property engaged in interstate or foreign commerce were subject to all of the provisions of the Fair Labor Standards Act including the maximum-hour provisions of section 7 thereof.

The purpose of the motion here under discussion was to determine whether or not private carriers of property had, since the effective date of the Fair Labor Standards Act, so curtailed the hours of service of drivers that there is no need for us to prescribe qualifications and maximum hours of service for such employees. Inquiry has disclosed that neither the Wage and Hour Division of the Department of Labor nor private carriers of property have available evidence tending to show that hours of service of drivers employed by private carriers of property have been generally curtailed since the passage of the Fair Labor Standards Act. Such evidence could be obtained only by a Nation-wide survey.

Attention is directed to the fact that the only limitations the Fair Labor Standards Act would now impose, if it were applied thereto, on the hours a driver may be required by a private carrier of property engaged in interstate commerce to drive or operate a motor vehicle is that, if a driver were employed for more than 42 hours in any one week, it would be necessary to pay him at the rate of time and one-half of his regular wage for all time in excess of 42 hours per week. If such overtime were paid, there would be no statutory limit to the number of hours a driver may be required to work. Admittedly, the overtime wage penalty should result in a shortening of weekly hours, but the fact remains that, insofar as the statute is concerned, a private carrier of property could require and permit an employee to drive a motor vehicle in interstate or foreign commerce for long and dangerous hours, provided only that additional wages were paid. In our opinion, this would be clearly unsafe.

Attention is further directed to the fact that the Fair Labor Standards Act would in no way affect the daily hours which a driver might be required to drive or operate a motor vehicle. Even though a driver may have a short week, it nevertheless is highly dangerous if he may be required to drive a motor vehicle on the crowded highways of the country for excessive hours in any one day. We shall not lengthen this report by repeating all that we said in our decision in Ex Parte No. MC-2 (11 M. C. C. 203), but we repeat the conclusion there reached that no driver should be permitted or required to drive or operate a motor vehicle for more than 10 hours in any period of 24 consecutive hours.

We have examined the laws and regulations of the several States governing the maximum hours of drivers of motor vehicles and find that in each and every one daily limitations are prescribed. We are confident that a law which does not establish both daily and weekly maxima for drivers is not satisfactory from the standpoint of safety.

For the reasons thus briefly stated, we have concluded that even if private carriers of property have reduced the hours of service of their drivers since the effective date of the Fair Labor Standards Act, our duty requires us to establish both weekly and daily maxima in order to insure safety of operation of motor vehicles. For these reasons the motion is denied.

NEED FOR FEDERAL REGULATION

A. NUMBER OF VEHICLES OPERATED BY PRIVATE CARRIERS OF PROPERTY

The specific provision of section 204 (a) (3) requires a finding that there is need for such regulations as we may prescribe.

No accurate data are available to prove the number of motor vehicles operated by private carriers in the transportation of property in interstate or foreign commerce. Evidence was submitted showing that under the registration laws of the several States, motor vehicles are divided into two broad classifications, namely, private passenger cars and commercial vehicles. The term "commercial vehicles" includes all trucks and busses. The registration figures of the various States show that for the year 1937 approximately 4,225,000 commercial motor vehicles were in operation throughout the country. This over-all figure includes busses and a limited number of commercial vehicles that are registered in more than one State. While no precise evidence was submitted on this point, the laws of the various States, of which judicial notice may be taken, show that many States do not require vehicles registered in adjoining States to be again registered. The factor of double registration is not an important one. The number of busses classified by the States as commercial vehicles is likewise relatively small, and it may be safely estimated that during the year 1937 approximately 4,000,000 motor vehicles were used in the transportation of property.

Again, there are no accurate data showing the number of trucks which are operated by for-hire carriers as distinguished from private carriers. The best estimate of witnesses who testified is that the number of trucks operated by for-hire carriers is approximately 15 percent of the total, or 638,000. It is therefore evident that, even if allowance be made for error in estimate, it is safe to assume in the absence of accurate figures that at least 3,000,000 trucks were operated by private carriers in the transportation of property during the year 1937, and the actual figure may well be 3,500,000. There is no evidence to indicate that the number has since been reduced.

Of course, all such vehicles are not used in the transportation of property by private carriers in interstate or foreign commerce. Again the evidence discloses that there are no accurate statistics as to the number of such private trucks engaged in interstate and foreign

commerce.

A representative of the National Council of Private Motor Truck Owners submitted an exhibit showing on its face that approximately 121⁄2 percent of the motor vehicles operated by its members were engaged in transporting property across State lines. On crossexamination it was developed that the exhibit probably reflected the percentage of interstate routes of the members of the National Council of Private Motor Truck Owners rather than the number of vehicles which cross State lines. The evidence submitted by members of the National Council of Private Motor Truck Owners and other private carriers indicates that many private carriers find it desirable and necessary to interchange both vehicles and drivers between interstate and intrastate routes. Stated differently, the evidence shows that a private carrier cannot and does not designate specific drivers and trucks to transport property across State lines. Therefore, if such a carrier has 10 routes which cross State lines, it is entirely probable that more than 10 vehicles and 10 drivers are used in such transportation. The figure of 122 percent is, therefore, probably a low estimate of the number of vehicles employed by members of the National Council of Private Motor Truck Owners in the transportation of property across State lines.

Evidence was submitted by witnesses concerning a survey made by the Bureau of Public Roads in the year 1936. This check was country-wide in extent and was made at 701 different stations located at points on the primary highway systems of 34 different States. During that check, 17,336 vehicles were stopped and data were obtained from the drivers. Of this total number of vehicles, 9,867, or about 58 percent, were operated by private carriers. An effort was made to confine the survey to what are known as intercity operations, that is, vehicles moving from one city to another as distinguished from vehicles engaged in making deliveries within a city or the suburban and trading territory adjacent thereto. The figures obtained as a result of this survey show that approximately 232 percent of the trucks operated by private carriers of property cross State lines. It is entirely clear, of course, that if this survey had included private trucks engaged in city and suburban operations, the percentage crossing the State lines would not have been so high. While it is not of great importance, it can be concluded from this evidence that at least 15 percent of the trucks used by private carriers of property actually cross State lines.

It is here emphasized that the figures referred to above relate only to trucks crossing State lines. It is entirely clear that the physical operation of a truck in the transportation of property from one State to another is not the sole test of whether it is engaged in interstate and foreign commerce. Under the decisions of the

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Supreme Court of the United State a carrier may operate physically within the limits of a single State and yet be engaged in interstate and foreign commerce. If, for example, a company which has a manufacturing plant located in an inland city in any State transports property by motor vehicle to a port in the same State for further transportation by steamship to a foreign port or to a port in another State, such motor vehicle would clearly be engaged in interstate or foreign commerce. The same would be true of transportation to or from a railhead where the property so transported originated at or was destined to a point in another State and its ultimate destination was at all times intended by the shipper. It will thus be seen that the percentage of trucks engaged in interstate and foreign commerce is greater than the percentage of trucks which physically cross State lines. Accurate figures are not necessary, and it can be safely concluded from all the evidence that in excess of 20 percent, or more than 600,000, of the trucks operated by private carriers in the transportation of property are engaged in interstate or foreign commerce. The actual figure may be greatly in excess of that indicated.

It has been stated that the number of motor vehicles engaged in the transportation of property and passengers for compensation is approximately 638,000 and, of course, by no means all of these are engaged in interstate or foreign commerce. It therefore follows that the evidence in this case shows that there are in interstate and foreign commerce more trucks engaged in the transportation of property by private carriers than there are trucks and busses employed by common and contract carriers in such commerce.

B. STATE LAWS AND REGULATIONS AFFECTING HOURS OF LABOR

It is first to be noted that the laws of the several States regulate the safety of operation of for-hire carriers more fully than they do the operations of private carriers. For example, 43 States and the District of Columbia prescribe maximum hours of service for drivers of vehicles operated by for-hire carriers. Only 20 States have similar laws applicable to drivers of motor vehicles operated by private carriers. That a fatigued driver is a dangerous hazard to highway safety and that excessive hours of drivers should be prohibited by statute or regulation is well demonstrated by our decision in Ex Parte No. MC-2 and by the laws and regulations of 43 States and the District of Columbia. Despite this well-established fact, at the present time there is no restriction on the hours which the driver of a private truck may operate a vehicle on the highways in 28 States. There are instances where contiguous States do not by statute or regulation fix maximum hours of service of drivers of motor vehicles

operated by private carriers of property. For example, the States of North Carolina, South Carolina, Georgia, Florida, and Alabama do not attempt in any way to limit the hours of drivers employed by private carriers of property. Thus it will be seen that a private truck may be operated from Florida north to Virginia and not pass through a single State which attempts to regulate the maximum hours of drivers. Likewise, Louisiana, Texas, and New Mexico do not regulate the hours of drivers of private carriers of property, and a private truck can operate from any point in Louisiana as far west as Arizona, and the drivers would not be subjected to regulation of hours of service. Again, the States of Wisconsin, Iowa, Missouri, Minnesota, North Dakota, South Dakota, Nebraska, Wyoming, and Colorado do not restrict in any way the hours of drivers of private trucks. In this territory a man may drive a private truck from St. Paul, Minn., to Denver, Colo., or from any point in Wisconsin or Iowa to Wyoming and not be subjected to any regulation as to hours.

Of course, it is seldom that a private truck is operated such long distances, but it is noted that many of the States listed above as not regulating the hours of drivers of private trucks are adjoining, and, of course, there is constant traffic back and forth across the State lines entirely unregulated as to hours of drivers.

That excessive hours which are dangerous exist is clearly shown by the evidence. The survey of the Bureau of Public Roads referred to above shows that 16.3 percent of the drivers of trucks operated by private carriers of property were on duty 16 or more hours without adequate rest; 12.5 percent were on duty 18 or more hours, and 10.2 percent were on duty 20 or more hours, without adequate rest. State regulatory and enforcement officials testified that long hours of driving by employees of private carriers were at least as prevalent as, if not more prevalent than, excessive hours of driving by employees of for-hire carriers. While the great majority of the representatives of private carriers of property who appeared at the hearings testified that their respective companies would not permit excessive hours, there are instances where excessive hours of driving were admitted by witnesses. On this set of facts it is clear that driver fatigue is a potential hazard, that long and dangerous hours of driving exist in the private-carrier industry, and that 28 States do not regulate the hours of service of drivers of vehicles engaged in the transportation of property for private carriers.

C. STATE LAWS AND REGULATIONS AFFECTING SAFETY OF OPERATION

The situation as to State regulation of the safety of operation of private motor vehicles as distinguished from the hours of service of drivers is radically different. The evidence shows that every State has laws regulating speed, brakes, lights, etc., which apply to some