Hours of Service of Drivers, 82170-82198 [2010-32251]
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82170
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 385, 386, 390, and 395
[Docket No. FMCSA–2004–19608]
RIN 2126–AB26
Hours of Service of Drivers
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
AGENCY:
To promote safety and to
protect driver health, FMCSA proposes
to revise the regulations for hours of
service for drivers of property-carrying
commercial motor vehicles (CMVs). To
achieve these goals, the proposed rule
would provide flexibility for drivers to
take breaks when needed and would
reduce safety and health risks associated
with long hours. The proposed rule
would make seven changes from current
requirements. First, the proposed rule
would limit drivers to either 10 or 11
hours of driving time following a period
of at least 10 consecutive hours off duty;
on the basis of all relevant
considerations, FMCSA currently favors
a 10-hour limit, but its ultimate decision
will include a careful consideration of
comments and any additional data
received. Second, it would limit the
standard ‘‘driving window’’ to 14 hours,
while allowing that number to be
extended to 16 hours twice a week.
Third, actual duty time within the
driving window would be limited to 13
hours. Fourth, drivers would be
permitted to drive only if 7 hours or less
have passed since their last off-duty or
sleeper-berth period of at least 30
minutes. Fifth, the 34-hour restart
would be retained, subject to certain
limits: The restart would have to
include two periods between midnight
and 6 a.m. and could be started no
sooner than 168 hours (7 days) after the
beginning of the previously designated
restart. Sixth, the definition of ‘‘on duty’’
would be revised to allow some time
spent in or on the CMV to be logged as
off duty. Seventh, the oilfield operations
exception would be revised to clarify
the language on waiting time and to
state that waiting time would not be
included in the calculation of the
driving window.
DATES: You may submit comments by
February 28, 2011.
ADDRESSES: You may submit comments,
identified by docket number FMCSA–
2004–19608 or RIN 2126–AB26, by any
of the following methods:
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SUMMARY:
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• Federal eRulemaking Portal: https://
www.regulations.gov.
• Fax: 202–493–2251.
• Mail: Docket Management Facility
(M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001.
• Hand delivery: Same as mail
address above, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The telephone number
is 202–366–9329.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
Mr.
Thomas Yager, Chief, Driver and Carrier
Operations Division, Federal Motor
Carrier Safety Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue, SE., Washington,
DC 20590, (202) 366–4325.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Table of Contents
I. Public Participation and Request for
Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Overview
III. Legal Basis
IV. Background
A. History
B. Process
C. Description of Industry
V. Agency Goals
A. Safety—Fatigue
B. Driver Health
CVD
C. Flexibility
VI. Discussion of Proposed Rule
A. Driving Time
B. Breaks
C. Duty Time/Driving Window
D. Restart and Weekly Limits
E. Sleeper Berth
F. Other Issues
VII. Section-by-Section Analysis
VIII. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
1. A Description of the Reasons why
Action by the Agency Is Being
Considered
2. A Succinct Statement of the Objectives
of, and Legal Basis for, the Proposed
Rule
3. A Description of and, where Feasible, an
Estimate of the Number of Affected
Small Entities to which the Proposed
Rule Will Apply
4. Discussion of the Impact on Affected
Small Entities
5. A Description of the Projected Reporting,
Recordkeeping, and Other Compliance
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Requirements of the Proposed Rule,
Including an Estimate of the Classes of
Small Entities which will be Subject to
the Requirement and the Type of
Professional Skills Necessary for the
Preparation of the Report or Record
6. An Identification, to the Extent
Practicable, of all Relevant Federal Rules
which may Duplicate, Overlap, or
Conflict with this Proposal
7. A Description of any Significant
Alternatives to the Proposed Rule which
Minimize any Significant Impact on
Small Entities
C. Paperwork Reduction Act
D. National Environmental Policy Act
E. Executive Order 13132 (Federalism)
F. Privacy Impact Assessment
G. Executive Order 12630 (Taking of
Private Property)
H. Executive Order 12988 (Civil Justice
Reform)
I. Executive Order 13045 (Protection of
Children)
J. Executive Order 13211 (Energy Supply,
Distribution, or Use)
K. Executive Order 12898 (Environmental
Justice)
L. Unfunded Mandate Reform Act
I. Public Participation and Request for
Comments
FMCSA encourages you to participate
in this rulemaking by submitting
comments, data, and related materials.
All comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you provide.
A. Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking (FMCSA–2004–19608),
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation. You
may submit your comments and
material online or by fax, mail, or hand
delivery, but please use only one of
these means. FMCSA recommends that
you include your name and a mailing
address, an e-mail address, or a phone
number in the body of your document
so that FMCSA can contact you if there
are questions regarding your
submission. However, see the Privacy
Act section below regarding availability
of this information to the public.
To submit your comment online, go to
https://www.regulations.gov and click on
the ‘‘submit a comment’’ box, which will
then become highlighted in blue. In the
‘‘Document Type’’ drop down menu,
select ‘‘Proposed Rules,’’ insert
‘‘FMCSA–2004–19608’’ in the
‘‘Keyword’’ box, and click ‘‘Search.’’
When the new screen appears, click on
‘‘Submit a Comment’’ in the ‘‘Actions’’
column. If you submit your comments
by mail or hand delivery, submit them
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in an unbound format, no larger than 8
1⁄2 by 11 inches, suitable for copying
and electronic filing. If you submit
comments by mail and would like to
know that they reached the facility,
please enclose a stamped, self-addressed
postcard or envelope.
FMCSA will consider all comments
and material received during the
comment period and may change this
proposed rule based on your comments.
B. Viewing Comments and Documents
All public comments, as well as
documents mentioned in this notice, are
available in the public docket. To view
them, go to https://www.regulations.gov
and click on the ‘‘read comments’’ box
in the upper right hand side of the
screen. Then, in the ‘‘Keyword’’ box
insert ‘‘FMCSA–2004–19608’’ and click
‘‘Search.’’ Next, click the ‘‘Open Docket
Folder’’ in the ‘‘Actions’’ column.
Finally, in the ‘‘Title’’ column, click on
the document you would like to review.
If you do not have access to the Internet,
you may view the docket online by
visiting the Docket Management Facility
in Room W12–140 on the ground floor
of the Department of Transportation
West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
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C. Privacy Act
Anyone may search the electronic
form of 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
Department of Transportation’s (DOT)
Privacy Act Statement for the Federal
Docket Management System published
in the Federal Register on January 17,
2008 (73 FR 3316), or you may visit
https://edocket.access.gpo.gov/2008/pdf/
E8-785.pdf.
II. Overview
Goals. The goal of this HOS proposed
rule is to improve safety while ensuring
that the requirements would not have an
adverse impact on driver health. The
proposed rule also would provide
drivers with the flexibility to obtain rest
when they need it and to adjust their
schedules to account for unanticipated
delays. FMCSA has also attempted to
make the proposed rule easy to
understand and readily enforceable.
Admittedly, design of HOS rules
raises conceptual and empirical
challenges. The impact of such rules on
CMV safety is difficult to separate from
the many other factors that affect heavyvehicle crashes. The 2008 FMCSA final
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rule on HOS noted that ‘‘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 [interim final rule]’’ (73 FR 69567,
69572, November 19, 2008). While that
statement remains correct, the total
number of crashes, though declining, is
still unacceptably high. Moreover, the
source of the decline in crashes is
unclear.
FMCSA believes that the HOS
regulations proposed today, coupled
with the Agency’s many other safety
initiatives and assisted by the actions of
an increasingly safety-conscious motor
carrier industry, would result in a
significant improvement in safety. We
note as well that the proposed rule is
intended to protect drivers from the
serious health problems associated with
excessively long work hours, without
significantly compromising their ability
to do their jobs and earn a living.
Summary of the Proposed Rule. The
proposed rule would change the
existing HOS regulations in a number of
ways. The required off-duty period
would remain at a minimum of 10
consecutive hours. Driving time
between two such periods could either
be 10 hours, as it was prior to the 2003
rule (68 FR 22455; April 28, 2003), or
11 hours. While the 10-hour rule is
currently FMCSA’s currently preferred
option, the Agency discusses both
alternatives in detail below. The driving
window would remain, on most days, at
14 consecutive hours after coming on
duty following a break of at least 10
hours; but a driver would be permitted
to be on duty for only 13 hours of that
time as opposed to the current 14 hours.
A driver would also be required to be
released from duty at the end of the 14hour period. To provide drivers with the
ability to rest, if needed, or to respond
to unanticipated conditions, twice a
week, drivers would be allowed to
extend the driving window to 16 hours.
Extending the driving window,
however, would not increase either
driving or on-duty time. As a
consequence of the 13-hour on-duty
limit, a driver using the extension
would need to take up to 3 hours off
duty during that duty day. A driver
would be required to go off duty at the
end of the 16-hour driving window.
To prevent excessive hours of
continuous driving, the proposed rule
would permit drivers to drive only if 7
hours or less have passed since the
driver’s last off-duty or sleeper-berth
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period of at least 30 minutes. For
example, if a driver began driving
immediately after coming on duty, he or
she could drive until the 7th hour.
However, because the required breaks
would be linked to time on duty, a
driver who first worked 3 hours at a
terminal and then began driving would
have to take a half-hour (or longer) break
no later than the end of the 4th hour of
driving (i.e., the 7th hour on duty). The
proposed rule would give drivers great
flexibility in scheduling their breaks. If
someone began driving immediately
after coming on duty and took an early
break between hours 2.5 and 3.0, he or
she could drive 7 consecutive hours
before reaching the 10-hour limit. If the
11-hour driving-time limit was adopted,
the early break would have to occur
between hours 3.5 and 4.0 to allow 7
consecutive hours of driving before
reaching the end of the 11th hour.
Conversely, a driver could drive until
the 7th hour before taking the break,
whether the daily limit was 10 or 11
hours. Assuming that truckers do
nothing but drive (which is unrealistic)
and want to minimize their breaks, they
could take the required half-hour break
anywhere between hours 2.5 and 7 of a
10-hour driving period or between
hours 3.5 and 7 of an 11-hour driving
period. Working beyond the 7th hour
without a break is permitted, however,
as long as the driver does not actually
drive a CMV after the 7th hour. In
practice, a driver who took a half-hour
break at 6 to 7 hours after coming on
duty would not be required to take a
second break during the driving
window of 14 hours.
The weekly limits in the current rule
(60 hours on duty in 7 days or 70 hours
on duty in 8 days) would remain
unchanged. The 34-hour restart allowed
under the current rule, which permits
drivers to restart the 60- or 70-hour
‘‘clock’’ by taking a break of at least 34
consecutive hours off duty, would be
retained, but with certain limitations.
First, any restart would have to include
two periods between midnight and 6
a.m. Depending on when the restart
begins, 34 consecutive hours off duty
could satisfy this requirement. In other
instances, the restart period would have
to be longer to incorporate the two
nights. The two-night requirement
would have no impact on the majority
of drivers who regularly drive during
the day. Drivers who regularly drive at
night would have to take longer restarts
to obtain two nights of sleep. Second, a
driver would be allowed to begin
another 34-hour off-duty period no
sooner than 168 hours (7 days) after the
beginning of the previous restart.
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Limiting the restart to once in 7 days
effectively reduces the number of hours
a driver could be on duty and drive
from an average of about 82 hours in 7
days under the current rule to an
average of 70 hours. Third, the driver
would have to designate whether a
period of 34 hours or more off duty was
to be considered a restart.
FMCSA is not proposing any changes
to the sleeper-berth rule at this time.
Drivers using the current rule must take
at least 8, but less than 10, consecutive
hours in the sleeper berth and a shorter
break of at least 2 hours off duty or in
the sleeper berth (in lieu of the standard
10 consecutive hours off duty). The
shorter of the breaks used under the
sleeper berth rule is included in the
calculation of the driving window. The
use of the sleeper berth rule, however,
would be affected by the other changes
proposed. The driving window would
be 14 to 16 hours long; duty time would
be limited to 13 hours. A driver using
the 16-hour window could count the
shorter period toward the 3 hours of
breaks that the driver would have to
take to reach 16 hours; the shorter
period, therefore, would not reduce the
13 hours of on-duty time. When the
driver uses the 14-hour window, the
shorter break will reduce the 13-hour
on-duty time by at least 1 hour.
FMCSA proposes to change the
definition of ‘‘on duty’’ to allow team
drivers to log as off duty up to 2 hours
spent in the passenger seat immediately
before or after a period of 8 or more
hours in the sleeper berth while the
other team member is driving. FMCSA
is also proposing additional language
that would exclude time spent resting in
a non-moving CMV from the definition
of ‘‘on duty’’ time.
Finally, FMCSA is proposing to make
drivers and motor carriers potentially
liable for the maximum penalty
available if they drive or permit
someone to drive 3 or more hours over
the 10/11-hour driving-time limit. This
provision targets egregious violations of
the driving-time limits.
The Agency has attempted to
structure these requirements to protect
safety and health while maintaining
industry flexibility and minimizing the
impact on drivers working more
reasonable schedules. Because the
drivers who work very extensive hours
are a relatively small minority, FMCSA
does not anticipate that this rule would
have significant adverse impact on the
industry. Since the drivers who work to
the limits of the current rule are those
most likely to develop fatigue over the
course of the day and week, a reduction
in their driving hours should lead to
reductions in fatigue-related crashes.
Preventing these crashes and reducing
relative crash risk overall to improve
safety is the principal goal of the HOS
regulations.
Although the Agency is primarily
concerned with highway safety, FMCSA
anticipates an additional benefit from
reducing allowable daily and weekly
work hours for the drivers with highintensity schedules. Recent research
indicates that inadequate sleep is
associated with increases in mortality.
This effect is believed to involve an
increase in the propensity for workplace
(and leisure time) accidents and in
mortality due to an increase in the
incidence of high blood pressure,
diabetes, cardiovascular disease, and
other health problems; some of these
conditions could disqualify drivers for
medical reasons. Since increases in
hours worked are associated with
decreases in hours spent sleeping, and
truck drivers working high-intensity
schedules get significantly less than the
7 hours of sleep required for optimal
mortality, cutting back on such
schedules should reduce, to some
extent, mortality among these drivers.
These benefits should be counted as
outcomes of reductions in total work
allowed to drivers.
TABLE 1—SUMMARY OF 10-YEAR COSTS AND BENEFITS FOR PROPOSED RULE
[Millions 2008$]
Option 2
Option 3
Option 4
$7,246
9,913
2,667
$3,662
7,562
3,900
$16,213
13,232
(2,981)
8,748
12,040
3,292
4,394
9,184
4,789
19,639
16,071
(3,568)
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7% Discount Rate:
Costs .............................................................................................................................................................
Benefits .........................................................................................................................................................
Net Benefits ..................................................................................................................................................
3% Discount Rate:
Costs .............................................................................................................................................................
Benefits .........................................................................................................................................................
Net Benefits ..................................................................................................................................................
III. Legal Basis
This proposed rule is based on the
authority of the Motor Carrier Act of
1935 and the Motor Carrier Safety Act
of 1984 (1984 Act). 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 proposed today
concern the ‘‘maximum hours of service
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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
proposed rule rests on that authority.
The 1984 Act 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
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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
have a deleterious effect on the physical
condition of the operators’’ (49 U.S.C.
31136(a)). The United States Court of
Appeals for the District of Columbia
Circuit (DC Circuit) has said with regard
to 49 U.S.C. 31136(a)(4) that ‘‘the statute
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requires the agency to consider the
impact of the rule on ‘the physical
condition of the operators,’ not simply
the impact of driver health on
commercial motor vehicle safety. * * *
It is one thing to consider whether an
overworked driver is likely to drive less
safely and therefore cause accidents.
Whether overwork and sleep
deprivation have deleterious effects on
the physical health of the driver is quite
another.’’ Public Citizen et al. v. FMCSA,
374 F.3d 1209, 1217 (DC Circuit 2004).
This proposal would improve both
highway safety and the health of CMV
drivers.
This proposed rule is also based on
the authority of the 1984 Act and
addresses the specific mandates of 49
U.S.C. 31136(a)(2), (3), and (4). Section
31136(a)(1) mainly addresses the
mechanical condition of CMVs, a
subject not included in this rulemaking.
To the extent that the phrase ‘‘operated
safely’’ in paragraph (a)(1) encompasses
safe driving, this proposed 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 proposed rule.
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IV. Background
A. History
For drivers of CMVs, HOS have been
regulated since December 1937 when
the Interstate Commerce Commission
(ICC) promulgated the first Federal HOS
rules. The rules were revised
significantly in 1938 and 1962. The
1938 revision limited drivers to 10
hours of driving in 24 hours with at
least 8 hours off duty; drivers could be
on duty 60 hours in 7 days or 70 hours
in 8 days. The 1962 revision dropped
the 24-hour requirement, effectively
allowing drivers to drive 10 hours and
take 8 hours off, then drive again. (See
the May 2, 2000, notice of proposed
rulemaking (NPRM) for a detailed
history of the provisions (65 FR 25540)).
The 2000 NPRM proposed a
comprehensive revision of the HOS
regulations in response to the ICC
Termination Act of 1995. The new rules
were to be science-based; the Agency
collected relevant studies and
completed its own comprehensive
Commercial Motor Vehicle Driver
Fatigue and Alertness Study, a joint
undertaking with Canada and the
trucking industry. FMCSA assembled an
expert panel of recognized authorities
on traffic safety, human factors, and
fatigue to review the science and
evaluate regulatory alternatives. FMCSA
conducted eight nationwide public
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hearings on the NPRM and three 2-day
public roundtable discussions. On April
28, 2003, the Agency promulgated a
final rule (68 FR 22455).
The 2003 rule made significant
changes in the rules for propertycarrying operations. Driving time was
extended from 10 to 11 hours, but the
driving window was limited to 14
consecutive hours after coming on duty
(as opposed to the previous 15
cumulative on-duty hours). The daily
rest period was extended from 8 to 10
hours. The weekly limits were
unchanged, but drivers were allowed to
restart the calculation of weekly hours
anytime they took an off-duty break of
at least 34 consecutive hours (the 34hour restart). Drivers using sleeper
berths were allowed to accumulate the
equivalent of 10 consecutive hours off
in two periods, neither of which could
be less than 2 hours. (See the 2003 final
rule for a detailed discussion of the
changes.)
On June 12, 2003, Public Citizen,
Citizens for Reliable and Safe Highways,
and Parents Against Tired Truckers filed
a petition to review the 2003 HOS rules
with the DC Circuit. On July 16, 2004,
the DC Circuit issued an opinion
holding ‘‘that the rule is arbitrary and
capricious [under the Administrative
Procedure Act (APA)] because the
agency failed to consider the impact of
the rules on the health of drivers, a
factor the agency must consider under
its organic statute’’ and vacated the rule
(Public Citizen et al. v. FMCSA, 374
F.3d 1209, at 1216). Congress then
directed that the 2003 regulations would
remain in effect until the effective date
of a new final rule addressing the issues
raised by the Court or September 30,
2005, whichever occurred first.1
On August 25, 2005, FMCSA
published a final rule that addressed
driver health issues; it also retained the
11 hours of driving, 14-hour driving
window, 10 hours off duty, and the 34hour restart (70 FR 49978). The rule
revised the sleeper-berth provision to
require at least 8, but less than 10,
consecutive hours in the sleeper berth,
providing drivers with the opportunity
to obtain 7 to 8 hours of uninterrupted
sleep each day. Drivers using the sleeper
berth exception had to take an
additional 2 hours either off duty or in
the sleeper berth, which is included in
the calculation of the 14-hour driving
window. The 2005 rule also provided an
exception for drivers who operate
within 150 air-miles of their work
reporting location and who drive CMVs
1 Section 7(f) of the Surface Transportation
Extension Act of 2004, Part V, Public Law 180–310;
118 Stat. 1144.
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that do not require a commercial
driver’s license (CDL) to operate. To
enable these short-haul carriers to meet
unusual scheduling demands, the driver
could use a 16-hour driving window
twice a week. (See the 2005 final rule
for a detailed discussion of the changes
and a discussion of driver health
issues.)
Public Citizen and others challenged
the 2005 rule on several grounds, as did
the Owner-Operator Independent
Drivers Association (OOIDA). On July
24, 2007, the DC Circuit rejected
OOIDA’s arguments, which focused on
the sleeper-berth provision, but
accepted part of Public Citizen’s
arguments. The DC Circuit concluded
that FMCSA did not satisfy the APA’s
requirements to explain its reasoning
and provide an opportunity for notice
and comment on portions of the
regulatory evaluation; the Court,
therefore, vacated the 11-hour drivingtime and 34-hour restart provisions
(OOIDA v. FMCSA, 494 F.3d 188 (DC
Cir. 2007)).
FMCSA published an interim final
rule (IFR) on December 17, 2007 (72 FR
71247), to prevent disruption of both
enforcement and compliance while the
Agency responded to the issues
identified by the Court. The IFR repromulgated both 11 hours of driving
time and the 34-hour restart. In response
to the Court’s findings, the preamble to
the IFR included a detailed explanation
of the Agency’s time-on-task
methodology (72 FR 71252 et seq.). On
November 19, 2008, FMCSA published
the provisions of the IFR as a final rule
(73 FR 69567).
On December 18, 2008, Advocates for
Highway and Automotive Safety, Public
Citizen, the International Brotherhood
of Teamsters, and the Truck Safety
Coalitions (HOS petitioners) petitioned
FMCSA to reconsider the research and
crash data justifying the 11-hour driving
rule and the 34-hour restart provision.
FMCSA denied the petition.2 On March
9, 2009, the HOS petitioners filed a
petition for review of the 2008 rule in
the DC Circuit and, on August 27, 2009,
filed their opening brief. However, in
October 2009, DOT, FMCSA, and the
HOS petitioners reached a settlement
agreement.
Pursuant to the agreement, the
petition for review is in abeyance
pending FMCSA’s publication of this
NPRM. After considering all the
comments, FMCSA must publish a final
rule by July 26, 2011.
2 January 16, 2009, docket # FMCSA–2004–
19608–3525.1.
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B. Process
As part of its process for considering
revisions to the HOS rule, FMCSA
sought input and comments from its
Motor Carrier Safety Advisory
Committee (MCSAC) and from the
public, including carriers, drivers,
unions, safety advocacy groups, and
others. The latter comments were
provided at five public listening
sessions. In addition, the HOS docket
has been open and comments filed
during this period have been reviewed.
MCSAC. MCSAC was established by
the Secretary of Transportation on
September 8, 2006, and is charged with
providing advice and recommendations
to the FMCSA Administrator on motor
carrier safety programs and regulations.
In the fall of 2009, FMCSA asked its
MCSAC to identify ideas and concepts
that the Agency should consider in
developing the HOS regulations. At the
time, MCSAC membership was
comprised of 15 experts from the motor
carrier industry, safety advocates, and
safety enforcement sectors.3 In addition,
three organizations (Public Citizen, the
Teamsters, and the Truck Safety
Coalition) participated in the meetings
as guests. MCSAC met in December
2009 and February 2010 to discuss the
regulations. On February 2, 2010, they
forwarded a report to the Administrator.
The full report is available in the Docket
(FMCSA–2004–19608–3867). The
committee’s principles included the
following:
• The rule should be simple,
enforceable, and compliance should be
measurable.
• FMCSA should consider expert
opinion, all available data, and feedback
from HOS listening sessions.
• FMCSA should consider the
appropriateness (implementation vs.
enforcement) of a one-size-fits-all
approach.
• Safety, not profit/productivity,
should be considered first and foremost.
• A guiding principle should be how
driver health relates to the safety of the
public.
• FMCSA should consider total cost
to industry.
In the short term, MCSAC
recommended that FMCSA consider:
• All available valid research on all
impacts (e.g., health), including new
research performed since the 2008 HOS
rule. Additionally, FMCSA should
review studies that were not considered
under the previous rulemakings (e.g.,
3 Eight new members were added to the MCSAC
on June 8, 2010. Representatives of the Teamsters
and the Truck Safety Coalition were among the
groups added to the MCSAC. See https://
mcsac.fmcsa.dot.gov/members.htm.
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shift work studies and epidemiological
research findings that are related to
driver health and HOS).
• Each incremental hour on duty and
its effect on driver fatigue, beginning
with the first hour. Determine whether
there is a fatigue breakpoint (a point in
time after which performance declines).
• Driving schedules in light of
circadian rhythm research and crash
rates by time of day, while balancing the
effects on the general public.
• Industry safety performance data
under the current rule (e.g., crash data,
fatalities, injuries, compliance-related
data, exposure data).
• Existing data on the total cost to
society of all fatigue-CMV crashes (not
just fatal or injury crashes) (e.g.,
economic paralysis of section of city/
State to clear a CMV crash; medical care
for those seriously injured without
insurance; lost productivity; fuel costs;
air pollution; costs to families of
persons injured).
• Current practices, research, and
technologies within other transportation
modes and industries regarding fatigue.
Consider international approaches to
HOS, including those of Canada, the
European Union (EU), Australia, and
Japan. For example, EU requires
electronic logging devices with welleducated enforcement. Also, in Canada,
drivers may ‘‘borrow’’ driving time from
the following day while meeting a
weekly average.
• Allowing more flexibility with
respect to rest breaks and driving time,
including, but not limited to, sleeper
berth rest breaks.
Listening sessions. To solicit further
information, FMCSA held five public
listening sessions in January and March
2009, in Washington, DC, Dallas, TX,
Los Angeles, CA, Davenport, IA, and
Louisville, KY. The Davenport session
was held adjacent to a large truck stop
and the Louisville session was held at
the Mid-America Trucking Show to
encourage participation by drivers. The
sessions were webcast, and comments
were also submitted via toll-free
telephone lines. Approximately 300
individuals and organizations spoke at
the sessions. The majority of the
speakers were drivers and carriers or
associations representing them; most of
the drivers who spoke were in for-hire,
long-haul, truck-load (TL) operations.
In general, the carriers, drivers, and
their associations supported the existing
rule with two exceptions. They
supported maintaining 11 hours of
driving time and the 34-hour restart.
Carriers and their associations stated
that the 11 driving hours provided
flexibility and that some carriers had
redesigned routes and schedules to use
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the full 11 hours; they believed that
changing to a shorter period would be
costly. Drivers indicated that they use
the restart frequently; when away from
home, they may take no more than 34
hours off; at home, the restart is usually
longer. Some drivers argued for a
shorter restart (24 hours or less).
Many, but not all, drivers objected to
the 14-hour consecutive period, saying
that it forced them to drive when they
were tired because breaks were included
in the calculation of the driving
window. They also said that the rule
made it difficult to avoid congestion
because they had to drive during rush
hours; under the pre-2003 rule, they
could have pulled off the road and
waited until congestion eased without
reducing their available duty hours.
Drivers sought more flexibility.
Specifically, they asked FMCSA to make
the 14-hour period cumulative (i.e., offduty time would not be included in
calculation of the driving window) or
allow the driving window to be
extended to 16 or 18 hours. A few
drivers supported the current 14-hour
rule, stating that it prevented carriers
and brokers from forcing them to log
waiting time at shippers and receivers
as off duty so they could work longer
days.
Many drivers and carriers objected to
the existing sleeper berth rule that
allows 10 hours off duty to be taken in
two periods, one of 8 to 10 hours and
the other of 2 or more hours, with the
shorter period included in the
calculation of the driving window.
Team drivers in particular wanted the
flexibility to be able to divide their 8hour sleeper berth time into shorter
periods (e.g., 4 + 4 hours, 5 + 3 hours,
etc.). Drivers who spoke on this issue
asked that the shorter period not be
included in the calculation of the duty
period.
Representatives of the safety advocacy
groups and the Teamsters generally
supported the 14-consecutive-hour
provision, but opposed 11 hours of
driving and the 34-hour restart because
these provisions allow long days of
continuous work and work weeks up to
84 hours in 7 days. They urged FMCSA
to consider the body of research on the
effects of long hours on performance
and health and to establish a 24-hour
circadian schedule.
Drivers also raised several issues that
affect them, but are outside of FMCSA’s
statutory authority. The number of
available areas where truck drivers can
safely stop and rest, although never
adequate, has been reduced in the last
few years as some States have closed
rest areas for budgetary reasons. Drivers
stated that the lack of safe rest areas
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made it difficult for them to find a place
to take their 10-hour off-duty period. A
number of drivers also stated that the
current methods of paying many drivers
(by the mile or load) provide shippers
with no incentive to load or unload a
truck promptly. Independent owneroperators and smaller carriers
complained that they could spend 30 to
40 hours of unpaid time a week waiting
for shippers. Finally, drivers stated that
anti-idling laws adopted by some State
and local governments to reduce
pollution can make it difficult to sleep
because they cannot run their air
conditioning or heating. FMCSA
acknowledges these complaints; but, as
explained in previous HOS
rulemakings, the Agency does not have
the statutory authority to address these
issues.
C. Description of Industry
The trucking industry comprises
hundreds of thousands of carriers and
millions of drivers moving goods locally
or in long hauls between cities. The
industry is diverse, and different sectors
have different operational
characteristics. The industry can be
divided in a number of ways: Private
versus for-hire; long-haul versus shorthaul; TL versus less than truckload
(LTL). Private carriers are not trucking
firms; they are manufacturers,
distributors, or retailers that move their
own goods among factories, distribution
centers (warehouses), and retail outlets.
Their drivers generally operate on a
regular basis over routes set by the
locations of their own facilities and
those of their customers. For-hire
carriers are in the transport business;
they move goods for their customers. An
LTL carrier usually picks up and
delivers small shipments in a local area
served by one of its terminals.
Shipments are consolidated into loads
for large trucks that make long runs to
the firm’s terminals in other areas.
Moves between terminals are almost
always overnight on regular routes. The
goods moved overnight are delivered
the next day by the local drivers at the
destination terminal. The TL carriers
typically pick up a full load from a
shipper and move it directly to the
receiver of the goods. Some of their
business is regular and predictable
under contracts or less-formal
agreements. Much of their business is
almost random in nature, movements
from one place to another being sold
and booked on a daily basis. Drivers in
random service may not know where
they will be at the end of each day.
Their runs are often made by day, but
many also require night-time driving.
Short-haul drivers operate within a local
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area; most are not exclusively night-time
drivers. Their routes may vary day by
day, but they are always in the same
general area. They may spend a good
part of each day loading and unloading
at multiple locations. Although there are
exceptions, most long-haul drivers do
not load or unload the cargo.
The various segments of the industry
are affected differently by HOS
provisions. Many short-haul drivers,
including unionized drivers who mostly
engage in local or LTL operations,
operate well within all of the provisions
of the rule. LTL firms and many private
carriers have set their routes and
terminals to stay within the HOS rule.
Those who are most affected are longhaul TL carriers. According to the 2007
Commodity Flow Survey, more than 95
percent of the tonnage moved by private
carriers is transported less than 250
miles and less than 1 percent is carried
more than 500 miles; 500 miles is about
the maximum for a 1-day trip. About 12
percent of the tonnage moved by forhire carriers is transported more than
500 miles; only 4 percent is transported
1,000 miles or more. Overall, 93 percent
of the tonnage moved solely by truck is
transported in trips of 500 miles or less.4
This percentage may be rising because
a number of the largest TL carriers are
shifting to intermodal operations,
putting cargo on intermodal trains for
moves that require more than a day and
making all-truck moves only in regional
operations.
V. Agency Goals
FMCSA set three primary goals as it
developed this proposed rule. First, the
rule provisions should improve safety
by reducing driver fatigue in a costeffective, cost-justified manner. Second,
the rule should ensure that the
requirements do not have an adverse
effect on driver health. Third, the rule
should provide drivers with some
flexibility in their schedules to
encourage them to take rest breaks when
they need them. This section discusses
the general rationale for these goals.
A. Safety—Fatigue
A fundamental purpose of the HOS
regulations is to reduce crash risk in
order to improve safety, and as
elaborated at length, the Agency has
concluded that the proposed rules will
have significant safety benefits. Ideally,
the Agency would have data to measure
crash risk along all of the dimensions
for which regulations are proposed.
Because the Agency has been not been
4 Bureau of Transportation Statistics (RITA, DOT)
and U.S. Census Bureau, ‘‘2007 Commodity Flow
Survey,’’ April 2010. FMCSA–2004–19608–4024.
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82175
able to gather such data, it has based its
analysis, in significant part, on share of
crashes that are fatigue-coded. The
Agency recognizes that using share of
crashes that are fatigue-coded could
have two possible problems:
a. Accident inspectors may be more likely
to code crashes as fatigue-related if the driver
has been on the road longer.
b. The share of crashes that are coded as
fatigue-related may conceivably increase
because the share of crashes caused by other
factors goes down. There could be no
increase in the risk of a fatigue-related crash
(the central question), but an increase in the
share of fatigue-related crashes.
Nonetheless, while the data are not as
complete as FMCSA would like them to
be, the Agency aimed to limit, to the
extent possible, the likelihood that
drivers will be fatigued, either when
they come on duty or during or at the
end of a working period. Fatigue affects
performance well before a person
becomes sleepy. As a person becomes
fatigued, reaction times slow,
concentration becomes more erratic, and
decision-making is slowed; all of which
affect the ability of a driver to respond
quickly to a hazardous driving situation.
Eventually fatigue reaches a point where
the person has trouble staying awake
and may be unable to avoid falling
asleep.
The fatigue that this rule addresses is
primarily that caused by lack of
adequate sleep (as opposed to physical
fatigue caused by strenuous activity). A
regulation cannot compel a driver to
sleep when off duty. FMCSA can only
ensure that the hours that a driver is
allowed to work in a day and a week do
not interfere with the opportunity to
obtain adequate sleep if the driver
works the maximum hours permissible.
The studies of restricted sleep show that
over days of mild, moderate, or severe
sleep restriction (1) alertness and
performance degrade as cumulative
sleep debt rises; (2) even mild sleep
restriction (loss of less than 1 hour of
sleep a day) degrades performance over
days. Seven to 8 hours of consolidated
night-time sleep in each 24 hours
appear to sustain performance over
multiple days, if not longer, for most
people.5
5 Belenky, G., Wesensten, N.J., Thorne, D.R.,
Thomas, M.L., Sing, H.C., Redmond, D.P., Russo,
M.B. & Balkin, T.J., ‘‘Patterns of Performance
Degradation and Restoration During Sleep
Restriction and Subsequent Recovery: A Sleep
Dose-Response Study,’’ Journal of Sleep Research,
Vol. 12, No. 1, March 2003, pp. 1–12. FMCSA–
2004–19608–3959.
Van Dongen, H.P., Maislin, G., Mullington, J.M.
& Dinges, D.F., ‘‘The Cumulative Cost of Additional
Wakefulness: Dose-Response Effects on
Neurobehavioral Functions and Sleep Physiology
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Sleep deprivation is classified as
acute or chronic. A person who gets
little or no sleep for 24 hours will suffer
from acute sleep loss; that person’s
cognitive ability at the end of the period
of being awake for 24 hours is
significantly impaired. Research
indicates that people can recover
completely from acute sleep loss with 1
or 2 nights of adequate sleep (7–8
hours). A person who gets an hour or
two less sleep per night than needed
develops chronic sleep deprivation.
Over 5 days, the person accumulates 5
to 10 hours of sleep debt. Sleep research
indicates that people who are
chronically sleep deprived need at least
2 nights of adequate sleep to recover.
Depending on the level of sleep
deprivation, individuals may stabilize at
a lower level of performance and believe
they have recovered, but their
performance will deteriorate more
rapidly across waking hours.6 Belenky,
G., et al. (2003) concluded that this
stabilization makes it difficult to recover
rapidly to the same level of performance
that existed prior to the sleep
deprivation even when a person is able
to obtain adequate sleep. Van Dongen,
H.P., et al. (2003) found that chronic
sleep restriction to 6 hours or less
produced cognitive performance deficits
equivalent to up to 2 nights of total
sleep deprivation.
The central issue that FMCSA must
consider in developing HOS regulations
involves the relative crash risk
associated with each hour of driving. It
would be valuable, for example, to
know the crash risk in the ninth, tenth,
and eleventh hours, and to compare that
risk to the risk in other hours. However,
as noted above, FMCSA needs
additional data to estimate relative crash
risk in each hour of driving and hence
has decided to consider, as a proxy, how
many hours drivers can consistently
work over a period of time without
becoming sleep-deprived. There are two
approaches to answering that question.
The Agency can examine data on
fatigue-related crashes, and it can
review research that measures the
amount of sleep that drivers are getting
from Chronic Sleep Restriction and Total Sleep
Deprivation,’’ Sleep, Vol. 26, No. 2, March 15, 2003,
pp. 117–126. FMCSA–2004–19608–3993.
6 Cohen, D. A., Wang, W., Wyatt, J. K., Kronauer,
R. E., Dijk, D.J., Czeisler, C. A. & Klerman, E. B.,
‘‘Uncovering Residual Effects of Chronic Sleep Loss
on Human Performance,’’ Science Translational
Medicine, Vol. 2, Issue 14ra3, January 13, 2010.
FMCSA–2004–19608–4021 and 4021.1.
Balkin, T.J., Rupp, T., Picchioni, D. & Wesensten,
N.J., ‘‘Sleep Loss and Sleepiness: Current Issues,’’
CHEST, Vol. 134, No. 3, September 2008, pp. 653–
660. FMCSA–2004–19608–3956. Belenky, G., et al.
(2003).
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under the existing rule and compare
that to the science on sleep deprivation.
As FMCSA discussed at length in
previous HOS rulemakings, the
percentage of CMV crashes associated
with fatigue is not known. Estimates
range from the 1.5 percent to 2.1 percent
found in the Trucks in Fatal Accident
(TIFA) data 7 to 13 percent in the Large
Truck Crash Causation Study (LTCCS) 8
to even higher percentages mentioned in
other studies.9 Because fatigue is
difficult to determine after the fact, it is
often not coded in crash reports, while,
in some cases, it may be coded even
when the driver was not fatigued
because the driver’s log showed long
hours at work and investigators
assumed fatigue. It is generally believed,
however, that fatigue-coding understates
the level of fatigue-related crashes. In
2008, large trucks were involved in
approximately 365,000 recorded
crashes, 3,700 of which involved
fatalities, 64,000 involved injuries only,
and 297,000 were property-damage
only.10 Even if fatigue is a contributing
factor in only a small percentage of
crashes, it still has a profound safety
impact.
During the 2010 listening sessions, a
number of the carriers and their
associations argued that the sharp
decline in fatal crashes in the past
several years is proof that the long hours
that may be worked under the existing
rule have not reduced safety and may
have improved it. The crash rates for
CMVs have been declining since 1979;
the rates went up slightly in 2004 and
2005 before declining again. Neither the
slight increase after the adoption of the
existing rule nor the decline thereafter
can be definitely associated with the
HOS rule. Crashes have multiple causes
and the consequences of a crash are
affected by many factors—including
speed, size of vehicles involved,
roadway conditions, and improved
safety features in vehicles.
The percentage of fatigue-coded
crashes in TIFA fluctuated between 1.5
percent and 2.1 percent between 1998
and 2007. The number of CMV driver
7 Jarossi, L., Matteson, A. & Woodrooffe, J.,
‘‘Trucks Involved in Fatal Accidents Factbook
2007,’’ 2010. FMCSA–2004–19608–4007.
8 FMCSA, ‘‘Large Truck Crash Causation Study
Summary Tables,’’ 2007. Retrieved June 8, 2010,
from: https://ai.fmcsa.dot.gov/ltccs/data/documents/
SummaryTables.pdf. FMCSA–2004–19608–3971.
9 National Transportation Safety Board (NTSB)
has studied single-vehicle crashes and crashes in
which the truck driver was killed and estimated
that 31 percent of fatal-to-driver accidents may be
fatigue-related.
10 FMCSA, ‘‘Large Truck and Bus Crash Facts
2008,’’ March 2010. Retrieved June 8, 2010, from:
https://www.fmcsa.dot.gov/facts-research/
LTBCF2008/Index2008LargeTruckandBusCrashFacts.aspx.
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fatalities rose 14 percent between 2003
and 2007 (heavy truck vehicle miles
traveled rose only 4 percent), but
declined sharply in 2008. (Driver
fatalities occur more often in single
vehicle crashes, which are more likely
to be associated with fatigue.) The
decline in 2008, which the industry
noted, also occurred in passengervehicle-only crashes. In general, crashes
decline in recessions, as they did in
1982–83, 1991–92, and 2001–02. The
recent decline in crashes is welcome;
but it cannot be attributed to any single
factor affecting crashes, including
implementation of the 2003 rule.
Because the crash data understate
fatigue and because crashes often have
multiple causes, which make it difficult
to determine the role of fatigue even
when it is suspected, FMCSA has to
look at other research to determine
whether the rules require drivers to take
enough off-duty time to allow them to
obtain sufficient sleep to avoid being
fatigued. As noted above, sleep research
indicates that humans need between 7
and 8 hours a night to avoid sleep
deprivation and accumulating sleep
debt. There are individual variations in
sleep needs, but the Agency must base
its assessment of the regulation on the
average driver, not the outliers who
need considerably less or more sleep to
avoid fatigue. In the Virginia Tech
Transportation Institute (VTTI)
naturalistic driving study of CMV
drivers operating under the 2003 rule,
measured sleep averaged 6.15 to 6.28
hours (the average includes both work
days and days off); the average on work
days was 5.6 hours.11 These drivers
drove at night, which would have
reduced their sleep, but they were not
working full 14-hour days (less than half
of the work shifts identified included
driving in the 10th hour; a third did not
include driving beyond 8 hours).12
Two other surveys covered drivers
after the implementation of the 2003
rule. Both asked drivers about the
amount of sleep they obtain on working
days. Research indicates that selfreports of sleep overestimate sleep by 20
to 60 minutes, particularly for sleep
times below 7 hours.13 Nonetheless the
11 The 6.15 hour average was derived from all
days on which data were collected (excluding
vacations); the 6.28 hour average was based on only
weeks in which there was data for all 7 days.
12 Hanowski, R.J., Hickman, J., Fumero, M.C.,
Olson, R.L. & Dingus, T.A., ‘‘The Sleep of
Commercial Vehicle Drivers Under the 2003 Hoursof-Service Regulations,’’ Accident, Analysis and
Prevention, Vol. 39, No. 6, November 2007, pp.
1140–1145. FMCSA–2004–19608–3977.
13 Lauderdale, D. S., Knutson, K. L., Yan, L.L.,
Liu, K. & Rathouz, P.J., ‘‘Sleep Duration: How Well
Do Self-Reports Reflect Objective Measures? The
CARDIA Sleep Study,’’ Epidemiology, Vol. 19, No.
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results are consistent with the findings
of other research. The Truck Driver
Fatigue Management Survey conducted
for FMCSA collected data in 2005 from
almost 2,300 unionized LTL drivers.14
About 60 percent of the respondents
drove at night; most respondents drove
routes that required fewer than 10 hours
of driving and returned home daily. The
survey found similar levels of sleep
(average 6.23 reported hours of sleep
prior to starting a run). The drivers
reported an average 6.94 hours of sleep
in 24 hours on working days, which
means that drivers estimated they were
getting about 42 minutes of additional
sleep during the working day.
The Bureau of Labor Statistics’ (BLS)
American Time Use Survey (ATUS) has
participants complete a daily log of time
spent on various activities for the same
day of the week for 60 weeks. For
example, a participant will record time
spent working, eating, exercising,
watching television, and checking email every Monday for 60 weeks.15 A
National Institute for Occupational
Safety and Health (NIOSH) analysis of
ATUS data on truck drivers from the
2003 to 2006 surveys found that while
drivers reported an extra hour of sleep
in 2004 compared to 2003, the amount
of sleep reported had declined to close
to the 2003 level by 2006 and that sleep
on working weekend days also declined.
The drivers who participated in the
survey appear to be mostly local
drivers.16 The decline in sleep as work
hours increase is consistent with
previous research on CMV drivers that
has showed sleep time is a function of
the amount of off duty time available,
i.e., as off duty time increases so does
average nightly sleep time.17 Table 2
presents the reported sleep of drivers in
the 2008 ATUS by hours worked.18
6, November 2008, pp. 838–845. FMCSA–2004–
19608–4011.
14 Dinges, D.F. & Maislin, G., ‘‘Truck Driver
Fatigue Management Survey,’’ May 2006. FMCSA–
2004–19608–3968.
15 Bureau of Labor Statistics, ‘‘American Time Use
Survey, Census Code 9130, Drivers/Sales Workers
and Truck Drivers.’’ Accessed August 18, 2010 from:
https://www.bls.gov/tus/. FMCSA–2004–19608–
4023.
16 Chen, G.X., Amandus, H. E. & Cezar, C., ‘‘Do the
Revised Hours of Service Regulations Change Truck
Driver Work and Sleep Time?’’ Chart from the 137th
APHA Annual Meeting, November 7–11, 2009.
FMCSA–2004–19608–3541.
17 Balkin, T., Thorne, D., Sing, H., Thomas, M.,
Redmond, D., Williams, J., Hall, S. & Belenky, G.,
‘‘Effects of Sleep Schedules on Commercial Vehicle
Driver Performance,’’ 2000. FMCSA–2004–19608–
2007.
18 Data extracted from the Bureau of Labor
Statistics, ‘‘American Time Use Survey, Census
Code 9130, Drivers/Sales Workers and Truck
Drivers,’’ 2008. FMCSA–2004–19608–4023.
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TABLE 2—HOURS SLEPT BY HOURS
WORKED—2008 ATUS
Hours
worked
Number of
driver
respondents
6 ................
7 ................
8 ................
9 ................
10 ..............
11 ..............
12 ..............
Driver average
hours slept per
day
67
61
48
40
32
18
10
8.17
7.85
7.70
7.53
7.33
7.34
6.56
Although the sleep measured by
VTTI, which provides the most reliable
data on sleep under the current rule, is
better than many drivers obtained under
the pre-2003 rule, the weekly average
(with 2 nights off) of slightly more than
6 hours a night is not enough sleep. The
Truck Driver Fatigue Management
Survey indicated that fatigue continues
to be an issue for a substantial
percentage of drivers. About 38 percent
of the drivers said they sometimes and
6.7 percent said they often had trouble
staying awake while driving. About 13
percent reported that they often or
sometimes fell asleep while driving;
47.6 percent said they had fallen asleep
while driving in the previous year.
Although only 23.4 percent said they
often or sometimes felt fatigued while
driving, 65 percent reported that they
often or sometimes felt drowsy while
driving. A third of the drivers reported
that they became fatigued on a half or
more of their trips. The factor that most
drivers stated contributed to fatigue
while driving was the amount of sleep
before the trip; weather and hours of
driving were the next most frequently
cited factors.
Drivers at the listening sessions
frequently stated that they know when
they are tired and, therefore, are the best
judges of when they need rest and how
much. Research, however, indicates that
people are not good at assessing their
own level of fatigue. In sleep research
on CMV drivers, self-assessments of
fatigue and sleepiness show little if any
relationship to measured performance
and sleepiness.19 People who are
chronically fatigued do not recognize
performance impairment; some do not
even recognize sleepiness.20 Drivers
appear to equate tiredness with being
sleepy, but performance is impaired
well before a driver becomes sleepy.
Some drivers at the listening sessions
noted that they needed naps in the
middle of their working day even
19 Balkin, T.J., et al. (2008); Van Dongen, H.P., et
al. (2003).
20 Balkin, T.J., et al. (2008); Van Dongen, H.P., et
al. (2003).
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though they had a full 10-hour off-duty
period prior to starting, which indicates
that they are not obtaining adequate
sleep during the long off-duty period.
The importance of adequate sleep was
shown in the VTTI study, which found
that in the 24 hours before a critical
incident (i.e., crashes, near crashes, and
crash-relevant conflicts such as
unintended lane deviations), the average
sleep was only 5.2 hours, about 0.4
hours less than an average working day.
FMCSA believes that fatigue continues
to be a problem for CMV drivers
working the longest hours. The 2003
rule, however, does not appear to have
decreased the daily hours worked,
which may partly explain why drivers
continue to obtain inadequate sleep.
The NIOSH analysis of ATUS data on
truck drivers, discussed above, found an
increase in drivers working longer hours
since the 2003 rule became effective.
FMCSA requests comments on
additional studies the Agency should
consider in developing the final HOS
rules.
Ideally, if available, the Agency
would use post-2003 data to provide a
before and after analysis of the 2003
change from a 10- to an 11- hour limit.
It might compare States with different
hours limits. Under this approach, the
Agency could use the probability of a
crash in each hour of driving, not the
proportion of crashes that are fatiguerelated.
B. Driver Health
Adverse effects on driver health must
be carefully considered in the
formulation of HOS regulations. Driving
a CMV, particularly in regional and
long-haul operations, involves both long
hours of work and long hours of
continuous sitting. A growing body of
research across industries (described in
greater detail in the regulatory impact
analysis (RIA) available in the docket)
indicates that long hours of work are
linked to sleep loss, which in turn is
linked to obesity, cardiovascular disease
(CVD), diabetes, and a variety of other
health impacts.21 Long hours are also
independently associated with
obesity.22 There is no simple linear
relationship between the ‘‘driver’s life’’
of long hours, protracted sitting, and
moderate-to-severe sleep deprivation
and one or more health outcomes.
21 Knutson, K.L., Spiegel, K., Penev, P. & Van
Cauter, E., ‘‘The Metabolic Consequences of Sleep
Deprivation,’’ Sleep Medicine Review, Vol. 11, No.
3, June 2007, pp.163–178. FMCSA–2004–19608–
4010.
22 Di Milia, L. & Mummery, K., ‘‘The Association
Between Job Related Factors, Short Sleep and
Obesity,’’ Industrial Health, Vol. 47, 2009, pp. 363–
368. FMCSA–2004–19608–3967.
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Rather this relationship must be viewed
as a network of mutually reinforcing
effects that result in varying levels of
risk for particular outcomes such as
CVD. Table 3 reflects current scientific
thinking on how this network of
relationships acts on health:
TABLE 3: HEALTH HABIT AND RISK
RELATIONSHIPS
Long hours ..........
→ ...
→ ...
→ ...
Insufficient sleep.
Obesity.
CVD.
Insufficient sleep ..
→ ...
→ ...
Obesity.
High blood pressure.
Diabetes.
→ ...
Sedentary pattern
→ ...
→ ...
→ ...
Obesity.
Metabolism.
Increased risk of
mortality.
Obesity ................
→ ...
Obstructive sleep
apnea.
High blood pressure.
CVD.
Stroke.
Diabetes.
Arthritis.
Other disease.
→ ...
→
→
→
→
→
...
...
...
...
...
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
The RIA includes a detailed
discussion of research related to sleep
loss, health effects related to sleep loss,
and particularly the biochemical
mechanisms that link sleep loss with
obesity, diabetes, and CVD. It is
important to note that the links between
sleep loss and many of the health effects
are not simply correlations; in many
cases, scientists have been able to
identify the biochemical changes
associated with sleep deprivation that
produce the health effects.23
Although sleep loss, long hours, and
sedentary work are not the only factors
contributing to obesity, the level of
obesity among CMV drivers is
dramatically higher than among U.S.
adult male workers as a whole—67
percent higher for all obesity (about 30
percent of all adult male workers 24 are
obese versus 50 25–55 percent of CMV
drivers 26), and about 3 times greater for
23 Banks, S. & Dinges, D. F., ‘‘Behavioral and
Physiological Consequences of Sleep Restriction,’’
Journal of Clinical Sleep Medicine, Vol. 3, No. 5,
August 15, 2007, pp. 519–528. FMCSA–2004–
19608–3957.
24 Flegal, K.M., Carroll, M.D., Ogden, C.L. &
Johnson, C.L., ‘‘Prevalence and Trends in Obesity
Among U.S. Adults, 1999–2008,’’ Journal of the
American Medical Association, Vol. 303, No. 3,
2010, pp. 235–241. FMCSA–2004–19608–3970.
25 RoadReady data provided to FMCSA.
26 Martin, B.C., Church, T.S., Bonnell, R., BenJoseph, R. & Borgstadt, T., ‘‘The Impact of
Overweight and Obesity on the Direct Medical
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body mass indices (BMIs) >40 (4.2
percent of all adult male workers versus
12 percent of CMV drivers).27 As
discussed in detail in the RIA, chronic
sleep loss is associated with increased
mortality. The increased mortality rates
associated with obesity are much
higher. Hauner, H. (2009) cites a study,
published in 2009, on BMI and causespecific mortality in 900,000 adults that
‘‘showed an average loss of 2 to 4 years
of life with a BMI between 30 and 34.9;
and a BMI between 40 and 45 shortened
life by an average of 8 to 10 years.’’ 28
Finkelstein, E.A., et al. (2010) did not
find significant impacts below a BMI of
35, but found that BMIs of 35 to < 40
reduced life span for whites by 4 to 5
years; BMIs of 40 and above reduced life
spans by 8 to 10 years.29 Beyond
mortality effects, the health conditions
that result from sleep deprivation and
sedentary work are associated with
higher health care costs and the risk that
drivers who develop the conditions may
fail to meet the medical standards for
driving a CMV.
In the 2005 final rule, FMCSA
discussed in detail other potential
factors associated with health effects,
including exposure to particulate matter
in diesel fumes, vibration, noise, etc.30
For all of these, it was difficult to
develop a dose-response relationship
that relates specific hours of exposure to
particular health impacts. For diesel
exposure, there is the confounding
factor that drivers may be less exposed
when driving than when stopped at
truck stops or terminals. FMCSA
supported research conducted by the
University of Tennessee to examine
factors that are suspected to influence
health and performance of CMV
drivers—noise, vibration, and cabin air
quality of heavy-duty diesel vehicles.
These variables were measured both
while vehicles were driven and while
they were parked with the engine idling.
The resulting data will serve as a
baseline from which similar future
studies can determine if new truck
Costs of Truck Drivers,’’ Journal of Occupational
and Environmental Medicine, Vol. 51, No. 2,
February 2009, pp. 180–184. FMCSA–2004–19608–
4004.
27 BMI is a measure of body fat based on height
and weight. Normal weight is considered a BMI of
18.5 to 24.9. BMI between 25 and 29.9 is considered
overweight. BMIs above 30 are considered obese.
28 Hauner, H., ‘‘Overweight—Not Such a Big
¨
Problem,’’ Deutsches Arzteblatt International, Vol.
106, No. 40, 2009, pp. 639–640. FMCSA–2004–
19608–3979.
29 Finkelstein, E.A., Brown, D.S., Wrage, L.A.,
Allaire, B. T. & Hoerger, T.J., ‘‘Individual and
Aggregate Years-of-Life-Lost Associated with
Overweight and Obesity,’’ Obesity, Vol. 18, No. 2,
February 2010, pp. 333–339. FMCSA–2004–19608–
4006.
30 70 FR 49983, et seq.; August 25, 2005.
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designs have changed the existing state
of these conditions for drivers. Twentyseven trucks (model years 2006–2008)
from four manufacturers were tested.
Overall, in-cab noise levels were found
to be below the 8-hour standard limits
established by the Occupational Safety
and Health Administration and FMCSA.
Average vibrations from the seats were
generally found to be below
International Standards Organizationestablished (but non-regulatory)
standard exposures for an 8-hour
driving day. Air quality was determined
by measuring in-cab concentrations of
carbon monoxide, nitrogen oxides and
particulate matter less than 2.5 microns
aerodynamic diameter. The results
indicated that trucks have a tendency to
self-pollute the cabs during extended
periods parked with the engine idling;
on-road concentrations were several
orders of magnitude lower. Carbon
monoxide concentrations were well
below standard permissible exposure
levels. During several parked-idling
scenarios, particulate matter
concentrations exceeded air quality
standards for 24-hour and annual
averages.31
FMCSA has not changed the
conclusions it drew in 2005 on health
impacts regarding noise, vibration, and
air quality. FMCSA has not found any
other research that changes the
conclusions regarding these health
impacts. However, FMCSA emphasizes
that it is important to study the chronic
conditions of truck drivers. We therefore
seek information from the public on
conditions that truck drivers face.
C. Flexibility
As discussed above, drivers at the
public listening sessions asked FMCSA
to provide some flexibility in the rules
so that they could take breaks when
they need rest or encounter unexpected
delays. FMCSA agrees that drivers
should be encouraged to take rest when
they need it and has included
provisions to incorporate flexibility into
schedules. In developing the proposed
rule, however, FMCSA was aware that
the flexibility that some drivers were
seeking, if unconstrained, would simply
allow them or their employers to build
into their schedules the extended hours
that the 2003 rule was intended to curb.
FMCSA, therefore, strove to balance
flexibility with the need to limit hours
of work.
31 Fu, J. S., Calcagno, J. & Davis, W.T., ‘‘Improving
Heavy-Duty Diesel Truck Ergonomics to Reduce
Fatigue and Improve Driver Health and
Performance,’’ Report # FMCSA–RRR–10–010.
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VI. Discussion of Proposed Rule
A. Driving Time
For the reasons explained below,
while FMCSA views the 10-hour driving
limit as the currently preferred option,
FMCSA understands that available data
are susceptible to more than one
interpretation and, consequently, is
considering both a 10-hour driving limit
and an 11-hour driving limit within one
duty day. Commenters are therefore
encouraged to submit data or studies
that would allow FMCSA to calculate
more effectively the difference, if any, in
crash risk between a 10- and an 11-hour
driving limit. Such a calculation would
be especially important in developing
benefits estimates.
FMCSA seeks information on the
increased probability of a fatigue-related
crash during the 11th hour; to obtain
such information, FMCSA seeks
information on the percentage of total
number of hours driven after the 10th
hour. With respect to cost estimates,
FMCSA seeks information regarding the
impact of eliminating the 11th hour of
driving on logistics, location centers,
distribution centers, just in time
inventories, competitiveness with global
markets, and delivery of perishable
goods. With respect to benefits and
costs, FMCSA seeks information with
respect to any other process/logistics
aspects of driving hours not captured in
safety, productivity of drivers, and
driver health.
The motor carrier industry operated
under a 10-hour driving limit for
decades prior to the 2003 rule. FMCSA
acknowledged in past rulemakings that
the risk associated with driving
increases with the number of hours
driven. Data from the LTCCS and TIFA
show that the prevalence of fatiguerelated crashes increases with hours
driven, most notably between the 10th
and 11th driving hours. LTCCS also
found the probability of having a
fatigue-coded crash increased with
hours worked and awake. Any person
driving 11 hours rather than 10 is likely
to have been working for a longer
period.
The approach to estimating the effects
of long driving hours on crash risks
assumes that higher ratios of fatiguerelated crashes to total crashes implies
higher crash rates. It is mathematically
possible, though, that the increase in
this ratio could come about because the
denominator—the total number of
crashes—is falling at a faster rate than
fatigue-involved crashes as driving
hours increase, not because fatigue
increases. In other words, crash rates
due to weather, mechanical failure,
traffic, or road conditions may fall, as
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each driver accumulates more hours on
the road; and this could make it appear
that fatigue is a growing problem
whereas it is actually stable. Because
fatigue-related crashes more than triple
over a long driving day, however, the
incidence of crashes caused by other
factors would have to drop
precipitously for this explanation of the
increasing ratio of fatigue crashes to
hold. The Agency has no evidence for
a pattern in which greater hours on the
road would be associated with
systematic reductions in crash causes
other than fatigue, let alone a pattern so
dramatic as to explain the increasing
rate of fatigue-related crashes. Hence,
the Agency is using the share of fatiguerelated crashes in lieu of data on the
relative crash risk at each hour.
Generally, studies of time-on-task
fatigue have not determined whether, let
alone when, the driver took breaks
during the driving window, how long a
driver had been awake or on duty, or
how many hours the driver had worked
that week. All of these factors could
have an impact on fatigue and on the
likelihood of crashes in the later hours
of a work day.
The VTTI naturalistic driving study,
sponsored by DOT and used for other
distracted driving rulemakings, found
no increase in risk between the 10th and
11th hours of driving.32 Indeed, this
study found that the first hour of driving
is the riskiest and that there is little, if
any, difference in risk among other
hours. This is significant because the
VTTI study is one of the few research
studies that looks at 11th hour crash risk
using data from the period after 2003,
when 11th hour driving became legal for
interstate as well as intrastate drivers.
This study has been published and
subject to peer review.
For several reasons, however, the
VTTI study does not appear to be
definitive. First, it involved a small
sample size of 102 drivers that was not
representative of the trucking industry.
Second, the study looks at the risk of
critical incidents, which include nearcrashes and crash-avoidance responses,
as well as actual crashes. A definitive
link between critical incidents and
crash risk has not been established.
Third, the study involved drivers who
were, with their knowledge, observed by
video cameras and other electronic
equipment. It is possible that this may
have led drivers to behave more
32 Hanowski, R.J., Hickman, J.S., Olson, R.L. &
Bocanegra, J., ‘‘Evaluating the 2003 Revised Hoursof-Service Regulations for Truck Drivers: The
Impact of Time on Task on Critical Incident Risk,’’
Accident, Analysis and Prevention, Vol. 41, No. 2,
March 2009, pp. 268–275. FMCSA–2004–19608–
3978.
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carefully than drivers would have in the
absence of observation, leading to an
overall underestimate of crash
likelihood, and possibly an
underestimate of the risk during the
eleventh hour. (Note that the
observation occurred at all hours and
hence the question is whether the
observation effect, if it existed,
eliminated what would otherwise be an
elevated risk in the eleventh hour. There
is no reason to believe that being
observed would cause drivers to be
relatively more careful when driving
longer hours than when driving shorter
hours.) Fourth, drivers and carriers who
participated in the video-surveyed study
did so voluntarily, which could skew
the study towards participation from
more safety-conscious drivers and
carriers.
Ideally, FMCSA would want to
compare the number of serious crashes
in each hour of driving after an
extended break to the total driving time
by hour of driving or, alternatively,
vehicle miles traveled by hour.
Conceptually, the degree to which the
distribution of crashes falls into later
driving hours relative to the distribution
of driving would indicate the change in
risk for longer trips. The data set would
have to be reasonably representative of
the drivers affected by the regulations;
large enough to provide an accurate
picture for individual hours, despite the
rarity and randomness of crashes and
the relatively small fraction of driving in
the later hours; use an unbiased
measure of hours; and cover a period in
which long driving hours were legal.
Furthermore, data on other factors that
are known to affect fatigue and crash
risks—total time on duty that day and
previous days, short breaks,
opportunities for restorative rest, time of
day, and experience, for example—
would have to be included in the data
set as well, to allow the time-on-task
effect to be isolated.
A data set meeting these criteria is not
available at this time. The Agency is
requesting commenters to provide any
statistically reliable data that would
allow specification of relative crash risk
of each hour of driving. An answer
would turn on knowing the total
number of crashes in each hour and the
percentage of driving takes place in each
hour. The Agency is also interested in
knowing whether the risk of fatiguerelated crashes increases with
additional hours awake or on task, or if
the relative crash risk (of all crashes not
just the likelihood that crashes will be
coded as fatigue) does not increase in
later hours, as the VTTI study suggests.
There are some large samples of crash
data that include the number of hours
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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules
of driving, including the LTCCS
(published but not peer reviewed) and
TIFA; but the time periods these cover
are largely or entirely before the HOS
rules were changed in 2003. They are
also deficient, to varying degrees, in the
availability and reliability of
information on driver schedules and
other factors that affect crash risks. Even
more seriously, these studies do not
directly provide information on the
distribution of all driving by hour for
either the drivers involved in the
crashes or for comparable drivers. In
other words, the data sets provide the
numerator for the rate of crashes per
hour, but not the denominator.
It is possible to develop distributions
of all driving by hour (through surveys,
for example), but these cannot be used
along with crash data for a different
population without biasing the results
to an unacceptable degree. Researchers
have also collected data on both crashes
and total driving hours for the same
populations; but, to date, these studies
have had samples too small (and
narrow, in terms of their subjects’
characteristics) to give reliable results
on long hours. FMCSA is currently
sponsoring a study based on schedule
data collected by electronic logs that
should be able to solve most of the
problems in this type of research, but
that study is not complete as of the time
of the analysis. Given the imprecise but
demonstrated relationship between
fatigue, time-on-task, hours awake, and
hours worked, there is a reasonable
argument for limiting driving time to 10
hours.
Before making a final decision,
however, FMCSA is seeking additional
studies or data that examine, in greater
detail, the differences between driving
in the 10th or the 11th hours. FMCSA
is also interested in data that indicate
when and how frequently the 11th hour
is used. It seeks data on how much of
the 11th hour is used when a driver goes
into the 11th hour. For example, on
days in which the driver both picks up
and delivers a truckload, how often does
the driver have enough duty time to
reach the 11th hour? When the driver
drives over 10 hours, is it by 5 minutes
or by 55 minutes? What is the
percentage of driving that takes place in
each hour compared to total driving that
occurs?
The American Trucking Associations
(ATA), in their comments to the docket
(April 21, 2010), argued that reducing
driving time or on-duty time would
increase crashes because more
inexperienced drivers would need to be
hired to move freight. FMCSA
recognizes that there is a risk associated
with inexperienced drivers, but believes
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that this problem is not as serious as
ATA suggests. The 2007 Commodity
Flow Survey indicated that about 75
percent of freight is moved in trips of
less than 100 miles; with loading and
unloading time, it is unlikely that
drivers making multiple short trips in a
day are able to drive 10, let alone 11
hours. FMCSA’s 2007 Field Study found
that for longer haul operations (beyond
100 miles) 27 percent of the driving
periods extended into the 11th hour.33
Based on comments about long loading/
unloading time that drivers made at the
listening sessions, it appears that there
will be many days when drivers cannot
reach even 10 hours.
In an industry where TL motor
carriers experience annual driver
turnover above 100 percent, there is
always a considerable influx of new
drivers each year, as well as
experienced drivers changing jobs.
Better training and supervision of new
drivers would seem a more reasonable
response than pushing older drivers to
work longer hours. In addition, when
FMCSA analyzed this issue in the 2003
RIA, it found the effects of hiring new
drivers were almost exactly
counterbalanced by the reduced volume
of long-haul trucking caused by shifting
some traffic to rail.
Nonetheless, there is considerable
uncertainty about the extent of the
elevated crash risk associated with
inexperience; and the possibility that
new drivers operating under a 10-hour
limit might be involved in more crashes
than veteran drivers following an 11hour rule cannot be ignored. According
to BLS figures, employment in the
trucking industry has declined by
between 9 and 13 percent since 2008—
or by 120,000 to 180,000 drivers. A 10hour limit that required carriers to hire
additional personnel might result in the
return of experienced drivers largely
immune to ‘‘rookie’’ driving mistakes. In
any case, while FMCSA currently favors
the 10-hour limit, it requests further
research and data from the commenters
before making a decision.
B. Breaks
Under the existing rule, a driver may
drive for up to 11 consecutive hours.
Although a relatively small percentage
of drivers drive without breaks, the
complaints from drivers about their
inability to take breaks under the 14hour rule suggest that some may, in fact,
work without any breaks. ATA, in their
comments to the docket, stated that the
full 14-hour day has been built into
supply chain planning and that any
33 FMCSA, ‘‘2007 Hours of Service Study,’’ 2007.
Available in the docket: FMCSA–2004–19608–2538.
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reduction would affect productivity.
This argument implies that some
carriers expect their drivers to work the
full 14 hours without a break. A NIOSH
analysis of ATUS data on truck drivers
found that truck drivers worked 1 hour
per day more on weekdays and 3.4
hours per day more on weekends in
2006 compared to 2003.34
FMCSA believes that working
continuously without a break is neither
safe nor healthy. Research indicates that
breaks during work can counteract
fatigue and reduce the risk of crashes.35
On the health side, Hamilton, M.T., et
al. (2007) found that increased standing
and moving had a greater effect on the
body’s ability to block molecular signals
that cause metabolic diseases than
adding vigorous exercise. They
concluded that a non-exercising person
may become even more metabolically
unfit by sitting too much.36
FMCSA wants to give drivers
flexibility in scheduling breaks,
recognizing that they are not always
able to find a place to stop at a
particular point in their schedule.
Under the proposed rule, drivers would
be able to work and drive for up to 7
hours without a required break. Upon
reaching the 7th hour since coming on
duty, the driver would need to take a
break of at least a half hour before
resuming driving. The driver could
remain on duty without a break after the
7th hour, but could not drive again
without taking a break. A driver who
took a half hour break at 6.5 or 7 hours
after coming on duty would generally
not need a second break. But a driver
who took a half-hour break 4 hours after
coming on duty would need a second
break no later than 11.5 hours after
coming on duty to drive after that time.
This approach should give drivers
considerable latitude in scheduling
breaks. Many drivers take breaks
already; the 2006 FMCSA Truck Driver
Fatigue Management Survey indicated
that more than 65 percent of the drivers
took breaks of a half hour or more
during the work day.37 A break will
34 Chen,
G.X., et al. (2009).
S. & Lombardi, D. A., ‘‘Modeling the
Impact of the Components of Long Work Hours on
Injuries and ‘Accidents’,’’ American Journal of
Industrial Medicine, Vol. 49, No. 11, November
2006, pp. 953–963. FMCSA–2004–19608–4019.
O’Neill, T.R., Krueger, G.P., Van Hemel, S.B. &
McGowan, A.L., ‘‘Effects of Operating Practices on
Commercial Driver Alertness,’’ 1999. FMCSA–
2004–19608–0071.
36 Hamilton, M. T., Hamilton, D. G. & Zderic, T.
W., ‘‘Role of Low Energy Expenditure and Sitting in
Obesity, Metabolic Syndrome, Type 2 Diabetes, and
Cardiovascular Disease,’’ Diabetes, Vol. 56, No. 11,
November 1, 2007, pp. 2655–2667. FMCSA–2004–
19608–3976.
37 Dinges, D.F. & Maislin, G. (2006).
35 Folkard,
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reduce time-on-task effects and negative
health impacts of prolonged sitting.
C. Duty Time/Driving Window
FMCSA proposes to set a 14consecutive-hour driving window
during which a driver may be on-duty
for 13 hours. At the end of the driving
window, the driver would have to go off
duty. This approach effectively reduces
the maximum allowable work during a
duty period by 1 hour from the existing
rule and gives drivers an opportunity to
take up to an hour off duty during the
working day. An extra hour off duty per
day should increase sleep and mitigate
fatigue and health impacts for drivers
working to the limits of the rule. Even
if drivers do not sleep during the breaks,
they can engage in other non-work
activity (e.g., eating and talking to
friends and family) that might otherwise
reduce sleep time during the 10-hour
off-duty period. The 1-hour reduction in
duty time, in combination with 10 hours
of driving time, would maintain the
amount of on-duty-not-driving time that
the current rule allows for drivers who
are using all of their driving time, i.e.,
3 hours. If the Agency adopts the 11hour driving limit, drivers would have
only 2 hours of on-duty-not-driving
time. FMCSA field studies in 2005 and
2007 indicated that many drivers do not
work the 14 hours allowed under the
current rule; the reduction to 13 on-duty
hours, therefore, should have a limited
impact on most drivers.
As discussed above, drivers at the
listening sessions and in comments on
the previous rulemakings stated that the
existing rule discourages them from
taking breaks because breaks are
included in the calculation of the 14hour driving window. They asked
FMCSA to return to the pre-2003 rule,
which did not include off-duty time in
the calculation of the 15-hour limit then
in effect. FMCSA rejected that approach
in 2003 because it enabled drivers to
extend the duty day well beyond 15
hours, allowing them to drive 17 to 20
hours or more after starting work, when
fatigue can be extreme.
Because FMCSA wants to encourage
drivers to take rest breaks when needed
and in response to requests for
flexibility, the Agency is proposing to
allow drivers of property-carrying CMVs
to extend the driving window by 2
hours, to 16 consecutive hours, twice in
the previous 168 consecutive hours.
This is not a calendar week (e.g., 12:01
a.m. Monday to 12 p.m. Sunday, etc.)
but rather a moving period comprised of
the past 168 hours, a period that
changes every hour. A driver who used
one 16-hour driving window starting at
6 a.m. on Tuesday and a second
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beginning at 8 a.m. on Thursday, could
not start another 16-hour day until 6
a.m. on the following Tuesday. It should
also be noted that taking a 34-hour (or
longer) restart does not affect this 168hour look-back period. In other words,
the driver does not get two 16-hour days
simply by completing a restart period.
The proposed extension would not
extend the 13-hour duty time; any
driver who wanted to drive to the 16th
hour after coming on duty would have
to have taken 3 hours of off-duty time
during the driving window. Any use of
time beyond 14 hours after coming on
duty would count as a use of the
extension. For example, a driver who
worked a 14.5 hour period would be
considered to have used one extension.
Finally, the driver would have to go off
duty at the end of the 16th hour (instead
of the end of the 14th hour on normal
days).
FMCSA considered extending the
driving window to 16 hours daily, but
decided that such a change would invite
the extended hours that occurred under
the pre-2003 rules. Once drivers,
carriers, brokers, and shippers knew
drivers could work over a 16-hour
period daily, they could build that
period into their scheduling, as ATA
indicates they have done with the 14hour clock. That could mean drivers
would be routinely driving in the 16th
hour after the start of the driving
window. It would also put the driver on
a schedule that could move starting time
forward 2 hours a day or 10 hours over
a 5-day period. Although it is easier to
obtain adequate sleep when moving a
schedule forward rather than backward,
this level of forward change could
seriously disrupt sleep. Unlike drivers
on regular schedules who would use the
extension only if necessary to deal with
unexpected problems (breakdowns,
unanticipated congestion) because using
it would disrupt their work schedule the
next day, long-haul TL drivers are not
on a regular schedule and would have
no disincentive for using a daily 16hour extension. FMCSA believes that
limiting the 16-hour provision to twice
a week and not allowing the extension
to add duty time will encourage drivers
to use it only when they need flexibility.
A number of drivers at the listening
sessions wanted the option of extending
the driving window so they could reach
a safe location when they were held at
a loading dock until they ran out of duty
time but still had to move the truck.
FMCSA does not believe that such a
provision is advisable. It could take
several hours to find a safe location in
some parts of the country. These drivers
were essentially asking for an unlimited
extension of the work day as the result
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of frequently occurring incidents that
should be foreseeable under most
circumstances. In addition, it would be
impossible to determine whether the
driver needed time (however little) to
reach a safe location or was simply
working beyond the limits. Similarly,
drivers argued that they want to be able
to stop driving and ‘‘sit out’’ rush hours.
Drivers could use the 16-hour window
to avoid rush hour congestion twice a
week, if they choose to use it that way,
but not more frequently. FMCSA
requests comments on whether 16 hours
is an appropriate extension or whether
15 hours would be sufficient. FMCSA
also requests comments on whether the
extension should be limited to once a
week, twice a week, or allowed more
frequently, and whether drivers should
be barred from using the extension on
consecutive days.
Night drivers, particularly those using
the sleeper berth at rest areas or truck
stops, may find it difficult to obtain a
reasonable amount of sleep in the daytime. Even people who are suffering
from acute sleep deprivation (e.g., no
sleep for 24 hours) find it hard to sleep
during the day under ideal conditions
(dark, quiet spaces). FMCSA is soliciting
information on patterns of work for
night drivers: For drivers who always
drive overnight, what is the typical
length of their duty day? For drivers
who sometimes drive overnight, how
frequently do they do that? FMCSA is
seeking comments on whether drivers
who drive at least 3 hours between
midnight and 6 a.m. should have an
hour less duty time available (12 hours
rather than 13) to provide a longer
period to obtain sleep.
D. Restart and Weekly Limits
The pre-2003 rule prohibited driving
after being on duty 60 hours in 7 days
or 70 hours in 8 days. This meant that
drivers working to the daily limits could
run out of hours and would need to take
up to 3 days off before they could start
driving again. Particularly for long-haul
drivers, this prolonged off-duty period
away from home was seen as a serious
problem. The 2003 final rule allowed
drivers to reset their calculation of the
60- or 70-hour limits whenever they
take at least 34 consecutive hours off
duty. The 34-hour restart provision has
been almost uniformly praised by
drivers and carriers, except for those
who would like a shorter restart. Safety
advocacy groups, however, have
opposed the restart because it allows a
driver who is driving and working to the
limits to be on duty up to 84 hours in
7 days and 98 hours in 8 days, a
substantial increase over the 60-/70hour limits of the pre-2003 rule. The
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safety advocacy groups have also
pointed out that, as a practical matter,
the 34-hour restart provides only one
night of sleep for night-time drivers.
FMCSA did not amend the restart
provision in the 2005 and subsequent
rulemakings because it provides
substantial economic productivity
benefits and because the Agency
believed that drivers would not
generally take the minimum of 34 hours
or work extreme hours; the Agency
assumed that drivers would use the
restart mainly to simplify bookkeeping
and to limit down-time while away from
home. Drivers and carriers, however,
stated at the listening sessions and in
their comments that, especially on the
road, drivers do indeed take the
minimum restart allowed. Drivers who
are on the road for several weeks at a
time could, therefore, work very long
hours even if they cannot actually reach
the maximum allowed because of delays
in pick-ups and deliveries. Some
carriers with regular schedules stated
that they have used the restart to add
one work shift a week. If carriers have
arranged their schedules so that drivers
are on duty for the full 14-hour day, as
ATA claimed in its 2010 comment to
the docket, then the restart allows a
driver to work more than 80 hours in 7
days compared with 60 hours in the pre2003 rule.
FMCSA continues to believe that
allowing drivers to spend less idle time
on long runs is sensible, but must
balance this against the fact that the
restart provision may be exacerbating
problems with long hours and resulting
fatigue. As discussed above, long
weekly hours are associated with sleep
loss, fatigue, and serious health impacts.
FMCSA is, therefore, proposing two
limits to the 34-hour restart. First, any
34-hour or longer period used as a
restart would have to include two
periods between midnight and 6 a.m. (2
nights of sleep). Second, drivers would
be allowed to take only one restart a
week; that is, they would be able to
begin a restart only 168 hours after the
beginning of the previous restart. For
example, if a driver ends a work week
at Friday at 6 p.m. and begins the
restart, the restart could end no earlier
than Sunday at 6 a.m. The next restart
could not begin earlier than the
following Friday at 6 p.m. If the driver
ran out of weekly hours at noon on that
second Friday, for example, he or she
could not count the off-duty hours
between noon and 6 p.m. toward the 34
hours.
The 2-night provision would mainly
impact night-time drivers because
daytime schedules already allow drivers
to obtain 2 nights of sleep within the 34-
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hour period. For night time drivers, the
2-night provision would extend the
required restart provision. Under the
NPRM, a driver with a regular nighttime schedule would need to take
virtually an extra day off duty to meet
the requirement for two night-time sleep
periods and stay on schedule. ATA
argued in its 2010 comment to the
docket that, if confronted with this
requirement, these drivers would ‘‘flip’’
to a day-time schedule to maximize
work time, which would add to
congestion. FMCSA notes that many of
the drivers who work a regular nighttime schedule drive for LTL or local
carriers and usually take the weekend
off. They will not be affected by this
change. ATA also argued that 2 nights
off were not needed for night drivers
because they could get two sleep
periods in 34 hours off. Research on
shift workers indicates that on their
days off they switch to a regular nighttime sleep schedule.38
Washington State University
conducted a study for FMCSA to
determine the effectiveness of the
current 34-hour restart provision in
restoring performance.39 The first phase
of the study evaluated the effectiveness
of the 34-hour restart using a laboratory
setting to compare best-case (day-time
work) and worst-case (night-time work)
scenarios. The study found that a 34hour break was effective at mitigating
sleep loss and consequent performance
impairment for day-time workers who
obtained 2 nights of sleep, but was not
effective for night-time workers who
obtained only 1 night of sleep in the
break plus two long nap periods.
Research indicates that daytime sleep is
not as restorative as nighttime sleep.40
Even when the time is available, the
time actually spent sleeping is less
during the day than at night.41 Shift
work and night work are associated with
less sleep, even when night work is
˚
38 Kecklund, G. & Akerstedt, T., ‘‘Effects of Timing
of Shifts on Sleepiness and Sleep Duration,’’ Journal
of Sleep Research, Vol. 4, No. S2, December 1995,
pp. 47–50. FMCSA–2004–19608–4008.
39 Van Dongen, H.P.A. & Belenky, G.,
‘‘Investigation into Motor Carrier Practices to
Achieve Optimal Commercial Motor Vehicle Driver
Performance: Phase I,’’ April 2010. FMCSA–2004–
19608–4020.
40 Lavie, P., ‘‘To Nap, Perchance to Sleep—
Ultradian Aspects of Napping,’’ in D. Dinges and R.
Broughton (eds.), Sleep and Alertness,
Cronobiological, Behavioral and Medical Aspects of
Napping, New York: Raven Press, Ltd., 1989, pp.
99–120. FMCSA–2004–19608–4032.
41 Kurumatani, N., Koda, S., Nakagiri, S.,
Hisashige, A., Sakai, K., Saito, Y., Aoyama, H.,
Dejima, M. & Moriyama, T., ‘‘The Effects of
Frequently Rotating Shiftwork on Sleep and the
Family Life of Hospital Nurses,’’ Ergonomics, Vol.
37, No. 6, June 1994, pp. 995–1007. FMCSA–2004–
19608–4065.
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permanent,42 presumably because of the
disrupting effects of circadian cycles.43
Sleep obtained is not only reduced in
length, but also poorer in quality.44
Although it is not feasible to eliminate
nighttime driving, such driving cannot
be treated the same as driving during
daytime.
Washington State University recently
completed a second phase of its study.
It has not been published or peer
reviewed yet but will be completed
soon. Phase II examined a restart
provision for night-time drivers that
contains two sleep periods between
midnight and 6 a.m., with a minimum
of 34 hours off duty. In this study, the
primary performance measure, the
number of lapses on a 10-minute
psychomotor vigilance test (PVT), was
administered eight times per day in the
working periods. The study data
showed no significant difference in PVT
lapses between the pre-restart and postrestart work periods overall, indicating
that the 2-night recovery period was
effective at maintaining driver
performance.45 The study included a
58-hour restart period instead of a 34hour restart period. The Washington
State University study has some
shortcomings. It utilized a very small
sample size of participants (12 drivers).
Also, the study took place not on the
road, but in a laboratory setting with
participants who knew that their
behavior was being observed. In
addition, the participants were
instructed to sleep and were all
recruited as perfectly healthy drivers.
Because the study included a 58-hour
restart time, not a 34-hour restart, the
improvements could have been
attributable to the extra off-duty period
these 12 drivers were getting. In reality,
drivers are not always in perfect health,
and they cannot be told to sleep at a
particular time by FMCSA. Nonetheless,
FMCSA believes that the two phases of
this study plus the research cited above
justify today’s proposal to amend the
34-hour restart by expanding the
required restart period and adding a
requirement for two off-duty periods
42 Bonnet, M.H. & Arand, D.L., ‘‘We Are
Chronically Sleep Deprived,’’ Sleep, Vol. 18, No. 10,
1995, pp. 908–911. FMCSA–2004–19608–4033.
˚
43 Akerstedt, T., ‘‘Work Hours, Sleepiness and the
Underlying Mechanism,’’ Journal of Sleep Research,
Vol. 4, Supplement 2, December 1995, pp. 15–22.
FMCSA–2004–19608–4064.
44 Lavie, P., ‘‘Ultrashort Sleep-Waking Schedule.
III. ‘Gates’ and ‘Forbidden Zones’ for Sleep,’’
Electroencephalography and Clinical
Neurophysiology, Vol. 63, No. 5, May 1986, pp.
414–425. FMCSA–2004–19608–4053.
45 Van Dongen, H.P.A., Jackson, M. & Belenky, G.,
‘‘Duration of Restart Period Needed to Recycle with
Optimal Performance: Phase II,’’ FMCSA, October
2010.
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from midnight to 6 a.m. The 168-hour
provision would have the effect of
limiting drivers’ weekly hours to an
average of 70 in 7 days. This represents
a substantial reduction from the current
limits, but still allows drivers on the
road to take restarts that are shorter than
required under the pre-2003 rule. Most
restarts for day-time drivers would
range from 34 hours to 48 hours. Drivers
on a regular night schedule would need
about 58 hours to obtain 2 nights of
sleep and stay on schedule.
Finally, under the proposed rule,
drivers would have to designate a
specific period as a restart. This
provision is intended to help drivers
who may have a long break in the
middle of the week (e.g., while waiting
for the next load or because of illness),
but who do not want to use that as a
restart even if they are eligible to do so.
Drivers may want to postpone use of the
restart until a specific time so they can
be sure of having the entire 60 or 70
hours available when resuming a full
work schedule.
It should be noted that the restart
provision is mainly important for
drivers who are working long days and
who, therefore, reach their 60- or 70hour limit, which remains unchanged,
in less than 7 or 8 days. Drivers who do
not work long hours, or do so only on
a limited number of days during the
week, may never need to use the restart
except as a way to simplify keeping
track of their hours. For example, a
driver could work 10 hours a day for
7 days, take the eighth day off, and
continue to work without using the
restart provision.
E. Sleeper Berth
Prior to 2005, FMCSA’s rules allowed
drivers to obtain the equivalent of 10
consecutive hours off by taking two
periods in the sleeper berth, neither of
which could be less than 2 hours long.
Drivers, particularly team drivers,
frequently divided their time into 5
hours of driving followed by 5 hours in
the sleeper berth. In 2005, FMCSA
eliminated the split sleeper berth
provision and required at least 8
consecutive hours in the sleeper berth
so that drivers would have the chance
to obtain at least one long sleep period.
Drivers using the 8-hour sleeper berth
period must also take a second break of
at least 2 hours, either in the sleeper
berth or off duty. The shorter period is
included in the calculation of the 14hour duty period.
For years, drivers and carriers have
expressed concerns about the 2005
revisions. Team drivers have
complained that, because it is difficult
to sleep in a moving truck, alternating
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shorter runs with their co-driver would
allow them to stop before they become
too tired. Other drivers argued that it is
hard to stay in the sleeper berth for 8
consecutive hours. Drivers generally
objected to the requirement to include
the shorter period in the calculation of
the 14-hour window, saying it
discourages the use of the provision.
Some drivers and carriers have also said
that the complexity of the provision
makes them reluctant to use it because
they are uncertain how it should be
logged.
FMCSA recognizes that drivers have
concerns about the existing provision,
but there is no clear evidence at this
time that two short sleep periods can
provide the equivalent of one longer
period. Emerging research indicates that
dividing sleep into two shorter periods
results in equal alertness levels,46 but
this is not the only issue. The time of
day in which the sleep periods are taken
is critically important.
FMCSA is not proposing to change
the sleeper berth exception, but the
other changes to the rule would have an
impact on sleeper berth users. The
shorter off-duty or sleeper berth period
would be included in the calculation of
the driving window, as it is now.
Because the driving window (14 hours)
would be longer than allowed duty time
(13 hours), use of the shorter period
would not always reduce available duty
time. On days when the driver is using
the 16-hour extended window, the
shorter period would not reduce duty
time unless the period is more than 3
hours or unless the driver takes more
than an hour of other breaks during the
driving window. On days when the
driver is using the 14-hour driving
window, use of the sleeper exception
would reduce the available duty hours
by at least 1 hour.
F. Other Issues
On-duty definition. In September
2005, ATA petitioned FMCSA to change
the definition of ‘‘on duty time’’ to allow
team drivers to log as off duty up to 2
hours spent in the passenger seat. Under
the existing definition, drivers are on
duty if they are in the truck unless they
are resting in the sleeper berth. Single
drivers may spend the shorter break (at
least 2 hours) either in the sleeper berth
or off duty. Because one of the team
members drives while the other takes
his or her break, the result of the rule
is that the non-working driver has to
46 Mollicone, D.J., Van Dongen, H.P., Rogers, N.L.
& Dinges, D.F., ‘‘Response Surface Mapping of
Neurobehavioral Performance: Testing the
Feasibility of Split Sleep Schedules for Space
Operations,’’ Acta Astronaut, Vol. 63, No. 7–10,
2008, pp. 833–840. FMCSA–2004–19608–4017.
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take both periods in the sleeper berth
because it is not possible to log the
shorter time as off duty while he or she
is ‘‘in or on upon any commercial motor
vehicle.’’
FMCSA agrees with ATA’s
recommendation and is proposing to
revise the definition of ‘‘on duty’’ to
allow a team driver to log as off duty up
to 2 hours spent in the passenger seat
either immediately before or after the
8-hour period in the sleeper berth. In
addition, FMCSA is proposing to
exclude from the definition of ‘‘on
duty,’’ time spent resting in or on a
parked CMV. Drivers in the past have
noted that the current definition makes
it difficult for drivers of CMVs without
sleeper berths (known as day cabs) to
rest because they were considered to be
on duty if they were in a parked truck.
In many cases, the safest, most
comfortable, and often the only place for
such a driver to rest during a duty tour
will be in the parked truck.
Penalties. FMCSA is proposing to add
to the penalty schedule in Appendix B
to 49 CFR part 386 a new paragraph that
would define as potentially egregious
violations of § 395.3(a) or § 395.5(a) any
instance where the driver exceeds the
driving-time limit (whether 10 or 11
hours) by 3 or more hours. The Agency
would consider drivers or motor carriers
who commit such violations to be
eligible for the maximum civil penalties
available.
In determining the amount of any
civil penalty, Congress instructed
FMCSA to consider a number of factors,
including the nature, circumstances,
extent, and gravity of the violation
committed, as well as the degree of
culpability, history of prior offenses,
ability to pay, effect on ability to
continue to do business, and other such
matters as justice and public safety may
require. Congress instructed FMCSA to
calculate each penalty to induce further
compliance (49 U.S.C. 521(b)(2)(D)).
Congress, however, also entrusted
FMCSA with the responsibility to
ensure that motor carriers operate safely
by imposing penalties designed to
ensure prompt and sustained
compliance with safety laws (Section
222 of the Motor Carrier Safety
Improvement Act of 1999 (MCSIA), (49
U.S.C. 521 note)). Prompt and sustained
compliance with driving-time limits is
paramount to the Agency’s safety
mission; FMCSA believes that making
egregious violations eligible for the
maximum penalty will help to promote
these goals. Although some of the
statutory factors in 49 U.S.C.
521(b)(2)(D) may limit the Agency’s
ability to impose penalties, others—like
the extent and gravity of the violation—
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could favor enhanced penalties.
Furthermore, section 521(b)(2)(D) allows
FMCSA to take into account ‘‘such other
matters as * * * public safety may
require.’’ The mandate to consider
‘‘public safety,’’ combined with the
injunction of section 222 to impose civil
penalties ‘‘calculated to ensure prompt
and sustained compliance,’’ clearly
authorizes FMCSA to balance mitigating
factors against aggravating factors and to
impose the maximum penalty for a first
offense that has significant potential to
cause serious injury or death, such as
excessively long driving hours. FMCSA
has no desire to impose such a penalty;
on the contrary, the Agency’s hope is
that the deterrent effect will make such
action unnecessary. But this is a penalty
the Agency believes it should have at
the ready to deal with truly extreme
violations.
FMCSA is not proposing to make the
imposition of maximum penalties
automatic because it recognizes that a
driver may be considered to have
exceeded the limit to this degree in
different circumstances. For example,
one driver may have driven 14 hours
between 8 a.m. and 10 p.m.; a second
driver may have driven 10 hours, taken
a 9-hour off-duty period, then driven
another 4 hours. Both of these drivers
have technically driven more than the
proposed rule would allow (either 3
hours more than an 11-hour drivingtime limit or 4 hours more than a 10hour limit), but only the first might be
considered an egregious violation.
FMCSA requests comments on whether
3 hours is the appropriate period to
trigger the consideration of egregious
violation penalties. FMCSA is also
seeking comment on whether it should
apply a similar concept to other
provisions (duty time, driving window,
weekly limits, restart) and if so, what
those periods should be.
Section 395.1(o). FMCSA proposes
removing paragraph (o), which allows
property-carrying CMV drivers who
return to their work-reporting locations
daily to extend the duty day to 16 hours
once a week. FMCSA believes that
anyone driving a CMV large enough to
require a commercial driver’s license
(CDL) (the drivers affected by paragraph
(o)) at the 16th hour should not be doing
so without taking at least 3 hours off
duty during that shift. FMCSA thinks
the proposed rule, which would allow
drivers to extend the driving window to
16 hours without extending duty time
twice a week, is preferable for reasons
of safety. Furthermore, retaining
§ 395.1(o) while introducing two 16hour driving windows with 13-hour onduty periods would add considerable
confusion to the rule with no
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corresponding advantage and indeed a
possible detriment to safety.
Section 395.1(e)(2). Today’s proposal
for a 13-hour work limit within a
general 14-hour driving window, and an
optional 16-hour window twice a week,
is similar in some respects to the current
provision for short-haul operations with
vehicles that do not require a CDL
(§ 395.1(e)(2)). The rule for drivers of
non-CDL vehicles includes certain
exceptions and restrictions (an
exemption from the logging requirement
coupled with a 150 air-mile operating
radius and an obligation to return to the
work reporting location every day);
however, like the proposed rule for
larger vehicles, § 395.1(e)(2) allows a 14hour driving window 5 days a week and
a 16-hour window 2 days a week. In
order to simplify the HOS regulations,
FMCSA is considering rescinding
paragraph (e)(2) and requiring the
drivers who now use it to comply with
the standard HOS limits. Although we
have not formally included such a
proposal in this NPRM, the Agency
seeks comments on the effect of
eliminating paragraph (e)(2). Our
preliminary analysis suggests that
removing paragraph (e)(2) would offer
drivers advantages (e.g., greater
geographical range and freedom from
the need to return to their point of
departure every day) that might
compensate for the more restrictive 13hour work limit and the loss of the
logbook exemption. FMCSA has little
hard information about operations
currently conducted under paragraph
(e)(2); we invite drivers and carriers that
utilize this provision to explain how a
decision to remove it would affect them.
Paragraph (e)(1) of § 395.1, like
paragraph (e)(2), also exempts drivers
from keeping logs, but limits them to a
100 air-mile operating radius and
requires them to return to their work
reporting location and go off duty
within 12 hours of coming on duty;
unlike paragraph (e)(2), it is available to
drivers of all vehicles, even those large
enough to require a CDL. To what extent
could carriers and drivers use this
provision to compensate for a possible
elimination of § 395.1(e)(2)?
In conjunction with a potential
rescission of § 395.1(e)(2), the Agency is
also considering an expansion of the
100 air-mile radius in § 395.1(e)(1) to
150 miles while leaving the rest of that
paragraph unchanged. Please comment
on the combined effects on carrier
operations of those two possible
amendments.
Compliance dates. When FMCSA
adopted the 2003 HOS rule, it set a
compliance date about 8 months after
the date of publication. Before that time,
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drivers had to operate under the old
rules. For enforcement reasons, it is
necessary to set a specific date for
compliance. FMCSA requests comments
on the appropriate period between the
effective date and compliance date of
the rule. It should be long enough to
allow training of drivers and inspectors
and reprogramming of electronic log
software.
Twenty-four hour clock. Safety
advocacy groups have asked FMCSA to
re-impose the ‘‘24-hour clock’’ that
existed under the pre-1962 rules. They
argue that working on a 24-hour
schedule would allow drivers to
establish a regular sleep pattern, which
would increase the chances that the
drivers could obtain more sleep. In
practice, a substantial part of the
industry already meets the requirement
for a regular schedule. The long-haul TL
sector, however, does not. In theory,
under the existing rule a long-haul TL
driver could drive 11 hours, take 10
hours off duty, then start driving again,
moving his or her starting time back 3
hours a day.
FMCSA considered whether it was
possible to limit drivers to a 24-hour
schedule but was not able to develop a
provision that was not operationally
disruptive. Although superficially
simple—the start time on the first day
of a weekly cycle sets the start time for
all other days—a 24-hour schedule is
too rigid in practice and fails to
accommodate the events over which the
driver or carrier has no control. A few
cities limit the hours when trucks are
allowed to load and unload; shippers
control loading and unloading time
based on their needs, not drivers’
schedules. At the beginning of a work
week, drivers may not know where and
when their subsequent loads will be.
Adding another set of restrictions to
their schedules is unnecessarily
complex. It could also discourage
drivers from taking shorter work days so
they will be able to make a delivery
appointment early the next day. The
alternatives, such as limiting start times
within a single trip, which would
address the most likely period during
which a driver might rotate the clock
backward, would be difficult to enforce.
Although FMCSA is concerned about
the effect of schedules that rotate
backward or forward by several hours
over days or the work week, the Agency
has no information on the extent to
which this is actually occurring. Under
the current rule, a driver could
theoretically drive 11 hours, then take
10 hours off before driving another 11
hours, but this cannot occur on very
many consecutive days. On the first day
of any trip, the driver has to spend on-
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duty time while the truck is being
loaded and on the last day, the driver
has to wait while it is unloaded. As
discussed in the description of the
industry above, according to the 2007
Commodity Flow Survey, only 12
percent of the tons moved in for-hire
trucks and less than 1 percent in private
carrier trucks traveled more than 500
miles, which represents a 1-day trip.
This average is consistent with a trend
in the industry to shift to intermodal
transport for long hauls, using rail for
the long distance segments and trucks
for regional operations. Drivers on 1-day
trips may not be able to rotate their
schedules backward substantially.
One-size-fits-all approach. MCSAC
and some commenters at the listening
sessions recommended that FMCSA
consider developing different rules for
different sectors of the industry. The
Agency recognizes that different parts of
the industry have different operational
patterns and demands. Drivers and
carriers, however, frequently conduct
different types of operations in a single
week. In 2000, FMCSA proposed to
segregate the industry into five broad
kinds of operation and to promulgate
different rules for each. Most
commenters thought the result was far
too complex while others complained
about the absence of a special provision
for their particular operational niche.
There was no consensus except that the
proposal was unworkable. FMCSA
continues to believe that creating
separate requirements for the various
sectors would make the rule extremely
difficult to understand, implement, and
enforce.
FMCSA notes that there are special
provisions (some regulatory, some
statutory) for farmers, driver salesmen,
drivers in the construction industry,
utility service vehicles, motor coaches,
oilfield operations, adverse driving
conditions, Alaska, and Hawaii. The
HOS rules do not apply when truckers
are providing emergency relief in the
wake of a State or Federal declaration of
an emergency. Furthermore, drivers and
carriers have significant flexibility in
complying with the rules. Neither
FMCSA nor its predecessor agencies
have ever had a genuine ‘‘one-size-fitsall’’ approach, but a safety age ncy
cannot have separate standards for each
and every element of the staggeringly
diverse motor carrier industry.
VII. Section-by-Section Analysis
In part 385, Appendices B
(explanation of the safety rating process)
and C (regulations pertaining to
remedial directives in Part 385, subpart
J) would be revised to update references
to part 395 and to remove references to
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§ 395.1(o), which would be deleted.
Revised references would be added for
paragraphs in § 395.3. References to
§ 395.3(c)(1) and (2) would be deleted
because a violation of the minimum
restart period would constitute, and be
cited as, a violation of the 60- or 70-hour
rule. Providing separate violations for
elements of the proposed rule would
allow FMCSA to determine what parts
of the rule had been violated. Under the
current method of citing violations, a
driver who drives for 18 hours straight
cannot be distinguished from the driver
who drives 11 hours, takes a 9.5 hour
break, then drives another 7 hours. Both
are cited for violating the 11-hour rule.
In part 386, Appendix B, paragraph
(a) (penalty schedules; violations and
maximum civil penalties) would be
revised to add a new paragraph (6) to
state that any violation of the drivingtime limit that was 3 or more hours
above the 10- or 11-hour limit could be
considered an egregious violation that
could trigger imposition of the
maximum penalty.
Section 390.23(c)(2) (relief from
regulations) would be revised to make
the 34-hour restart provision consistent
with the revised requirements in part
395.
In § 395.1, paragraph (b) (adverse
driving conditions), would be revised to
update (1)(i) to change 13 hours to 12
hours if a 10-hour driving-limit is
adopted (2 hours more than the driving
limit). If an 11-hour driving-time limit is
adopted, no change would be needed.
Paragraph (b)(1)(ii) would be revised to
reference both the 14-hour and the
16-hour driving window.
In § 395.1, paragraph (d)(2) (oilfield
operations) would be revised to clarify
the language on waiting time and to
state that waiting time would not be
included in the calculation of the
driving window.
In § 395.1, paragraph (e) (short-haul
operations), paragraphs (1)(iv)(A) and
(2)(v) would be revised to change the
driving hours allowed to 10 hours; if an
11-hour driving-time limit is adopted,
no change would be needed. The
introduction to paragraph (e)(2) would
be revised to eliminate the reference to
paragraph (o). Paragraph (e)(2)(viii)
would be revised to include the
provision that the restart must include
two night-time periods and is subject to
the 168-hour limit.
Section 395.1(g) (sleeper berths)
would be revised to change the driving
time (if a 10-hour limit is adopted); it
would be revised to change the dutytime and driving-window numbers and
to add the provision (to paragraph
(g)(1)(ii)(C)) that a team driver may log
as off duty up to 2 hours in the
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passenger seat of a moving vehicle
immediately before or after an 8- to 10hour period in the sleeper berth.
Section 395.1(o) and (q) would be
removed. Paragraph (q), a statutory
exemption for certain transporters of
grapes, expired on September 30, 2009.
See Sec. 4146 of the Safe, Accountable,
Flexible, Efficient Transportation Equity
Act: A Legacy for Users, Public Law
109–59, 119 Stat. 1144, 1749, August 10,
2005.
In § 395.2, the definition of ‘‘on-duty
time’’ would be revised to allow a team
driver to log as off duty up to 2 hours
spent in the passenger seat either
immediately before or after the 8-hour
period in the sleeper berth. In addition,
FMCSA is proposing to exclude from
the definition of ‘‘on duty,’’ time spent
resting in or on a parked CMV. In the
past, drivers have noted that the current
definition makes it difficult for drivers
of truck tractors without sleeper berths
(known as day cabs) to rest because they
were considered to be on duty if they
were in a parked truck. In many cases,
the safest, most comfortable, and often
the only place for such a driver to rest
during a duty tour will be in the parked
truck.
Section 395.3 would be revised to
place the individual requirements in
separate paragraphs so that FMCSA
would be able to cite drivers for
violations of specific elements. Under
the current rule, drivers are cited only
for violations of driving time, on-duty
time, and the weekly limits. The
proposed rule would make it possible to
cite drivers for violations of the daily
off-duty break, the use of the 16-hour
extension, the 34-hour restart, the 2night provision, and the 168-hour
provision as well as driving time,
weekly hours, and on-duty time. This
approach would provide useful
information about the types of
violations being committed.
VIII. Required Analyses
A. Executive Order 12866
Under Executive Order (E.O.) 12866
(58 FR 51735, October 4, 1993), FMCSA
must determine whether a regulatory
action is ‘‘significant’’ and, therefore,
subject to Office of Management and
Budget review and the requirements of
the E.O. The E.O. defines ‘‘significant
regulatory action’’ as one that is likely to
result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
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State, local, or Tribal governments or
communities.
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency.
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof.
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the E.O.
Under the E.O., agencies must
estimate the costs and benefits of
potential rules; for rules that may be
considered economically significant
($100 million or more in costs and
benefits), agencies must also evaluate
options.
For this analysis, FMCSA considered
and assessed the consequences of four
potential regulatory options. (A copy of
the complete RIA is available in the
docket.) Option 1 is the no-action
alternative, which would leave the
existing 2008 rule in place. Options 2,
3, and 4 each would adopt several
revisions to the rule. The RIA addresses
each option separately. Option 2
proposes a 10-hour driving-time limit; it
would also require the driver to take a
rest break during the day; impose a
daily duty limit; and reduce the weekly
maximum driving and on-duty time
theoretically achievable. Option 2
would give drivers the flexibility to
work intensely for a single week, after
taking two full days off; for example,
daytime drivers could work up to 13
hours per day for 5 days in a row (a
cumulative 65 hours), take 34 hours off
to restart the 70-hour clock, and then
work another 13-hour day, for a total of
6 13-hour days, which is a cumulative
78 hours on-duty (out of 7 consecutive
calendar days). Options 3 and 4 are
identical to Option 2 in all respects
except for the amount of driving time
allowed. Option 3 would allow an 11hour driving-time limit, while Option 4
would adopt a 9-hour driving-time
limit. Although Option 2 is the Agency’s
currently preferred option, this
summary presents the impacts of
Options 2 through 4.
Compliance with HOS rules was
assumed to be 100 percent for both the
baseline and options; no attempt was
made to estimate real-world compliance
rates or to adjust costs and benefits for
non-compliance. This assumption was
made to avoid understating the true
costs of the rule. To the extent that
compliance rates fall short of 100
percent, both costs and benefits would
be lower. This approach allows for
analyses of supplementary rules aimed
at improving compliance, which would
presumably move both costs and
benefits closer to the levels estimated in
this analysis. These incremental
changes in costs and benefits would not
duplicate the costs and benefits
estimated for this proposal; rather they
would indicate the extent to which the
supplementary rules ensured that the
proposal’s costs and benefits were
realized.
To calculate the impacts of the
proposed changes to the HOS rule, it is
necessary to develop a profile of the
motor carrier industry and estimate the
degree to which drivers in various
segments work up to or close to the
limits of the current rule. Drivers whose
preferences or work demands would
lead them to choose schedules well
within the current limits for reasons
unrelated to those limits will not be
affected by the rule changes.
The analysis concentrated on intercity long-haul or regional, as opposed to
local, trucking operations. In general,
short-haul trucking work has far more in
common with other occupations than it
does with regional or long-haul
trucking. These local, short-haul
trucking operations are generally 5-daya-week jobs, and much of the time on
duty is given to tasks other than driving.
Typical work days are 8 to 10 hours or
so and typical weeks are 40 to 55 hours.
Many, if not most, of these drivers
receive overtime pay past 8 hours in a
day. Most of the work is regular in
character; drivers go to basically the
same places and do the same things
every day. The rule changes proposed in
this NPRM are expected to have little
effect on such operations.
Both for simplicity of presentation
and because of the nature of the
available data, the analysis used 100
miles as the point of demarcation
between local and over-the-road (OTR)
service. Much of the information on
working and driving hours is drawn
from FMCSA’s 2007 Field Survey.47
Companies and drivers were identified
as operating within or beyond a 100mile radius. The Economic Census,48
which provided data on revenue,
defines a long-distance firm as one
carrying goods between metropolitan
areas; this is roughly compatible with a
100-mile radius for the distinction
between local and OTR service. One
hundred miles is also compatible with
the length-of-haul classes in the
Commodity Flow Survey.
To analyze the impact of the proposed
rule changes, the analysis needed to
define the prevailing operating patterns
in the industry. Of particular interest is
the extent to which drivers work close
to the limits set by the current rule. To
analyze current patterns in work
intensity, drivers were assigned to four
intensity groups, based on their average
weekly hours of work. For this purpose,
the analysis used data on weekly work
hours from the 2007 Field Survey to
define intensity groups as shown in
Table 4.
Moderate-intensity drivers are on
duty an average of 45 hours per week.
High-intensity drivers are on duty an
average of 60 hours per week. The third
group, very-high-intensity drivers,
works an average of 70 hours per week.
The fourth group, extreme-intensity
drivers, is on duty an average of 80
hours per week. The 2007 Field Survey
indicated a distribution of the driver
population across these groups as
shown below.
TABLE 4—DRIVER GROUPS BY INTENSITY OF SCHEDULE
Average weekly work time
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Work intensity group
Percent of
workforce
Weighted
average hours
per week
Moderate ......................................................................................................................................
High ..............................................................................................................................................
Very High .....................................................................................................................................
Extreme ........................................................................................................................................
45
60
70
80
66%
19%
10%
5%
29.70
11.40
7.00
4.00
Total ......................................................................................................................................
........................
........................
52.10
47 The ‘‘2007 Field Survey’’ is an alternate title for
the FMCSA, ‘‘2007 Hours of Service Study,’’ 2007.
FMCSA–2004–19608–2538.
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48 U.S. Census Bureau, ‘‘2007 NAICS [North
American Industry Classification System]
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Definitions 484 Truck Transportation,’’ 2008.
FMCSA–2004–19608–4066.
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The weighted average is obtained by
multiplying the average work time in
each class by the fraction of the
workforce in that class. The sum, just
over 52 hours, is average hours of work
per week based on each group’s share of
the total population. Data analyzed in
2005 from the 2004 Field Survey and a
large truck-load carrier suggested a
slightly higher industry-wide average
work week of 53 hours, which is the
value used in the cost-benefit analysis.49
The analysis made similar calculations
using the Field Survey data to
determine the weighted averages for use
of the 10th and 11th hour of drive time
and the 14th hour of daily on-duty time.
These figures can be found in the
accompanying RIA.
The basic approach for calculating
impact on the industry is to follow the
chain of consequences from changes in
HOS provisions to the way they would
affect existing work patterns in terms of
work and driving hours per week, taking
into account overlapping impacts of the
rules. The resulting predicted changes
in work and driving hours are then
translated into changes in productivity
by comparing them to average hours.
The changes in productivity, in turn, are
translated into changes in costs
measured in dollars. The total combined
effect would be to decrease industry
productivity by approximately 2 percent
for Option 2, 1 percent for Option 3 and
6 percent for Option 4. These decreases
in industry productivity result in total
annual cost of $990 million for Option
2, $480 million for Option 3 and $2,270
million for Option 4. In addition, the
cost of re-training drivers, carriers, and
enforcement personnel, as well as reprogramming electronic logbook and
other carrier driver-management
software would result in approximately
$320 million in costs in the first year for
Options 2 through 4. The training and
re-programming costs have been
annualized because they would not
recur; over the first 10 years at a 7
percent discount rate, they would
amount to about $40 million per year.
The total annualized costs of the
changes in operating, training, and reprogramming would therefore be
approximately $1.030 billion for Option
2, $520 million for Option 3, and $2.310
billion for Option 4.
Rule Benefits
The primary goal of the proposed
changes is to improve highway safety by
reducing driver fatigue and the
49 These data are shown in Exhibit 2–6 in the
2008 RIA [docket item number FMCSA–2004–
19608–3510.1]. Details are in the 2010 RIA,
Appendix A, ‘‘Data and Calculations for Industry
Profile.’’
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associated increase in the probability
that fatigued drivers will be involved in
crashes. A secondary benefit expected
from this rule is a decrease in driver
mortality due to health problems caused
by long working hours and the
association of long working hours with
inadequate sleep.
To analyze the safety impacts of these
changes, the Agency has developed a
series of functions that incorporate
fatigue-coded to hours of daily driving
and hours of weekly work. In past HOS
regulatory analyses, the effects on
fatigue and fatigue-related crashes of
changing the HOS rules were calculated
using fatigue models. These models (the
Walter Reed Sleep Performance Model
for the 2003 rules, and the closely
related SAFTE/FAST Model for later
analyses) took into account the drivers’
recent sleeping and waking histories,
and calculated fatigue based on
circadian effects as well as acute and
cumulative sleep deprivation. These
models did not incorporate functions
that independently accounted for hours
of driving after an extended rest (i.e.,
acute time-on-task) or cumulative hours
of work (as opposed to off-duty time)
over recent days. These effects were
assumed, instead, to be accounted for in
the effects of long daily and weekly
work hours on the drivers’ ability to
sleep. For the 2005 and later analyses,
a separate time-on-task function based
on statistical analysis of TIFA data was
added to ensure that available evidence
for time-on-task effects was not ignored;
those analyses were still criticized as
deficient for excluding consideration of
cumulative time-on-task effects.
For the current analyses, FMCSA is
replacing the use of the sleep-related
fatigue models with a simpler approach
that explicitly relates the risk of a
fatigue-coded crash to hours of daily
driving and hours of weekly work. The
function used to model the effects of
daily driving hours is the same as the
TIFA-based logistic function used since
2005, while the function for modeling
weekly work hours is taken from
FMCSA’s analysis of the LTCCS. Other
fatigue effects, including the effects of
insufficient sleep and circadian effects
of working and sleeping at sub-optimal
times, are implicitly assumed to be
incorporated in the daily driving and
weekly work hour functions because
those effects were at work on the drivers
involved in the crashes recorded in
TIFA and LTCCS. To add fatigue effects
calculated by a sleep/performance
model on top of the empirically based
functions would, therefore, run the risk
of double counting the benefits of
restrictions on work and driving. These
functions, and the uncertainty
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surrounding them, are described in
detail in the RIA.
The basic approach for using the
empirically based fatigue risk functions
was to count the changes in hours
worked and driven as a result of the
regulatory options. Each hour of driving
that is avoided results in a reduction in
expected fatigue-related crashes. These
reductions were calculated using the
predicted levels of fatigue-related
crashes indicated by the fatigue
functions. The hours of driving and
working that are prevented by the
options, though, were assumed to be
shifted to other drivers or to other work
days rather than being eliminated
altogether. The fatigue crash risks for
those other drivers and other days were
also calculated. Taking account of these
partially offsetting risks means that the
predicted crash reductions attributable
to the options were really the net effect
of reducing risks at the extremes of
driving and working while increasing
risks for other drivers and on other days.
The changes in crash risks were
monetized (i.e., translated into dollars)
using a comprehensive and detailed
measure of the average damages from
large truck crashes. This measure takes
into account the losses of life (based on
the DOT’s accepted value of a
‘‘statistical life,’’ recently set at $6
million); medical costs for injuries of
various levels of severity, pain, and
suffering; lost time due to the
congestion effects of crashes; and
property damage caused by the crashes
themselves.50
Based on these functions, we have
estimated that the safety benefits of this
rule would be substantial. The midpoint estimate of the annual crash
reduction benefits associated with these
changes is based on the assumption that
fatigue is involved in roughly 13 percent
of large truck crashes, based on the
LTCCS; this yielded a monetized safety
benefit of approximately $720 million
per year for Option 2, $430 million for
Option 3, and $1.220 billion for Option
4. The analysis included a series of
sensitivity analyses surrounding these
estimates because the level of fatigue
involvement in truck crashes is
uncertain. For each of the options, the
sensitivity analysis produced a range of
benefits per year under the assumption
that fatigue is involved in
approximately 7 percent of crashes and
under the assumption of a higher 18
50 Average large truck crash costs were obtained
from the report, ‘‘Unit Costs of Medium/Heavy
Truck Crashes,’’ March 13, 2007, by E. Zaloshnja
and T. Miller. The cost of a crash was updated to
2008 dollars and to reflect a value of a statistical
life of $6 million. The report is in docket #FMCSA–
2004–19608–3995.
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percent fatigue involvement. The
estimated safety benefits ranged from
$390 million to $1.000 billion for
Option 2, from $230 million to $590
million for Option 3, and from $660
million to $1.690 billion for Option 4.
The analysis also calculated benefits
associated with improvements in driver
health. The Agency has a statutory
mandate to ensure that driving
conditions do not impair driver health.
Research indicates that reducing total
daily and weekly work for the drivers
working high-intensity schedules
should result in these drivers getting
more sleep on a daily and weekly basis.
Recent research on sleep indicates that
inadequate sleep is associated with
increases in mortality. This effect
appears to involve several complex
pathways, including an increase in the
propensity for workplace (and leisure
time) accidents and mortality due to
decrements in several health-related
measures, such as an increase in the
incidence of high blood pressure,
obesity, diabetes, cardiovascular disease
(CVD), and other health problems. The
analysis attempted to model the
workplace accident effect explicitly in
the crash reduction benefits. However,
explicit modeling of all the other
various ways that insufficient sleep
increases mortality becomes too
complex and uncertain for this analysis.
The studies the analysis relied on to
model health benefits, therefore, are
population-based studies that look at
overall mortality, independent of the
cause of death, as a function of sleep.
Because increases in hours worked are
associated with decreases in hours spent
sleeping, and truck drivers working
high-intensity schedules get
significantly less than the 7 or more
hours of sleep required for optimal
mortality, cutting back on extreme work
should, to some extent, reduce mortality
among these drivers.
These benefit estimates depend on
how much sleep CMV drivers currently
get and how much more sleep they are
expected to get under the proposed rule.
The analysis developed a function that
relates hours worked to hours slept and
used this function to predict how much
more sleep drivers would get under the
proposed rule than they currently obtain
under the existing rule. The results of
this analysis are sensitive to the amount
of sleep drivers are currently getting;
increases in sleep have less substantial
health benefits if individuals are already
getting close to the optimal 7–8 hours
per night than if they average less sleep.
Since there is a degree of uncertainty
surrounding how much sleep drivers
currently get, a sensitivity analysis
varied the baseline amount of sleep
drivers are currently obtaining. This
analysis showed that health
improvement benefits are greatest when
drivers are getting the least sleep under
the current rule, because they have the
most room for improvement.
The sensitivity analysis scenarios are
divided into the low sleep, medium
sleep, and high sleep categories. Under
the low sleep scenario, the benefits are
greatest because it is the most
pessimistic regarding how much sleep
drivers currently obtain. The high sleep
scenario assumed that drivers are
getting close to the optimal amount; as
a result, there is little if any benefit to
giving them opportunity for more sleep.
For the low sleep scenario, driver health
improvement benefits are estimated to
be $1.480 billion per year for Option 2,
$1.190 billion for Option 3, and $1.990
billion for Option 4. Under the medium
sleep scenario, these benefits fall to
$690 million per year for Option 2, $650
million for Option 3, and $660 million
for Option 4. For the assumption of a
high level of baseline sleep for Options
2 and 4, it is interesting to note that the
benefits are negative, indicating that it
is not beneficial for individuals to get
additional sleep if they are already
getting adequate sleep. As discussed in
the RIA, we do not believe that the
negative benefits for drivers with a high
baseline level of sleep would be
realized, but we include them to keep
the analysis consistent with our other
scenarios.
Tables 5 through 7 below present the
total annual benefits of Options 2
through 4 for all three fatigue
involvement and sleep scenarios
described above. As this analysis
indicates, Option 2 could generate
anywhere from $280 million to $2.480
billion in annual benefits; Option 3
could generate between $330 million
and $1.790 billion in annual benefits;
and Option 4 could generate between
negative $10 million and $3.680 billion
in annual benefits, These estimates
include both health and safety benefits.
The mid-point estimate for Options 2
and 3 would result in a cost beneficial
rule. For Option 2, the mid-point
estimate is $1.410 billion in benefits,
with associated costs of $1.030 billion;
and for Option 3, the mid-point estimate
is $1.080 billion in benefits, with
associated costs of $520 million. For
Option 4, the mid-point estimate is not
cost beneficial, with benefits of $1.880
billion and associated costs of $2.310
billion.
TABLE 5—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 2 (10 HOURS DRIVING)
[Millions per year]
Assumed amount of nightly sleep
Assumed percent of crashes due to fatigue
Low sleep
7 percent ..................................................................................................................................................
13 percent ................................................................................................................................................
18 percent ................................................................................................................................................
$1,870
2,210
2,480
Medium
sleep
High sleep
$1,080
1,410
1,690
$280
620
890
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TABLE 6—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 3 (11 HOURS DRIVING)
[Millions per year]
Assumed amount of nightly sleep
Assumed percent of crashes due to fatigue
Low sleep
7 percent ..................................................................................................................................................
13 percent ................................................................................................................................................
18 percent ................................................................................................................................................
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$1,420
1,620
1,790
29DEP2
Medium
sleep
$880
1,080
1,240
High sleep
$330
530
700
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TABLE 7—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 4 (9 HOURS DRIVING)
[Millions per year]
Assumed amount of nightly sleep
Assumed percent of crashes due to fatigue
Low sleep
7 percent ..................................................................................................................................................
13 percent ................................................................................................................................................
18 percent ................................................................................................................................................
Table 8 below presents the net
benefits of Options 2 through 4 for all
three baseline sleep scenarios. These
figures use the 13 percent fatigueinvolvement scenario described above.
Option 3 has the highest net benefits for
the medium and high sleep scenarios,
while Option 2 has slightly higher net
benefits in the low sleep scenario. The
higher net benefits of Option 3 are due
to the allowance of 11 hours of driving
per day, which reduces productivity
losses to the industry. Option 2 results
in greater safety benefits than Option 3;
and for high-benefit scenarios, the
monetary value of those safety
improvements outweighs their
economic impact. Furthermore, this
option appears likely to be cost
beneficial under all but the most
optimistic assumptions about how
much sleep drivers get under the
current rule. Under Option 4, the
economic costs to industry are likely to
outweigh the combined benefits of crash
reductions and improvements in driver
health. The high negative value for
Option 4 for high baseline sleep is the
result of the U-shaped relationship
between average sleep per night and
$2,650
3,210
3,680
Medium
sleep
High sleep
¥$10
560
1,030
$1,320
1,880
2,350
mortality rates mentioned above.
Although the analysis shows a negative
health benefit for drivers with medium
and high baseline levels of sleep,
FMCSA does not believe that these
negative benefits would be realized
because drivers might choose other
activities rather than sleeping if they are
getting enough sleep already. The
negative benefits are included in the
analysis to be consistent with
assumptions regarding the other
scenarios.
TABLE 8—NET BENEFITS BY OPTION
[Millions per year]
Option 2
10 hours of
driving allowed
Net benefit scenario
Low Baseline Sleep .....................................................................................................................
Medium Baseline Sleep ...............................................................................................................
High Baseline Sleep ....................................................................................................................
In addition to the quantified and
monetized benefits discussed above,
there may be other health benefits that
shorter work days and weeks could
produce. Research indicates that the
metabolic and endocrine disruptions
associated with short sleep time and
long work hours are significantly related
to obesity.51 Obesity is in turn
associated with higher incidences of
diabetes, CVDs, hypertension, and
obstructive sleep apnea.52 These
medical conditions impose costs on
drivers who suffer from them and affect
the quality of their lives. Sedentary
work alone is also associated with
obesity and mortality impacts.53
Research on the health and health
costs found that CMV drivers are both
heavier for their height and less healthy
than adult males as a whole. As
discussed in Section V. of this NPRM,
drivers are far more likely than adult
male workers as a whole to be obese.
Option 3
11 hours of
driving allowed
Option 4
9 hours of
driving allowed
$1,170
380
¥410
$1,100
560
10
$900
¥420
¥1,750
Table 9 presents the distribution of
drivers by weight category and the
incidence of health conditions for
drivers in each weight group, taken from
a study that used medical examination
records and health insurance claims of
2,950 LTL drivers.54 (The national
statistics for the incidence of health
conditions among adult males include
men over 70, who may have higher
incidences of some conditions than the
younger working population.)
TABLE 9—DRIVER HEALTH CONDITIONS BY WEIGHT CATEGORY
Percent drivers in weight
category
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
N=2,950
Normal weight .....................................
Overweight ..........................................
13
30
51 Van Cauter, E. & Knutson, K., ‘‘Sleep and the
Epidemic of Obesity in Children and Adults,’’
European Journal of Endocrinology, Vol. 159, 2008,
pp. S59–66. FMCSA–2004–19608–3991.
Di Milia, L. & Mummery, K. (2009).
52 Mokdad, A.H., Ford, E.S., Bowman, B.A., Dietz,
W.H., Vinicor, F., Bales, V.S. & Marks, J.S.,
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Presence of at
least one
health risk factor
(percent)
Hypertension
(percent)
Diabetes
(percent)
26 ..................
39 ..................
21 .................
31 .................
5 ..........................................................
10 ........................................................
‘‘Prevalence of Obesity, Diabetes, and ObesityRelated Health Risk Factors, 2001,’’ Journal of the
American Medical Association, Vol. 289, No. 1,
2003, pp. 76–79. FMCSA–2004–19608–4016.
53 Katzmarzyk, P.T., Church, T.S., Craig, C.L. &
Bouchard, C., ‘‘Sitting Time and Mortality from All
Causes, Cardiovascular Disease, and Cancer,’’
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High cholesterol
(percent)
11
17
Medicine and Science in Sports and Exercise, Vol.
41, No. 5, May 2009, pp. 998–1005. FMCSA–2004–
19608–4001.
54 Martin, B.C., et al. (2009).
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TABLE 9—DRIVER HEALTH CONDITIONS BY WEIGHT CATEGORY—Continued
N=2,950
Percent drivers in weight
category
Presence of at
least one
health risk factor
(percent)
Hypertension
(percent)
Diabetes
(percent)
Obese ..................................................
Overall .................................................
National adult male (CDC statistics) ...
55
........................
........................
59 ..................
48 ..................
.......................
51 .................
41 .................
31.80 ............
21 ........................................................
16 ........................................................
10.9 (7.4% diagnosed) .......................
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
FMCSA has not attempted to quantify
the benefits of improved health that may
accrue to drivers who have more time
off. First, the Agency does not have
dose-response curves that it can use to
associate sleep time with mitigation or
exacerbation of the various health
impacts other than sleep loss itself.
Second, the Agency has no basis for
estimating the extent to which drivers
who have an extra hour a day or extra
hours per week off duty will use that
time to exercise and sleep. Third, many
of the health impacts are linked to
obesity; given the difficulty most people
have in losing weight, it would be
unjustifiably optimistic to attempt to
estimate the degree of potential weight
loss.
The health consequences of long
hours, inadequate sleep, and long
stretches of sedentary work are,
however, significant: They cause serious
health conditions that may shorten a
driver’s life and increase healthcare
costs. In addition, some studies have
linked obesity to increased crash risks,
including a recent analysis of the VTTI
data, which found that obese CMV
drivers were between 1.22 and 1.69
times as likely to drive while fatigued,
1.37 times more likely to be involved in
a safety-critical event, and at 1.99 times
greater risk of being above the fatigue
threshold as measured by eye closure
when driving.55
Conclusion
In conclusion, the RIA shows an
annualized cost of about $1 billion for
Option 2, about $500 million for Option
3, and over $2 billion for Option 4.
Annual safety and health benefit
estimates range from below $300
million to more than $2.4 billion in
quantifiable benefits for Option 2, from
$300 million to more than $1.7 billion
for Option 3, and from negative $10
million to more than $3.6 billion for
Option 4. Net quantifiable benefits, as a
result, are likely to be positive, but
55 Wiegand, D.M., Hanowski, R.J. & McDonald,
S.E., ‘‘Commercial Drivers’ Health: A Naturalistic
Study of Body Mass Index, Fatigue, and
Involvement in Safety-Critical Events,’’ Traffic
Injury Prevention, Vol. 10, No. 6, December 2009,
pp. 573–579. FMCSA–2004–19608–3994.
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could, under the 13 percent baseline
fatigue involvement scenario, range
from a negative $410 million per year to
more than a positive $1.1 billion per
year for Option 2, from a negative $10
million to a positive $1.1 billion for
Option 3, and from more than a negative
$1.8 billion to more than a positive $900
million for Option 4.
The wide range in estimated
quantifiable benefits and net
quantifiable benefits is a consequence of
the difficulty of measuring fatigue and
fatigue reductions, which are complex
and often subjective concepts, in an
industry with many different
participants and diverse operational
patterns. Uncertainty in the value of
avoided deaths and greater expected
lifespans create yet more uncertainty,
the quantified benefits would be higher
for higher values of ‘‘statistical lives.’’
Still, it seems clear that the quantifiable
benefits could easily be quite
substantial, and could easily exceed the
costs.
The costs, for their part, are large in
absolute terms but minor when
compared to the size of the industry: $1
billion per year (the total annualized
cost for Option 2) is only half of 1
percent of revenues, $500 million per
year (the total annualized cost for
Option 3) is only one quarter of 1
percent of revenues, and $2 billion per
year (the total annualized cost for
Option 4) is only 1 percent of revenues
in the for-hire long-haul segment of the
industry. These total annual costs are an
even smaller fraction of revenues of the
long-haul segment as a whole. As an
additional example, the costs of Option
2 are equivalent to less than a $0.02 per
gallon increase in industry fuel costs,
which is a minimal increase in an
industry used to wide swings in fuel
costs. Between 2006 and 2010, diesel
fuel prices ranged from $2.09 a gallon to
$4.70 a gallon.56
Compared to the other two options
that were analyzed, Option 2 would
have roughly twice the costs of Option
3 (which allows 11 hours of daily
driving), and less than half the cost of
56 https://tonto.eia.doe.gov/oog/info/gdu/
gasdiesel.asp, accessed May 11, 2010.
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High cholesterol
(percent)
26
21
15.60
Option 4 (which allows 9 hours). In
keeping with their relative stringencies,
Option 3 has lower and Option 4 has
higher projected benefits than Option 2.
Option 4’s substantially larger costs do
not appear to be justified by its
generally higher range of benefits. While
both Option 2 and Option 3 are
generally cost-effective, Option 3’s
calculated net benefits appear likely to
be somewhat higher than the net
benefits of Option 2 under most
assumptions about baseline conditions.
The Agency’s goal of improving
highway safety and protecting driver
health, combined with the potentially
significant but unquantifiable health
benefits of reductions in maximum
working and driving hours, make
Option 2 a reasonable choice.
Nonetheless, because of the costs of
Option 2, the Agency requests
additional data before making its final
decision.
The Agency requests commenters to
submit, to the extent possible,
statistically reliable information on the
costs and benefits of Options 2 and 3,
especially with regard to a 10- and 11hour driving limit, but also on other
aspects of this NPRM of interest to the
public. When submitting analyses of
data, it is important to provide enough
information on how the data were
collected and enough actual data to
allow FMCSA to determine if the
conclusions drawn are justified by the
underlying data.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires Federal
Agencies to determine whether
proposed rules could have a significant
economic impact on a substantial
number of small entities. FMCSA
conducted an Initial Regulatory
Flexibility Analysis (IRFA) to analyze
the impact of the proposed changes to
the HOS regulations on small entities.
After a description of why action is
being taken by the Agency, this IRFA
discusses the possible number of
affected small entities. FMCSA
estimates the impact of the new HOS
rule provisions on small carriers in the
first year in which the rule would be in
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effect for Options 2 and 3. We then
estimate the annual burden on small
entities over the first 10 years of the rule
being in effect. Lastly, we discuss the
reporting, recordkeeping, and other
compliance requirements of the
proposed rule, discuss whether any
other Federal regulations overlap with
the proposed rule, and discuss the
consideration of alternatives to
minimize the impact of the proposed
rule on small entities.
1. A Description of the Reasons Why
Action by the Agency is Being
Considered
The goals of the proposed changes to
the HOS rule are to improve safety
while ensuring that the requirements
would not have an adverse impact on
driver health. The proposed rule would
also provide drivers with the flexibility
to obtain rest when they need it and to
adjust their schedules to account for
unanticipated delays. The impact of
HOS rules on CMV safety is difficult to
separate from the many other factors
that affect heavy-vehicle crashes. While
the Agency believes that the data show
no decline in highway safety since the
implementation of the 2003 HOS rule
and its re-adoption in the 2005 HOS
rule, the 2007 IFR, and the 2008 HOS
rule (73 FR 69567, 69572, Nov. 19,
2008), the total number of crashes,
though declining, is still unacceptably
high. Moreover, the source of the
decline in crashes is unclear. FMCSA
believes that, with the 10-hour option,
the modified HOS rules proposed in this
NPRM, coupled with FMCSA’s many
other safety initiatives and assisted by
the actions of an increasingly safety-
conscious motor carrier industry, would
result in continued reductions in
fatigue-related CMV crashes and
fatalities. Furthermore, with the 10 hour
option, the proposed rule is intended to
protect drivers from the serious health
problems associated with excessively
long work hours, without significantly
compromising their ability to do their
jobs and earn a living.
2. A Succinct Statement of the
Objectives of, and Legal Basis for, the
Proposed Rule
The objectives of the proposed rule
are to reduce large-truck involved
crashes—especially those where fatigue
is a causative factor—and protect
drivers against the adverse health
impacts of working excessively long
hours. This proposed rule is based on
the authority of the Motor Carrier Act of
1935 and the Motor Carrier Safety Act
of 1984. See the Legal Basis section
earlier in this document for a discussion
of these two Acts. 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
proposed rule.
3. A Description of and, Where Feasible,
an Estimate of the Number of Affected
Small Entities to Which the Proposed
Rule Will Apply
The HOS regulations apply to both
large and small motor carriers. The
Small Business Administration defines
a small entity in the truck transportation
sub-sector (North American Industry
Classification System [NAICS] 484) as
an entity with annual revenue of less
than $25.5 million [13 CFR 121.201].
82191
Using data from the 2007 Economic
Census, FMCSA estimated that the
average carrier earns almost $200,000 in
annual revenue per truck for firms with
multiple power units,57 suggesting that
a typical carrier that qualifies as a small
business would have fewer than 128
($25.5 million/$200,000) power units
(i.e., trucks or tractors) in its fleet. Also
using data from the 2007 Economic
Census, FMCSA estimated that sole
proprietorships earned approximately
$85,000 in annual revenue.58
To determine the number of affected
small entities, we used the analysis
conducted by FMCSA for the Unified
Carrier Registration (UCR) rule.59 The
economic analysis for the UCR rule
divided carriers into brackets based on
their fleet size (i.e., number of power
units), and estimated the number of
carriers in each bracket. These brackets
and their corresponding numbers of
carriers are shown in Table 10.
According to these estimates and the
above-mentioned characterizations of
small entities in the trucking industry,
all of the carriers in Brackets 1 through
4 would qualify as small entities, as
would many of the carriers in Bracket 5.
Therefore, this analysis estimates that
between 422,196 (Brackets 1 through 4)
and 425,786 (Brackets 1 through 5)
small entities would be affected by the
HOS rule changes. This range may
overstate the number of affected small
entities because many private carriers
with small fleets may not qualify as
small businesses because their primary
business is not the movement of freight.
These private firms would thus have
other sources of revenue and fall under
different NAICS codes.
TABLE 10—NUMBER OF CARRIERS BY FLEET SIZE
[From FMCSA’s Analysis of the Unified Carrier Registration Plan Rule]
Bracket
Number of
carriers
................................................................................................................................................................................
................................................................................................................................................................................
................................................................................................................................................................................
................................................................................................................................................................................
................................................................................................................................................................................
................................................................................................................................................................................
1 ...................
2–5 ...............
6–20 .............
21–100 .........
101–1,000 ....
1,001–More ..
194,425
145,266
65,155
17,350
3,590
292
Total ...................................................................................................................................................................
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
1
2
3
4
5
6
Fleet size
......................
433,535
57 As shown in the ‘‘2007 Economic Census,’’ the
entire trucking industry (NAICS code 484)
generated revenue of $228,907 million (in 2006
dollars). FMCSA then used 2007 Economic Census
data for NAICS code 484 to derive a total estimate
of 1,183,000 trucks in the for-hire sector. FMCSA
then divided total revenue by the total number of
trucks to obtain an estimate of average revenue of
$193,000 in 2006 dollars, or $199,967 inflated to
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2008 dollars using the Gross Domestic Product
(GDP) Deflator (https://cost.jsc.nasa.gov/
inflateGDP.html). This $199,967 value was rounded
to $200,000 in the analysis.
58 There were 499,706 individual proprietorships
in the ‘‘truck transportation’’ NAICS code with total
revenue of $41,110 million. Dividing the total
revenue by the total number of firms resulted in
average revenue per firm of $82,269 in 2006 dollars,
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or $85,239 when inflated to 2008 dollars using the
GDP Deflator (https://cost.jsc.nasa.gov/
inflateGDP.html). This $85,239 value was rounded
to $85,000 in the analysis.
59 FMCSA, ‘‘Regulatory Evaluation of the Fees for
the Unified Carrier Registration Plan,’’ February 19,
2010. Available in the docket: FMCSA–2009–0231–
0181.
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Table 11 below presents figures for
private carriers by NAICS code for
industries with large numbers of drivers
(and hence the likelihood of large
numbers of fleets). The table includes
the total number of CMV drivers
working in each industry, the
percentage of payroll those drivers
account for, and the payroll of those
industries as a percent of total industry
revenue. Some of these industries have
SBA size thresholds that are
considerably lower than the threshold
for truck transportation, strongly
suggesting that many firms in these
industries that would be considered
small using the threshold of 128 power
units are actually large. For example, a
wholesaler with 128 trucks is certainly
a large firm because it will have more
than 100 employees. Other industries
have thresholds as high as 1,500 fulltime equivalent employees (FTEs); a
firm in one of these industries might
rank as small with even more than 128
power units if the number of power
units in its fleet were large compared to
the size of its workforce (e.g., if it had
300 power units, and only three
employees per power unit, it could be
considered small in an industry with a
threshold of 1,500 FTEs). From Table
11, however, this circumstance is not
likely to be common: In firms in NAICS
21 and 31–33, which have high FTE
thresholds, drivers make up only a very
small percentage of the workforce. Thus,
firms with a substantial numbers of
power units are likely to have much
larger labor forces, and are therefore
likely to rank as large firms. Given these
considerations, we are, if anything,
over-counting the number of private
carriers that would qualify as small
businesses.
TABLE 11—PRIVATE CARRIERS AND DRIVERS BY INDUSTRY
Drivers as percent of all employees
Payroll as percent of revenues
29,900
4.17
10
$14 million to $33.5 million ............
500–1,500 FTE ..............................
100 FTE .........................................
$7 million to $29 million .................
$7 million to $25 million .................
$7 million to $35.3 million ..............
127,200
238,600
509,000
307,900
40,500
132,300
1.76
1.78
8.53
2.01
1.9
1.64
19
11
5.5
10
18
46
$7 million ........................................
$7 million ........................................
175,400
44,000
1.82
0.80
29
24
Number of
drivers
NAICS
Industry
SBA standard
21 ........................
Mining, Quarrying, and Oil and
Gas Extraction.
Construction ...................................
Manufacturing ................................
Wholesale ......................................
Retail ..............................................
Real Estate and Leasing ...............
Administrative and Support and
Waste Management and Remediation Services.
Food Services ................................
Other Services ...............................
500 FTE .........................................
23 ........................
31–33 ..................
42 ........................
44–45 ..................
53 ........................
56 ........................
722 ......................
81 ........................
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
First Year Impacts on Small Entities
Affected small entities would incur
several types of costs as a result of the
HOS rule provisions. First, as discussed
in the HOS RIA, carriers would incur
annual costs due to losses in
productivity. As discussed in the HOS
RIA, these productivity impacts are
roughly $990 million per year for
Option 2 and $480 million per year for
Option 3. We divided this total
productivity impact by the approximate
number of long-haul drivers (1,600,000)
to obtain an annual per driver
productivity impact of approximately
$620 for Option 2 and $400 for Option
3. We then converted these per driver
impacts to per power unit impacts
(shown below in Tables 12 and 13). For
sole proprietorships, we assumed for
this analysis that these were single
power unit firms and there was one
driver per tractor. The total annual
operational cost for sole proprietorships
was thus $620 ($620 × 1) for Option 2
and $300 ($300 × 1) for Option 3.60 For
60 In this analysis, we consider sole
proprietorships separately due to the fact that these
firms tend to have low revenues and are thus
impacted by the proposed rule differently than
larger firms. We have assumed that sole
proprietorships have one power unit, but their
defining characteristic is their average revenues and
not the number of power units they have.
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firms with multiple power units, this
analysis assumes that multiple unit
carriers have 1.1 drivers per power
unit.61 The annual per power unit
operational cost for firms with multiple
power units was thus $682 ($620 × 1.1)
for Option 2 and $330 ($300 × 1.1) for
Option 3.
In addition to the productivity
impacts, each carrier would incur onetime costs for training in the
requirements of the new rule. To
estimate the training cost, we used
information from Agency personnel
who participated in previous HOS
retraining efforts to determine that each
driver would need to take a one-time 2hour training course to ensure
compliance with the new rule
provisions. As described in Chapter 6 of
the RIA, we used a loaded average
hourly rate of $23.96 (wages plus fringe
benefits) for the industry. The 2-hour
training course thus resulted in a cost of
approximately $48 per driver.
Carriers would incur additional onetime costs for software reprogramming
and other transition costs. As discussed
in the RIA, reprogramming and other
transition costs were estimated using
information obtained from the HOS
listening sessions conducted in various
locations in early 2010. Based on
information from these sessions, we
assumed that the total one-time training,
reprogramming, and other transition
costs were about $200 per driver
(including the $48 training cost
discussed above). For sole
proprietorships, we again assumed one
driver per power unit for a total onetime cost of $200 per power unit. We
view this estimate as conservative due
to the fact that many firms will not
incur any programming costs. We again
assumed that carriers with multiple
units have 1.1 drivers per power unit,
for a total one-time cost of $220 per
power unit.62 These one-time costs for
sole proprietorships and multiple power
unit firms are the same for Options 2
and 3, and are shown below in Table 12.
To estimate the first-year costs perpower unit for affected firms, the annual
and one-time costs for Option 2 and 3
were summed as shown in Tables 12
and 13. For Option 2, this calculation
resulted in a total first-year cost to sole
proprietorships of $820 per power-unit
in the first year and a total first-year cost
to firms with multiple power units of
61 FMCSA, ‘‘SAFER Data: Average Drivers per
Power Unit for TL Firms,’’ https://
safer.fmcsa.dot.gov/.
62 FMCSA, ‘‘SAFER Data: Average Drivers per
Power Unit for TL Firms,’’ https://
safer.fmcsa.dot.gov/.
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$902 per power unit. For Option 3, this
calculation resulted in a total first-year
cost to sole proprietorships of $500 per
power unit in the first year and a total
82193
first-year cost to firms with multiple
power units of $550 per power unit.
TABLE 12—FIRST-YEAR COSTS TO AFFECTED FIRMS PER POWER UNIT FOR OPTION 2
Cost per power unit
(sole proprietorship) a
Type of cost
Cost per power unit
(multiple power unit
firm) a
Annual Operating Cost (A) ......................................................................................................
One Time Training, Reprogramming, and Other Costs (B) ....................................................
$620
200
$682
220
Total First Year Cost (A + B) ...........................................................................................
820
902
a
FMCSA analysis.
TABLE 13—FIRST-YEAR COSTS TO AFFECTED FIRMS PER POWER UNIT FOR OPTION 34
Cost per power unit
(sole proprietorship) a
Type of cost
Cost per power unit
(multiple power unit
firm) a
Annual Operating Cost (A) ......................................................................................................
One Time Training, Reprogramming, and Other Costs (B) ....................................................
$300
200
$330
220
Total First Year Cost (A + B) ...........................................................................................
500
550
a
FMCSA analysis.
Next, we compared the estimated
first-year costs to the average revenue
for sole proprietorships and multiple
power unit firms for Options 2 and 3
(shown in Tables 14 and 15). As noted
earlier, average revenues for different
sized firms were taken from 2007
Economic Census data.63 For Option 2,
the first year costs of the proposed rule
changes would be equal to 0.96 percent
of average revenue for sole
proprietorships and 0.45 percent of
average revenue for multiple unit
carriers. For Option 3, the first year
costs of the proposed rule changes
would be equal to 0.59 percent of
average revenue for sole proprietorships
and 0.28 percent of average revenue for
multiple unit carriers. Thus, when
looking only at first year costs for
Options 2 and 3, the new HOS rule is
not expected to have a significant
impact on the average sole
proprietorship or firm with multiple
power units. Because of variability in
both the first-year costs and the average
revenues to which they are compared,
however, the impact on firms would
vary. It is thus likely that the impact of
the first year costs would be higher for
some carriers, rising to a level that could
be considered significant.
TABLE 14—IMPACT OF FIRST-YEAR COSTS ON AFFECTED FIRMS FOR OPTION 2
Type of cost
Sole proprietorships
First Year Cost Per Power Unit (A) a .......................................................................................
Annual Revenue Per Power Unit (B) b ....................................................................................
First Year Cost Impact as a Percentage of Annual Revenue (A/B) .......................................
a
b
$820
$85,239
0.96%
Multiple power unit firms
$902
$199,967
0.45%
FMCSA analysis.
FMCSA analysis of 2007 Economic Census data.
TABLE 15—IMPACT OF FIRST-YEAR COSTS ON AFFECTED FIRMS FOR OPTION 3
Type of cost
Sole proprietorships
First Year Cost Per Power Unit (A) a .......................................................................................
Annual Revenue Per Power Unit (B) b ....................................................................................
First Year Cost Impact as a Percentage of Annual Revenue (A/B) .......................................
a
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b
$500
$85,239
0.59%
Multiple power unit firms
$552
$199,967
0.28%
FMCSA analysis.
FMCSA analysis of 2007 Economic Census data.
Annual Burden on Affected Small
Entities
To analyze the annual burden on
affected small entities for Options 2 and
3, we amortized the one-time costs over
63 To be conservative in assessing potential
impacts, the revenues per power unit are based only
upon for-hire firms (that is, those in Truck
Transportation). Drivers make up only a small
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a 10-year period, assuming a 7 percent
discount rate. As shown in Table 16 for
Option 2, the sum of the annual
operating costs and the amortized onetime costs resulted in an annual burden
of $647 per year over 10 years for sole
proprietorships and an annual burden of
$711 per year over 10 years for firms
with multiple power units. As shown in
Table 17 for Option 3, the sum of the
fraction of the labor force in other industries, which
underlines the point that transportation is a small
part of their operations. When the Agency has
looked at the impact on private carriers in relation
to their revenue in the past, the percentage impact
of costs to private carriers as a share of revenue
have been generally been an order of magnitude
smaller than the impacts on for-hire trucking firms.
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annual operating costs and the
amortized one-time costs resulted in an
annual burden of $327 per year over 10
years for sole proprietorships and an
annual burden of $359 per year over 10
years for firms with multiple power
units.
Next, we compared the annual burden
to the average annual revenues of
affected firms. As shown in Table 16,
the annual costs of Option 2 are 0.76
percent of average annual revenue for
sole proprietorships and 0.36 percent of
average revenue for carriers with
multiple power units. As shown in
Table 17, the annual costs of Option 3
are 0.38 percent of average annual
revenue for sole proprietorships and
0.18 percent of average revenue for
carriers with multiple power units.
These percentages fall below what the
Agency views as a reasonable threshold
for a significant impact. However, as
mentioned above, the impact may vary
across carriers. Therefore, the annual
impact of the regulations on some
affected carriers may be significant in
relation to their revenue.
TABLE 16—ANNUAL IMPACT OF COSTS ON FIRMS OVER 10 YEARS FOR OPTION 2
Type of cost
Sole proprietorships
Annual Cost per Power Unit (One Time Costs Amortized Over 10 Years) (A) a ...................
Annual Revenue per Power Unit (B) b .....................................................................................
Annual Cost Impact as a Percentage of Annual Revenue (A/B) ............................................
a
b
Multiple power unit firms
$647
$85,239
0.76%
$711
$199,967
0.36%
FMCSA analysis.
FMCSA analysis of 2007 Economic Census data.
TABLE 17—ANNUAL IMPACT OF COSTS ON FIRMS OVER 10 YEARS FOR OPTION 3
Type of Cost
Sole proprietorships
Annual Cost per Power Unit (One Time Costs Amortized Over 10 Years) (A) a ...................
Annual Revenue per Power Unit (B) b .....................................................................................
Annual Cost Impact as a Percentage of Annual Revenue (A/B) ............................................
a
b
$359
$199,967
0.18%
FMCSA analysis.
FMCSA analysis of 2007 Economic Census data.
4. Discussion of the Impact on Affected
Small Entities
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$327
$85,239
0.38%
Multiple power unit firms
The analysis of the impact of the HOS
rule on small entities shows that, while
it is unlikely for the rule to have a
significant impact on most small
entities, FMCSA cannot certify that
there would be no significant impacts.
For a typical firm, the first year costs of
Options 2 and 3 are below 1 percent of
revenues, as are the average annual
costs when society spreads the costs
over 10 years.
However, projecting the distribution
of impacts across carriers, few of which
fit the definition of typical, is made
more difficult by the variability in both
costs and revenues. The new HOS rule
provisions are designed to rein in the
most extreme patterns of work while
leaving more moderate operations
largely unchanged. As a result, we
project a substantial majority of the
costs of the rule to fall on the sixth of
the industry currently logging the most
hours per week. Thus, most carriers are
likely to be almost unaffected, while a
minority would experience productivity
impacts—and hence costs—well above
the industry average.
Average revenues presumably range
widely as well, meaning that the ratio of
costs to revenues is difficult to
characterize. Because greater work
intensities are likely to generate greater
revenues, though, the impacts and
revenues per power unit are likely to be
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positively correlated: The carriers for
which productivity is curtailed the most
and which would incur the greatest
costs would, therefore, be likely to have
unusually large revenues per power unit
as well.
These heavily affected carriers would
still be likely to face costs that exceed
the threshold used to define significant
impacts. On the other hand, they could
also have unusually high rates of profit
in the baseline; because their drivers are
currently putting in the most hours of
work per week, they are able to spread
their fixed costs over more hours. In
other words, most of the impacts of the
new HOS rule are likely to fall on the
carriers with the greatest revenues and
profit potential in the industry. These
circumstances should reduce concern
that large numbers of small carriers
would experience significant impacts.
Another consideration in assessing
the seriousness of the rule’s impacts is
that the industry is now gaining strength
after an unusually deep recession. That
recession depressed demand for
transportation services. As the economy
recovers, demand for the motor carrier
industry is likely to recover as well,
meaning that the new HOS rule’s
impacts could be experienced more as
limitations on the potential growth in
revenues than absolute reductions.
In recognition of the fact that the rule
may significantly impact small entities,
FMCSA explored options for decreasing
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the burden on small entities. FMCSA
did not consider the option of
exempting small entities from this rule
because doing so would substantially
decrease the safety benefits of the rule
due to the large number of drivers
working for small entities. The rule
addresses fatigue of individual drivers,
which is not affected by the size of the
employer. Several provisions of the
proposed rule, including the restart
provision, the opportunity for 16-hour
driving windows, and the break
provisions, however, were designed to
afford maximum flexibility for drivers
who work close to the legal maximum
limits, thus reducing the productivity
impacts on carriers while still realizing
the safety benefits of the new rule.
FMCSA expects small carriers and
owner-operators to be among the main
beneficiaries of these provisions.
5. A Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the
Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will
Be Subject to the Requirement and the
Type of Professional Skills Necessary
for the Preparation of the Report or
Record
The proposed rule does not change
recordkeeping or reporting
requirements. Drivers are required, by
current rules, to keep records of duty
status that document their daily and
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weekly on-duty and driving time, and
submit these records of duty status to
their employing motor carrier on a biweekly basis. This rule would not
change or add to this recordkeeping
requirement for drivers or carriers.
Drivers in all segments of the industry,
including independent owner-operators,
are well accustomed to complying with
these recordkeeping and reporting
requirements, and no professional skill
over and above those skills that drivers
already possess would be necessary for
preparing these reports. All small
entities within the industry would be
subject to these rules. The type and
classes of these small entities are
described in the previous section of this
analysis.
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6. An Identification, to the Extent
Practicable, of All Relevant Federal
Rules Which May Duplicate, Overlap, or
Conflict with this Proposal
The Agency is unaware of any Federal
rules which may duplicate, overlap, or
conflict with the proposed rule.
7. A Description of Any Significant
Alternatives to the Proposed Rule
Which Minimize Any Significant
Impact on Small Entities
The Agency did not identify any
significant alternatives to the proposed
rule that could lessen the burden on
small entities without compromising its
goals. This rule is targeted at preventing
driver fatigue, and the Agency is
unaware of any alternative to restricting
driver work that the Agency has
authority to implement that would
address driver fatigue. This rule impacts
motor carrier productivity
proportionally to the number of drivers
a motor carrier employs and the
intensity of the schedules that motor
carrier’s drivers work. It is not obvious
that productivity losses would be
greater for small entities than for larger
firms. To the extent that drivers working
for a small entity work more intense
schedules, that entity may experience
greater productivity losses than a carrier
whose drivers work less intensely on a
daily and weekly basis. However, there
appears to be no alternative available to
the Agency that would limit driver
fatigue while allowing more work. To
improve public safety, all drivers,
regardless of the size of the carrier they
work for, must work within reasonable
limits.
The recordkeeping and reporting
burdens related to this rule would also
affect entities proportional to the
number of drivers they employ, and
therefore does not disproportionately
affect small motor carriers in any way.
As noted above, drivers in all segments
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of the industry, working for entities of
all sizes, are accustomed to compiling
and submitting records of duty status on
a regular basis. This rule would
therefore not place an undue
recordkeeping or reporting burden on
smaller entities. The Agency seeks
public comment on all aspects of this
Initial Regulatory Flexibility Analysis.
C. Paperwork Reduction Act
This proposed rule would call for no
new collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
D. National Environmental Policy Act
The Agency analyzed this NPRM for
the purpose of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental
procedures Order 5610.1, published
March 1, 2004 in the Federal Register
(69 FR 9680), that this action will not
have a significant impact on the
environment. FMCSA has also analyzed
this proposed rule under the Clean Air
Act, as amended (CAA) section 176(c),
(42 U.S.C. 7401 et seq.) and
implementing regulations promulgated
by the Environmental Protection
Agency. Approval of this action is
exempt from the CAA’s general
conformity requirement since it would
not result in any potential increase in
emissions that are above the general
conformity rule’s de minimis emission
threshold levels (40 CFR 93.153(c)(2)). A
copy of the Environment Assessment is
available in the docket.
E. Executive Order 13132 (Federalism)
A rule has implications for
Federalism under Executive Order
13132, Federalism, if it has a substantial
direct effect on State or local
governments and would either preempt
State law or impose a substantial direct
cost of compliance on them. This action
has been analyzed in accordance with
E.O. 13132. FMCSA has determined this
rule would not have a substantial direct
effect on States, nor would it limit the
policymaking discretion of States.
Nothing in this document preempts any
State law or regulation.
F. Privacy Impact Assessment
FMCSA conducted a Privacy
Threshold Analysis (PTA) for the
proposed rule on hours of service and
determined that it is not a privacysensitive rulemaking because the rule
will not require any collection,
maintenance, or dissemination of
Personally Identifiable Information (PII)
from or about members of the public.
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G. Executive Order 12630 (Taking of
Private Property)
This proposed rule would not effect a
taking of private property or otherwise
have taking implications under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights.
H. Executive Order 12988 (Civil Justice
Reform)
This proposed rule meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
I. Executive Order 13045 (Protection of
Children)
FMCSA analyzed this proposed rule
under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks. This rule would not create an
environmental risk to health or risk to
safety that might disproportionately
affect children.
J. Executive Order 13211 (Energy
Supply, Distribution, or Use)
FMCSA analyzed this proposed rule
under Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. FMCSA
determined that it is not a ‘‘significant
energy action’’ under that order. Though
it is a ‘‘significant regulatory action’’
under Executive Order 12866, it is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
K. Executive Order 12898
(Environmental Justice)
FMCSA evaluated the environmental
effects of this NPRM in accordance with
Executive Order 12898 and determined
that there are no environmental justice
issues associated with its provisions nor
any collective environmental impact
that could result from its promulgation.
Environmental justice issues would be
raised if there were ‘‘disproportionate’’
and ‘‘high and adverse impact’’ on
minority or low-income populations.
None of the alternatives analyzed in the
Agency’s EA, discussed under NEPA,
would result in high and adverse
environmental impacts.
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L. Unfunded Mandate Reform Act
The Unfunded Mandate Reform Act of
1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess effects of their
discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the net expenditure
by a State, local, or Tribal government,
in the aggregate, or by the private sector
of $140.3 million or more in any one
year. Though this rule would not result
in a net expenditure at this level, the
economic impacts of the proposed rule
have been analyzed in the RIA.
List of Subjects
49 CFR Part 385
Administrative practice and
procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety,
Reporting and recordkeeping
requirements.
49 CFR Part 386
Administrative practice and
procedure, Brokers, Freight forwarders,
Hazardous materials transportation,
Highway safety, Motor carriers, Motor
vehicle safety, Penalties.
§ 395.3(a)(1) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive without taking an off-duty
period of at least 10/11 consecutive hours
prior to driving (critical).
§ 395.3(a)(2) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive or be on duty after the end
of the 14th hour after coming on duty and
after the end of the 16th hour after coming
on duty on 2 days out of the previous 168
consecutive hours (critical).
§ 395.3(a)(3) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive more than 10/11 hours
(critical).
§ 395.3(a)(3) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive if more than 7 hours have
passed since the driver’s last off-duty or
sleeper-berth period of at least 30 minutes
(critical).
§ 395.3(a)(4) Requiring or permitting a
property-carrying commercial motor vehicle
driver to be on duty more than 13 hours
during a 14-hour or 16-hour driving window
(critical).
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49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 395
Highway safety, Motor carriers,
Reporting and recordkeeping
requirements.
In consideration of the foregoing,
FMCSA is proposing to amend 49 CFR
Chapter III, parts 385, 386, 390, and 395
as set forth below:
3. Amend Appendix C to part 385 as
follows:
a. Revise the entries for § 395.3(a)(1)
and § 395.3(a)(2);
b. Add two entries for § 395.3(a)(3)
and one entry for § 395.3(a)(4);
c. Remove the entries for § 395.3(c)(1),
§ 395.3(c)(2), and § 395.1(o).
Appendix C to Part 385—Regulations
Pertaining to Remedial Directives in
Part 385, Subpart J
PART 385—SAFETY FITNESS
PROCEDURES
1. The authority citation continues to
read as follows:
emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Authority: 49 U.S.C. 113, 504, 521(b),
5105(e), 5109, 13901–13905, 31133, 31135,
31136, 31137(a), 31144, 31148, and 31502;
Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub.
L. 104–88; Sec. 350, Pub. L. 107–87; and 49
CFR 1.73.
2. In Appendix B to part 385, amend
section VII, List of Acute and Critical
Violations, as follows:
a. Revise the entries for § 395.3(a)(1)
and § 395.3(a)(2);
b. Add two entries for § 395.3(a)(3)
and one entry for § 395.3(a)(4); and
c. Remove the entries for § 395.3(c)(1),
§ 395.3(c)(2), and § 395.1(o).
Appendix B to Part 385—Explanation
of Safety Rating Process
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§ 395.3(a)(1) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive without taking an off-duty
period of at least 10 consecutive hours prior
to driving.
§ 395.3(a)(2) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive or be on duty after the end
of the 14th hour after coming on duty and
after the end of the 16th hour after coming
on duty on 2 days out of the previous 168
consecutive hours.
§ 395.3(a)(3) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive more than 10/11 hours.
§ 395.3(a)(3) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive if more than 7 hours have
passed since the driver’s last off-duty or
sleeper-berth period of at least 30 minutes.
§ 395.3(a)(4) Requiring or permitting a
property-carrying commercial motor vehicle
driver to be on duty more than 13 hours
during a 14-hour or 16-hour driving window.
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*
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PART 386—RULES OF PRACTICE FOR
MOTOR CARRIER, INTERMODAL
EQUIPMENT PROVIDER, BROKER,
FREIGHT FORWARDER, AND
HAZARDOUS MATERIALS
PROCEEDINGS
4. The authority citation for part 386
continues to read as follows:
Authority: 49 U.S.C. 521, 5123, 13301,
13902, 14915, 31132–31133, 31136, 31144,
31151, 31502, 31504; Sec. 204, Pub. L. 104–
88, 109 Stat. 803, 941 (49 U.S.C. 701 note);
Sec. 217, Pub. L. 105–159, 113 Stat. 1748,
1767; and 49 CFR 1.73.
5. Amend Appendix B to part 386 by
adding a new paragraph (a)(6) to read as
follows:
Appendix B to Part 386—Penalty
Schedule; Violations and Maximum
Civil Penalties
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(a) * * *
(6) Egregious violations of driving-time
limits in 49 CFR part 395. A driver who
exceeds, and a motor carrier that requires or
permits a driver to exceed, by more than 3
hours the 10/11-hour driving-time limit in 49
CFR 395.3(a) or the 10-hour driving-time
limit in 49 CFR 395.5(a), as applicable, shall
be deemed to have committed an egregious
driving-time limit violation. In instances of
an egregious driving-time violation, the
Agency will consider the ‘‘gravity of the
violation,’’ for purposes of 49 U.S.C.
521(b)(2)(D), sufficient to warrant imposition
of penalties up to the maximum permitted by
law.
*
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*
*
PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
6. The authority citation for part 390
continues to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902,
31132, 31133, 31136, 31144, 31151, 31502,
31504; sec. 204, Pub. L. 104–88, 109 Stat.
803, 941 (49 U.S.C. 701 note); sec. 114, Pub.
L. 103–311, 108 Stat. 1673, 1677; sec. 212,
217, 229, Pub. L. 106–159, 113 Stat. 1748,
1766, 1767, 1773; sec. 4136, Pub. L. 109–59,
119 Stat. 1144, 1745 and 49 CFR 1.73.
7. Amend § 390.23, by revising
paragraph (c)(2) introductory text to
read as follows:
§ 390.23
Relief from regulations.
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(c) * * *
(2) The driver has had at least 34
consecutive hours off duty, including
two consecutive periods from midnight
to 6 a.m. when:
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PART 395—HOURS OF SERVICE OF
DRIVERS
8. The authority citation for part 395
continues to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902,
31133, 31136, 31502, 31504, and § 204, Pub.
L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701
note); Sec. 114, Pub. L. 103–311, 108 Stat.
1673, 1677; Sec. 217, Pub. L. 106–159, 113
Stat. 1748, 1767; and 49 CFR 1.73.
9. Amend § 395.1 as follows:
a. Revise paragraphs (b)(1), (d)(2), and
(e)(1)(iv), (e)(2) introductory text,
(e)(2)(v), (e)(2)(viii), (g)(1), and (g)(2)(ii);
b. Remove and reserve paragraph (o);
and
c. Remove paragraph (q).
§ 395.1
Scope of rules in this part.
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(b) * * *
(1) Adverse driving conditions. Except
as provided in paragraph (h)(2) of this
section, a driver who encounters
adverse driving conditions, as defined
in § 395.2, and cannot, because of those
conditions, safely complete the run
within the maximum driving time
permitted by §§ 395.3(a) or 395.5(a) may
drive and be permitted or required to
drive a commercial motor vehicle for
not more than 2 additional hours to
complete that run or to reach a place
offering safety for the occupants of the
commercial motor vehicle and security
for the commercial motor vehicle and its
cargo. However, that driver may not
drive or be permitted to drive—
(i) For more than 12 hours in the
aggregate following 10 consecutive
hours off duty for drivers of propertycarrying commercial motor vehicles;
(ii) After the end of the 14th or 16th
hour since coming on duty following 10
consecutive hours off duty for drivers of
property-carrying commercial motor
vehicles, pursuant to § 395.3(a)(2);
(iii) For more than 12 hours in the
aggregate following 8 consecutive hours
off duty for drivers of passengercarrying commercial motor vehicles; or
(iv) After he/she has been on duty 15
hours following 8 consecutive hours off
duty for drivers of passenger-carrying
commercial motor vehicles.
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(d) * * *
(2) In the case of specially trained
drivers of commercial motor vehicles
which are specially constructed to
service oil wells, on-duty time shall not
include waiting time at a natural gas or
oil well site. Such waiting time shall be
recorded as ‘‘off duty’’ for purposes of
§§ 395.8. 395.15, and 395.16, with
remarks or annotations to indicate the
specific off-duty periods that are waiting
time, or on a separate ‘‘waiting time’’
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line on the record of duty status to show
that off-duty time is also waiting time.
Waiting time shall not be included in
calculation of the 14- or 16-hour duty
period in § 395.3(a)(2). Specially trained
drivers of such commercial motor
vehicles are not eligible to use the
provisions of § 395.1(e)(1).
(e) * * *
(1) * * *
(iv)(A) A property-carrying
commercial motor vehicle driver does
not exceed 10/11 hours maximum
driving time following 10 consecutive
hours off duty; or
(B) A passenger-carrying commercial
motor vehicle driver does not exceed 10
hours maximum driving time following
8 consecutive hours off duty; and
*
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*
*
(2) Operators of property-carrying
commercial motor vehicles not requiring
a commercial driver’s license. Except as
provided in this paragraph, a driver is
exempt from the requirements of § 395.3
and § 395.8 and ineligible to use the
provisions of § 395.1(e)(1) and (g) if:
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(v) The driver does not drive more
than 10 hours following at least 10
consecutive hours off duty;
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(viii) Any period of 7 or 8 consecutive
days may end with the beginning of any
off-duty period of 34 or more
consecutive hours that includes two
consecutive periods from midnight to 6
a.m.; the beginning of an off-duty period
of 34 or more consecutive hours must be
at least 168 hours after the beginning of
the last such off-duty period.
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(g) * * *
(1) Property-carrying commercial
motor vehicle.—
(i) In General. A driver who operates
a property-carrying commercial motor
vehicle equipped with a sleeper berth,
as defined in §§ 395.2 and 393.76 of this
subchapter,
(A) Must, before driving, accumulate
(1) At least 10 consecutive hours off
duty;
(2) At least 10 consecutive hours of
sleeper-berth time;
(3) A combination of consecutive
sleeper-berth and off-duty time
amounting to at least 10 hours; or
(4) The equivalent of at least 10
consecutive hours off duty if the driver
does not comply with paragraph
(g)(1)(i)(A)(1), (2), or (3) of this section;
(B) May not drive more than 10/11
hours following one of the 10-hour offduty periods specified in paragraph
(g)(1)(i)(A)(1) through (4) of this section;
however, driving is permitted only if
7 hours or less have passed since the
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82197
driver’s last off-duty or sleeper-berth
period of at least 30 minutes; and
(C) May not be on duty for more than
the 13-hour period in § 395.3(a)(4) or
drive beyond the 14- or 16-hour driving
window in § 395.3(a)(2) after coming on
duty following one of the 10-hour offduty periods specified in paragraph
(g)(1)(i)(A)(1)–(4) of this section; and
(D) Must exclude from the calculation
of the 14- or 16-hour driving window in
§ 395.3(a)(2) any sleeper-berth period of
at least 8 but less than 10 consecutive
hours.
(ii) Specific requirements.—The
following rules apply in determining
compliance with paragraph (g)(1)(i) of
this section:
(A) The term ‘‘equivalent of at least 10
consecutive hours off duty’’ means a
period of
(1) At least 8 but less than 10
consecutive hours in a sleeper berth,
and
(2) A separate period of at least 2 but
less than 10 consecutive hours either in
the sleeper berth or off duty, or any
combination thereof.
(B) Calculation of the 10/11-hour
driving limit includes all driving time;
compliance must be re-calculated from
the end of the first of the two periods
used to comply with paragraph
(g)(1)(ii)(A) of this section.
(C) Calculation of the 14- or 16-hour
limit in § 395.3(a)(2) includes all time
except any sleeper-berth period of at
least 8 but less than 10 consecutive
hours and up to 2 hours riding in the
passenger seat of a property-carrying
vehicle moving on the highway
immediately before or after a period of
at least 8 but less than 10 consecutive
hours in the sleeper berth; compliance
must be re-calculated from the end of
the first of the two periods used to
comply with the requirements of
paragraph (g)(1)(ii)(A) of this section.
(2) * * *
(ii) The driving time in the period
immediately before and after each rest
period, when added together, does not
exceed 10/11 hours;
*
*
*
*
*
(o) [Reserved]
*
*
*
*
*
10. Amend § 395.2 by revising the
definition of ‘‘on duty time’’ to read as
follows:
§ 395.2
Definitions.
*
*
*
*
*
On-duty time means all time from the
time a driver begins to work or is
required to be in readiness to work until
the time the driver is relieved from work
and all responsibility for performing
work. On-duty time shall include:
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(1) All time at a plant, terminal,
facility, or other property of a motor
carrier or shipper, or on any public
property, waiting to be dispatched,
unless the driver has been relieved from
duty by the motor carrier;
(2) All time inspecting, servicing, or
conditioning any commercial motor
vehicle at any time;
(3) All driving time as defined in the
term driving time;
(4) All time in or on a commercial
motor vehicle, other than:
(i) Time spent resting in or on a
parked vehicle;
(ii) Time spent resting in a sleeper
berth; or
(iii) Up to 2 hours riding in the
passenger seat of a property-carrying
vehicle moving on the highway
immediately before or after a period of
at least 8 consecutive hours in the
sleeper berth;
(5) All time loading or unloading a
commercial motor vehicle, supervising,
or assisting in the loading or unloading,
attending a commercial motor vehicle
being loaded or unloaded, remaining in
readiness to operate the commercial
motor vehicle, or in giving or receiving
receipts for shipments loaded or
unloaded;
(6) All time repairing, obtaining
assistance, or remaining in attendance
upon a disabled commercial motor
vehicle;
(7) All time spent providing a breath
sample or urine specimen, including
travel time to and from the collection
site, to comply with the random,
reasonable suspicion, post-crash, or
follow-up testing required by part 382 of
this subchapter when directed by a
motor carrier;
(8) Performing any other work in the
capacity, employ, or service of, a motor
carrier; and
(9) Performing any compensated work
for a person who is not a motor carrier.
*
*
*
*
*
11. Revise § 395.3 to read as follows:
VerDate Mar<15>2010
03:52 Dec 29, 2010
Jkt 223001
§ 395.3 Maximum driving time for
property-carrying vehicles.
(a) Except as otherwise provided in
§ 395.1, no motor carrier shall permit or
require any driver used by it to drive a
property-carrying commercial motor
vehicle, nor shall any such driver drive
a property-carrying commercial motor
vehicle, regardless of the number of
motor carriers using the driver’s
services, unless the driver complies
with the following requirements:
(1) Start of work shift. A driver may
not drive without first taking 10
consecutive hours off duty;
(2) Driving window. (i) In General.—
A driver may drive only during a
driving window of 14 consecutive hours
after coming on duty following 10
consecutive hours off duty. The driver
may not drive after the end of the
driving window without first taking
10 consecutive hours off duty.
(ii) Exception.—A driver may drive
during a driving window of 16
consecutive hours after coming on duty
following 10 consecutive hours off duty
on no more than 2 days out of the
previous 168 consecutive hours. The
driver may not drive after the end of the
driving window without first taking 10
consecutive hours off duty.
(iii) Drivers who are on duty after the
end of the 14th hour after coming on
duty are deemed to have used a 16-hour
driving window.
(iv) Drivers must go off duty by the
end of the 14th or 16th consecutive hour
after coming on duty.
(3) Driving time and rest breaks. A
driver may drive a total of 10/11 hours
during the on-duty period specified in
paragraph (a)(4) of this section, but
driving is permitted only if 7 hours or
less have passed since the driver’s last
off-duty or sleeper-berth period of at
least 30 minutes.
(4) On-duty period. A driver may be
on duty no more than 13 hours during
the 14-hour or 16-hour driving window.
(b) No motor carrier shall permit or
require a driver of a property-carrying
PO 00000
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Sfmt 9990
commercial motor vehicle to drive, nor
shall any driver drive a propertycarrying commercial motor vehicle,
regardless of the number of motor
carriers using the driver’s services, for
any period after—
(1) Having been on duty 60 hours in
any period of 7 consecutive days if the
employing motor carrier does not
operate commercial motor vehicles
every day of the week; or
(2) Having been on duty 70 hours in
any period of 8 consecutive days if the
employing motor carrier operates
commercial motor vehicles every day of
the week.
(c)(1) Any period of 7 consecutive
days may end with the beginning of an
off-duty period of 34 or more
consecutive hours that includes two
consecutive periods from midnight to 6
a.m.; or
(2) Any period of 8 consecutive days
may end with the beginning of an offduty period of 34 or more consecutive
hours that includes two consecutive
periods from midnight to 6 a.m.
(d) A driver may not take an off-duty
period allowed by paragraph (c) of this
section to restart the calculation of 60
hours in 7 consecutive days or 70 hours
in 8 consecutive days until 168 or more
consecutive hours have passed since the
beginning of the last such off-duty
period. When a driver takes more than
one off-duty period of 34 or more
consecutive hours within a period of
168 consecutive hours, he or she must
indicate in the Remarks section of the
record of duty status which such offduty period is being used to restart the
calculation of 60 hours in 7 consecutive
days or 70 hours in 8 consecutive days.
Issued on: December 20, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010–32251 Filed 12–23–10; 11:15 am]
BILLING CODE P
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[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Proposed Rules]
[Pages 82170-82198]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32251]
[[Page 82169]]
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Part III
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 385, 386, 390, et al.
Hours of Service of Drivers; Proposed Rule
Federal Register / Vol. 75 , No. 249 / Wednesday, December 29, 2010 /
Proposed Rules
[[Page 82170]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, 390, and 395
[Docket No. FMCSA-2004-19608]
RIN 2126-AB26
Hours of Service of Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: To promote safety and to protect driver health, FMCSA proposes
to revise the regulations for hours of service for drivers of property-
carrying commercial motor vehicles (CMVs). To achieve these goals, the
proposed rule would provide flexibility for drivers to take breaks when
needed and would reduce safety and health risks associated with long
hours. The proposed rule would make seven changes from current
requirements. First, the proposed rule would limit drivers to either 10
or 11 hours of driving time following a period of at least 10
consecutive hours off duty; on the basis of all relevant
considerations, FMCSA currently favors a 10-hour limit, but its
ultimate decision will include a careful consideration of comments and
any additional data received. Second, it would limit the standard
``driving window'' to 14 hours, while allowing that number to be
extended to 16 hours twice a week. Third, actual duty time within the
driving window would be limited to 13 hours. Fourth, drivers would be
permitted to drive only if 7 hours or less have passed since their last
off-duty or sleeper-berth period of at least 30 minutes. Fifth, the 34-
hour restart would be retained, subject to certain limits: The restart
would have to include two periods between midnight and 6 a.m. and could
be started no sooner than 168 hours (7 days) after the beginning of the
previously designated restart. Sixth, the definition of ``on duty''
would be revised to allow some time spent in or on the CMV to be logged
as off duty. Seventh, the oilfield operations exception would be
revised to clarify the language on waiting time and to state that
waiting time would not be included in the calculation of the driving
window.
DATES: You may submit comments by February 28, 2011.
ADDRESSES: You may submit comments, identified by docket number FMCSA-
2004-19608 or RIN 2126-AB26, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Fax: 202-493-2251.
Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and
Carrier Operations Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590, (202) 366-4325.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Overview
III. Legal Basis
IV. Background
A. History
B. Process
C. Description of Industry
V. Agency Goals
A. Safety--Fatigue
B. Driver Health
CVD
C. Flexibility
VI. Discussion of Proposed Rule
A. Driving Time
B. Breaks
C. Duty Time/Driving Window
D. Restart and Weekly Limits
E. Sleeper Berth
F. Other Issues
VII. Section-by-Section Analysis
VIII. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
1. A Description of the Reasons why Action by the Agency Is
Being Considered
2. A Succinct Statement of the Objectives of, and Legal Basis
for, the Proposed Rule
3. A Description of and, where Feasible, an Estimate of the
Number of Affected Small Entities to which the Proposed Rule Will
Apply
4. Discussion of the Impact on Affected Small Entities
5. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Proposed Rule, Including an
Estimate of the Classes of Small Entities which will be Subject to
the Requirement and the Type of Professional Skills Necessary for
the Preparation of the Report or Record
6. An Identification, to the Extent Practicable, of all Relevant
Federal Rules which may Duplicate, Overlap, or Conflict with this
Proposal
7. A Description of any Significant Alternatives to the Proposed
Rule which Minimize any Significant Impact on Small Entities
C. Paperwork Reduction Act
D. National Environmental Policy Act
E. Executive Order 13132 (Federalism)
F. Privacy Impact Assessment
G. Executive Order 12630 (Taking of Private Property)
H. Executive Order 12988 (Civil Justice Reform)
I. Executive Order 13045 (Protection of Children)
J. Executive Order 13211 (Energy Supply, Distribution, or Use)
K. Executive Order 12898 (Environmental Justice)
L. Unfunded Mandate Reform Act
I. Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments, data, and related materials. All comments received
will be posted without change to https://www.regulations.gov and will
include any personal information you provide.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2004-19608), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission. However, see the Privacy Act section below regarding
availability of this information to the public.
To submit your comment online, go to https://www.regulations.gov and
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu, select
``Proposed Rules,'' insert ``FMCSA-2004-19608'' in the ``Keyword'' box,
and click ``Search.'' When the new screen appears, click on ``Submit a
Comment'' in the ``Actions'' column. If you submit your comments by
mail or hand delivery, submit them
[[Page 82171]]
in an unbound format, no larger than 8 \1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
All public comments, as well as documents mentioned in this notice,
are available in the public docket. To view them, go to https://www.regulations.gov and click on the ``read comments'' box in the upper
right hand side of the screen. Then, in the ``Keyword'' box insert
``FMCSA-2004-19608'' and click ``Search.'' Next, click the ``Open
Docket Folder'' in the ``Actions'' column. Finally, in the ``Title''
column, click on the document you would like to review. If you do not
have access to the Internet, you may view the docket online by visiting
the Docket Management Facility in Room W12-140 on the ground floor of
the Department of Transportation West Building, 1200 New Jersey Avenue,
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
C. Privacy Act
Anyone may search the electronic form of 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 Department of
Transportation's (DOT) Privacy Act Statement for the Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
II. Overview
Goals. The goal of this HOS proposed rule is to improve safety
while ensuring that the requirements would not have an adverse impact
on driver health. The proposed rule also would provide drivers with the
flexibility to obtain rest when they need it and to adjust their
schedules to account for unanticipated delays. FMCSA has also attempted
to make the proposed rule easy to understand and readily enforceable.
Admittedly, design of HOS rules raises conceptual and empirical
challenges. The impact of such rules on CMV safety is difficult to
separate from the many other factors that affect heavy-vehicle crashes.
The 2008 FMCSA final rule on HOS noted that ``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 [interim final rule]'' (73 FR 69567, 69572, November 19,
2008). While that statement remains correct, the total number of
crashes, though declining, is still unacceptably high. Moreover, the
source of the decline in crashes is unclear.
FMCSA believes that the HOS regulations proposed today, coupled
with the Agency's many other safety initiatives and assisted by the
actions of an increasingly safety-conscious motor carrier industry,
would result in a significant improvement in safety. We note as well
that the proposed rule is intended to protect drivers from the serious
health problems associated with excessively long work hours, without
significantly compromising their ability to do their jobs and earn a
living.
Summary of the Proposed Rule. The proposed rule would change the
existing HOS regulations in a number of ways. The required off-duty
period would remain at a minimum of 10 consecutive hours. Driving time
between two such periods could either be 10 hours, as it was prior to
the 2003 rule (68 FR 22455; April 28, 2003), or 11 hours. While the 10-
hour rule is currently FMCSA's currently preferred option, the Agency
discusses both alternatives in detail below. The driving window would
remain, on most days, at 14 consecutive hours after coming on duty
following a break of at least 10 hours; but a driver would be permitted
to be on duty for only 13 hours of that time as opposed to the current
14 hours. A driver would also be required to be released from duty at
the end of the 14-hour period. To provide drivers with the ability to
rest, if needed, or to respond to unanticipated conditions, twice a
week, drivers would be allowed to extend the driving window to 16
hours. Extending the driving window, however, would not increase either
driving or on-duty time. As a consequence of the 13-hour on-duty limit,
a driver using the extension would need to take up to 3 hours off duty
during that duty day. A driver would be required to go off duty at the
end of the 16-hour driving window.
To prevent excessive hours of continuous driving, the proposed rule
would permit drivers to drive only if 7 hours or less have passed since
the driver's last off-duty or sleeper-berth period of at least 30
minutes. For example, if a driver began driving immediately after
coming on duty, he or she could drive until the 7th hour. However,
because the required breaks would be linked to time on duty, a driver
who first worked 3 hours at a terminal and then began driving would
have to take a half-hour (or longer) break no later than the end of the
4th hour of driving (i.e., the 7th hour on duty). The proposed rule
would give drivers great flexibility in scheduling their breaks. If
someone began driving immediately after coming on duty and took an
early break between hours 2.5 and 3.0, he or she could drive 7
consecutive hours before reaching the 10-hour limit. If the 11-hour
driving-time limit was adopted, the early break would have to occur
between hours 3.5 and 4.0 to allow 7 consecutive hours of driving
before reaching the end of the 11th hour. Conversely, a driver could
drive until the 7th hour before taking the break, whether the daily
limit was 10 or 11 hours. Assuming that truckers do nothing but drive
(which is unrealistic) and want to minimize their breaks, they could
take the required half-hour break anywhere between hours 2.5 and 7 of a
10-hour driving period or between hours 3.5 and 7 of an 11-hour driving
period. Working beyond the 7th hour without a break is permitted,
however, as long as the driver does not actually drive a CMV after the
7th hour. In practice, a driver who took a half-hour break at 6 to 7
hours after coming on duty would not be required to take a second break
during the driving window of 14 hours.
The weekly limits in the current rule (60 hours on duty in 7 days
or 70 hours on duty in 8 days) would remain unchanged. The 34-hour
restart allowed under the current rule, which permits drivers to
restart the 60- or 70-hour ``clock'' by taking a break of at least 34
consecutive hours off duty, would be retained, but with certain
limitations. First, any restart would have to include two periods
between midnight and 6 a.m. Depending on when the restart begins, 34
consecutive hours off duty could satisfy this requirement. In other
instances, the restart period would have to be longer to incorporate
the two nights. The two-night requirement would have no impact on the
majority of drivers who regularly drive during the day. Drivers who
regularly drive at night would have to take longer restarts to obtain
two nights of sleep. Second, a driver would be allowed to begin another
34-hour off-duty period no sooner than 168 hours (7 days) after the
beginning of the previous restart.
[[Page 82172]]
Limiting the restart to once in 7 days effectively reduces the number
of hours a driver could be on duty and drive from an average of about
82 hours in 7 days under the current rule to an average of 70 hours.
Third, the driver would have to designate whether a period of 34 hours
or more off duty was to be considered a restart.
FMCSA is not proposing any changes to the sleeper-berth rule at
this time. Drivers using the current rule must take at least 8, but
less than 10, consecutive hours in the sleeper berth and a shorter
break of at least 2 hours off duty or in the sleeper berth (in lieu of
the standard 10 consecutive hours off duty). The shorter of the breaks
used under the sleeper berth rule is included in the calculation of the
driving window. The use of the sleeper berth rule, however, would be
affected by the other changes proposed. The driving window would be 14
to 16 hours long; duty time would be limited to 13 hours. A driver
using the 16-hour window could count the shorter period toward the 3
hours of breaks that the driver would have to take to reach 16 hours;
the shorter period, therefore, would not reduce the 13 hours of on-duty
time. When the driver uses the 14-hour window, the shorter break will
reduce the 13-hour on-duty time by at least 1 hour.
FMCSA proposes to change the definition of ``on duty'' to allow
team drivers to log as off duty up to 2 hours spent in the passenger
seat immediately before or after a period of 8 or more hours in the
sleeper berth while the other team member is driving. FMCSA is also
proposing additional language that would exclude time spent resting in
a non-moving CMV from the definition of ``on duty'' time.
Finally, FMCSA is proposing to make drivers and motor carriers
potentially liable for the maximum penalty available if they drive or
permit someone to drive 3 or more hours over the 10/11-hour driving-
time limit. This provision targets egregious violations of the driving-
time limits.
The Agency has attempted to structure these requirements to protect
safety and health while maintaining industry flexibility and minimizing
the impact on drivers working more reasonable schedules. Because the
drivers who work very extensive hours are a relatively small minority,
FMCSA does not anticipate that this rule would have significant adverse
impact on the industry. Since the drivers who work to the limits of the
current rule are those most likely to develop fatigue over the course
of the day and week, a reduction in their driving hours should lead to
reductions in fatigue-related crashes. Preventing these crashes and
reducing relative crash risk overall to improve safety is the principal
goal of the HOS regulations.
Although the Agency is primarily concerned with highway safety,
FMCSA anticipates an additional benefit from reducing allowable daily
and weekly work hours for the drivers with high-intensity schedules.
Recent research indicates that inadequate sleep is associated with
increases in mortality. This effect is believed to involve an increase
in the propensity for workplace (and leisure time) accidents and in
mortality due to an increase in the incidence of high blood pressure,
diabetes, cardiovascular disease, and other health problems; some of
these conditions could disqualify drivers for medical reasons. Since
increases in hours worked are associated with decreases in hours spent
sleeping, and truck drivers working high-intensity schedules get
significantly less than the 7 hours of sleep required for optimal
mortality, cutting back on such schedules should reduce, to some
extent, mortality among these drivers. These benefits should be counted
as outcomes of reductions in total work allowed to drivers.
Table 1--Summary of 10-Year Costs and Benefits for Proposed Rule
[Millions 2008$]
------------------------------------------------------------------------
Option 2 Option 3 Option 4
------------------------------------------------------------------------
7% Discount Rate:
Costs.............................. $7,246 $3,662 $16,213
Benefits........................... 9,913 7,562 13,232
Net Benefits....................... 2,667 3,900 (2,981)
3% Discount Rate:
Costs.............................. 8,748 4,394 19,639
Benefits........................... 12,040 9,184 16,071
Net Benefits....................... 3,292 4,789 (3,568)
------------------------------------------------------------------------
III. Legal Basis
This proposed rule is based on the authority of the Motor Carrier
Act of 1935 and the Motor Carrier Safety Act of 1984 (1984 Act). 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 proposed today 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 proposed rule rests on that authority.
The 1984 Act 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 have a deleterious
effect on the physical condition of the operators'' (49 U.S.C.
31136(a)). The United States Court of Appeals for the District of
Columbia Circuit (DC Circuit) has said with regard to 49 U.S.C.
31136(a)(4) that ``the statute
[[Page 82173]]
requires the agency to consider the impact of the rule on `the physical
condition of the operators,' not simply the impact of driver health on
commercial motor vehicle safety. * * * It is one thing to consider
whether an overworked driver is likely to drive less safely and
therefore cause accidents. Whether overwork and sleep deprivation have
deleterious effects on the physical health of the driver is quite
another.'' Public Citizen et al. v. FMCSA, 374 F.3d 1209, 1217 (DC
Circuit 2004). This proposal would improve both highway safety and the
health of CMV drivers.
This proposed rule is also based on the authority of the 1984 Act
and addresses the specific mandates of 49 U.S.C. 31136(a)(2), (3), and
(4). Section 31136(a)(1) mainly addresses the mechanical condition of
CMVs, a subject not included in this rulemaking. To the extent that the
phrase ``operated safely'' in paragraph (a)(1) encompasses safe
driving, this proposed 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 proposed rule.
IV. Background
A. History
For drivers of CMVs, HOS have been regulated since December 1937
when the Interstate Commerce Commission (ICC) promulgated the first
Federal HOS rules. The rules were revised significantly in 1938 and
1962. The 1938 revision limited drivers to 10 hours of driving in 24
hours with at least 8 hours off duty; drivers could be on duty 60 hours
in 7 days or 70 hours in 8 days. The 1962 revision dropped the 24-hour
requirement, effectively allowing drivers to drive 10 hours and take 8
hours off, then drive again. (See the May 2, 2000, notice of proposed
rulemaking (NPRM) for a detailed history of the provisions (65 FR
25540)).
The 2000 NPRM proposed a comprehensive revision of the HOS
regulations in response to the ICC Termination Act of 1995. The new
rules were to be science-based; the Agency collected relevant studies
and completed its own comprehensive Commercial Motor Vehicle Driver
Fatigue and Alertness Study, a joint undertaking with Canada and the
trucking industry. FMCSA assembled an expert panel of recognized
authorities on traffic safety, human factors, and fatigue to review the
science and evaluate regulatory alternatives. FMCSA conducted eight
nationwide public hearings on the NPRM and three 2-day public
roundtable discussions. On April 28, 2003, the Agency promulgated a
final rule (68 FR 22455).
The 2003 rule made significant changes in the rules for property-
carrying operations. Driving time was extended from 10 to 11 hours, but
the driving window was limited to 14 consecutive hours after coming on
duty (as opposed to the previous 15 cumulative on-duty hours). The
daily rest period was extended from 8 to 10 hours. The weekly limits
were unchanged, but drivers were allowed to restart the calculation of
weekly hours anytime they took an off-duty break of at least 34
consecutive hours (the 34-hour restart). Drivers using sleeper berths
were allowed to accumulate the equivalent of 10 consecutive hours off
in two periods, neither of which could be less than 2 hours. (See the
2003 final rule for a detailed discussion of the changes.)
On June 12, 2003, Public Citizen, Citizens for Reliable and Safe
Highways, and Parents Against Tired Truckers filed a petition to review
the 2003 HOS rules with the DC Circuit. On July 16, 2004, the DC
Circuit issued an opinion holding ``that the rule is arbitrary and
capricious [under the Administrative Procedure Act (APA)] because the
agency failed to consider the impact of the rules on the health of
drivers, a factor the agency must consider under its organic statute''
and vacated the rule (Public Citizen et al. v. FMCSA, 374 F.3d 1209, at
1216). Congress then directed that the 2003 regulations would remain in
effect until the effective date of a new final rule addressing the
issues raised by the Court or September 30, 2005, whichever occurred
first.\1\
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\1\ Section 7(f) of the Surface Transportation Extension Act of
2004, Part V, Public Law 180-310; 118 Stat. 1144.
---------------------------------------------------------------------------
On August 25, 2005, FMCSA published a final rule that addressed
driver health issues; it also retained the 11 hours of driving, 14-hour
driving window, 10 hours off duty, and the 34-hour restart (70 FR
49978). The rule revised the sleeper-berth provision to require at
least 8, but less than 10, consecutive hours in the sleeper berth,
providing drivers with the opportunity to obtain 7 to 8 hours of
uninterrupted sleep each day. Drivers using the sleeper berth exception
had to take an additional 2 hours either off duty or in the sleeper
berth, which is included in the calculation of the 14-hour driving
window. The 2005 rule also provided an exception for drivers who
operate within 150 air-miles of their work reporting location and who
drive CMVs that do not require a commercial driver's license (CDL) to
operate. To enable these short-haul carriers to meet unusual scheduling
demands, the driver could use a 16-hour driving window twice a week.
(See the 2005 final rule for a detailed discussion of the changes and a
discussion of driver health issues.)
Public Citizen and others challenged the 2005 rule on several
grounds, as did the Owner-Operator Independent Drivers Association
(OOIDA). On July 24, 2007, the DC Circuit rejected OOIDA's arguments,
which focused on the sleeper-berth provision, but accepted part of
Public Citizen's arguments. The DC Circuit concluded that FMCSA did not
satisfy the APA's requirements to explain its reasoning and provide an
opportunity for notice and comment on portions of the regulatory
evaluation; the Court, therefore, vacated the 11-hour driving-time and
34-hour restart provisions (OOIDA v. FMCSA, 494 F.3d 188 (DC Cir.
2007)).
FMCSA published an interim final rule (IFR) on December 17, 2007
(72 FR 71247), to prevent disruption of both enforcement and compliance
while the Agency responded to the issues identified by the Court. The
IFR re-promulgated both 11 hours of driving time and the 34-hour
restart. In response to the Court's findings, the preamble to the IFR
included a detailed explanation of the Agency's time-on-task
methodology (72 FR 71252 et seq.). On November 19, 2008, FMCSA
published the provisions of the IFR as a final rule (73 FR 69567).
On December 18, 2008, Advocates for Highway and Automotive Safety,
Public Citizen, the International Brotherhood of Teamsters, and the
Truck Safety Coalitions (HOS petitioners) petitioned FMCSA to
reconsider the research and crash data justifying the 11-hour driving
rule and the 34-hour restart provision. FMCSA denied the petition.\2\
On March 9, 2009, the HOS petitioners filed a petition for review of
the 2008 rule in the DC Circuit and, on August 27, 2009, filed their
opening brief. However, in October 2009, DOT, FMCSA, and the HOS
petitioners reached a settlement agreement.
---------------------------------------------------------------------------
\2\ January 16, 2009, docket FMCSA-2004-19608-3525.1.
---------------------------------------------------------------------------
Pursuant to the agreement, the petition for review is in abeyance
pending FMCSA's publication of this NPRM. After considering all the
comments, FMCSA must publish a final rule by July 26, 2011.
[[Page 82174]]
B. Process
As part of its process for considering revisions to the HOS rule,
FMCSA sought input and comments from its Motor Carrier Safety Advisory
Committee (MCSAC) and from the public, including carriers, drivers,
unions, safety advocacy groups, and others. The latter comments were
provided at five public listening sessions. In addition, the HOS docket
has been open and comments filed during this period have been reviewed.
MCSAC. MCSAC was established by the Secretary of Transportation on
September 8, 2006, and is charged with providing advice and
recommendations to the FMCSA Administrator on motor carrier safety
programs and regulations. In the fall of 2009, FMCSA asked its MCSAC to
identify ideas and concepts that the Agency should consider in
developing the HOS regulations. At the time, MCSAC membership was
comprised of 15 experts from the motor carrier industry, safety
advocates, and safety enforcement sectors.\3\ In addition, three
organizations (Public Citizen, the Teamsters, and the Truck Safety
Coalition) participated in the meetings as guests. MCSAC met in
December 2009 and February 2010 to discuss the regulations. On February
2, 2010, they forwarded a report to the Administrator. The full report
is available in the Docket (FMCSA-2004-19608-3867). The committee's
principles included the following:
---------------------------------------------------------------------------
\3\ Eight new members were added to the MCSAC on June 8, 2010.
Representatives of the Teamsters and the Truck Safety Coalition were
among the groups added to the MCSAC. See https://mcsac.fmcsa.dot.gov/members.htm.
---------------------------------------------------------------------------
The rule should be simple, enforceable, and compliance
should be measurable.
FMCSA should consider expert opinion, all available data,
and feedback from HOS listening sessions.
FMCSA should consider the appropriateness (implementation
vs. enforcement) of a one-size-fits-all approach.
Safety, not profit/productivity, should be considered
first and foremost.
A guiding principle should be how driver health relates to
the safety of the public.
FMCSA should consider total cost to industry.
In the short term, MCSAC recommended that FMCSA consider:
All available valid research on all impacts (e.g.,
health), including new research performed since the 2008 HOS rule.
Additionally, FMCSA should review studies that were not considered
under the previous rulemakings (e.g., shift work studies and
epidemiological research findings that are related to driver health and
HOS).
Each incremental hour on duty and its effect on driver
fatigue, beginning with the first hour. Determine whether there is a
fatigue breakpoint (a point in time after which performance declines).
Driving schedules in light of circadian rhythm research
and crash rates by time of day, while balancing the effects on the
general public.
Industry safety performance data under the current rule
(e.g., crash data, fatalities, injuries, compliance-related data,
exposure data).
Existing data on the total cost to society of all fatigue-
CMV crashes (not just fatal or injury crashes) (e.g., economic
paralysis of section of city/State to clear a CMV crash; medical care
for those seriously injured without insurance; lost productivity; fuel
costs; air pollution; costs to families of persons injured).
Current practices, research, and technologies within other
transportation modes and industries regarding fatigue. Consider
international approaches to HOS, including those of Canada, the
European Union (EU), Australia, and Japan. For example, EU requires
electronic logging devices with well-educated enforcement. Also, in
Canada, drivers may ``borrow'' driving time from the following day
while meeting a weekly average.
Allowing more flexibility with respect to rest breaks and
driving time, including, but not limited to, sleeper berth rest breaks.
Listening sessions. To solicit further information, FMCSA held five
public listening sessions in January and March 2009, in Washington, DC,
Dallas, TX, Los Angeles, CA, Davenport, IA, and Louisville, KY. The
Davenport session was held adjacent to a large truck stop and the
Louisville session was held at the Mid-America Trucking Show to
encourage participation by drivers. The sessions were webcast, and
comments were also submitted via toll-free telephone lines.
Approximately 300 individuals and organizations spoke at the sessions.
The majority of the speakers were drivers and carriers or associations
representing them; most of the drivers who spoke were in for-hire,
long-haul, truck-load (TL) operations.
In general, the carriers, drivers, and their associations supported
the existing rule with two exceptions. They supported maintaining 11
hours of driving time and the 34-hour restart. Carriers and their
associations stated that the 11 driving hours provided flexibility and
that some carriers had redesigned routes and schedules to use the full
11 hours; they believed that changing to a shorter period would be
costly. Drivers indicated that they use the restart frequently; when
away from home, they may take no more than 34 hours off; at home, the
restart is usually longer. Some drivers argued for a shorter restart
(24 hours or less).
Many, but not all, drivers objected to the 14-hour consecutive
period, saying that it forced them to drive when they were tired
because breaks were included in the calculation of the driving window.
They also said that the rule made it difficult to avoid congestion
because they had to drive during rush hours; under the pre-2003 rule,
they could have pulled off the road and waited until congestion eased
without reducing their available duty hours. Drivers sought more
flexibility. Specifically, they asked FMCSA to make the 14-hour period
cumulative (i.e., off-duty time would not be included in calculation of
the driving window) or allow the driving window to be extended to 16 or
18 hours. A few drivers supported the current 14-hour rule, stating
that it prevented carriers and brokers from forcing them to log waiting
time at shippers and receivers as off duty so they could work longer
days.
Many drivers and carriers objected to the existing sleeper berth
rule that allows 10 hours off duty to be taken in two periods, one of 8
to 10 hours and the other of 2 or more hours, with the shorter period
included in the calculation of the driving window. Team drivers in
particular wanted the flexibility to be able to divide their 8-hour
sleeper berth time into shorter periods (e.g., 4 + 4 hours, 5 + 3
hours, etc.). Drivers who spoke on this issue asked that the shorter
period not be included in the calculation of the duty period.
Representatives of the safety advocacy groups and the Teamsters
generally supported the 14-consecutive-hour provision, but opposed 11
hours of driving and the 34-hour restart because these provisions allow
long days of continuous work and work weeks up to 84 hours in 7 days.
They urged FMCSA to consider the body of research on the effects of
long hours on performance and health and to establish a 24-hour
circadian schedule.
Drivers also raised several issues that affect them, but are
outside of FMCSA's statutory authority. The number of available areas
where truck drivers can safely stop and rest, although never adequate,
has been reduced in the last few years as some States have closed rest
areas for budgetary reasons. Drivers stated that the lack of safe rest
areas
[[Page 82175]]
made it difficult for them to find a place to take their 10-hour off-
duty period. A number of drivers also stated that the current methods
of paying many drivers (by the mile or load) provide shippers with no
incentive to load or unload a truck promptly. Independent owner-
operators and smaller carriers complained that they could spend 30 to
40 hours of unpaid time a week waiting for shippers. Finally, drivers
stated that anti-idling laws adopted by some State and local
governments to reduce pollution can make it difficult to sleep because
they cannot run their air conditioning or heating. FMCSA acknowledges
these complaints; but, as explained in previous HOS rulemakings, the
Agency does not have the statutory authority to address these issues.
C. Description of Industry
The trucking industry comprises hundreds of thousands of carriers
and millions of drivers moving goods locally or in long hauls between
cities. The industry is diverse, and different sectors have different
operational characteristics. The industry can be divided in a number of
ways: Private versus for-hire; long-haul versus short-haul; TL versus
less than truckload (LTL). Private carriers are not trucking firms;
they are manufacturers, distributors, or retailers that move their own
goods among factories, distribution centers (warehouses), and retail
outlets. Their drivers generally operate on a regular basis over routes
set by the locations of their own facilities and those of their
customers. For-hire carriers are in the transport business; they move
goods for their customers. An LTL carrier usually picks up and delivers
small shipments in a local area served by one of its terminals.
Shipments are consolidated into loads for large trucks that make long
runs to the firm's terminals in other areas. Moves between terminals
are almost always overnight on regular routes. The goods moved
overnight are delivered the next day by the local drivers at the
destination terminal. The TL carriers typically pick up a full load
from a shipper and move it directly to the receiver of the goods. Some
of their business is regular and predictable under contracts or less-
formal agreements. Much of their business is almost random in nature,
movements from one place to another being sold and booked on a daily
basis. Drivers in random service may not know where they will be at the
end of each day. Their runs are often made by day, but many also
require night-time driving. Short-haul drivers operate within a local
area; most are not exclusively night-time drivers. Their routes may
vary day by day, but they are always in the same general area. They may
spend a good part of each day loading and unloading at multiple
locations. Although there are exceptions, most long-haul drivers do not
load or unload the cargo.
The various segments of the industry are affected differently by
HOS provisions. Many short-haul drivers, including unionized drivers
who mostly engage in local or LTL operations, operate well within all
of the provisions of the rule. LTL firms and many private carriers have
set their routes and terminals to stay within the HOS rule. Those who
are most affected are long-haul TL carriers. According to the 2007
Commodity Flow Survey, more than 95 percent of the tonnage moved by
private carriers is transported less than 250 miles and less than 1
percent is carried more than 500 miles; 500 miles is about the maximum
for a 1-day trip. About 12 percent of the tonnage moved by for-hire
carriers is transported more than 500 miles; only 4 percent is
transported 1,000 miles or more. Overall, 93 percent of the tonnage
moved solely by truck is transported in trips of 500 miles or less.\4\
This percentage may be rising because a number of the largest TL
carriers are shifting to intermodal operations, putting cargo on
intermodal trains for moves that require more than a day and making
all-truck moves only in regional operations.
---------------------------------------------------------------------------
\4\ Bureau of Transportation Statistics (RITA, DOT) and U.S.
Census Bureau, ``2007 Commodity Flow Survey,'' April 2010. FMCSA-
2004-19608-4024.
---------------------------------------------------------------------------
V. Agency Goals
FMCSA set three primary goals as it developed this proposed rule.
First, the rule provisions should improve safety by reducing driver
fatigue in a cost-effective, cost-justified manner. Second, the rule
should ensure that the requirements do not have an adverse effect on
driver health. Third, the rule should provide drivers with some
flexibility in their schedules to encourage them to take rest breaks
when they need them. This section discusses the general rationale for
these goals.
A. Safety--Fatigue
A fundamental purpose of the HOS regulations is to reduce crash
risk in order to improve safety, and as elaborated at length, the
Agency has concluded that the proposed rules will have significant
safety benefits. Ideally, the Agency would have data to measure crash
risk along all of the dimensions for which regulations are proposed.
Because the Agency has been not been able to gather such data, it has
based its analysis, in significant part, on share of crashes that are
fatigue-coded. The Agency recognizes that using share of crashes that
are fatigue-coded could have two possible problems:
a. Accident inspectors may be more likely to code crashes as
fatigue-related if the driver has been on the road longer.
b. The share of crashes that are coded as fatigue-related may
conceivably increase because the share of crashes caused by other
factors goes down. There could be no increase in the risk of a
fatigue-related crash (the central question), but an increase in the
share of fatigue-related crashes.
Nonetheless, while the data are not as complete as FMCSA would like
them to be, the Agency aimed to limit, to the extent possible, the
likelihood that drivers will be fatigued, either when they come on duty
or during or at the end of a working period. Fatigue affects
performance well before a person becomes sleepy. As a person becomes
fatigued, reaction times slow, concentration becomes more erratic, and
decision-making is slowed; all of which affect the ability of a driver
to respond quickly to a hazardous driving situation. Eventually fatigue
reaches a point where the person has trouble staying awake and may be
unable to avoid falling asleep.
The fatigue that this rule addresses is primarily that caused by
lack of adequate sleep (as opposed to physical fatigue caused by
strenuous activity). A regulation cannot compel a driver to sleep when
off duty. FMCSA can only ensure that the hours that a driver is allowed
to work in a day and a week do not interfere with the opportunity to
obtain adequate sleep if the driver works the maximum hours
permissible. The studies of restricted sleep show that over days of
mild, moderate, or severe sleep restriction (1) alertness and
performance degrade as cumulative sleep debt rises; (2) even mild sleep
restriction (loss of less than 1 hour of sleep a day) degrades
performance over days. Seven to 8 hours of consolidated night-time
sleep in each 24 hours appear to sustain performance over multiple
days, if not longer, for most people.\5\
---------------------------------------------------------------------------
\5\ Belenky, G., Wesensten, N.J., Thorne, D.R., Thomas, M.L.,
Sing, H.C., Redmond, D.P., Russo, M.B. & Balkin, T.J., ``Patterns of
Performance Degradation and Restoration During Sleep Restriction and
Subsequent Recovery: A Sleep Dose-Response Study,'' Journal of Sleep
Research, Vol. 12, No. 1, March 2003, pp. 1-12. FMCSA-2004-19608-
3959.
Van Dongen, H.P., Maislin, G., Mullington, J.M. & Dinges, D.F.,
``The Cumulative Cost of Additional Wakefulness: Dose-Response
Effects on Neurobehavioral Functions and Sleep Physiology from
Chronic Sleep Restriction and Total Sleep Deprivation,'' Sleep, Vol.
26, No. 2, March 15, 2003, pp. 117-126. FMCSA-2004-19608-3993.
---------------------------------------------------------------------------
[[Page 82176]]
Sleep deprivation is classified as acute or chronic. A person who
gets little or no sleep for 24 hours will suffer from acute sleep loss;
that person's cognitive ability at the end of the period of being awake
for 24 hours is significantly impaired. Research indicates that people
can recover completely from acute sleep loss with 1 or 2 nights of
adequate sleep (7-8 hours). A person who gets an hour or two less sleep
per night than needed develops chronic sleep deprivation. Over 5 days,
the person accumulates 5 to 10 hours of sleep debt. Sleep research
indicates that people who are chronically sleep deprived need at least
2 nights of adequate sleep to recover. Depending on the level of sleep
deprivation, individuals may stabilize at a lower level of performance
and believe they have recovered, but their performance will deteriorate
more rapidly across waking hours.\6\ Belenky, G., et al. (2003)
concluded that this stabilization makes it difficult to recover rapidly
to the same level of performance that existed prior to the sleep
deprivation even when a person is able to obtain adequate sleep. Van
Dongen, H.P., et al. (2003) found that chronic sleep restriction to 6
hours or less produced cognitive performance deficits equivalent to up
to 2 nights of total sleep deprivation.
---------------------------------------------------------------------------
\6\ Cohen, D. A., Wang, W., Wyatt, J. K., Kronauer, R. E., Dijk,
D.J., Czeisler, C. A. & Klerman, E. B., ``Uncovering Residual
Effects of Chronic Sleep Loss on Human Performance,'' Science
Translational Medicine, Vol. 2, Issue 14ra3, January 13, 2010.
FMCSA-2004-19608-4021 and 4021.1.
Balkin, T.J., Rupp, T., Picchioni, D. & Wesensten, N.J.,
``Sleep Loss and Sleepiness: Current Issues,'' CHEST, Vol. 134, No.
3, September 2008, pp. 653-660. FMCSA-2004-19608-3956. Belenky, G.,
et al. (2003).
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The central issue that FMCSA must consider in developing HOS
regulations involves the relative crash risk associated with each hour
of driving. It would be valuable, for example, to know the crash risk
in the ninth, tenth, and eleventh hours, and to compare that risk to
the risk in other hours. However, as noted above, FMCSA needs
additional data to estimate relative crash risk in each hour of driving
and hence has decided to consider, as a proxy, how many hours drivers
can consistently work over a period of time without becoming sleep-
deprived. There are two approaches to answering that question. The
Agency can examine data on fatigue-related crashes, and it can review
research that measures the amount of sleep that drivers are getting
under the existing rule and compare that to the science on sleep
deprivation.
As FMCSA discussed at length in previous HOS rulemakings, the
percentage of CMV crashes associated with fatigue is not known.
Estimates range from the 1.5 percent to 2.1 percent found in the Trucks
in Fatal Accident (TIFA) data \7\ to 13 percent in the Large Truck
Crash Causation Study (LTCCS) \8\ to even higher percentages mentioned
in other studies.\9\ Because fatigue is difficult to determine after
the fact, it is often not coded in crash reports, while, in some cases,
it may be coded even when the driver was not fatigued because the
driver's log showed long hours at work and investigators assumed
fatigue. It is generally believed, however, that fatigue-coding
understates the level of fatigue-related crashes. In 2008, large trucks
were involved in approximately 365,000 recorded crashes, 3,700 of which
involved fatalities, 64,000 involved injuries only, and 297,000 were
property-damage only.\10\ Even if fatigue is a contributing factor in
only a small percentage of crashes, it still has a profound safety
impact.
---------------------------------------------------------------------------
\7\ Jarossi, L., Matteson, A. & Woodrooffe, J., ``Trucks
Involved in Fatal Accidents Factbook 2007,'' 2010. FMCSA-2004-19608-
4007.
\8\ FMCSA, ``Large Truck Crash Causation Study Summary Tables,''
2007. Retrieved June 8, 2010, from: https://ai.fmcsa.dot.gov/ltccs/data/documents/SummaryTables.pdf. FMCSA-2004-19608-3971.
\9\ National Transportation Safety Board (NTSB) has studied
single-vehicle crashes and crashes in which the truck driver was
killed and estimated that 31 percent of fatal-to-driver accidents
may be fatigue-related.
\10\ FMCSA, ``Large Truck and Bus Crash Facts 2008,'' March
2010. Retrieved June 8, 2010, from: https://www.fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008LargeTruckandBusCrashFacts.aspx.
---------------------------------------------------------------------------
During the 2010 listening sessions, a number of the carriers and
their associations argued that the sharp decline in fatal crashes in
the past several years is proof that the long hours that may be worked
under the existing rule have not reduced safety and may have improved
it. The crash rates for CMVs have been declining since 1979; the rates
went up slightly in 2004 and 2005 before declining again. Neither the
slight increase after the adoption of the existing rule nor the decline
thereafter can be definitely associated with the HOS rule. Crashes have
multiple causes and the consequences of a crash are affected by many
factors--including speed, size of vehicles involved, roadway
conditions, and improved safety features in vehicles.
The percentage of fatigue-coded crashes in TIFA fluctuated between
1.5 percent and 2.1 percent between 1998 and 2007. The number of CMV
driver fatalities rose 14 percent between 2003 and 2007 (heavy truck
vehicle miles traveled rose only 4 percent), but declined sharply in
2008. (Driver fatalities occur more often in single vehicle crashes,
which are more likely to be associated with fatigue.) The decline in
2008, which the industry noted, also occurred in passenger-vehicle-only
crashes. In general, crashes decline in recessions, as they did in
1982-83, 1991-92, and 2001-02. The recent decline in crashes is
welcome; but it cannot be attributed to any single factor affecting
crashes, including implementation of the 2003 rule.
Because the crash data understate fatigue and because crashes often
have multiple causes, which make it difficult to determine the role of
fatigue even when it is suspected, FMCSA has to look at other research
to determine whether the rules require drivers to take enough off-duty
time to allow them to obtain sufficient sleep to avoid being fatigued.
As noted above, sleep research indicates that humans need between 7 and
8 hours a night to avoid sleep deprivation and accumulating sleep debt.
There are individual variations in sleep needs, but the Agency must
base its assessment of the regulation on the average driver, not the
outliers who need considerably less or more sleep to avoid fatigue. In
the Virginia Tech Transportation Institute (VTTI) naturalistic driving
study of CMV drivers operating under the 2003 rule, measured sleep
averaged 6.15 to 6.28 hours (the average includes both work days and
days off); the average on work days was 5.6 hours.\11\ These drivers
drove at night, which would have reduced their sleep, but they were not
working full 14-hour days (less than half of the work shifts identified
included driving in the 10th hour; a third did not include driving
beyond 8 hours).\12\
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\11\ The 6.15 hour average was derived from all days on which
data were collected (excluding vacations); the 6.28 hour average was
based on only weeks in which there was data for all 7 days.
\12\ Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L. &
Dingus, T.A., ``The Sleep of Commercial Vehicle Drivers Under the
2003 Hours-of-Service Regulations,'' Accident, Analysis and
Prevention, Vol. 39, No. 6, November 2007, pp. 1140-1145. FMCSA-
2004-19608-3977.
---------------------------------------------------------------------------
Two other surveys covered drivers after the implementation of the
2003 rule. Both asked drivers about the amount of sleep they obtain on
working days. Research indicates that self-reports of sleep
overestimate sleep by 20 to 60 minutes, particularly for sleep times
below 7 hours.\13\ Nonetheless the
[[Page 82177]]
results are consistent with the findings of other research. The Truck
Driver Fatigue Management Survey conducted for FMCSA collected data in
2005 from almost 2,300 unionized LTL drivers.\14\ About 60 percent of
the respondents drove at night; most respondents drove routes that
required fewer than 10 hours of driving and returned home daily. The
survey found similar levels of sleep (average 6.23 reported hours of
sleep prior to starting a run). The drivers reported an average 6.94
hours of sleep in 24 hours on working days, which means that drivers
estimated they were getting about 42 minutes of additional sleep during
the working day.
---------------------------------------------------------------------------
\13\ Lauderdale, D. S., Knutson, K. L., Yan, L.L., Liu, K. &
Rathouz, P.J., ``Sleep Duration: How Well Do Self-Reports Reflect
Objective Measures? The CARDIA Sleep Study,'' Epidemiology, Vol. 19,
No. 6, November 2008, pp. 838-845. FMCSA-2004-19608-4011.
\14\ Dinges, D.F. & Maislin, G., ``Truck Driver Fatigue
Management Survey,'' May 2006. FMCSA-2004-19608-3968.
---------------------------------------------------------------------------
The Bureau of Labor Statistics' (BLS) American Time Use Survey
(ATUS) has participants complete a daily log of time spent on various
activities for the same day of the week for 60 weeks. For example, a
participant will record time spent working, eating, exercising,
watching television, and checking e-mail every Monday for 60 weeks.\15\
A National Institute for Occupational Safety and Health (NIOSH)
analysis of ATUS data on truck drivers from the 2003 to 2006 surveys
found that while drivers reported an extra hour of sleep in 2004
compared to 2003, the amount of sleep reported had declined to close to
the 2003 level by 2006 and that sleep on working weekend days also
declined. The drivers who participated in the survey appear to be
mostly local drivers.\16\ The decline in sleep as work hours increase
is consistent with previous research on CMV drivers that has showed
sleep time is a function of the amount of off duty time available,
i.e., as off duty time increases so does average nightly sleep
time.\17\ Table 2 presents the reported sleep of drivers in the 2008
ATUS by hours worked.\18\
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\15\ Bureau of Labor Statistics, ``American Time Use Survey,
Census Code 9130, Drivers/Sales Workers and Truck Drivers.''
Accessed August 18, 2010 from: https://www.bls.gov/tus/. FMCSA-2004-
19608-4023.
\16\ Chen, G.X., Amandus, H. E. & Cezar, C., ``Do the Revised
Hours of Service Regulations Change Truck Driver Work and Sleep
Time?'' Chart from the 137th APHA Annual Meeting, November 7-11,
2009. FMCSA-2004-19608-3541.
\17\ Balkin, T., Thorne, D., Sing, H., Thomas, M., Redmond, D.,
Williams, J., Hall, S. & Belenky, G., ``Effects of Sleep Schedules
on Commercial Vehicle Driver Performance,'' 2000. FMCSA-2004-19608-
2007.
\18\ Data extracted from the Bureau of Labor Statistics,
``American Time Use Survey, Census Code 9130, Drivers/Sales Workers
and Truck Drivers,'' 2008. FMCSA-2004-19608-4023.
Table 2--Hours Slept by Hours Worked--2008 ATUS
------------------------------------------------------------------------
Number of Driver average
Hours worked driver hours slept
respondents per day
------------------------------------------------------------------------
6....................................... 67 8.17
7....................................... 61 7.85
8....................................... 48 7.70
9....................................... 40 7.53
10...................................... 32 7.33
11...................................... 18 7.34
12...................................... 10 6.56
------------------------------------------------------------------------
Although the sleep measured by VTTI, which provides the most
reliable data on sleep under the current rule, is better than many
drivers obtained under the pre-2003 rule, the weekly average (with 2
nights off) of slightly more than 6 hours a night is not enough sleep.
The Truck Driver Fatigue Management Survey indicated that fatigue
continues to be an issue for a substantial percentage of drivers. About
38 percent of the drivers said they sometimes and 6.7 percent said they
often had trouble staying awake while driving. About 13 percent
reported that they often or sometimes fell asleep while driving; 47.6
percent said they had fallen asleep while driving in the previous year.
Although only 23.4 percent said they often or sometimes felt fatigued
while driving, 65 percent reported that they often or sometimes felt
drowsy while driving. A third of the drivers reported that they became
fatigued on a half or more of their trips. The factor that most drivers
stated contributed to fatigue while driving was the amount of sleep
before the trip; weather and hours of driving were the next most
frequently cited factors.
Drivers at the listening sessions frequently stated that they know
when they are tired and, therefore, are the best judges of when they
need rest and how much. Research, however, indicates that people are
not good at assessing their own level of fatigue. In sleep research on
CMV drivers, self-assessments of fatigue and sleepiness show little if
any relationship to measured performance and sleepiness.\19\ People who
are chronically fatigued do not recognize performance impairment; some
do not even recognize sleepiness.\20\ Drivers appear to equate
tiredness with being sleepy, but performance is impaired well before a
driver becomes sleepy. Some drivers at the listening sessions noted
that they needed naps in the middle of their working day even though
they had a full 10-hour off-duty period prior to starting, which
indicates that they are not obtaining adequate sleep during the long
off-duty period. The importance of adequate sleep was shown in the VTTI
study, which found that in the 24 hours before a critical incident
(i.e., crashes, near crashes, and crash-relevant conflicts such as
unintended lane deviations), the average sleep was only 5.2 hours,
about 0.4 hours less than an average working day. FMCSA believes that
fatigue continues to be a problem for CMV drivers working the longest
hours. The 2003 rule, however, does not appear to have decreased the
daily hours worked, which may partly explain why drivers continue to
obtain inadequate sleep. The NIOSH analysis of ATUS data on truck
drivers, discussed above, found an increase in drivers working longer
hours since the 2003 rule became effective. FMCSA requests comments on
additional studies the Agency should consider in developing the final
HOS rules.
---------------------------------------------------------------------------
\19\ Balkin, T.J., et al. (2008); Van Dongen, H.P., et al.
(2003).
\20\ Balkin, T.J., et al. (2008); Van Dongen, H.P., et al.
(2003).
---------------------------------------------------------------------------
Ideally, if available, the Agency would use post-2003 data to
provide a before and after analysis of the 2003 change from a 10- to an
11- hour limit. It might compare States with different hours limits.
Under this approach, the Agency could use the probability of a crash in
each hour of driving, not the proportion of crashes that are fatigue-
related.
B. Driver Health
Adverse effects on driver health must be carefully considered in
the formulation of HOS regulations. Driving a CMV, particularly in
regional and long-haul operations, involves both long hours of work and
long hours of continuous sitting. A growing body of research across
industries (described in greater detail in the regulatory impact
analysis (RIA) available in the docket) indicates that long hours of
work are linked to sleep loss, which in turn is linked to obesity,
cardiovascular disease (CVD), diabetes, and a variety of other health
impacts.\21\ Long hours are also independently associated with
obesity.\22\ There is no simple linear relationship between the
``driver's life'' of long hours, protracted sitting, and moderate-to-
severe sleep deprivation and one or more health outcomes.
[[Page 82178]]
Rather this relationship must be viewed as a network of mutually
reinforcing effects that result in varying levels of risk for
particular outcomes such as CVD. Table 3 reflects current scientific
thinking on how this network of relationships acts on health:
---------------------------------------------------------------------------
\21\ Knutson, K.L., Spiegel, K., Penev, P. & Van Cauter, E.,
``The Metabolic Consequences of Sleep Deprivation,'' Sleep Medicine
Review, Vol. 11, No. 3, June 2007, pp.163-178. FMCSA-2004-19608-
4010.
\22\ Di Milia, L. & Mummery, K., ``The Association Between Job
Related Factors, Short Sleep and Obesity,'' Industrial Health, Vol.
47, 2009, pp. 363-368. FMCSA-2004-19608-3967.
Table 3: Health Habit and Risk Relationships
------------------------------------------------------------------------
------------------------------------------------------------------------
Long hours............................ [rarr] Insufficient sleep.
[rarr] Obesity.
[rarr] CVD.
------------------------------------------------------------------------
Insufficient sleep.................... [rarr] Obesity.
[rarr] High blood pressure.
[rarr] Diabetes.
------------------------------------------------------------------------
Sedentary pattern..................... [rarr] Obesity.
[rarr] Metabolism.
[rarr] Increased risk of
mortality.
------------------------------------------------------------------------
Obesity............................... [rarr] Obstructive sleep apnea.
[rarr] High blood pressure.
[rarr] CVD.