement, the NTSB classified Safety Recommendations H-09-15 and -16 “Open—Acceptable Response” on July 20, 2010. In-Vehicle Technologies. In-vehicle fatigue-related technologies are designed to monitor driver behaviors, such as eyelid closure or head position, or vehicle actions, such as steering wheel input or lane drift. In its report on a 2005 accident in Osseo, Wisconsin, which involved the rollover of a truck-tractor semitrailer combination unit and a motorcoach’s collision with the truck wreckage, and which resulted in five fatalities, the NTSB found that technologies to detect fatigue might have prevented or mitigated the severity of the fatigue-related rollover, had the truck been so equipped. Because technologies to detect fatigue could make fatigued drivers more aware of their condition, the NTSB recommended that the FMCSA do the following: Develop and implement a plan to deploy technologies in commercial vehicles to reduce the occurrence of fatigue-related accidents. (H-08-13) On May 11, 2009, the FMCSA responded to this recommendation and indicated that the development of an advanced drowsy driver warning system was underway, and the program would move into principal research and prototype development in 2009. The FMCSA projected this phase would last 2 years, after which a commercialization decision would be made. However, the FMCSA also stated it was unaware of any available technology that commercial drivers could use for both day and night driving. The NTSB responded that although no products were available commercially that could be used effectively both day and night, the agency’s recently published review of activities underway to develop unobtrusive, in-vehicle, real-time, drowsy driver detection and alertness systems discussed at least five separate systems capable of functioning under a variety of conditions. Therefore, on October 2, 2009, the NTSB classified Safety Recommendation H-08-13 “Open—Unacceptable Response.” The NTSB subsequently reiterated Safety Recommendation H-08-13 in its report on a 2009 truck tractor semitrailer rear end collision into passenger vehicles that took place in Miami, Oklahoma, and resulted in 10 fatalities. The NTSB continues to believe in-vehicle technologies can reduce the incidence and seriousness of fatigue-related accidents and urges the FMCSA to move forward with a plan to deploy such technologies in commercial vehicles. Fatigue Education and Information. The provision by the FMCSA of new and updated information on sleep, fatigue, and alertness, based on contemporary scientific research, is essential to ensuring commercial drivers have the necessary guidance to enable them to be well rested and remain alert when operating their vehicles. Since the 1980s, the NTSB has called on the U.S. Department of Transportation (DOT) and its modal agencies to develop and disseminate educational materials for transportation industry personnel concerning fatigue risks and countermeasures. In the mid-1990s, the FHWA Office of Motor Carriers coordinated with several other agencies to produce materials and sponsor meetings to educate drivers and others about fatigue. During its investigation of the 2009 Miami, Oklahoma, accident, the NTSB reviewed some of the existing FMCSA fatigue-related training materials. The NTSB determined that, although the fatigue training materials available to truck drivers provided some valuable guidelines, some of the information was outdated, and the available guidance video concerning fatigue did not include vital information pertaining to current HOS regulations and risk factors for OSA. Because updating the information provided to truck drivers about fatigue and fatigue countermeasures, HOS, and OSA could help reduce accidents, the NTSB issued Safety Recommendation H-10-8, which asks the FMCSA to do the following: Create educational materials that provide current information on fatigue and fatigue countermeasures and make the materials available in different formats, including updating and redistributing your truck-driver-focused driver fatigue video; make the video available electronically for quicker dissemination; and implement a plan to regularly update the educational materials and the video with the latest scientific information and to regularly redistribute them. (H-10-8) The NTSB is awaiting a response to this recommendation. Fatigue Management Programs. Although employee education about fatigue is extremely valuable, it alone is insufficient to constitute an adequate fatigue management program, which should involve all aspects of a carrier’s operation. A fatigue management program is a system designed to take a comprehensive, tailored approach to the issue of fatigue within an industry or a workplace and address it in an operational environment. Typically, a fatigue management program incorporates individual program-focused efforts to help manage fatigue. For example, it might include policies and practices addressing scheduling and attendance; employee education, medical screening, and treatment; personal responsibility during nonwork periods; task/workload issues; rest environments; and commuting and/or napping. There should also be an overall organizational strategy for implementing, supervising, and evaluating the plan. Many motor carriers have developed and put into action their own fatigue management programs, although the extent and nature of the plans vary widely. On February 2, 2009, the NTSB issued Safety Recommendation H-08-14 as a result of the Osseo, Wisconsin, accident investigation, and on October 21, 2010, the NTSB issued Safety Recommendation H-10-9 as a result of the Miami, Oklahoma, accident investigation. The recommendations asked the FMCSA to take the following actions: Develop and use a methodology that will continually assess the effectiveness of the fatigue management plans implemented by motor carriers, including their ability to improve sleep and alertness, mitigate performance errors, and prevent incidents and accidents. (H-08-14) Require all motor carriers to adopt a fatigue management program based on the North American Fatigue Management Program guidelines for the management of fatigue in a motor carrier operating environment. (H-10-9) The NTSB is aware that, since 1999, the FMCSA has been involved in the North American Fatigue Management Program (NAFMP) initiative, which is a four-phase cooperative program including participants from the U.S. and Canadian transportation industries, as well as government organizations. In the first phase, researchers identified fatigue management plan requirements targeted toward drivers, dispatchers, and company managers. In phase 2, educational, training, and assessment materials were designed for a field test. In phase 3, researchers conducted a field operational test that included an evaluation of the effectiveness of the NAFMP compared to current industry practices. The FMCSA has informed the NTSB it is reviewing the report on the field test to determine whether to continue to the final phase of the project, which would include developing a deployment strategy for the NAFMP. The NTSB has encouraged the FMCSA to move forward with the completion and deployment of the final phase and has urged the agency to include in the program a methodology to continually assess the effectiveness of the plans implemented by motor carriers. Based on this information, on October 2, 2009, the NTSB classified Safety Recommendation H-08-14 “Open—Acceptable Response.” Safety Recommendation H-10-9 is currently classified “Open—Await Response.” Summary In developing the proposed rule, the FMCSA has considered current scientific findings concerning fatigue, and many of its provisions affecting driver scheduling and associated factors have the potential to reduce driver fatigue and fatigue-related CMV accidents. However, the NTSB remains concerned that the FMCSA is not aggressively pursuing other fatigue reduction and mitigation opportunities concerning EOBRs, OSA, in-vehicle technologies, fatigue education, and fatigue management programs. The NTSB appreciates the opportunity to comment on this NPRM addressing the revision of HOS regulations.

From: NTSB
To: FMCSA
Date: 9/30/2010
Response: Notation 8248: The National Transportation Safety Board (NTSB) has reviewed the Federal Motor Carrier Safety Administration’s (FMCSA) Announcement of Public Listening Session and Request for Comment, which was published at 75 Federal Register 53015 on August 30, 2010. The notice announced that the FMCSA planned to hold a public listening session to solicit input on key challenges facing the motor carrier industry, issues facing stakeholders, and concerns that should be considered by the agency in developing its next 5-year Strategic Plan. NTSB staff attended the listening session and provided the FMCSA with a list of open recommendations that have been issued to the FMCSA. The FMCSA also invited written comments, suggestions, and recommendations from all individuals and organizations regarding the FMCSA’s mission, vision, and strategic objectives (goals) for the plan. This letter provides a more detailed history of the currently open recommendations the NTSB has made to the FMCSA (attached), a summary of the key safety issues the FMCSA should address to improve truck and bus safety as presented during the NTSB’s April 28, 2010, testimony before the U.S. Senate Committee on Commerce, Science, and Transportation, Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security (attached), and responds to the questions most relevant to the NTSB’s mission for which the FMCSA is seeking input. Question 2. How can the FMCSA have a greater impact in the reduction of injuries and loss of life on our nation’s highways? The NTSB currently has 51 open recommendations that were issued to the FMCSA with the intent to improve safety on our highways. The implementation of these recommendations would allow the FMCSA to have both an immediate and lasting impact on reducing loss on our highways. We continue to believe that a plan to implement the recommendations on the NTSB’s Federal Most Wanted List of Transportation Safety Improvements (MWL) would significantly contribute to transportation safety. Question 5. How can the FMCSA balance driver-focused, vehicle-focused, motor carrier- focused compliance, interventions, and enforcement to achieve its safety mission? The NTSB has recommended that the FMCSA change the “balance” of its motor carrier oversight since 1999. The two most important factors related to safe motor carrier operations are the condition of the vehicles and the performance of the drivers. Current rules prevent the FMCSA from putting carriers out of service with an unsatisfactory rating in only one of the 6 rated factors. They must be unsatisfactory in at least 2 factors. In other words, they could be unsatisfactory in either the vehicle or driver areas and still be allowed to operate. The NTSB believes that an unsatisfactory in either category should be sufficient cause to place a carrier out of service. The NTSB recommended that the FMCSA do something relatively simple: change the safety fitness rating methodology so that adverse vehicle- or driver performance-based data alone would be sufficient to result in an overall “unsatisfactory” rating for a carrier. To date, the FMCSA has not acted on this recommendation. As a result, the NTSB added this recommendation to our Most Wanted List of Transportation Safety Improvements. The NTSB has been encouraged that the FMCSA is developing the CSA 2010 Initiative to include a greater emphasis on vehicle and driver safety. However, the NTSB is disappointed that the FMCSA did not make the incremental changes to the current safety system necessary to make either driver or vehicle deficiencies sufficient to affect the safety rating of a carrier. As such, the NTSB believes the FMCSA’s strategic plan should recognize the importance of getting carriers with unsafe drivers or unsafe vehicles off the road. Question 8. What technological changes could positively impact highway safety? The NTSB has recommended numerous technological improvements to both the FMCSA and the National Highway Traffic Safety Administration (NHTSA). Two technologies, forward collision warning systems (FCWs) and electronic onboard recording systems (EOBRs), are currently on the NTSB’s Federal MWL. Both of these technologies have been available for the last decade and could have improved highway safety. More recently, the NTSB has recommended to NHTSA technologies for driver fatigue detection, stability control for buses, event data recording, and lane departure warning for buses. The implementation of these recommendations would significantly improve highway safety. Question 9. How will technology affect driver behavior? Well designed technology can improve driver performance. Current research by the FMCSA on vehicle based collision warning systems found improved driver performance as a result of technology. However, technology not designed for use in vehicles, such as cell phones, can distract the driver from the road. That is why the NTSB supported the FMCSA’s ban on texting. Further, the NTSB has included restricting bus drivers from using a cell phone on its Federal MWL. The NTSB appreciates the opportunity to comment on this notice addressing concerns that should be considered in developing the FMCSA’s 5-year Strategic Plan. Many of the issues discussed here have been around for decades, and much is left to be done to improve highway safety. Prompt action is needed so that the trucks and buses that surround us on the nation’s highways are safely designed, maintained, and operated. We look forward to working with FMCSA in the near future to address the concerns presented in these comments.

From: NTSB
To: FMCSA
Date: 2/26/2010
Response: For the past 30 years, the NTSB has advocated the use of onboard data recorders to increase hours-of-service (HOS) compliance and first urged mandatory use of onboard recorders in our 1990 safety study, Fatigue, Alcohol, Drugs, and Medical Factors in Fatal-to-the-Driver Heavy Truck Crashes, after concluding that onboard recording devices could provide a tamper-proof mechanism to enforce the HOS regulations. As a result of our investigation of a July 16, 2004, multiple-vehicle accident near Chelsea, Michigan, the NTSB issued Safety Recommendation H-07-41 to the FMCSA on December 17, 2007. On January 18, 2007, the FMCSA published an NPRM on EOBRs that included a proposal to establish new performance standards for EOBRs. These performance standards would include requirements that the new devices be “valid” and “accurate” with certain defined parameters and that they be “secure” against non-evident tampering. Also under the proposal, motor carriers that have demonstrated a history of serious noncompliance (a 10 percent or greater violation rate), with the HOS rules would be subject to mandatory installation and use of EOBRs for HOS recordkeeping for a period of 2 years, unless the carrier already had equipped its vehicles with recording devices that met the agency’s current requirements under 49 Code of Federal Regulations 395.15 and could demonstrate to the FMCSA that its drivers understood how to use the devices. Under the proposed rule, the FMCSA would also encourage industrywide use of EOBRs by providing the following incentives for motor carriers to voluntarily use EOBRs in their CMVs: (1) revising the agency’s compliance review procedures to permit examination of a random sample of drivers’ records of duty status and (2) providing partial relief from HOS supporting document requirements, if certain conditions are satisfied. The NTSB is concerned that the FMCSA has issued an NPRM on EOBRs that would require only those carriers with a history of serious HOS violations to install EOBRs in all of their CMVs; only an estimated 930 of the 700,000 carriers in operation would be affected by this requirement within the first 2 years of the rule’s enforcement. The NTSB has stated that the only effective way for EOBRs to help stem HOS violations, which the NTSB has linked to numerous fatigue-related accidents, is to mandate EOBR installation and use by all operators subject to HOS regulations. EOBRs have the potential to efficiently and accurately collect and verify HOS for all drivers, to establish the proper incentives and a level playing field for compliance with HOS rules, and, ultimately, to make our highways safer for all drivers. On November 10, 2008, the DOT sent a draft final rule on EOBRs to the Office of Management and Budget for review. On January 20, 2009, the Executive Office of the President directed all federal agencies to withdraw rules that were under review, and the DOT withdrew the EOBR draft on January 23, 2009. The final rule is now scheduled for publication in the first quarter of 2010. In the Motorcoach Safety Action Plan, the FMCSA indicates that it is considering the encouragement of industry-wide use of EOBRs by providing incentives for motor carriers to voluntarily use EOBRs. FMCSA is also beginning rulemaking intended to propose a more widespread mandate of EOBRs, including mandating that all motorcoaches be equipped with EOBRs. Although the NTSB is encouraged by the increasing scope of those carriers affected by EOBR rulemaking efforts, pending a mandate for the use of EOBRs by all motor carriers to more accurately collect and maintain data on driver HOS, Safety Recommendation H-07-41 remains classified OPEN -- UNACCEPTABLE RESPONSE.

From: FMCSA
To: NTSB
Date: 10/2/2009
Response: Letter Mail Controlled 10/8/2009 8:40:30 AM MC# 2090625: - From Rose A. McMurray, Acting Deputy Administrator: The FMCSA acknowledges NTSB’s interest in improving motor carriers’ levels of compliance with the Federal hours-of-service regulations. On January 18, 2007, FMCSA published a Notice of Proposed Rulemaking (NPRM) to provide new performance standards for electronic on-board recorders (EOBRs) installed in commercial motor vehicles (CMVs) manufactured 2 years after the effective date of a final rule. On-board hours-of-service recording devices meeting FMCSA’s current requirements and voluntarily installed in CMVs manufactured before that date could continue to be used for the remainder of the service life of those CMVs. Motor carriers that have demonstrated a history of serious noncompliance with the hours-of-service rules would be subject to mandatory installation of EOBRs meeting the new performance standards. The motor carrier would then be required to install EOBRs in all of its CMVs regardless of their date of manufacture and to use the devices for HOS recordkeeping for a period of 2 years, unless the carrier already had equipped its vehicles with automatic on-board recording devices meeting the Agency’s current requirements under 49 CFR 395.15 and could demonstrate to FMCSA that its drivers understand how to use the devices. The FMCSA would encourage industry-wide use of EOBRs by providing two new incentives to motor carriers that voluntarily install EOBRs in their CMVs. The Agency would (1) revise its compliance review procedures to permit examination of a random sample of drivers’ records of duty status; and (2) provide partial relief from HOS supporting document requirements, if certain conditions are satisfied. On November 10, 2008, the U.S. Department of Transportation (DOT) sent a draft final rule on EOBRs to the Office of Management and Budget (OMB) for review. On January 20, 2009, the Executive Office of the President directed all Federal agencies to withdraw rules that were under review. The DOT withdrew the EOBR draft on January 23, 2009. On April 24, 2009, after briefing new leadership in the office of the Secretary (OST), FMCSA resubmitted the final rule for departmental clearance. The current rulemaking schedule posted at OST’s Signature Rulemaking Website lists August 6, 2009, as the anticipated date the Final Rule will be transmitted to OMB. This rulemaking continues to be a high priority for the Department. The FMCSA is committed to advancing commercial motor vehicle safety and reducing injuries and fatalities from large truck and bus crashes. The Agency acknowledges the concerns of the organizations and individuals that responded to the NPRM and we are considering regulatory options for extending the EOBR mandate to a larger population of carriers than we had proposed in the NPRM. The Agency is also required by statute, however, to consider costs and benefits in developing its regulations, and must comply with the provisions of the Administrative Procedure Act governing the manner in which agencies may propose and establish regulations. 10/2/09 (MC2090625): The rulemaking that addresses this recommendation continues to be a high priority for the Department, and FMCSA is actively working with the Department to complete the document and resubmit it to OMB for review and approval prior to publication in the Federal Register. On August 17, 2009, the Agency submitted an update on this issue to NTSB in a separate correspondence. The Department sent a draft final rule on electronic on-board recorders (EOBRs) to the Office of Management and Budget (OMB) for review on November 10, 2008. On January 20, 2009, the Executive Office of the President directed all Federal agencies to withdraw rules that were under review. The DOT withdrew the EOBR draft from OMB on January 23, 2009. On April 27, 2009, FMCSA resubmitted the EOBR draft to the Office of the Secretary of Transportation. The Agency anticipates that this rulemaking will be resubmitted to OMB in October 2009. The FMCSA is committed to advancing commercial motor vehicle safety and reducing injuries and fatalities from large truck and bus crashes. The Agency acknowledges the concerns of the organizations and individuals that responded to the NPRM, and we are considering regulatory options for extending the EOBR mandate to a larger population of carriers than we had proposed in the WRM.

From: FMCSA
To: NTSB
Date: 8/17/2009
Response: Letter Mail Controlled 8/21/2009 2:18:03 PM MC# 2090523: - From Rose A. McMurray, Acting Deputy Administrator: The FMCSA acknowledges NTSB's interest in improving motor carriers' levels of compliance with the Federal hours-of-service regulations. On January 18,2007, FMCSA published a Notice of Proposed Rulemaking (NPRM) to provide new performance standards for electronic on-board recorders (EOBRs) installed in commercial motor vehicles (CMVs) manufactured 2 years after the effective date of a final rule. On-board hours-of-service recording devices meeting FMCSA's current requirements and voluntarily installed in CMVs manufactured before that date could continue to be used for the remainder of the service life of those CMVs. Motor carriers that have demonstrated a history of serious noncompliance with the hours-of-service rules would be subject to mandatory installation of EOBRs meeting the new performance standards. The motor carrier would then be required to install EOBRs in all of its CMVs regardless of their date of manufacture and to use the devices for HOS recordkeeping for a period of 2 years, unless the carrier already had equipped its vehicles with automatic on-board recording devices meeting the Agency's current requirements under 49 CFR 395.15 and could demonstrate to FMCSA that its drivers understand how to use the devices. The FMCSA would encourage industry-wide use of EOBRs by providing two new incentives to motor carriers that voluntarily install EOBRs in their CMVs. The Agency would (1) revise its compliance review procedures to permit examination of a random sample of drivers' records of duty status; and (2) provide partial relief from HOS supporting document requirements, if certain conditions are satisfied. On November 10,2008, the U.S. Department of Transportation (DOT) sent a draft final rule on EOBRs to the Office of Management and Budget (OMB) for review. On January 20,2009, the Executive Office of the President directed all Federal agencies to withdraw rules that were under review. The DOT withdrew the EOBR draft on January 23, 2009. On April 24,2009, after briefing new leadership in the office of the Secretary (OST), FMCSA resubmitted the final rule for departmental clearance. The current rulemaking schedule posted at OST's Signature Rulemaking Website lists August 6,2009, as the anticipated date the Final Rule will be transmitted to OMB. This rulemaking continues to be a high priority for the Department. The FMCSA is committed to advancing commercial motor vehicle safety and reducing injuries and fatalities from large truck and bus crashes. The Agency acknowledges the concerns of the organizations and individuals that responded to the NPRM and we are considering regulatory options for extending the EOBR mandate to a larger population of carriers than we had proposed in the NPRM. The Agency is also required by statute, however, to consider costs and benefits in developing its regulations, 'and must comply with the provisions of the Administrative Procedure Act governing the manner in which agencies may propose and establish regulations. We share the NTSB's goal of improving motor carrier safety and believe the actions described above are responsive to the safety recommendations.

From: NTSB
To: FMCSA
Date: 5/29/2009
Response: As a result of its investigation of the January 6, 2008, motorcoach rollover near Mexican Hat, Utah, the National Transportation Safety Board (NTSB) is reiterating a recommendation to the Federal Motor Carrier Safety Administration (FMCSA) addressing the need to mandate the use of electronic on-board recorders (EOBR). Information supporting the recommendation is discussed below. The NTSB would appreciate a response from you within 90 days addressing the actions you have talcen or intend to take to implement our recommendation. On January 6, 2008, about 3:15 p.m. mountain standard time, a 2007 Motor Coach Industries 56-passenger motorcoach with a driver and 52 passengers on board departed Telluride, Colorado, en route to Phoenix, Arizona, as part of a 17-motorcoach charter. The motorcoach passengers were returning from a 3-day ski trip. The normal route from Telluride to Phoenix along Colorado State Route 145 was closed due to snow, and the lead driver planned an alternate route that included U.S. Route 1631191 through Utah. About 8:02 p.m., the inotorcoach was traveling southbound, descending a 5.6-percent grade leading to a curve to the left, 1,800 feet north of milepost 29 on U.S. Route 163. The weather was cloudy, and the roadway was dry at the time of the accident. After entering the curve, the inotorcoach departed the right side of the roadway at a shallow angle, striking the guardrail with the right-rear wheel and lower coach body about 61 feet before the end of the guardrail. The motorcoach traveled approximately 350 feet along the foreslope (portion of roadside sloping away from the roadway), with the right tires off the roadway. back tires lost traction as the foreslope transitioned into the drainage ditch. The motorcoach rotated in a counterclockwise direction as it descended an embankment. The motorcoach overturned, struck several rocks in a drainage ditch bed at the bottom of the embankment, and came to rest on its wheels. During the 360-degree rollover sequence, the roof of the motorcoach separated from the body, and 50 of the 53 occupants were ejected. As a result of this accident, 9 passengers were fatally injured, and 43 passengers and the driver received injuries ranging from minor to serious. The National Transportation Safety Board determined that the probable cause of this accident was the driver's diminished alertness due to inadequate sleep resulting from a combination of head congestion, problems acclimating to high altitude, and his sporadic use of his continuous positive airway pressure sleeping device during the accident trip. The driver's state of fatigue affected his awareness of his vehicle's excessive speed and lane position on a downhill mountain grade of a rural secondary road. Contributing to the accident's severity was the lack of an adequate motorcoach occupant protection system, primarily due to the National Highway Traffic Safety Administration's delay in developing and promulgating standards to enhance the protection of motorcoach passengers. Although the primary issues under investigation in this accident were driver fatigue and vehicle speed, because the trip illustrated that drivers and companies will risk driving longer than permissible by regulation and may not have contingency plans for trips that take longer than is allowed, the NTSB also examined the issue of requiring on-board data recorders to remedy hours-of-service violations. Arrow Trip Scheduling Arrow Stage Lines was the motor carrier involved in this accident. At the time of the accident, the driver had been driving for approximately 5 hours and was within the operational time constraints of the hours-of-service regulations. However, both Arrow and the drivers should have been aware that the scheduling of the longer return trip would be problematic. The trip route from Phoenix to Telluride was 486 miles, but the rerouted return trip was 556 miles, presenting the liltelihood that contingency planning would be needed to avoid hours-of-service violations. Arrow's options to avoid exceeding hours-of-service requirements included overnight accominodations for the more than 800 passengers and drivers, either in Telluride or along the return route to Phoenix, or the provision of relief drivers along the route for the 17 motorcoaches. Either option would have required substantial coordination, both in terms of the logistics to arrange hotel accommodations or additional drivers and with the charter passengers who expected to return to regular activities on Monday following the weekend trip. Arrow could not reasonably expect the drivers to handle contingency plan arrangements for rescheduling the charter trip to avoid exceeding hours-of-service regulations. The NTSB therefore concludes that Arrow Stage Lines should have developed contingency plans to avoid hours-of-service violations associated with the return trip. For contingency plans to be effective, they must be considered before the start of the trip, documented, and coordinated with the charter group. The NTSB is recommending that Arrow develop written contingency plans for each charter to ensure that trip planning is in place in the event of driver fatigue, incapacitation, or illness or in the event of trip delays necessitating replacement drivers to avoid hours-of-service violations and inform drivers of their trip's contingency plans. Such plans could include but not be limited to: identifying alternate drivers and equipment and checking on their availability, identifying suitable relief positions to swap drivers or equipment, planning rerouting options around road closures or weather, and identifying overnight accommodations that could be contacted in the event that a trip needs to be delayed. Moreover, the NTSB is making a related recommendation to the American Bus Association and the United Motorcoach Association to inform their members of the circumstances of the Mexican Hat, Utah, accident, and to encourage charter operators to develop trip contingency plans. Hours of Service Arrow received a conditional rating during a postaccident compliance review conducted in February 2008."ne component of that less-than-satisfactory rating was based on violations of the hours-of-service regulations (49 Code of Federal Regulations Part 395). In addition to the accident driver, 16 other drivers associated with the Telluride trip had such violations: 14 had exceeded the 10-hour driving rule, 2 had falsified records, and 10 had exceeded the 15-hour work rule. The lead driver communicated with Arrow management on the morning of the accident trip and, following that telephone call, made the decision to return to Phoenix along the alternate route. Hours-of-service regulations allow drivers to complete 10 hours of driving time under normal conditions. The regulations also provide consideration for adverse driving conditions, allowing for up to 12 hours of driving time, but only when those conditions are encountered en route, not if they are known prior to departure. The driving time exception would not have applied to the accident trip, which started on m alternate route because adverse weather had closed the preferred route, prompting drivers to begin the trip equipped with tire chains. The accident route was 556 miles, so travel time would have had to average better than 55 mph to not exceed the 10-hour hours-of-service rule. Considering the mountainous secondary roads, adverse weather conditions, and time required to remove tire chains, the average rate of travel should have been expected to be less than 55 mph, resulting in a trip time that would have exceeded 10 hours. The NTSB concludes that both Arrow Stage Lines and its drivers knew of the adverse weather conditions before starting the accident trip and thus intentionally engaged in a trip that would lilcely exceed hours-of-service regulations. Until systemic monitoring capabilities are put in place, hours-of-service violations can be expected to continue. It has been the NTSB's position that the only way the FMCSA can effectively enforce carrier hours-of-service compliance is to mandate the use of EOBRS. Over 2 years ago, the FMCSA issued a notice of proposed rulemaking (NPRM) requiring EOBKs for the most egregious hours-of-service violators; that NPRM has not yet been issued as a final rule. The Mexican Hat accident involves a carrier that would not likely be affected by the proposed EOBR rule; this accident again illustrates why the NTSB's past recommendation called for EOBRs for ull commercial operators, not just problem carriers. The NTSB therefore reiterates its EOBR recommendation to the Federal Motor Carrier Safety Administration: Require all interstate commercial vehicle carriers to use electronic on-board recorders that collect and maintain data concerning driver hours of service in a valid, accurate, and secure manner under all circumstances, including accident conditions, to enable the carriers and their regulators to monitor and assess hours-of-service compliance. (H-07-4 1) The NTSB also issued new recommendations to the Federal Interagency Committee on Emergency Medical Services, the Utah Bureau of Emergency Medical Services, the Federal Highway Administration, the American Association of State Highway and Transportation Officials, the National Association of State Emergency Medical Services Officials, the American Bus Association, the United Motorcoach Association, and Arrow Stage Lines. In response to the recommendation in this letter, please refer to Safety Recommendation H-07-41. If you would like to submit your response electronically rather than in hard copy, you may send it to the following e-mail address: correspondence(ir),ntsb.gov.If your response includes attachments that exceed 5 megabytes, please e-mail us asking for instructions on how to use our Tumbleweed secure mailbox. To avoid confusion, please use only one method of submission (that is, do not submit both an electronic copy and a hard copy of the same response letter.

From: NTSB
To: FMCSA
Date: 4/1/2009
Response: NMC# 103256: For the past 30 years, the Safety Board has advocated the use of on board data recorders to increase HOS compliance. In 1977, the Board issued its first recommendation on the use of on board recording devices for commercial vehicle HOS compliance, in response to the Federal Highway Administration’s (FHWA’s) withdrawal of an advance notice of proposed rulemaking (NPRM) concerning the installation of tachographs in interstate buses. The Board first urged the FHWA to mandate the use of on board recorders in its 1990 safety study, Fatigue, Alcohol, Drugs, and Medical Factors in Fatal-to-the-Driver Heavy Truck Crashes, after concluding that on board recording devices could provide a tamper-proof mechanism to enforce the HOS regulations. The study also found that the most frequently cited probable cause or factor in fatal-to-the-driver heavy truck accidents was fatigue (31 percent of 182 cases studied). The Board again advocated industrywide use of on board recording devices after investigating a multiple-vehicle accident that occurred in Slinger, Wisconsin, on February 12, 1997. The Board reiterated its position regarding the use of on board recorders for HOS compliance in its August 12, 2001, response to the FMCSA’s NPRM on the HOS of drivers. In its response, the Board again requested that the FMCSA strongly consider mandatory use of EOBRs by all motor carriers to help improve HOS compliance. As a result of its investigation of a multiple-vehicle accident near Chelsea, Michigan, the Board recommended that the FMCSA require the use of EOBRs by all motor carriers to more accurately collect and maintain data on driver HOS and accident conditions. The Safety Board notes that on January 18, 2007, the FMCSA published an NPRM on EOBRs that included a proposal to establish new performance standards for EOBRs. These performance standards would include requirements that the new devices be valid and accurate with certain defined parameters and that they be secure against non-evident tampering. Also under the proposal, motor carriers that have demonstrated a history of serious noncompliance (a 10 percent or greater violation rate), with the HOS rules would be subject to mandatory installation and use of EOBRs for HOS recordkeeping for a period of 2 years, unless the carrier already had equipped its vehicles with recording devices that met the agency’s current requirements under 49 Code of Federal Regulations 395.15 and could demonstrate to the FMCSA that its drivers understood how to use the devices. Under the proposed rule, the FMCSA would also encourage industrywide use of EOBRs by providing the following incentives for motor carriers to voluntarily use EOBRs in their CMVs: (1) revising the agency’s compliance review procedures to permit examination of a random sample of drivers’ records of duty status; and (2) providing partial relief from HOS supporting documents requirements, if certain conditions are satisfied. The Safety Board is concerned that the FMCSA has issued an NPRM on EOBRs that would require only those carriers with a history of serious HOS violations to install EOBRs in all of their CMVs; only an estimated 930 of the 700,000 carriers in operation would be affected by this requirement within the first 2 years of the rule’s enforcement. The Board has expressed its concern that the only effective way for EOBRs to help stem HOS violations, which the Board has linked to numerous fatigue-related accidents, is to mandate EOBR installation and use by all operators subject to HOS regulations. EOBRs have the potential to efficiently and accurately collect and verify HOS for all drivers, to establish the proper incentives and a level playing field for compliance with HOS rules, and, ultimately, to make our highways safer for all drivers. The FMCSA anticipates publishing a final rule on EOBRs in January 2009. Accordingly, Safety Recommendation H-07-41 remains classified OPEN -- UNACCEPTABLE RESPONSE, pending completion of action to require the use of EOBRs for all motor carriers to improve monitoring of driver HOS and accident conditions. The Safety Board voted that this recommendation would be added to the Most Wanted List in the issue area Require Electronic On Board Data Recorders to Maintain Accurate Carrier Records on Driver Hours of Service and Accident Conditions and be given a timeliness designation of red, indicating unacceptable response.

From: NTSB
To: FMCSA
Date: 10/28/2008
Response: At the 2008 Board Meeting to address the issues requiring Federal action on the NTSB's Most Wanted List of Safety Improvements, Safety Recommendation H-07-041 was added to the list under the issue area, "On-Board Highway Recorders."

From: NTSB
To: FMCSA
Date: 10/25/2008
Response: At the October 25, 2008 Board meeting addressing the NTSB’s Most Wanted List of Transportation Safety Improvements (MWL), the Board voted to place Safety Recommendation H-07-41 on the Federal MWL under the issue category “On-Board Highway Recorders.” At the February 18, 2010 Board meeting addressing the MWL, the Board voted to change this category’s title to “Require Electronic Onboard Data Recorders to Maintain Accurate Carrier Recorders on Driver Hours of Service.”

From: NTSB
To: FMCSA
Date: 10/14/2008
Response: The Safety Board understands that the FMCSA is a regulatory agency that must carefully determine the most effective allocation of the resources provided to it by Congress to reduce crashes and fatalities; however, the Board respectfully disagrees with the FMCSA’s position on these recommendations. The Board notes that the FMCSA’s notice of proposed rulemaking (NPRM) on EOBRs would require only those carriers with a history of serious HOS violations to install EOBRs in all of their commercial vehicles; only an estimated 930 of the 700,000 carriers in operation would be affected by this requirement within the first 2 years of the rule’s enforcement. The Board is concerned that (1) only this small percentage of HOS violators would be subject to enforcement action under the proposed rule and (2) the violations would be determined through a compliance review process that is currently undergoing a major reconfiguration through the Comprehensive Safety Analysis 2010 Initiative. For a carrier to be identified as a pattern HOS violator, the FMCSA must perform at least two compliance reviews on that carrier within a 2-year span. In 2005, the FMCSA performed a total of 8,097 compliance reviews on a population of approximately 911,000 active and registered carriers; thus, less than 1 percent of all carriers were assessed for safety and fitness. Although the FMCSA uses a computerized rating methodology (SafeStat) to target potentially unsafe carriers for compliance reviews, flaws in the compliance review system guarantee that many unsafe carriers continue to evade even initial identification as an HOS violator. The Board has documented several instances in which carriers have received favorable compliance review ratings despite long and consistent histories of driver- and vehicle-related violations, most recently in our investigation of the Wilmer, Texas, motorcoach fire that fatally injured 23 people. The Board remains convinced that the only effective way to help stem HOS violations, which we have linked to numerous fatigue-related accidents, is to mandate EOBR installation and use by all operators subject to HOS regulations. According to the FMCSA’s March 2006 Report to Congress on the Large Truck Crash Causation Study, 13 percent of large truck drivers involved in study crashes were believed to be fatigued. In our 1995 safety study, Factors That Affect Fatigue in Heavy Truck Accidents, the Safety Board found that the incidence of driver fatigue is underrepresented in the Fatality Analysis Reporting System database. Law enforcement reporting of the role of fatigue in accidents is low because of the difficulty of proving that it is causal to the accident; an officer is more likely to cite a symptom of fatigue in attention, excessive speed, illegal lane maneuver, following too closely because it is an easier violation to prove. Because fatigue is extremely difficult to detect, fatigue-related accidents continue to plague our nation’s highways. EOBRs hold the potential to efficiently and accurately collect and verify HOS for all drivers, to establish the proper incentives and a level playing field for compliance with HOS rules, and, ultimately, to make our highways safer for all drivers. Although the FMCSA intends to issue a final rule on EOBRs by the end of 2008, there is no guarantee that the language in the current NPRM will be reflected in the final rule. Safety Board staff has learned that FMCSA Administrator John Hill spoke to the National Industrial Transportation League in April 2008, saying that the FMCSA may expand the proposed EOBR requirement to include all carriers. A universal mandate would help the agency’s oversight of the current logbook system. The Board is disappointed by the FMCSA’s decision to withdraw the supplemental NPRM regarding self-monitoring systems, records of duty status (RODS), and supporting documents for use in monitoring and enforcing the HOS rules. So long as the FMCSA continues to accept the use of paper logbooks without an audit system to verify the accuracy of a driver’s entries, drivers will continue to tamper with and falsify their records. Until a universal EOBR requirement is effective, the Board recommends that an interim measure be implemented to monitor driver RODS. The Board urges the FMCSA to move forward with rulemaking that implements a universal EOBR requirement and a carrier-based audit control system for logbooks, providing wise stewardship of the agency’s resources as well as enhancing transportation safety on our nation’s highways. Pending the FMCSA’s taking such action, Safety Recommendations H-07-41 and -42 are classified OPEN -- UNACCEPTABLE RESPONSE.

From: FMCSA
To: NTSB
Date: 3/13/2008
Response: Letter Mail Controlled 3/25/2008 10:12:24 AM MC# 2080141:- From John H. Hill, Administrator: The FMCSA acknowledges the intent of the NTSB's recommendation to require the use of EOBRs by all commercial motor vehicle (CMV) drivers. However, because the Agency currently has a notice-and-comment rulemaking proceeding underway on this topic, we would like to offer an alternative to the NTSB's recommendation: (1) include the Board's December 17, 2007, letter in the public rulemaking docket for further consideration by the Agency, and (2) conclude the rulemaking in a manner that is consistent with the information and data analysis presented in the January 18, 2007, Notice of Proposed Rulemaking (NPRM), and responsive to the comments. The FMCSA believes that basing its decision concerning the EOBR rulemaking olely on the NTSB ’ s recommendation is contrary to the notice-and-comment rulemaking process because it may have the unintended effect of discouraging public comments on rulemakings for which the NTSB has issued a formal recommendation. The FMCSA’s EOBR NPRM included a proposal to establish new performance standards for EOBRs. These performance standards include requirements that the new devices be “valid” and “accurate” with certain defined parameters, and that they be “secure” against non-evident tampering. Also under the proposal, motor carriers that have demonstrated a history of serious noncompliance with the hours-of-service (HOS) rules would be subject to mandatory installation of EOBRs. The proposal provides that if FMCSA determined, based on HOS records reviewed during each of two compliance reviews conducted within a 2-year period, that a motor carrier had a 10 percent or greater violation rate ("pattern violation") for certain regulations, the Agency would issue the carrier an EOBR remedial directive. The motor carrier would be required to install EOBRs in all of its CMVs regardless of their date of manufacture and to use the devices for HOS recordkeeping for a period of 2 years, unless the carrier already had equipped its vehicles with recording devices that meet the Agency’s current requirements under 49 CFR 395.15 and could demonstrate to FMCSA that its drivers understand how to use the devices. Finally, under the proposed rule, FMCSA would encourage industry-wide use of EOBRs by providing the following incentives for motor carriers to voluntarily use EOBRs in their CMVs: (1) revising the Agency’s compliance review procedures to permit examination of a random sample of drivers’ records of duty status; and (2) providing partial relief from HOS supporting documents requirements, if certain conditions are satisfied. FMCSA is committed to advancing CMV safety and reducing injuries and fatalities from large truck and bus crashes. The Agency is also required by statute, however, to consider costs and benefits in developing its regulations. As part of the NPRM development process, the Agency conducted extensive analyses of potential safety benefits and costs related to EOBR use. The Agency has analyzed the approximately 750 comments received in response to the NPRM, and completed additional research and data analyses concerning options for including a significantly larger population of motor carriers under a potential EOBR mandate. FMCSA is responsible for reducing all types of large truck crashes, not just those involving fatigue. In exercising our statutory authority to issue safety regulations, FMCSA must determine the most appropriate areas to focus its efforts and allocate the resources provided by Congress. In other words, where can we save the most lives in dealing with unsafe and illegal drivers? In its 2005 HOS rulemaking, FMCSA estimated that just 7 percent of all large truck crashes were fatigue-related. The following major factors examined in the Large Truck Crash Causation Study have a higher relative crash risk than fatigue: illegal lane maneuver; traveling too fast for conditions; inattention; inadequate surveillance; and following too closely. Therefore, while fatigue is an important safety factor to address, it is a less significant contributor to fatalities and injuries than these other driver-related factors. Wise stewardship requires us to use our resources effectively to reduce crashes and fatalities. We continually assess how to best reduce roadway deaths. Based on the above, FMCSA requests that Safety Recommendation H-07-04 1 be classified as "Closed - Acceptable Response."