Hours of Service of Drivers, 82170-82198 [2010-32251]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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]



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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

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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.

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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

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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.

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.

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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 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$]
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                                          Option 2   Option 3   Option 4
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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)
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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

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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.

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.
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    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.
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    \2\ January 16, 2009, docket  FMCSA-2004-19608-3525.1.
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    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:
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    \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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     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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.