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“Closed—Unacceptable Action/Superseded” and issued Safety Recommendation H-99-19, which asked the FMCSA to do the following: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.
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.
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.”
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.