Hours of Service of Drivers, 69567-69586 [E8-27437]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Rules and Regulations]
[Pages 69567-69586]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27437]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385 and 395

[Docket No. FMCSA-2004-19608]
RIN-2126-AB14


Hours of Service of Drivers

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA adopts as final the provisions of the Agency's December 
17, 2007, interim final rule concerning hours of service (HOS) for 
commercial motor vehicle (CMV) drivers. This final rule allows CMV 
drivers to continue to drive up to 11 hours within a 14-hour, non-
extendable window from the start of the workday, following at least 10 
consecutive hours off duty (11-hour rule). The rule also allows motor 
carriers and drivers to continue to restart calculations of the weekly 
on-duty limits after the driver has at least 34 consecutive hours off 
duty (34-hour restart).

DATES: Effective Date: This rule is effective January 19, 2009.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov at any time or to 
the ground floor, room W12-140, U.S. Department of Transportation (DOT) 
Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. 
and 5 p.m. e.t., Monday through Friday, except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19476) or you may visit https://
docketsinfo.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver 
and Carrier Operations. Telephone (202) 366-4325 or E-mail 
MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Legal Basis for the Rulemaking
B. Background
C. Discussion of Rule
D. Discussion of Comments
    1. Statutory Duty
    2. Comments on Safety
    3. Comments on Driver Health
    4. Approach to Research
    5. Use of Data, Analysis, and Modeling
E. Regulatory Analyses and Notices
F. List of References
G. Removal of Rescission Provision

A. Legal Basis for the Rulemaking

    This rule is based on the authority of the Motor Carrier Act of 
1935 and the Motor Carrier Safety Act of 1984. The Motor Carrier Act of 
1935 provides that ``The Secretary of Transportation may prescribe 
requirements for (1) qualifications and maximum hours of service of 
employees of, and safety of operation and equipment of, a motor 
carrier; and, (2) qualifications and maximum hours of service of 
employees of, and standards of equipment of, a motor private carrier, 
when needed to promote safety of operation'' (Section 31502(b) of Title 
49 of the United States Code (49 U.S.C.)).
    The HOS regulations adopted in this final rule concern the 
``maximum hours of service of employees of * * * a motor carrier'' (49 
U.S.C. 31502(b)(1)) and the ``maximum hours of service of employees of 
* * * a motor private carrier'' (49 U.S.C. 31502(b)(2)). The adoption 
and enforcement of such rules were specifically authorized by the Motor 
Carrier Act of 1935. This rule rests on that authority.
    The Motor Carrier Safety Act of 1984 provides concurrent authority 
to regulate drivers, motor carriers, and vehicle equipment. It requires 
the Secretary of Transportation to ``prescribe regulations on 
commercial motor vehicle safety. The regulations shall prescribe 
minimum safety standards for commercial motor vehicles.'' Although this 
authority is very broad, the 1984 Act also includes specific 
requirements: ``At a minimum, the regulations shall ensure that (1) 
commercial motor vehicles are maintained, equipped, loaded, and 
operated safely; (2) the responsibilities imposed on operators of 
commercial motor vehicles do not impair their ability to operate the 
vehicles safely; (3) the physical condition of operators of commercial 
motor vehicles is adequate to enable them to operate the vehicles 
safely; and (4) the operation of commercial motor vehicles does not

[[Page 69568]]

have a deleterious effect on the physical condition of the operators'' 
[49 U.S.C. 31136(a)].
    This rule is also based on the authority of the 1984 Act and meets 
the specific mandates of 49 U.S.C. 31136(a)(2), (3), and (4). Section 
31136(a)(1) primarily governs the mechanical condition of CMVs, a 
subject not included in this rulemaking. To the extent the phrase 
``operated safely'' in paragraph (a)(1) encompasses safe driving, this 
rule also addresses that mandate.
    Before prescribing any regulations, FMCSA must also consider their 
``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those 
factors are also discussed in this final rule.

B. Background

    For background information on this rulemaking, please see the 
account published in the interim final rule (IFR) of December 17, 2007 
[72 FR 71247, 71250-71251].

C. Discussion of Rule

    FMCSA is promulgating as a final rule the provisions of the IFR it 
adopted on December 17, 2007. Because the United States Court of 
Appeals for the District of Columbia Circuit (the Court or DC Circuit) 
held in 2007 that the Agency had failed to provide an opportunity for 
public comment on certain aspects of the 2005 Regulatory Impact 
Analysis (RIA) [Owner-Operator Independent Drivers Association, Inc. v. 
Federal Motor Carrier Safety Administration, 494 F.3d 188 (DC Cir. 
2007)], the IFR provided a 60-day period for the public to comment on 
the RIA. In response to the Court's finding that FMCSA did not provide 
an adequate explanation for certain critical elements in one of its 
analytical models used in the RIA, the preamble to the IFR also 
included a detailed explanation of the Agency's time-on-task (TOT) 
methodology [72 FR 71252 et seq.], thus satisfactorily addressing the 
second flaw identified by the DC Circuit.
    Most of the comments to the IFR docket reiterated arguments and 
conclusions set forth during the 2003 and 2005 HOS rulemakings; the 
more significant comments are discussed below.
    Before addressing those comments, it is useful to summarize the 
reasoning that led the Agency to adopt the 2005 HOS rule, which was 
restored by the IFR and is finalized by today's action. Research on the 
causes and effects of fatigue is sometimes inconsistent, frequently 
based on work environments other than truck driving, and usually 
conducted on a small scale. It is not unusual for an assertion or 
conclusion related to fatigue to be questioned in some published study. 
Researchers have also examined environmental factors related to many 
potential driver health issues, but these studies are not sufficiently 
precise to allow reasonable estimates of the benefits of remedial 
measures.\1\
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    \1\ See the extended discussion in the preamble of the 2005 
final rule, 70 FR 49982-49992.
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    Due to the lack of clear and consistent scientific evidence in this 
area, the Agency went to great lengths to review the research 
literature, utilizing resources of the Transportation Research Board of 
the National Academies, and the National Institute for Occupational 
Safety and Health (NIOSH), as well as experts from other DOT 
organizations. FMCSA's own expertise and judgment were particularly 
significant in reviewing, evaluating, and properly weighting research 
findings. FMCSA's unique knowledge of the motor carrier industry and 
its patterns of operation provide the Agency with a sound basis for 
assessing the safety impact of this rulemaking action. In fact, FMCSA's 
own field surveys, conducted in 2005 and 2007 in the course of HOS 
rulemakings, constitute some of the most comprehensive sources of data 
on driving hours, off-duty time, and utilization of the restart 
provision. The scientific, operational, and economic analyses 
underlying this rule have been meticulous and extensive. The provisions 
made final today reflect both the paramount importance we attach to 
safety and the critical role of the motor carrier industry in the U.S. 
and world economy.
    FMCSA's principal goal in the 2005 rule was to ensure truck drivers 
had more opportunity for sleep than under the pre-2003 rule, and that 
the typical work schedule would more nearly approximate the 24-hour 
circadian ideal.\2\ Before 2003, drivers were required to take only 8 
hours off duty before driving again. After leaving the terminal, 
returning home, and taking care of personal or family matters, a driver 
meeting the minimum requirements simply did not have enough time to get 
the 7-8 hours of sleep needed to maintain alertness.\3\ By extending 
the minimum off-duty period from 8 to 10 hours, as the 2003 and 2005 
rules did, FMCSA ensured most drivers, even those operating on 
compressed schedules, would be able to go home and deal with private 
matters and still have sufficient time for a full sleep cycle. That 
objective was preserved in the 2007 IFR and today's final rule.
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    \2\ See section F.2. Circadian Influences, in the 2005 rule, 70 
FR 49992.
    \3\ See section E.1. Sleep Loss/Restriction, 70 FR 49982-49983.
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    The 2005 rule also required drivers who use sleeper berths to take 
8 consecutive hours in the berth and another 2 hours off duty or in the 
berth, as the driver chose. The previous regulations allowed drivers to 
split their sleeper-berth time into two periods, neither shorter than 
two hours. The result was that sleeper-berth drivers often failed to 
take a single, uninterrupted sleep period long enough to avert fatigue. 
The higher crash rates reported for sleeper-berth drivers by the 
National Transportation Safety Board reflected that fact.\4\ The 8-hour 
sleeper-berth period adopted in 2005 meant that these drivers would be 
subject for the first time to the same kind of rest requirements as all 
other drivers. The DC Circuit upheld that portion of the 2005 rule in 
its 2007 decision and it is accordingly unchanged by this final rule.
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    \4\ See section F.4. Split Sleep, 70 FR 49994.
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    To enhance the effect of increased off-duty time, the Agency also 
reduced the driving window. Before 2003, the misnamed ``15-hour rule'' 
allowed driving within a 15-hour window after coming on duty--but off-
duty time taken during that work shift was not included in the 15 
hours. The result was drivers possibly being at the wheel 18 or 20 
hours after coming on duty, without having had any significant rest.\5\ 
The 2003 rule therefore allowed driving only within a fixed 14-hour 
window after coming on duty; off-duty time no longer stopped the clock. 
The combination of 10 hours off duty and a 14-hour driving window 
greatly increased the number of drivers who would maintain something 
close to a 24-hour schedule. Circadian regularity contributes to 
fatigue-avoidance; \6\ the longer off-duty requirement and the shorter 
driving window combined to improve significantly the likelihood that 
truck drivers would be adequately rested before taking to the highway. 
Sleeper-berth drivers, of course, are less likely to be on a 24-hour 
cycle than other drivers, but the 2005 rule also improved their ability 
to obtain adequate rest before driving.
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    \5\ ``A 1999 study of dry freight truckload carriers by the 
Truckload Carriers Association (TCA) revealed that drivers spent 
nearly seven hours waiting for each freight shipment that they 
picked up and delivered'' [70 FR 49986]. Those hours were typically 
excluded from the 15-hour ``limit.''
    \6\ See discussion and sources cited in the 2005 rule, 70 FR 
49992.
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    Although the 10-hour off-duty requirement and the 14-hour, non-
extendable driving window reduced the

[[Page 69569]]

risk of fatigue, these provisions simultaneously also imposed new 
constraints on motor carriers. To offset these constraints while 
ensuring the fatigue benefits are realized, the Agency determined it 
could allow additional operational flexibility by permitting increased 
driving hours without diminishing the safety benefits of the new 
provisions. The 2003 rule therefore allowed driving no more than 11 
hours following a period of at least 10 consecutive hours off duty, 
compared to the 10 hours of driving permitted under the former 
regulations. This balance reflects the integrated nature of the 
Agency's approach to improving the HOS rules. The drivers who operated 
instrumented vehicles in the large on-road study conducted by Hanowski 
and his colleagues at the Virginia Tech Transportation Institute \7\ 
showed no statistically significant difference in ``critical 
incidents'' between the 10th and 11th hour of driving. ``Critical 
incidents'' were defined as crashes, near crashes (where a rapid 
evasive maneuver was needed to avoid a crash) and crash-relevant 
conflicts (which required a crash-avoidance maneuver less severe than a 
near crash, but more severe than normal driving). This result strongly 
supports the Agency's conclusion that an 11-hour driving limit adopted 
in this final rule, when combined with the 14-hour driving window and 
10 hours of off-duty time, does not pose an increased risk to safety.
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    \7\ See Hanowski et al., 2005, 2007a, and 2007b in the List of 
References in section F.
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    Although the Agency did not expect a large percentage of drivers to 
drive for 11 full hours, any more than they had previously driven for a 
full 10 hours, the 11th driving hour would give drivers and carriers 
affected by the new 14-hour window additional time to complete runs 
that might once have been stretched out over 15 or more hours. 
Subsequent comparison and analysis of field survey data collected by 
FMCSA during compliance reviews in 2005 and 2007 has borne out these 
expectations (see below). Although drivers and carriers are using the 
11th driving hour more often than they did in 2005, a significant 
majority of drivers represented in FMCSA's 2007 field survey (69 
percent) still drove less than 10 hours during a typical daily shift. 
In comments to the docket for the 2005 rule and the 2007 IFR, the great 
majority of drivers and carriers who addressed this issue supported the 
11-hour driving limit.
    The most controversial element in the 2003 rule was the so-called 
34-hour restart. The 2003 rule did not amend the long-standing 60- and 
70-hour regulations, which provide that a driver may not drive after 
being on duty more than 60 hours in 7 consecutive days, or in certain 
cases, 70 hours in 8 consecutive days. However, it did allow drivers a 
new method of complying with those limits. Under the 34-hour restart 
provision, drivers can restart their calculations of the cumulative on-
duty time at any time after the driver has 34 consecutive hours off-
duty. However, because the restart provision was accompanied by an 
increase from 8 to 10 consecutive hours of off-duty time, and a 14-
hour, non-extendable window within which drivers must complete all 
driving during the work shift, the Agency concluded that the restart 
would not decrease safety. Safety data published since 2003 has given 
the Agency no cause to reconsider this conclusion.
    Under the pre-2003 rule, drivers could operate under an 18-hour 
``day'' by driving 10 hours, taking 8 hours off duty, and then 
repeating that cycle. This schedule shifted the driver's sleep period 
backward by 6 hours each day, disrupting the circadian rhythm and 
interfering with the body's ability to sleep, even if adequate rest 
hours were available. This compressed schedule also meant that drivers 
would exhaust their 60 hours of on-duty time early on the fifth day and 
have to wait almost 3 days until the sliding 7-day measuring period 
again allowed driving. In fact, this extended rest period provided an 
economic incentive for drivers to falsify their records of duty status 
and begin driving again in defiance of the 60-hour rule.
    The 2003 rule eliminated the 18-hour ``day.'' The most compressed 
schedule allowed by the 2003 and 2005 rules is a 21-hour ``day,'' i.e., 
10 hours off duty followed by 11 hours of driving. This is 
substantially more consistent with the normal circadian rhythm. A 21-
hour ``day'' also means that drivers cannot reach the 60- or 70-hour 
limit as quickly as they could before 2003 and would not have to wait 
as long at the end of the week before regaining compliance with the 60- 
or 70-hour rule.
    FMCSA examined the available research on the time needed to recover 
from fatigue.\8\ As the Agency noted in the preamble to the 2005 rule, 
the Transportation Research Board team, performing a literature search, 
``found five studies that provided information regarding the recovery 
time needed for CMV drivers after working a long week. Four of these 
studies provide support for recovery periods of 34 hours or less, while 
only one of these studies supports a recovery period longer than 34 
hours. Two studies suggest that a single 24-hour period is sufficient 
time for a driver to recover from any cumulative fatigue'' [70 FR 
49994]. The length of a recovery period is not the only factor to 
consider in assessing the adequacy of weekly work-rest schedules, 
however. In preparing the 2005 rule, ``[t]he Agency attempted to 
determine whether the added hours of recovery through the use of a 44-
hour recovery period, created a net benefit in reducing fatigue 
compared to the potential negative impact on circadian rhythm of 
establishing a rotating cycle. The Agency has determined that there is 
no conclusive scientific data to guide it in determining which factor 
(recovery time vs. circadian disruption) is more effective in 
alleviating fatigue. In sum, in deciding to adopt a 34-hour recovery 
period, the Agency considered that compliance with a 34-hour recovery 
period results in a CMV driver restarting work at approximately the 
same time of day as his or her prior shift. The 34-hour recovery period 
also avoids the shifting of daytime to nighttime schedules, which 
research indicates can disturb the circadian rhythm and decrease 
alertness'' [70 FR 50024-50025, August 25, 2005]. A 34-hour period 
gives a driver an opportunity for two consecutive 8-hour sleep periods 
separated by a 16-hour period of wakefulness, plus an additional two 
hours at some point in the 34-hour period. It allows circadian 
regularity to be maintained and brings the driver back to work on 
approximately the same schedule as before the restart. While there is 
valid evidence that drivers who get 8 consecutive hours of sleep every 
day should not develop cumulative fatigue at all,\9\ those who fail to 
follow a regular sleep schedule will be able to ``zero out'' their 
fatigue by taking 34 consecutive hours off duty.\10\
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    \8\ See the discussion and sources cited in the 2005 final rule, 
70 FR 49994-49995, 50023-50026.
    \9\ ``For most healthy adults an average of 7 to 8 hours of 
sleep per 24-hour period has been shown to be sufficient to avoid 
detrimental effects on performance.'' 70 FR 50016.
    \10\ For example, a 1972 study ``involved subjects who worked 8 
hours a day for 3 days, followed by a 4 hours on/4 hours off 
schedule (similar to driving with a sleeper berth) over a 2-day 
period. [The researcher] found that the average performance of 
drivers dropped to 67 percent of baseline toward the end of this 
period. A 24-hour rest period was sufficient to permit recovery back 
to baseline. A simulator study examined daytime driving of 14 hours 
on/10 hours off over a 15-day periods * * * These authors found that 
24 hours was an adequate amount of time for recovery. A third study 
* * * found a dramatic recovery with respect to fatigue in team 
drivers who stopped overnight in the middle of a 4 to 5 day trip. 
Thus, with less than 24 hours off, a single night of sleep was very 
helpful for recovery.'' 70 FR 49994.

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[[Page 69570]]

    Opponents of the 34-hour restart argue that, if used to the maximum 
over an extended period, it allows more driving and on-duty time on a 
weekly basis than the pre-2003 rule. In theory this is true, but FMCSA 
at that time concluded that the restart provision, like the 11th hour 
of driving time, would not be utilized to the theoretical maximum 
calculated by some commenters. Commenters have not provided nor has the 
Agency seen any contrary evidence. As the Agency pointed out in the 
preamble to the 2005 rule, use of the 34-hour restart to generate 
routinely the very long driving and on-duty times critics fear--up to 
84 hours on duty in 7 days or 98 hours in 8 days--requires an imaginary 
world with ``nearly perfect logistics for picking up and delivering a 
load * * * in other words, total elimination of waiting time to load, 
mechanical and equipment problems, and traffic- and weather-related 
delays.'' [70 FR 50022]. The Agency's more realistic scenarios have 
been borne out by all recent evidence. As reported in the 2007 IFR [72 
FR 71264-71265], data collected during FMCSA's 2007 field survey show 
that use of the 11th driving hour by long-haul drivers increased only 
slightly since the Agency's similar 2005 survey. In 2005, 23 percent of 
the driving periods examined reached into the 11th hour, while 27 
percent involved the 11th hour in 2007. Utilization of the restart 
provision has also increased somewhat; 84 percent of the drivers in the 
2007 sample \11\ took at least one restart period of 34 or more hours 
during the typical work week, compared to 73 percent of drivers in the 
comparable 2005 survey. Eight percent of the restart periods were 
exactly 34 hours long in 2007, compared to 5 percent in 2005; 22 
percent of the restart periods were between 36 and 44 hours long in 
2007, exactly the same as in 2005; and 65 percent of the periods 
exceeded 44 hours in 2007, compared to 68 percent in 2005. The Agency 
concluded in its 2007 IFR that, ``while the restart provision is being 
used by drivers, the average restart period is far longer than 34 
hours'' [72 FR 71265].
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    \11\ A note printed below the table showing ``Restart Off-Duty 
Hours'' on page 4 of the 2007 field survey incorrectly states that 
``[t]his analysis excluded any restart period in excess of 72-
hours.'' In fact, the table shows that 22 percent of restart periods 
were longer than 72 hours. That error does not affect comparisons 
with restart periods from the 2005 field survey.
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    The American Trucking Associations (ATA) surveyed its members in 
August, 2007, on their use of the 11th hour of driving time and the 34-
hour restart. The 69 carriers that responded represent 234,000 drivers; 
46 percent of these drivers reported using the 11th driving hour 
(meaning 54 percent did not), and driving into the 11th hour on 13 
percent of their daily trips (meaning that 87 percent of the trips did 
not reach the 11th hour). Because of the way ATA's restart data were 
collected, they are difficult to compare to FMCSA data. Still, the 
Agency concluded both in its 2007 IFR and in today's final rule that 
the motor carrier industry is using both the 11th hour and the 34-hour 
restart provision, not to maximize driving and on-duty time, but for 
``operational flexibility,'' which is precisely its intended purpose 
[Id.]. This conclusion is supported by data and comments submitted to 
the docket, as well as data and analysis in the 2008 RIA accompanying 
today's final rule. No commenters provided data or analysis indicating 
any driver's actual use of the restart period over an extended period.
    Operational data therefore provide no affirmation of concerns of 
vastly increased on-duty and driving time as a consequence of the 11th 
driving hour and the restart provision. The great majority of drivers 
who addressed this issue in comments to the docket praised the 34-hour 
restart provision and explained that it has enabled them to schedule 
their work more flexibly than ever before and thus to spend more time 
with their families, instead of waiting out the 60- or 70-hour clock at 
some truck stop far from home. The 2007 FMCSA Field Survey continues to 
support this conclusion. While miscellaneous off-duty periods taken by 
drivers when confronting certain logistical realities cannot be used to 
extend the 14-hour window within which up to 11 hours of driving time 
may take place, these off-duty periods are not counted as driving time 
or on-duty time and thus would reduce the likelihood of accumulating 84 
hours on duty in 7 days, or 98 hours on-duty in 8 days. For example, if 
a driver is delayed for a few hours while waiting to unload a shipment 
and goes off duty, that off-duty time does not extend the 14-hour 
window within which up to 11 hours of driving time may take place; 
however, it is not counted in the maximum 60 or 70 hours of on-duty 
time allowed within a 7- or 8-day consecutive period, or following a 
minimum 34-hour restart period. In other words, it reduces the 
likelihood that a driver would accumulate the maximum 84 hours on duty 
in 7 days, or 98 hours on-duty in 8 days, as noted by commenters.
    The preamble to the 2005 rule discussed in detail the various 
effects that driving a CMV might have on the health of drivers (70 FR 
49982-49992). There is some evidence of adverse effects; long-term 
exposure to diesel exhaust seems to entail an increased risk of 
cancer,\12\ and a recent study found an even higher incidence of 
ischemic heart disease among unionized truck drivers.\13\ With the 
exception of noise exposure, all of the studies related to driver 
health and exposure lack a dose-response curve for the factor in 
question that would allow FMCSA to estimate reliably the effect of 
longer or shorter driving and on-duty time on driver health. As for 
noise exposure, FMCSA concluded that drivers should not have 
``significant hearing loss over a lifetime of on-the-job exposure, even 
if drivers drove the maximum hours allowed by this final rule.'' \14\
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    \12\ Measured by standardized mortality ratios (SMRs) at a 95% 
confidence interval. See next note.
    \13\ Laden, et al., ``Cause-Specific Mortality in the Unionized 
U.S. Trucking Industry,'' Environmental Health Perspectives, Vol. 
115, No. 8, August 2007, pp. 1192-1196.
    \14\ See section E.3., Exposure to Noise, in the 2005 final 
rule, 70 FR 49987.
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    The Agency is required by statute to balance the benefits likely to 
be achieved by its regulations against the costs likely to be 
imposed.\15\ Because the likely benefits to driver health cannot be 
estimated in the absence of a dose-response curve, the 2005 rule 
declined to impose HOS limits designed to address health issues. 
Although new health studies continue to be published, some directly 
focused on truck drivers, the fundamental problem remains: the health 
effects of any particular change in the HOS regulations are unknown.
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    \15\ 49 U.S.C. 31136(c)(2), 31502(d).
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    As explained in the Regulatory Impact Analysis (RIA) prepared for 
the 2005 rule (and subsequent RIAs), the Agency examined several policy 
scenarios (each of which included variations on the daily driving and 
on-duty limits, minimum restart periods, and other options) and 
developed elaborate simulation models of trucking operations, costs, 
and fatigue-performance relationships [see 70 FR 50044 et seq.]. FMCSA 
also undertook extensive analyses of the effect of various policy 
scenarios on societal costs and benefits. This final rule, like the 
2005 rule, adopts by far the most cost-beneficial of the policy 
scenarios examined, as it is the only option that yielded net benefits. 
For instance, the selected policy option yielded $270 million in 
estimated net annual benefits versus net annual societal costs of 
between $1 billion and $1.7 billion

[[Page 69571]]

annually for the other options considered.\16\ Analysis carried out 
while preparing today's final rule estimated that eliminating the 11th 
driving hour and 34-hour restart provisions would result in net annual 
costs of $2.2 billion.\17\ The Agency also conducted sensitivity 
analyses involving elimination of the 11th daily driving hour, both in 
the 2005 and the 2008 final rules. In these analyses, the Agency 
essentially doubled the likely percentage of fatigue-related large 
truck crashes, tripled the value of a statistical life, and increased 
by 40 percent the risk of a fatigue-related large truck crash in the 
11th hour of driving; in all cases, however, the societal costs of 
eliminating the 11th driving hour exceeded the benefits.\18\
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    \16\ See Section 6.7, exhibit 6-7, p. 71 of the 2005 HOS RIA.
    \17\ See Executive Summary Exhibit ES-4, p. ES-6 of the 2008 HOS 
RIA.
    \18\ See Section 6.8, pp. 72-75 of the 2005 HOS RIA, and Section 
6.7, pp. 67-71 of the 2008 HOS RIA.
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    This rulemaking rests on a wide-ranging body of data and 
comprehensive analyses, and complies with all Congressional mandates. 
By adopting HOS regulations that include increased daily off-duty time, 
a shorter driving window, a longer period of uninterrupted rest for 
sleeper-berth drivers, and sufficient time for two full sleep periods 
before restarting the 60- or 70-hour clock, the rule ensures CMVs are 
``operated safely'' and drivers' responsibilities ``do not impair their 
ability to operate the vehicles safely,'' as required by 49 U.S.C. 
31136(a)(1)-(2), respectively. FMCSA discussed in the preamble to the 
2005 rule the possible ``deleterious effect [of driving] on the 
physical condition of the operators'' (49 U.S.C. 31136(a)(4)), 
concluding that any incremental health effects associated with the 
additional driving and on-duty time theoretically available under the 
rule cannot be calculated. This conclusion remains accurate today. The 
RIA for this final rule fully complies with the statutory requirement 
to consider benefits and costs of regulatory activities. Furthermore, 
data on fatigue-related highway fatalities published since 2003 show 
nominal annual fluctuations, but nothing of the rising trend implied by 
some criticism of the IFR and related earlier rules. In fact, the 
overall large truck fatality rate is at its lowest level ever.

D. Discussion of Comments

    FMCSA received 913 comments to the docket; 26 submissions were 
duplicates or non-germane letters. The majority of the commenters were 
individuals, some of whom identified themselves as CMV drivers. In 
addition, 122 motor carriers, 8 trucking associations, 17 other 
industry trade associations, one State agency, and 6 safety advocacy 
groups responded to the public docket. Over 300 comments expressed 
general support for the IFR. Commenters who specifically addressed the 
11-hour driving limit were divided, with 67 supporting it and 53 
stating that 11 hours is too long. A number of commenters favored the 
34-hour restart provision, with 164 indicating their support and 30 
stating that it should be changed. As one carrier noted, ``The 34-hour 
restart had an immediate impact on our drivers, not only did it allow 
more flexibility, it improved their quality of life by providing them a 
way to spend more time with their family, not only did it refresh their 
available hours for working, but it refreshed them mentally and 
physically which helps them be more alert and safer on the highways'' 
(FMCSA-2004-19608-3006). The American Moving and Storage Association 
(AMSA) believed, ``The pro-safety aspects of the 34-hour recovery and 
restart provision are undeniable.'' The ATA pointed out, ``Often a 
restart is taken before weekly hours have expired in order to better 
fit driving schedules to available work and driver preferences. This 
element of the new rules is plainly doing more for stress reduction and 
driver satisfaction than any other change.''
    J.B. Hunt emphasized that the rule permits, but does not require, 
drivers whose accumulated fatigue has been reduced or eliminated by the 
34-hour restart to return to working, and it is a much safer system 
than the previous rule. Also, if the driver has obtained restorative 
rest eliminating accumulative fatigue, then it should not matter how 
much more work the driver is able to do. J.B. Hunt noted that ``safety 
reports tend to indicate that drivers are as safe or safer now than 
they were before the current rules were put in place.'' The National 
Industrial Transportation League (NITL) agreed, stating that, ``Many 
shippers using private fleets have effectively built the 34-hour 
restart into their operations, which has improved driver satisfaction 
and quality of life.'' Two commenters argued that shorter (24-hour) 
restart periods for oilfield and construction industry trucks under 49 
CFR 395.1 have worked safely.
    Two commenters, the National Private Truck Council (NPTC) and ATA, 
stated that Federal data and anecdotal information showed that motor 
carrier safety had improved since the 2003 rule was implemented. NPTC 
stated that the Agency's interpretation of fatal accident data was 
consistent with self-reported data it had submitted from 63 private 
carriers. These companies had reported that their safety performance 
improved in the first year of the rule. NPTC reported that the safety 
records of these companies have remained steady in the subsequent 
years. ATA cited safety improvements shown in national crash data and 
mentioned that data from the Bureau of Labor Statistics (BLS) on truck 
driver non-fatal occupational injuries show a large decline in truck 
driver injuries from 2002 to 2006.
    Over 90 carriers and carrier associations indicated that they had 
seen no adverse safety impacts from the HOS regulations; in fact most 
of them reported reductions in crashes and in injuries. After reviewing 
its own safety statistics, Schneider National found ``significant 
improvements in safety under the current HOS regulations. Safety is a 
multi-variant challenge, and while we cannot attribute all of the 
improvement to the HOS rules, it is reasonable to conclude that the 
current HOS regulations have not had a negative impact on safety (as 
some have suggested).'' The Canadian Trucking Alliance stated that 
since the Canadian and U.S. restart provisions have been in place, they 
have been widely used by Canadian drivers operating on both sides of 
the border, and the carriers' safety experience has been positive. A 
few carriers also noted that they have experienced no increase in 
crashes during the 11th hour of driving. The Missouri DOT agreed that 
the rules have not detrimentally impacted safety and that the 11-hour 
limit and the 34-hour restart provisions should remain intact. One 
driver believed that his company has had an increase in the number of 
accidents because of the 11-hour driving limit, but provided no data to 
support his assertion (FMCSA-2004-19608-3187).
    ATA discussed truckload and less than truckload (LTL) carriers, and 
noted that for truckload operations the 11th hour of driving provides 
flexibility to dispatchers who work with customers and drivers to 
schedule freight pickup and delivery times. More drivers are able to 
take off-duty rest periods at home. The extra hour also provides a 
cushion for irregular route drivers who deal with highway congestion, 
weather, construction, and other unexpected delays. Some carrier 
operations can provide dedicated service with fewer trucks and fewer 
drivers than in the past. ATA pointed out that some LTL operations have 
found opportunities to move freight more efficiently with a planned use 
of the 11th hour. Over 60

[[Page 69572]]

carriers and carrier associations echoed these points. One carrier also 
noted that the rule allows more effective management of equipment 
maintenance (FMCSA-2004-19608-2878). The National Solid Waste 
Management Association supported the rule provisions because its 
members must deal with irregular collection schedules that include 
Federal holidays. The Specialized Carriers and Rigging Association 
asserted that its members must deal with coordinating various service 
provider and customer requirements, and comply with government permit 
restrictions on routes and operating times. Schneider National's 
simulation modeling indicated that productivity would suffer if the 11-
hour limit and 34-hour restart were eliminated.
    Many commenters raised issues not addressed in the IFR, which 
focused only on the 11-hour driving limit and the 34-hour restart 
provisions vacated by the Court. In particular, 212 commenters objected 
to the non-extendable 14-hour duty period; and 259 expressed opposition 
to the sleeper-berth provisions. Because FMCSA responded to these 
concerns at length in the 2005 rule, and because the DC Circuit upheld 
the Agency's sleeper-berth and ``14 hour rule'' provisions, the Agency 
will not discuss them further in this document. See 70 FR 50012-50014, 
50026-50031, August 25, 2005. Commenters also continued to express 
concerns about shipper practices, parking, driver pay structure, and 
other issues that are beyond the scope of the IFR and outside of 
FMCSA's statutory authority. These comments are not addressed in this 
final rule.
    The following sections summarize the comments submitted in response 
to the specific topics covered by the IFR. In particular, the 
discussion addresses the comments of the Insurance Institute for 
Highway Safety (IIHS), Public Citizen, and, in a joint filing, 
Advocates for Highway and Auto Safety, Public Citizen, the 
International Brotherhood of Teamsters, and the Truck Safety Coalition 
(Advocates et al.).
    1. Statutory Duty. Advocates et al. asserted that FMCSA has failed 
to make safety its highest priority. They argued that ``The Agency has 
relegated its safety mission to simply a balancing of economic costs to 
industry without regard for its basic mission--to prevent deaths, 
injuries, and adverse health impacts of much longer driving and working 
hours.''

FMCSA Response

    This rule is an excellent example of the paramount value FMCSA 
places on safety. It significantly reduces the daily driving window and 
lengthens the off-duty period drivers must take, greatly reducing the 
risk of short- and long-term fatigue while providing operational 
flexibility. However, as noted in the Legal Basis section, the Agency 
must consider multiple factors in issuing any motor carrier regulation, 
including their costs and benefits (49 U.S.C. 31136(c)(2)(A) and 
31502(d)).
    In its 2004 decision, the DC Circuit stated: ``* * * neither 
petitioners nor the court suggests that the statute requires the agency 
to protect driver health to the exclusion of [cost/benefit] factors, 
only that the agency must consider it'' (374 F.3d at 1217). The Court 
thus acknowledges that the Agency must consider costs, benefits, and 
health factors in developing regulations, though it provided no further 
guidance on the weight to assign each factor. There is no case law on 
point, and the legislative history is silent. The FMCSA has therefore 
used its analytical capacity, expertise, knowledge of the industry, and 
best judgment to create a rule that enhances motor carrier safety while 
minimizing costs, consistent with its primary safety mission.
    2. Comments on Safety. Advocates et al., and to an extent some 
private citizens and drivers, disputed the Agency's assertion that 
motor carrier safety has improved since the 2003 rule went into effect, 
and argued that national crash data contradict this claim. 
Specifically, they stated that Fatality Analysis Reporting System 
(FARS) data are not consistent and, at best, show insignificant 
decreases in the fraction of fatigue-related crashes. In any case, they 
noted that the preamble to the 2005 rule itself described recent crash 
data as unreliable and inconclusive. They also pointed out that total 
large truck crash fatalities only began to decline in 2006, and that 
large truck fatal crashes per million vehicle miles traveled actually 
increased immediately after the 2003 rule went into effect. Regardless 
of national crash data, commenters stated that the Agency has not and 
cannot establish any causal link between improved safety and the 34-
hour restart or the 11th hour of allowable driving time. Commenters 
also criticized the Agency for not carefully studying the actual near-
term safety impact of the 2003 rule.

FMCSA Response

    FMCSA has consistently been cautious about inferring causal 
relationships between the HOS requirements and trends in overall motor 
carrier safety. The Agency believes that the data show no decline in 
highway safety since the implementation of the 2003 rule and its re-
adoption in the 2005 rule and the 2007 IFR.
    The Agency also examined crashes per million vehicle miles 
traveled. The fact that the fatal crash rate continues to follow a 
downward trend suggests the HOS regulations have not had an adverse 
impact on safety. The number of fatigue-related crashes is small and 
has remained relatively stable from year to year, without any clear 
trend since the 2003 rule was adopted.
    Advocates et al. are inconsistent in arguing that national crash 
data show a definite degradation in safety since the 2003 rule was 
implemented, while simultaneously claiming that the data FMCSA has 
cited are too preliminary and have not been studied in enough detail to 
allow final conclusions. The Agency acknowledges that all data contain 
``noise'' and that three or even four years' worth of annual crash data 
may not provide definitive evidence of the effect of the current HOS 
rule. Nonetheless, actual operations have thus far validated the 
Agency's analysis of the benefits and costs of this rule.
    FMCSA appreciates the self-reports of positive safety experiences 
from carriers, discussed previously in this document and in the 
preamble to the 2005 rule. While not definitive, these data are 
consistent with the Agency's conclusion that safety has been maintained 
under this rule. Moreover, the BLS data on occupational injuries 
submitted by ATA seem to provide evidence of the overall improvement in 
motor carrier safety. However, because these data are not linked in any 
discernible manner to drivers' work-rest schedules, they do not provide 
immediate justification for this rule.
    3. Comments on Driver Health. Advocates et al. argued that FMCSA 
has failed to protect driver health and consider the impact and costs 
of long hours on driver health. They also stated that FMCSA's position 
on driver health conflicted with the reports of the National Research 
Council's Transportation Research Board (TRB) Panels of Experts. They 
cited a newly published NIOSH Conference Report and Selective 
Literature Review [Saltzman, G.M., and Belzer, M.H., (2007)]. Advocates 
et al. also stated that there are decades of research on the impact of 
long work hours or shift work which FMCSA failed to consider in its HOS 
rule.

FMCSA Response

    The Agency has considered driver health at length. FMCSA carefully

[[Page 69573]]

evaluated health impacts in the 2005 rule using three steps. First, the 
Agency reviewed numerous studies, including those previously cited in a 
May 20, 2000, notice of proposed rulemaking (NPRM) (65 FR 25540) and in 
the 2003 rule. Second, FMCSA contracted with the TRB, which selected 
nationally known health and fatigue experts to conduct a thorough 
literature review of studies relevant to this rulemaking. The research 
reports TRB discovered clustered around a few issues: Driver exposure 
to diesel exhaust, noise, and vibration; prevalence of cardiovascular 
disease; and the effect of sleep loss or deprivation, shift work, and 
long work hours generally. As discussed at length in the preamble to 
the 2005 rule (Section E, 70 FR 49982 et seq.), many of the studies 
involved self-evaluations, which cannot be independently verified. 
Other studies are based on objective data, but their results are not 
``fine-grained,'' i.e., they do not allow the Agency to calculate the 
health effects of a few more hours of driving or on-duty time, or a few 
less. FMCSA reaffirms today the conclusion it reached in 2005--this 
rule neither causes nor exacerbates the risks associated with driving a 
CMV. Third, when commenters cited over 200 additional studies they 
deemed relevant, TRB reviewed them to inform our health and safety 
evaluation. In addition, the Agency conducted a literature review in 
December of 2007 to review studies of driver fatigue and health that 
were completed after the TRB review in 2005 [Belenky, G. and Wu, L.J., 
(2008)]. The Agency is not aware of, nor did any commenters provide, 
any studies published since the 2005 rule that would change these 
conclusions.
    Advocates et al. appear to have misunderstood FMCSA's response to 
the TRB panel. FMCSA did not dispute that there are some links between 
driving and various health conditions. The TRB literature review on 
driver health concluded that ``Lung cancer is likely caused by exposure 
to diesel exhaust and the longer that exposure lasts the more likely it 
is that a cancer will develop'' [Orris, P., et al. (2005), p. 8]. It 
went on to state that while ``the evidence linking this exposure to 
bladder cancer is less robust than that to lung cancer, it remains 
likely that there is such a relationship and that it is governed by a 
positive dose response curve'' (Id., p. 8). FMCSA has not disagreed 
with this finding as explained fully in section E2, Exposure to Diesel 
Exhaust, of the 2005 HOS rule. However, the Agency found: (1) That no 
credible research exists which established a positive dose-response 
curve between diesel exhaust and lung or bladder cancers; (2) that the 
U.S. Environmental Protection Agency (EPA) has undertaken significant 
steps to reduce the amount of diesel particulate matter to which 
commercial drivers are exposed; and, (3) that no evidence of 
significant increases in drivers' working hours has appeared, and 
therefore, that drivers have experienced no increased exposure to 
diesel exhaust as a result of the 2003 HOS rule compared to the prior 
HOS rule. FMCSA concluded that, while exposure to diesel exhaust 
probably entails some risk to drivers, neither the 2005 rule, the 2007 
IFR, or this 2008 final rule causes or exacerbates that risk when 
compared to prior HOS rules.
    The TRB medical panel also concluded that there is some evidence 
that cardiovascular disease (CVD) is caused in part by truck driving, 
and its risk increases with the duration of this activity and the 
disruption of the sleep cycle (Id., p. 8). In 2005, a NIOSH 
representative to FMCSA's health group reviewed the literature 
regarding CMV driving and the risk of developing CVD. The NIOSH 
representative concluded, and FMCSA concurred, that current research 
suggests the presence of only a weak association between CVD and truck 
driving. Additionally, CVD is associated with many other occupational 
types. No research studies were found that permitted an examination of 
whether additional hours of driving a CMV impact driver health as 
measured by increased CVD or acute myocardial infarction (AMI). FMCSA 
therefore concluded that nothing in the available research implicates 
today's HOS rule in a heightened risk of CVD or AMI.
    The TRB medical panel concluded that based on exposure assessments, 
noise-induced hearing loss could be a result of a working lifetime as a 
driver (Id., p. 8). The Agency has previously funded research to test 
the noise levels in large trucks and reviewed the documented research; 
the tests and the research have not shown that truck noise exceeds OSHA 
or FMCSA standards. The Agency is not aware of any data or 
epidemiological evidence that the noise levels in CMVs may lead to 
significant hearing loss.
    Both the TRB medical panels and the Agency concluded that the 
research on whole body vibration (WBV) and its potential health 
effects, such as low back syndrome, is inconclusive because the studies 
rely primarily on self-reporting and application of risks derived from 
other environments (Id., p. 8). The literature related to commercial 
driving and other musculoskeletal disorders suffers from the same 
limitations (Id., p. 8). The studies that tested vibration in CMVs 
found that vibration was close to the International Organization for 
Standardization (ISO) health risk threshold, but it did not 
consistently exceed that threshold. When comparing the 2003 HOS rule to 
today's rule, it is the Agency's best judgment that, based on the 
studies reviewed and comments received, WBV does not pose a significant 
health risk to CMV drivers.
    FMCSA also reviewed the NIOSH report entitled Overtime and Extended 
Work Shifts: Recent Findings on Illnesses, Injuries, and Health 
Behaviors [Caruso, C.C., et al. (2004)] and all studies in the report 
regarding commercial drivers. For a complete description of the 
Agency's review and analysis of the NIOSH report, see section E.6., 
Long Work Hours, in the preamble to the 2005 HOS rule (70 FR 49989 et 
seq.). In short, the NIOSH review found that ``extended work shifts and 
overtime lengthen exposure times and shorten recovery times, and the 
health consequences are uncertain'' (Id., p. 29). The NIOSH review went 
on to conclude that ``Despite the increased current interest in long 
working hours, research questions remain about the ways overtime and 
extended work shifts influence health and safety. Few studies have 
examined how the number of hours worked per week, shift work, shift 
length, the degree of control over one's work schedule, compensation 
for overtime, and other characteristics of work schedules interact and 
relate to health and safety'' (Id., p. 30). As a result of NIOSH's own 
comments regarding the state of research, FMCSA concluded in 2005 and 
again today that, based on current knowledge and the limited research 
specific to CMV driver health and work hours, in the Agency's best 
judgment there is not enough sufficient, credible evidence that the 
number of work hours allowed by the HOS regulation will have a negative 
impact on driver health.
    Advocates et al. cited proceedings from a 2003 NIOSH conference 
that were published in 2007 [Saltzman, G.M., and Belzer, M.H., (2007)]. 
FMCSA is well aware of the conference since FMCSA representatives 
attended and presented papers at the meeting. The purpose of the 
conference was to present research on driver health and to start a 
dialogue on a National agenda for future research in the area of driver 
health. Both anecdotal accounts and published research were included in 
the NIOSH proceedings. The TRB literature

[[Page 69574]]

review of driver health included research published by January 2005. 
Therefore, there is nothing new in these conference proceedings that 
the Agency has not already considered.
    In summary, as discussed at length in the 2005 rule, the Agency 
undertook a comprehensive examination of issues related to driver 
health. The Agency is aware of no new studies, nor have commenters 
provided any, published since the 2005 rule was promulgated that have 
changed these underlying conclusions and the regulatory provisions 
adopted. Driver health research simply is not mature enough to allow 
the conclusion that a number of extra hours of work would result in 
increased driver health problems. Also, there are many confounding 
factors that affect driver health, such as diet, smoking, and exercise. 
It remains very difficult to isolate the impact of exposure and longer 
working hours. The research to date has not provided a basis for 
analyzing the health impact of the 2003 and 2005 final rules and the 
2007 IFR, all of which allowed more driving time per day but fewer 
hours of daily work and longer required off-duty periods. Without a 
dose-response curve, which would indicate the incremental effect of 
each hour of exposure to diesel exhaust, vibration or long working 
hours, FMCSA has no basis for estimating health impacts and costs. 
FMCSA, along with many other Federal and private entities, is funding 
driver health research; however, it will be years before researchers 
are able to separate the impacts of daily work exposure versus driver 
lifestyle. The Agency concluded in 2005 that it was unable to quantify 
or monetize the impacts of that rule on driver health; the same 
conclusion applies to today's rule.
    FMCSA also notes that several major carriers and associations, 
including ATA, NPTC, and the National Industrial Transportation League 
(NITL) stated that the rule had benefited drivers' health and quality 
of life. These parties also noted that Advocates et al. focused 
exclusively on two provisions of the rule, but ignored the changes 
which provide drivers more time for sleep such as the 14-hour driving 
window, the sleeper-berth rule, and especially the 10-hour off-duty 
period. The 14-hour window limited the period of time available for 
driving and, in combination with the 10-hour off-duty period, moved 
drivers toward a 24-hour circadian period. Research at Virginia Tech 
Transportation Institute (VTTI) has shown that as a result of the 2003 
rule, CMV drivers are getting more sleep (1 hour) on a daily basis 
[Hanowski, R.J., et al. (2005), p. 1]. Additionally, because the 
sleeper-berth provision requires a consecutive 8-hour sleeper-berth 
period and a second 2-hour off-duty or sleeper-berth period to be used 
at the driver's discretion for breaks, naps, meals, and other personal 
matters, drivers have a much greater opportunity to obtain additional 
rest when needed. Consistent with the issues of exposure discussed 
above, the Agency also was unable to quantify the positive impacts on 
driver health from obtaining more sleep as a result of this rule. 
Nonetheless, drivers are sleeping more overall with more circadian 
regularity; and are now sleeping within normal ranges that are 
consistent with a healthy lifestyle.
    In an OOIDA survey, drivers reported an improved quality of life 
based on the combined effects of the 2005 rule (70 FR 50025). A tally 
of comments from the 2005 rule (Id. at 50037) leads to the same 
conclusion. FMCSA agrees with comments emphasizing the need to treat 
the rule as a single interactive whole, instead of analyzing its 
provisions separately (70 FR 50041, 72 FR 71252). Moreover, numerous 
drivers reported that the 2003 rule's off-duty time provided the 
opportunity not only for sleep, but also for relaxation and personal 
tasks that improved their quality of life (Id. at 50040). The preamble 
to the 2005 rule also noted that certain lifestyle choices, over which 
the Agency has no control, including eating, smoking, and exercise, may 
``by themselves be predictive'' of cancer and cardiovascular disease. 
(Id. at 50007). In addition, stress is a risk factor for cardiovascular 
disease (Id. at 49988). To the extent today's rule can reduce stress, 
it may be directly beneficial to driver health. The operational 
flexibility allowed by the rule, which (to judge from their comments to 
the docket) allows more drivers to spend weekends at home, may have 
just such an effect.
    4. Approach to Research. Advocates et al. stated that FMCSA 
provided no evidence that it reviewed scientific research that did not 
support its conclusions, and that the Agency disregarded almost all 
studies not directly linked to truck driving or ignored studies on the 
basis of flaws that were also evident in the few studies selected to 
support the new HOS regulation.

FMCSA Response

    FMCSA conducted extensive literature reviews in the course of 
formulating its HOS regulations. In 1996, the then Office of Motor 
Carriers (OMC) of the Federal Highway Administration (FHWA) collected, 
reviewed, and docketed all relevant research on driver fatigue and 
performance. As part of that effort, a detailed literature review on 
driver fatigue was published (Freund, entry 956 in Docket 2350, Nov. 
1999). In 1998, OMC commissioned an expert panel to deliberate on 
changes to HOS regulations for commercial drivers. As discussed 
previously, in 2005 FMCSA systematically and extensively researched 
both U.S. and international health and fatigue studies and consulted 
with other Federal safety and health experts. A detailed description of 
the qualifications of the TRB team and the methodology used can be 
found in the preamble to the 2005 rule (70 FR 49981). In addition, the 
Agency conducted a literature review in December of 2007 of studies of 
driver fatigue and health that were completed after the TRB review in 
2005 [Belenky, G. and Wu, L.J., (2008)]. FMCSA has used the best 
available research in its HOS rulemaking.
    Comment. Advocates et al. stated that the FHWA Expert Panel did not 
guide FMCSA decision-making on HOS. The Expert Panel was convened and 
their report was published, but according to the commenters, the 
Panel's findings were mostly disregarded or discarded, especially when 
the findings contradicted the Agency's regulatory decisions.

FMCSA Response

    The commenters are mistaken. The Expert Panel's role is to provide 
guidance; it is exclusively the Agency's responsibility to make 
decisions with regard to rulemaking. The Expert Panel is not 
constrained by statutory requirements in undertaking its work, unlike 
the Agency. Alternatively, the Agency must take into account various 
statutory requirements in considering the guidance provided to it by 
the Expert Panel, and make decisions based on this consideration. To 
merely adopt recommendations by the Panel, without due consideration, 
would be abdicating the Agency's statutory rulemaking responsibility. 
Nonetheless, FMCSA did extensively use the Expert Panel's results to 
guide its decision making.
    The Expert Panel urged that a final rule rely on a 24-hour work/
rest cycle [Belenky, G., et al. (1998), p. 7]. This final rule is based 
in part on that concept. A 14-hour driving window and a 10-hour off-
duty period, which are likely to be the standard for many drivers, 
ensures 24-hour circadian regularity. The Expert Panel indicated that 
``Off-duty hours must include enough continuous time off duty so that 
drivers are able to meet the demands of life beyond their jobs and are 
also able to obtain sufficient uninterrupted rest

[[Page 69575]]

* * * The time allotted for sleep must be a minimum of 9 hours'' (Id., 
p. 7). Today's final rule exceeds the Expert Panel's recommendation.
    The Expert Panel noted that ``rest or sleep acquired in a sleeper 
berth is not equivalent to rest or sleep in a bed'' (Id., p. 9). It 
therefore urged that the Agency's regulations require an uninterrupted 
sleeper-berth period of at least 7 hours to allow for 6 hours of 
continuous sleep, with another period of at least 2 hours for a nap. 
This was one of the many factors that went into the decision to change 
the sleeper-berth provision in the 2005 rule. The 2005 rule required a 
consecutive 8-hour sleeper-berth period to allow drivers to obtain one 
primary period of sleep, and a second 2-hour off-duty or sleeper-berth 
period to be used at the driver's discretion for breaks, naps, meals, 
and other personal matters. This provision of the rule was upheld by 
the DC Circuit and is therefore being adopted without change in today's 
final rule.
    The Expert Panel noted that ``recovery time periods must take into 
consideration the necessity for overcoming cumulative fatigue resulting 
from such schedules and must include sufficient sleep * * * Recovery 
time should include at least two uninterrupted time periods * * * and 
such recovery time must be made available at least once in every 7 
days'' (Id., p. 12). The 2003 rule created a minimum 34-hour recovery 
period that provides sufficient time for two 8-hour sleep periods and 
one 16-hour period of intervening wakefulness, allowing the opportunity 
for recovery from any potential cumulative fatigue that might occur. 
Although the effect of the 34-hour restart cannot be isolated from all 
the other factors that affect highway safety, it should be noted that 
FMCSA's Field Surveys show increased use of the restart provision 
between 2005 and 2007, at a time when the rate of fatigue-related fatal 
truck crashes remained essentially unchanged and the overall large-
truck fatal crash rate dropped to the lowest level ever recorded. This 
final rule therefore readopts the IFR's 34-hour restart provision 
without change.
    On one issue, the Expert Panel made a recommendation not fully 
adopted by FMCSA; for example, the Panel stated that ``no distinction 
should be made between on-duty time and driving time.'' The Panel noted 
that ``for a variety of tasks (driving a bus, driving a truck, 
operating a train), an early rise in accident risk * * * peaks between 
2 and 4 hours after onset of duty, then falls and does not reach the 
level of the early peak until after 12 to 14 hours, when it continues 
to rise at an accelerating rate'' (Id., p. 8). This final rule, like 
previous HOS rules, does distinguish between driving and on-duty time, 
but today's 11-hour limit on driving time within a 14-hour on-duty 
window is otherwise fully consistent with the Panel's conclusions.
    The Agency did not reject the Expert Panel's recommendations; FMCSA 
embraced the Expert Panel's report and developed a rule that is 
supported by its recommendations
    Comment. Advocates et al. also argued that FMCSA selectively quoted 
from the studies it relied on to justify the HOS rule. Furthermore, 
they stated that FMCSA has capriciously selected research studies, 
relying on inadequate research and data to justify the IFR, while 
rejecting conflicting studies.

FMCSA Response

    On the contrary, FMCSA has worked on its current HOS rule for more 
than a decade, and has funded considerable research to expand the 
knowledge of sleep and fatigue science. This HOS rule has been 
developed by FMCSA experts who have carefully reviewed and weighed the 
findings from previous research efforts. Over the years the research 
has improved as more sophisticated technology for data collection 
became available. The Agency has relied and will continue to rely upon 
improved research studies to produce the best possible regulations.
    The first principle that the Agency uses in evaluating research is 
that studies based on quantifiable, objective data that can be 
independently verified and tested are preferable to those based on 
subjective data such as individuals' opinions or perceptions. Where no 
objective data that was collected through strictly controlled, unbiased 
scientific experimentation exist, the Agency will use the best 
alternatives available; that could, in some instances, be subjective 
data. FMCSA prefers to use well-designed objective studies like the 
Virginia Tech Transportation Institute (VTTI) naturalistic driving 
research, rather than surveys of drivers.
    The second principle is to rely primarily on independent studies 
that are sufficient in scope, are peer reviewed, and use an application 
of statistics (power anal