History of HOS                        Proposed HOS

The importance of driver fatigue led the U.S. Department of Transportation and Transport Canada to commission the largest, most comprehensive over-the-road study of driver fatigue and alertness ever conducted.  D. Wylie Associates, the consulting firm, provides transportation human factors research, driver fatigue consulting, and expert witness services for defense and plaintiff's counsel, insurance companies, the transportation industry, and government departments of transportation.  The firm designed, executed, and documented a study involving 80 U.S. and Canadian tractor-trailer drivers in an operational setting of real-life, revenue-generating trips totaling more than 200,000 miles and 4,000 hours of driving. The scientists monitored the drivers and trucks continuously by electronic instrumentation, focusing on work-related factors that included:
                    Hours of driving during a work period
                    Number of consecutive days of driving
                    Time of day when driving took place
                    Schedule regularity

The results of this driver fatigue and alertness study form an important part of the foundation for the Federal Motor Carrier Safety Administration's upcoming revisions of the hours-of-service rules for commercial drivers.  If you've been paying attention, you will have already noticed that there are roughly 3.12 million heavy-truck drivers in the United States and there are in excess of 250,000 truck drivers in Canada.  Yet, some very important changes to the are to be based on the results of a study of 80 drivers.  To put that in perspective, 1% of 3.12 million is 31,200; 80 drivers represent .0000256 % of all heavy-truck drivers in the United States.  Now, how fair is that?

History of Hours-of-Service Regulations
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The Motor Carrier Act of 1935 authorized economic regulation of the trucking industry and directed the Interstate Commerce Commission to establish qualifications and maximum hours of service for drivers working for private and for-hire interstate property carriers and for-hire interstate passenger carriers. The Interstate Commerce Commission published its initial safety proposals, including hours-of-service limits, on July 8, 1936. In preparing its draft rules, the Commission examined all State hours-of-service laws and regulations and solicited input from motor carriers and drivers. On December 29, 1937, the Interstate Commerce Commission promulgated its final hours-of-service regulations (effective July 1, 1938), along with detailed findings and explanations. Concerning drivers’ need for off-duty time, the Interstate Commerce Commission found:

It is obvious that a man cannot work efficiently or be a safe driver if he does not have an opportunity for approximately 8 hours sleep in 24. It is a matter of simple arithmetic that if a man works 16 hours per day he does not have the opportunity to secure 8 hours sleep.  Allowance must be made for eating, dressing, getting to and from work, and the enjoyment of the ordinary recreations.
3 M.C.C. 665, at 673 (1937).

Under the regulations adopted by the Interstate Commerce Commission, motor carriers could not permit or require drivers to be on duty more than 15 hours out of 24; drivers were thus allowed at least 9 hours off duty every day.  Within the 15-hour on-duty period, the Interstate Commerce Commission set a 12-hour maximum daily work period for drivers.  Work was defined as "loading, unloading, driving, handling freight, preparing reports, preparing vehicles for service, or performing any other duty pertaining to the transportation of passengers or property."  The Interstate Commerce Commission intended the 3-hour difference between 15 hours on duty and 12 hours of work to be used for meals and rest breaks.  It also set a weekly on-duty limit of 60 hours in any 7 consecutive days or 70 hours in 8 consecutive days.

Within a short time, however, organized labor petitioned for a stay, as did a few motor carriers.  The Interstate Commerce Commission agreed, and oral arguments were heard again.  The Commission ultimately decided to change the 12-hour work limit in 24 hours to a 10-hour driving limit in 24 hours.  Motor carriers were required to give drivers 8, rather than 9, consecutive hours off duty each day.  That meant drivers could be kept on duty as much as 16 hours out of 24; the specific daily on-duty limit was rescinded.  The 60- and 70-hour limits were unchanged (3 FR 1875, July 28, 1938).   The Interstate Commerce Commission remarked that these rules were somewhat less flexible than the original hours-of-service regulations, but considerably more flexible than the standards requested by organized labor.  "As the great bulk of the trucking operations covered by these regulations are conducted on a 6-day basis," the agency said, "the practical effect of the weekly limitation is to provide a 10-hour day."

The Interstate Commerce Commission had hoped that the rules would not be used to lengthen drivers’ hours.  This has not been borne out. Most notably, the Fair Labor Standards Act, which generally required overtime pay after July, 1945 for more than 40 hours of work per week, included an exemption for motor carriers subject to the Interstate Commerce Commission’s regulations.  The exemption remains in effect today.  The result is that truckers engaged in interstate commerce work some of the longest hours known in this country, without the opportunity for time-and-a-half overtime pay beyond the 40^th hour.

The 1938 revisions to the hours-of-service rules were barely in place when the first request for an exception was filed.  In 1939, the Interstate Commerce Commission allowed an extra 2 hours of driving if drivers encountered "unfavorable weather conditions."  This exception, slightly modified, is still available.  Other exceptions granted by the Interstate Commerce Commission and still available pertain to emergency conditions, driver-salespeople, oilfield operations, 100 air-mile radius drivers, retail store deliveries, sleeper berths, operations in Alaska and Hawaii, and non-driving travel time.

The first, and in fact the only, fundamental change to the hours-of-service rules since the late 1930's occurred in 1962.  For reasons it never explained clearly, the Interstate Commerce Commission retained the 8-hour off-duty requirement and the 10-hour driving limit, but dropped the 24-hour limit.  This had profound effects.  For example, a driver who came on duty and started driving at 12:01 a.m. would have to stop driving at 10:00 a.m. that day.  If the driver then took 8 hours off duty, he or she could drive again from 6:00 p.m. to midnight, for a total of 16 hours in a 24-hour period.

In December, 1975, the regulatory responsibility for truck safety was transferred from the Interstate Commerce Commission to the Bureau of Motor Carrier Safety (later Office of Motor Carrier Safety) within the Federal Highway Administration.  In January, 2000, the Federal Motor Carrier Safety Administration was given this responsibility.  Between February, 1976 and September, 1981, the agency published two advance notices and one notice of proposed rulemaking concerning hours-of-service.  Economic analyses generated potential benefits well below estimated costs and the rulemaking was terminated in September 1981.

In July, 1991 the Federal Highway Administration published a final rule exempting motor carriers and drivers from most of the Federal Motor Carrier Safety Regulations, including the hours-of-service rules, while directly providing emergency relief during a declared regional or local emergency, and more limited relief for tow truck drivers responding to a police request to move wrecked or disabled vehicles.  The provision required drivers who had been on duty more than 60 hours in 7 days, or 70 hours in 8, to take 24 hours off duty before returning to normal driving in interstate commerce.

In August, 1992, the agency published a proposal to permit drivers to begin anew any on-duty period of 60 hours in 7 days or 70 hours in 8 days upon taking 24 consecutive hours off duty.  The Federal Highway Administration made this proposal to provide opportunities for improved efficiency in operations consistent with highway safety.  In February, 1993, the Federal Highway Administration withdrew the proposal, having received virtually no substantive responses to the critical questions asked concerning potential impacts on highway safety.  Specifically, the agency needed to know if 24 hours is sufficient time for a driver to obtain the rest necessary to resume driving safely after accumulating 60 to 70 on-duty hours in as short a period as 4.25 days.  Recent studies have indicated that it is not: a minimum 32- to 56-hour break that includes two sleep periods between midnight and 6:00 a.m. is needed to afford drivers the opportunity for restorative sleep.

Citing the waiver authority enacted as part of the Federal Motor Carrier Safety Act of 1984 (Pub. L. 98-554, October 30, 1984)(Sec. 206(f), 98 Stat., at 2835), representatives of many industries inquired about, or filed petitions for, waivers of the hours-of-service regulations.  The Federal Highway Administration granted none of these requests because the proponents were unable to provide sufficient data to show that the waiver would meet the statutory test: (1) not contrary to the public interest and (2) consistent with the safe operation of trucks.

Sec. 345 of the National Highway System Designation Act of 1995 created a statutory exemption from all of the hours-of-service provisions for individuals transporting crops and farm supplies during planting and harvesting seasons, and a more limited exemption (from the 60- and 70-hour rules) for drivers of utility service vehicles, trucks transporting ground water well drilling rigs, and construction materials and equipment.  The Federal Highway Administration, however, was authorized to conduct rulemaking on the advisability of each of these exemptions (except that for water well drilling rigs).  The Federal Highway Administration adopted all of the required exemptions in April, 1996.  The agency deferred until a future date any rulemaking action to consider modifying or revoking them.

While this notice was being prepared, the Federal Highway Administration received a petition from the Advocates for Highway and Auto Safety  seeking rulemaking to reevaluate the 1996 exemptions.  By this Notice of Proposed Rule-Making, the agency is granting the Advocates for Highway and Auto Safety petition, which has been placed in the docket.

Basis for today’s proposed regulations The Federal Motor Carrier Safety Administration determined that, based on the motor carrier and highway research and operational characteristics of the industry, it had to design regulations that incorporated the following requirements.

• Increase the 18-hour on-duty/off-duty work cycle to a normal 24-hour work cycle.
• Increase time off to allow sufficient time for 7 to 8 hours of sleep.
• Require mandatory "weekend" recovery periods of at least two nights of recovery sleep to resume baseline levels of sleep structure and waking performance and alertness.
• Address the effects of operations between midnight and 6:00 a.m. by requiring off-duty periods that enable restorative sleep by including two consecutive periods between these hours.
• Allow "weekends" of sufficient length to ensure safety and provide adequate protection for driver health and safety.
• Increase operational flexibility by offering a menu of hours-of-service options customized to different major or distinct operational segments while still maintaining an appropriate level of safety.

The Federal Motor Carrier Safety Administration believes these requirements will significantly reduce fatigue problems related to sleep deprivation, if drivers and motor carriers adhere to them.  The Federal Motor Carrier Safety Administration recognizes, however, that these proposed rule changes do not by themselves eliminate the potential problem the Interstate Commerce Commission described in 1937: " . . . We have no control over the manner in which a driver may spend his time off duty . . . We can only emphasize, by this comment, the responsibility which is the driver’s own to assure himself of adequate rest and sleep, in the time available for this purpose, to insure safety of his driving, and likewise the employer’s responsibility to see that his drivers report for work in fit condition."

Proposed Regulations
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In the previous Notice of Proposed Rule-Making, the Federal Highway Administration and the Federal Motor Carrier Safety Administration received numerous comments on the need to distinguish between different types of drivers and to establish different regulations for those types. The Federal Motor Carrier Safety Administration proposes to classify drivers, daily on-duty limits and off-duty requirements (no distinction between driving and on-duty) as follows:

Type 1 - Long haul operations where driver is away from reporting location for 3 or more consecutive days.
*Type 1 drivers are limited to no more than 12 hours on-duty within a 14 consecutive hour period.  Must have at least 10 consecutive hours off-duty in each 24 hour period.  Team drivers may take their 10 hours off-duty in a sleeper berth in no more than 2 periods of at least 5 consecutive hours each.  Drivers are limited to 60 hours on-duty in 7-day workweek.  Drivers on trips requiring two or more consecutive workweeks away from normal work reporting location may average two weekly maximum on-duty periods, (i.e., 120 hours on-duty over 14 days).  The longer period may not be more than 72 hours on-duty before end of workweek.  Drivers must have a combined total of at least 112 hours off-duty during these periods.  Electronic on board recording devices (black boxes) required.

Type 2 - Long haul operations where driver is away from reporting location overnight but less than 3 days.
*Type 2 drivers are limited to no more than 12 hours on-duty within a 14 consecutive hour period.  Drivers must have at least 10 consecutive hours off-duty in each 24 hour period. Drivers are limited to 60 hours on-duty in 7-day workweek.  Electronic on board recording devices (black boxes) required.

Type 3 - Operations where driver operates within 6 hours' driving time of reporting location and has 2 duty periods in same day.
*Type 3 (Local split-shift) drivers must have at least 3 hours off-duty between shifts and at least 9 consecutive hours off duty during the 24 hour period. Drivers are limited to 60 hours on-duty in 7-day workweek. No logs or recording (black boxes) required.

Type 4 - Operations where driver operates within 6 hours' driving time of reporting location and who returns to work reporting location and is released within 12 consecutive hours.
Type 4 (Local pick up and delivery) drivers must have at least 12 consecutive hours off-duty in each 24-hour period. Drivers are limited to 60 hours on-duty in 7-day workweek. No logs or recording (black boxes) required.

Type 5 - Operations where driving is incidental to other primary work activities and drivers report for work and are released from work at the same reporting location...
Type 5 (Primary work not driving) drivers must have 9 consecutive hours off-duty in each 24-hour period. Drivers may be on-duty up to 78 hours in any workweek. No logs or recording (black boxes) required.

All drivers must be provided an off-duty period of at least 32 to 56 consecutive hours that includes at least two consecutive midnight to 6:00 a.m. periods, before the start of the next workweek.

The distinction between on-duty time and on-duty driving time would be eliminated. The total amount of time a driver could be on-duty in a week is 60 hours. However, the driver would not reach the 60-hour limit until the fifth day a driver was on duty.

The proposed regulations require Type 4 drivers to be given a "weekend" off each week. The "weekend" must include at least two consecutive periods of midnight to 6:00 a.m. and the driver must be given sufficient time at the end of their week-ending shift to the start of their next shift to be able to take full advantage of those two periods. For example, a driver must be released by 11:00 p.m. and may not come back on-duty until 7:00 a.m. at the start of his next shift.

This provision would guarantee that a driver receives at least 32 to 56 hours off every "weekend." This provision would also revoke the 24-hour on-duty "clock" re-set provision currently enjoyed by the construction industry. Drivers would have to be off for the entire "weekend" (32-56-hour period) in order for their clock to be re-set. The Federal Motor Carrier Safety Administration feels that it is in the public's best interest for intrastate drivers' hours of service regulations to conform to the regulations for interstate drivers. With this in mind, they propose to require states to adopt the federal regulations if the states want to continue participating in the Motor Carrier Safety Assistance Program.

States would no longer be allowed to use the "tolerance" guidelines currently enacted by 17 states. States currently operating under the "tolerance" guidelines would be required to adopt the federal guidelines within three years of the final rule's publication. Reporting requirements would change with the proposed rules. Type 1 and Type 2 drivers would be required to use electronic on-board recording devices to monitor drivers' hours. Type 3, 4 and 5 drivers would no longer have to keep drivers' logs or record of duty status logs. Instead, they would be required to keep records similar to records required by the Department of Labor's Wage and Hourly Division time cards that include information on each driver's daily starting and ending time, and total time on duty each day and each week, driver's home terminal address, time of day and day of week the workweek begins. Record must be kept for six months.

The record-keeping requirements included in the proposed rule are somewhat vague. The Federal Motor Carrier Safety Administration estimates that the costs of the proposed regulations would be outweighed by benefits gained from lives saved as well as injuries and crashes avoided. They believe that annually, for all commercial motor vehicle drivers, 98 fatalities could be avoided, 2,514 crashes would be avoided and that the total annual benefits would equal approximately $1,028,000. They also claim that by eliminating the record of duty status logs requirements, a great deal of time and resources would be saved. However, since drivers who work 12 or fewer hours within a 150-mile reporting radius already do not have record of duty status log requirements, there is no real savings in time and energy for ready mixed concrete drivers.

The Federal Motor Carrier Safety Administration also did not fully anticipate costs associated with lost driver hours, additional trucks necessary to adequately get products to consumers, shortages of driver personnel or the additional time construction projects will take to finish if driver time is further limited. Should the regulations be finalized as currently proposed, motor carriers would have six months from the date of publication in the Federal Register to implement them.

Comparison between key features of proposed and current regulations:

Proposed:  Duty and off-duty periods add up to a 24-hour day.

Purpose:  Scientifically-based need to promote regularity in sleep-wake cycles.

Current:  Duty and off-duty periods can result in as short as an 18-hour cycle.

Proposed:  Longer consecutive daily off-duty periods for obtaining sleep.

Purpose:  Scientifically-documented need for 7 ½ to 8 ½ hours of sleep to restore full alertness each day.

Current:  Minimum of 8 consecutive hours off-duty.

Proposed: Eliminate split sleeper-berth provision for single drivers, require 2 5-hour minimum periods for team drivers.

Purpose:  Provide additional time for drivers to obtain restorative sleep while preserving the travel time productivity element for this relatively small Type 1 operational subset.

Current:  Drivers who use sleeper berths may take their minimum 8 hours off-duty in 2 periods; the shorter period must be at least 2 hours.

Proposed: Additional off-duty time for personal reasons.

Purpose:  To allow drivers time for mid-shift meals, naps, rest breaks; also for commuting.

Current:  Not explicitly required; off-duty periods allowed, but result in extension of work day.

Proposed:  No more than 12 hours of duty (15 for Type 5 drivers, i.e., primary work not driving) in any 24-hour period.

Purpose:  Scientifically-documented deterioration in safe performance of driving and of driving-relevant performance and behaviors.

Current:  No limit to consecutive hours on-duty, but must not drive after 10 hours of driving or 15 hours on-duty (including driving) until driver receives at least 8 consecutive hours off-duty.

Proposed: Specific off-duty time (56 or 32 hours) every 7 consecutive days.

Purpose:  Provide for scientifically-supported need for minimum recuperation time to cover 2 sleep periods spanning hours of midnight to 6 A.M. Gives Type 1A (long-haul) drivers flexibility to allow shorter away-from-home and longer at-home periods.

Current rule:  No flexibility provided. Driver may not drive a truck again after accumulating 60 hours on-duty in any 7 consecutive days or 70 hours in any 8 consecutive days. If duty time was accumulated at maximum rate (approximately 4 1/4 days), driver must take 3 consecutive days off-duty before he/she can legally drive again. The Congressionally-mandated "24-hour reset" exemptions were reactions to this limitation, but they do not provide sufficient recuperation time.

Proposed:  Mandated electronic on-board recorder (Type 1 and 2, i.e., long-haul and regional, operations and team drivers)

Purpose:  Discourage illegal and unrecorded excessive driving hours, a particular safety concern for long-haul drivers. Eliminate a paper record that is burdensome to motor carriers and drivers and that is subject to falsification. Provide tamper-resistant record to provide documentation for Federal Highway Administration and State compliance and enforcement activities. In essence, remote supervision.

Current rule:  On-board recorders may be used in lieu of a paper record of duty status at the motor carrier’s option.

Proposed:  Use of U.S. Department of Labor required timecards for Type 3, 4, and 5 drivers, i.e., local-split shift, local and primary work not driving, removal of distance-based limitation on use of timecards.

Purpose:  To decrease the burden of providing information necessary for the proper performance of the Federal Motor Carrier Safety Administration’s safety mandate and to eliminate duplication of information required by other agencies. The Federal Motor Carrier Safety Administration believes the information collected by the Department of Labor to comply with Wage and Hour Division regulations would also satisfy the Federal Motor Carrier Safety Administration’s requirements.  Further, since motor carrier employers are required to make this information accessible to the Department of Labor for all employees, there should be no additional burdens associated with making it accessible to the Federal Motor Carrier Safety Administration.

Current rule:  The provision is currently available to motor carriers whose drivers operate within a 100 air-mile radius of their normal work reporting location and who return to the work reporting location and are released from duty within 12 consecutive hours.

 
U.S. Department of Transportation
Federal Highway Administration