Hours of Service of Drivers, 33396-33452 [2020-11469]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Rules and Regulations]
[Pages 33396-33452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11469]



[[Page 33395]]

Vol. 85

Monday,

No. 105

June 1, 2020

Part III





 Department of Transportation





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 Federal Motor Carrier Safety Administration





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49 CFR Parts 385 and 395





Hours of Service of Drivers; Final Rule

Federal Register / Vol. 85, No. 105 / Monday, June 1, 2020 / Rules 
and Regulations

[[Page 33396]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385 and 395

[Docket No. FMCSA-2018-0248]
RIN 2126-AC19


Hours of Service of Drivers

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

ACTION: Final rule.

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SUMMARY: FMCSA revises the hours of service (HOS) regulations to 
provide greater flexibility for drivers subject to those rules without 
adversely affecting safety. The Agency expands the short-haul exception 
to 150 air-miles and allows a 14-hour work shift to take place as part 
of the exception; expands the driving window during adverse driving 
conditions by up to an additional 2 hours; requires a 30-minute break 
after 8 hours of driving time (instead of on-duty time) and allows an 
on-duty/not driving period to qualify as the required break; and 
modifies the sleeper berth exception to allow a driver to meet the 10-
hour minimum off-duty requirement by spending at least 7, rather than 
at least 8 hours of that period in the berth and a minimum off-duty 
period of at least 2 hours spent inside or outside of the berth, 
provided the two periods total at least 10 hours, and that neither 
qualifying period counts against the 14-hour driving window.

DATES: This final rule is effective September 29, 2020. Petitions for 
Reconsideration of this final rule must be submitted to the FMCSA 
Administrator no later than July 1, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Federal Motor 
Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, 
DC 20590-0001, (202) 366-4325, [email protected]. If you have questions 
about viewing material in the docket, contact Docket Operations, (202) 
366-9826.

SUPPLEMENTARY INFORMATION: 
    This final rule is organized as follows:

I. Availability of Rulemaking Documents
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Major Provisions of the Final Rule
    C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
    A. OOIDA Petition for Rulemaking
    B. TruckerNation Petition for Rulemaking
    C. Additional Petitions for Rulemaking
    D. 2018 ANPRM
    E. ANPRM Public Listening Sessions
    F. 2019 NPRM
VI. Stakeholder Engagement Following Publication of the NPRM
    A. Summary of the Motor Carrier Safety Advisory Committee 
Meeting
    B. Summary of Comments Presented at the NPRM Public Listening 
Sessions
    C. Summary of the Written Comments to the NPRM; FMCSA Responses 
to the Written Comments
VII. Discussion of the Rule
    A. Short-Haul Operations
    B. Adverse Driving Conditions
    C. 30-Minute Break
    D. Sleeper Berth
    E. Split-Duty Provision
    F. TruckerNation Petition
    G. Petitions for Rulemaking Submitted After the NPRM
    H. Compliance Date for the Rulemaking
VIII. International Impacts
IX. Section-by-Section Analysis
    A. Section 395.1 Scope of Rules in This Part
    B. Section 395.3 Maximum Driving Time for Property-Carrying 
Vehicles
X. Regulatory Analyses
    A. Executive Order (E.O.) 12866 (Regulatory Planning and 
Review), E.O. 13563 (Improving Regulation and Regulatory Review), 
and DOT Regulatory Policies and Procedures
    B. E.O. 13771 (Reducing Regulation and Controlling Regulatory 
Costs)
    C. Congressional Review Act
    D. Regulatory Flexibility Act
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. E.O. 13132 (Federalism)
    I. Privacy
    K. E.O. 13783 (Promoting Energy Independence and Economic 
Growth)
    L. E.O. 13175 (Indian Tribal Governments)
    M. National Technology Transfer and Advancement Act (Technical 
Standards)
    N. Environment (Clean Air Act, NEPA)

I. Availability of Rulemaking Documents

    For access to docket FMCSA-2018-0248 to read background documents 
and comments received, go to https://www.regulations.gov at any time, or 
to Docket Operations at U.S. Department of Transportation, Room W12-
140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting the Docket Operations

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    The implementation of the Electronic Logging Device (ELD) rule (80 
FR 78292, December 16, 2015) and ELDs' ability to increase compliance 
with HOS regulations for drivers of commercial motor vehicles (CMVs) 
prompted numerous requests for FMCSA to consider revising certain HOS 
provisions to provide greater flexibility. The Agency received requests 
from members of Congress and multiple stakeholders seeking relief from 
certain provisions. In response, FMCSA published an advance notice of 
proposed rulemaking (ANPRM) on August 23, 2018 (83 FR 42631) and held 
five public listening sessions. The Agency published a notice of 
proposed rulemaking (NPRM) on August 22, 2019 (84 FR 44190) and held 
two additional public listening sessions. This final rule revises the 
HOS regulations to provide greater flexibility for drivers subject to 
those rules without adversely affecting safety.

B. Summary of Major Provisions of the Final Rule

    This final rule will improve efficiency without compromising safety 
by providing flexibility for drivers in four areas without changing the 
maximum allowable driving time. The rule extends the maximum duty 
period allowed under the short-haul exception in 49 CFR 395.1(e)(1) 
from 12 hours to 14 hours. It also extends the maximum radius in which 
the short-haul exception applies from 100 to 150 air-miles. FMCSA 
modifies the definition of adverse driving conditions so that the 
adverse driving conditions exception may be applied based on the 
driver's (in addition to the dispatcher's) knowledge of the conditions 
after being dispatched, and extends the driving window during which the 
current exception for extended driving time may be used by up to 2 
hours for truck and bus operations under Sec. Sec.  395.3(a)(2) and 
395.5(a)(2), respectively. The Agency makes the 30-minute break 
requirement for drivers of property-carrying CMVs in Sec.  
395.3(a)(3)(ii) applicable only when a driver has driven (instead of 
having been on-duty) for a period of 8 hours without at least a 30-
minute non-driving interruption. The break may be satisfied by any non-
driving period of 30 minutes, i.e., on-duty, off-duty, or sleeper berth 
time. FMCSA also modifies the sleeper berth requirements to (1) allow 
drivers to take their required 10 hours off-duty in two periods, 
provided one off-duty period (whether in or out of the sleeper berth) 
is at least 2 hours long and the other involves at least 7 consecutive 
hours spent in the sleeper berth, and (2) add that neither period 
counts against the maximum 14-hour driving window in Sec.  395.3(a)(2).
    The Agency excludes from the final rule its proposal to allow a 
single off-duty period of up to 3 hours to be

[[Page 33397]]

excluded from the 14-hour driving window, for reasons explained later 
in the document.

C. Costs and Benefits

    This final rule will result in increased flexibility for drivers 
and a quantified reduction in costs for motor carriers. Federal and 
State governments will incur one-time training costs of approximately 
$8.6 million for training inspectors on the new requirements. The 
Federal Government also will incur a one-time electronic Record of Duty 
Status (eRODS) software update cost of approximately $20,000. The 
change to the 30-minute break requirement will result in a reduction in 
opportunity cost, or a cost savings, for motor carriers. FMCSA 
estimates the 10-year motor carrier cost attributable to the changes to 
the 30-minute break provision at -$2,814.3 million (or a cost savings 
of $2,814.3 million). As shown in Table 1, FMCSA estimates the total 
costs of this final rule at -$2,366.2 million (or $2,366.2 million in 
cost savings) discounted at 3 percent, and -$1,917.5 million (or 
$1,917.5 million in cost savings) discounted at 7 percent. Expressed on 
an annualized basis, this equates to -$277.4 million in costs (or 
$277.4 million in cost savings) at a 3 percent discount rate, and -
$273.0 million in costs (or $273.0 million in cost savings) at a 7 
percent discount rate. All values are in 2018 dollars.
    There are a number of other potential cost savings of this final 
rule that FMCSA considered but, due to uncertainty about driver 
behavior, could not quantify on an industry level. These non-quantified 
cost savings include increased flexibility resulting from the extension 
of the duty day and the air-mile radius for those operating under the 
short-haul exception; the increased options for drivers to respond to 
adverse driving conditions during the course of their duty period; 
reduced need to apply for exceptions from the 30-minute break 
requirement and for special eligibility for the short-haul exception; 
and increased flexibility afforded to drivers, such as increased 
options with regard to on-duty and off-duty time resulting from changes 
to the 30-minute break requirement and the sleeper berth provisions.
    None of the provisions in this final rule will increase the maximum 
allowable driving time, but may result in changes to the number of 
hours driven, or hours worked during a given work shift.\1\ The 
flexibilities in this final rule are intended to allow drivers to shift 
their drive and work time to mitigate the impacts of certain variables 
(e.g., weather, traffic, detention times, etc.) and to take breaks 
without penalty when they need rest. FMCSA does not anticipate that any 
of these time shifts will negatively impact drivers' health.
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    \1\ For example, with the newly revised short-haul provisions in 
this final rule, a driver can drive for up to 11 hours maximum in 
the shift, and be on-duty (not driving) for a maximum of at least 3 
more hours, and remain in compliance with the rule's short-haul 
exception provisions, assuming the driver returned to the normal 
work reporting location within 14 hours, and within a 150-air mile 
radius. By comparison, in the prior HOS short-haul exception 
regulations, a driver utilizing this exception was allowed to drive 
for up to 11 hours maximum in the shift, but had to return to the 
normal work reporting location within 12 (not 14) hours and 100 air 
miles--allowing only 1 other hour of on-duty (not driving) time.
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    FMCSA notes that drivers of property-carrying CMVs are still 
prohibited from driving more than 11 hours during a work shift (13 
hours under the adverse driving conditions exception) and driving is 
prohibited after an individual accumulates 14 hours of on-duty time (16 
hours under the adverse driving conditions exception). Because the rule 
provides greater flexibility for drivers to take breaks from the 
driving tasks and greater flexibility to obtain recuperative sleep, the 
rule will not have an adverse impact on drivers' health.
    As discussed later in this document and in the RIA for this final 
rule, FMCSA anticipates that individual drivers may see a change in 
their work hours (both driving and non-driving) or vehicle miles 
traveled (VMT), but this final rule will not result in an increase in 
freight movement or aggregate VMT. Aggregate VMT is determined by many 
factors, including market demand for transportation services. FMCSA 
does not anticipate that the changes in this final rule, which produce 
an annual cost savings to carriers of 0.03 percent of total trucking 
revenues of nearly $800 billion in 2018, are sufficient to stimulate 
demand in the freight market, but acknowledges that freight loads may 
shift from one carrier or driver to another. After consideration of the 
potential impacts, FMCSA has determined that this final rule will not 
adversely affect driver fatigue levels or safety. Table 2 summarizes 
the changes in this rule.

                                              Table 1--Total 10-Year and Annualized Costs of the Final Rule
                                                                 [In millions of 2018$]
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                                                                      Federal  and     Cost due to
                                                                          state      changes in  30-    Total costs--      Total costs--   Total costs--
                                Year                                   government       min break        undiscounted       (7 percent      (3 percent
                                                                          cost          provision                         discount rate)  discount rate)
                                                                                  A               B          C = A + B
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2020...............................................................            $8.6         ($98.3)            ($89.7)           ($83.8)         ($87.1)
2021...............................................................             0.0         (296.1)            (296.1)           (258.6)         (279.1)
2022...............................................................             0.0         (297.5)            (297.5)           (242.9)         (272.3)
2023...............................................................             0.0         (298.9)            (298.9)           (228.0)         (265.6)
2024...............................................................             0.0         (300.3)            (300.3)           (214.1)         (259.1)
2025...............................................................             0.0         (301.8)            (301.8)           (201.1)         (252.7)
2026...............................................................             0.0         (303.2)            (303.2)           (188.8)         (246.5)
2027...............................................................             0.0         (304.6)            (304.6)           (177.3)         (240.5)
2028...............................................................             0.0         (306.1)            (306.1)           (166.5)         (234.6)
2029...............................................................             0.0         (307.5)            (307.5)           (156.3)         (228.8)
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    Total 10-Year Costs............................................  ..............  ..............  ...................       (1,917.5)       (2,366.2)
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    Total Annualized Costs.........................................  ..............  ..............  ...................         (273.0)         (277.4)
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(a) Values shown in parentheses are negative values (i.e., less than zero) and represent a decrease in cost or a cost savings.


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                                          Table 2--Revised Requirements
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           HOS provision              Existing requirement     Revised requirement             Impacts
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Short-Haul.........................  Drivers using the       Extends the maximum     Increases the number of
                                      short-haul (100 air-    duty period allowed     drivers able to take
                                      mile radius)            under the short-haul    advantage of the short-
                                      exception may not be    exception from 12       haul (150 air-mile)
                                      on-duty more than 12    hours to 14 hours.      exception.
                                      hours.
                                     Drivers using the       Extends the maximum     Potentially shifts work and
                                      short-haul (150 air-    radius of the short-    drive time from long-haul
                                      mile radius)            haul exception from     to short-haul exception,
                                      exception applicable    100 to 150 air-miles.   or from driver to driver.
                                      to drivers not                                 Minimum or no change to
                                      requiring a CDL may                             hours driven or aggregate
                                      not drive beyond the                            VMT.
                                      14th or 16th hour on-
                                      duty, depending upon
                                      the number of days on
                                      duty.
Adverse Driving Conditions.........  A driver may drive and  Allows a driver to      Increases the use of the
                                      be permitted or         extend the maximum      adverse driving condition
                                      required to drive a     ``driving window'' by   provision.
                                      CMV for not more than   up to 2 hours during   Allows driving later in the
                                      2 additional hours      adverse driving         workday, potentially
                                      beyond the maximum      conditions. This        shifting forward the hours
                                      time allowed.           change applies both     driven and VMT travelled.
                                      However, this does      to drivers of          Allows drivers time to park
                                      not currently extend    property-carrying       and wait out the adverse
                                      the maximum ``driving   CMVs (14-hour           driving condition or to
                                      windows.''.             ``driving window'')     drive slowly through it.
                                                              and passenger-          This has the potential to
                                                              carrying CMVs (15-      decrease crash risk
                                                              hour ``driving          relative to current
                                                              window'').              requirements, assuming
                                                                                      drivers now drive through
                                                                                      adverse driving
                                                                                      conditions.
                                                                                     No increase in freight
                                                                                      volume or aggregate VMT.
30-minute break....................  If more than 8          Requires a 30-minute    Increases the on-duty/non-
                                      consecutive hours       break only when a       driving time by up-to 30
                                      have passed since the   driver has driven for   minutes, or allow drivers
                                      last off-duty (or       a period of 8 hours     to reach their destination
                                      sleeper berth) period   without at least a 30-  earlier.
                                      of at least half an     minute interruption.   No anticipated fatigue
                                      hour, a driver must     If required, the        effect because drivers
                                      take an off-duty        break may be            continue to be constrained
                                      break of at least 30    satisfied by any non-   by the 11-hour driving
                                      minutes before          driving period of 30    limit and would continue
                                      driving.                minutes, i.e. on-       to receive on-duty/non-
                                                              duty, off-duty, or      driving breaks from the
                                                              sleeper berth time.     driving task.
                                                                                     Minimal or no change to
                                                                                      hours driven or VMT, as
                                                                                      the current off-duty break
                                                                                      only impacts these factors
                                                                                      if the schedule required
                                                                                      driving late within the 14-
                                                                                      hour driving window.
Split-Sleeper berth................  A driver can use the    Modifies the sleeper    Allow one hour to be
                                      sleeper berth to get    berth requirements to   shifted from the longer
                                      the ``equivalent of     allow drivers to take   rest period to the shorter
                                      at least 10             their required 10       rest period.
                                      consecutive hours off-  hours off-duty in two  Potentially increase the
                                      duty.'' To do this,     periods, provided one   use of sleeper berths
                                      the driver must spend   off-duty period         because drivers using a
                                      at least 8              (whether in or out of   berth have additional
                                      consecutive hours       the sleeper berth) is   hours to complete 11 hours
                                      (but less than 10       at least 2 hours long   of driving (by virtue of
                                      consecutive hours) in   and the other           excluding the shorter rest
                                      the sleeper berth.      involves at least 7     period from the
                                      This rest period does   consecutive hours       calculation of the 14-hour
                                      not count as part of    spent in the sleeper    driving window).
                                      the 14-hour limit. A    berth. Neither period  No anticipated negative
                                      second, separate rest   counts against the      effect on fatigue because
                                      period must be at       maximum 14-hour         aggregate drive limits and
                                      least 2 (but less       driving window.         off-duty time remains
                                      than 10) consecutive                            unchanged.
                                      hours long. This                               Hours driven or VMT may
                                      period may be spent                             change for an individual
                                      in the sleeper berth,                           driver on a given work
                                      off-duty, or sleeper                            shift (by increased use of
                                      berth and off-duty                              the sleeper berth). Total
                                      combined. It does                               hours driven or aggregate
                                      count as part of the                            VMT would remain the same.
                                      maximum 14-hour
                                      driving window.
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III. Abbreviations and Acronyms

1935 Act The Motor Carrier Act of 1935
1984 Act The Motor Carrier Safety Act of 1984
AASM The American Academy of Sleep Medicine
ABA American Bus Association
ACPA American Concrete Pumping Association
Advocates Advocates for Highway and Auto Safety
ANPRM Advance notice of proposed rulemaking
ATA American Trucking Associations, Inc.
BLS Bureau of Labor Statistics
CAA Clean Air Act
CFR Code of Federal Regulations
CMV Commercial motor vehicle
CRA Congressional Review Act
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
ELD Electronic logging device
E.O. Executive Order
eRODS Electronic record of duty status
FAA Federal Aviation Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
FRA Federal Railroad Administration
HOS Hours of service
IIHS Insurance Institute for Highway Safety
IBT International Brotherhood of Teamsters
IRFA Initial Regulatory Flexibility Analysis
LTL less-than-truckload
MCSAC Motor Carrier Safety Advisory Committee
MCMIS Motor Carrier Management Information System

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NAPA The National Asphalt Pavement Association
National Academies National Academies of Sciences, Engineering, and 
Medicine
ND Naturalistic Driving
NEPA National Environmental Policy Act
NPPC National Pork Producers Council
NPRM Notice of proposed rulemaking
NSC The National Safety Council
NTSB National Transportation Safety Board
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
RODS Record of duty status
RFA Regulatory Flexibility Act
SBA The Small Business Administration
SCE Safety critical event
Sec.  Section
Secretary Secretary of Transportation
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
TIA Transportation Intermediaries Association
The Coalition National Coalition on Truck Parking
TL truckload
TRB Transportation Research Board
TruckerNation TruckerNation.org
TSC Truck Safety Coalition
UDA United Drivers Association
USDOT The U.S. Department of Transportation
U.S.C. United States Code
USTA United States Transportation Alliance
VMT vehicle miles traveled
VTTI Virginia Tech Transportation Institute

IV. Legal Basis for the Rulemaking

    This final rule is based on the authority derived from the Motor 
Carrier Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 
(1984 Act). The 1935 Act, as amended, 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.'' (49 
U.S.C. 31502(b)(1), (2)).
    The HOS regulations below concern the ``maximum hours of service of 
employees'' of both motor carriers and motor private carriers, as 
authorized by the 1935 Act.
    This rule also is based on the authority of the 1984 Act, as 
amended, which provides broad concurrent authority to regulate drivers, 
motor carriers, and vehicle equipment. It requires the Secretary of 
Transportation (Secretary) to ``prescribe regulations on commercial 
motor vehicle safety. The regulations shall prescribe minimum safety 
standards for commercial motor vehicles.'' The 1984 Act also requires 
that: ``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 . . .; (4) the 
operation of commercial motor vehicles does not have a deleterious 
effect on the physical condition of the operators; and (5) an operator 
of a commercial motor vehicle is not coerced by a motor carrier, 
shipper, receiver, or transportation intermediary to operate a 
commercial motor vehicle in violation of a regulation promulgated under 
this section . . .''. (49 U.S.C. 31136(a)(1)-(5)).
    This rule is based specifically on section 31136(a)(2) and, less 
directly, sections 31136(a)(3) and (4). To the extent section 
31136(a)(1) focuses on the mechanical condition of CMVs, that subject 
is not included in this rulemaking. However, as the phrase ``operated 
safely'' in paragraph (a)(1) encompasses safe driving practices, this 
final rule also addresses that mandate. To the extent section 
31136(a)(4) focuses on the health of the driver, the Agency addresses 
that issue below. As for section 31136(a)(5), FMCSA anticipates that 
because the rule makes the HOS regulations more flexible, the rule will 
not increase the risk that drivers will be coerced to operate a 
commercial motor vehicle in violation of the regulations.
    Before prescribing regulations under these authorities, FMCSA must 
consider their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 
31502(d)). Those factors are addressed below.

V. Background

    For an extended discussion of the history of the HOS regulations, 
please see the NPRM (84 FR 44190, at 44193-44196, August 22, 2019). 
Following implementation of the ELD rule and increased accuracy in HOS 
tracking, FMCSA received feedback from members of Congress and other 
interested parties expressing the need for additional flexibility for 
drivers under the HOS rules.

A. OOIDA Petition for Rulemaking

    On February 13, 2018, the Owner-Operator Independent Drivers 
Association (OOIDA) petitioned FMCSA to amend the HOS rules to allow 
drivers to take an off-duty rest break for up to 3 consecutive hours 
once per 14-hour driving window. OOIDA requested that the rest break 
stop the 14-hour clock and extend the latest time a driver could drive 
after coming on-duty.\2\ However, drivers would still be limited to 11 
hours of driving time and required to have at least 10 consecutive 
hours off-duty before the start of the next work shift.
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    \2\ Available at https://www.regulations.gov/document?D=FMCSA-2018-0248-1210.
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    OOIDA's petition also included a request that the Agency eliminate 
the 30-minute break requirement. The organization explained that there 
are many operational situations where the 30-minute break requires 
drivers to stop when they do not feel tired.

B. TruckerNation Petition for Rulemaking

    On May 10, 2018, TruckerNation petitioned the Agency to revise the 
prohibition against driving after the 14th hour following the beginning 
of the work shift.\3\ As an alternative, the organization requested 
that the Agency prohibit driving after the driver has accumulated 14-
hours of on-duty time.
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    \3\ Available at https://www.regulations.gov/document?D=FMCSA-2018-0248-0003.
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    In addition, TruckerNation requested that FMCSA allow drivers to 
use multiple off-duty periods of 3 hours or longer in lieu of having 10 
consecutive hours off-duty and eliminate the 30-minute break 
requirement.

C. Additional Petitions for Rulemaking

    Two additional petitions for rulemaking were received: One from the 
United States Transportation Alliance (USTA) and one from the United 
Drivers Association (UDA).\4\ The petitions were not discussed in the 
ANPRM due to the timing of receipt; however, they were reviewed and 
considered in the development of the NPRM.
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    \4\ Available at https://www.regulations.gov/document?D=FMCSA-2018-0248-2550 and https://www.regulations.gov/document?D=FMCSA-2018-0248-0342.
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    The USTA petition proposed an HOS rule that would prohibit driving 
after 80 hours on-duty in a work week (instead of the current limits in 
Sec. Sec.  395.3(b) and 395.5(b)), and allow a 14-hour day for driving 
or other work duties. Drivers' remaining 10 hours would include 2 hours 
of off-duty time, and 8 hours of sleeper berth time that could be split 
into two segments, with a minimum of 2 hours per segment. The 80-hour 
clock would be reset by 24 hours off-duty. The petition is included in 
the docket referenced at the beginning of this notice.
    The UDA proposal maintained the 14/10 HOS rule; however, the 10 
hours off-duty could be split into two 5-hour sleeper berth periods. 
The weekly on-

[[Page 33400]]

duty time, after which driving would be prohibited, would be 80 hours 
in an 8-day period, with a 24-hour restart, similar to that proposed by 
USTA. The petition is included in the docket referenced at the 
beginning of this notice.

D. 2018 ANPRM

    The August 23, 2018, ANPRM (83 FR 42631) requested public comment 
on four areas pertaining to the HOS rules: Short-haul operations, the 
adverse driving conditions exception, the 30-minute break requirement, 
and the sleeper berth provision. The ANPRM also sought public comment 
on two petitions for rulemaking relating to the HOS rules, one from 
OOIDA and one from TruckerNation.

E. ANPRM Public Listening Sessions

    FMCSA held a series of public listening sessions following the 
release of the ANPRM. These were held in Dallas, Texas, on August 24, 
2018; Reno, Nevada, on September 24, 2018; Joplin, Missouri, on 
September 28, 2018; Orlando, Florida, on October 2, 2018; and 
Washington, DC, on October 10, 2018.\5\ Transcripts of those listening 
sessions are available in the public docket for the rulemaking, and are 
available to stream at https://www.fmcsa.dot.gov/mission/policy/public-listening-sessions-hours-service.
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    \5\ Listening sessions were announced in the Federal Register at 
83 FR 42631, August 23, 2018; 83 FR 45204, September 6, 2018; 83 FR 
47589, September 20, 2018; 83 FR 48787, September 27, 2018, and 83 
FR 50055, October 4, 2018. The listening session scheduled for 
September 14, 2018 in Washington, DC was canceled and rescheduled.
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F. 2019 NPRM

    FMCSA published an NPRM on August 22, 2019 (84 FR 44190). This NPRM 
requested comment on five topics: (1) Altering the short-haul exception 
to the record of duty status (RODS) requirement available to certain 
CMV drivers, (2) modifying the adverse driving conditions exception, 
(3) increasing flexibility for the 30-minute break rule by requiring a 
break after 8 hours of driving time (instead of on-duty time) and 
allowing on-duty/not driving periods to qualify as breaks, (4) 
modifying the sleeper berth exception to allow a driver to spend a 
minimum of 7 hours in the berth combined with a minimum 2-hour off-duty 
period, provided the combined periods total 10 hours and allowing 
neither period to count against the maximum 14-hour driving window, and 
(5) allowing one off-duty break that would pause a truck driver's 14-
hour driving window.
    The Agency held two public listening sessions with the first being 
conducted at the Great American Truck Show on August 23, 2019, in 
Dallas, Texas. The second listening session was held at the United 
States Department of Transportation (DOT) in Washington, DC on 
September 17, 2019.\6\ Transcripts of those listening sessions are 
available in the public docket for the rulemaking.
---------------------------------------------------------------------------

    \6\ Listening sessions were announced in the Federal Register at 
84 FR 43097, August 20, 2019, and 84 FR 45940, September 3, 2019.
---------------------------------------------------------------------------

VI. Stakeholder Engagement Following Publication of the NPRM

A. Summary of the Motor Carrier Safety Advisory Committee Meeting

    On August 28, 2019, FMCSA announced that a public meeting of the 
Motor Carrier Safety Advisory Committee (MCSAC) would be held on 
September 30, 2019, and October 1, 2019 (84 FR 45201). As part of the 
Agency's efforts to engage its stakeholders and State partners in a 
conversational setting rather than waiting until the end of the public 
comment period and relying solely on submissions to the rulemaking 
docket, the MCSAC was asked to review the NPRM and provide feedback to 
the Agency. The process involved deliberations among the MCSAC members 
with Agency representatives present to answer questions about the 
contents of the NPRM and regulatory impact analysis.
    In its report issued on October 15, 2019, https://www.fmcsa.dot.gov/advisory-committees/mcsac/task-19-1-hos-report, the 
MCSAC stated that it would need more information to understand the 
potential impacts of the proposed changes. Additionally, the MCSAC 
expressed concern that the rulemaking may not provide quantitative 
improvements to safety, although the NPRM's preamble indicated the 
rulemaking would increase flexibility without reducing safety. The 
MCSAC discussed the history of certain hours-of-service (HOS) 
provisions to understand the Agency's rationale for the current 
requirements and the reasons for proposing changes, highlighting the 
need to consider data and information presented by commenters to the 
rulemaking docket before making any final decisions about changes to 
the HOS rules. The MCSAC considered potential enforcement challenges 
associated with the proposed changes, including discussions that the 
use of the increased flexibility should be at the driver's discretion. 
The MCSAC also stated that drivers may be pressured by shippers/
receivers to use the flexibility to go into an off-duty status rather 
than addressing detention time issues. Finally, there was concern that 
the Agency should not provide additional HOS flexibility to high-risk 
carriers with demonstrated safety performance problems and difficulty 
achieving compliance with the current HOS rules.
    In keeping with the intent of its task to the MCSAC, the Agency did 
not attempt to influence the committee's deliberations or express views 
concerning the MCSAC's report as it was being drafted by the committee 
during the public meeting. The Agency used the opportunity to hear the 
initial reactions of a cross section of stakeholders and State partners 
to the HOS proposals in anticipation of the formal written comments 
that would be submitted to the rulemaking docket.

B. Summary of Comments Presented at the NPRM Public Listening Sessions

    FMCSA held two public listening sessions during the comment period 
for the NPRM as part of the Agency's efforts to engage the public in a 
conversational setting to get a sense of their initial reactions rather 
than waiting until the end of the public comment period and relying 
solely on submissions to the rulemaking docket. During the listening 
sessions, a panel of Agency officials took in-person public comments 
and solicited online comments. The panel also answered questions and 
clarified parts of the NPRM when requested. Both sessions are available 
online, and transcripts have been placed in the docket.\7\ Because the 
same substantive comments were also submitted in writing to the docket, 
FMCSA responds to these comments in the responses to written comments 
below.
---------------------------------------------------------------------------

    \7\ Available at https://www.fmcsa.dot.gov/mission/policy/public-listening-session-live-stream-hours-service-drivers https://youtu.be/MHo6OjoBAfk, https://www.regulations.gov/document?D=FMCSA-2018-0248-8166, and https://www.regulations.gov/document?D=FMCSA-2018-0248-8167, last accessed February 2, 2020.
---------------------------------------------------------------------------

    In keeping with the intent of the public meetings, the Agency did 
not attempt to influence the participants' beliefs or opinions. The 
Agency used the opportunity to hear the initial reactions of interested 
parties to the HOS rule in anticipation of the formal written comments 
that would be submitted to the rulemaking docket. Throughout the public 
listening session participants were encouraged to submit written 
comments to the rulemaking docket and to include any information (e.g., 
research reports or studies, etc.) and data they would like the Agency 
to consider.

[[Page 33401]]

    Short-haul. Many commenters agreed with the proposed extension of 
the workday to 14 hours. Several commenters requested clarification of 
how the proposed changes would interact with each other, and about ELD 
use. Questions about the question of returning to their normal work 
reporting location were asked.
    Adverse Driving Conditions. Most commenters spoke positively of the 
proposed changes to the adverse driving conditions rule. Several 
requested that the Agency clarify the criteria for acceptable use of 
this exception. Many commenters asked for expansion of the definition 
of ``adverse driving conditions''. Commenters also wanted information 
regarding the impact on total driving-day and cumulative hours.
    30-Minute Break. Most commenters requested that the 30-minute break 
requirement be eliminated, arguing that it has a negative impact on 
safety by forcing drivers to stop when they did not need a break and to 
skip breaks when they need to stop because they cannot afford to lose 
the drive time. Other commenters provided many suggestions for 
additional flexibility concerning the 30-minute break.
    Split-Sleeper Berth. Many commenters asked for clarification of the 
proposed sleeper berth provisions. Some expressed concern about how to 
calculate sleeper berth time under the proposed revisions, especially 
in relation to the 3 hour pause. Others asked for other splits.
    Split-Duty Pause. Commenters primarily requested clarification 
regarding which operations would be able to use the proposed 3-hour 
pause, and expressed concern about abuse of the provision.

C. Summary of the Written Comments to the NPRM; FMCSA Responses

    The NPRM comment period closed on October 21, 2019. The Agency 
considered late filed comments to the extent practicable and, as of 
November 27, 2019, had received a total of 2,874 submissions to the 
docket.
1. Agency Approach To Reviewing Research Cited in the Written Comments
    Methodology of Comment Evaluation. Because of the level of 
Congressional and public interest in this HOS rulemaking, FMCSA shares 
with interested parties its methodology for analyzing almost 3,000 
submissions to the rulemaking docket. Approximately 200 studies were 
cited in written comments to the NPRM. To ensure that FMCSA did not 
overlook any relevant research, the Agency created a list of those 
studies for systematic review.
    FMCSA notes that while conducting HOS rulemakings over the past 25 
years, the Agency has examined many studies on the effects of time on 
task on fatigue, and of fatigue on safety. Some of the studies are 
based on laboratory experiments with closely controlled inputs, while 
others are derived from technical data generated by drivers operating 
instrumented trucks. Still others involve extensive surveys of CMV 
drivers. The number of subjects or survey respondents varies 
enormously, from a few dozen to many thousands. None of these studies 
were considered as representative of every aspect of the enormously 
varied motor carrier industry.
    The FMCSA acknowledges that no single study that it previously 
reviewed or referenced in responses to the 2019 NPRM addresses all of 
the proposed changes. The results of the various studies are not 
uniform, rarely converging in a straightforward conclusion about 
specific work-rest schedules. FMCSA therefore considered the wide range 
of studies, including those provided or cited by commenters, to draw 
conclusions about the overarching HOS principles based on its own 
experience and expertise and the extensive, but inconclusive, body of 
evidence currently available.
    Procedural Matters. A few commenters addressed procedural matters 
regarding the proposed rule. Three requests for an extension of the 
public comment period were received. FMCSA extended the public comment 
period from October 7 to October 21, 2019.\8\
---------------------------------------------------------------------------

    \8\ 84 FR 49212, September 19, 2019.
---------------------------------------------------------------------------

2. General Comments on the Rulemaking
    Agreement with Proposed Revisions. Approximately 530 submissions 
expressed general agreement with the proposed changes. Many of these 
included individuals and drivers who stated their general agreement 
with the proposal without providing substantive rationale. Numerous 
commenters stated that the proposed changes:
     Increase flexibility;
     Improve highway safety;
     Provide drivers with greater control when and where to 
take rest breaks;
     Increase efficiency and productivity; and,
     Reduce driver stress and fatigue.
    Safety for the Long Haul, Inc. and OOIDA stated that the proposed 
revisions would increase driver flexibility and efficiency without 
adversely affecting driver alertness. However, Safety for the Long Haul 
also argued that the ``ND [Naturalistic Driving] Mixed Safety-Critical 
Event'' (SCE) method for assessing fatigue, as referenced in the 
Agency's NPRM, is flawed. OOIDA commented that the proposed rule would 
improve trucker safety, as drivers know best when they need to take a 
break or whether driving conditions are unsafe.
    A few industry associations commented that current HOS rules have 
contributed to increases in crashes involving trucks. One association 
commented that current HOS rules may pressure drivers to rush or 
continue driving despite being fatigued. They believe the proposed 
changes would provide greater flexibility for drivers to take breaks 
from the driving task.
    Several industry associations and companies from the agricultural, 
beverage, construction, concrete, forest products, packaging and 
recycling, and livestock sectors of the motor carrier industry stated 
that the proposed rule would benefit their members.
    The National Motor Freight Traffic Association, Inc. commented that 
the proposed rule would help ``less-than-truckload'' drivers, who have 
relatively regular schedules but who are susceptible to poor traffic 
conditions; they can usually obtain adequate rest and complete their 
work safely. Another industry association generally supported the 
proposed rule for its different treatment of long-haul, regional, and 
short-haul trucking.
    Several construction industry associations supported the proposed 
rule but requested that the construction industry be exempted from HOS 
regulations.
    FMCSA Response: FMCSA agrees that the relief provided through this 
rulemaking will benefit some of the industries or distinct operations 
(e.g., propane delivery) currently seeking relief through exception or 
other means.
    As for industry-specific exceptions or regulatory relief, it should 
be noted that FMCSA has already granted exemptions from specific HOS 
requirements to various industry segments and motor carriers, including 
some related to the regulations addressed in the NPRM. The exemptions 
were granted through a public notice-and-comment process authorized by 
49 U.S.C. 31315, with implementing regulations provided in 49 CFR part 
381.
    Three exemption applications concerning an extension of the short-
haul duty day from 12 to 14 hours have already been granted to the 
following: (1) Waste Management, Inc.; (2) the American Concrete 
Pumping

[[Page 33402]]

Association (ACPA); and (3) the National Asphalt Pavement Association 
(NAPA). In addition, NAPA requested and received an exception from the 
30-minute rest break provision, allowing its members to use 30 minutes 
of ``waiting time'' or ``attendance time'' to satisfy the break 
requirement.
    Others who have requested and received similar exemptions from the 
30-minute rest break include the National Pork Producers Council (NPPC) 
for drivers transporting livestock, ACPA, the American Trucking 
Associations, Inc. (ATA) for placarded hazardous materials loads, the 
Department of Energy for special category (often nuclear) shipments, 
the National Tank Truck Carriers, the Oregon Trucking Associations, the 
Specialized Carriers and Rigging Association, and the U.S. Department 
of Defense's Military Surface Deployment and Distribution Command.
    This final rule does not include industry-specific relief (i.e., 
regulatory exceptions). However, FMCSA notes certain industries may 
find their concerns about HOS addressed by this rule. As noted above, 
the requirements concerning applications for exemptions or requests for 
waivers are described in 49 CFR part 381, and interested parties that 
continue to believe that additional flexibility is needed should review 
part 381 to determine whether an exemption application may be 
warranted. The Agency notes that such requests should consider the 
statutory requirement that the exemption must be likely to achieve a 
level of safety equivalent to or greater than the level of safety 
provided absent the exemption.
    Disagreement with the Proposed Changes to the HOS Requirements. 
Approximately 215 commenters expressed general disagreement with the 
proposed rule. Numerous commenters, mostly individuals, opposed the 
rule without further explanation. Many of these commenters, including 
individuals and drivers, stated that the proposed rule:
     Enables companies to abuse drivers;
     Fails to promote safety;
     Does not provide enough flexibility;
     Adds confusion when looking at the provisions overall;
     Decreases efficiency and productivity; and,
     Does not address the lack of parking and problems 
associated with ``pay to park'' schemes.
    Many of the commenters who opposed the rule argued that the 
proposed rule would contribute to the prevalence of driver fatigue and 
threaten public safety through an increase in fatigue-related crashes. 
Among the commenters articulating variations on this theme were the 
National Transportation Safety Board (NTSB), the National Safety 
Council (NSC), the American Academy of Sleep Medicine (AASM), 
Advocates, Road Safe America, Senator Patty Murray, the International 
Brotherhood of Teamsters (IBT), and the Truck Safety Coalition (TSC). 
Representative Greg Steube argued that the current proposal does not do 
enough to fully address safety and logistics issues. The NSC, 
Advocates, IBT, and TSC cited data about the importance of healthy 
sleep patterns and the safety risks of fatigued driving. Road Safe 
America and Senator Murray argued that the proposed rule would increase 
the likelihood that motor carriers would coerce drivers into working 
while fatigued, creating unsafe road conditions for drivers and other 
motorists. The Institute for Policy Integrity argued that the proposed 
rule is too focused on flexibility for drivers and that FMCSA should 
consider the effects of the proposed rule on drivers' health.
    Representative Peter DeFazio warned that the proposed rule 
significantly expands on-duty time for truck drivers, deprives drivers 
of true rest, and passes more of the inefficiencies and uncertainties 
of goods movement on to drivers who have little economic leverage. 
Congressman DeFazio also argued that the changes may seem modest, but 
instead represent a ``substantial backslide'' in a 24-year process to 
update on-duty rules and reduce fatigue among commercial drivers--which 
has been ``painstakingly'' debated by FMCSA, Congress, and the courts. 
However, many other commenters felt strongly that the additional 
flexibility would minimize the stress on a driver that results under 
the current rules.
    The Small Business in Transportation Coalition expressed concern 
that the proposed rule would be difficult to enforce and that drivers 
needed greater flexibility. Another commenter argued that free market 
forces will correct the challenge of long detention times at shippers' 
and receivers' facilities, and that the proposed rule would be 
counterproductive in resolving this issue.
    Senator Murray claimed the proposed rule contravened FMCSA's 
mandate by unreasonably extending drivers' work hours, eliminating 
drivers' right to sufficient rest, and threatening the safety of 
drivers and the public. Advocates asserted that FMCSA's reasoning for 
each of the proposals in the NPRM is baseless, misrepresentative, or 
based on incorrect reinterpretation of research and often in direct 
contradiction of earlier Agency findings and statements.
    The Institute for Policy Integrity urged FMCSA to analyze each 
proposed provision's effect on driver health, including driver 
morbidity, chronic health conditions, obesity, and exposure to diesel 
exhaust. Another commenter recommended that FMCSA consider amending the 
proposed changes to include screening for sleep problems, such as 
Obstructive Sleep Apnea, and then prescribing practical solutions if 
the driver is diagnosed with a sleep problem.
    ATA expressed conditional support for some provisions of the rule. 
IIHS, ATA, and a few industry associations argued that more research 
would be needed before the rule or individual provisions could be 
adequately evaluated. Trucking Solutions Group provided conditional 
approval if FMCSA would wait for the full effects of the ELD mandate on 
the industry to occur before undertaking a new rulemaking.
    FMCSA Response: FMCSA acknowledges commenters concerns. However, 
the Agency concludes that the changes adopted today will not result in 
the adverse safety consequences they described. None of the revisions 
in this rule allow truck drivers additional driving time beyond the 11-
hour limit provided in the current regulations (or the 13-hour limit 
provided with the current adverse driving conditions exceptions). 
Except for the adverse driving conditions provision, none of the 
revisions allow drivers to operate a CMV after accumulating 14 hours of 
on-duty time during a work shift. Consistent with the Agency's 
rationale for adopting the 14-hour rule, none of the revisions allow 
the use of multiple or intermittent off-duty breaks to extend the work-
shift. Also, the weekly limitations under the 60/70-hour rules 
concerning the maximum number of on-duty hours that may be accumulated 
before driving is prohibited remain unchanged. Furthermore, none of the 
revisions relieve motor carriers and drivers of the explicit 
prohibitions against: (1) Operating commercial motor vehicles while ill 
or fatigued, or (2) coercing drivers to violate Federal safety rules. 
Therefore, the basic parameters of the HOS rule that are essential to 
safety remain unchanged.
    Regarding the extension of the driving window to 16 hours during 
``adverse driving conditions,'' drivers will no longer need to stay on 
the road during such conditions to avoid the impending closure of the 
previous 14-hour driving window. Therefore, the added flexibility

[[Page 33403]]

will not decrease safety during adverse driving conditions.
    Regarding the proposal to allow drivers to pause the 14-hour 
driving window by taking up to 3 hours off-duty, the Agency intended to 
give drivers the ability to adjust their operations such that they 
could defer work, especially driving time, until the conditions were 
conducive to greater efficiency. The NPRM considered that the pause 
could have been as short as 30 minutes or as long as 3 hours, provided 
the driver was relieved of all responsibility for performing work, with 
the assumption being that pauses up to 3 hours would allow drivers to 
obtain rest during the extended window. Drivers would have the 
opportunity to take a meaningful rest break during the work shift but 
still be required to have 10 consecutive hours off duty at the end of 
the work shift.
    As explained elsewhere in the preamble, FMCSA has decided that 
further information is needed concerning the potential for unintended 
consequences associated with the pause and therefore has not included 
that provision in this final rule.
    As to driver health, the Agency acknowledges that the effect of 
specific regulatory changes on driver health is difficult to evaluate. 
First, most health conditions have multiple contributing factors and 
are discernible only over extended periods. Second, a cause-and-effect 
relationship between a rule and a given health outcome is difficult to 
establish. Driver health issues were addressed extensively in the 2005 
final rule [70 FR 49978, 49982-49992, August 25, 2005]. The preamble 
noted that ``FMCSA has reviewed and evaluated the available and 
pertinent information concerning driver health, with emphasis on 
chronic conditions potentially associated with changes from the pre-
2003 and 2003 rules, to this final rule. The research on CMV driver 
health falls into several broad categories: (1) Sleep loss/restriction, 
(2) exposure to exhaust, (3) exposure to noise, (4) exposure to 
vibration, (5) cardiovascular disease, (6) long work hours, and (7) 
shift work and gastrointestinal disorders'' (70 FR 49978, 49982).
    The Agency concluded that the 2005 rule would not have any effect 
on those potential health issues. That discussion remains applicable 
today with only a few changes. For example, FMCSA noted in 2005 that 
attempts to create a dose-response curve for the effects of exposure to 
diesel exhaust had not produced clear-cut results (70 FR 49983). Such 
an attempt would be even less useful today because exposure to diesel 
exhaust has declined significantly in the last 15 years as a result of 
the tightened EPA standards discussed in the 2005 rule. The incremental 
changes adopted in this final rule, though useful to motor carriers and 
drivers, do not change the conclusions explained in the 2005 final 
rule. As pointed out in the 2005 HOS final rule (70 FR 49978, 4983, 
August 25, 2005), attempts to create a dose-response curve for the 
effects of exposure to diesel exhaust, for example, have not produced 
clear-cut results. Such an attempt would be even more difficult for the 
incremental HOS changes promulgated today.
    However, based on the current scientific information and its own 
experience with Hours of Service regulation, FMCSA concludes that the 
changes made by this final rule are safety- and health-neutral. For 
example, the expansion of the short-haul workday from 12 to 14 hours 
simply gives short-haul carriers the same driving window that other 
carriers have used for many years. The 14-hour HOS limit now applicable 
to both short- and long-haul carriers is consistent with the statutory 
obligation to protect driver safety and health (49 U.S.C. 31136(a)(2), 
(4)), as shown by the extensive discussion in the 2005 final rule (70 
FR 49978, 49982 et seq.). Moreover, FMCSA requires that interstate 
drivers subject to the physical qualifications standards under 49 CFR 
part 391 obtain proof of their physical qualifications from a licensed 
healthcare professional listed on the Agency's National Registry of 
Certified Medical Examiners. These healthcare professionals must be 
licensed by the State, complete a training program concerning FMCSA's 
physical qualification standards, and pass a test concerning the 
Federal requirements. These Medical Examiners are likely to provide 
some level of education at the time of the exam if drivers exhibit 
specific health issues.
    As to obstructive sleep apnea, the Federal Motor Carrier Safety 
Regulations (FMCSRs) do not require medical examiners to screen CMV 
drivers for sleep disorders, and the Agency does not provide criteria 
for determining whether an individual should be referred for a sleep 
study evaluation. FMCSA relies on Certified Medical Examiners who have 
proper licensure, training, and medical knowledge to apply independent 
medical judgment based on the individual's complete medical history, 
including risk factors, and clinical findings from the physical 
examination when making medical determinations concerning screening, 
testing, and treatment, for obstructive sleep apnea. FMCSA notes that 
obstructive sleep apnea is a condition for which there are effective 
treatments available, and drivers who follow the prescribed treatment 
regime after being diagnosed may be medically certified.
    Problems caused by detention time and parking shortages have been 
apparent for many years. However, these issues are beyond the scope of 
this rulemaking.
    The purpose of this rule is to enhance the operational flexibility 
of drivers and carriers, without compromising the Agency's statutory 
safety mission. Many commenters stated that the current HOS 
requirements are too restrictive and that their removal would not 
adversely affect safety; but those assertions are supported only with 
personal anecdotes. While stakeholders' personal experiences inform the 
Agency's decision-making process, further evidence is generally 
required to support changes to the FMCSRs.
    Neutral Comments and Comments on HOS-Related Issues Beyond the 
Scope of the NPRM. Approximately 1,460 comments, mostly from 
individuals and drivers, provided mixed, neutral feedback on the 
proposal. In addition, some drivers and individuals addressed certain 
provisions of the NPRM while remaining silent on other provisions. Some 
individual commenters and drivers provided conditional support while 
others neither provided an opinion nor suggested alternatives to the 
NPRM.
    Approximately 630 submissions concerned aspects of the HOS rules 
that were not covered in the NPRM. Numerous individuals and drivers 
made the following types of suggestions:
     Eliminate the 14-hour window;
     Eliminate or revise the 34-hour restart provision;
     Eliminate the 70-hour rule prohibiting driving after the 
driver has accumulated 70 hours of on-duty time in 8 consecutive days;
     Eliminate the use of ELDs;
     Allow drivers to develop their own drive/rest schedules;
     Exempt small businesses from the HOS rules or create 
separate rules applicable to small fleets;
     Extend driving time from 11 to 12 or 13 hours;
     Address the amount of time drivers are held up at shippers 
or receivers;
     Address the lack of parking and ``pay to park'' schemes; 
and,
     Drivers should be paid hourly instead of by the mile.
    Multiple individual commenters and drivers briefly summarized 
alternative or ``simplified'' HOS requirements that they would prefer 
(e.g., maximum 9-hour drive time in a 12-hour workday;

[[Page 33404]]

12 on-duty/12 off-duty; 13 hours of drive time in a 24-hour workday; 
14- or 16-hour total workday; 77 hours in 8 days, etc.).
    FMCSA Response: FMCSA acknowledges the concerns of commenters that 
opted not to take a position on certain aspects of the proposal. Each 
aspect of the NPRM addresses a piece of a complex puzzle concerning the 
flexibility needs for different segments of the transportation 
industry. For certain segments of the industry, a single element of the 
NPRM would provide all the flexibility necessary while other segments 
may benefit from two or more elements. This final rule is intended to 
provide reasonable adjustments to the HOS requirements to allow for 
increased flexibility without decreasing safety.
    FMCSA also acknowledges commenters' interest in changing major 
provisions of the HOS requirements. However, these issues are beyond 
the scope of this rulemaking. In some of these cases such as an 
extension of the driving time limits or the elimination of the 70-hour 
rule, additional research would be needed to support changing the basic 
parameters of the HOS rules that have been previously determined to be 
important in minimizing the risk of fatigue. And several of the issues 
raised by commenters are beyond FMCSA's statutory authority (e.g., 
driver compensation, elimination of ELDs).
    In response to commenters' concerns about third parties such as 
shippers and receivers forcing drivers to violate HOS rules or creating 
an environment where drivers are unable to take advantage of the work 
time allowed, the Agency issued a final rule in 2015 prohibiting motor 
carriers, shippers, receivers, and transportation intermediaries from 
coercing drivers to operate CMVs in violation of certain FMCSA 
regulations, including the HOS regulations in 49 CFR part 395 (See 49 
CFR 390.6). In addition, the Occupational Safety and Health 
Administration in the Department of Labor has authority under 49 U.S.C. 
31105 to take remedial action against employers who have discharged or 
discriminated against employees who refuse to violate the FMCSRs.
    Comments on Issues and Industry Concerns Separate from the HOS 
Rules. Approximately 30 submissions addressed topics that involved 
safety but were separate from the HOS requirements. The topics 
included:
     Education for the public on safe driving procedures around 
trucks;
     Inspection of trucks crossing the U.S. border;
     Public respect for truck drivers;
     Improvements to rest areas;
     CMV driving speeds;
     The impact of certain States' laws on interstate commerce; 
and,
     The ability of drivers to participate in public listening 
sessions.
    FMCSA Response: While the topics raised by these commenters are 
important, they do not relate to the specific revisions proposed at the 
NPRM stage of the rulemaking or adopted through this final rule.
    The Agency nevertheless acknowledges commenters' concerns about 
these issues and has acted in several of these areas. For example, the 
Agency launched ``Our Roads, Our Safety,'' a national safety campaign 
shaped to raise public awareness about sharing the road safely with 
large trucks and buses.
    On the topic of truck parking, FMCSA is an active participant in 
the National Coalition on Truck Parking (the Coalition). The U.S. 
Department of Transportation (USDOT) and several stakeholder 
organizations established the Coalition in August 2015 as a response to 
a documented need for truck parking solutions. Stakeholders engaged in 
the Coalition represent the trucking industry, commercial vehicle 
safety officials, State departments of transportation (DOTs), and 
commercial truck stop owners and operators.
    Finally, about the inspection of trucks crossing the U.S.-Mexico 
border, in each of the past 4 years FMCSA and its State partners 
conducted more than 250,000 inspections of commercial motor vehicles 
operated by Mexico-owned or Mexico-domiciled motor carriers.\9\
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    \9\ Available at https://ai.fmcsa.dot.gov/SafetyProgram/MexicanCarriers.aspx, last accessed February 5, 2020.
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3. Short-Haul Operations
    NPRM. The NPRM proposed extending the maximum allowable workday for 
property-and passenger-carrying CMV drivers under the Sec.  395.1(e)(1) 
short-haul exception from 12 to 14 hours to correspond with the 14-hour 
limit for property-carrying drivers in Sec.  395.3(a)(2). The Agency 
proposed extending the existing distance restriction under this 
provision from 100 air-miles to 150 air-miles to be consistent with the 
radius requirement for the short-haul exception applicable to drivers 
of CMVs not requiring a CDL (Sec.  395.1(e)(2)). Under the proposal, 
truck drivers would continue to be limited to 11 hours of driving time, 
and passenger carrier drivers to 10 hours of driving time. FMCSA 
proposed requiring all CMV drivers using the Sec.  395.1(e)(1) 
exception to complete their workday within 14 hours of the beginning of 
the work shift.
    The NPRM also sought additional information and data on the impacts 
of expanding the short-haul exception provision, in part to assess its 
potential costs and benefits. Specifically:
     How would this change impact the motor carriers' ability 
to enforce the HOS rules? What enforcement difficulties may arise from 
expanding both the time and distance requirements?
     Would drivers drive farther or longer in the driving 
window under the short-haul exception? Would this be different than 
these loads being hauled by drivers complying with the ELD 
requirements?
     Would the elimination of the 30-minute break requirement 
for drivers that are potentially driving later in their duty period 
impact safety?
     What cost savings are expected from not having to comply 
with the ELD requirements?
    In addition, some commenters to the ANPRM requested that drivers 
using the short-haul exception be allowed to end their work shift at a 
different location than the one from which they were dispatched. FMCSA 
therefore included a request for public comment about this suggestion, 
including which segments of the motor carrier industry would be 
impacted by it and whether it would have an adverse effect on safety, 
or lead to operational changes such as increased driving time per trip 
or driving in the 12th and 13th hour after coming on-duty.
    Commenters Supporting an Increase to the 12-Hour Limit for Short-
Haul Operations. Approximately 240 submissions supported the proposal 
to extend the maximum allowable workday under the short-haul exception 
from 12 to 14 hours. Many of the commenters, including drivers and 
individuals, stated that the additional flexibility would be helpful or 
would positively impact them or their company. Some of the specific 
benefits commenters mentioned included:
     Extending the short-haul provision to 14 hours would 
reduce the burden of switching to logbooks and installing ELDs;
     The provision would allow dispatchers to schedule loads 
and routes more efficiently;
     Short-haul drivers should be allowed to work as many hours 
as over the road drivers;
     The added flexibility will increase safety because short-
haul drivers will be under less pressure to ``beat the clock;''

[[Page 33405]]

     The proposed changes to the exception would reduce 
compliance burdens;
     The extra time will help improve transportation 
productivity efficiency, such as truck utilization and driver 
optimization, thereby reducing costs; and,
     Extending the short-haul provision from 12 to 14 hours 
would not negatively impact safety.
    Many commenters, including OOIDA, the American Bus Association 
(ABA), the U.S. Chamber of Commerce, trucking industry associations and 
motor carriers expressed support for extending the 12-hour short-haul 
exception to 14 hours. These commenters believed the change would 
afford drivers greater flexibility by allowing them more time to 
complete trips during peak periods, more non-consecutive driving hours, 
and a larger window to return home if drivers encounter unexpected 
delays during their shift. Several associations representing specific 
segments of the trucking industry and motor carriers reiterated that 
the increased flexibility would positively impact them, their members, 
or their segment, including agricultural operations supporting aerial 
crop dusting, motorcoach businesses, towing and recovery companies, 
retailers, beverage producers and distributors, construction and 
manufacturing businesses, and propane gas delivery businesses. A few 
commenters remarked that the proposed change would provide small 
businesses partial relief from the chronic shortage of CDL drivers 
nationwide because the additional 2 hours of on-duty time per shift 
would increase the productivity of drivers already on the payroll.
    Multiple commenters, including OOIDA, the Commercial Vehicle Safety 
Alliance (CVSA), and some motor carriers and drivers, stated that 
extending the limit for the short-haul exception from 12 to 14 hours 
would align the exception with existing requirements for long-haul, 
regional, and over the road drivers and thereby simplify enforcement 
and improve compliance. A few commenters, including the U.S. Chamber of 
Commerce and industry associations, remarked that for companies that 
manage a variety of trucking operations, the proposed change would 
facilitate compliance because more operations would follow the same set 
of rules making fleet management easier, and reducing the possibility 
of inadvertently violating the rules. Some commenters, including 
several motor carriers, said that the proposal would remove the need 
for multiple exemptions from the HOS rules and make the standards more 
consistent for all drivers.
    Many commenters, including individuals, drivers, motor carriers, 
and industry associations, stated that this proposed change would allow 
many more drivers to qualify for the short-haul exception. A few 
commenters, including Transco, Inc. and the National Limousine 
Association, stated that the provision would allow more frequent use of 
the exception and include the benefit of not having to complete a 
driver's daily graph grid log or use an ELD. Others stated that the 
proposal would enable more drivers to go home at night rather than 
sleeping in hotels, improving not only rest, safety, and productivity, 
but also saving the company on costs.
    FMCSA Response: The Agency agrees with those commenters who believe 
the proposed changes to the current short-haul provisions would provide 
increased flexibility for both motor carriers and drivers who utilize 
the exception. FMCSA continues to believe the extension of both the 12-
hour limit to 14 hours, and the 100 air-mile radius to 150 air miles 
will provide the increased flexibility for drivers without compromising 
overall safety.
    The Agency emphasizes, however, that the changes to the short-haul 
exception finalized in this final rule allow neither additional drive 
time during the workday, nor driving after the 14th hour from the 
beginning of the workday. Because the extension of the air-mile radius 
and the workday does not extend the maximum allowable driving time or 
the 14-hour window, FMCSA does not anticipate adverse impacts on 
safety.
    FMCSA also agrees with commenters who stated that the proposed 
changes to the short-haul exception this final rule would allow more 
drivers to be consistently eligible for the short-haul exception. Thus, 
they will be excluded from the requirement to take a 30-minute break or 
prepare daily RODS, potentially with an ELD if the carrier exceeded the 
short-haul limits more than 8 days within a 30-day period. Carriers now 
have the flexibility to meet existing and future market demands for 
services within a larger area that could be covered within a 14-hour 
duty day. Services may now be provided more efficiently (i.e., not 
incurring the costs of preparing RODS and retaining supporting 
documents for the days drivers did not satisfy the short-haul limits) 
without compromising safety.
    FMCSA notes that short-haul carriers must maintain accurate records 
concerning drivers' schedules. These time records must document when 
drivers report to work and are released from work. The Agency may 
review carriers' records to determine whether drivers have traveled to 
locations beyond the distance limits.
    Regarding the issue of more uniform enforcement of the short-haul 
provisions based on the changes in this final rule, FMCSA anticipates 
that the number of associations, organizations and companies seeking 
exceptions via 49 CFR part 381 provisions will considerably decrease 
and enforcement agencies will not have to monitor the list of active 
exemptions to avoid errors in citing carriers operating under an 
exemption. Because most of the exemptions are granted to groups or 
associations on behalf of their motor carrier members, enforcement 
officials need to understand the scope of the exemption so that when 
commercial vehicle inspections are performed, the enforcement official 
can make the determination whether the exemption covers the specific 
driver or carrier being inspected, and how the remaining HOS 
requirements are to be applied to that driver.\10\ Several of these 
applications for exemption have been granted by the Agency in the past, 
including some that extended the 12-hour short-haul limit to 14 hours.
---------------------------------------------------------------------------

    \10\ In the calendar year 2018, FMCSA received 6 exemption 
requests regarding the short-haul provision. The majority concerned 
an extension from 12 hours to 14 hours.
---------------------------------------------------------------------------

    Commenters Seeking Flexibility Beyond the Proposed Revisions to the 
Short-Haul Time Limits. An individual said the provision is ``90% 
good'' but would not help the sub-class of short-haul drivers that 
primarily do ``drop and hook.'' \11\ Another commenter said short-haul 
drivers should be allowed a 16-hour day. Another individual familiar 
with oilfield operations said that the short-haul exception should 
allow up to 15 hours of driving time, since oilfield workers must often 
be on-site for 12 hours. TruckerNation reasoned that, while expanding 
the short-haul exception to 14-hours would create a uniform duty day 
for all CMV drivers and decrease unnecessary complexity, reducing the 
complexity for drivers may increase the probability of inconsistent 
enforcement actions.
---------------------------------------------------------------------------

    \11\ This is a term that refers to when a driver drops the 
trailer and simply picks up a new trailer; in other words, a 
delivery where no loading or unloading is required.
---------------------------------------------------------------------------

    FMCSA Response: The Agency believes this final rule provides an 
appropriate amount of flexibility while ensuring that safety is not 
compromised. As noted above, none of proposals included in the NPRM and 
adopted today allow truck drivers additional

[[Page 33406]]

driving time beyond the 11-hour limit provided in the current 
regulations (or the 13-hour limit provided with the current adverse 
driving conditions exceptions). Except for the adverse driving 
conditions provision, none of the revisions allow drivers to operate a 
CMV after accumulating 14 hours of on-duty time during a work shift. 
Consistent with the Agency's rationale for adopting the 14-hour rule, 
none of the revisions allow the use of multiple or intermittent off-
duty breaks to extend the work-day which would in turn increase the 
risk of driver fatigue.
    Based upon the many research studies the Agency has reviewed over 
the past 25 years of conducting HOS-related rulemakings, the Agency 
believes it would be inappropriate to consider amending the rules to 
allow more than 11 hours of driving time, without taking the required 
10 consecutive hours off-duty (property carriers). Aside from adverse 
driving conditions, it would also be inappropriate to allow a 16-hour 
driving window, during which drivers could operate a CMV after 
accumulating 14 hours of on-duty time during a work shift.
    Finally, the Agency does not anticipate that enforcement 
difficulties will arise from the expansion of on-duty hours permitted 
under the exception. The employer must still maintain and retain 
accurate time records for a period of 6 months showing the time the 
duty period began and ended, and the total hours on-duty each day in 
place of RODS (Sec.  395.1(e)(1)(v)).
    Commenters Opposed to Increasing the 12-Hour Limit for Short-haul 
Operations. Some individuals and drivers raised arguments against the 
proposal:
     The provision would allow companies to force drivers to 
extend their workdays.
     Short-haul drivers should be limited to a 12-hour workday; 
any more would increase driver fatigue and be a detriment to safety.
     Short-haul drivers can already run a 14-hour day, so the 
proposal would just make HOS regulations more difficult to enforce.
    Advocates argued that the proposed changes to the short-haul 
exception would extend drivers' duty hours, extend driving hours later 
into the duty period, increase the number of carriers operating under 
the exception, and thereby increase the number of drivers not provided 
adequate rest breaks, and impair enforcement.
    A number of commenters, including some individual commenters and 
drivers, asked questions about the increased driving window of the 
short-haul exception:
     How will FMCSA monitor and keep carriers from allowing 
abuse and driving over the 11-hour driving limit?
     How will FMCSA protect against ``stacking'' (allowing a 
19-hour day by combining the 2-hour adverse driving condition exception 
and a 3-hour ``pause'' to the 14-hour window)?
     Why are trucks without sleeper berths not allowed to run 
12 hours or stop the clock during pickup or delivery?
     Why did FMCSA not consider a straight 13/16-hour day for 
all CMV operators?
    A few commenters, including the Trucking Alliance, industry 
associations, and motor carriers, indicated they would support the 
increase from 12 to 14 hours only if an ELD were required to track a 
driver's HOS. The Trucking Alliance argued that having ELDs on board 
all trucks would ensure compliance, improve highway safety, and reduce 
the risk of large truck crashes. ATA stated that, while they supported 
the proposed expansion of the short-haul exception, they were concerned 
that it would increase the number of drivers who would no longer be 
required to use an ELD, and even that ELDs would be removed from some 
vehicles. Schneider National Carriers, Inc. stated that while 
``neutral'' with respect to the proposed 14-hour day, it favored an ELD 
requirement to deter abuse.
    Citing results of a membership survey, ATA concluded that the 
number of motor carriers that would become exempt under the proposed 
short-haul exceptions would be ``small but not insignificant.''
    An individual said FMCSA should be more specific regarding which 
drivers would qualify for the proposed short-haul exception changes.
    The California Highway Patrol warned that an expansion of the 
short-haul exception to 14 hours would make impossible discovery of 11-
hour violation(s) by enforcement personnel, foster noncompliance, and 
would not be prudent in large States.
    FMCSA Response: The Agency acknowledges commenters' concerns about 
extending the driving window. However, the Agency emphasizes that the 
HOS requirements for drivers using RODS allow up to 11 hours of driving 
time within a 14-hour window, following 10 consecutive hours off-duty. 
Short-haul drivers who exceed the current 12-hour limit for returning 
to the normal work-reporting location can already operate using the 14-
hour window for up to 8 days in any 30-consecutive-day period without 
an ELD, provided they keep paper RODS for those days. If they are 
willing to use an ELD, these drivers could simply operate under the 
same HOS limits as regional and long-haul drivers. Whether to do so is 
a business decision on the part of the motor carrier. The extension to 
14 hours will relieve some short-haul drivers of the pressure to drive 
at a higher speed to finish their 11 hours of driving time and return 
to their duty reporting location within 12 hours.
    FMCSA also acknowledges the comments about monitoring compliance 
and enforcement challenges under the short-haul provision. However, the 
techniques currently used to enforce the HOS requirements for short-
haul drivers will be the same whether the maximum work shift is 12 or 
14 hours. FMCSA does not agree that the changes to the short-haul 
provision would make discovery of violations impossible or foster 
noncompliance with the underlying HOS requirements.
    As noted above, employers must maintain and retain accurate time 
records for a period of 6 months showing the time the duty period began 
and ended, and the total hours on-duty each day in place of RODS (Sec.  
395.1(e)(1)(v)).
    Expanding the duty period to 14 hours, without increasing the 
existing 11 hours of driving time, will allow short-haul drivers to 
spend time with customers, respond to changes in market demand, such as 
peak holiday delivery times, and reduce the administrative burden of 
determining how often a driver has gone beyond 12 hours or 100 air-
miles in any 30-consecutive-day period. Because the changes to the 
short-haul exception will not extend the workday beyond the current 14-
hour driving window, FMCSA has no reason to believe that the revised 
rule will adversely impact safety.
    Neither of the changes to the short-haul exception increase the 
opportunities to falsify time records. If anything, the changes remove 
pressure from short-haul drivers to ``beat the clock.'' Furthermore, 
the Agency agrees with ATA and has retained the requirement for drivers 
to return to the normal work reporting location at the end their work 
shift, rather than having the option of ending the shift at a different 
location. This will help to ensure compliance with the short-haul 
exception to the RODS requirement.
    The FMCSA acknowledges commenters' overall concerns that an 
expansion of the short-haul provision (both the extension of the time 
and distance limits) would result in fewer

[[Page 33407]]

motor carriers and drivers being required to use ELDs. However, this 
fact, in and of itself, does not mean that the carriers in question 
would experience increased levels of non-compliance with the applicable 
HOS rules or increases in crash involvement. Enforcement of the short-
haul provision during vehicle inspections has always presented a 
challenge because officials do not have access to supporting documents, 
specifically records indicating when the driver began the work day. 
However, enforcement at a terminal or the principal place of business 
generally provides a better opportunity to investigate compliance with 
the hours-of-service requirements. At such time, enforcement personnel 
will continue to focus on (1) the time between the driver reporting to 
the normal work-reporting location and the time the driver is released 
from work, and (2) the maximum distance the driver traveled from the 
normal work-reporting location. The enforcement official could request 
certain records that would identify where the driver traveled and the 
time spent at those locations. Because of the inherent nature of short-
haul operations (e.g., several stops for pick-up and/or delivery during 
the shift, or a few trips with extended periods at the delivery/service 
site, etc.) and the distance limitation, the Agency does not believe 
short-haul CDL drivers will have more opportunities or incentives to 
exceed 11 hours of driving time within the 14-hour window than non-CDL 
short-haul drivers who already have these time and distance limits. 
Short-haul drivers do not have the opportunity to pause the 14-hour 
clock while drivers are loading and unloading at the various points at 
which services are being provided. Safety investigators will continue 
to sample and examine time cards and other HOS records during 
compliance investigations.
    The Agency reviewed its December 16, 2015, final rule establishing 
the ELD mandate and the accompanying Regulatory Impact Analysis. Based 
on the 2015 analysis, the Agency estimated that the annualized safety 
(crash reduction) benefit for mandating ELDs for all CMV operations 
(including short haul) subject to the HOS requirements would be $687 
million while the annualized safety benefit for mandating ELDs for all 
CMV operations where the driver is required to prepare RODS would be 
$572 million. The values were presented in 2013 dollars at a 7% 
discount rate. The Agency explained:

    ``Safety benefits of requiring ELDs are higher when all 
regulated CMV operations are included in the ELD mandate . . ., but 
the marginal costs (ELD costs plus compliance costs) of including 
these operations are more than 3\1/2\ times higher than the marginal 
benefits. . . . [Short-haul] drivers who do not use RODS, have 
better HOS compliance, and much lower crash risk from HOS 
noncompliance. For the [short-haul] non-RODS subgroup, FMCSA's 
analysis indicates that ELDs are not a cost-effective solution to 
improving the HOS compliance of [short-haul] non-RODS drivers. This 
result is consistent with that of past ELD analyses.''

    In consideration of the above discussion, FMCSA believes the 
decrease in the number of carriers using ELDs will be limited because 
the change impacts only the CDL holders who currently travel between 
100 and 150 air-miles from the normal work-reporting location, and 
return to that location within 12 to 14 hours each day. And, the Agency 
continues to believe ELDs are not a cost-effective solution to ensuring 
HOS compliance for these drivers because, as discussed below, short-
haul operations are essentially self-limiting due to the nature of the 
operations and requirement to return to the reporting location.
    Commenters Supporting the Expansion of the 100 Air-Mile radius to 
150 Air-Miles, but not the 12-hour limit. Multiple commenters, mostly 
individual commenters and drivers, expressed brief, general support for 
extending the radius for the short-haul exception to 150 air-miles. 
Many individuals and drivers said that the additional flexibility was 
helpful or would positively impact them, their industry, or their 
company. Some commenters provided the following arguments for expanding 
the short-haul exception to 150 air-miles:
     The proposed change would allow carriers to classify 
drivers as short-haul more accurately;
     Extending the air-mile radius would reduce the burden of 
switching to logbooks and installing e-logs;
     Increasing the 100 air-mile to a 150 air-mile radius would 
increase new business opportunities;
     It is difficult to run a delivery business legally with 
the 100 air-mile restriction;
     The exception would reduce compliance burdens; and,
     Extending the air-mile radius would not increase safety 
risks.
    Multiple industry associations and motor carriers stated that 
extending the 100 air-mile radius for the short-haul exception to 150 
air-miles would increase flexibility and positively impact carriers, 
their members, or their segment, including crop dusting, commercial 
trucking, and motor coach businesses, retailers, beverage manufacturers 
and distributors, construction, manufacturing, and propane gas 
delivery. The U.S. Chamber of Commerce commented that extending the 
radius to 150 air-miles would provide flexibility for carriers to use 
the short-haul provision for runs that are farther from their work 
reporting location and may be currently managed as a long-haul run.
    Many commenters said that the proposed extension would remove the 
need for several HOS exceptions that have already been issued and make 
standards more consistent for all drivers. Several commenters, 
including CVSA, and some motor carriers and drivers, stated that 
expanding the radius from 100 to 150 air-miles would align the short-
haul exception with existing HOS requirements and thereby simplify 
enforcement and improve compliance. The U.S. Chamber of Commerce 
remarked that, for companies that manage a variety of trucking 
operations, the proposed change would facilitate compliance because 
more operations would follow the same set of rules, in turn making 
fleet management simpler and reducing the likelihood of inadvertent 
violations of the rules.
    As stated above, many commenters said that the proposed changes 
would allow many more drivers to qualify for or utilize the short-haul 
exception.
    Many commenters argued that a 150 air-mile radius did not go far 
enough, suggesting that it be increased to 200, 250, or 300 air-miles. 
A commenter asked what difference it makes how far drivers travel 
provided they return to their home terminal within the allotted time, 
noting that a short-haul driver can legally drive almost as many miles 
inside a 150 air-mile radius as a long-haul driver. Other individual 
commenters recommended removing the mileage radius as long as drivers 
return home at the end of a day.
    FMCSA Response: The Agency agrees with commenters who stated that 
the proposed changes to the short-haul exception would provide 
increased flexibility to motor carriers and drivers without decreasing 
overall safety, irrespective of whether the 12-hour limit was 
increased. FMCSA also agrees with CVSA and other commenters that 
expanding the short-haul radius from 100 to 150 air-miles would align 
it with existing HOS requirements in Sec.  395.1(e)(2) and Sec.  
395.1(k) and thereby simplify enforcement and improve compliance.
    FMCSA believes that a 150 air-mile radius is the appropriate size 
for the short-haul exception applicable to CDL holders operating in 
interstate commerce. However, FMCSA disagrees

[[Page 33408]]

with commenters requesting that the mileage should be longer or even 
removed altogether, and with commenters seeking removal of the 
requirement for drivers to return to their normal work reporting 
location.
    Short-haul drivers with occasional assignments that necessitate 
traveling long distances (i.e., more than 300 air miles round trip) 
have always been allowed to take on such assignments provided they 
prepare RODS for those days. And under existing regulations and the 
rules adopted today they may continue to conduct these operations up to 
8 days within a 30 consecutive day period without incurring the costs 
of installing and using ELDs. The Agency believes the flexibility 
provided in this final rule should be sufficient and that the increased 
distance suggested by some commenters is far beyond what should be 
considered short-haul operations.
    Commenters Opposed to Extending the Distance to 150 Air-miles. A 
number of comments were opposed to the proposal to extend the allowable 
short-haul air-mile radius to 150 air miles, arguing that:
     Extending the air-mile radius to 150 air-miles would 
reduce safety;
     Short-haul is an often-abused rule and increasing the air-
mile radius to 150 air-miles is a mistake; and,
     The extension to 150 air miles will drastically reduce the 
number of carriers and drivers required to use ELDs, which dilutes the 
intent of part 395, subpart B.
    Advocates argued that the proposed changes would extend drivers' 
duty days, extend driving hours later into the duty period, increase 
the number of carriers operating under the exception--thereby 
increasing the number of drivers not provided adequate rest breaks, and 
impair enforcement.
    Advocates also argued that FMCSA failed to provide evidence or 
analysis to support its conclusion that VMT and crash risk would not 
increase because of the extension of the air-mile radius to 150 air 
miles. A few commenters, including Advocates, IIHS, and Senator Murray, 
cited IIHS's 2017 crash risk study indicating that the short-haul 
exception was associated with a statistically significant 383 percent 
increase in crash risk. Senator Murray and an industry association 
warned that a 50 air-mile radius increase would not increase the 
driving area in a linear manner, but instead expand the total area that 
drivers may operate by more than double to over 31,000 square 
miles.\12\ Citing many studies and statistics, IBT stated that short-
haul drivers would experience increased fatigue and more fatigue-
related occupational injuries and crashes.
---------------------------------------------------------------------------

    \12\ ``Crash Risk Factors for Interstate Large Trucks in North 
Carolina.'' Insurance Institute for Highway Safety, Teoh, Eric, 
2017. https://www.ncbi.nlm.nih.gov/pubmed/28882260, last accessed 
February 6, 2020.
---------------------------------------------------------------------------

    Transportation Trades Department, AFL-CIO opposed the proposal to 
increase the air-mile radius because it would not provide enough time 
for adequate sleep and would encourage more driving time, increase 
driver fatigue, and decrease safety. Congressman DeFazio warned that 
the proposed rule significantly increases driving and on-duty time.
    Several commenters took issue with the Agency's use of crash data 
on ready-mixed concrete trucks to argue that a 14-hour short-haul work 
shift would not decrease safety. Commenters also relied heavily on an 
IIHS study which concluded that carriers using the previous short-haul 
exception were significantly more likely to be involved in crashes than 
carriers not using the exception. These comments are discussed more 
fully in the RIA.
    The IBT emphasized that a 14-hour short-haul work shift would 
increase the number of hours that drivers spend behind the wheel, the 
number of times they get in and out of the cab and trailer, and the 
amount of freight they manually handle. ``Therefore, it is reasonable 
to expect that the incidence and prevalence of occupational injuries 
and illnesses for these drives will also increase. In addition, motor 
carriers will likely experience higher worker compensation costs and 
costs associated with increased crash liability.''
    FMCSA Response: The Agency concludes that extending the air-mile 
radius will not reduce safety. The motor carriers and drivers that 
would take advantage of this increased flexibility continue to be 
limited to 11 hours of driving time during the work shift and, like 
other drivers subject to the HOS requirements, continue to be 
prohibited from driving after 14 hours from the beginning of the work 
shift. These two factors are most critical for ensuring safe operations 
among short-haul operators.
    With respect to not providing enough time for adequate sleep, the 
Agency reiterates that drivers must still comply with the requirement 
for 10 consecutive hours off duty at the end of the work shift. There 
is no research or data provided to suggest than an increase in the air-
mile radius would result in increased crash risk, specifically when 
drivers are still restricted in the amount of time they can spend on-
duty and driving.
    Furthermore, drivers must still return to their normal work 
reporting location at the end of each work shift, which negates the 
notion that drivers would be able to cover a significant portion of the 
operational area (approximately 70,650 square miles) during a given 
work shift. The study cited by Advocates, IIHS, and Senator Murray 
(Teoh, 2017) was based on a small sample size which was not nationally 
representative and the analysts did not estimate a matched-pair odds 
ratio restricted to drivers operating under a short-haul exception. No 
data was provided to suggest that driving distance was directly related 
to injuries received by short-haul drivers; rather, several citations 
provided state that most injuries suffered by short-haul drivers are 
experienced during non-driving tasks, such as loading and unloading.
    The continued absence of an ELD requirement for short-haul 
operations after expansion of the operating radius will not compromise 
safety. These short-haul operations are essentially self-limiting 
because of the nature of the operations and requirement to return to 
the reporting location. The frequent delivery stops generally made by 
short-haul drivers mean they rarely approach the 11-hour driving limit. 
Expanding the workday from 12 to 14 hours may result in more deliveries 
than were possible within a 100 air-mile radius, but total driving time 
will usually continue to fall short of the 11-hour limit. Conversely, 
carriers that choose to serve new customers near the outer limit of the 
expanded 150 air-mile radius will draw down more of the 11-hour driving 
limit and therefore be unable to make as many deliveries as they could 
have made within the previous 100 air-mile radius. Carriers may opt for 
either of these alternatives, or settle on an operational compromise 
that allows them to serve somewhat more customers, somewhat farther 
away. In any case, the nature of short-haul operations, with frequent 
delivery stops, means that an increase in violations of the 11-hour 
driving limit is highly unlikely.
    Since the publication of the December 27, 2011 final rule 
concerning hours of service (76 FR 81134), non-CDL drivers have been 
allowed to use, and presumably have used, the 14-hour driving window in 
short-haul operations, within 150 air miles of the normal work 
reporting location. They also operate within a 16-hour window up to 2 
days per week, within 150 air miles of the normal work reporting 
location. In other words, any carrier that found it operationally and 
financially advantageous to utilize a 14-hour

[[Page 33409]]

driving window has probably been doing so, at least with its non-CDL 
holders. Some of these carriers may choose to utilize the revised 
short-haul exception for CDL holders who exceed the current short-haul 
time and distance restrictions more than 8 times in a 30-day period to 
spare themselves monthly ELD charges. However, it is possible that many 
will retain ELDs which enable them to operate beyond the 150 air-mile 
radius when longer-haul opportunities arise. These carriers should 
experience no changes in the rate of workplace injuries because the 
rule will not require operational changes.
    As indicated above, the expanded 150 air-mile radius may induce 
some carriers to make longer runs with fewer deliveries than before, 
which may minimize, or even eliminate, an increase in the number of 
stops, where IBT claims workplace injuries typically occur. In any 
case, IBT has not reported, nor is FMCSA aware of, any study that 
purports to establish a dose-response curve showing workplace injuries 
as a function of each hour worked.
    FMCSA reviewed the comments received and the previous short-haul 
exception requests to determine how the rule would affect the number of 
drivers operating under the short-haul exception. As discussed in the 
RIA for this final rule, FMCSA is not estimating a significant change 
in the number of drivers or motor carriers operating under the short-
haul exception given that the revision would only benefit CDL holders 
who travel between 100 and 150 air miles of the normal work reporting 
location, and return to that location between 12 and 14 hours from the 
beginning of the work shift.
    While some drivers' routine schedules that were considered non-
short haul may now be eligible for the short-haul exception, it is 
unclear if motor carriers employing those drivers will choose to remove 
ELDs from their vehicles. Nevertheless, the Agency continues to believe 
ELDs are not a cost-effective solution to ensuring HOS compliance for 
these drivers, as stated earlier.
    Ensuring Compliance with the Short-Haul Exception. The NPRM asked 
how the proposed changes to the short-haul exception would impact a 
motor carrier's ability to ensure its drivers comply with the HOS 
rules, and if enforcement difficulties would arise from expanding both 
the time and distance requirements.
    A few commenters, including ABA and motor carriers, remarked that 
the proposed changes to the short-haul exception would not negatively 
impact a motor carrier's ability to comply with the HOS rules, and 
instead would simplify enforcement since the revised short-haul 
exception would more closely align with other sections of the other HOS 
provisions, thus increasing compliance and enforcement.
    Some commenters, including Road Safe America, the Trucking 
Alliance, motor carriers, and drivers warned, however, that the 
proposed change would increase the likelihood that motor carriers would 
not comply with HOS rules because neither RODS nor ELDs would any 
longer be required. TruckerNation suggested that FMCSA consider a 
standardized way for a driver or motor carrier to make the distinction 
that they operate under the short-haul exception to ensure compliance 
with the exception. ATA stated that, while they understand that an ELD 
requirement is impractical for some drivers who are engaged in local, 
daily activities, motor carriers should be required to have some form 
of an electronic device that tracks on-duty and driving times.
    The Customized Logistics and Delivery Association stated that 
timecards and run distances are recorded by all operational systems of 
a carrier ensuring compliance and enforcement.
    A few commenters stated that the proposed changes to short-haul 
operations would not create any new enforcement difficulties. Some 
carriers said that no enforcement difficulties would arise because all 
their trucks have ELDs and all route locations and durations would be 
monitored. Motor Transport Association of Connecticut said that the 
short-haul exception would make enforcement easier for law enforcement 
officials because it would be uniform for CDL and non-CDL drivers.
    Road Safe America, ATA, Advocates, and several motor carriers 
warned, however, that enforcement would be harder because there would 
be no legitimate way of tracking hours driven or worked without 
requiring RODS or ELDs. Road Safe America reasoned that enforcement 
difficulties would increase because the additional 50 air-miles could 
expand driving ranges into multiple States, which would require 
coordination between officers of different jurisdictions to determine 
if a driver is legally employing the short-haul exception.
    ATA suggested that FMCSA examine additional ways to track and 
enforce short-haul drivers' on-duty and driving times during the duty 
day. TruckerNation suggested that FMCSA establish an ``operating 
policy'' for officers to determine the allowable radius to ensure 
consistent enforcement actions.
    FMCSA Response: The Agency agrees with the commenters who remarked 
that the proposed changes to the short-haul regulations will simplify 
motor carriers' ability to comply with and enforce the HOS rules. The 
extension of the 100 air-miles radius to 150 air-miles makes the 
distance radius consistent with the distance limitation for short-haul 
CMV drivers of property-carriers who are not required to possess a CDL, 
which will simplify enforcing requirements of the short-haul exceptions 
for motor carriers that use both CDL and non-CDL drivers. Likewise, 
extending the short-haul duty period to 14 hours makes the duty period 
consistent with the rule for drivers of property-carriers who do not 
operate under the short-haul provision. For carriers that have both 
short-haul and long-haul property operations, this will simplify their 
enforcement of the 14-hour duty period.
    FMCSA does not agree that these changes to the short-haul exception 
will increase the likelihood that motor carriers will not comply with 
HOS rules. Motor carriers must still ensure that short-haul drivers 
using the exception do not drive more than 11 hours for property 
carriers or 10 hours for passenger carriers and that they return to the 
same location they left from at the beginning of their work shift. 
Expanding the duty period to 14 hours without increasing the existing 
11 hours of drive time will allow short-haul truck drivers more 
flexibility to spend time with customers, respond to changes in market 
demand such as peak holiday delivery times, and reduce the 
administrative burden of determining how often a driver has gone beyond 
12 hours or 100 air-miles in any 30-consecutive day period. This change 
would also somewhat align with the 14-hour rule for drivers of 
property-carrying vehicles who do not operate under the short-haul 
provision.
    FMCSA does not agree that motor carriers using the short-haul 
provision should be required to use ELDs. Because drivers would be 
returning to their original duty reporting location at the end of their 
shift, FMCSA will continue to allow motor carriers with short-haul 
operations the option to use duty reporting location time records 
rather than a record of duty status or ELD. Although motor carriers 
that conduct short-haul operations may use electronic tracking for 
payroll or other purposes, there is no requirement that the time 
records be electronic. In addition, motor carriers are not required to 
use the short-haul provision and can require their short-haul drivers 
to use an

[[Page 33410]]

ELD or other type of electronic device if they choose.
    In addition to simplifying the motor carrier's ability to comply 
with and enforce HOS for their drivers, the Agency agrees with the 
commenters who stated that the changes to the short-haul operations 
provision would also simplify enforcement since the air-mile radius 
distance will be consistent for both CDL and non-CDL drivers.
    As for comments that enforcement would be harder without required 
RODS or ELDs and that the 150 air-mile radius could expand driving into 
multiple States, changes do not increase the difficulty of enforcement 
of the FMCSRs. Enforcement personnel will be required to use the same 
investigative techniques as they currently do to verify radius of 
travel, driving time, and start time for the work shift. Generally, 
enforcement personnel use an online air-mile radius calculator to 
determine compliance with radius requirements and would not require 
assistance from officers of different jurisdictions when the radius 
extends into adjacent States. FMCSA will continue to work with the 
Commercial Vehicle Safety Alliance's (CVSA) committees assuring uniform 
training development and delivery, and enforcement tolerances. This on-
going partnership will ensure smooth implementation of the modified 
short-haul provision. Many State officials already have experience 
dealing with non-CDL short-haul drivers who are currently provided a 
14-hour driving window and 150 air miles within which to operate and 
this first-hand knowledge will be helpful in developing the training 
materials.
    More Behind-the-Wheel Time During the Driving Window. The NPRM 
asked if drivers would drive farther or longer in the driving window 
(i.e., spend more of the work shift behind the wheel) if the short-haul 
exception was revised. FMCSA also asked whether the time behind the 
wheel for these operations would differ from that of drivers complying 
with the ELD requirements.
    Many commenters, including motor carriers and drivers, argued that 
drivers would not drive farther or longer for various reasons, 
including that drivers would be required to return to their original 
locations, that the 11-hour maximum driving rule would still apply, and 
that the current miles and radius are sufficient.
    Citing studies, the U.S. Chamber of Commerce stated that, while 
shifts in driver schedules would occur, overall increase in driver 
schedule intensity would not. The commenter reasoned that, because most 
drivers never approach the maximum daily or weekly allowable driving 
limits, only the administration of driving shifts would change.
    OOIDA and a few motor carriers argued that a short-haul driver may 
drive farther with the expanded air-mile radius, especially in more 
rural areas, but noted that the proposal still maintains the current 
11-hour driving limit.
    Some commenters said the exception has the potential to increase 
driving hours and miles. Road Safe America and IBT argued that short-
haul drivers would now drive longer, especially since RODS would not be 
required and law enforcement would not be able to ensure that a driver 
did not drive for the entire 14-hour duty period. IBT added that 
surveys show that drivers are already being required to perform or will 
likely be assigned work that would increase miles traveled or entail 
more non-driving tasks that extend the workday to 14 hours, all of 
which will increase their fatigue and decrease safety. A few commenters 
stated that interstate and intrastate operations would likely use the 
additional 50 air-miles and additional time to service customers who 
would otherwise receive service through a separate operational 
schedule.
    Commenters, including OOIDA and other industry associations, 
asserted that short-haul drivers would not drive any further or longer 
than those complying with ELD requirements. Some industry associations 
argued that many carriers would use ELDs regardless of whether they 
could operate under the short-haul exception.
    The ABA remarked that ELD providers could serve as an invaluable 
resource to FMCSA for purposes of providing data on use of the short-
haul exception (i.e., frequency of use and distances traveled).
    FMCSA Response: The Agency agrees that drivers will generally not 
spend significantly more time behind the wheel on a daily basis than 
they currently do, especially because they are limited to 11 hours of 
driving time. With respect to the notion that drivers will drive 
farther by falsifying time records due to the lack of an ELD, the 
Agency notes that the exception allowing short-haul drivers to use time 
cards as opposed to RODS has long existed in the HOS rules. Nothing in 
the changes to the short-haul exception creates additional 
opportunities for short-haul drivers to falsify time records. The 
normal work-reporting location requirement remains applicable to short-
haul drivers.
    As to ABA's comment regarding ELD data as a valuable resource, it 
must be noted that 49 U.S.C. 31137(e)(1) prohibits the Secretary from 
using data from ELDs except ``to enforce the Secretary's motor carrier 
safety and related regulations.'' Therefore, the ELD data cannot be 
used, outside the context of enforcing part 395, to analyze either the 
frequency of use of the short-haul exception or the distances traveled 
by drivers operating under the short-haul exception. Furthermore, given 
that carriers using ELDs for short-haul operations do so on a voluntary 
basis, such data would not be representative of the wide variety of 
short-haul operations.
    Cost Savings from Not Using ELDs. FMCSA asked for comments on the 
cost savings that would be expected from not having to comply with the 
ELD requirements for operations out to a radius of 150 air-miles. 
Commenters noted that cost savings could range from $240 to $1,700 per 
truck, including the costs for purchase of the device, data 
maintenance, and technical support. Comments from industry associations 
stated that the cost savings would be at least $500 to $1,000 per 
truck, including costs for equipment, maintenance, repair, and back 
office administration. ABA stated that, due to the diverse nature of 
the motor coach industry, some segments of the driver population would 
continue to use ELDs. Road Safe America warned that the cost savings 
associated with the avoidance of ELDs would be negligible compared to 
the far greater costs of significantly increased risk of fatigue-
related crashes associated with extending the short-haul exceptions. 
ATA suggested that FMCSA assess the motor carrier populations affected 
by the changes to the short-haul exception to better estimate the 
industrywide cost savings of the proposed rule.
    FMCSA Response: FMCSA acknowledges commenters' views. FMCSA 
previously estimated a per-truck cost of $419 per ELD, and notes that 
this is within the range provided by commenters.\13\ It is, however, 
unclear how many motor carriers and drivers will no longer be required 
to use ELDs. For instance, although some bus routes will no longer need 
ELDs, the motor carrier may choose to retain the device to use the bus 
on longer-haul routes, should the occasion arise. Further, some motor 
carriers use and will retain ELDs for business reasons, even if not 
required by regulation. Under the changes made to the short-haul 
exception today, these motor carriers will not necessarily see a 
reduction in the number of ELDs. FMCSA is not

[[Page 33411]]

quantifying a cost savings in this rule due to the uncertainty 
surrounding the number of vehicles that will no longer use ELDs.
---------------------------------------------------------------------------

    \13\ 80 FR 78292, December 16, 2015.
---------------------------------------------------------------------------

    FMCSA reviewed the comments and tried to estimate the number of 
drivers who would be covered by the short-haul exception. This is 
discussed in detail in section 2.4 (Baseline for Analysis) of the RIA 
for the final rule. Inadequate data prevented FMCSA from estimating the 
number of additional drivers who will likely operate under the revised 
short-haul exception. The Agency has determined that the carrier-
reported information on drivers operating within 100 air miles of their 
work reporting location is a good proxy for the count of drivers who 
are eligible for, and will operate under, the short-haul exception 
following the implementation of this final rule.
    Return to the Normal Work Reporting Location. Some commenters to 
the ANPRM requested that drivers using the short-haul exception be 
allowed to end their work shift at a different location than the one 
from which they were dispatched. FMCSA requested public comment on this 
issue, including which segments of the motor carrier industry would be 
impacted by such a change and whether the change would have an adverse 
effect on safety, or lead to operational changes such as increased 
driving time per trip or driving in the 12th and 13th hour after coming 
on-duty.
    Many commenters, including the U.S. Chamber of Commerce, Advocates, 
motor carriers, and drivers, argued that short-haul drivers should not 
be allowed to end the work shift at a different location. Road Safe 
America, CVSA, the Trucking Solutions Group, and Sysco Corporation said 
that removing this requirement would contravene the original intent of 
the short-haul exception. Trucking Solutions Group added that such a 
change would give short-haul companies a competitive advantage over 
companies that is ineligible to operate under the exception. ATA warned 
that the provision to return to the same location ensures compliance 
with the short-haul requirements; otherwise, enforcement would have no 
way to ensure drivers adhere to the air-mile radius and on-duty limits. 
The Trucking Alliance, Road Safe America, and CVSA said that short-haul 
drivers should be required to return to their work reporting location, 
because otherwise drivers would be able to ``leapfrog'' from one 
location to another across the country, extending the effective air-
mile radius beyond 150 air miles. Advocates argued that allowing 
carriers to return to a different location would effectively turn them 
into traditional long-haul operations minus the required rest break and 
ELDs.
    Many commenters, however, including TruckerNation, OOIDA, ABA, and 
industry associations, supported allowing drivers to end the shift at a 
different location, citing various benefits, including minimizing 
driving time and distance traveled, reducing wear on the fleet, 
aligning with the diverse nature of the trucking industry, maximizing 
the allowable on-duty period, leading to more productive and flexible 
schedules, and not negatively impacting safety. Many industry 
associations stated that returning to the same location does not 
necessarily promote safer driving habits and that modern technology 
allows businesses to monitor the start and stop locations of their 
drivers via tracking apps and electronic communications.
    The Minnesota Trucking Association remarked that its members were 
split on this question, with some supporting allowing drivers to end at 
a different location.
    FMCSA Response: The Agency has opted not to change the requirement 
that short-haul drivers return to their work reporting location at the 
end of their shift. The current requirement is consistent with 
operations that are generally considered short-haul. As commenters 
noted, the current requirement assists enforcement personnel in 
determining the applicability of the short-haul exception and prevents 
abuse. If the requirement were changed, enforcement personnel would not 
have a beginning reference point from which to calculate the 150 air-
mile radius. The provision would be difficult to enforce and could lead 
to abuse as drivers could potentially ``leap-frog'' across the country 
without any way to verify their hours of service.
    The 30-Minute Break in Relation to the Short-Haul Provision. The 
NPRM asked if eliminating the 30-minute break requirement for drivers 
who are potentially driving later in their duty period would impact 
safety.
    A few commenters, including industry associations, said that the 
elimination of the 30-minute break requirement would not negatively 
impact safety for various reasons, including that short-haul drivers 
often make frequent stops throughout the on-duty period, are less 
likely to be affected by driving-related fatigue, and will have the 
flexibility to stop as needed to rest under the additional time 
provided in this rule. The Trucking Alliance said the 30-minute break 
is not necessary because short-haul drivers would be performing many 
non-driving activities each day. Citing research studies, the Petroleum 
Marketers Association of America argued that, while the studies did not 
specifically address the 30-minute break, they indicate short-haul 
drivers are less likely to experience reduced safety performance due to 
the nature of the job. TruckerNation stated that the proposed changes 
to the 30-minute break would mean ``short-haul operators will not reach 
the 8th consecutive hour of drive time without the opportunity to have 
an on-duty, not driving change in duty status'' and would eliminate 
regulatory complexity by making the short-haul exceptions the same as 
HOS regulations for all drivers.
    IBT, citing research and studies, said that eliminating the 30-
minute break requirement for short-haul drivers would have an adverse 
impact on safety as data demonstrates that crash risk significantly 
increases after the 7th consecutive hour of a driver's workday.\14\ 
Another commenter, a driver, warned that the elimination of the 30-
minute break for drivers who are potentially driving later in their 
duty period would impact safety because drivers would not obtain 
adequate rest and their performance could suffer. Advocates asserted 
that by asking this question, FMCSA is ``admitting'' that the proposed 
changes would result in drivers being scheduled to drive later in their 
duty period.
---------------------------------------------------------------------------

    \14\ IBT cited: 65 FR 25539 (Apr. 2000); Saccomano, F., et al., 
``Effect of Driver Fatigue On Truck Accident Rates,'' Urban 
Transport and the Environment for the Twenty-First Century (ed. L.J. 
Sucharov), Computational Mechanics Publications, Southampton, U.K., 
439-446 (1995); Saccomano, F. and Shortread, J., ``Truck Safety: 
Perceptions and Reality,'' the Institute for Risk Reduction, 
Ontario, Canada, 157-174 (1996).; Lin, T. et al., ``Time of Day 
Models of Motor Carrier Accident Risk,'' Transportation Research 
Record 1467: 1-8, Transportation Research Board, National Research 
Council, (1994); Frith, W., ``A Case-Control Study of Heavy Vehicle 
Drivers' Working Time and Safety,'' Proceedings of the Australian 
Road Research Board Conference, 17(5): 17-30 (1994) and Jovanis, 
J.P., Wu, K.F., and Chen, C., ``Hours of Service and Driver 
Fatigue--Driver Characteristics Research,'' FMCSA (April 2011), DOT 
docket number FMCSA-2004-19608-27614.
---------------------------------------------------------------------------

    FMCSA Response: FMCSA concludes that the expansion of the criteria 
for short-haul operations and the associated elimination of the 30-
minute break requirement for these drivers will not have an adverse 
impact on safety. As noted above, the primary factors influencing 
safety outcomes for short-haul drivers are the continued adherence to 
the 11-hour driving time limit and the continued prohibition against 
driving after the 14th hour of the beginning of the work shift. FMCSA 
acknowledges that in the 2011 final rule and during the subsequent 
litigation, the

[[Page 33412]]

Agency argued that, on their face, the safety benefits of an off-duty 
30-minute break requirement applied to short-haul operations as well as 
long-haul. The D.C. Circuit Court of Appeals, however, found that 
applying the 30-minute break requirement to all drivers despite the 
clear distinctions between short-haul and long-haul operations was not 
justified in the record.\15\ The Agency has received no new evidence to 
compel a different finding.
---------------------------------------------------------------------------

    \15\ American Trucking Ass'n v. FMCSA, 724 F.3d 243, 253 (D.C. 
Cir. 2013).
---------------------------------------------------------------------------

    Moreover, there is no safety basis for expanding the definition of 
short-haul but continuing to require a 30-minute break for the subset 
of short-haul CDL drivers who operate between 100 and 150 air miles, or 
who drive between the 12th and 14th hour of coming on duty. To the 
extent that the debate and comments about the safety impact of 
relieving this group of drivers of the need to comply with the 30-
minute break provision lingers, FMCSA believes it is best resolved 
below in the Agency's decision concerning changes to the 30-minute 
break.
    The changes adopted in this final rule result in the break being 
required after 8 consecutive hours of driving time, rather than 8 hours 
after coming on-duty. That change alone would make the 30-minute break 
inapplicable in nearly all short-haul operations in that they would not 
drive 8 consecutive hours without having a break of at least 30 minutes 
from the driving task.
    FMCSA reviewed the Blanco study and notes that it found that any 
type of break (both off-duty, and on-duty not driving) was beneficial 
to the driver.\16\ Furthermore, it has been demonstrated in multiple 
research efforts that time on task is a leading contributor to driver 
fatigue. The requirement for a break after 8 hours of consecutive 
driving time addresses this concern more adequately than requiring a 
break after 8 hours of coming on-duty, and short-haul drivers have 
frequent breaks from driving throughout the day. Therefore, FMCSA 
disagrees with the commenters who stated that allowing short-haul to be 
excepted from the requirement would have an adverse impact on safety 
and continues to except short-haul drivers from the 30-minute break 
requirement despite the extension of the duty day to 14 hours.
---------------------------------------------------------------------------

    \16\ ``The Impact of Driving, Non-Driving Work, and Rest Breaks 
on Driving Performance in Commercial Motor Vehicle Operations.'' 
Blanco, et al. (2011). Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    Comments about the Relationship Between Changes to the Short-Haul 
Exception, Adverse Driving Conditions Exception and ELD Mandate. CVSA 
and Schneider National Carriers, Inc. stated that short-haul carriers 
using the proposed exception without using an ELD should not be 
eligible for workday extensions, like that granted for adverse driving 
conditions. The commenters reasoned that short-haul drivers would be 
familiar with the routes and weather in their operating territory and 
would be able to abuse the program if allowed to claim an extra 2 hours 
of driving time. A few commenters, including the Trucking Alliance, 
U.S. Chamber of Commerce, industry associations, and motor carriers, 
stated FMCSA should require ELDs regardless of the distance traveled.
    TruckerNation suggested that FMCSA include clear regulatory 
language explaining that short-haul operators are exempt from the ELD 
mandate and are only required to prepare and maintain time cards. The 
Trucking Alliance suggested harmonization between the interstate CDL 
short-haul operations exception and the interstate non-CDL short-haul 
operations. An industry association developed a ``Daily Driver'' 
concept as an alternative to the short-haul exception and suggested 
specific language.
    FMCSA Response: FMCSA believes that the revised short-haul 
exception adopted today maintains safety while providing motor carriers 
and drivers greater flexibility. The Agency is not persuaded that 
various alternatives suggested by commenters would achieve that goal. 
Requiring ELDs for any subgroup of the short-haul carriers would 
essentially negate the short-haul exception because the daily 
preparation of RODS would make the regulatory scheme for short-haul 
operations largely the same as other operations. The extension of the 
workday from 12 to 14 hours for returning to the original work 
reporting location without increasing the existing 11 hours of driving 
time will put short-haul operations on essentially the same footing as 
long-haul operations with the distinction being that they must return 
to the normal work reporting location. Increasing the 100 air-mile 
radius distance to 150 air-miles will allow short-haul drivers greater 
flexibility. Together, these provisions will reduce potential pressure 
on drivers for timely completion of their duty day.
    Drivers who normally operate under the short-haul exception but 
occasionally find it necessary to exceed those limits can already drive 
within a 14-hour window for up to 8 days in any 30-consecutive day 
period without ELDs, provided they utilize paper RODS, or for more than 
8 days in any 30-day consecutive period with an ELD. Whether to remain 
within or exceed the short-haul limits is strictly a business decision 
on the part of the carrier, and the Agency has not identified safety 
issues associated with the use of either of these options.
    The NPRM did not propose to harmonize the short-haul rules for CDL 
and non-CDL drivers (Sec.  395.1(e)(1) and (2), respectively) 
concerning the allowance of a 16-hour window up to 2 days in a 7 
consecutive day period for non-CDL holders. The Agency has not 
witnessed a demand for that level of flexibility since implementing the 
ELD mandate either in the form of requests for guidance or 
clarifications, or applications for exemptions. Therefore, the Agency 
did not propose such a change in the NPRM and considers the matter to 
be beyond the scope of this rulemaking.
    Commenters Suggesting Industry-Specific Exceptions. A few trade 
groups requested that FMCSA allow industry-specific exceptions for 
certain short-haul operations, including for hazardous materials, 
concrete pumps, construction vehicles, and waste and recycling. The 
National Lumber and Building Material Dealers Association urged FMCSA 
to provide the lumber and building material industry a short-term ELD 
exception stating that many of their members use short-term rentals of 
30 days or less to meet high demand periods or instances where vehicles 
have been taken out of operation for repairs or service. The American 
Farm Bureau Federation suggested allowing drivers hauling live animals 
and agriculture to rest ``at any point during their trip without 
counting this rest time against their HOS allotments and allowing 
drivers to complete their trip, regardless of HOS requirements, if they 
come within 150 air-miles of their delivery point.''
    The National Private Truck Council, Inc. suggested requiring 
drivers to document their adherence to the 150 air-mile radius and 14-
hour time requirements through GPS telematics, paper log, timecard 
notation, or some equivalent means. The American Fuel and Petrochemical 
Manufacturers asked for additional information from FMCSA on the 
potential impacts of the proposed short-haul exception on recordkeeping 
requirements, including the current 8-in-30 exception.
    FMCSA Response: The motor carrier industry is diverse. As noted 
above the Agency has granted multiple exemptions for certain industry 
segments and there are various statutory and regulatory exceptions for 
several industry segments. Many of the

[[Page 33413]]

commenters cited the exemptions and exceptions. While the exemptions 
granted were for certain industry segments, the exemptions generally 
fall within the 150 air-mile distance and/or 14-hour time constraint, 
such that this final rule addresses the issue in general terms rather 
than specific industry segments. Also, given that the Agency did not 
propose specific industry carve-outs in the NPRM, considering such 
regulatory exemptions is outside of the scope of this rulemaking.
    The requirements for applying for an exemption are provided in 49 
CFR part 381 subpart C of the FMCSRs. After receiving an application 
for exception from the FMCSRs, the Agency will publish a notice in the 
Federal Register as required by Sec.  381.315 and request public 
comment on whether the Agency should grant the request. FMCSA cannot 
grant an exemption unless it would likely achieve a level of safety 
equivalent to that achieved by complying with the rule from which an 
exception is sought.
    In recent years, the Agency has received numerous requests for 
exemptions related to the short-haul provisions; several of these 
requests for exemptions have been granted (available at 
www.fmcsa.dot.gov/exemptions), while others have been denied.
    FMCSA did not propose or consider new alternative means for motor 
carriers to document short-haul drivers' hours under the revised short-
haul exception, and is not adding any new recordkeeping requirements at 
this time. Furthermore, the changes to the short-haul provisions in 
this final rule in no way relieve carriers and drivers of the 
responsibility for complying with the current recordkeeping 
requirements found in Sec.  395.1(e)(1)(v), which are consistent with 
6-month recordkeeping requirements for other records. See, e.g., Sec.  
395.8(k)(1) (requiring retention of RODS and supporting documents for 6 
months); Sec.  395.22(i) (requiring motor carriers to retain for 6 
months a backup copy of ELD records).
4. Adverse Driving Conditions
    NPRM. The Agency proposed allowing drivers encountering adverse 
driving conditions a driving window of up to 16 hours (for property 
carriers) within which to complete up to 13 hours of driving, or a duty 
period of up to 17 hours (for passenger carriers) within which to 
complete up to 12 hours of driving.
    FMCSA also sought additional information and data on the impacts of 
changing the adverse driving conditions provision, in part to assess 
its potential costs and benefits. Specifically:
     Would this change cause drivers to travel farther in 
adverse driving conditions?
     Would this change drivers' behavior when encountering 
adverse driving conditions? How so?
     Understanding adverse driving conditions cannot be 
predicted, would drivers utilize this provision more often after this 
change?
    Additionally, FMCSA requested public comment about potential 
modifications to the definition of ``adverse driving conditions.'' 
Specifically, the Agency requested input on the suggestion that 
knowledge of the existence of adverse driving conditions should rest 
with the driver rather than the dispatcher. Alternatively, FMCSA asked 
whether the requirement for lack of advance knowledge at the time of 
dispatch should be eliminated, and whether the current definition of 
``adverse driving conditions'' should be modified to address other 
circumstances.
    Commenters Supporting an Extended Driving Window. The changes 
proposed in the NPRM would apply to drivers of both property-carrying 
CMVs, normally subject to a 14-hour driving window, and passenger-
carrying CMVs, normally subject to a driving window of 15 non-
consecutive hours.
    Numerous commenters, including OOIDA, CVSA, the U.S. Chamber of 
Commerce, ABA, IBT, motor carriers, industry associations, and 
individuals expressed support for the proposed adverse driving 
conditions provision. Many individuals and drivers stated that the 
extension would relieve the pressure, stress, and fatigue on drivers. 
Most commenters reasoned that granting drivers more flexibility would 
improve road safety.
    Some commenters argued that road conditions are not always 
accurately reflected in weather radar maps or other technologies, so 
drivers should have the flexibility and discretion to determine when it 
is safe to drive. The California Highway Patrol said the provision 
would allow driving at a reduced speed or delay operations while in 
adverse driving conditions, which may reduce the risk of crashes and 
improve road safety. Keep Truckin, Inc. based its support on anonymized 
and aggregated data of daily traffic patterns and speed fluctuations in 
Washington, DC and Atlanta, Georgia. An industry association said 
extending the driving window for adverse driving conditions would 
greatly benefit the delivery of farm supplies.
    While supporting the proposal, OOIDA, ABA, and the United 
Motorcoach Association expressed concern that the current adverse 
driving condition rules are not enforced consistently. The U.S. Chamber 
of Commerce and several industry associations said their members rarely 
use the exception, although the expansion would be helpful in extreme 
conditions.
    FMCSA Response: FMCSA agrees that by adding time to the duty day 
for this exception, drivers may reduce their speed or delay operations 
when they experience unanticipated adverse driving conditions.
    FMCSA agrees that radar and technology may not be entirely accurate 
and thus leaves the driver/dispatcher discretion in this final rule. 
FMCSA is not aware of any issues with enforcement of or compliance with 
the adverse driving conditions exception.
    Commenters Requesting Additional Flexibility for Adverse Driving 
Conditions. Many commenters stated that the proposal did not go far 
enough. Among their comments:
     The provision should include unforeseen traffic 
conditions, such as emergency road repairs, congestion, and traffic 
accidents to allow drivers to compensate for ever worsening traffic 
congestion and infrastructure problems.
     Drivers should be allowed to decide how to respond to road 
conditions.
     The proposed changes to the extended driving window were 
not sufficient.
    A few industry associations, motor carriers, and individual 
commenters argued that drivers should have more discretion over the 
hours in which they drive in potentially adverse driving conditions and 
that this provision did not grant enough flexibility to drivers.
    TruckerNation stated that increased clarity and supporting guidance 
is needed, asking how a driver would be required to document the use of 
this provision on RODS to enable its increased and proper use. Many 
industry associations and individuals also commented that the current 
definition of ``adverse driving conditions'' should be clarified. 
Several commenters asked that the definition be expanded to address 
detention time or concerns specific to various sectors of the industry.
    FMCSA Response: This final rule modifies the adverse driving 
condition exception to allow extension of the driving window by up to 2 
hours, consistent with the 2-hour extension of driving time permitted 
under the current regulations. Though some commenters argued for an 
expansion of the current definition of ``adverse driving conditions'' 
to include circumstances such as unforeseen

[[Page 33414]]

traffic-related conditions, a close look at the definition shows that 
these road conditions are already covered. The HOS rules currently 
define ``adverse driving conditions'' as ``snow, sleet, fog, other 
adverse weather conditions, a highway covered with snow or ice, or 
unusual road and traffic conditions, none of which were apparent based 
on information known to the person dispatching the run at the time it 
was begun.'' The definition specifically refers to ``unusual road and 
traffic conditions'' which would cover most of the concerns mentioned 
by commenters. FMCSA does not believe it is necessary to further 
expound on the traffic conditions, as they are generally covered. 
However, the definition is modified for clarity and to recognize that 
the adverse driving conditions exception might apply based on knowledge 
of a driver (in addition to the dispatcher) under certain 
circumstances.
    Commenters Opposed to Additional Flexibility for Adverse Driving 
Conditions. Some commenters opposed the extension of the driving 
window. They said that:
     The extension would encourage drivers to continue driving 
when conditions are poor.
     Dispatchers and drivers would extend the day without any 
adverse driving conditions or otherwise abuse the provision to get 
around a violation.
     This provision would cause an enforcement problem.
    Several commenters, including IIHS, AASM, Senator Murray, and 
Transportation Trades Department, AFL-CIO, argued that the proposal 
would worsen driver fatigue. Advocates warned that extending the 
driving window enables driving later in the duty period, which research 
has associated with increases in crash risk, stating that FMCSA 
provided no analysis of that risk. IIHS cited studies on the safety and 
health consequences for drivers of disrupted circadian rhythms. 
Congressman DeFazio warned that the proposed rule would significantly 
increase on-duty time.
    The Trucking Alliance opposed this provision, saying that the 
definition of ``adverse driving conditions'' is unclear, allowing 
drivers to exploit the exception and use it to extend their driving 
window every day. Conversely, the Kentucky Driver's Association 
commented that, because the proposed rule could be abused to pressure 
drivers to drive beyond the normal 14-hour cap, it should be limited to 
``verifiable'' events.
    Advocates stated that FMCSA's comparisons of this proposal with 
duty period extensions permitted by the Federal Aviation Administration 
(FAA) and the Federal Railroad Administration (FRA) ignore the 
regulatory and operational differences among these Administrations and 
do not include any of the FAA's or FRA's limitations or additional 
requirements, nor has FMCSA performed any analysis to indicate that 
such comparisons are correct and meaningful.
    FMCSA Response: FMCSA acknowledges that the proposal could allow 
drivers who experience adverse driving conditions to operate later into 
the duty day. The Agency also acknowledges that parallels with the 
airline and railroad industries are not exact. However, this change 
would create an incentive for drivers to drive more slowly or take a 
break from driving during adverse driving conditions, given that, as a 
result of this change, they will have up to 2 additional hours to 
either complete their run or to reach a safe location without exceeding 
the maximum daily driving windows. Additionally, FMCSA notes that 
surveys by two major trade associations demonstrate that the adverse-
driving-conditions exception is not frequently used. Although changes 
intended to clarify the definition and improve flexibility may result 
in an increase in the use of the exception, there is little reason to 
expect that either the increase in use (or its potential abuse) will be 
significant.
    FMCSA also disagrees that this change would increase enforcement 
problems. Drivers relying on the adverse driving conditions exception 
would routinely annotate their RODS to avoid an HOS violation; 
consistent with current practice, a law enforcement officer could 
investigate the merits of the claimed exception.
    Commenters Discussing the Impact on VMT. Several commenters, 
including OOIDA and many other industry associations, argued that this 
provision would cause drivers to drive more safely, not greater 
distances, in adverse driving conditions. Currently drivers may drive 
up to 2 additional hours but they may be pressured to complete driving 
within the 14-hour window. The expansion of the driving window would 
enable them to drive more cautiously.
    Conversely, AASM argued that the provision would cause drivers to 
drive longer distances. They argued that the assumption that drivers 
would reduce speed or delay operations during adverse driving 
conditions is not supported by scientific study. An individual argued 
that this provision will cause drivers to travel farther distances. ABA 
and an industry association said that predicting the effect of the 
provision on travel distance is impossible.
    FMCSA Response: This rule would not allow an increase in driving 
time, but it would increase the driving window from 14 to 16 hours when 
an adverse driving condition is encountered. FMCSA asked whether the 
extension of the driving window in the event of adverse conditions will 
result in an increase VMT. No commenter provided responsive data, and 
none may exist. Ultimately, each adverse driving condition will create 
a unique set of unpredictable circumstances that drivers and motor 
carriers will react to--not plan for. Accordingly, motor carriers will 
not be able to plan for additional deliveries, trips, or VMT, and the 
final rule does not quantify the impact of these driving changes on 
VMT. The FMCSA believes that any increase in VMT will be negligible 
because the total amount of driving time remains unchanged by this 
rule.
    Comments About the Impact of the Exception on Driver Behavior. The 
NPRM asked whether the proposed rule would change drivers' behavior 
upon encountering adverse driving conditions. Multiple commenters, 
including OOIDA, ABA, IBT, other industry associations, and motor 
carriers said the provision would improve safety by allowing drivers 
the flexibility to find a safe place to park and avoid adverse driving 
conditions. However, the NSC cited research and studies arguing that 
the longer an individual is awake, the higher the likelihood of safety-
critical mistakes.
    Advocates warned that abuse of the proposed exception would likely 
increase because carriers could coerce drivers to complete trips when 
conditions are adverse or because drivers could adjust their evaluation 
of the risk and continue to drive despite the opportunity to use the 
exception to stop. Either way, Advocates said FMCSA provided no 
analysis of these possibilities and their effect on safety.
    Other commenters, including Western States Trucking Association and 
Sysco Corporation, said that the provision will not change driver 
behavior.
    FMCSA Response: FMCSA agrees with commenters that it is hard to 
predict, on an aggregate level, what behaviors may change. However, 
trade association surveys suggest that this exception is not frequently 
used. FMCSA does not believe the level of use or abuse will change 
significantly because of this rulemaking.
    Nevertheless, FMCSA agrees with commenters that the additional 
flexibility provided by the revised

[[Page 33415]]

exception will assist drivers in avoiding perilous conditions. FMCSA 
emphasizes that this change will not increase the driving time 
available during adverse driving conditions. By increasing duty time 
without increasing driving time, this change will provide the drivers 
with more non-driving options to safely respond to an adverse driving 
condition.
    FMCSA does not believe that changes to the adverse driving 
conditions exception will mean that drivers are awake longer. The 
studies raised by commenters did not look at workdays with 
opportunities for rest or sleep in them. Additionally, as pointed out 
by OOIDA, ABA, IBT, other industry associations, and motor carriers, 
drivers may utilize the additional duty time provided by this change to 
take a break from driving that they may not have taken otherwise.
    Comments About the Frequency of Adverse Conditions. The NPRM asked 
drivers whether they expected to use the proposed exception more often. 
Many commenters predicted that drivers would use the exception more 
often, especially if the definition were clarified.
    The U.S. Chamber of Commerce, however, does not anticipate 
increased use because its motor carrier members do not regularly use it 
in the first place. Other commenters also stated that drivers will not 
use the provision more often. The National Association of Small 
Trucking Companies said that the only reason for a change in the 
frequency of use would be if a truck driver began working in a new 
region. A motor carrier argued that driver behavior, in terms of making 
the decision whether to use the exception or the frequency of use often 
to use the exception, will not change because the definition of 
``adverse driving conditions'' remains unchanged.
    FMCSA Response: FMCSA does not believe the changes adopted today 
are likely to increase significantly the use of the exception, but is 
unable to estimate changes in the frequency on an industry-wide level. 
The change provides drivers with a better opportunity to use the 
additional driving time already allowed under the current rule such 
that the adverse conditions that necessitate driving beyond the 14th-
hour of the work shift may be addressed provided the driver can reach 
an appropriate stopping point without exceeding 13 hours of driving 
time.
    Definition of Adverse Driving Conditions; Driver and Dispatcher 
Knowledge. The NPRM asked for public comment about potential 
modifications or additions to the definition of ``adverse driving 
conditions.'' Commenters asked for both a broader definition, as well 
as a more specific definition.
    More Detailed Definition. OOIDA, TruckerNation, other industry 
associations, and motor carriers said the definition should be expanded 
to include all unpredictable conditions that a driver may face, such as 
traffic congestion, vehicle accidents, construction, or road closures. 
Multiple commenters and drivers said the proposal should specifically 
define adverse driving conditions to embrace non-weather conditions, 
including Federal and State safety inspections, unexpected loading or 
unloading issues at shippers and receivers, and truck breakdowns.
    Schneider National Carrier, Inc. recommended that the adverse 
driving conditions exception be available to drivers only once per 
week. Schneider added that the exception should not be allowed to be 
combined with the use of the split sleeper berth option or the proposed 
split-duty provisions. The American Moving and Storage Association 
recommended also allowing carriers to use the adverse driving 
conditions exception for conditions known before dispatch.
    TruckerNation suggested requiring an option on an ELD for a driver 
to upload evidence or a detailed annotation to establish and document 
adverse driving conditions.
    Road Safe America, the Trucking Alliance, ATA, Advocates, a few 
industry associations and motor carriers said that the definition 
should be clarified, but not expanded. Advocates and Uline believe 
adverse driving conditions should be defined as accurately and narrowly 
as possible, and that the situations under which the exception may be 
used should be clarified to minimize abuse. ATA conducted a survey of 
its members, some of whom said that ``adverse'' should be narrowly 
defined to include only Federal or State declared emergencies, while 
others favored the inclusion of all unforeseen road conditions.
    Broader Definition. OOIDA recommended replacing the term 
``adverse'' with ``unforeseen'' to be more encompassing. The U.S. 
Chamber of Commerce proposed a definition in which ``adverse driving 
conditions'' would be any conditions which could not be predicted at 
the time of dispatch, thereby granting flexibility to both drivers and 
dispatchers. A few industry associations recommended that FMCSA expand 
the definition to include specific provisions for livestock haulers. 
CVSA recommended making the definition like the Canadian federal 
definition.
    Under the current definition, adverse driving conditions must not 
have been known to the dispatcher when the run began. The Agency asked 
whether the driver's lack of knowledge should be used as a precondition 
for the exception. FMCSA also asked whether the requirement for lack of 
advance knowledge at the time of dispatch should be eliminated.
    Multiple commenters, including OOIDA, ATA, and motor carriers, said 
the driver knows the status of road conditions better than a dispatcher 
could, so the driver should be responsible for making safety decisions. 
TruckerNation stated that advance knowledge should not be a requirement 
and that, as with all safety decisions, discretion should be left to 
the driver. ATA acknowledged that dispatchers may be aware of adverse 
driving conditions before drivers, so dispatchers should continue to 
notify drivers.
    OOIDA and the Association of American Railroads and the American 
Short Line and Regional Railroad Association said the requirement for 
the lack of advance knowledge at the time of dispatch should be 
eliminated because it prevents drivers from using the provision if road 
conditions change after dispatch.
    No Changes. Other commenters, including IBT, California Highway 
Patrol, and the Truckload Carriers Association, recommended that there 
be no changes to the current definition.
    FMCSA Response: FMCSA declines to make the definition applicable to 
specific sectors of the industry or to cover situations not 
contemplated by the current definition. The Agency also declines to 
exclude situations currently covered. Many of the suggested expansions 
would be covered under a reasonable interpretation of the current 
definition; inconsistent interpretations might be addressed best by 
training and further outreach efforts. Although the Agency does not 
believe the current definition is vague, it nonetheless has revised the 
definition for enhanced clarity.
    Agency guidance concerning the exception makes clear that it covers 
only situations that occur after a driver started her or his trip.\17\ 
This final rule does not deviate from that principle. The exception 
does not cover detention time, breakdowns, or enforcement

[[Page 33416]]

inspections--factors that are to be anticipated in the industry. Nor 
does it cover things such as road construction or detours except when 
they could not reasonably be known before the driver started driving, 
such as accidents that significantly interfere with traffic movement.
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    \17\ See Interpretations under the HOS rules, Sec.  395.1, 
https://www.fmcsa.dot.gov/regulations/title49/part/395.
---------------------------------------------------------------------------

    The exception is mainly meant to cover situations outside a driver 
or motor carrier's control, and the Agency does not expect it to be 
invoked frequently. Thus, the Agency declines to limit its use to a 
fixed frequency or in combination with unrelated provisions of the HOS 
regulations or to expand on the current industry practice of 
documenting use of the exception on a driver's RODS.
    However, the Agency believes clarification is appropriate given the 
common availability and use of technology that can provide motor 
carriers and drivers notice of adverse weather (and sometimes road) 
conditions. The definition has been revised somewhat to recognize that 
drivers on the road can evaluate situations that could not be foreseen 
before dispatch or the start of a duty day (or after a sleeper berth 
period). As revised, the definition covers conditions that are unknown, 
or could not reasonably be known, to the driver immediately before the 
start of the duty day or before resuming driving after a sleeper berth 
break, or to the motor carrier immediately before dispatching the 
driver. FMCSA believes that this change to the definition will lessen 
the need for future regulatory guidance. Furthermore, this change will 
not increase available driving time beyond what is currently allowed by 
the exception.
5. 30-Minute Break
    NPRM. FMCSA proposed to require a 30-minute break if more than 8 
consecutive hours of driving (instead of 8 hours after coming on-duty) 
has passed without at least one 30-minute change in duty status. This 
would allow any 30 minutes of non-driving time to qualify as a break, 
i.e., on-duty (not driving) time, off-duty time, or sleeper berth time. 
Many drivers have interruptions of their driving time during normal 
business operations, such as loading or unloading a truck, completing 
paperwork, or stopping for fuel.
    Under the current rules, the break is: (1) Required to be off-duty 
time during which no work, including paperwork, may be performed, and 
(2) triggered after 8 hours on-duty time, regardless of the time spent 
driving. The flexibility provided by the NPRM would have allowed these 
normal breaks from driving to count as an interruption of the 8 hours 
of driving status (i.e., ``time on task'' in the research literature), 
provided the break lasts at least 30 minutes. The proposed changes to 
the 30-minute break provision would not have allowed an increase in 
maximum driving time during the work shift or driving after the 14th 
hour from the beginning of the work shift.
    The NPRM sought information and data on the impacts of changing the 
30-minute break provision, in part to better assess its potential costs 
and benefits. Specifically, the Agency asked:
     Would you take fewer total breaks from driving with this 
change? How many and when would those breaks have occurred during your 
route?
     Do you expect to still take a 30-minute break if you have 
less than 8 hours of drive time? If so, would you take that break on-
duty or off-duty?
     If you no longer need to take a 30-minute break, how would 
you expect to spend this additional time?
     How would this provision change your scheduling and 
planning?
     Do you expect to drive more miles or hours based on this 
change? Do you expect to be able to complete additional ``runs''?
    Additionally, the Agency acknowledged that many commenters to the 
ANPRM specifically asked that the 30-minute break requirement be 
eliminated entirely and considered that as an alternative under E.O. 
12866. However, the NPRM said that, without the benefit of further 
information, it would not be appropriate to eliminate the 30-minute 
break. Given that the flexibility allowed in the proposal would 
alleviate many of the concerns expressed by commenters, in the NPRM 
FMCSA sought further information on the effect of eliminating the break 
requirement altogether. Specifically:
    (1) What would be the safety impact of eliminating the required 
break, potentially allowing up to 11 consecutive hours of driving?
    (2) What has been the cost to your company of complying with the 
30-minute break rule since the compliance date for that rule, July 1, 
2013?
    (3) How often do work shifts require an individual to drive more 
than 8 hours without at least a 30-minute change in duty status?
    (4) Would eliminating the break requirement result in greater cost 
savings than the current proposal? If so, what would be the amount of 
these cost savings?
    Commenters Supporting the Proposed Revision. Numerous commenters, 
including individual commenters, drivers, and some industry 
associations, supported the proposed changes for a variety of reasons, 
among them:
     Increased driver control and flexibility;
     Shortened on-duty hours, reducing fatigue;
     Increased control over break-time activities (i.e. using 
the break to load or fuel);
     Simplified implementation; and,
     Short-haul trip benefits.
    Several commenters said, counterintuitively, that the 30-minute 
break made them more tired. The implication of such arguments seems to 
be that the focus on driving creates tension, which dissipates when 
drivers stop. Having relaxed against their will for 30 minutes, drivers 
may then find it difficult to recover their previous intensity, which 
feels to them like exhaustion--but does not have that effect. Virtually 
all commenters argued that the 30-minute break did not improve safety, 
and some even asserted that increases in CMV crashes and fatalities in 
recent years are attributable to counter-productive regulations like 
the 30-minute rule.
    ATA described new research that the association believed suggested 
that there is additional benefit relative to an on-duty break. The 
Trucking Alliance and CVSA also said that a 30-minute on-duty break 
would not decrease safety for drivers needing a break.
    The International Food Service Distributors Association stated 
that, in some cases, the proposal would allow food-service distributors 
to add additional stops to a route, maximizing efficiency and reducing 
traffic.
    FMCSA Response: The Agency agrees with the commenters that the 30-
minute off-duty break generates pressure as drivers attempt to keep on 
schedule. Under certain circumstances, it may even push them to drive 
more aggressively than they would otherwise have done in the latter 
half of the 14-hour driving window, despite the fact the total driving 
time up to that point may have been limited by a variety of factors.
    Identifying causal connections between particular rules and safety 
outcomes is difficult, many factors play a role in most crashes, and 
separating their individual contribution is often impossible. The best 
evidence on the effect of breaks is provided by the 2011 Blanco study, 
discussed in the NPRM and elsewhere in this rule.\18\ While

[[Page 33417]]

FMCSA has concluded that both on-duty breaks and off-duty breaks 
provide safety benefits essentially equivalent to those produced by an 
off-duty break (as well as productivity benefits), the Blanco study 
demonstrates that breaks of at least 30 minutes--whether on or off-
duty--reduce SCEs in the hour after driving resumes.
---------------------------------------------------------------------------

    \18\ ``The Impact of Driving, Non-Driving Work, and Rest Breaks 
on Driving Performance in Commercial Motor Vehicle Operations.'' 
Blanco, 2011. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    FMCSA notes that many of the commenters who opposed a break of any 
kind provided inconsistent arguments. For example, the National 
Association of Small Trucking Companies quoted with approval a long-
time member who said that ``99.9 percent of all drivers will take a 
break of more than 30 minutes in any given 8-hour period'' and 
therefore ``the 30-minute mandatory break should disappear.'' But if 
drivers routinely take 30-minute breaks during the work shift, as 
others have also noted, neither the previous break nor the amended 
break requirement adopted today could be as disruptive as many 
commenters have claimed. Furthermore, a large number of commenters 
asserted that they should be allowed to take breaks when they feel 
tired, not when an inflexible rule requires a break. Leaving aside the 
fact that the FMCSRs never prevent drivers from taking breaks, many of 
these comments imply that the 30-minute break typically interrupts 
drivers' schedules at the 8th hour. In fact, both the previous 
regulations and this final rule allow drivers to take a break at any 
point during an 8-hour period, offering latitude to select a convenient 
time.
    Exemptions from the 30-minute break previously granted by FMCSA do 
not imply that the rule is ineffectual, as some commenters claimed, but 
rather that certain operations already include significant break time; 
require driver attendance when transporting hazardous cargo without 
other work, similar to Sec.  395.1(q); depend on oversize vehicles 
which, because of their unusual size, are difficult to park for a 
break; or involve the transport of live animals that could be 
endangered by a break.
    Commenters Opposed to the Proposed Revision. Some individuals and 
drivers stated, without further explanation, that the 30-minute break 
should remain as off-duty time. Some individual commenters and drivers 
said they did not want to allow an on-duty 30-minute break because:
     Drivers would have to adjust schedules.
     Managers might abuse the on-duty break.
     Taking the break on-duty could fatigue drivers.
    Some commenters, including a few industry organizations, cited 
research discussing fatigue, arguing that the 30-minute break must be 
off-duty to ensure that a driver will physically rest. The Truck Safety 
Coalition, et al. cited evidence saying that ``driving time that 
occurred later in the driver's workday, due to performing nondriving 
tasks earlier in the workday, had a negative safety effect.'' \19\
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    \19\ Soccolich, S., Blanco, M., Hanowski, R., Olson, R., Morgan, 
J., Guo, F., & Wu, S.C. (2013) ``An analysis of driving and working 
hour on commercial motor vehicle driver safety using naturalistic 
data collection.'' Accident Analysis & Prevention, Volume 58, 2013, 
Pages 249-258.
---------------------------------------------------------------------------

    Advocates argued that many of FMCSA's claims, reasoning, and 
examples presented for the proposed changes to the 30-minute break are 
not valid, deeply flawed, inapplicable, and lack explanation and/or 
analysis.
    FMCSA Response: After reviewing the comments, FMCSA has not changed 
its conclusion that it should allow the 30-minute break to be met 
either by on-duty, not-driving time or by off-duty time. Also, the 
Agency concludes it is appropriate to allow drivers the discretion to 
take the 30-minute break at any point in the 8 hours after they start 
driving. Blanco, et al. (2011) found that the 1-hour window after a 
break from driving is associated with a significant reduction in SCE 
rate compared to the 1-hour window before a break.\20\ The study found 
that any type of break was beneficial to the driver, whether the break 
consisted of work activities or rest. To counter the effects of driving 
time that occurred later in the driver's workday, the Soccolich article 
stated ``breaks were found to be a successful countermeasure to address 
the negative effects of time-on-task.''
---------------------------------------------------------------------------

    \20\ Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich, 
S., Wu, S.C., & Guo, F. (2011) ``The Impact of Driving, Non-Driving 
Work, and Rest Breaks on Driving Performance in Commercial Motor 
Vehicle Operations.'' Available in this rulemaking docket.
---------------------------------------------------------------------------

    Estimating a Change in SCEs with the 30-Minute Break. The NPRM 
requested comments regarding how to estimate the change in SCEs from 
this temporal shift in the 30-minute break. Safety for the Long Haul 
Inc. provided research and data sources, arguing that SCEs are no 
longer a valid safety measurement and that FMCSA should choose another 
method of estimation. Safety for the Long Haul Inc. also commented on 
Naturalistic Driving (ND) Mixed-SCE Methodology studies, arguing that 
current SCE datasets are invalid, and that the SCE definition should be 
reconsidered. No other comments were received regarding the use of 
SCEs.
    FMCSA Response: FMCSA disagrees with the comments criticizing the 
Agency's use of SCEs. SCEs are a commonly used crash surrogate in 
traffic safety and naturalistic driving research. Crash surrogates are 
safety-related events (e.g., time to collision, lane deviations, near 
crashes, etc.) used to evaluate crash potential and probabilities. 
Crash surrogates have been extensively used in the traffic safety 
research domain. There is a long history of methodologically diverse 
transportation studies that used crash surrogates as dependent 
variables. Crash surrogates are regularly used by research 
organizations worldwide, including an active research community 
affiliated with the Transportation Research Board (TRB) of the National 
Academies of Sciences, Engineering, and Medicine (National Academies) 
on this topic. The Subcommittee on Surrogate Measures of Safety, 
sponsored by the TRB Committee on Safety Data Evaluation and Analysis, 
meets regularly to discuss issues pertaining to crash surrogates. The 
goal of the subcommittee is to examine the suitability and use of 
surrogate measures of safety to address the lack of available crash 
data. One output of this subcommittee is a document that provides an 
overview of how surrogate measures are defined and used in 
transportation research.\21\
---------------------------------------------------------------------------

    \21\ ``Surrogate Measures of Safety'', Tarko, Davis, Saunier, 
Sayed, and Washington, 2009. Available at https://www.semanticscholar.org/paper/Surrogate-Measures-of-Safety-Tarko-Davis/30801fa815159dad645eed6f1e3dbbbba2f30150, last accessed 
January 21, 2020.
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    Although the features of SCEs can vary based on the research 
question posed in a particular study, an SCE has been defined as a 
``crash, near-crash, crash-relevant conflict, or unintentional lane 
deviation'' that often has a measurable kinematic signature, including 
longitudinal and lateral acceleration, yaw rate, and active safety 
system activations.\22\ SCEs, such as near-crashes, are used in various 
transportation modes. In rail, SCEs are defined as ``risk to the health 
and safety of any individual or risk of damage or destruction to any 
property, or any incident which may reduce the safety or integrity 
levels of any item of Railway Infrastructure.'' \23\ The FAA also 
relies

[[Page 33418]]

on crash surrogates, including near midair collisions. As outlined in 
the Aeronautical Information Publication, crash surrogates identify 
unsafe conditions, allowing issues to be corrected before they lead to 
crashes and other incidents.\24\
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    \22\ ``The Risk of a Safety-critical Event Associated with 
Mobile Device Subtasks in Specific Driving Contexts'', Fitch, 
Hanowski, Guo, 2014. https://vtechworks.lib.vt.edu/bitstream/handle/10919/49687/NSTSCE%20Final%20Report%20for%20Cognitive%20Distraction.pdf and 
https://www.annualreviews.org/doi/abs/10.1146/annurev-statistics-030718-105153, last accessed January 21, 2020.
    \23\ https://www.lawinsider.com/dictionary/safety-critical-event, last accessed January 21, 2020.
    \24\ https://www.faa.gov/air_traffic/publications/atpubs/aip_html/part2_enr_section_1.16.html, last accessed January 21, 
2020.
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    SCEs and crashes have common characteristics (e.g., kinematic 
signature), but SCEs occur with greater frequency than crashes. As 
crashes are rare events, studying SCEs allows researchers to gain 
insight into the factors that lead to crash genesis. The National 
Academies advocated several principles to determine the validity of 
using specific types of SCEs as crash surrogates.\25\ Use of SCEs is 
warranted if: (1) It can be shown the SCEs have causal factors 
identical to those of crashes, and (2) there is a strong correlation in 
the frequency of SCEs over different driving scenarios. To illustrate 
these principles in practice, a study found that near crashes provided 
useful information for the risk of distraction while driving.\26\ A 
different study found g-force thresholds were a good predictor of crash 
risk.\27\
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    \25\ ``Commercial Motor Vehicle Driver Fatigue, Long-Term Health 
and Highway Safety; Research Needs.'' Rizzo et al., 2016. https://books.google.com/books?hl=en&lr=&id=zEnnDAAAQBAJ&oi=fnd&pg=PR1&dq=The+National+Academies+Rizzo,+Matthew+2016&ots=U7c3zm0EN4&sig=lwF1gq6CttdIOtsIV0C8puIE-kI#v=onepage&q=The%20National%20Academies%20Rizzo%2C%20Matthew%202016&f=false, last accessed January 21, 2020.
    \26\ ``Near Crashes as Crash Surrogate for Naturalistic Driving 
Studies'' Guo, F., Klauer, S.G., Hankey, J.M., Dingus, T.A. (2010) 
https://doi.org/10.3141/2147-09, last accessed February 7, 2020.
    \27\ ``Do Elevated Gravitational-Force Events While Driving 
Predict Crashes and Near Crashes? American Journal of Epidemiology. 
2012;175(10):1075-1079.'' Simons-Morton et al., 2012. https://doi.org/10.1093/aje/kwr440, last accessed February 6, 2020.
---------------------------------------------------------------------------

    Crash surrogate research has a long history in surface 
transportation safety that can be traced back to the 1960's. For 
example, ``Traffic Conflict'' has been used in many studies as a 
measure of crash potential, and the Federal Highway Administration 
developed ``guidelines to diagnose safety and operational problems and 
evaluate the effectiveness of safety countermeasures, `Traffic Conflict 
Techniques for Safety and Operations.' '' \28\ Many research 
organizations, both in the USA and internationally, use SCEs in their 
naturalistic driving studies. A sample of organizations involved in 
naturalistic driving research includes: University of Michigan 
Transportation Institute; the Pennsylvania State University; University 
of Iowa; University of California; the Virginia Tech Transportation 
Institute (VTTI); the Volpe National Transportation Systems Center; 
SAFER Vehicle and Traffic Center in Sweden; SWOV Institute for Read 
Safety Research in The Netherlands; and several European consortium 
projects including UDRIVE, INTERACTION, PROLOGUE, DaCoTA, and 2-BE-
SAFE.\29\
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    \28\ ``Traffic Conflict Characteristic-Accident Potential at 
Intersections.'' Perkins and Harris, 1968. https://www.trid.trb.org/view/1310479, last accessed February 6, 2020.
    \29\ ``Characteristics of turn signal use at intersections in 
baseline naturalistic driving.'' Sullivan, Bao, Goudy, and Konet, 
2015. https://dx.doi.org/10.1016/j.aap.2014.10.005, Last accessed 
February 6, 2020. ``Screening Naturalistic Driving Study Data for 
Safety-Critical Events.'' Wu and Jovanis, 2013. https://doi.org/10.3141/2386-16 Last accessed February 6, 2020. ``Prevalence and 
Distribution of Young Driver Distraction Errors in Naturalistic 
Driving.'' Carney, McGehee, and Reyes, 2014. https://www.ppc.uiowa.edu/publications/prevalence-and-distribution-young-driver-distraction-errors-naturalistic-driving, Last accessed 
February 6, 2020. Ohn-Bar, Martin, Trivedi, 2013. ``Driver hand 
activity analysis in naturalistic driving studies: challenges, 
algorithms, and experimental studies.'' https://cvrr.ucsd.edu/publications/2013/hand_JEI13.pdf, Last accessed February 6, 2020. 
``Estimating Crash Risk. Ergonomics in Design: The Quarterly of 
Human Factors Applications.'' Dingus, Hanowski, and Klauer, 2011. 
``Distracted Driving and Risk of Road Crashes among Novice and 
Experienced Drivers.'' Klauer et al., 2014. https://www.nejm.org/doi/full/10.1056/NEJMsa1204142, last accessed February 6, 2020. 
``Exposure-risk analysis of large truck naturalistic driving data'' 
https://trid.trb.org/view/1156430, last accessed February 6, 2020. 
``Naturalistic Study of Truck Following Behavior.'' Knipling, et al. 
(2005). https://trid.trb.org/view/1156430. ``Naturalistic Study of 
Truck Following Behavior.'' Nodine, Lam, Yanagisawa, and Najm, 2017. 
https://doi.org/10.3141/2615-05, last accessed February 6, 2020. 
``Analysis of Naturalistic Driving Study Data: Safer Glances, Driver 
Inattention, and Crash Risk.'' Victor, et al., 2015. https://www.researchgate.net/publication/281107412_Analysis_of_Naturalistic_Driving_Study_Data_Safer_Glances_Driver_Inattention_and_Crash_Risk, last accessed February 6, 2020. 
``Exploring application areas for naturalistic driving observation 
studies: potential for research on ITS.'' van Nes, N., Backer-
Grondahl, A., and Eenink, R., 2010. https://www.swov.nl/en/publication/exploring-application-areas-naturalistic-driving-observation-studies-potential-research, last accessed on February 6, 
2020. https://www.udrive.eu/files/SWOV_Factsheet_Naturalistic.pdf, 
last accessed on January 21, 2020.
---------------------------------------------------------------------------

    Thus, the use of crash surrogates in understanding traffic crashes 
is nothing new, but rather a well-established and acceptable approach 
in understanding crash genesis across multiple transportation 
modalities. Furthermore, naturalistic driving research is widely used, 
by many research organizations in both the USA and internationally, and 
is an accepted, valid method for studying traffic safety.
    Changes to Schedules due to the 30-Minute Break Changes. In the 
NPRM, FMCSA asked if drivers would take fewer breaks from driving under 
the proposed change and when those breaks would occur. Survey results 
from OOIDA indicate that its members did not anticipate taking fewer 
breaks as a result of the proposed changes. Other commenters said that 
they would not change their schedules. A commenter involved in local 
operations did not expect any impact on the frequency or timing of 
breaks. The National Propane Gas Association thought the changes would 
allow a rest break later in the driver's route, relieving some driving-
related fatigue.
    Some commenters said that additional flexibility would increase 
their ability to plan the required break times around deliveries, and 
thus increase their efficiency. For example, representatives from the 
propane industry noted that these changes would increase their ability 
to respond to short-term fluctuations in demand, such as holiday times, 
extreme cold spells, and the recent corn crisis in the Midwest. Some 
other commenters, however, believed that these changes would not have 
any impact on scheduling. ACPA noted that the current requirements for 
an off-duty break affect its members' ability to efficiently schedule 
concrete deliveries.
    FMCSA Response: The comments received on this question show that 
the changes to the 30-minute rule are not likely to have an adverse 
impact on safety because the changes would not significantly decrease 
the number of breaks being taken by drivers. Based on the feedback 
provided during the public listening sessions and the written comments 
provided by individuals identifying themselves as drivers, the Agency 
believes drivers routinely take breaks during their work shifts. While 
those off-duty breaks may be less than 30 minutes in duration, and 
other breaks may be recorded as on duty/not-driving, they have and will 
continue to take place. FMCSA emphasizes that the only drivers who are 
no longer required to take a 30-minute break under this provision are 
drivers who drive for less than 8 hours in a day and who are therefore 
unlikely to accumulate the levels of fatigue necessitating a mandatory 
30-minute break in addition to breaks that naturally occur during their 
workday.
    FMCSA believes the increased scheduling flexibility afforded to 
drivers with these changes may increase their efficiency, but is 
unlikely to significantly affect driving hours or the amount of work 
completed in a shift. The changes will give drivers greater ability to 
plan their breaks, and allow for on-duty activities such as time spent 
at loading docks to fulfill the break

[[Page 33419]]

requirement. This increased flexibility could increase VMT for an 
individual driver during a given shift, but would affect only the 
amount of work performed in shifts taking more than 13.5 hours to 
complete. This is because the 30-minute break during a shift that is 
less than 13.5 hours would not result in reaching the 14-hour limit, 
and thus would not limit the amount of work performed.
    FMCSA analyzed recent data from VTTI and found that shifts that ran 
13.5 hours or more comprise less than four percent of all shifts.\30\ 
For these shifts that do require more than 13.5 hours of duty time to 
complete, the new break requirements may allow for a shift to be 
completed on time rather than carry over to the next duty period. 
However, FMCSA does not anticipate that increasing a given shift by 30 
minutes of on-duty time would enable motor carriers to meaningfully 
increase aggregate VMT. FMCSA notes that ACPA members currently operate 
under an exception that allows for on-duty time (i.e., the drivers are 
not necessarily free to leave the work site to pursue activities of 
their own choosing) to fulfill the 30-minute off-duty break as long as 
no work is being performed.\31\ This final rule will allow for ACPA 
members to work under the same conditions as provided by this 
exception, and thus FMCSA does not expect any changes in the scheduling 
abilities of concrete pumping operations. Therefore, FMCSA did not 
estimate impacts resulting from changes to schedules or planning that 
may result from the final rule.
---------------------------------------------------------------------------

    \30\ See the RIA for more details.
    \31\ 83 FR 54975, November 1, 2018.
---------------------------------------------------------------------------

    Impact on Individuals Driving Less than 8 Hours. The NPRM proposed 
that the break occur no later than after 8 hours of driving, and the 
Agency asked drivers who drive less than 8 hours if they anticipated 
taking breaks, even though it would not be required.
    A few individuals and trade associations said drivers would still 
take a break with less than 8 hours of driving. Several commenters said 
they would take their break off-duty if driving less than 8 hours. 
Several others said they would take their break on-duty if driving less 
than 8 hours. IBT said more than half of its survey respondents would 
take their 30-minute break as off-duty time even if less than 8 hours 
of driving time had passed since their last change in duty status.
    OOIDA provided survey statistics showing that over 50 percent of 
survey respondents anticipate that drivers would still take a break 
with less than 8 hours driving, and most of those drivers would 
continue to take an off-duty break.
    A few trade associations said that the answer would change for each 
individual driver due to personal scheduling choices. TruckerNation 
stated that the opportunity to use on-duty, not driving time as a 30-
minute break would encourage and incentivize drivers to use their break 
when they might otherwise be interrupting the driving task.
    Conversely, a few drivers said they would not take a break if they 
were driving less than 8 hours.
    FMCSA Response: Although the comment responses were almost equally 
split, the Agency believes most drivers who drive for fewer than 8 
hours would take some sort of break during the work shift due to the 
naturally occurring breaks (such as when cargo is loaded or unloaded) 
that occur during the workday. FMCSA believes the on-duty breaks from 
the time on task would be beneficial and the Agency encourages drivers 
to take a break irrespective of whether they have been operating the 
vehicle for 8 consecutive hours.
    Comments About the Impact of the 30-Minute Break on VMT. FMCSA 
asked whether the changes to the 30-minute break provision would result 
in drivers increasing their VMT or driving hours. Commenters responded 
that the proposed changes would increase the flexibility to plan their 
schedules. Commenters were divided, however, on how this increased 
flexibility would affect driving and work time. OOIDA believes that 
increased flexibility would improve driving efficiency, thus allowing 
drivers to increase VMT while not increasing driving hours. Some 
commenters, including industry associations, believe that this change 
would allow drivers to add additional deliveries to their shift. Still 
others, including drivers and an industry association, believe that 
this change would not have a significant impact on VMT, driving hours, 
or the number of deliveries completed by drivers in a shift.
    FMCSA Response: FMCSA disagrees with commenters that the increased 
flexibility afforded to drivers by these changes will increase 
aggregate VMT. FMCSA does not expect the changes to increase 
significantly driving hours or the number of deliveries that drivers 
can complete in a shift. Due to the 14-hour window for an on-duty day, 
the only way that the proposed changes would affect the amount of work 
completed in a shift is if the shift would have required more than 13.5 
hours. Under the previous rules, shifts of 13.5 hours or more would 
need to have been truncated for an off-duty break after 8 hours of on-
duty time. As noted above, FMCSA analyzed data on work hours from VTTI 
and found that less than four percent of all shifts surpass the 13.5-
hour limit where they would be impacted by the proposed changes.\32\
---------------------------------------------------------------------------

    \32\ See the RIA for more details.
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    For truckload (TL) drivers, FMCSA does not expect that the proposed 
changes would allow drivers to complete additional deliveries. One way 
that the proposed changes may affect work hours is that, if a driver 
has a run that requires more than 13.5 hours of duty time to complete, 
the new break requirements may allow completion of the run in one day 
rather than having it carry over to the next duty period. In contrast 
to TL drivers, the proposed changes may enable less-than-truckload 
(LTL) drivers to add additional deliveries to their routes or shift 
deliveries from one driver to another. The Agency, however, does not 
have any data or information to suggest that the proposed changes would 
result in an increase in the aggregate number of deliveries or the 
amount of freight moved in the LTL sector. Therefore, FMCSA has not 
estimated a change in VMT or deliveries resulting from the final rule.
    Total Elimination of the Break. The NPRM asked a series of 
questions about changes to the 30-minute break.
    (1) What would be the safety impact of eliminating the required 
break, potentially allowing up to 11 consecutive hours of driving?
    Some commenters argued that drivers rarely drive for the full 11 
hours, and that there was thus no need for a 30-minute break rule. 
Drivers and carriers also noted that drivers take bathroom and food 
breaks within their 11-hour driving window, regardless of a mandated 
break.
    Several commenters questioned the safety of eliminating the 30-
minute break. The NSC cited research showing that the longer people are 
required to perform a task, the more their cognitive and physical 
functions (attention, speed, and accuracy) decline. Road Safe America 
argued that the break is important for safety, noting research included 
in the 2011 HOS rule which found that crash risk was elevated with 
fatigue. Citing numerous studies, Advocates argued that the body of 
research shows that longer driving hours are directly related to 
increased crash risks from at least the 7th through the 11th 
consecutive hour of driving. IBT, citing research, claimed that as pay

[[Page 33420]]

per hour increases, but work hours decrease, and safety increases.
    OOIDA, on the other hand, said eliminating the break would allow 
drivers to more safely identify and schedule opportunities to rest at 
truck stops and other locations for safe parking. CVSA said it does not 
believe there is evidence that the 30-minute break improves safety. A 
few motor carriers and individual drivers said that the 30-minute break 
forced them to pull over at inopportune or dangerous times.
    (2) What has been the cost to your company of complying with the 
30-minute break rule since the compliance date for that rule, July 1, 
2013?
    OOIDA said the cost of the rule is a mile per minute, costing 
drivers 30 miles per break, in addition to causing longer days, late 
deliveries, and emotional stress. The American Moving and Storage 
Association responded that eliminating the 30-minute break could 
provide a full extra workday for drivers each month and save $10,000 
per month in labor costs.
    (3) How often do work shifts require an individual to drive more 
than 8 hours without at least a 30-minute change in duty status?
    OOIDA commented that Sec.  395.3(a)(3)(ii) requires drivers to take 
a 30-minute off-duty break if more than 8 hours have passed since the 
end of their last off-duty or sleeper berth period.
    (4) Would eliminating the break requirement result in greater cost 
savings than the current proposal? If so, what would be the amount of 
these cost savings?
    OOIDA responded that eliminating the break requirement outright 
would result in greater cost savings and safety benefits than the 
current proposal at an estimated cost savings of one mile per minute. 
OOIDA supported the proposed 30-minute on-duty option, but would prefer 
elimination of the break.
    The question about the value of a 30-minute break elicited sharp 
disagreement between safety groups and IBT on the one hand and industry 
representatives and CVSA on the other. The former cited studies showing 
that fatigue increases and cognitive abilities decline with time on 
task. They argued that eliminating the 30-minute break requirement 
would potentially allow up to 11 consecutive hours of driving, with 
significantly increased safety risks. The latter said the rule 
increases stress as drivers try to complete a run before the end of the 
8th hour, with adverse effects on safety. Furthermore, they claim that 
the rule is unnecessary because most drivers take at least a 30-minute 
break during the workday, though some of these breaks combine on- and 
off-duty time. Drivers are compelled to take an additional break that 
has no added value. CVSA noted that the rule is hard to enforce and 
that evidence for its safety benefits is not clear.
    FMCSA Response: The changes to the 30-minute break rule are adopted 
as proposed in the NPRM. FMCSA continues to believe that 11 consecutive 
hours of driving should not be allowed, even though relatively few 
drivers may undertake such runs. The Blanco study, discussed elsewhere 
in this final rule, shows that breaks reduce SCEs in the hour of 
driving after a break. However, because that study did not clearly 
demonstrate a significant difference between off-duty and on-duty 
breaks, the Agency is allowing drivers the discretion to take either 
type of 30-minute break at any point before the 8th consecutive hour of 
driving. Some of the commenters who oppose the break requirement admit 
that an on-duty break provides real-world advantages since it allows 
drivers to perform routine but necessary non-driving tasks, such as 
refueling, instead of sitting idle and frustrated, while the clock 
ticks off 30 minutes. Although many commenters implied--erroneously--
that the previous rule required a break at a specific time, the rule 
adopted today will enable drivers who already take on-duty (or 
partially on-duty) 30-minute breaks earlier in their shift to use those 
breaks in fulfillment of the requirement. Finally, this final rule is 
easily enforceable, as ELD records show whether a vehicle is in motion 
or stopped.
    While OOIDA argued that the cost of the 30-minute break is the 
driver's per-mile rate times the 30 minutes he or she is not allowed to 
drive (at an assumed 60 mph), this statement does not provide a basis 
for a macro-economic estimate, since there are no data on the number of 
drivers who drive beyond the 8th hour, the average per-mile rate for 
truck transportation, or the average speed of CMV operations. OOIDA's 
conclusion that eliminating the break requirement would generate net 
benefits is therefore speculative at best. In any case, FMCSA believes 
CMV operators should not drive more than 8 hours without a 30-minute 
time off-task break.
    New Opportunities If the 30-Minute Break Were Eliminated. The NPRM 
asked drivers how they planned to spend additional time if the 30-
minute break was totally eliminated. A few respondents said they would 
spend more time at home with the more flexible 30-minute break, while 
others said they would perform non-driving tasks, and have time for 
extra deliveries. Most respondents to the OOIDA survey said that more 
flexibility would allow them to complete their work for the day earlier 
and get home sooner. IBT commented that its survey respondents 
indicated that a 30-minute break is necessary to reduce fatigue and 
that carriers are likely to use the proposal to pressure drivers to use 
breaks to work. TruckerNation reasoned that, with or without the 30-
minute break requirement, drivers are still going to stop for various 
reasons, including to refuel, eat, check load securement, and use rest 
areas.
    FMCSA Response: FMCSA agrees that the increased flexibility that 
could have been afforded by the elimination of the 30-minute break may 
have had the potential for increasing the efficiency of drivers but 
would have been unlikely to affect significantly driving hours or the 
amount of work completed in a shift. This is, as noted above, because 
an increase in work is only likely for those shifts taking more than 
13.5 hours of duty time to complete.
    Alternatives to the Single 30-Minute Break. Many commenters, mostly 
individuals and drivers, argued that the 30-minute break should be 
split up into 10- or 15-minute periods to increase flexibility. Some 
drivers said only 15 minutes were needed to refuel, do a load check, or 
use the restroom, arguing that 30 consecutive minutes was an 
unnecessary regulation.
    OOIDA, a few other industry associations, and motor carriers also 
said the 30-minute break should be split up into shorter periods of the 
drivers' choosing. OOIDA cited driver surveys, saying most drivers 
preferred splitting the break into smaller periods to increase driver 
performance and alertness. A driver and Truckers for a Cause both cited 
research that sedentary behavior is a health risk, and drivers should 
be encouraged to stop multiple times to increase circulation.
    FMCSA Response: FMCSA acknowledges that multiple breaks may be 
desirable to commenters but notes that the structure of these breaks 
would add unnecessary complexity to compliance monitoring. The Agency 
also emphasizes that many drivers will no longer be obligated to take a 
break, and that, if a driver wishes to take more frequent, shorter, 
breaks in addition to the mandatory break, he or she is free to do so.
6. Split Sleeper Berth
    NPRM. FMCSA proposed to modify the sleeper berth rule that allows 
drivers to satisfy the required 10 hours off-duty by taking two off-
duty periods, provided that neither period is less than 2 consecutive 
hours and one period

[[Page 33421]]

consists of at least 7 consecutive hours in the berth, and to allow 
both periods to be excluded from the 14-hour driving window.\33\ This 
sleeper berth exception would provide drivers greater operational 
flexibility, while affording them opportunity to obtain the necessary 
amount of restorative sleep.
---------------------------------------------------------------------------

    \33\ This rulemaking does not address sleeper berth provisions 
unique to the drivers of CMVs transporting passengers, 49 CFR 
395.1(g)(3).
---------------------------------------------------------------------------

    Motor carriers and other stakeholders were encouraged to submit 
driver record data supporting their comments in a manner that would not 
reveal the identity of an individual driver. Given research showing 
that many drivers typically sleep a little more than 6 consecutive 
hours, FMCSA also requested comments and any supporting data on the 
possibility of a 6- and 4-hour split break. Specifically, FMCSA asked:
     How often do you use the sleeper berth provision under the 
current regulations? Would you use the sleeper berth provision more or 
less if the proposed changes are finalized? How much more or less?
     How would this provision change your scheduling and 
planning?
     How often would you utilize the 7-3 hour split during an 
average week?
     Would you expect to get the same amount of sleep in the 7-
hour period as in the current 8-hour period?
     Would you expect to drive more miles or hours based on 
this change? Do you expect to be able to complete additional ``runs''?
    Specific Comments on Research. Advocates argued that the split 
sleeper berth proposal was inappropriate in view of research the Agency 
relied upon in previous HOS rulemakings. Advocates also disagreed with 
FMCSA's assertions concerning the relevance of certain studies cited in 
the NPRM preamble. The specific studies Advocates discussed are listed 
below:
     Mollicone 2007.\34\
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    \34\ Mollicone, D.J., Van Dongen, H.P.A., Dinges, D.F., 2007. 
``Optimizing Sleep/Wake Schedules in Space: Sleep During Chronic 
Nocturnal Sleep Restriction With and Without Diurnal Naps,'' Acta 
Astronautica, 60, 2007. 354-361. Available in the docket for this 
rulemaking.
---------------------------------------------------------------------------

     Belenky 2012.\35\
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    \35\ Belenky, G., Jackson, M.L., Tompkins, L., Satterfield, B., 
& Bender, A., 2012. ``Investigation of the Effects of Split Sleep 
Schedules on Commercial Vehicle Driver Safety and Health,'' 
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

     Short 2015.\36\
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    \36\ Short, M. A., Agostini, A., Lushington, K., & Dorrian, J., 
2015. ``A Systematic Review of the Sleep, Sleepiness, and 
Performance Implications of Limited Wake Shift Work Schedules,'' 
Scandinavian Journal of Work, Environment and Health, 41(5):425440. 
Available at https://www.ncbi.nlm.nih.gov/pubmed/26103467.
---------------------------------------------------------------------------

     Soccolich 2015.\37\
---------------------------------------------------------------------------

    \37\ Soccolich, S., Hanowski, R., & Blanco M., 2015. Evaluating 
the Sleeper-berth Provision: Investigating Usage Characteristics and 
Safety-Critical Event Involvement. (Report No. 17-UI-046). Available 
at https://vtechworks.lib.vt.edu/handle/10919/73954 Last accessed 
June 20, 2019.
    Soccolich, S., Hanowski, R., & Blanco M., 2015. Evaluating the 
Sleeper-berth Provision: Investigating Usage Characteristics and 
Safety-Critical Event Involvement. (Report No. 17-UI-046). Available 
at https:
---------------------------------------------------------------------------

     Mitler 1997.\38\
---------------------------------------------------------------------------

    \38\ Mitler, M.M., Miller, J.C., Lipsitz, J.J., Walsh, J.K., 
Wylie, C.D, 1997. ``The Sleep of Long-Haul Truck Drivers,'' New 
England Journal of Medicine, 337, 755-761. Available in the docket 
for this rulemaking.
---------------------------------------------------------------------------

     Hanowski 2007.\39\
---------------------------------------------------------------------------

    \39\ Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L., 
Dingus, T.A., 2007. ``The Sleep of Commercial Vehicle Drivers Under 
the 2003 Hours-of-Service Regulations,'' Accident; Analysis and 
Prevention, 39(6), 1140-5. Available in the docket for this 
rulemaking.
---------------------------------------------------------------------------

     Van Dongen 2013.\40\
---------------------------------------------------------------------------

    \40\ Van Dongen, H.P.A. & Mollicone, D.J., 2013. ``Field Study 
on the Efficacy of the New Restart Provision for Hours of Service,'' 
(FMCSA-RRR-13-058). Washington, DC: FMCSA. Available in the docket 
for this rulemaking.
---------------------------------------------------------------------------

     Dinges 2017.\41\
---------------------------------------------------------------------------

    \41\ Dinges, D.F., Maislin, G., Hanowski, R.J., Mollicone, D.J., 
Hickman, J.S., Maislin, D., Kan, K., Hammond, R.L., Soccolich, S.A., 
Moeller, D.D., and Trentalange, M., 2017. ``Commercial Motor Vehicle 
(CMV) Driver Restart Study: Final Report,'' (FMCSA-RRR-15-011). 
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

     Sieber 2014.\42\
---------------------------------------------------------------------------

    \42\ Sieber,W K.., Robinson, C.F., Birdsey, J., Chen, G.X., 
Hitchcock, E.M., Lincoln, J.E., Akinori, N., & Sweeney, M.H., 2014. 
``Obesity and Other Risk Factors: The National Survey of U.S. Long-
Haul Truck Driver Health and Injury,'' American Journal of 
Industrial Medicine, 57, 615-626. Available at https://www.ncbi.nlm.nih.gov/pubmed/24390804. (Accessed January 4, 2019).
---------------------------------------------------------------------------

     Maislin 2001.\43\
---------------------------------------------------------------------------

    \43\ Maislin, G., Rogers, N.L., Price, N.J., Mullington, J.M., 
Szuba, M.P., Van Dongen, H.P.A., and Dinges, D., 2001. ``Response 
Surface Modeling of the Effects of Chronic Sleep Restriction With 
and Without Diurnal Naps,''--Report. Available in the docket for 
this rulemaking.
---------------------------------------------------------------------------

     Wylie 1998.\44\
---------------------------------------------------------------------------

    \44\ Wylie, D., 1998. ``Commercial Motor Vehicle Driver 
Drowsiness, Length of Prior Principal Sleep Periods, and Naps,''--
Report. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

     Caldwell 1997.\45\
---------------------------------------------------------------------------

    \45\ Caldwell, J.S., et al., 1997 ``The Efficacy of Hypnotic-
Induced Prophylactic Naps for the Maintenance of Alertness and 
Performance in Sustained Operations,''--Report. Available in the 
docket for this rulemaking.
---------------------------------------------------------------------------

     Garbarino 2004.\46\
---------------------------------------------------------------------------

    \46\ Garbarino, S., et al., 2004. ``Professional Shift-Work 
Drivers Who Adopt Prophylactic Naps Can Reduce the Risk of Car 
Accidents During Night Work,''--Report Abstract. Available in the 
docket for this rulemaking.
---------------------------------------------------------------------------

     Sallinen 1997.\47\
---------------------------------------------------------------------------

    \47\ Sallinen, Harma, M., [Aring]kerstedt, T., Rosa, R., 
Lillqvist, O., 1997. ``Can a Short Napbreak Improve Alertness in a 
Night Shift?''--Report. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

     Moore-Ede 1996.\48\
---------------------------------------------------------------------------

    \48\ Moore-Ede, M., Mitchell, R.E., Heitmann, A., Trutschel, U., 
Aguirre, A., Hajamavis, H., 1996. ``Canalert '95--Alertness 
Assurance in the Canadian Railways,''--Report. Available in the 
docket for this rulemaking.
---------------------------------------------------------------------------

    There is no need to repeat the discussion of these studies included 
in the preamble to the NPRM. Since Advocates responded with extensive 
quotations from the same studies, we have also refrained from repeating 
their comments here. FMCSA's responses to Advocates' concerns are 
summarized below.
    FMCSA Response: FMCSA acknowledges that the studies cited above do 
not focus on the specific parameters of the NPRM's sleeper berth 
proposal. Nonetheless, these studies provide valuable information that 
supports the safety rationale for retaining the basic framework of the 
current HOS requirements, with certain revisions. The basic framework, 
excluding recordkeeping requirements, consists of an 11-hour limit on 
driving time following 10 consecutive hours off-duty and a prohibition 
on driving after an individual has accumulated 14-hours of on-duty time 
during a work shift. That framework also prohibits drivers from driving 
after accumulating either 60 or 70 hours of on-duty time in 7 or 8 days 
respectively, but permits them to restart their 60- or 70-hour 
``clock'' by taking at least 34 consecutive hours off duty. In 
addition, the HOS framework allows drivers who use sleeper berths to 
split the required 10 off-duty hours into two periods, with the longer 
(in the berth) of sufficient length to allow meaningful rest.
    After reviewing the research reports referenced in the NPRM and the 
Advocates' comments about them, FMCSA reaffirms its assessment that the 
changes adopted in this final rule will not decrease safety. The rule 
provides additional flexibility that is neither contrary to the 
research cited nor inconsistent with the framework described above.
    The most relevant research addresses interstate CMV drivers, 
followed by studies of other types of workers with safety-sensitive 
duties in settings where fatigue could have similarly adverse driving 
consequences. The Agency could not control, but always kept in mind, 
the demographics of the study subjects and the extent to which their 
schedules were comparable to segments of the motor carrier industry.
    For example, the average age of the subjects in the Mollicone study 
was 29.3 years (ranging from 21 to 49), versus the average age of 46.9 
among truck drivers, as estimated by the U.S. Bureau of Labor

[[Page 33422]]

Statistics; \49\ the study reported that drivers sleep progressively 
less as they get older, but the researchers did not find that a 7-hour 
sleeper berth period is inadequate. They compared daytime 
neurobehavioral performance for individuals obtaining split sleep with 
that of individuals operating after a consolidated sleep period of the 
same total duration, albeit with study subjects younger than the 
general driver population. The results of the study indicated that 
sleep duration was largely unaffected by whether the sleep was 
consolidated into one period or split between anchor sleep periods and 
naps.
---------------------------------------------------------------------------

    \49\ https://www.bls.gov/cps/cpsaat18b.htm, last accessed 
February 6, 2020.
---------------------------------------------------------------------------

    The Agency did not use the Mollicone study as evidence that split 
sleep is equivalent to consolidated nighttime sleep given that FMCSA's 
HOS regulations do not currently regulate based on time of day. The 
preference of drivers for nighttime sleep is well documented--among 
other things, by the rapid filling up of CMV parking spaces in the 
evening--but some degree of split sleep is essential in many 
operations. Split sleep is a viable option, provided the combined rest 
periods have the same duration as a single consolidated rest period. 
Mollicone and his colleagues did not opine on the length of the anchor 
period and the shorter period, but their work does provide a scientific 
basis for continuing to allow a split-sleep alternative.
    FMCSA believes the Belenky study is relevant to the decision-making 
process because it provides evidence that split sleep is a viable, safe 
alternative to consolidated daytime sleep. The 5-hour/5-hour split 
examined by the study involved no extended rest period, unlike the 7-
hour minimum sleeper berth period required by the final rule, yet even 
that split produced better results than consolidated daytime sleep. 
While split sleep is not preferable to consolidated nighttime rest in 
terms of sleep quantity and quality, this does not mean the Agency 
should prohibit a split sleeper berth option and eliminate the 
flexibility it provides drivers. As discussed by other commenters, 
consolidated nighttime sleep may not be possible under every 
circumstance, though drivers clearly prefer to take the longer rest 
period at night.
    FMCSA considers the relative benefits of even an ultra-flexible 5-
hour/5-hour split (which the Agency abandoned in its 2005 HOS 
rulemaking) to be important in evaluating options for regulatory 
flexibility. Considering many real-world constraints, this research 
proves that split sleep is an appropriate alternative when drivers' 
schedules cannot provide for consolidated nighttime sleep.
    Advocates criticized the use of the Short literature review because 
the studies it examined involved maritime and rail personnel, but not 
CMV drivers, and the Soccolich naturalistic study because it compared 
the risks associated with 3 restart options, including the 8/2 sleeper 
berth split, but not the proposed 7/3 split. The design of all studies 
inevitably imposes limits on their applicability, but that does not 
vitiate their conclusions. FMCSA continues to believe that these 
studies add to the body of evidence that split work/rest cycles may be 
beneficial in certain circumstances. They are among the many reports 
that provide insights into the potential fatigue mitigation benefits 
for a split sleeper berth schedule.
    The Mitler, Hanowski, Van Dongen/Mollicone, Dinges, and Sieber 
studies reported on the amount of sleep CMV drivers obtained at the 
time their research was performed. Mitler and his colleagues found that 
before 2003, when the FMCSRs required only 8 hours off duty between 
shifts and allowed sleeper berth splits as short as 5 hours, drivers 
got about 5.18 hours of sleep per night. Hanowski, Van Dongen/
Mollicone, and Dinges reported that, under the subsequent rules, which 
required 10 hours off duty between shifts and required a minimum 8-hour 
period in the sleeper berth, CMV drivers got somewhere between 6 and 
6.5 hours of sleep per day. Based on a survey of 1,670 long-haul CMV 
drivers, Sieber concluded in 2014 that ``drivers are likely getting 
more sleep than other working adults in the United States.'' The 
response of the Advocates is essentially that, whatever the recent 
improvements in drivers' total sleep time, they still are not getting 
enough sleep to combat fatigue, especially in a safety-critical 
occupation. FMCSA continues to believe its discussion of these reports 
was appropriate for the context in which they were mentioned. Taken in 
context, the Mitler report highlights the shortcomings of the pre-2003 
HOS requirements. This final rule provides increased flexibility while 
continuing to require a sleeper berth period of sufficient length to 
accommodate the real-world needs of most drivers.
    The Hanowski and Van Dongen/Mollicone, and Dinges studies highlight 
the hours of sleep that drivers obtain. The Agency has taken care not 
to adopt regulatory options which would deprive drivers of the 
opportunity to obtain the rest they need to perform safely.
    Until this final rule, the anchor sleeper berth period was at least 
8 hours in duration. Despite that requirement, the evidence shows that 
drivers obtained 6 to 6.5 hours of sleep per day. It is not clear why 
drivers do not sleep longer, and there are no clear solutions to this 
challenge. It is worth repeating, however, that the survey conducted by 
the National Institute of Occupational Safety and Health in 2010 (as 
cited in Sieber, 2014), and reported in the NPRM, found that 73.5 
percent of long-haul truck drivers reported sleeping more than 6 hours 
per night, compared with 68.9 percent of the general working 
population.
    Given the reality that many drivers are not prone to sleep more 
than 6.5 hours, as shown by the Dinges and Van Dongen studies, 
providing additional flexibility for sleeper berth usage is reasonable 
and appropriate. Under this final rule, any driver who wishes to end 
the sleeper berth rest period after 7 hours may do so. As shown by 
Dinges and Van Dongen, this allows the driver sufficient time to obtain 
the amount of sleep that the average driver receives in a single 
consolidated period. And, nothing in this rule prohibits a driver from 
spending more time in the sleeper berth.
    As noted above, studies generally have limitations, and the Agency 
did not attempt to list all of them, including for the Sieber study 
published in 2014. However, the alleged limitations of the Sieber study 
attributable to ``self-reporting'' do not invalidate its findings when 
viewed in an appropriate context. Absent the use of very expensive and 
time consuming actigraphy and other scientific instruments to monitor 
drivers' activities, surveys are the only cost-effective means to 
gather such information. The resulting data is valuable when drivers 
have no reason or incentive to submit inaccurate responses.
    Although the Sieber study did not report on sleep time in the 
sleeper berth or distinguish between total sleep on workdays versus 
non-workdays, the findings provide yet another piece to the complex 
puzzle concerning fatigue.
    Maislin and colleagues showed in 2001 that subjects who slept for 
6.2 hours at night, combined with a nap of 1.2 hours, had lower levels 
of sleepiness and higher levels of performance, compared to subjects 
who slept shorter periods without naps. The Agency cited this finding 
in its 2005 final rule, but concluded that an 8-hour sleeper berth 
period was needed. FMCSA adopted an 8-hour sleeper-berth requirement in

[[Page 33423]]

2005 essentially out of an abundance of caution. At that time, there 
was no consensus on the amount of sleep needed to maintain cognitive 
performance. The Agency therefore decided to take a conservative 
approach and adopt the recommendation of many researchers for a 
sleeper-berth period of at least 8 consecutive hours.
    Advocates essentially charged FMCSA with contradicting its previous 
position. That is not true. While the Agency is concerned, as it was in 
2005, to give drivers adequate opportunity to obtain restorative sleep, 
the 6.2 hours of sleep reported by Maislin is well within the 7-hour 
sleeper berth period allowed by this final rule. And the other 3 hours 
of off-duty time, paired with the 7 hours in the berth, give drivers 
more than adequate opportunity to take a nap of 1.2 hours, should they 
feel the need to do so.
    Similarly, the Wylie study is one of several that the Agency cited 
to highlight the benefits of napping. Although Wylie's research found 
that napping reduced drowsiness, he cautioned that drowsiness (caused 
by sleep inertia) remained elevated for two hours after napping. That 
does not negate the value of naps; it merely emphasizes that they must 
be used along with a period of consolidated sleep. This final rule 
provides adequate opportunities for both.
    The Caldwell, Gabarino, and Sallinen studies help make clear that 
fatigue mitigation requires education of employers and drivers to 
better understand the importance of properly using the sleeper berth 
anchor period and taking advantage of the shorter rest period for 
napping. While the effect of naps may vary, depending, in part, on the 
point in the driver's circadian cycle when they are taken, as the 
authors noted and Advocates reiterated, any nap has some restorative 
value. Taking advantage of the shorter period would require trip 
planning to optimize the time and location of the nap.
    FMCSA is fully aware of the limitations of the individual studies 
cited in the NPRM. The Agency made every reasonable effort to present 
the references in an appropriate context so that the studies could be 
viewed as pieces in a complex but unavoidably incomplete puzzle. In 
fact, the lack of studies squarely applicable to the NPRM's sleeper 
berth proposal requires a nuanced and holistic evaluation of available 
research, combined with an understanding of motor carrier operations 
that FMCSA is uniquely qualified to provide.
    Commenters Supporting the Sleeper Berth Proposal. Many commenters, 
mostly individuals and drivers, provided brief, general support for the 
changes to the split sleeper berth provisions because they would 
accomplish the following:
     Provide greater flexibility for the driver to rest.
     Encourage more drivers to take more rest breaks.
     Provide drivers the opportunity to sleep while waiting 
during the loading and unloading process.
     Enable drivers to stop in safe locations.
     Increase efficiency in the trucking industry.
    OOIDA commented that the proposed changes would no longer require 
drivers to sit idle when they are capable of driving safely. ATA, 
OOIDA, and other industry associations also commented that the added 
flexibility would improve driver rest. ATA provided citations to 
research suggesting that increased flexibility would better accommodate 
split sleep schedules, and that this would improve driver health.
    Keep Trucking, Inc., a technology company provided data on the 
impact of traffic congestion on driving, commented that the proposed 
sleeper berth provisions would allow drivers to better mitigate these 
impacts. Other commenters, including industry associations, also said 
the provision would enable drivers to avoid critical traffic periods in 
most major urban areas.
    An individual commenter supported the proposed change but 
recommended that greater importance be placed on the 7-hour sleeper 
berth requirement and cited research in asserting the health and safety 
benefits of ensuring that drivers get 7 hours of sleep. On the other 
hand, the Kentucky Driver's Association commented that circadian 
rhythms differ among individuals, and that greater flexibility will 
result in better rest for drivers as a result. Other commenters said 
the NPRM accommodates the fact that drivers frequently can sleep only 7 
hours at a time and do not need 8 consecutive hours of sleep.
    TruckerNation supported the proposed changes, but also recommended 
that FMCSA perform outreach and training to educate drivers and 
enforcement authorities as to the operation of the split sleeper berth 
rules.
    FMCSA Response: As FMCSA noted in the preamble of the NPRM, many 
motor carriers and industry associations believe the current sleeper 
berth provisions are too rigid and that drivers do not have enough 
opportunities to stop driving and take breaks when they are fatigued. 
Sieber et al. (2014) reported that approximately 26 percent of drivers 
sleep less than 6 consecutive hours per night and about 51 percent 
sleep between 6 and 8 consecutive hours per night.\50\ Some drivers may 
find it difficult to sleep more than 7 consecutive hours. However, the 
current sleeper berth provision requires them to be in the berth for 8 
consecutive hours, thus, confining them to the berth for more time than 
many of them need for sleeping.
---------------------------------------------------------------------------

    \50\ Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, G.X., 
Hitchcock, E.M., Lincoln, J.E., Akinori, N., and Sweeney, M.H., 
2014. ``Obesity and Other Risk Factors: The National Survey of U.S. 
Long-Haul Truck Driver Health and Injury,'' American Journal of 
Industrial Medicine, 57, 615-626. Available at: https://www.ncbi.nlm.nih.gov/pubmed/24390804, last accessed January 4, 2019.
---------------------------------------------------------------------------

    Maislin, et al. (2001),\51\ cited in the preamble to the NPRM, 
showed that it is possible for a person to avoid physiological 
sleepiness or performance deficits on less than 7 hours of sleep; the 
subjects in these studies were supplementing their sleep with longer 
naps later in the day. The study found that a shorter restricted anchor 
sleep (i.e., the longer sleeper berth period) combined with longer naps 
can reduce sleepiness and performance deficits similar to longer 
duration anchor sleep alone.
---------------------------------------------------------------------------

    \51\ ``Response Surface Modeling of the Effects of Chronic Sleep 
Restriction With and Without Diurnal Naps,'' Maislin, et al., 2001. 
Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    The Agency does not believe there is sufficient data to support 
reducing the longer sleeper berth period to 6 consecutive hours, paired 
with another rest period of at least 4 hours, as some commenters 
requested. A 6-hour period could result in average sleep periods that 
would not allow drivers the opportunity to obtain 6.2 hours sleep, 
which the average driver receives as reported by Dinges and Van Dongen.
    Commenters Seeking Flexibility for Sleeper Berth Use Beyond the 
NPRM. Numerous commenters, mostly individuals and drivers, argued that 
the proposed changes concerning split sleeper berth do not provide 
enough flexibility. Their comments generally emphasized the following:
     The proposed split is a confusing option that few 
understand, and even fewer would properly apply.
     More simplification, flexibility, and options are needed.
     Drivers have different sleep cycles, need different 
amounts of sleep, and face unique circumstances every time they drive.
     Drivers should be able to decide when to rest.
    IBT cited the Belenky study in supporting its argument for sleeper

[[Page 33424]]

berth periods as short as 5 hours. An industry association asserted 
that more flexible sleeper berth rules would result in savings of $4 
million and 60,000 hours of trucker driving time along a specific 
roadway.
    The Specialized Carriers and Rigging Association commented that 
drivers transporting over-dimensional loads would especially benefit 
from a more flexible sleeper berth split, since they are often affected 
by city curfews and other local regulations.
    FMCSA Response: FMCSA believes that this final rule provides 
sufficient flexibility without compromising safety. Because the 
alternative sleeper berth cycles commenters sought involved periods 
that were both shorter than the average time that drivers are currently 
sleeping, additional research and data are needed to understand the 
potential safety impacts.
    Commenters Opposed to the Split-Sleeper Proposal. Some commenters, 
mostly individuals and drivers, disagreed with the proposal because:
     The current 8/2 split suffices.
     The 7/3 split is not in the best interest of the driver 
and would allow drivers to drive without being fully rested.
    Senator Murray stated that the proposed change will in fact greatly 
compromise drivers' right to uninterrupted consecutive rest and 
asserted that the proposal would fragment driver sleep. AASM also 
opposed the change, asserting that the proposed rule fails to 
sufficiently consider the effect of reduced sleep quality associated 
with sleep disorders that are expected to occur when sleeping in a 
berth, and working longer hours. AASM also commented that the provision 
failed to consider the impacts of circadian misalignment that may 
accompany 24-hour team driver operations. Likewise, Road Safe America 
commented that FMCSA ignored its own studies indicating that sleep 
quality in sleeper berths is worse than that at home, and that FMCSA 
should further study the quality of sleep in sleeper berths. Advocates 
argued that the Agency failed to address various detailed implications 
of the Moore-Ede report, including the timing of the sleeper berth 
period.
    One commenter stated that few drivers will sleep during the shorter 
break period and that drivers often cannot immediately fall asleep in 
sleeper berths. The commenter stated that, under the proposed rule, 
many truckers will be driving with less than 6 hours of sleep in a 24-
hour period.
    FMCSA Response: The Agency has reviewed comments that suggest the 
proposed changes to the split sleeper berth provision would decrease 
driver sleep. The NPRM cited several studies that highlight the 
benefits of split sleep schedules (Mollicone 2007, Belenky 2012, Short 
2015, Soccolich 2015). These studies (discussed in detail above) found 
that:
     Split sleep schedules are feasible and can be used to 
enhance the flexibility of sleep/work schedules.
     Participants in the consolidated nighttime sleep and split 
sleep conditions obtained significantly more total sleep time than 
participants in the consolidated daytime sleep condition. This suggests 
that when consolidated nighttime sleep is not possible, split sleep is 
preferable to consolidated daytime sleep.
     Limited wake shift work schedules were associated with 
better sleep and lower sleepiness.
     The sleeper berth break was not associated with increased 
safety risk as compared to the 10+ hour break or the 34+ hour break.
    The study results, taken together, support the use of the split 
sleeper berth provision.
    The current sleeper berth rule excluded from the 14-hour driving 
window the required 8-hour period in the berth. The NPRM proposed a 
similar exclusion not only for the proposed 7-hour period in the berth, 
but also for the shorter qualifying off-duty period of at least 2 
hours. Advocates argued that none of the studies cited by the Agency 
speak to the risks of allowing drivers to operate later into their duty 
period. It is true that no studies examine the specific parameters of 
the sleeper berth rule proposed in the NPRM, but the absence of 
academic research exactly on point does not prohibit the Agency from 
using its own expertise and judgment to promulgate regulations. In this 
case, FMCSA balanced the industry's desire for added operational 
flexibility against its overriding responsibility for motor carrier 
safety and concluded that the shorter of the two off-duty periods would 
afford drivers an opportunity for rest sufficient to counteract any 
fatigue effects associated with the extended duty day. In fact, we 
believe that exclusion of the shorter period will promote more 
effective rest since drivers need no longer worry that the 14-hour 
clock is ticking away potential revenue miles while they try to rest. 
And, unlike the ``pause'' proposed in the NPRM (which the Agency has 
not adopted in this final rule for reasons explained elsewhere in the 
preamble), this measure is available only to drivers who use sleeper 
berths and are thus experienced in obtaining rest in a variety of 
places.
    Dinges found that team drivers were generally very successful in 
avoiding circumstances of extreme drowsiness.\52\ Despite evidence 
pointing to the fact that they get a lower quality of sleep in a moving 
sleeper berth, team drivers appear to compensate by spending more time 
sleeping (or at least resting) relative to single drivers, and by using 
their backup drivers effectively. The results of this study support 
what the Agency proposed in the NPRM.
---------------------------------------------------------------------------

    \52\ ``Response Surface Modeling of the Effects of Chronic Sleep 
Restriction With and Without Diurnal Naps.'' Maislin, G., Rogers, 
N.L., Price, N.J., Mullington, J.M., Szuba, M.P., Van Dongen, 
H.P.A., and Dinges, D., 2001. Report. Available in the docket for 
this rulemaking.
---------------------------------------------------------------------------

    As to the objections raised by Advocates, none of those objections 
seriously challenges the Agency's conclusions that the sleeper berth 
provisions proposed in the NPRM will enhance driver and carrier 
flexibility without adversely impacting safety. As discussed elsewhere 
in this notice, many studies show that splitting sleep into shorter 
segments still allows people to maintain health and alertness, 
especially when coupled with a relatively short nap. And all surveys 
show that a large majority of Americans, including truck and bus 
drivers, get less than 8 hours of sleep per day. In fact, the average 
for drivers seems to be 6.2 to 6.5 hours. Advocates' position that 8 
consecutive hours of sleep is necessary to maintain health and 
cognitive alertness is inconsistent with the studies that FMCSA 
examined as part of this rulemaking and practical experience and 
disregards the benefits from a more flexible schedule with a longer nap 
period (3 hours instead of 2 hours).
    Comments on Employer Abuse of the Split Sleeper Berth Proposal. An 
individual commenter stated that because the rules against coercion do 
not have the proper consequences, under the proposed rule, employers 
would compel drivers to take breaks according to the employers' 
business interests, rather than drivers' rest needs.
    Truckers for a Cause commented that the proposed rule should 
specify that either sleeper berth period may only be taken at times and 
locations of the driver's choice and may not be taken at a location 
where freight was picked up or delivered. TruckerNation supported the 
proposed provision, but argued that without language in the final 
regulatory text explicitly stating the use of the proposed split 
sleeper berth provisions are at the driver's discretion, the regulation 
would allow motor carriers to require drivers to use split sleeper 
berth

[[Page 33425]]

provisions and enable ``rampant issues of driver coercion.'' Knight-
Swift Transportation Holdings, Inc. also expressed concern that the 
proposed change could be exploited whereby a driver is impelled or 
compelled to cut short his or her break to resume driving.
    FMCSA Response: The Agency believes adequate protections are 
already in place to protect drivers from coercion. Based on the 
definition in Sec.  390.5T, coercion is essentially limited to 
situations where drivers are compelled to operate CMVs in violation of 
certain DOT regulations, including the FMCSRs. Accordingly, the 
situations described by commenters do not amount to coercion unless 
drivers are required to operate CMVs when they claim it would be unsafe 
to do so based on their level of fatigue, and are threatened with the 
adverse business or employment consequences specified in the definition 
for refusal to violate the FMCSRs. Motor carriers are already 
prohibited from requiring drivers to operate when fatigued under Sec.  
392.3. Specifically, motor carriers cannot require drivers to operate 
CMVs while the driver's ability or alertness is so impaired, or so 
likely to become impaired, through fatigue, illness or any other cause, 
as to make it unsafe for him or her to begin or continue operations.
    Drivers are also protected under provisions of the Surface 
Transportation Assistance Act, 49 U.S.C. 31105, which authorizes the 
Occupational Safety and Health Administration in the Department of 
Labor to take action on complaints filed by drivers who allege they 
were fired, disciplined, or discriminated against for engaging in 
certain protected activities, including reporting a safety violation, 
refusing to operate a CMV due to a safety issue, or accurately 
reporting HOS violations.
    In any event, given the limited changes to the sleeper berth 
exception, the Agency has no reason to believe that current practices 
in the industry in terms of pressure placed on drivers are likely to 
increase. Finally, nothing in this final rule is intended to negate the 
professional responsibility of drivers to communicate with their 
employer about their work schedules.
    Comments About Alternatives to the 8/2 and 7/3 Splits. The NPRM 
requested comments and any supporting data on the possibility of a 6- 
and 4-hour split break.
    Commenters, including the Truckload Carriers Association, briefly 
stated that the sleeper berth rules should allow a 6/4 split. On the 
other hand, the Retail Industry Association doubted whether many 
drivers would use either the 7/3 or 6/4 split. Citing a 1990 study 
showing that two separate 4-hour blocks of sleep is ``a natural process 
with a biological basis,'' TruckerNation argued that the use of the 6/
4, 4/6, and 5/5 splits would be inherently safer than the current HOS 
split.\53\
---------------------------------------------------------------------------

    \53\ Wehr, T.A., (2012) ``In Short Photoperiods, Human Sleep is 
Biphasic,'' Journal of Sleep Research, 1(2):103-107. Available at 
https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1365-2869.1992.tb00019.x. (Accessed March 30, 2020).
---------------------------------------------------------------------------

    Advocates argued that the Agency has confused the amount of sleep 
drivers are able to regularly obtain under the current rules with the 
amount of sleep that is sufficient to combat fatigue. They cited two 
studies and argued that, when not constrained by work schedules, 
drivers tend to obtain more sleep than 6 consecutive hours during 
longer periods of time off-duty, which they said is counter to the 
basis FMCSA used to justify the 7/3 and 6/4 split options.
    In addition to commenters responding to the question about the 6/4 
split some commenters suggested other alternatives to the split sleeper 
berth provisions, including the following:
     Drivers should be able to split their sleep time in other 
increments, including 5/5.
     The rule should allow drivers to split their sleep time 
any way they choose.
     The rule should allow a 5/5 split for team drivers.
    OOIDA commented that the proposed rule should allow for 5/5 and 6/4 
sleep splits, stating that 85% of its drivers supported either such 
split, with drivers saying they would use these splits 2.02 and 1.86 
times per week, respectively. OOIDA said this would work better for 
drivers who cannot sleep more than 6 hours at a time and would 
alleviate truck parking congestion. OOIDA provided quotations from the 
Belenky study in its comment.
    TruckerNation said that, to avoid confusion, the regulatory text 
should explicitly state that a driver can use a split in any order so 
long as the time equals 10 hours cumulatively and the second split 
resets the drive's 14-hour clock.
    Truckers for a Cause suggested regulatory text that would provide 
more flexible driving schedules, stating that its proposal would 
eliminate confusion between sleeper berth and split-duty periods.
    Knight-Swift Transportation Holdings, Inc. commented that FMCSA 
should consider replacing the sleeper berth rule with an off-duty 
requirement like that in effect prior to the 2004 rule change. Several 
industry associations supported a single, longer break and two ``nap'' 
periods (thus allowing three breaks totaling 10 hours).
    FMCSA Response: Splitting the 10 off-duty hours required by the HOS 
rules into 6 hours in the sleeper berth and 4 hours off-duty would give 
drivers additional flexibility, as many drivers requested, but none of 
the supporters of a 6/4 split cited research demonstrating the safety 
of that option.
    The results generated by decades of research on sleep and fatigue 
are strikingly variable. Although it would be an exaggeration to say 
that a sleep study can be found to justify almost any regulatory 
position, it is true, as many commenters have pointed out, that the 
design of a study often makes its findings difficult to apply in a 
broader context. In fact, it is doubtful that any study could 
adequately capture the enormous range of operational environments in 
the motor carrier industry.
    The 1990 study TruckerNation cited to show that a 4/4 split is 
natural and unobjectionable, represents one end of the continuum on 
which fatigue studies fall. At the other end, some studies appear to 
show that 8 consecutive hours of sleep are necessary to maintain health 
and alertness. The average for drivers in the motor carrier industry 
appears to be around 6.2 hours, which is similar to the average for 
Americans generally.
    FMCSA believes that the current requirement for 8 consecutive hours 
in the sleeper berth is unnecessarily restrictive and that a 7-hour 
period would achieve essentially the same benefits, enabling drivers to 
get about the 6.2 hours of sleep they currently obtain. But there is no 
clear evidence--to say nothing of a scientific consensus--that a 6-hour 
(or shorter) sleeper berth period is long enough to prevent cumulative 
fatigue. That is especially obvious since drivers cannot be expected to 
fall asleep immediately. The 7-hour period proposed in the NPRM and 
adopted in this final rule allows enough time for drivers to relax, de-
compress, and obtain more than 6 hours of sleep. Having examined a wide 
range of sleep and fatigue studies, which fail to converge on a single 
result, the Agency has concluded that the proposed 7/3 split is both 
scientifically reasonable and responsive to the needs of the driver 
population for greater flexibility.
    The fact that drivers sleep more on weekends or longer off-duty 
periods is not surprising. Most people who work demanding jobs follow 
this pattern. But it does not follow that a 7-hour sleeper berth period 
is therefore unsafe.
    Although the comments discussing options beyond the 6/4 option 
presented

[[Page 33426]]

in the question varied substantially, most of the studies and science 
cited demonstrate that drivers need at least one primary sleep period 
of 7 consecutive hours. Many motor carriers and industry trade 
associations believe the current sleeper berth provisions are too 
rigid, and that drivers do not have enough opportunities to stop 
driving and take breaks when they are fatigued.
    Based on Sieber et al., (2014) and cited in the NPRM, approximately 
26 percent of drivers sleep less than 6 consecutive hours, and about 51 
percent sleep between 6 and 8 consecutive hours per night.\54\ Some 
drivers may find it difficult to sleep for more than 7 consecutive 
hours but the previous rule required them to be in the berth for a 
minimum of 8 consecutive hours.
---------------------------------------------------------------------------

    \54\ Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, G.X., 
Hitchcock, E.M., Lincoln, J.E., Akinori, N., & Sweeney, M.H., 2014. 
``Obesity and Other Risk Factors: The National Survey of U.S. Long-
Haul Truck Driver Health and Injury,'' American Journal of 
Industrial Medicine, 57, 615-626. Available at: https://www.ncbi.nlm.nih.gov/pubmed/24390804. Last accessed January 4, 2019.
---------------------------------------------------------------------------

    The study by Maislin, et al. (2001),\55\ cited in the NPRM showed 
that it is possible for a person to avoid physiological sleepiness or 
performance deficits on less than 7 hours of sleep; the subjects in 
this study were supplementing their sleep with longer naps later in the 
day. Maislin found that a shorter restricted anchor sleep period (i.e., 
the longer sleeper berth period) combined with longer naps can reduce 
sleepiness and performance deficits similar to longer duration anchor 
sleep alone. Thus, this final rule allows for extended shorter rest 
periods (i.e., a minimum 3-hour consecutive break either in the sleeper 
berth or off-duty to take a nap for example if ``paired'' with a 7-
consecutive hour period in the sleeper berth, totaling a minimum of 10 
hours.
---------------------------------------------------------------------------

    \55\ Maislin, G., Rogers, N.L., Price, N.J., Mullington, J.M., 
Szuba, M.P., Van Dongen, H.P.A., and Dinges, D., 2001. ``Response 
Surface Modeling of the Effects of Chronic Sleep Restriction With 
and Without Diurnal Naps,''--Report. Available in the docket for 
this rulemaking.
---------------------------------------------------------------------------

    FMCSA believes that drivers using the sleeper berth provision 
adopted in this rule will better accommodate a driver's sleep schedule. 
The Agency, however, does not believe there is sufficient data to 
support a single sleeper berth period of any less than 7 consecutive 
hours.
    In response to the TruckerNation request to clarify the use of the 
provision, and calculation of available hours, the Agency has modified 
the proposed language to explain how the various sleeper berth 
provisions interact. FMCSA has also explained in further detail that 
neither of the two sleeper periods count in the calculation of either 
the 11- or 14-hour rules. FMCSA has not adopted the proposed ``pause'' 
in this final rule, which should help to eliminate any confusion in the 
calculation of compliance with the sleeper berth provisions. However, 
consistent with the previous rule, a driver's available driving or on-
duty time under the sleeper berth provision is calculated from the end 
of the initial, rather than the second, rest period. FMCSA notes that, 
under this final rule, neither qualifying rest period required by the 
sleeper berth rule counts against the 14-hour driving window.
    Frequency of use of the 7[dash]3 Split. FMCSA requested comments on 
how often drivers use the split sleeper berth provision under the 
current regulations and how often they would use the new provision if 
the proposed changes were to take effect. Comments on this issue varied 
widely.
    OOIDA provided data from its members which showed that they use the 
current sleeper berth provision an average of 2.18 times per week. In 
terms of how their usage might change, 40 percent of OOIDA survey 
respondents said that they would increase their usage if the proposed 
changes went into effect, and 54 percent of OOIDA survey respondents 
said that their usage would stay the same. In addition, the Minnesota 
Trucking Association noted that its members' drivers would use the 
sleeper berth provision with the proposed changes 1.5 times per driver 
per 70-hour week.
    Other comments received, however, suggested that the current 
sleeper berth provision is not widely used and would not be widely used 
even if the proposed changes went into effect. TruckerNation said that 
the current provision allowing for an 8/2 split is not frequently used 
by drivers; however, it did note that drivers seem interested in using 
the provision if the proposed changes were adopted. Southeast 
Transportation Systems stated that less than 5 percent of its drivers 
use the current provision, and does not expect usage to change 
considerably if the proposed changes were adopted. One driver said that 
the sleeper berth provision is used relatively little because it is too 
complex for drivers to understand. Some commenters provided detail on 
how often they would use the proposed split during an average week. 
According to OOIDA, respondents to its survey stated that they would 
use the proposed split an average of 1.85 times per week. In addition, 
42 percent of the survey respondents said that the additional 
flexibility afforded by the proposed split would allow them to complete 
additional runs.
    Other commenters noted that their use of the sleeper berth 
provisions would increase if the use of sleeper berth time affected the 
driving clock. An individual driver and the National Propane Gas 
Association both commented that, if the new provision allowed them to 
stop the driving clock, they would use it more than the current 
provision. TruckerNation stated that it is difficult to predict how 
drivers would use the proposed split. They believe, however, that most 
drivers would choose to split their sleeper berth time as long as the 
provision allows them to stop the 14-hour clock and the time is 
cumulative rather than consecutive.
    FMCSA Response: FMCSA cannot accurately predict how the proposed 
changes would affect the use of the provision. First, while FMCSA 
received some information regarding how often some drivers use the 
current provisions and how usage might change under the new provision, 
the Agency lacks the definitive information that would be needed to 
estimate usage among the entire population of drivers. Furthermore, 
FMCSA lacks data on the number of trucks that are equipped with sleeper 
berths and the impact that schedule changes might have on motor carrier 
operations. Therefore, FMCSA did not evaluate the impacts of schedule 
changes that may occur because of this final rule.
    Schedule and Planning Changes. OOIDA and ATA both commented that 
the proposed sleeper berth provision would give drivers greater ability 
to avoid rush hour traffic. TruckerNation stated that this provision 
would allow drivers or motor carriers to plan and schedule drive time 
during non-peak hours to avoid conditions such as traffic, weather, and 
scheduled road closures. In addition, OOIDA stated that these changes 
would reduce wear on vehicles and improve fuel efficiency as drivers 
would feel less pressure to drive at times when they were tired and not 
driving as safely or efficiently. ATA also added that these changes 
will allow drivers to more effectively plan their sleep and other 
breaks around loading times, thus increasing the efficiency of their 
work hours.
    FMCSA Response: FMCSA requested information on how changes to the 
sleeper berth provision would change the scheduling and planning of 
drivers to determine if the rule would have the intended effect of 
allowing drivers to operate more efficiently. For example, FMCSA 
believes that these changes will increase the ability of drivers to 
take rest periods when they can find a safe place to park, to schedule 
drive time during non-peak hours, and to avoid conditions

[[Page 33427]]

such as traffic, weather, and road closures. These changes ensure that 
drivers using the sleeper berth to obtain the minimum off-duty time 
have at least one consolidated rest period of a sufficient length to 
have restorative benefits. In addition, these changes afford drivers 
the flexibility needed to make decisions regarding their rest that best 
fits their individual needs.
    FMCSA agrees with commenters who indicated that this final rule 
will lead to more efficient use of time. However, the comments also 
highlighted how the impact will vary for each motor carrier and type of 
operation.
    Sleep Changes Between 7- and 8-hour Periods. FMCSA asked, if the 
proposal was adopted, would you expect to get the same amount of sleep 
in the 7-hour period as in the current 8-hour period?
    OOIDA commented that increased flexibility would improve driver 
sleep quality. TruckerNation stated that research shows that drivers 
average little more than 6 consecutive hours of sleep, thus 6, 7, or 8 
hours would ensure adequate and restorative sleep. Individual drivers 
differed as to whether they would get the same amount of sleep in a 7-
hour period as an 8-hour period.
    Advocates argued that research has proven that drivers, when given 
extended off-duty periods, tend to obtain additional sleep. Therefore, 
Advocates noted, shortening the allowable rest period will enable and 
encourage the use of the shortest time possible when it is advantageous 
for the carrier.
    Truckers for a Cause argued that drivers will get less sleep in a 
7-hour split, but also requested that a pilot study be conducted to 
examine this issue.
    FMCSA Response: The Agency agrees that drivers average little more 
than 6 consecutive hours of sleep. The NPRM cites several studies 
(Hanowski 2007, Van Dongen 2013, Dinges 2017, Sieber 2014) which found 
that:
     Drivers were getting an average of 6.15 hours of sleep per 
24-hour period.
     Drivers obtained between 6.0 and 6.2 hours of sleep (on 
average) per 24 hours during duty cycles.
     Drivers obtained, on average, approximately 6.5 hours of 
sleep per day during duty periods.
     26.5 percent of long-haul truck drivers reported that they 
slept 6 hours or less per night, compared to 30.0 percent of the 
general working population.
    Based on this research, the Agency agrees that drivers would likely 
get the same amount of sleep in a 7-hour period as an 8-hour period and 
rejects the conclusion that a shorter allowable rest period would 
enable and encourage less sleep.
    Impact of the Sleeper Berth Proposal on VMT. FMCSA requested 
comment on whether the changes to the sleeper berth provision would 
result in increases in VMT and would enable drivers to complete 
additional runs.
    Commenters were split on the likely impacts of these changes. A 
carrier and an industry association said that the proposed changes 
would not result in any increases in VMT or hours worked, and would not 
result in drivers completing additional runs. In contrast, some 
individual drivers noted that they would likely increase their VMT in 
response to these changes. Similarly, EROAD noted survey results 
showing that drivers would increase their VMT and complete more runs 
due to the increased flexibility of the sleeper berth requirements. 
Also, as noted by the National Propane Gas Association, the impacts of 
the rule on VMT could vary by region.
    Other commenters noted that the benefits of the proposed changes do 
not necessarily take the form of increases in VMT or work hours, but in 
an increased ability of drivers to plan their work and off-duty 
periods. For example, TruckerNation stated that the primary benefit of 
these changes would be to allow a driver to better maximize the use of 
their full 24-hour day.
    FMCSA Response: FMCSA agrees that driver mileage may vary in each 
shift or week. In terms of net impacts of the changes to VMT, driving 
hours, and work schedules, it is important to remember that the changes 
adopted in this final rule will not affect the volume of freight 
shipped or aggregate VMT. While these and other changes to the HOS 
rules may shift freight loads between drivers and carriers, those 
changes are not expected to affect the total economic demand for the 
movement of freight. Therefore, FMCSA did not estimate a change in VMT 
resulting under this final rule.
    Comments Suggesting the Agency Conduct a Sleeper Berth Pilot 
Program. The U.S. Chamber of Commerce supported added flexibility but 
said that such changes should be made only after a pilot study had 
validated the proposals. Similarly, CVSA and Schneider National 
Carriers, Inc. commented that the proposed rule should not be 
implemented until a pilot study has been concluded.
    ATA and other commenters also supported a pilot program to examine 
the efficacy of 5/5 and 6/4 sleep splits. The Truckload Carriers 
Association expressed regret that FMCSA requested information that 
probably does not exist after deciding against conducting a sleeper 
berth pilot study that could have produced the information.
    FMCSA Response: As indicated in the NPRM, FMCSA had planned to 
conduct a pilot project to collect data on the safety of drivers who 
split their sleeper berth time in a variety of ways. However, given 
comments received by the Agency in response to the ANPRM as well as at 
public listening sessions, and the results of a literature search 
conducted in advance of the NPRM, the Agency determined there was 
sufficient data to support the modifications proposed in the NPRM and 
adopted in this final rule. Not counting the shorter break against the 
14-hour driving window will allow drivers additional flexibility in 
obtaining rest. However, the Agency does not feel it currently has 
adequate data to support an extension of the sleeper berth split to 6/4 
or 5/5.
    No research or data has been provided that would counteract the 
position posed by FMCSA in the NPRM. Therefore, the Agency reaffirms 
its position that allowing an expanded split sleeper berth option would 
provide a sufficient period of consolidated sleep for drivers and would 
not be detrimental to driver safety.
    Other Comments or Questions. Approximately 120 commenters, mostly 
individuals and drivers, provided statements regarding sleeper berth 
splits that were mixed, neutral, or unclear in their intent regarding 
the sleeper berth provision. These comments mostly discussed the split 
sleeper berth provisions as they related to out-of-scope topics, like 
parking or State preemption relating to breaks.
7. Split-Duty Period (3-Hour Pause)
    NPRM. FMCSA proposed that a single off-duty break of between 30 
minutes to no more than 3 consecutive hours, be excluded from the 14-
hour driving window, provided the driver has at least 10 consecutive 
hours off-duty before the start of his or her next duty period. A 
single pause of up to 3 hours would provide significantly more 
flexibility than allowed under the current rules. It would have allowed 
drivers to take an off-duty break without fear of exhausting their 
available hours under the 14-hour clock, which would also have allowed 
them to get additional rest or avoid traffic congestion.
    The Agency encouraged motor carriers and other stakeholders to 
submit driver record data supporting their comments in a manner that 
did not reveal the identity of an individual driver. FMCSA sought 
additional information and data on the impacts of

[[Page 33428]]

the split-duty period provision, in part to assess its potential costs 
and benefits. FMCSA also sought additional information on whether 
drivers should be allowed to divide the pause, up to a total of 3 
hours. Responses to these questions are discussed in the comment 
summaries below.
    Comments in Favor of a Split Duty Option. Approximately 280 
commenters supported the proposed pause to the 14-hour driving window. 
Many of these commenters, mostly individuals and drivers, simply noted 
their support. Others gave the following reasons for supporting this 
provision:
     Provides flexibility for drivers to take a break when 
needed.
     Greatly improves performance, productivity, and safety by 
preventing drivers from feeling compelled to keep driving to complete a 
trip if they feel fatigued.
     Compensates for time lost, and provides an opportunity to 
rest, while waiting during loading and unloading, rather than placing 
stress on drivers to rush to make up for lost time.
     Enables drivers to avoid rush hour traffic periods in 
major urban areas.
     Enables drivers to stop and rest while still ensuring they 
will be able to make it home at night.
     Avoids congestion and other unsafe conditions.
     Mitigates driver stress and fatigue.
    OOIDA supported the proposal and recommended several actions FMCSA 
could take to ensure that the split-duty provision does not exacerbate 
detention times currently experienced by drivers.
    FMCSA Response: The Agency agrees with commenters and continues to 
believe the split duty proposal could provide significant flexibility 
for drivers and provide an incentive to take an extended rest break. 
The current 14-hour window disincentivizes drivers from voluntarily 
taking rest breaks because those breaks do not pause the 14-hour clock. 
Consequently, all the time a driver spends in an off-duty status 
reduces the amount of time available to complete up to 11 hours of 
driving time during the work shift.
    Therefore, drivers who take additional breaks may feel compelled to 
speed in order to complete their driving within the 14-hour window.
    With regard to safety impacts, the Agency notes the additional 
break of up to 3 consecutive hours would be off-duty. This means the 
extension of the driving window would not result in drivers working 
additional hours; the maximum amount of on-duty time that could be 
accumulated before a driver would be prohibited from driving during a 
work shift would remain at 14 hours. Furthermore, drivers would still 
be required to have 10 consecutive hours off-duty at the end of the 
work shift.
    Although the Agency's analysis indicates the additional flexibility 
could be provided without adversely impacting safety, the analysis did 
not take into account the driver protection issues raised by commenters 
opposed to the 3-hour pause. These issues are of such concern that the 
Agency has not included the 3-hour pause in this final rule.
    Commenters Opposed to the Split Duty Proposal. Approximately 150 
commenters opposed the NPRM's split-duty period because it went too 
far. Drivers and other individual commenters argued that:
     The pause creates a 17-hour driving window, which is 
unwanted and unsafe.
     The pause could be abused, enabling companies to take 
advantage of drivers.
     The pause adds 3 unpaid hours to a truck driver's day.
    Multiple opponents provided additional explanations based on 
research data. Several motor carriers and a law enforcement agency 
expressed concern about the negative safety impact of an extended 
driver workday, potentially up to 17 hours. An individual commenter 
said a carrier or third party should not be allowed to impact a 
driver's schedule based on this provision.
    The Trucking Alliance, Advocates, and others also opposed this 
change, stating that FMCSA does not have data on the possible safety 
implications of an extended workday. Others, including the AASM and 
IBT, opposed the provision, stating that there are no data to support 
the assumption that drivers would rest or sleep during the pause; that 
the proposal increases the risk of drowsy driving and accidents; and 
that allowing up to a 3-hour pause in the driving window does not 
necessarily translate to a decrease in driver fatigue levels.
    Advocates offered a detailed discussion of the Blanco (2011) study 
and the examples provided by the Agency, and cited additional studies 
not mentioned in the NPRM. Advocates argued that the research does not 
support the proposal and that FMCSA had provided no analysis of 
applicable data to justify the split-duty proposal. Advocates opposed a 
pause of any length that would extend the driving window and allow 
driving later in the duty period. IIHS also opposed the pause and 
questioned the logic that increasing a driver's workday with off-duty 
time would have less impact on fatigue than adding the same amount of 
driving time.
    Several commenters, including Senator Murray and CVSA, said FMCSA 
should consider how this change would interact with other changes 
proposed in the NPRM (e.g., adverse driving conditions) and should set 
a maximum workday. These commenters stated that these possible 
interactions (``stacking'') would raise serious safety, health, and 
welfare concerns.
    ATA provided extensive comment and survey results regarding the 
potential impact of the pause on driver sleep schedules and the 
possible safety impact of the proposal, and concluded that FMCSA should 
clarify the safety benefits of the proposed pause. ATA said that FMCSA 
should provide some estimate on how often, and for how long, drivers 
would use a ``pause,'' and whether that period would impact sleep 
cycles and relative measures of roadway safety. ATA also stated that 
some motor carriers worry that modifications to the 14-hour clock could 
increase their risk exposure, which, in turn, could affect insurance 
rates and motor carrier liabilities.
    CVSA stated that, before finalizing the proposed changes, FMCSA 
needs to evaluate how these changes will impact broader flexibility 
that has already been granted to certain segments of the motor carrier 
industry through exceptions and guidance, and to ensure that the 
combination of changes does not negatively impact safety.
    CVSA, Trucking Alliance, Road Safe America, IBT, TruckerNation, 
industry associations, and individual commenters highlighted the 
potential for abuse of this provision by shippers, receivers, brokers, 
or motor carriers. They argued that it could be used to coerce drivers 
into extending their workday and obscure the problem of unpaid 
detention time. Some commenters stated that drivers alone should be 
allowed to decide when this provision is used. Others, including CVSA, 
stated that drivers might use the provision for work-related activities 
rather than rest. ATA generally supported the flexibilities offered by 
the proposed split-duty period but pointed to mixed results generated 
by a survey it conducted in response to the NPRM. Specifically, ATA 
said some motor carriers responded positively to the proposed split-
duty day, but others expressed varying degrees of hesitation regarding 
lack of supporting data or potential for abuse by shippers and 
receivers. In addition, ATA said many motor carriers want FMCSA to 
clarify how a split-duty period would impact

[[Page 33429]]

driver detention or ``dwell'' times and affect sleep cycles. EROAD also 
provided the results of its survey of trucking industry professionals 
and associations. The responses varied between support, requests for 
additional flexibility, and opposition due to the impact on driver 
fatigue and potential for abuse. ATA asserted that FMCSA had not 
undertaken a RIA on whether a flexible split-duty period would impact 
detention times and whether those impacts would result in net costs or 
benefits. ATA concluded that FMCSA should provide that data before 
adopting the proposal. Trucking Solutions Group stated that the 
proposed pause would be nothing but a ``band-aid'' to mask a widespread 
detention problem.
    Other commenters expressed concern about how drivers would file 
complaints if they were coerced to use this provision. Many commenters 
mentioned the ``forced dispatch'' policies in place at some companies, 
under which drivers can be and are told by the carrier when to take 
split or pause breaks to meet the needs of customers. Other commenters 
raised concerns about the interaction of the pause with other 
regulations, exceptions, and Canadian regulations.
    Commenters requested that the industry and law enforcement be given 
clear regulatory language and guidance to help interpret the pause and 
how it would interact with other regulations.
    FMCSA Response: The Agency acknowledges commenters' concerns about 
the potential for unintended consequences associated with actions by 
employers, shippers and receivers that might be contrary to drivers' 
interests. Given the uncertainties as to whether these potential 
consequences would actually happen, the Agency has not included the 3-
hour pause in this final rule.
    The Agency is not persuaded by commenters' assertions that the 
pause, in and of itself, would reduce safety, but does agree that the 
issue warrants further study.
    The FMCSRs have always treated off-duty time as an opportunity for 
driver rest, but that opportunity is enhanced if the CMV is equipped 
with a sleeper berth. That factor, combined with significant 
uncertainty about the frequency and extent of detention time, makes the 
evaluation of the cost and safety impact of a general 3-hour pause 
difficult, since day-cab drivers who are delayed at shipper or receiver 
facilities at non-ideal points in their circadian cycle might obtain 
less effective rest than sleeper-berth drivers, who always have a bed 
ready for use. The Agency believes that limiting an extension of the 
14-hour driving window to the shorter period under the sleeper-berth 
exception, rather than applying it to all CMVs, will give drivers 
greater peace of mind and the rest that will enable them to operate 
safely later in the work shift, even if that off-duty period may 
sometimes occur at less-than-ideal times.
    Comments Responding to FMCSA's Request for Research and Data.
    FMCSA requested comments, research, and data on the optimal length 
of a pause that would allow drivers reasonable flexibility to manage 
operational variables while ensuring that driving does not occur after 
too much time has elapsed since the last longer rest period. While 
Advocates opposed a pause of any length, most commenters did not 
provide feedback on an optimal length of the pause, and instead 
requested that the Agency obtain additional data.
    Some commenters who opposed the provision, including IIHS, 
recommended a pilot program to gather needed data relating to its 
impact on driver health and safety and on possible interactions with 
other proposed changes. Road Safe America stated that, before moving 
forward with the proposal, FMCSA should study the safety risks of 
permitting a 17-hour workday and its effect on cumulative fatigue, 
given that the NPRM included no limits on the use of the pause 
throughout the week.
    Many other commenters, including motor carriers, supported the 
proposal but wanted further study on efficiency, the ELD environment, 
nocturnal driving and breaks, sleep cycles, and driver detention. In 
addition, some commenters that supported the proposal, including the 
U.S. Chamber of Commerce, requested that the Agency conduct a pilot 
program to understand the safety impacts of the split-duty provision 
before considering it further.
    The NPRM asked a series of questions about the proposed pause:
    (1) How will this provision impact the number of driving hours 
during a single driving window? How will this provision impact your 
total driving hours during a given week or year? Although some 
commenters stated that the provision would not change driving hours, 
others, including OOIDA, industry associations, and motor carriers, 
responded that the pause could reduce total driving hours by enabling 
drivers to operate more efficiently and flexibly, e.g., to move when 
necessary and stop when tired or to avoid driving in some potentially 
challenging conditions.
    Advocates warned that the pause would likely permit the scheduling 
of more driving hours in a single driving window, probably later in the 
duty period when crash risk from fatigue is greatest. Knight-Swift 
Transportation Holdings, Inc. stated that industry data collected in 
response to the NPRM shows that, in up to 3.8 percent of all workdays, 
the day would be extended by up to 3 additional hours and allow for up 
to 2 additional driving hours on average between the 14th and 17th hour 
of duty. An individual commenter said this provision would allow 
drivers to complete more driving hours during the week, but would then 
force them to take 34-hour restarts more frequently.
    (2) How would this provision impact your regular schedule? How 
often would you expect to take advantage of this provision in a given 
work week? Why? OOIDA said its survey respondents believe that their 
operations would be more productive and less stressful if the 14-hour 
on-duty period offered additional flexibility, not only to avoid 
adverse driving conditions, but also to address other issues outside of 
their control. OOIDA said its survey respondents indicated that they 
would use the split-duty period an average of 2.55 times per week. 
American Moving and Storage Association said that its drivers would use 
the proposed split-duty period up to three times per week, and that 
carriers operating primarily within non-metropolitan areas, or running 
single loads, would likely use this proposal less often.
    Industry associations said the overall impact would be minimal but 
would allow drivers to safely and compliantly complete their 
deliveries. Other commenters said the pause would be used infrequently, 
mainly for flexibility in cases of inclement weather, traffic 
interruptions, unexpected delays, and seasonal demand.
    (3) What are the expected benefits from utilizing the 3-hour pause? 
OOIDA and other commenters said the pause would allow drivers to be 
better rested, to stay off the road during unsafe conditions, and to 
use their on-duty time more efficiently, resulting in improved highway 
safety, more completed trips, and fewer wasted hours. Several industry 
associations echoed this, arguing that the pause would promote safe 
operation, improve efficiency, and allow drivers to schedule work 
better and avoid unexpected and stressful conditions. Other commenters 
linked these benefits to driver retention, increased safety and 
decreased road congestion, additional capacity within the trucking 
industry (by allowing time spent being loaded or unloaded to be

[[Page 33430]]

used as off-duty time), more loaded miles for drivers, increased 
compensation, and less wasted fuel. Similarly, several industry 
associations supported the flexibility of the provision to permit 
drivers to make decisions on road condition safety, as well as to 
promote fatigue recovery and napping.
    After presenting data relating to daily traffic speed fluctuations, 
off-duty breaks, and impacts on braking events and speeding, a 
technology company concluded that the pause would allow drivers to 
reclaim the time spent off-duty and traverse congested metropolitan 
areas at more efficient times.
    A motor carrier stated that its drivers would likely use this 
provision to offset extended detention times, effectively allowing them 
to use more of their HOS on-duty time on the road instead of at the 
loading dock. An individual commenter said that the pause may enable a 
driver to return home sooner instead of taking a 10-hour off-duty or 
sleeper berth period.
    American Moving and Storage Association said carriers that 
compensate their drivers by the hour would not see a direct labor cost 
benefit from this proposal, but that operations that pay per load 
weight or per mile may recapture lost efficiency. However, the 
commenter said the flexibility provided by the proposal would be 
expected to minimize idling fuel costs and reduce contractual payback 
penalties for late deliveries.
    An individual commenter stated that this provision would be 
beneficial if its use is restricted to the avoidance of traffic 
congestion. However, because companies, shippers, and receivers could 
abuse this provision, the commenter said it would result in more 
drivers driving fatigued when they do not want to be driving.
    Advocates expressed concern that the question failed to ask for 
details from research or to try to account for the cost of crashes 
caused using the 3-hour pause.
    (4) Do you expect to use this provision to account for uncertainty 
such that trips could be finished on their scheduled completion day? 
How often do uncertain factors impact your schedule such that you are 
unable to complete a trip during the expected driving window and must 
delay delivery until after a 10 hour off-duty period? OOIDA responded 
that the provision would give drivers more flexibility to account for 
uncertainty during their workdays, which in many cases would help them 
finish trips on their scheduled completion days. TruckerNation remarked 
that the ``supreme benefit'' of the proposed split-duty provision is 
the fact that it accounts for uncertainty and results in loads getting 
to their destination as scheduled, rather than having drivers exhaust 
their 14 hours with miles yet to drive. Minnesota Trucking Association 
responded that its drivers would consider using this provision to react 
to unforeseen circumstances encountered during the trip. A motor 
carrier servicing railroads stated that, since unplanned events that 
block lines (e.g., weather event or derailment) often occur outside of 
normal business hours, railroad contractors require flexibility to send 
drivers to the site with the equipment necessary to remove railcars and 
debris and restore service. Regarding uncertain impacts, a commenter 
said that traffic congestion occurs at least a couple of times a week.
    Another commenter responded that it uses driver teams to account 
for uncertainty in its operations.
    (5) Do you expect to be able to complete more trips due to this 
provision (i.e., schedule additional freight movement)? How many 
additional trips would you expect to plan during a given week or year? 
OOIDA said 58 percent of its survey respondents replied that they would 
not complete more trips due to this provision, and 42 percent said that 
they would be able to complete an average of 1.6 more trips per week. 
Several commenters, including a trade association, reported that they 
would not complete more trips due to this provision, or expect fewer 
trips.
    (6) Would you expect to be able to use more of the 11 hours of 
drive time currently available due to the 3-hour pause? OOIDA and other 
industry associations responded they expect drivers would be able to 
use the 11 hours of drive time more efficiently with the option of a 3-
hour pause. Schneider National Carriers, Inc. also said drivers are 
likely to use more of their 11-hour maximum drive time than they are 
using under the current rule, but did not have an estimate as to how 
much more of the maximum drive time would be used. However, Boyle 
Transportation responded that they would not be able to use their drive 
time more effectively.
    (7) Do you expect this provision to impact drivers' sleep schedule? 
How so? (8) Will this provision allow for drivers to shift off their 
circadian rhythm more easily than under current rules? OOIDA responded 
that the provision would not allow drivers to shift off their circadian 
rhythms more easily than the current rule; rather, it would provide 
drivers more opportunities to rest when they feel tired. OOIDA further 
stated that 74 percent of its survey participants indicated that the 
provision would not impact their sleep schedule. Of those who expected 
an impact, 72 percent said that the impact would be positive because it 
would provide additional opportunities to rest as needed. Similarly, 
the Minnesota Trucking Association stated that its members anticipate 
this proposal could enhance safety by allowing a driver to take a rest 
period as needed or avoid high stress situations and traffic. This 
commenter added that the proposed rule would allow drivers to better 
manage their own fatigue levels but suggested that FMCSA consider how 
often a driver could safely use this extension.
    The National Tank Truck Carriers also discussed how often the pause 
could be used, stating that its members have expressed concern over 
whether this proposed change would disrupt driver sleep patterns, and 
that FMCSA should monitor how frequently this option is used by drivers 
to determine to what extent, if any, drivers' sleep patterns are 
disrupted in a manner that negatively impacts safety. Another commenter 
said this provision would adversely impact drivers' sleep schedules 
because companies, shippers, and receivers would force drivers to take 
the pause to compensate for detention times, thus forcing drivers to 
drive fatigued.
    The NSC provided studies indicating that lack of rest is associated 
with a higher likelihood of safety-critical mistakes and that the 
effects of lack of sleep can be exacerbated if they occur during 
circadian lows. Boyle Transportation stated that no new science or 
study has altered previous findings about humans' sleep cycles and 
requirements for sleep, and that the split-duty provision will 
eliminate any safety advantage by disrupting and extending the regular 
on/off cycle beyond 24 hours. This commenter concluded that the pause 
would subject drivers to a rotating sleep schedule since the 3 hours 
added to the workday would offset their circadian rhythm. Another 
commenter responded that the rule would allow drivers to shift their 
circadian rhythm and would lead to more fatigued driving. Another 
commenter also stated that the rule would allow drivers to shift their 
circadian rhythm and would create a 27-hour day.
    (9) In a full year, would this provision lead to additional driving 
miles or driving time? OOIDA said this provision could lead to 
additional driving miles but not additional driving time and, in many 
cases, would likely decrease total

[[Page 33431]]

driving time. Boyle Transportation responded that the proposal would 
not lead to additional driving miles or time. The Minnesota Trucking 
Association said the proposal could increase both miles and time.
    (10) How often would you take advantage of the full 3-hour pause as 
compared to shorter amount of times? Why? OOIDA responded that 
frequency of use would vary depending on the conditions that 
necessitated the pause. Similarly, the Minnesota Trucking Association 
said that use of the pause is difficult to estimate, as decisions would 
be made on a case-by-case basis by a driver.
    Another commenter, presumably a driver, stated that, if left solely 
to the commenter's discretion, the provision would only be used to 
avoid traffic congestion and adverse weather. However, the commenter 
said the decision would not be left to the driver's discretion unless 
FMCSA implements stronger coercion rules and enforcement.
    (11) How would you plan to use the off-duty time spent during the 
3-hour pause? Would you use the time sleeping in a truck cab more often 
or other leisure activities more often? OOIDA stated that 27 percent of 
its survey respondents said they would use time sleeping in the cab, 6 
percent said personal time, 55 percent said both sleep and personal 
time, and 12 percent responded with ``other.'' The Minnesota Trucking 
Association said the answer would depend on professional drivers 
managing their trip plan and productivity to determine what is safe.
    (12) Do you anticipate any fatigue impacts on driving up to the 
17th hour of a duty day? How would the up to 3-hour break impact that 
fatigue level? OOIDA stated that 79 percent of its survey respondents 
said they did not anticipate any fatigue impacts on driving up to the 
17th hour of a duty day; rather, the split-duty break would lessen 
fatigue by providing drivers more time to rest, thus reducing stress 
and increasing vigilance. A motor carrier also expected reduced fatigue 
because drivers would be allowed to adhere more to their personal 
``body clock.'' The Pipeline Contractors Association said its members 
would not suffer additional fatigue if they extend the driving window 
by taking a break.
    Several industry associations pointed to research indicating that 
that drivers can safely work a 16-hour shift without significant 
degradation in performance, noting the research failed to consider the 
restorative impact of taking one or more off-duty rest breaks of 
between 30 minutes and 3 hours.
    Some commenters argued that driving up to the 17th hour of a duty 
day would have fatigue impacts. Truckers for a Cause cited research and 
studies on how hours awake relate to fatigue impairment and stated that 
detention time at shipper facilities does not result in an opportunity 
for rest. The commenter concluded that, unless regulatory language 
provides reasonable assurance that a nap will be possible during a 
split or pause, the proposal would not result in safety equal to or 
better than that found under the current FMCSRs. Similarly, AASM stated 
there is no guarantee that a driver can or will sleep during a pause of 
up to 3 hours and that this prolonged wakefulness can occur during 
circadian ``low'' periods when performance is lowest, thus resulting in 
a higher risk of drowsy driving and motor vehicle accidents. Knight-
Swift Transportation Holdings, Inc. said the proposal would create 
significant additional risk, in terms of VMT at the most vulnerable 
times in the driver's daily work shift (after the 14th hour on-duty), 
to accommodate a rather small percentage of drivers affected by the 
current and more rigid 14-hour limit.
    Truckers for a Cause disagreed with drivers who cite the rule on 
ill or fatigued operators (Sec.  392.3) as providing adequate 
protections from forced dispatch that might result in excessive 
fatigue. The commenter said a driver being told to take a split or 
pause break when and where a carrier, shipper, or receiver wants, 
rather than when and where a driver chooses, would not be violation of 
the coercion rule unless new regulatory language is included in the 
final rule.
    Advocates asserted that evidence shows that fatigue and crash risk 
increase with increasing length of day and the ``question incorrectly 
assumes that carriers and drivers' expectations regarding fatigue are a 
comparable substitute to research and scientific fact.''
    Some commenters foresaw a potential fatigue impact but said this 
could be mitigated by the off-duty rest periods. An industry 
association suggested that FMCSA further study whether stopping the 
clock could be done daily without an increase in driver fatigue.
    IBT reported that half of all its survey respondents indicated that 
fatigue levels would be negatively impacted by driving up to the 17th 
hour of a duty day. However, survey respondents indicated that having a 
3-hour pause in the driving window would not equate to a decrease in 
fatigue levels, as off-duty pauses can be more fatiguing than being 
active.
    (13) What operations would benefit from multiple off-duty periods 
totaling 3 hours? Many commenters, including an industry association, 
indicated that long-haul operations would benefit from multiple off-
duty periods totaling 3 hours, or just multiple pauses. Similarly, the 
Minnesota Trucking Association said short-haul and local operations 
would be affected less, as these operations use a standard schedule for 
pickup and delivery.
    OOIDA, the Minnesota Trucking Association, and Schneider National 
Holdings, Inc., however, did not support multiple pauses. The industry 
association said FMCSA should provide clear guidance regarding the 
potential use of multiple extensions in one workday and address 
concerns regarding potential circumvention of the HOS rules through the 
combination of multiple extensions in a single workday.
    (14) Would this flexibility cause drivers to alter their daily 
behavior or increase productivity? If so, how? The Minnesota Trucking 
Association said allowing a driver to take a pause as needed would 
effectively manage fatigue, as well as improve driver lifestyle and 
work life overall.
    (15) What would be the impact on fatigue with several smaller 
breaks compared to a single period of up to 3 hours? The AASM said 
multiple off-duty periods are less restful than a single, long 
opportunity to sleep; restorative sleep progresses through specific, 
well-organized stages that cannot be generated when sleep opportunities 
are short or timed against the natural circadian rhythm. Therefore, 
shorter off-duty periods would be expected to decrease total sleep time 
per 24 hours, impacting driver safety. This commenter also said shorter 
rest breaks mean that drivers will likely end up operating their 
vehicle during circadian low periods, which is a major risk for 
sleepiness-related crashes. Lastly, the commenter said the proposal 
would lead to more episodes of sleep inertia, which has been tied to 
accidents and near-miss events in operational environments.
    The Minnesota Trucking Association responded that taking a break 
when a driver needs to can positively impact fatigue reduction and 
improve driver lifestyle, but this becomes more challenging from a 
reporting standpoint.
    (16) If the 3-hour break were divided up into smaller increments, 
what would be the impact on enforcement when determining compliance? 
The Minnesota Trucking Association said dividing up the break into 
smaller segments would cause confusion with no increase in safety. 
Schneider said

[[Page 33432]]

multiple pauses could encourage drivers to inaccurately record on-duty 
time as off-duty time, make verification and enforcement of the rule 
more difficult, and overly complicate the rule.
    (17) Would the added complexity of multiple pauses substantially 
add to the time needed for ELD vendors to reprogram ELD software? If 
so, how much additional time would be needed? The Minnesota Trucking 
Association anticipated that technology vendors would need adequate 
time to adjust to any new rule.
    FMCSA Response: The Agency has decided not to implement the 
proposed pause in the 14-hour driving window at this time. FMCSA 
continues to believe that an opportunity for a single off-duty pause in 
the 14-hour driving window could provide flexibility for drivers 
without compromising safety, as explained in the NPRM. However, many 
commenters believe that drivers would be pressured by carriers, 
shippers, or receivers to use the break to cover detention time, which 
would not necessarily provide the driver an optimal environment for 
restorative rest. This suggests that the proposal could have unintended 
consequences that were not adequately evaluated in the development of 
the NPRM.
    An off-duty break of up to three consecutive hours during a work 
shift would have enabled drivers to avoid congestion. The subsequent 
driving time would then be more productive as drivers may have a 
greater opportunity to travel at the posted speed limits rather than at 
lower speeds through heavy traffic and congestion. It may also reduce 
the pressure to drive above the posted speed limits because of concerns 
raised by the 14-hour clock. In addition, drivers could take a rest 
break to reduce the likelihood of experiencing fatigue while driving. 
Because drivers would continue to take 10 consecutive hours off-duty at 
the end of the work shift, exercising the pause option during the work 
shift would increase the driver's off-duty time during the work week.
    This increased productivity, resulting from an ability to avoid 
congestion, would be accomplished without altering the maximum amount 
of on-duty time that could be accumulated before driving is prohibited, 
or increasing the maximum driving time allowed during a work shift. The 
maximum amount of time accumulated before the designated single off-
duty pause and immediately following the off-duty pause could not 
exceed 14 hours, irrespective of the duty status recorded before and 
after the designated break. The driver would be prohibited from 
operating a CMV until there was a break of at least 10 consecutive 
hours, thereby starting a new work shift. And the total amount of 
driving time accumulated before the designated off-duty pause and 
immediately following the pause could not exceed 11 hours before the 
driver takes a break of 10 consecutive hours, thereby retaining the 11-
hour limit on driving time during the work shift.
    FMCSA acknowledges that the potential benefits of increased 
flexibility could be undermined if the pause is used by carriers, 
shippers, or receivers for purposes other than the productivity and 
safety of drivers, especially to compensate for time wasted during the 
14-hour driving window due to increased detention time. Under such a 
scenario, the Agency believes it is unlikely that the off-duty period 
would provide a meaningful opportunity for drivers to rest. Drivers may 
have limited choices where the off-duty period would take place, 
especially if the CMV is not equipped with a sleeper berth.
    For drivers operating sleeper berth-equipped CMVs, the Agency 
believes it is more likely that the driver would elect to use the 
split-sleeper berth option adopted through this final rule rather than 
the pause of up to three consecutive hours. With the sleeper berth 
option the driver would be required to spend only seven consecutive 
hours in the sleeper berth to fulfill the HOS requirements rather than 
spending 10-consecutive hours off duty (or in the sleeper berth). The 
split sleeper berth option would allow the individual to resume CMV 
driving three hours sooner and thereby increase the likelihood of 
meeting scheduling demands. Therefore, there is an inherent incentive 
for drivers of sleeper berth-equipped CMVs to use the sleeper berth 
rule instead of the pause.
    Because the drivers most likely to use the pause are individuals 
who do not have the option of using a sleeper berth, the Agency is 
particularly mindful of commenters' views about the potential for 
unintended consequences. The Agency is concerned about the need to 
ensure that drivers are not forced into situations where the break 
fails to provide meaningful rest. If an individual operating a CMV that 
is not equipped with a sleeper berth is pressured into using the pause 
at a time and location the driver finds inappropriate, the driver's 
options for a comfortable or suitable resting location are likely to be 
limited. If there is no lounge or similar location where the driver can 
relax in a comfortable seat or recliner, take a nap, read a book, or 
have access to multi-media entertainment, the value of the off-duty 
pause is diminished. This is especially the case if the driver's 
preferences about the timing and location of the break are not part of 
the equation.
    Additionally, although this final rule makes modifications, the 
split sleeper berth provisions are already well-established, whereas 
the pause was a wholly new proposal. Due to its established use, FMCSA 
does not believe the sleeper berth changes are likely to affect current 
industry practices, as both breaks are required (so a driver's break is 
not a question of ``if'', but only ``when'') compared to the proposed 
new voluntary pause, when a driver could be pressured into a break that 
she is never ``required'' to take.
    Given the uncertainty about the amount and quality of rest drivers 
could obtain under the circumstances described above, previous research 
about the safety risks of driving later in the work shift becomes more 
relevant because drivers would indeed be operating within a 17-hour 
window during which there may be minimal opportunity to get meaningful 
rest. For drivers of sleeper berth-equipped vehicles, concerns about 
where the driver could rest are not as significant, because these 
individuals already have experience using sleeper berths while the CMV 
is parked at various locations, including shipper and receiver 
facilities, and under various conditions (e.g., noise levels and 
weather conditions). Given the uncertainty about the amount and quality 
of rest drivers could obtain under certain circumstances, previous 
research about the safety risks of driving later in the work shift 
become more relevant because drivers would indeed be operating with a 
17-hour window during which there is minimal opportunity to get 
meaningful rest. For drivers of sleeper berth-equipped vehicles, 
concerns about where the driver could rest are not as significant 
because these individuals already have experience using sleeper berths 
while the CMV is parked at various locations, including shipper and 
receiver facilities, and under various conditions (e.g., noise levels 
and weather conditions).
    As stated above, some commenters suggested the pause would be 
helpful but only if the regulatory text included language giving 
drivers exclusive discretion over its use. While this approach might 
address some of the concerns expressed above, the Agency believes 
enforcement of drivers' rights in this matter would be difficult at 
best. Based on the commenters' concerns about the ways in which drivers 
may be compelled by their employers, shippers, and receivers to extend 
their days involuntarily, the Agency believes it is unclear whether the 
off-duty period

[[Page 33433]]

would provide a meaningful opportunity for drivers to rest. There would 
be challenges documenting the circumstances surrounding drivers' 
schedules. It would be complicated to demonstrate whether taking the 
break was a reasonable expectation that a supervisor would have, given 
a specific driver's schedule at that moment, or whether the break 
represented an employer's imposition on the driver through unplanned 
and abrupt changes to the schedule.
    This final rule gives drivers with a sleeper berth additional 
flexibility when operating under the split sleeper berth cycle. 
Further, FMCSA anticipates that drivers of sleeper berth equipped 
trucks would likely have opted to use the sleeper berth exception 
rather than the pause in any case.
    Based on the reasons discussed above, the Agency believes the 
split-duty option should be deferred until additional data can be 
collected on how it would be used and who would determine its use.
    Comments About Petitions for Rulemaking Previously Submitted to 
FMCSA.
    A few commenters, mostly individuals and drivers, endorsed the 
changes for increased flexibility proposed by OOIDA. However, the 
American Fuel and Petrochemical Manufacturers argued that FMCSA should 
delay the adoption of the OOIDA petition and not finalize the split-
duty provision due to the lack of scientific data.
    CVSA suggested that FMCSA grant its petition to set a maximum 
distance that the personal conveyance provision may be used under the 
final rule. CVSA argued that the current guidance for personal 
conveyance allows drivers to drive several hours, possibly increasing 
fatigue and risking safety.
    Advocates agreed with FMCSA's denials of the TruckerNation, USTA, 
and UDA petitions, because they would allow drivers to operate for long 
periods without a sufficient sleep period.
    FMCSA Response: The normal Agency process for handling petitions 
for rulemaking is set forth in 49 CFR part 389, subpart B--Procedures 
for Adoption of Rules. FMCSA declines to discuss CVSA's petition on 
personal conveyance, originally filed on December 17, 2018, as the 
Agency will issue a separate decision on this matter pursuant to part 
389 rulemaking procedures. OOIDA petitioned FMCSA to allow property-
carrying CMV drivers to take a single off-duty rest break for up to 3 
consecutive hours once per 14-hour driving window. That rest break 
would pause the 14-hour clock for the duration for the break. As 
explained in greater detail above, the Agency has decided not to adopt 
that proposal.
    Comments About the Compliance Date for the Final Rule.
    OOIDA and the Intermodal Association of North America (IANA) 
recommended that the proposed rule go into effect as soon as possible, 
stating that it would improve highway safety.
    The National Propane Gas Association and Keep Truckin, Inc. 
recommended a compliance date less than 6 months after the effective 
date, regardless of ELD concerns. Wright Knox Motor Carrier, Inc. 
commented that it could comply within 6 months. The Pipeline 
Contractors Association recommended a compliance period of 6 months, 
stating that such a timeframe would result in cost savings to it 
members and customers.
    ATA recommended that FMCSA collaborate with CVSA and ELD vendors to 
arrive at a single compliance date (rather than phasing in the rule). 
CVSA likewise recommended a single compliance date rather than a phase-
in and recommended that FMCSA consult with ELD manufacturers. 
Conversely, industry associations recommended that a 6-month phase-in 
be adopted.
    EROAD said that a compliance date of at least 6 months would be 
necessary to accommodate ELD manufacturers, and provided a breakdown of 
the time and methodology needed for discrete tasks. The Trucker 
Alliance and Trimble Transportation Mobility recommended a compliance 
date of at least 9 months after adoption of the rule to accommodate ELD 
providers. The National Association of Manufacturers and Garmin 
International recommended a 12-month compliance date. TruckerNation 
argued that extensive ELD software updates by manufacturers would be 
necessary to ensure compliance with the final rule. Schneider National 
Holdings, Inc. recommended a compliance date 12 to 18 months after the 
proposed rule's implementation.
    The USTA requested a ``soft'' enforcement period to accommodate 
affected parties' learning curves. One driver asked if the ``Big Road'' 
app would be uploaded with the pause button and if the proposed rule 
would go into effect immediately.
    FMCSA Response: FMCSA believes that the proposed changes will be 
positive for the industry, and that an early compliance date would be 
ideal, as suggested by the OOIDA comments. However, there are other 
factors to consider.
    Many commenters, particularly those from ELD manufacturers, believe 
a longer compliance period should be considered, allowing them time to 
program changes consistent with this final rule. Although some aspects 
of the final rule theoretically could have a shorter effective date, 
FMCSA agrees with the commenters suggesting that a single date is 
needed to minimize confusion. With the elimination of the pause 
provision and market pressure from motor carriers, FMCSA believes the 
timeline for reprogramming ELDs can be shorter than reflected in the 
comments.
    Considering these facts, FMCSA believes that a 120-day effective 
date without a delayed compliance period is appropriate.
    Comments About Economic Issues.
    The Small Business Administration (SBA) recommended that FMCSA 
consider the impact of the proposed rule on small businesses, and 
especially those raised in Regional Regulatory Reform Roundtables. 
These included complaints about ELD requirements and requests for 
relief from HOS requirements that are impracticable because of the lack 
of sufficient safe stopping locations for drivers.
    Advocates asserted that FMCSA failed to provide any relevant, 
meaningful analysis or evidence to support the conclusion that the 
proposed rule had potential cost benefits. Advocates said that FMCSA 
``cites several benefits related to dealing with congestion and 
detention times which are factors not necessarily aligned with fatigue 
and rest needs of drivers.'' Advocates also stated that suggesting that 
the proposal will benefit drivers by increasing flexibility to rest 
when tired fails to acknowledge that breaks will likely be taken in 
response to logistical concerns and not in terms of fatigue. Advocates 
concluded that the proposed rule may very well lead to reduced 
consolidated sleep, schedule changes to fit carrier interests over 
driver fatigue and health, weakened public safety, and other 
detrimental costs of long working and driving hours.
    Schneider National Holdings, Inc. commented that the proposed 
rule's cost analysis failed to consider compliance costs associated 
with training law enforcement and drivers, comparing this against the 
2005 rule.
    Institute for Policy Integrity commented that FMCSA failed to 
consider a sufficiently broad range of alternatives, faulting the 
overly-narrow goal of increasing flexibility.
    FMCSA Response: The specific impacts mentioned by the SBA Office of 
Advocacy's Regional Regulatory Reform Roundtables include complaints 
about ELD requirements and inadequate

[[Page 33434]]

parking spaces. Measures to address concerns about ELD requirements or 
CMV parking are outside of the scope of this rulemaking.
    As for the commenter that said FMCSA failed to consider carrier 
compliance and law enforcement training costs, it should be noted that 
training costs for new entrants are included in the costs estimated for 
the Entry-level Driver Training rule,\56\ so it would be double-
counting to include those costs in the analysis for this rule.
---------------------------------------------------------------------------

    \56\ 81 FR 88732, published December 8, 2016.
---------------------------------------------------------------------------

    FMCSA added costs for law enforcement training in the RIA for this 
final rule. The Agency notes that existing funds allocated through the 
MCSAP are used for law enforcement training and can be used to cover 
State law enforcement training costs. Training costs for new inspectors 
would be covered by the costs allocated for existing training 
requirements, and would not be attributable to this final rule.
    As for the suggestion that that the Agency failed to consider a 
sufficiently broad range of alternatives, FMCSA notes that its approach 
to regulatory alternatives was based on the guidance provided by the 
Office of Management and Budget (OMB) in Circular A-4 (``Regulatory 
Analysis: A Primer.'') Circular A-4 suggests that agencies consider the 
preferred option and at least one alternative that is less stringent 
and one alternative that is more stringent. Because the HOS rule is 
comprised of separate provisions that affect different aspects of HOS 
compliance, FMCSA considered alternatives to each individual provision 
and followed OMB's guidance to consider more and less stringent 
alternatives to the Agency's preferred option.
    Comments About the HOS Exception for the Transportation of 
Agricultural Commodities.
    An industry association emphasized the importance of the 
agricultural commodity exception noted in the ANPRM. However, the 
association asked the Agency to include additional livestock 
commodities, such as animal feed and feed ingredients, and other 
agricultural products sensitive to temperature. The National Ready 
Mixed Concrete Association compared the time sensitivity of concrete to 
the agricultural exceptions and definitions.
    FMCSA Response: The HOS exception for the transportation of 
agricultural commodities and farm supplies in Sec.  395.1(k) reads as 
follows:
    ``(k) Agricultural operations. The provisions of this part shall 
not apply during planting and harvesting periods, as determined by each 
State, to drivers transporting
    (1) Agricultural commodities from the source of the agricultural 
commodities to a location within a 150 air-mile radius from the source;
    (2) Farm supplies for agricultural purposes from a wholesale or 
retail distribution point of the farm supplies to a farm or other 
location where the farm supplies are intended to be used within a 150 
air-mile radius from the distribution point; or
    (3) Farm supplies for agricultural purposes from a wholesale 
distribution point of the farm supplies to a retail distribution point 
of the farm supplies within a 150 air-mile radius from the wholesale 
distribution point.''
    This exception is statutory and was most recently amended in 
Section 32101(d) of the Moving Ahead for Progress in the 21st Century 
Act, which extended the radius of the HOS exception from 100 air-miles 
to 150 air-miles from the source (Pub. L. 112-141, 126 Stat. 405, 778, 
July 6, 2012). Section 12104 of the Agriculture Improvement Act of 2018 
(Pub. L. 115-334, 132 Stat. 4490, 4942, Dec. 20, 2018) also amended the 
definition of ``livestock.'' Those transporting agricultural 
commodities and livestock meeting the relevant definition can use this 
exception. This final rule does not address agricultural issues. On a 
separate rulemaking track, the Agency published an ANPRM seeking 
comment on the potential clarification of the definitions of 
``agricultural commodities'' or ``livestock'' in section 395.1(k) (84 
FR 36559, July 29, 2019). Any changes to the agricultural commodity 
definitions will be handled in that rulemaking, not in this final rule.
    Comments on ELDs.
    NTSB stated that a science-based safety evaluation of the current 
HOS regulations combined with the implementation of ELDs is needed 
before changes should be made to the rules. NTSB argued that this is 
necessary because FMCSA has failed to present any evidence that the 
proposed changes will improve highway safety or any evaluation of the 
potential combined effects of relaxing multiple aspects of the 
regulations simultaneously. NSC said FMCSA should support the use of 
ELDs and not make any changes to their required usage. The 
Transportation Intermediaries Association (TIA) asserted that the ELDs 
provide a large amount of real-time data which should be used to update 
the regulations to benefit the motor carrier industry.
    FMCSA Response:
    NTSB's comment emphasized the need for ``science-based evidence.'' 
Although ELDs could provide useful safety data, as TIA suggested, the 
Agency is required by statute to use such data ``only to enforce the 
Secretary's motor carrier safety and related regulations, including 
record-of-duty status regulations'' (49 U.S.C. 31137(e)(1)). In other 
words, FMCSA can use ELD data for enforcement purposes, but it may not 
use data collected directly from drivers' ELDs for broader statistical 
or research purposes. More broadly, as described throughout this 
document, the Agency believes that it is indeed using the best 
available ``science-based evidence'' in promulgating this final rule. 
To the extent a scientific result can be ascertained, fatigue science 
does not, by itself, dictate a policy outcome. Fatigue science simply 
provides information about the levels of fatigue that a person 
experiences under certain conditions. Congress recognized the need for 
balanced rulemaking by requiring the Agency to consider, among other 
things, the ``costs and benefits'' of proposed rules (49 U.S.C. 
31136(c)(2)(A) and 31502(d)).
    In the Agency's judgment, the elements of the NPRM that are adopted 
today make useful, but only incremental, changes to enhance operational 
flexibility. As discussed throughout the preamble, FMCSA believes that 
this final rule is safety-neutral.
    With respect to ELDs, the revisions to the short-haul provision 
ensures that more deliveries within the expanded 14-hour workday will 
limit the amount of driving that can be done, and the maximum driving 
time remains limited to 11 hours; conversely, driving closer to the 
expanded 150 air-mile radius will limit the number of deliveries that 
can be made. Carriers and drivers will have more discretion in the 
number and geographic location of customers they can serve, while not 
exceeding the time limit.
    Outreach and Training.
    TruckerNation asserted that robust training, guidance documents, 
and operating policies should be developed to enable effective 
communication and collaboration with stakeholders and law enforcement 
officers at all levels.
    FMCSA Response: As with all significant rulemakings, FMCSA has been 
working to develop a complete HOS implementation plan since the start 
of this rulemaking effort. This plan includes training and support 
tools for Federal and State enforcement personnel. As outreach and 
communication with the motor carrier

[[Page 33435]]

industry will be essential for an effective roll-out, the Agency has 
also developed a plan and corresponding materials that will be 
disseminated now that the final rule has been published.
    Comments on Harmonization of U.S. and Canada, and Inconsistent 
State HOS Regulations.
    A few commenters suggested reviewing and considering other HOS 
regulations, particularly those of Canada and Texas. An anonymous 
commenter noted that: ``In Canada, we are allowed 13 hours of total 
driving time and 14 hours of total on-duty time within a 16-hour daily 
clock. Additionally, to reset our daily 16-hour clock we only need 8 
hours of continuous off-duty or sleeper berth time, however we are 
required to have 10 hours of total off-duty time within the daily 24-
hour clock. The additional two hours of required off-duty time can 
consist of 30-minute increments of off-duty periods throughout the 
day.''
    In responding to FMCSA's proposed 3-hour pause in the duty day, 
CVSA noted that ``the maximum work shift [in Canada] for a driver is 16 
hours, rather than the U.S. 14-hour rule. Therefore, CVSA suggests that 
FMCSA consider 2 additional hours, as opposed to 3 hours, to align with 
the Canadian HOS requirements. The alignment would make it easier for 
the motor carrier industry to comply with the HOS regulations in both 
countries, streamlining operations for the entire transportation supply 
chain and would provide a uniform ELD solution for cross-border 
operations which would make it easier for roadside safety inspectors to 
enforce.''
    An individual summarized the Texas HOS rules as ``No required 30-
minute breaks. 12-hour drive time 15 hour on-duty time. 8-hour sleeper 
berth or off-duty. I believe this will help with fatigued drivers and 
allow drivers to drive when they feel comfortable and not when the log 
book says they have to go.'' One commenter who transports placardable 
quantities of hazardous materials complained that California allows 
only 10 hours of driving time for operations in intrastate commerce. He 
argued that all States should be required to adopt Federal HOS limits. 
ABA also commented in support of FMCSA rest break standards 
invalidating all State and local standards by field preemption, 
asserting the importance of uniformity in the transportation and 
shipping industries.
    Other commenters, including drivers and industry associations, 
suggested adopting different HOS rules for major sectors of industry, 
such as team operations, oversized freight, and agricultural 
transportation, especially livestock.
    Supporters of team operations generally favor splitting sleeper 
berth time into two 5-hour segments to allow drivers to trade places 
every few hours and keep the CMV moving. Oversized and overweight cargo 
is often transported on special vehicles that move slowly. The HOS 
limits can therefore create problems for these operations.
    Agricultural interests that commented on the NPRM emphasized the 
perishability of livestock. The American Veterinary Medical Association 
stressed the need to avoid longer transit times, especially through 
mandatory stops when animals in crowded trailers can experience heat 
stress. The National Pork Producers Council (NPPC) generally supported 
the changes proposed in the NPRM, though it preferred a 6-hour, rather 
than a 7-hour, sleeper berth period. However, the NPPC also argued that 
the distinction between the 14-hour driving window and the 11-hour 
drive-time limit should be eliminated. ``Work is work, and if a driver 
can be on-duty then the driver should be free to continue driving if 
they feel comfortable.'' The NPPC argued that a 14-hour driving limit 
is consistent with rules in Canada and Australia, as well as the 
intrastate rules of California and Texas.
    FMCSA Response: The commenters who suggested adopting Canadian HOS 
limits or the Texas rules applicable to intrastate commerce offered 
nothing beyond their opinion that these regulations are preferable to 
the Federal limits adopted today.
    Motor carrier operations in Canada and the U.S. differ in important 
ways. While trip lengths may be comparable, traffic density in Canada 
is much less and weather conditions are more challenging. Longer 
Canadian driving limits and reduced off-duty times are geared to those 
operating conditions. In fact, Canada has special HOS regulations for 
its far northern regions that are not applicable to the rest of the 
country. (Similarly, the FMCSA has different HOS rules specific to 
Alaska, 49 CFR 395.1(h).) The Canadian rules appear to be every bit as 
complex as U.S. rules. Adopting some or part of them would entail a 
major re-training effort, not only for the clear majority of U.S. 
drivers unfamiliar with Canadian rules, but also for the State 
enforcement agencies that would have to revise their regulations and 
databases and then re-train all their officers. The CVSA suggestion to 
(partially) harmonize U.S. and Canadian rules by adopting a 16-hour 
driving window is not feasible, given FMCSA's decision not to go 
forward with a 3-hour pause in the driver's duty day. The NPRM did not 
propose to adopt any portion of the Canadian HOS rules, and the Agency 
therefore cannot do so as part of this rulemaking.
    Both the Texas and California intrastate HOS rules cited by 
commenters are consistent with the variances from the FMCSRs allowed by 
Sec.  350.341. In implementing the MCSAP in the late 1980s, the Federal 
Highway Administration, FMCSA's predecessor agency, allowed State 
regulations for intrastate operations to remain less than fully 
``compatible'' with the FMCSRs, providing the States were making 
progress toward ``compatibility,'' i.e., national uniformity. However, 
in 1991 Congress directed that these ``tolerance guidelines'' with 
their intrastate variances be made permanent.\57\ Like most States, 
Texas has availed itself of the variances allowed by Sec.  350.341 to 
adopt standards for intrastate commerce that are less stringent than 
the FMCSRs, but California's more stringent driving-time limit is also 
within its authority. The NPRM proposed no changes to the MCSAP 
variances and none are adopted today.
---------------------------------------------------------------------------

    \57\ Intermodal Surface Transportation Efficiency Act of 1991, 
Public Law 102-240, 4002(l), 105 Stat. 1914, 2144, 1991.
---------------------------------------------------------------------------

    The Agency notes that industry representatives have occasionally 
stated that they believe the Agency follows a ``one-size-fits-all'' 
regulatory approach, even though the FMCSRs make special provision for 
a wide variety of motor carrier operations. Some of these provisions 
are based on statute, but many were adopted by the Agency to 
accommodate the needs of particular segments of the industry. The 
current rulemaking generated additional requests for segment-specific 
HOS rules. No such rules were proposed and none are adopted today. 
However, many of the requests have been addressed in other contexts or 
by other authorities.
    Oversize and overweight cargo is often eligible for special State 
permits, some of which include time limits (e.g., no nighttime 
operations). Although parking these combinations may be difficult, 
careful route planning can minimize, if not avoid, such problems. In 
any case, FMCSA has no authority to address parking shortages, and does 
not believe that extended driving hours are a reasonable solution to 
the problems inherent in moving unusual cargo.
    Supporters of team operations often argue that drivers should be 
allowed to split their sleeper berth time into 5-hour segments, 
separated by 5-hour driving

[[Page 33436]]

stints. While such a rule would keep the vehicle on the road almost 
continuously, its implications for safety are far from ideal. Drivers' 
circadian rhythms would inevitably be scrambled as their 5-hour rest 
periods rotate around the clock. Even if 5-hour rest periods were 
theoretically as restorative as the sleeper berth option adopted today, 
obtaining quality rest in a moving vehicle is problematic. FMCSA is 
aware of no research demonstrating that splitting sleeper berth time 
into continually repeated 5-hour segments ensures adequate rest. This 
final rule therefore adopts the sleeper berth requirements proposed in 
the NPRM.
    The transportation of livestock poses unique challenges, and 
consequently receives specialized treatment. Congress has exempted 
drivers hauling livestock from the required 30-minute break.\58\ 
Drivers hauling livestock who qualify for the statutory ``covered farm 
vehicle'' exception in Sec.  390.39 are completely exempt from the HOS 
rules and many other parts of the FMCSRs. The more limited statutory 
provision for the transportation of ``agricultural commodities'' in 
Sec.  395.1(k)(1) exempts drivers from the HOS regulations while 
operating within a 150 air-mile radius of the ``source'' of livestock 
and other commodities. Even if animals are being transported a 
substantial distance, the exempt radius gives drivers about a 3-hour 
addition to the normal 11-hour driving limit. Finally, Congress has 
prohibited the use of Federal funds to enforce the ELD requirements 
against transporters of livestock.\59\ The 14-hour driving limit 
proposed by the NPPC is far beyond the scope of this rulemaking and 
will not be addressed. In any case, longer hours are not the only 
solution to the transportation of animals. For example, livestock 
transporters seem to make little use of team drivers to address the 
problems they have identified.
---------------------------------------------------------------------------

    \58\ Sec. 5206(b)(1)(B)-(C), Fixing America's Surface 
Transportation Act, Public Law 114-94, 129 Stat. 1312, 1537, Dec. 4, 
2015.
    \59\ Sec. 131 of Title I of Division H of the Further 
Consolidated Appropriations Act, 2020, signed on December 20, 2019.
---------------------------------------------------------------------------

VII. Discussion of the Final Rule

A. Short-Haul Operations

    In this final rule, FMCSA adopts most of the changes proposed in 
the NPRM, including extending the maximum allowable workday for short-
haul property- and passenger-carrying CMV drivers from 12 to 14 hours 
to correspond with the 14-hour period requirement for property drivers, 
and extending the existing distance restriction from 100 air-miles to 
150 air-miles to be consistent with the distance limitation for short-
haul drivers that are not required to possess a commercial driver's 
license.
    Drivers and carriers using the short-haul exception are not 
required to use a RODS or ELD or take a 30-minute break. This extra 
time in the driving day has always been available to drivers, if they 
opted out of the short-haul exception. This change allows drivers to 
retain that status while receiving regulatory relief.

B. Adverse Driving Conditions

    FMCSA adopts the proposed changes concerning the adverse driving 
exception. A driver who encounters adverse driving conditions is 
allowed up to a 16-hour driving window (for property carriers) within 
which to complete up to 13 hours of driving, or a 17-hour duty period 
(for passenger carriers) within which to complete up to 12 hours of 
driving.
    In addition, FMCSA also modifies the definition of ``adverse 
driving conditions,'' to clarify the role of the driver in determining 
when such conditions are identified:

    Adverse driving conditions means snow, ice, sleet, fog, or other 
adverse weather conditions or unusual road or traffic conditions 
that were not known, or could not reasonably be known, to a driver 
immediately prior to beginning the duty day or immediately before 
beginning driving after a qualifying rest break or sleeper berth 
period, or to a motor carrier immediately prior to dispatching the 
driver.

    This addition of the driver to the definition makes it clear that 
the driver should be involved in the decision-making, which should 
lessen the need for regulatory guidance to explain the role of the 
driver in determining when the conditions are identified. The changes 
to the other parts of the definition, including referring to the duty 
day, qualifying rest breaks, and sleeper berth period, simply update 
the definition and reflect the changes and updates to the HOS 
regulations, rather than using informal terminology (``the run''). The 
Agency declines to expand the circumstances covered by the definition.

C. 30-Minute Break

    FMCSA adopts the proposed change linking the mandatory break to 
cumulative driving time rather than on-duty time, and allowing an on-
duty-not-driving break of at least 30-minutes, to satisfy the 
requirement.
    The Agency notes that many CMV drivers interrupt their driving time 
during normal business operations, such as loading or unloading a 
truck, completing paperwork, or stopping for fuel. Before this final 
rule, the break was required to be off-duty, during which no work, 
including paperwork, could be performed and was triggered after 8 
hours, regardless of driving time. However, the changes to the 30-
minute break provision do not increase the maximum driving time during 
the work shift or allow driving after the 14th hour from the beginning 
of the work shift.
    The flexibility provided with this change will allow normal breaks 
from driving (i.e., from ``time on task'' in the research literature) 
to satisfy the requirement, provided the break lasts at least 30 
minutes.

D. Sleeper Berth

    FMCSA adopts the proposal allowing a driver additional flexibility 
in taking two off-duty periods under the sleeper berth exception. One 
period must be at least 7 consecutive hours spent in the sleeper berth, 
paired with another period of at least 2 hours spent either in the 
berth or otherwise off-duty, if the two periods total at least 10 
hours. When paired, neither qualifying period counts against the 14-
hour driving window. (Prior to this final rule, the shorter period 
counted against the driving window.) Identical changes are made to a 
parallel provision applicable in the State of Alaska found in Sec.  
395.1(h).

E. Compliance Date for the Rulemaking

    FMCSA believe that the flexibility provided by these changes will 
be beneficial to the motor carrier industry. A short effective date 
would therefore be ideal, however, there are other factors to consider. 
The Congressional Review Act (CRA) (5 U.S.C. chapter 8) requires a 60 
day delay before a major rule, like this rule, can take effect. 
Additionally, the need for ELD manufacturers to update those systems 
that exceed the minimum requirements, and to train drivers and 
enforcement personnel must be considered.
    FMCSA believes that an effective date 120 days after publication is 
appropriate, given the actions required for full implementation.

F. Appendix B to 49 CFR Part 385

    Based upon this final rule, technical changes to the corresponding 
paragraphs listing acute and critical violations in 49 CFR part 385, 
Appendix B, VII. List of Acute and Critical Regulations are made.

VIII. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the

[[Page 33437]]

United States (and, in some cases, United States Territories). Motor 
carriers and drivers are subject to the laws and regulations of the 
countries in which they operate, unless an international agreement 
states otherwise. Drivers and carriers should be aware of the 
regulatory differences among nations in which they operate. Canada- and 
Mexico-domiciled drivers must ensure compliance with U.S. HOS 
requirements while they are driving in the U.S.
    A driver domiciled in the United States may comply with the 
Canadian hours of service regulations while driving in Canada. Upon re-
entering the United States, however, the driver is subject to all the 
requirements of Part 395, including the 11- and 14-hour rules, and the 
60- or 70-hour rules applicable to the previous 7 or 8 consecutive 
days. In other words, a driver who takes full advantage of Canadian 
requirements may have to stop driving for a time immediately after 
returning to the U.S. to restore compliance with Part 395. Despite its 
possible effect on decisions a U.S. driver must make while in Canada, 
this interpretation does not involve an exercise of extraterritorial 
jurisdiction (62 FR 16379, 16424; April 4, 1997).

IX. Section-by-Section Analysis

    This rulemaking seeks to provide additional flexibility under the 
HOS rules in a manner that does not compromise safety. Specifically, it 
(1) modifies the definition of ``adverse driving conditions'' and 
extends a driver's driving window by up to two hours should adverse 
driving conditions be encountered; (2) expands the scope of the short-
haul exception for drivers of property-carrying CMVs requiring a CDL 
and for passenger-carrying CMVs; (3) modifies the sleeper berth rule; 
and (4) amends the mandatory 30-minute break to give drivers subject to 
the rule less restrictive means of satisfying the requirement. 
Additional technical changes are made in this final rule. Changes to 
the regulatory text proposed in the NPRM are noted below.

A. Part 385--Safety Fitness Procedures

    In Section VII of appendix B of part 385, the list of acute and 
critical violations, is modified to match changes made in part 395. 
Specifically, the references to Sec.  395.1(h)(1)(i), (ii), (iii), and 
(iv) are modified to reflect the redesignations, and text addressing 
Sec.  395.3(a)(3)(ii) is modified to reflect the substantive changes in 
the 30-minute rule. While the changes to this list were not included in 
the NPRM, their inclusion on the designation of acute and critical 
violations are distinctly technical in nature; they simply update the 
list for purposes of clarity and comprehension to reflect regulatory 
changes made elsewhere in the rule.

B. Part 395--Hours of Service of Drivers

1. Section 395.1 (Scope of Rules in This Part)
    In subparagraph (b)(1), FMCSA modifies the exception for drivers of 
property- and passenger-carrying CMVs encountering adverse driving 
conditions, allowing them to extend their respective driving windows by 
a maximum of 2 hours, consistent with the long-standing provision 
governing the extension of driving time. Other changes in this 
subparagraph are merely technical or clarifying.
    In subparagraph (e)(1), FMCSA modifies the short-haul exception for 
drivers operating either property-carrying or passenger-carrying CMVs, 
under which time records can be used in lieu of ELDs or RODS, and 
supporting documents need not be submitted to the motor carrier. This 
final rule extends the scope of this exception from a 100- to a 150-
air-mile radius from the driver's normal work reporting location and 
extends the driver's maximum workday from 12 to 14 hours, a period 
consistent with the general rule governing the maximum driving window 
applicable to drivers operating property-carrying CMVs. All short-haul 
drivers remain subject to the existing limit on hours spent driving--11 
hours for drivers of property-carrying CMVs requiring a CDL and 10 
hours for drivers of passenger-carrying CMVs. Other changes in this 
subparagraph are merely technical or clarifying. For example, specific 
references to the 14-hour duty window for drivers of ``ready-mixed 
concrete delivery vehicles'' are eliminated, given the expansion of the 
duty day for all short-haul drivers to 14 hours. Provisions previously 
found in Sec.  395.1(e)(1)(iv), duplicating provisions limiting 
drivers' hours under Sec. Sec.  395.3 and 395.5, are eliminated as 
superfluous and to avoid redundancy.
    In subparagraph (g)(1), FMCSA modifies the general sleeper berth 
exception for drivers of property-carrying CMVs who elect to use this 
exception. Specifically, the Agency replaces the requirement for 8 
consecutive hours in the sleeper berth and 2 additional hours, either 
in the berth or off-duty, or some combination thereof, with a 
requirement for at least 7 (but less than 10) consecutive hours in the 
sleeper berth and at least 2 additional hours, either in the berth or 
off-duty or some combination thereof. However, the two periods must 
total at least 10 hours, equivalent to the 10 off-duty hours required 
of drivers who do not use sleeper berths. Neither period counts against 
the driver's 14-hour driving window. Other changes are clarifying or 
technical. For example, the provision authorizing a team driver to 
count time in the passenger seat while the CMV is moving toward his/her 
sleeper berth break is modified to allow up to 3 (rather than 2) hours 
in the passenger seat for consistency with the minimum hours required 
in the berth under this rule. Long-standing language omitted from the 
NPRM that required a driver using the sleeper berth exception to 
calculate available hours from the end of the initial break period, is 
restored in this final rule for clarity. Provisions previously found in 
paragraphs (g)(1)(i)(B) and (C) are eliminated as superfluous because 
these requirements are covered elsewhere in part 395. Finally, 
provisions in former Sec.  395.1(g) specific to drivers of property-
carrying CMVs operating in Alaska are removed and recodified in Sec.  
395.1(h)--addressing HOS requirements unique to that State.
    In paragraph (h), FMCSA revises the HOS exception applicable to 
drivers of property-carrying CMVs in the State of Alaska. Provisions 
formerly found in Sec.  395.1(g) specific to Alaska are recodified and 
consolidated in paragraphs (h), specifically in (h)(1)(ii) and (iii), 
including provisions addressing required off-duty periods and sleeper 
berth provisions. Provisions previously found in paragraph (g) that are 
eliminated because they are covered elsewhere are added here, given 
that CMV drivers in the State of Alaska are not covered by paragraphs 
Sec.  395.3(a) and (b) (property-carrying CMVs) or Sec.  395.5 
(passenger-carrying CMVs). Although not proposed in the NPRM, language 
is also added to this paragraph to address how a driver using the 
sleeper berth exception calculates available hours from the end of the 
initial break period, consistent with provisions of paragraph (g). The 
changes are either technical or stylistic. For example, language 
proposed in the NPRM is modified to more closely track language in the 
current rules, and to make clear that, under Sec.  395.1(h), neither 
rest period under the sleeper berth provision can exceed 10 hours. 
These changes are made for purposes of clarity; except as noted above, 
changes largely reflect language included in the NPRM.
2. Section 395.2 (Definitions)
    FMCSA modifies the definition of ``adverse driving conditions,''

[[Page 33438]]

eliminating certain language addressing conditions already covered, and 
modifying the applicable standard to encompass conditions ``not known, 
or [that] could not reasonably be known'' to clarify when the 
definition applies. Furthermore, rather than focus solely on the 
knowledge of the dispatcher, the definition is modified to reflect 
knowledge of either the driver or the motor carrier at applicable 
points in time.\60\ Additional clarifying changes were made. For 
example, the word ``immediately'' is added to clarify the point in time 
that the applicable conditions must be known and the reference to 
``unusual road and traffic conditions'' is modified to read ``unusual 
road or traffic conditions'' to clarify either scenario would qualify.
---------------------------------------------------------------------------

    \60\ In the NPRM, FMCSA posed a series of specific questions on 
the potential modification of the definition of ``adverse driving 
conditions,'' driven in large part by comments the Agency received 
to the ANPRM. Specifically, the Agency requested comment on whether 
the knowledge requirement ought to reside with the driver rather 
than dispatcher, whether the lack of knowledge at time of dispatch 
be eliminated, and whether the definition ought to encompass 
additional circumstances. See 84 FR at 44200, August 22, 2019.
---------------------------------------------------------------------------

    FMCSA also modifies the definition of ``on-duty time'' by updating 
paragraph (4)(iii) of the definition to align with Sec.  
395.1(g)(1)(i)(D) in this final rule.
3. Section 395.3 (Maximum Driving Time for Property-Carrying Vehicles)
    FMCSA revises paragraphs (a)(2) and (a)(3)(i) to remove superfluous 
language and make stylistic changes, respectively. No substantive 
change is intended. In paragraph (a)(3)(ii), the Agency modifies the 
30-minute break requirement to focus on extended consecutive driving 
periods rather than a driver's time on-duty. Thus, a driver may not 
drive more than 8 hours without an interruption of at least 30 
consecutive minutes. A driver may satisfy the 30-minute period by 
spending the time off-duty, on-duty (not driving), or in the sleeper 
berth, or any combination of these non-driving statuses. The specific 
reference to time in the sleeper berth is added for clarity. As before, 
drivers operating under the short-haul exception (Sec.  395.1(e)) are 
not subject to the 30-minute break requirement.
    The Agency is not adopting the NPRM's proposal to extend the 
driver's 14-hour duty period by taking an off-duty break ranging from 
30 minutes to 3 hours.

X. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory 
Policies and Procedures as Supplemented by E.O. 13563), and DOT 
Regulatory Policies and Procedures

    The Office of Information and Regulatory Affairs has determined 
that this rulemaking is an economically significant regulatory action 
under E.O. 12866 \61\ Regulatory Planning and Review, as supplemented 
by E.O. 13563.\62\ It also is significant under DOT regulations because 
the economic costs and benefits of the rule exceed the $100 million 
annual threshold and because of the substantial Congressional and 
public interest concerning the HOS requirements (84 FR 71714, Dec. 27, 
2019).
---------------------------------------------------------------------------

    \61\ Executive Order 12866 of September 30, 1993. Regulatory 
Planning and Review. (58 FR 51735, October 4, 1993).
    \62\ Executive Order 13563 of January 18, 2011. Improving 
Regulation and Regulatory Review. (76 FR 3821, January 21, 2011).
---------------------------------------------------------------------------

    An RIA is available in the docket. That document:
     Identifies the problem targeted by this rulemaking, 
including a statement of the need for the action;
     Defines the scope and parameters of the analysis;
     Defines the baseline; and,
     Defines and evaluates the costs and benefits of the 
action.
    The RIA is the synthesis of research conducted specific to current 
HOS practices, stakeholder comments, and analysis of the impacts 
resulting from changes to the HOS provisions in this final rule.
Affected Entities
    The changes in this final rule will affect CMV drivers, motor 
carriers, and, except as otherwise exempt under Sec.  390.3T(f)(2). The 
HOS regulations apply to CMV drivers. FMCSA obtained driver count 
information, by carrier operation, from the Motor Carrier Management 
Information System (MCMIS), which includes information submitted to 
FMCSA by motor carriers the first time the carrier applies for a DOT 
number, and biennially thereafter. Table 3 displays the 2018 estimate 
of CMV drivers from MCMIS. With the current baseline annual number of 
6,520,268 CMV drivers (478,184 passenger carrier CMV drivers and 
6,042,084 property carrier CMV drivers), FMCSA then estimated the 
future baseline number of CMV drivers who will be affected by this 
final rule annually during the analysis period of 2020 to 2029. These 
future baseline projections were developed by increasing the current 
baseline 2018 values consistent with occupation-specific employment 
growth projections obtained from the Bureau of Labor Statistics (BLS) 
Employment Projections program.\63\ The BLS employment projections for 
the following standard occupational classifications were used:
---------------------------------------------------------------------------

    \63\ U.S. DOL, BLS. Employment Projections Program. Table 1.2: 
Employment by detailed occupation, 2016 and projected 2026. 
Available at: https://www.bls.gov/emp/ind-occ-matrix/occupation.xlsx, 
last accessed October 29, 2018.

BLS SOC 53-3021 (Bus drivers, transit and intercity)
BLS SOC 53-3022 (Bus drivers, school or special client)
BLS SOC 53-3032 (Heavy and tractor-trailer truck drivers)
BLS SOC 53-3023 (Light truck or delivery service drivers)

    The occupational categories noted above do not overlap exactly with 
the entire population of CMV drivers who will be subject to this rule, 
primarily because there are some CMV drivers who operate vehicles over 
10,001 pounds but do not specifically declare their occupation as being 
a bus or truck driver. However, as noted above, this does not mean that 
those drivers are not reflected in the baseline 2018 estimates of CMV 
drivers produced above. All CMV drivers, regardless of their 
occupational category, are included in the estimates. The occupational 
categories above represent approximately 3.6 million employees in 2018, 
and combined are used to forecast the future growth from 2018 through 
2029 based on the BLS estimates of employees in those industries from 
2018 through 2028.
    BLS provides baseline 2018 values for the total number of employees 
in all of the occupational categories noted, as well as estimates for 
2028. An annual compound growth rate for net overall growth in the 
total population of CMV bus drivers and CMV truck drivers was 
calculated from the growth in the number of employees in these 
occupations from 2018 to 2028 as projected by BLS. The projected net 
growth in total employment for BLS SOC 53-3021 (Bus drivers, transit 
and intercity) from 2018 to 2028 is 6.1 percent, which equates to a 
0.598 percent annual compound growth rate. The projected net growth in 
total employment for BLS SOC 53-3022 (Bus drivers, school or special 
client) from 2018 to 2028 is 4.3 percent, which equates to a 0.426 
percent annual compound growth rate. FMCSA then computed a weighted 
average annual compound bus driver growth rate of 0.472 percent for 
these two occupational categories. The projected net growth in

[[Page 33439]]

total employment for BLS SOC 53-3032 (heavy and tractor-trailer truck 
drivers) from 2018 to 2028 is 5.1 percent, which equates to a 0.498 
percent annual compound growth rate. The projected net growth in total 
employment for BLS SOC 53-3033 (light truck or delivery service 
drivers) from 2018 to 2028 is 4.4 percent, which equates to a 0.429 
percent annual compound growth rate. FMCSA then computed a weighted 
average annual compound truck driver growth rate of 0.474 percent for 
these two occupational categories. Beyond 2028, these annual compound 
growth rates were assumed to be the same out to the final year of the 
analysis period of 2029. FMCSA applies the weighted average annual 
compound growth rate to the population of CMV bus and truck drivers to 
estimate the affected driver population throughout the period of 
analysis, as shown in Table 3.
    Due to exceptions and exemptions from the HOS regulations, the 
total CMV driver population must be broken down based on specific 
criteria to isolate the population that will be affected by each 
provision of this final rule. HOS regulations are dependent on the 
vehicle operated; for example, drivers of passenger-carrying vehicles 
must operate under regulations specific to those vehicles and drivers 
of non-passenger (i.e., property) carrying vehicles must operate under 
regulations specific to those vehicles. For this reason, Table 3 
provides the CMV driver count based on the type of operation (passenger 
vs. property) in column (B) and column (C). Column (D) is the total CMV 
driver count. Column (E) is a subset of the property carrier CMV 
drivers in column (C).
    The potential cost savings gained by motor carriers under this 
final rule are in part a function of the estimated number of CMV 
drivers subject to the 30-minute break requirement. This rule refers to 
drivers affected by the 30-minute break requirement as CMV truck 
drivers. Those drivers operating passenger carrying vehicles are not 
subject to the 30-minute break requirement. For this reason, the driver 
counts in Column (E) are from carriers that do not identify themselves 
as passenger carriers. Second, those drivers operating under the short-
haul exception are not subject to the 30-minute break requirement.
    Previously, drivers could qualify for the HOS short-haul exception 
in Sec.  395.1(e)(1) if they return to their normal work reporting 
location and are released from work within 12 hours after coming on-
duty, can submit their work schedule via time cards, and operate within 
a 100 air-mile radius of their work reporting location. Under this 
final rule, drivers can qualify for the HOS short-haul exception 
provided they return to the normal work reporting location and are 
released from work within 14 hours after coming on-duty, can submit 
their work schedule via time cards, and operate within a 150 air-mile 
radius of their work reporting location. In the RIA for the NPRM, FMCSA 
did not estimate an increase in the number of drivers that would be 
eligible for the short-haul exception based on the alternatives 
presented but asked for comments on how the rule would affect the 
number of drivers operating under the exception.
    In the ELD rule, FMCSA anticipated that all drivers employed by 
passenger and private non-passenger (i.e., property) carriers 
qualifying for the short-haul exception would be able to take advantage 
of the exception.\64\ Carriers report their driver employees to FMCSA 
based on whether they operate beyond or within a 100 air-mile radius. 
The number of drivers reported to operate within a 100 air-mile radius 
was used as a proxy estimate of drivers operating under the short-haul 
exception. This is not an exact count of drivers who operate under the 
short-haul exception because it does not include drivers that sometimes 
operate within 100 air-miles and on these occasions, operate as short-
haul, and because it includes drivers who operate within 100 air-miles 
but may not return to their work reporting location within 12 hours. In 
preparation for the final rule, FMCSA reviewed the comments received 
and the short-haul exception requests to determine how the rule would 
affect the number of drivers operating under the short-haul exception.
---------------------------------------------------------------------------

    \64\ U.S.DOT, FMCSA. ``Regulatory Evaluation of Electronic 
Logging Devices and Hours of Service Supporting Documents Final 
Rule.'' November 2015. Presented in Table 10 on page 34 and 
discussed on page 33. Available at: https://www.regulations.gov/document?D=FMCSA-2010-0167-2281 last accessed on: December 6, 2018.
---------------------------------------------------------------------------

    With respect to the extension of the workday from 12 to 14 hours, 
FMCSA did not receive specific information on the increase in drivers 
that would be eligible for the short-haul exception. However, the 
approximately 10 exception requests relating to an extension of the 
time required to return to the work reporting location claim to cover 
between 100,000 and 150,000 drivers. FMCSA assumes that these drivers 
operate within 100 air-miles, but do not routinely return to their work 
reporting location within 12 hours. These drivers were included in the 
estimate of drivers eligible for, and assumed to be operating under, 
the short-haul exception. As such, FMCSA does not include a cost 
savings estimate resulting from this rule.
    FMCSA has not received an exemption request that references the 
air-mile radius within which a driver may operate and still maintain 
eligibility for the short-haul exception. FMCSA did not receive data or 
information on the number of drivers that routinely operate between 100 
and 150 air-miles, and will thus be newly covered by the short-haul 
exception. However, some commenters stated that they have drivers that 
routinely operate within 100 air-miles, but on occasion their 
operations require them to drive up to 150 air-miles from their work 
reporting location. These drivers are generally eligible for the short-
haul exception, but must keep track of how often they operate beyond 
100 air-miles. If this occurs more than 8 times in a 30-day period the 
driver would no longer be eligible, and would be subject to ELDs. This 
rule will remove the confusion and administrative hassle of estimating 
the number of times each driver has driven between 100 and 150 air-
miles. It will not, necessarily, increase the number of drivers that 
are covered by the short-haul exception or decrease the number of ELDs 
in use. Therefore, FMCSA is not estimating an increase in the number of 
drivers operating under the short-haul exception for this rule and has 
determined that the carrier-reported information is a good proxy for 
the count of drivers who are eligible for, and will operate under, the 
short-haul exception.
    In 2018, there were 1.4 million interstate non-passenger drivers 
and 1.7 million intrastate non-passenger drivers reported to operate 
solely within 100 air-miles. Lastly, CMV drivers in Alaska are not 
subject to the 30-minute break requirement. In 2018, there were 
approximately 19,000 drivers operating in Alaska. FMCSA estimated the 
CMV truck drivers currently subject to the 30-minute break requirement 
by subtracting from the total 6.4 million CMV drivers, the passenger 
carrier CMV drivers (478,184), the inter- and intrastate CMV truck 
driver employees that operate within a 100 air-mile radius (3.1 
million), and the 19,000 CMV drivers in Alaska. In 2018, that total is 
2.9 million CMV truck drivers subject to the 30-minute break 
requirement (Column (E) below).

[[Page 33440]]



                                           Table 3--CMV Driver Counts
----------------------------------------------------------------------------------------------------------------
                                                                                                  CMV drivers
                                                  Passenger       Property        Total CMV    currently subject
                     Year                        carrier CMV     carrier CMV       drivers      to the 30-minute
                                                   drivers         drivers                     break requirement
(A)                                                       (B)             (C)     (D) = (B) +                (E)
                                                                                          (C)
----------------------------------------------------------------------------------------------------------------
2018.........................................         478,184       6,042,084       6,520,268          2,944,705
2019.........................................         480,444       6,070,752       6,551,196          2,958,677
2020.........................................         482,714       6,099,556       6,582,270          2,972,715
2021.........................................         484,994       6,128,497       6,613,491          2,986,820
2022.........................................         487,286       6,157,575       6,644,860          3,000,991
2023.........................................         489,588       6,186,791       6,676,378          3,015,230
2024.........................................         491,901       6,216,145       6,708,046          3,029,536
2025.........................................         494,225       6,245,639       6,739,864          3,043,911
2026.........................................         496,560       6,275,273       6,771,833          3,058,353
2027.........................................         498,906       6,305,047       6,803,953          3,072,864
2028.........................................         501,263       6,334,963       6,836,226          3,087,444
2029.........................................         503,631       6,365,021       6,868,652          3,102,093
----------------------------------------------------------------------------------------------------------------

Summary of Costs
    FMCSA evaluated the impacts expected to result from the changes in 
this final rule and anticipates that there will be no new regulatory 
costs or increases in existing regulatory costs for the regulated 
entities. The final rule will, however, improve efficiency by allowing 
drivers to shift their drive and work time to mitigate the effect of 
uncertain variables, resulting in a reduction in costs, or cost 
savings, to drivers and motor carriers. The Agency anticipates that the 
changes to each provision will result in cost savings, quantitatively 
estimates the motor carrier cost savings attributable to the 30-minute 
break provision, quantitatively estimates the training costs to the 
Federal Government attributable to the rule, and qualitatively assesses 
cost savings of the remaining impacts resulting from this final rule.
30-Minute Break
    This final rule will allow on-duty, non-driving time to fulfill the 
30-minute break requirement, as opposed to the current off-duty 
requirement. Also, the break will be required after 8 hours of driving 
rather than 8 hours of on-duty time. The final rule will thus reduce 
the number of drivers required to take a break (i.e., those drivers 
whose schedules include on-duty breaks from driving will not be 
required to also take an off-duty break) and it also allows for 
flexibility in how drivers spend their time if they are not driving. 
The final rule will result in cost savings to carriers in the form of 
avoided losses in driver productivity.
    FMCSA values the reduction in driver time spent in nonproductive 
activity as the opportunity cost to the motor carrier, which is 
represented by the now attainable profit, using three variables: driver 
hours available for labor (i.e., those hours that are currently 
required to be off-duty, but could be on-duty but not-driving under the 
final rule), an estimate of a typical average motor carrier profit 
margin, and the marginal cost of operating a CMV. The estimation of 
driver hours stems from the populations of drivers who either (1) drive 
more than 8 hours in an average shift, (2) work more than 8 hours in an 
average shift but do not drive more than 8 hours, or (3) work less than 
8 hours in an average shift. Drivers who fall into category (3) will be 
unaffected by the changes. Drivers who fall into category (2) will 
receive regulatory relief from the changes, estimated as regaining a 
full half hour per shift. Additionally, drivers who drive more than 8 
hours (category 1), will also receive regulatory relief by the 
allowance of on-duty, non-driving time to meet the 30-minute break 
requirement, estimated as regaining half of the half hour break time 
(15 minutes) per shift. The Agency multiplied the time estimated to be 
regained by drivers per affected shift, the number of affected shifts, 
and the estimated driver population in each driver group to produce 
column (A) in Table 4.
    As shown in Table 4, the estimate of cost savings is the product of 
the total hours saved by drivers (column A), and the estimated hourly 
profit for motor carriers (column B). FMCSA estimates the cost savings 
resulting from the changes to the 30-minute break provision to be 
$278.4 million (or a cost of -$278.4 million) on an annualized basis at 
a 3 percent discount rate, and $274.1 million (or a cost of -$274.1 
million) on an annualized basis at a 7 percent discount rate.

                               Table 4--Total and Annualized Motor Carrier Cost Savings Due to Changes in Break Provision
                                                                   [Millions of 2018$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     CMV drivers
                                                      currently                                                             Total cost      Total cost
                                                   subject to the    Total hours     Profit per    Total cost  savings--    savings-- 3     savings-- 7
                       Year                           30-minute         saved           hour            undiscounted          percent         percent
                                                        break                                                              discount rate   discount rate
                                                     requirement
                                                                              (A)             (B)         (C = A x B)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020.............................................       2,972,715      27,376,449           $3.59             ($98.3)            ($95.4)         ($91.8)
2021.............................................       2,986,820      82,502,528            3.59             (296.1)            (279.1)         (258.6)
2022.............................................       3,000,991      82,893,979            3.59             (297.5)            (272.3)         (242.9)
2023.............................................       3,015,230      83,287,288            3.59             (298.9)            (265.6)         (228.0)
2024.............................................       3,029,536      83,682,462            3.59             (300.3)            (259.1)         (214.1)
2025.............................................       3,043,911      84,079,512            3.59             (301.8)            (252.7)         (201.1)

[[Page 33441]]

 
2026.............................................       3,058,353      84,478,446            3.59             (303.2)            (246.5)         (188.8)
2027.............................................       3,072,864      84,879,272            3.59             (304.6)            (240.5)         (177.3)
2028.............................................       3,087,444      85,282,000            3.59             (306.1)            (234.6)         (166.5)
2029.............................................       3,102,093      85,686,640            3.59             (307.5)            (228.8)         (156.3)
                                                  ------------------------------------------------------------------------------------------------------
    Total 10-Year Cost Savings...................         (2,375)        ($1,925)
    Total Annualized Cost Savings................         (278.4)         (274.1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\(a)\ Total cost values may not equal the sum of the components due to rounding. (The totals shown in this column are the rounded sum of unrounded
  components.)
\(b)\ Values shown in parentheses are negative values (i.e., less than zero) and represent a decrease in cost or a cost savings.

    Time is a scarce resource, and FMCSA recognizes that forced off-
duty time is not always the drivers' best alternative. Some commenters 
claimed that the rigid off-duty requirement forces drivers to rest when 
they are not tired and penalizes them for resting. Though the Agency 
does not necessarily agree with these commenters' characterization of 
the off-duty requirement, it is reasonable to assume that the current 
HOS regulations are imposing an opportunity cost on drivers that could 
be alleviated by providing drivers greater flexibility. In recent RIAs 
for non-HOS regulations, FMCSA has valued the opportunity cost of 
drivers' time using their wage rate. In other words, the increased 
flexibility provided by the final rule will result in a reduction in 
costs, or a cost savings, to drivers equal to the number of hours saved 
multiplied by the driver wage rate. The Agency did not account for the 
opportunity cost of the driver's time in the 2011 RIA, or in the 2019 
NPRM, and for consistency does not monetize this component of the final 
rule's savings.
    FMCSA considered eliminating the break requirement entirely. 
Drivers would still use off-duty time when needed or break-up the 
driving task using on-duty/non-driving time. Drivers in group 1 would 
likely regain 15 minutes of on-duty time, and drivers in group 2 would 
likely regain 30 minutes of on-duty time. As in the preferred 
alternative, FMCSA assumes that drivers in group 1 would only regain 15 
minutes because they need personal time to eat, drink, etc. That time 
would continue to be off-duty regardless of eliminating the 
requirement. Elimination of the break requirement would seem to provide 
additional flexibility beyond the preferred alternative; however, it 
would not impact driver behavior relative to the preferred alternative, 
and thus would result in an equivalent motor carrier cost savings.
Sleeper Berth
    Drivers qualifying for the previous HOS sleeper berth provision in 
Sec.  395.1(g)(1)(i)(A) and (ii)(A) must, before driving, accumulate 
the equivalent of at least 10 consecutive hours off-duty. The 
equivalent refers to two periods that need not be consecutive: at least 
8 but less than 10 consecutive hours in a sleeper berth, and a separate 
period of at least 2 hours either in the sleeper berth or off-duty, or 
any combination thereof. This final rule will continue to allow drivers 
using the sleeper berth to obtain their required off-duty time by 
taking fewer hours in the sleeper berth. However, drivers using this 
option will be required to obtain one rest period of at least 7 
consecutive hours in the sleeper berth, paired with another period of 
at least 2 hours, such that at least 10 hours of off-duty time is 
achieved. Neither period will count against the 14-hour driving window.
    The sleeper berth provision in this final rule allows for 
additional flexibility in a driver's duty day by (1) providing for an 
optional 1-hour reduction in the amount of time that drivers are 
required to spend in the sleeper berth, and (2) excluding both rest 
periods when calculating the 14-hour driving window. The Agency expects 
that carriers and drivers could realize efficiency gains by the 
reduction in time required to be in the sleeper berth and the exclusion 
of the shorter off-duty period in the calculation of the 14-hour 
driving window. A driver who used the previous sleeper berth provision 
today was required to include the shorter rest period in the 
calculation of the 14-hour window, resulting in an available 12 hours 
to complete up to 11 hours of driving. Under this final rule, drivers 
will be provided the ability to choose between split-rest options that 
will not reduce their available work time because the shorter rest 
period will be excluded from the calculation of the 14-hour driving 
window. The Agency, however, lacks data on the use of the previous 
sleeper berth provision, and the number of drivers that will use it 
under the final rule.
    FMCSA received some information from commenters regarding how often 
some drivers use the current sleeper berth provisions and how usage 
might change under the new provision, with some expecting drivers to 
increase their usage and others expecting that the new provision will 
not be widely used. Despite the comments received on this issue, FMCSA 
still lacks definitive information that would be needed to estimate 
usage among the entire population of drivers. In addition, FMCSA also 
lacks data on the number of trucks that are equipped with sleeper 
berths and the impact that schedule changes might have on motor carrier 
operations. Therefore, FMCSA did not evaluate the impacts of schedule 
changes that may occur because of this final rule.
    FMCSA also considered retaining the current split option of \8/2\ 
but excluding the shorter rest period from the calculation of the 14-
hour driving window. Excluding the shorter rest period from the 
calculation of the 14-hour driving window would result in the same per-
trip cost savings estimated

[[Page 33442]]

for the preferred alternative but would limit the driver's flexibility. 
The preferred alternative will allow drivers to use a \7/3\ split 
option, which provides flexibility for drivers to shift an additional 
hour of their off-duty time in the most optimal way for their current 
situation.
    FMCSA also considered expanding the sleeper berth options to allow 
a \7/3\ split, while continuing to count the shorter rest period in the 
calculation of the 14-hour driving window. Drivers making use of this 
alternative would then have an 11-hour window within which to drive 11 
hours. This alternative provides a false sense of flexibility due to 
its impracticality, and would limit the use of the option to those 
drivers that don't anticipate reaching the maximum driving or work 
time. Additionally, it would eliminate the cost savings resulting from 
increased productivity discussed in the preferred alternative. This 
alternative does not meet the Agency objective of providing drivers the 
ability to take needed rest breaks while ensuring opportunity for an 
adequate rest period.
Short-Haul Operations
    Previously, under Sec.  395.1(e)(1), drivers did not have to 
prepare RODS or use an ELD if they met certain conditions, including a 
return to their work reporting location and release from work within 12 
consecutive hours. Drivers operating under this provision were 
permitted a 12-hour workday in which to drive up to 11 hours (for 
passenger carriers, up to 10 hours) and the motor carrier was required 
to maintain time records reflecting certain information. Specifically, 
the motor carrier that employed the driver and utilized this exception 
was required to maintain and retain for a period of 6 months accurate 
and true time records showing: the time the driver reported for duty 
each day; the total number of hours the driver was on-duty each day; 
the time the driver was released from duty each day; and the total time 
for the preceding 7 days in accordance with Sec.  395.8(j)(2) for 
drivers used for the first time or intermittently.
    Under Sec.  395.3(a)(2) and (3), other property-carrying CMV 
drivers not utilizing the short-haul exception have a 14-hour driving 
window in which to drive up to 11 total hours. Under Sec.  395.5(a)(1) 
and (2), CMV drivers operating passenger-carrying CMVs can operate for 
up to 15 hours after coming on-duty. However, unless otherwise 
excepted, these drivers must maintain RODS, generally with an ELD. The 
drivers qualifying for the Sec.  395.1(e)(1) exception previously had 
the option to use the 14- or 15-hour duty day in Sec.  395.3 or Sec.  
395.5, but could choose not to use the option to avoid keeping RODS.
    Additionally, drivers currently qualifying for previous HOS short-
haul exception had to stay within 100 air-miles of their work reporting 
location. In this final rule, FMCSA extends that radius from 100 air-
miles to 150 air-miles, consistent with the radius requirement for the 
other short-haul exceptions in Sec.  395.1(e)(2).
    In the ELD rule, FMCSA anticipated that all drivers employed by 
passenger and private non-passenger (i.e., property) carriers 
qualifying for the short-haul exception would be able to take advantage 
of the exception. However, FMCSA received comments on the HOS ANPRM 
from carriers discussing their business practices and normal operating 
conditions, and how the lack of flexibility in the 12-hour workday 
limited their ability to take advantage of the short-haul exception. On 
many shifts, drivers returned to their work reporting location within 
12 hours, but there are some occasions when drivers needed an 
additional 2 hours in their workday. This extra time beyond 12 hours 
could result from detention time, longer-than-expected customer service 
stops, traffic, or other unforeseen events. When this occurred more 
than 8 days in a 30-day period, the driver had to prepare daily RODS 
using an ELD as required by Sec.  395.8 (a)(1)(iii)(A)(1). Due to the 
uncertainty surrounding the driver's eligibility at the beginning of 
the workday, the carrier could choose to have their driver operate as 
though he or she was not eligible for the short-haul exception. This 
resulted in unnecessary ELD expenses. One commenter on the HOS ANPRM 
estimated that the proposal would reduce the required ELDs for its 
heavy-duty service vehicles by 84 percent, resulting in annual cost 
savings of $1.5 million. While this comment is informative and suggests 
that this final rule will result in cost savings, FMCSA cannot 
extrapolate from one carrier's cost savings to determine the cost 
savings to all carriers. Thus, while FMCSA expects the final rule to 
result in cost savings for the affected entities, those impacts are not 
quantified.
    The extension of the air-mile radius by 50 air-miles will afford 
drivers additional flexibility and allow carriers to reach customers 
farther from the work reporting location while maintaining eligibility 
for the short-haul exception. Extending the air-mile radius will not 
extend the driving time. FMCSA does not anticipate that extending the 
air-mile radius will increase market demand or result in an increase to 
aggregate VMT. Rather, more carriers might use the short-haul 
exception. Carriers will have the flexibility to meet market demands 
more efficiently while maintaining eligibility for the short-haul 
exception. One commenter on the HOS ANPRM explained that the increased 
flexibility in the air-mile radius would reduce the number of vehicles 
necessary for their operation, and thus would result in cost savings of 
approximately $1.7 million per year. Again, motor carriers are very 
diverse in their operating structures, and FMCSA cannot extrapolate 
from one carrier's cost savings to determine the cost savings to all 
carriers.
    FMCSA asked for comments from the public on the cost savings that 
would be expected to result from not having to comply with the ELD 
requirements. Commenters noted that cost savings could range from $240 
to $1,700 per truck, including the costs for purchase of the device, 
data maintenance, and technical support. Comments from industry 
associations stated that the cost saving would be at least $500 to 
$1,000 per truck, including costs for equipment, maintenance, repair, 
and back office administration. Another commenter stated that due to 
the diverse nature of the motor coach industry, some segments of the 
driver population would continue to need ELDs, and FMCSA agrees with 
this comment. FMCSA is unable to estimate the population of drivers 
under the short-haul exception that would continue to require ELDs, and 
FMCSA is thus unable to quantify the expected cost savings for the 
short-haul driver population that will no longer need ELDs under this 
final rule.
    The Agency agrees with other commenters who stated that the 
proposed changes to the current short-haul provisions would provide 
increased flexibility for both motor carriers and drivers who utilize 
the exception. FMCSA believes that the extension of the 12-hour limit 
to 14 hours, and the 100 air-mile radius to 150 air-miles will provide 
motor carriers the necessary flexibility to spend quality time with 
customers, respond to changes in market demand such as peak holiday 
delivery times, and reduce the administrative burden of determining how 
often a driver has gone beyond 12 hours or 100 air-miles in any 30-
consecutive day period. The changes to the short-haul exception will 
not extend the workday beyond the current long-haul driving window, 
thus FMCSA has no reason to believe that the rule would negatively 
impact safety.

[[Page 33443]]

    FMCSA also considered limiting the proposal to an extension of the 
time required for drivers to return to their work reporting location 
from 12 to 14 hours, without changing the air-mile radius requirements. 
This alternative would decrease the population eligible for the short-
haul exception relative to the preferred alternative by removing 
eligibility for those drivers operating between 100 and 150 air-miles. 
Decreasing the population affected by this final rule would decrease 
any cost savings resulting from it.
Adverse Driving Conditions
    Under the previous regulations, drivers qualifying for the HOS 
adverse driving conditions exception in Sec.  395.1(b)(1) could drive 
for no more than 2 additional hours beyond the maximum driving time 
allowed under Sec.  395.3(a) or Sec.  395.5(a) if they encountered 
adverse driving conditions after dispatch. The previous provision did 
not allow for the extension of the 14-hour driving window (or 15 hours 
on-duty for drivers of passenger-carrying CMVs), and thus could not be 
used if the adverse driving condition was encountered towards the end 
of that period. In this final rule, FMCSA allows a 2-hour extension of 
the 14-hour driving window (or 15 hours on-duty for drivers of 
passenger-carrying CMVs). This change aligns the regulations with the 
intent of the adverse driving condition provision, which is to allow 
drivers flexibility when faced with unexpected conditions. This change 
will not increase the available driving time.
    The adverse driving conditions provision is intended to provide 
flexibility for drivers who encounter such adverse driving conditions 
which were not apparent at the time of dispatch. However, it did not 
previously extend the driving window, limiting its use. This final rule 
will increase flexibility by allowing drivers encountering adverse 
driving conditions to extend their driving window by the same 2 hours 
that currently apply to driving time. This change will provide drivers 
with additional options to determine the best solution based on their 
situation.
    The Agency anticipates that the increased options and flexibility 
will result in cost savings to drivers, but is unable to quantify them 
due to a lack of data regarding the use of the adverse driving 
exception. FMCSA appreciates the feedback and information received from 
commenters regarding specific motor carrier experience with the adverse 
driving condition provision. Commenters were split on the issue, with 
some stating that they expect an increase in its use and others not 
expecting to see an increase. FMCSA believes that a decrease in use is 
unlikely to result from the changes, but it is not clear if or how much 
of an increase may result on an industry-wide level. Given this 
uncertainty, FMCSA is unable to estimate the change in use of the 
adverse driving condition provision at this time.
Federal and State Government Costs
    FMCSA will incur costs to update the existing eRODS software. The 
eRODS software is used by safety officials (Federal, State, and local 
safety partners) to locate, open, and review output files transferred 
from a compliant ELD. The eRODS software consists of two components: A 
database containing the HOS requirements and the software component 
that compares the compliant ELD output files to the HOS requirements. 
The changes to the 30-minute break requirement, sleeper berth 
requirements, and the split-duty period will necessitate updates to the 
eRODS database that stores the HOS requirements and some minor 
programming changes to the compliance algorithm aspects of the 
software.
    The Department's Volpe National Transportation Systems Center 
developed the eRODS software and continues to maintain and update it 
when needed. Volpe estimates that the final rule will result in one-
time eRODS software update costs of $20,000. This includes updating the 
HOS requirements database and minor programing changes to the software 
component which consist of five steps: Developing a requirements 
analysis, design, coding, testing, and deployment of the updates.
    The Agency will incur one-time costs in the first year of the 
analysis period for the training of enforcement personnel. The Agency 
intends for all training costs related to this final rule to accrue in 
2020. First, a contractor is developing training materials at an 
estimated cost of $90,000. The Agency intends to then utilize these 
materials and implement a ``train-the-trainer'' model to train 
inspectors in field locations. This process will involve the training 
of three master trainers over the course of 3, 8-hour training days (24 
hours in total for each master trainer). Next, the 3 master trainers 
will train 100 trainers from across the country, again over the course 
of 3, 8-hour training days (24 hours in total for each trainer). The 
100 trainers will then conduct approximately 50 training sessions for 
500 Federal and 10,500 State trainees in pairs (with 2 trainers per 
class).
    FMCSA then calculated training costs by multiplying the wage rate 
for each group by the total number of training hours. Next, FMCSA 
estimated the travel costs associated with the trainings. FMCSA assumed 
that the 3 master trainers are located near the training sites and thus 
will not incur travel costs. The 100 trainers, however, are from 
disparate locations across the country and will be required to travel 
to the training sites. Federal and State trainees are also expected to 
travel within their respective State to attend the trainings given at 
field locations.
    Next, FMCSA combined the costs for time spent in trainings and 
travel costs for each group to estimate total costs for training that 
are incurred because of the final rule. As shown in Table 5, these 
calculations resulted in a total cost of $8.6 million associated with 
training.

            Table 5--Estimated Total Costs for Training, 2020
------------------------------------------------------------------------
                     Training group                         Total costs
------------------------------------------------------------------------
Training Materials......................................         $90,000
Master Trainers.........................................          18,720
Trainers................................................         382,400
Federal Trainees........................................         435,000
State Trainees..........................................       7,638,750
                                                         ---------------
    Total Costs.........................................       8,564,870
    Total 10-Year Cost Savings--7 percent Discount Rate.       8,004,551
    Total 10-Year Cost Savings--3 percent Discount Rate.       8,315,408
    Total Annualized Cost Savings--7 percent Discount          1,139,668
     Rate...............................................
    Total Annualized Cost Savings--3 percent Discount            974,819
     Rate...............................................
------------------------------------------------------------------------


[[Page 33444]]

Summary of Quantified Costs
    This final rule will not result in any new costs for regulated 
entities. Instead, this rule will result in increased flexibility for 
drivers and a quantified reduction in costs for motor carriers. Federal 
and State governments will incur one-time training costs of $8.6 
million for training inspectors on the new requirements. The Federal 
Government also will incur a one-time eRODS software update cost of 
approximately $20,000. The change to the 30-minute break requirement 
will result in a reduction in opportunity cost, or a cost savings, for 
motor carriers. FMCSA estimates the 10-year motor carrier costs 
attributable to the changes to the 30-minute break provision at -
$2,814.3 million (or a total 10-year motor carrier cost savings of 
$2,814.3). As shown in Table 6, FMCSA estimates the total costs of this 
final rule at -$2,366.2 million (or $2,366.2 million in cost savings) 
discounted at 3 percent, and -$1,917.5 million (or $1,917.5 million in 
cost savings) discounted at 7 percent. Expressed on an annualized 
basis, this equates to -$277.4 million in costs (or $277.4 million in 
cost savings) at a 3 percent discount rate, and -$273.0 million in 
costs (or $273.0 million in cost savings) at a 7 percent discount rate. 
All values are in 2018 dollars.

                                              Table 6--Total 10-Year and Annualized Costs of the Final Rule
                                                                 [In millions of 2018$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Federal  and     Cost due to
                                                                          state      changes in  30-    Total costs--      Total costs--   Total costs--
                                Year                                   government       min break        undiscounted       (7 percent      (3 percent
                                                                          cost          provision                         discount rate)  discount rate)
                                                                                  A               B          C = A + B    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020...............................................................            $8.6         ($98.3)            ($89.7)           ($83.8)         ($87.1)
2021...............................................................             0.0         (296.1)            (296.1)           (258.6)         (279.1)
2022...............................................................             0.0         (297.5)            (297.5)           (242.9)         (272.3)
2023...............................................................             0.0         (298.9)            (298.9)           (228.0)         (265.6)
2024...............................................................             0.0         (300.3)            (300.3)           (214.1)         (259.1)
2025...............................................................             0.0         (301.8)            (301.8)           (201.1)         (252.7)
2026...............................................................             0.0         (303.2)            (303.2)           (188.8)         (246.5)
2027...............................................................             0.0         (304.6)            (304.6)           (177.3)         (240.5)
2028...............................................................             0.0         (306.1)            (306.1)           (166.5)         (234.6)
2029...............................................................             0.0         (307.5)            (307.5)           (156.3)         (228.8)
                                                                    ------------------------------------------------------------------------------------
    Total 10-Year Costs............................................  ..............  ..............  ...................       (1,917.5)       (2,366.2)
    Total Annualized Costs.........................................  ..............  ..............  ...................         (273.0)         (277.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\(a)\ Values shown in parentheses are negative values (i.e., less than zero) and represent a decrease in cost or a cost savings.

Non-Quantified Costs
    There are a number of other potential cost savings of this final 
rule that FMCSA considered which, due to uncertainty around driver 
behavior, could not be quantified on an industry level.
    FMCSA has granted 5-year exceptions from the requirement to return 
to the driver's normal work reporting location within 12 hours of 
coming on-duty (examples include: Waste Management Holdings, Inc.; 
American Concrete Pumping Association; and National Asphalt Paving 
Association).\65\ During the period of the exception, all drivers 
utilizing it must carry a copy of the exception notice; after that 
period, entities seeking to maintain the exception must reapply. This 
final rule will result in cost savings to these (and potentially other) 
entities by alleviating the need to pursue the exception process and 
eliminating compliance with exception conditions such as carrying a 
copy of the exception document, as well as reallocating the time and 
resources that would have been spent on the exception reapplication. 
The Federal Government will experience a cost savings equal to the 
reduction in time and resources necessary to review, comment on, and 
make final determinations on the exceptions. Additional non-quantified 
cost savings include increased efficiency afforded to drivers through 
the changes to the various HOS provisions, such as, efficiency gains 
due to the short-haul exception; the ability of drivers to make 
informed decisions due to the changes to the adverse driving conditions 
and sleeper berth provisions; and the reduction in opportunity cost to 
drivers from the changes to the 30-minute break provision.
---------------------------------------------------------------------------

    \65\ Available at: https://www.regulations.gov/docket?D=FMCSA-2017-0197. https://www.regulations.gov/document?D=FMCSA-2018-0181-0057, and https://www.regulations.gov/docket?D=FMCSA-2018-0175, 
respectively.
---------------------------------------------------------------------------

    The Agency did not include the cost for ELD manufacturers to update 
ELD equipment or software. A compliant ELD and its software will not 
need to be updated because of this final rule. FMCSA is aware, however, 
that some ELD manufacturers have chosen to go beyond the minimum ELD 
requirements and provide additional features, such as alerts when a 
driver may be close to an HOS violation. FMCSA acknowledges that the 
additional features will need to be updated because of the rule, or 
risk being inaccurate. ELD manufacturers providing these features have 
staff that routinely provides updates and patches to their ELD 
software, and transmits those updates directly to the devices on-board 
vehicles. Many carriers have subscriptions with companies and will 
receive the updated software as soon as practicable. While updating ELD 
equipment is not a requirement or direct cost of the rule, it is an 
indirect cost attributable to this rule. FMCSA received comments from 
ELD manufacturers on the time required to make and distribute software 
updates, and discusses those comments in this preamble. FMCSA did not 
receive comments addressing the cost of software updates, and considers 
updates to be part of normal business practices. Therefore, FMCSA is 
not estimating the cost of updating the additional ELD features.
    The Agency did not quantify impacts resulting from any potential 
decreases in congestion that may result from the final rule. Allowing 
drivers to take breaks at their convenience, such as during times of 
heavy traffic congestion, could allow the driver to operate at a

[[Page 33445]]

more consistent speed without the starting and stopping that occurs in 
heavy traffic. American Transportation Research Institute technical 
memorandum demonstrated that avoiding congestion could result in moving 
freight the same number of miles in fewer work hours. This could reduce 
fuel and vehicle costs for the motor carriers, congestion for the 
public by removing large vehicles from the road during peak travel 
times, and the incidence of crashes related to congestion. While these 
impacts could result from any individual trip, FMCSA cannot estimate 
the magnitude or likelihood of these potential impacts for many 
reasons. Most notably, these impacts hinge on the availability of CMV 
parking. FMCSA is aware that parking is not always available, 
especially in urban areas or heavily travelled truck routes.
    Additional non-quantified cost savings include increased 
flexibility and a reduction in back office administrative costs 
resulting from the extension of the duty day and the air-mile radius 
for those operating under the short-haul exception; the increased 
options for drivers to respond to adverse driving conditions during the 
course of their duty period; and increased flexibility afforded to 
drivers, such as increased options with regard to on-duty and off-duty 
time resulting from changes to the 30-minute break requirement, and the 
sleeper berth provisions.
Summary of Benefits
    The Agency does not anticipate that this final rule will result in 
any new regulatory benefits. Additionally, the Agency does not believe 
that the rule will result in any reductions in safety benefits or other 
regulatory benefits.
30-Minute Break
    The changes to the 30-minute break provision are estimated to be 
safety-neutral because both the current rule and the final rule will 
prevent CMV operators from driving for more than 8 hours without at 
least a 30-minute change in duty status. The distinction is that the 
final rule focuses on actual driving time rather than on-duty time, 
some of which may not be spent behind the wheel. The Agency discussed 
the value of off-duty breaks as compared to on-duty breaks in previous 
rulemakings, but did not quantify the safety benefits attributable to 
the off-duty break when the break provision was added to the HOS rules 
in 2011 (76 FR 81134, Dec. 27, 2011). Further, FMCSA has determined 
that the value of off-duty breaks relative to on-duty breaks should be 
reconsidered.
    As discussed above and in the RIA, the Agency has carefully 
considered the views of numerous commenters requesting exceptions or 
removal of the 30-minute break requirement. As a result of the 
feedback, and after reviewing available research, FMCSA anticipates 
that an on-duty break from driving, will not adversely affect safety 
relative to the previous requirements. Based on comments to the ANPRM, 
the Agency took another look at the Blanco, et al. (2011), study to 
determine the applicability of the study findings to the 30-minute 
break requirement. This final rule focuses on achieving a break from 
driving as opposed to a break after a certain amount of time on-duty. 
For these reasons, the Agency believes that these changes will not have 
an impact on the safety benefits of the HOS rules and did not quantify 
changes in regulatory benefits for this final rule.
    Alternative 1, which would eliminate the 30-minute break 
requirement, seems to be more flexible than the preferred alternative. 
However, eliminating the requirement would allow drivers the 
opportunity to operate a vehicle for 11 hours without stopping. In 
general, FMCSA does not anticipate that drivers would alter their 
schedules to such an extent, but would likely take breaks to eat, rest, 
etc. However rare of an occurrence 11 continuous hours of driving may 
be, FMCSA considers it to be detrimental to safety. As such, 
alternative 1 may be more flexible and would result in an equivalent 
level of motor carrier cost savings, but would lead to a reduction in 
safety benefits relative to the preferred alternative. Therefore, FMCSA 
is not finalizing alternative 1.
Sleeper Berth
    As discussed in the RIA and elsewhere in this preamble, there is an 
extensive body of research suggesting that split-sleep schedules may 
improve safety and productivity, compared to consolidated daytime 
sleep.
    This final rule will ensure that drivers using the sleeper berth to 
obtain the minimum off-duty time have at least one rest period of a 
sufficient length to have restorative benefits to counter fatigue. This 
final rule provides drivers with the flexibility to make decisions 
regarding their rest that best fits their individual needs, while 
continuing to prohibit potential overly-long periods of wakefulness and 
duty hours that could lead to fatigue-related crashes.
    As discussed extensively in this preamble, the Agency reviewed the 
comments received and studies provided and has determined that the 
change will not result in adverse safety outcomes. The available 
studies on sleeper berth use highlight the fact that the split sleeper 
berth option is a viable and safe alternative to a minimally compliant, 
consolidated break of 10 consecutive hours. The current rulemaking 
retains a sleeper berth anchor period of sufficient length to give 
drivers an opportunity for rest and when combined with the shorter rest 
period, to ensure drivers will continue to have 10 hours of time during 
each day when they are relieved of all responsibility for performing 
work. As such, the Agency anticipates that the increased flexibility in 
this final rule will not affect the safety outcomes achieved by the 
current sleeper berth provision.
    Alternative 1, which would maintain an \8/2\ split option but 
exclude the shorter rest period from the calculation of the 14-hour 
driving window, would be more restrictive than the preferred 
alternative and allow fewer options for drivers to split their 10 hours 
of off-duty time. Based on the research discussed above, a \7/3\ split 
option will allow for an adequate rest period and will not impact 
safety relative to an \8/2\ split option. Alternative 1 would be more 
restrictive, would reduce cost savings associated with the changes, and 
would not provide any additional safety benefits relative to the 
preferred alternative. Therefore, FMCSA did not propose alternative 1.
    Alternative 2, which would allow a \7/3\ split option but include 
the shorter rest period in the calculation of the 14-hour driving 
window, is more restrictive than the preferred alternative. Under this 
alternative, a driver would be required to stop driving 14 hours after 
coming on-duty (excluding the 7 hours spent in the sleeper berth), 
regardless of the fact that another 3 off-duty hours were resting. 
Based on results in the Blanco study (2011), FMCSA believes that 
excluding the shorter rest period from the calculation of the 14-hour 
driving window would not reduce safety relative to the preferred 
alternative. The Blanco study showed that the SCE rate increased 
modestly with increasing work and driving hours. Blanco also found that 
breaks can be used to counteract the negative effects of time on task. 
The results from the break analyses indicated that significant safety 
benefits can be achieved when drivers take breaks from driving. This 
was a key finding in the Blanco study and clearly shows that breaks can 
ameliorate the negative impacts associated with fatigue and time on 
task. As such, alternative 2 would be more restrictive, reduce cost 
savings associated with the rule, and would not provide any additional 
safety

[[Page 33446]]

benefits relative to the preferred alternative. Therefore, FMCSA did 
not propose alternative 2.
Short-Haul Operations
    The IIHS conducted a study in North Carolina in 2017 and found that 
interstate truck drivers operating under the short-haul exception had a 
crash risk 383 percent higher than those not using the exception. They 
recommended that, due to this finding, the Agency should not propose an 
extension of the short-haul exception from 12 to 14 hours. FMCSA 
reviewed the study and noted that while the finding was statistically 
significant, it was based on a very small sample size, which prevented 
the author from estimating a matched-pair odds ratio restricted to 
drivers operating under a short-haul exception, and was not nationally 
representative. Further, the authors noted that other related factors 
unobserved in the study may have led to this result. For example, it is 
possible that older or more poorly maintained trucks are used in local 
operations. Regardless, because FMCSA's number one priority is safety, 
the Agency investigated the safety implications of the rule using 
available data.
    Congress passed the Fixing America's Surface Transportation (FAST) 
Act on December 4, 2015. Among other things, it requires that drivers 
of ready-mixed concrete delivery trucks be exempted from the 
requirement to return to their normal work-reporting location after 12 
hours of coming on-duty. Beginning on December 5, 2015, operators of 
concrete mixer trucks met the requirements for the short-haul exception 
if they returned to their normal work reporting location within 14 
hours after coming on-duty. MCMIS contains data on crashes based on 
vehicle type, allowing the Agency to isolate crashes involving concrete 
mixer trucks both before and after the congressionally mandated changes 
to the short-haul exception that mirror this change to extend the 12-
hour limit for all short-haul operators.
    The Agency first focused on the time of day when crashes occurred. 
Assuming most concrete mixer trucks are operated on a schedule with a 
workday that begins in the morning hours and ends in the evening hours, 
those crashes that occur in the later part of the day would occur 
towards the end of the 12- or 14-hour workday for the concrete mixer 
driver. FMCSA found that the percentage of concrete mixers in crashes 
at later hours of the day (5:00 p.m. to 11:59 p.m.--when drivers are 
more likely to be close to their maximum hours for the day) has been 
declining in recent years, falling from 7.6 percent in 2013 to 5.8 
percent in 2017.
    FMCSA also examined the total number of crashes that involved 
concrete mixer trucks for the 2 years before and after the 
congressionally mandated change went into effect. From December 4, 
2013, through December 3, 2015, there were 2,723 concrete mixers 
involved in crashes, or 0.907 percent of the total large trucks 
involved in crashes (2,723 concrete mixers involved in crashes/300,324 
large trucks, including concrete mixers, involved in crashes). From 
December 4, 2015, through December 2, 2017, there were 2,955 concrete 
mixers involved in crashes, or 0.919 percent of the total large trucks 
involved in crashes (2,955 concrete mixers involved in crashes/321,471 
large trucks, including concrete mixers, involved in crashes). A Chi-
square test suggests that this very minor increase in the concrete 
mixer share of the total is not statistically significant at the p< 
0.05 level. Both analyses suggest that the implementation of the Fixing 
America's Surface Transportation Act on December 4, 2015, did not 
increase the share of concrete mixers involved in crashes when 
extending the short-haul exception requirement from 12 to 14 hours.
    Some commenters to the NPRM did not agree with the Agency's use of 
the concrete mixer analysis discussed above based on its lack of direct 
correlation to the short-haul population. FMCSA did not claim that the 
analysis is definitive, or that the population of concrete mixers is 
representative of all short-haul operations. Instead, the analysis was 
offered as the best available data with a before and after comparison 
of changes like the changes proposed in the NPRM. FMCSA did not receive 
comments with additional data on the impact that the proposal rule 
would have on crash rates.
    FMCSA does not anticipate that extending the air-mile radius will 
result in an increase in aggregate VMT. While more drivers or more 
trips would now be eligible for the short-haul exception, and thus 
excluded from the requirement to take a 30-minute break or prepare 
daily RODS, the total costs of freight transportation would likely not 
change to such an extent that the quantity of trucking services 
demanded would increase. Aggregate CMV VMT is determined by many 
factors, including market demand for transportation. FMCSA does not 
anticipate that the changes in this final rule would lower costs or 
prices to such an extent that it would stimulate demand in the freight 
market, but acknowledges that freight loads may shift from one carrier 
or driver to another. Because total VMT is not expected to increase, 
and the changes to the short-haul exception will not extend the workday 
beyond the current long-haul driving window, the Agency does not 
anticipate changes in exposure or crash risk.
    Additionally, the Agency emphasizes the changes to the short-haul 
exception in this final rule will not allow any additional drive time, 
or allow driving after the 14th hour from the beginning of the duty 
day. Drivers also will still be subject to the ``weekly'' limits of 60 
and 70 hours, and the employer must maintain accurate time records 
showing when the driver reports for work and is released from duty each 
day. FMCSA therefore anticipates that this final rule will not affect 
the crash risk of drivers operating under the short-haul exception.
    Alternative 1, which would extend the time required for drivers to 
return to their work reporting location from 12 to 14 hours but 
continue to maintain a 100 air-mile radius requirement, would reduce 
the population of drivers eligible for the short-haul exception, 
compared to the preferred alternative. As discussed above, FMCSA does 
not anticipate that changing the air-mile radius from 100 to 150 air-
miles will impact safety. Alternative 1 would therefore be more 
restrictive, reduce any cost savings associated with the rule, and 
would not provide any additional safety benefits relative to the 
preferred alternative. Thus, FMCSA did not finalize alternative 1.
Adverse Driving Conditions
    The Agency defines ``adverse driving conditions'' in Sec.  395.2 as 
``snow, sleet, fog, other adverse weather conditions, a highway covered 
with snow or ice, or unusual road and traffic conditions, none of which 
were apparent based on information known to the person dispatching the 
run at the time it was begun.'' The previous adverse driving condition 
rule gave drivers 2 additional hours of driving time to help them avoid 
rushing to either stay ahead of adverse driving conditions, make up for 
lost time due to poor conditions, or allow drivers time to locate a 
safe place to stop and wait out the adverse driving conditions. The 
Agency anticipates that this final rule and the extension of the 
driving window by 2 hours will enhance this goal by giving drivers 
greater flexibility to use their extended driving time without worrying 
about the closing driving window. While the Agency is not aware of any 
research that is specific to the impact of adverse driving conditions 
on crash risk, the flexibility provided in the final rule will allow 
drivers to make decisions based

[[Page 33447]]

on current conditions without penalizing them by ``shortening'' their 
driving window. Further, the Agency stresses that this change will not 
increase maximum available driving time beyond that allowed by the 
current rule, but may increase driving hours by allowing some drivers 
to use more of their available driving time.
    The NPRM asked whether drivers would use the longer driving window 
to increase their VMT. Several commenters provided responses depicting 
the range of potential outcomes, but clear data detailing the impact 
those outcomes might have on VMT was not provided. Ultimately, each 
adverse condition presents a unique set of circumstances that drivers 
and motor carriers will react to--not plan for. By their very nature, 
adverse driving conditions are unpredictable, and thus motor carriers 
would not be able to plan in advance for additional deliveries, trips, 
or VMT. FMCSA did not estimate an increase in VMT resulting from the 
changes to this provision. The Agency is unable to quantitatively 
assess the impacts on safety from this final rule due to a lack of data 
regarding the use of the adverse driving provision. The Agency also 
lacks data on the relationship between crash risk and adverse driving 
conditions, and potential reductions in crash risk that result from the 
avoidance of these conditions.
Health Impacts
    The RIA for the 2011 HOS final rule estimated health benefits in 
the form of decreased mortality risk based on decreases in daily 
driving time, and possible increases in sleep. The changes were largely 
based on limiting the use of the 34-hour restart provision. That 
provision, however, was removed by operation of law when the study 
required by the 2015 DOT Appropriations Act failed to find 
statistically significant benefits of the 2011 limitations on the 34-
hour restart.\66\ This final rule does not affect the reinstated 
original 34-hour restart provision, and thus the health benefits 
estimated in the 2011 RIA will not be affected by this final rule.
---------------------------------------------------------------------------

    \66\ Sec.133 of the 2015 DOT Appropriations Act (Pub. L. 113-
235, Dec. 16, 2014, 128 Stat. 2130, 2711) suspended the 2011 restart 
provisions, temporarily reinstated the pre-2011 restart rule, and 
required a study of the effectiveness of the new rule. Sec. 133 of 
the 2016 DOT Appropriations Act (Pub. L. 114-113, Dec. 18, 2015, 129 
Stat. 2242, 2850) made it clear that the 2011 restart provisions 
would have no effect unless the study required by the 2015 DOT 
Appropriations Act showed that those provisions had statistically 
significant benefits compared to the pre-2011 restart rule. Sec. 180 
of the Further Continuing and Security Assistance Appropriations 
Act, 2017 (Pub. L. 114-254, Dec. 10, 2016, 130 Stat. 1005, 1016) 
replaced Sec. 133 of the 2016 DOT Appropriations Act in its entirety 
to correct an error and ensure that the pre-2011 restart rule would 
be reinstated by operation of law unless the study required by the 
2015 DOT Appropriations Act showed that the 2011 restart rule had 
statistically significant improvements related to safety and 
operator fatigue compared to the pre-2011 restart rule. DOT 
concluded that the study failed to find these statistically 
significant improvements, and the Office of Inspector General 
confirmed that conclusion in a report to Congress.
---------------------------------------------------------------------------

    As concerns this final rule, FMCSA anticipates that some drivers 
will experience a decrease in stress, which could lead to increases in 
health benefits. As discussed in the RIA, drivers have repeatedly 
provided comments relating to stress resulting from the 14-hour limit. 
The sleeper berth proposal could alter drivers' schedules relative to 
the current requirements, by allowing drivers the flexibility to rest, 
without penalty, when they are tired or in times of heavy traffic. 
However, this final rule continues to allow for an adequate rest 
period. This final rule retains the current driving time and work time, 
but could allow for changes in the number of hours driven or worked on 
any given day. The flexibilities in this final rule are intended to 
allow drivers to shift their drive and work time under the HOS rules to 
mitigate the impacts of uncertain factors (e.g., traffic, weather, and 
detention times). Total hours driven or worked could increase or 
decrease on a given day, but FMCSA does not anticipate that these time 
shifts will negatively impact drivers' health. Instead, this final rule 
will empower drivers to make informed decisions based on the current 
situation, and thus the rule could lead to a decrease in stress and 
subsequent health benefits.
    FMCSA also notes that the effect of specific regulatory changes on 
driver health is difficult to evaluate, first, because most health 
effects have multiple causes and are discernible only over extended 
time periods, and, second, because a cause-and-effect relationship 
between a rule and a given health outcome may be difficult to 
establish. As pointed out in the 2005 HOS final rule, attempts to 
create a dose-response curve for the effects of exposure to diesel 
exhaust have not produced clear-cut results (70 FR 49978, 4983, August 
25, 2005). Such an attempt would be even more difficult for the 
incremental HOS changes promulgated today.
    FMCSA believes that the changes made by this final rule are safety- 
and health-neutral. For example, the expansion of the short-haul radius 
from 100 to 150 air-miles and of the workday from 12 to 14 hours simply 
gives short-haul carriers the same driving limit and driving window 
that other carriers have utilized for many years (without a distance 
limit). The 11- and 14-hour HOS limits now applicable to both short- 
and long-haul carriers are consistent with the statutory obligation to 
protect driver safety and health (49 U.S.C. 31136(a)(2), (4)), as shown 
by the extensive discussion in the 2005 final rule (70 FR 49978, 49982 
et seq.).
    Section 12.f of DOT Order 2100.6 dated December 27, 2019 provides 
additional requirements for retrospective reviews, specifically each 
economically significant rule or high-impact rule, the responsible 
Office of the Administrator or Office of the Secretary of 
Transportation component shall publish a regulatory impact report in 
the Federal Register every 5 years after the effective date of the rule 
while the rule remains in effect.
    In accordance with the DOT order, FMCSA will assess the impact of 
these changes to the HOS requirements within 5 years of the effective 
date of the final rule.

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, 
was issued on January 30, 2017 (82 FR 9339, Feb. 3, 2017). E.O. 13771 
requires that, for every one new regulation issued by an Agency, at 
least two prior regulations be identified for elimination, and that the 
cost of planned regulations be prudently managed and controlled through 
a budgeting process. Final implementation guidance addressing the 
requirements of E.O. 13771 was issued by the OMB on April 5, 2017.\67\ 
The OMB guidance defines what constitutes an E.O. 13771 regulatory 
action and an E.O. 13771 deregulatory action, provides procedures for 
how agencies should account for the costs and cost savings of such 
actions, and outlines various other details regarding implementation of 
E.O. 13771.
---------------------------------------------------------------------------

    \67\ Executive Office of the President. Office of Management and 
Budget. Memorandum M-17-21. Guidance Implementing Executive Order 
13771. April 5, 2017.
---------------------------------------------------------------------------

    This final rule will have total costs less than zero, and therefore 
qualifies as an E.O. 13771 deregulatory action. The present value of 
the cost savings of this final rule, measured on an infinite time 
horizon at a 7 percent discount rate, expressed in 2016 dollars, and 
discounted to 2020 (the year the final rule will go into effect and 
cost savings will first be realized), is $4,105 million. On an 
annualized basis, these cost savings are $287 million.

[[Page 33448]]

    For the purpose of E.O. 13771 accounting, the April 5, 2017, OMB 
guidance requires that agencies also calculate the costs and cost 
savings discounted to year 2016. In accordance with this requirement, 
the present value of the cost savings of this rule, measured on an 
infinite time horizon at a 7 percent discount rate, expressed in 2016 
dollars, and discounted to 2016, is $3,132 million. On an annualized 
basis, these cost savings are $219 million.

C. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as a ``major rule,'' as defined by 5 U.S.C. 804(2).\68\
---------------------------------------------------------------------------

    \68\ A ``major rule'' means any rule that the Administrator of 
the Office of Information and Regulatory Affairs at OMB finds has 
resulted in or is likely to result in (a) an annual effect on the 
economy of $100 million or more; (b) a major increase in costs or 
prices for consumers, individual industries, Federal agencies, State 
agencies, local government agencies, or geographic regions; or (c) 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic 
and export markets (5 U.S.C. 804(2)).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601, et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal 
agencies to consider the impact of their regulatory actions on small 
entities, analyze effective alternatives that minimize small entity 
impacts, and make their analyses available for public comment. The term 
``small entities'' means small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000.\69\ Accordingly, DOT policy requires an 
analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
entities. Section 605 of the RFA allows an Agency to certify a rule, in 
lieu of preparing an analysis, if the rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \69\ Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 
1164 (codified at 5 U.S.C. 601, et seq.).
---------------------------------------------------------------------------

    FMCSA developed an Initial Regulatory Flexibility Analysis (IRFA) 
for the NPRM, and reviewed comments in response to the IRFA. A comment 
received on the NPRM by the SBA's Office of Advocacy noted the 
regulatory relief that this final rule would provide for drivers 
needing additional flexibility in their schedule due to unforeseeable 
driving conditions or for other reasons. The regulatory relief for 
small entities afforded by this final rule was also noted in a comment 
received on the NPRM from the Petroleum Marketers Association of 
America. However, one commenter to the NPRM noted that the IRFA 
narrowly focused on the certain industry segments, and did not consider 
other industries besides Truck Transportation (NAICS Subsector 484) 
that would be affected by the proposed changes to the HOS provisions. 
In response to this comment, FMCSA evaluated small entities potentially 
impacted by the rule in an expanded set of industries conducted at the 
level of two-digit NAICS sectors.
    This rule affects drivers, motor carriers, and Federal and State 
governments. Drivers are not considered small entities because they do 
not meet the definition of a small entity in Section 601 of the RFA. 
Specifically, drivers are considered neither a small business under 
Section 601(3) of the RFA, nor are they considered a small organization 
under Section 601(4) of the RFA. Federal and State governments do not 
meet the definition of a small entity because they are governmental 
jurisdictions with populations greater than 50,000.
    The SBA defines the size standards used to classify entities as 
small. SBA establishes separate standards for each industry, as defined 
by the North American Industry Classification System (NAICS). In the 
NPRM, FMCSA estimated that the motor carriers that would experience 
regulatory relief under the proposed rule would be in industries within 
Subsector 484 (Truck Transportation). These industries include General 
Freight Trucking (4841) and Specialized Freight Trucking (4842). 
Subsector 484 has an SBA size standard based on annual revenue of $27.5 
million.
    The SBA defines the size standards used to classify entities as 
small. SBA establishes separate standards for each industry, as defined 
by the NAICS.\70\ This rule could affect many different industry 
sectors in addition to the Transportation and Warehousing sector (NAICS 
sectors 48 and 49); for example, the Construction sector (NAICS sector 
23), the Manufacturing sector (NAICS sectors 31, 32, and 33), and the 
Retail Trade sector (NAICS sectors 44 and 45). Industry groups within 
these sectors have size standards for qualifying as small based on the 
number of employees (e.g., 500 employees), or on the amount of annual 
revenue (e.g., $27.5 million in revenue). To determine the NAICS 
industries potentially affected by this rule, FMCSA cross-referenced 
occupational employment statistics from the BLS with NAICS industry 
codes.
---------------------------------------------------------------------------

    \70\ Executive Office of the President, Office of Management and 
Budget (OMB). ``North American Industry Classification System.'' 
2017. Available at: https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf, last accessed January 15, 2020.
---------------------------------------------------------------------------

    FMCSA examined data from the U.S. Census Bureau to determine the 
number of small entities within the identified NAICS industry groups. 
The Census Bureau collects and publishes data on the number of firms, 
establishments, employment, annual payroll, and estimated receipts by 
enterprise \71\ employment size. The most recent data available are 
from the 2012 County Business Patterns and the 2012 Economic 
Census.\72\ The firms and establishments are grouped by the employment 
size of the enterprise, all within 4-digit NAICS industry groups. The 
largest employment size group is 500+ employees per enterprise. The 
table also provides the employment and receipts at establishments 
within each enterprise employment size category. Because there are no 
data available on the revenue per enterprise or the number of employees 
per enterprise (although these data are available at the establishment 
level), FMCSA identifies the number of establishments that would be 
considered small based on SBA size standards.
---------------------------------------------------------------------------

    \71\ An enterprise (or ``company'') is a business organization 
consisting of one or more domestic establishments that were 
specified under common ownership or control. The enterprise and the 
establishment are the same for single-establishment firms. Each 
multi-establishment company forms one enterprise--the enterprise 
employment and annual payroll are summed from the associated 
establishments. An establishment is a single physical location where 
business is conducted or where services or industrial operations are 
performed.
    \72\ U.S. Department of Commerce, U.S. Census Bureau. Enterprise 
Statistics. Table 2: Selected Enterprise Statistics by Employment 
Size by Sector in the U.S.: 2012. Release date June 15, 2016. 
Available at: https://www2.census.gov/econ/esp/2012/esp2012_table2.xlsx last accessed January 17, 2020.
---------------------------------------------------------------------------

    For industries with an employee-based size standard, the number of 
small establishments was identified based on the employment groupings 
of the enterprise. The enterprises employment size groups are as 
follows: 0-4, 5-9, 10-19, 20-99, 100-499, and 500+. When a size 
standard fell within a defined enterprise employment size group, the 
entire group was considered small. For example, if the size standard 
was 250 employees, all establishments within the 100-499 employment 
size

[[Page 33449]]

group, as well as smaller employment size groups, were counted as 
small. This results in an overestimation in the number of 
establishments that are considered small, as some establishments within 
the employment size group would not be small.
    For industries with a revenue-based size standard, the number of 
establishments within each enterprise employment size group was divided 
by the estimated receipts for those establishments. This provided the 
estimated average revenue per establishment within each enterprise 
employment size group. If this value was below the revenue size 
standard, then all establishments within that enterprise employment 
size group, and all smaller enterprise employment size groups, were 
considered to be small for purposes of the analysis.
    Table 7 presents the NAICS sectors determined by FMCSA to be 
affected by this final rule along with information on the number of 
firms in the industry, the percent of firms determined to be small 
entities based on the industry-specific size standards, and the 
estimated number of small entities.

                      Table 7--Percent and Number of Small Firms in Affected NAICS Sectors
----------------------------------------------------------------------------------------------------------------
                                                                     Number of      Percent of       Number of
         NAICS sector                Meaning of NAICS sector           firms      small entities  small entities
----------------------------------------------------------------------------------------------------------------
11............................  Agriculture, Forestry, Fishing            12,486             100          12,454
                                 and Hunting.
21............................  Mining, Quarrying, and Oil and            22,306              97          21,627
                                 Gas Extraction.
23............................  Construction....................         641,808             100         641,808
31............................  Manufacturing...................          33,952              97          32,999
32............................  Manufacturing...................          54,120              93          50,121
33............................  Manufacturing...................          87,153              98          85,300
42............................  Wholesale Trade.................         145,904              79         114,828
44............................  Retail Trade....................         333,358              98         327,856
45............................  Retail Trade....................         131,034              99         130,091
48............................  Transportation and Warehousing..          53,098              99          52,697
49............................  Transportation and Warehousing..          15,720              92          14,458
51............................  Information.....................          39,642              96          38,229
53............................  Real Estate and Rental and                 4,197             100           4,197
                                 Leasing.
54............................  Professional, Scientific, and            583,762             100         583,762
                                 Technical Services.
55............................  Management of Companies and               26,819             100          26,819
                                 Enterprises.
56............................  Administrative and Support and           326,379             100         326,379
                                 Waste Management and
                                 Remediation Services.
61............................  Educational Services............          34,654             100          34,654
62............................  Health Care and Social                   402,594             100         402,576
                                 Assistance.
71............................  Arts, Entertainment, and Related          92,857             100          92,857
                                 Industries.
72............................  Arts, Entertainment, and Related         446,097             100         446,097
                                 Industries.
81............................  Public Administration...........         366,008             100         366,008
----------------------------------------------------------------------------------------------------------------
\1\ Values in the table are rounded to the nearest whole percent for display purposes. The ``Number of Small
  Entities'' in Column (C) is the product of unrounded values.

    FMCSA does not have exact estimates on the per-motor carrier impact 
of this proposal. The RIA for this final rule estimates cost savings 
associated with the proposed changes to the 30-minute break 
requirement. For illustrative purposes, FMCSA developed a per-driver 
annual cost savings estimate. As shown below, a firm with one driver 
could expect a cost savings of approximately $127 in 2021, the first 
full year of the analysis.

   Table 8--Weighted Annual Per-Driver Cost Savings of the Proposed Changes to the 30-Minute Break Requirement
----------------------------------------------------------------------------------------------------------------
                                    Hours saved                    Annual hours     Annual per      Percent of
          Driver group               per shift      Shifts per       saved per      driver cost     total hours
                                       \(a)\        year \(b)\     driver \(c)\    savings \(d)\       \(e)\
----------------------------------------------------------------------------------------------------------------
Group 1.........................            0.25             120              30          $99.98              19
Group 2.........................            0.50              80              40         $133.30              81
Group 3.........................            0.00              60               0               0               0
                                 -------------------------------------------------------------------------------
    Weighted Annual Per-Driver    ..............  ..............  ..............  ..............         $127.04
     Cost Savings...............
----------------------------------------------------------------------------------------------------------------
\(a)\ See Table 4 in the RIA
\(b)\ See Table 5 in the RIA
\(c)\ Hours Saved per Shift x Annual Hours Saved per Driver
\(d)\ Annual Hours Saved per Driver x $3.33 Motor Carrier Profit Margin
\(e)\ See Table 6 in the RIA, Total Hours Saved per Year, by Group / Total Hours Saved per Year for All Groups

    The RFA does not define a threshold for determining whether a 
specific regulation results in a significant impact. However, the SBA, 
in guidance to government agencies, provides some objective measures of 
significance that the agencies can consider using.\73\ One measure that 
could be used to illustrate a significant impact is labor costs, 
specifically, if the cost of the regulation exceeds 1 percent of the 
average annual revenues of small entities in the sector. Given the 
average annual per-entity impact of $127.04, a small entity would

[[Page 33450]]

need to have average annual revenues of less than $12,704 to experience 
an impact greater than 1 percent of average annual revenue, which is an 
average annual revenue that is smaller than would be required for a 
firm to support one employee. Therefore, this rule does not have a 
significant impact on the entities affected.
---------------------------------------------------------------------------

    \73\ U.S. Small Business Administration, Office of Advocacy. ``A 
Guide for Government Agencies. How to Comply with the Regulatory 
Flexibility Act.'' 2017. Available at: https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf, last 
accessed on January 16, 2020.
---------------------------------------------------------------------------

    Accordingly, I hereby certify that the action does not have a 
significant economic impact on a substantial number of small entities.

E. Assistance for Small Entities

    In accordance with section 213(a) of the SBREFA, FMCSA wants to 
assist small entities in understanding this rule so that they can 
better evaluate its effects on themselves and participate in the 
rulemaking initiative. If the rule will affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
FMCSA point of contact, Mr. Richard Clemente, listed in the For Further 
Information Contact section of this proposed rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector, of $165 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2018 levels) or more in any 1 year. Because this rule will not result 
in such an expenditure, a written statement is not required. However, 
the Agency does discuss the costs and benefits of this rule elsewhere 
in this preamble.

G. Paperwork Reduction Act

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). This rule 
will not modify the existing approved collection of information (OMB 
Control Number 2126-0001, HOS of Drivers Regulations, approved July 29, 
2019/, through July 31, 2022).

H. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' FMCSA determined that this proposal will not have 
substantial direct costs on or for States, nor will it limit the 
policymaking discretion of States. Nothing in this document preempts 
any State law or regulation. Therefore, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Impact Statement.

I. Privacy

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, note following 5 U.S.C. 552a), requires the 
Agency to conduct a Privacy Impact Assessment of a regulation that will 
affect the privacy of individuals. The assessment considers impacts of 
the rule on the privacy of information in an identifiable form and 
related matters. The FMCSA Privacy Officer has evaluated the risks and 
effects the rulemaking might have on collecting, storing, and sharing 
personally identifiable information and has evaluated protections and 
alternative information handling processes in developing the rule to 
mitigate potential privacy risks. FMCSA determined that this rule does 
not require the collection of individual personally identifiable 
information.
    Additionally, the Agency submitted a Privacy Threshold Assessment 
analyzing the rulemaking and the specific process for collection of 
personal information to the DOT, Office of the Secretary's Privacy 
Office. The DOT Privacy Office has determined that this rulemaking does 
not create privacy risk.
    The E-Government Act of 2002, Public Law 107-347, sec. 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a Privacy Impact Assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information because of this rule.

J. E.O. 13783 (Promoting Energy Independence and Economic Growth)

    E.O. 13783 directs executive departments and agencies to review 
existing regulations that potentially burden the development or use of 
domestically produced energy resources, and to appropriately suspend, 
revise, or rescind those that unduly burden the development of domestic 
energy resources. In accordance with E.O. 13783, DOT prepared and 
submitted a report to the Director of OMB that provides specific 
recommendations that, to the extent permitted by law, could alleviate 
or eliminate aspects of agency action that burden domestic energy 
production. This rule has not been identified by DOT under E.O. 13783 
as potentially alleviating unnecessary burdens on domestic energy 
production.

K. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

L. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (note 
following 15 U.S.C. 272) directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through OMB, with an explanation of why using these standards 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards (e.g., specifications of materials, 
performance, design, or operation; test methods; sampling procedures; 
and related management systems practices) are standards that are 
developed or adopted by voluntary consensus standards bodies. This rule 
does not use technical standards. Therefore, FMCSA did not consider the 
use of voluntary consensus standards.

[[Page 33451]]

M. Environment (Clean Air Act, NEPA)

    FMCSA completed an environmental assessment (EA) pursuant to the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.), 40 CFR parts 1500-1508, Council on Environmental Quality 
Regulations for Implementing NEPA, as amended, FMCSA Order 5610.1, 
National Environmental Policy Act Implementing Procedures and Policy 
for Considering Environmental Impacts, March 1, 2004, and DOT Order 
5610.1C, Procedures for Considering Environmental Impacts, as amended 
on July 13, 1982 and July 30, 1985. The EA is in the docket for this 
rulemaking. As discussed in the EA, FMCSA also analyzed this rule under 
the Clean Air Act, as amended, section 176(c), (42 U.S.C. 7401 et seq.) 
and implementing regulations promulgated by the Environmental 
Protection Agency. FMCSA concludes that the issuance of the rule would 
not significantly affect the quality of the human environment. 
Therefore, an environmental impact statement process is unnecessary.

List of Subjects

49 CFR Part 385

    Administrative practice and procedures, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.
    Accordingly, FMCSA amends 49 CFR parts 385 and 395.

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113, 
13901-13905, 13908, 31135, 31136, 31144, 31148, 31151 and 31502; 
Sec. 350, Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR 1.87.


0
2. Amend appendix B to part 385, section VII as follows:
0
a. Redesignate existing references to Sec. Sec.  395.1(h)(1)(i), 
395.1(h)(1)(ii), 395.1(h)(1)(iii), and 395.1(h)(1)(iv) as Sec. Sec.  
395.1(h)(1)(i)(A), 395.1(h)(1)(i)(B), 395.1(h)(1)(i)(C), and 
395.1(h)(1)(i)(D), respectively; and
0
b. Revise the text for Sec.  395.3(a)(3)(ii).
    The revision reads as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  395.3(a)(3)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive if more than 8 
hours of driving time have passed without a consecutive interruption 
in driving status of at least 30 minutes, either off-duty, sleeper 
berth or on-duty not driving (critical).

PART 395--HOURS OF SERVICE OF DRIVERS

0
3. The authority citation for part 395 continues to read as follows:

    Authority:  49 U.S.C. 504, 31133, 31136, 31137, 31502; sec. 113, 
Public Law 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 
(as added and transferred by sec. 4115 and amended by secs. 4130-
4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, 
Public Law 109-59, 119 Stat. 1144, 1744; sec. 108, Public Law 110-
432, 122 Stat. 4860-4866; sec. 32934, Public Law 112-141, 126 Stat. 
405, 830; sec. 5206(b), Public Law 114-94, 129 Stat. 1312, 1537; and 
49 CFR 1.87.


0
4. Amend Sec.  395.1 by revising paragraphs (b)(1), (e)(1), (g)(1), and 
(h) to read as follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (b) * * *
    (1) Adverse driving conditions. Except as provided in paragraph 
(h)(3) of this section, a driver who encounters adverse driving 
conditions, as defined in Sec.  395.2, and cannot, because of those 
conditions, safely complete the run within the maximum driving time or 
duty time during which driving is permitted under Sec.  395.3(a) or 
Sec.  395.5(a) may drive and be permitted or required to drive a 
commercial motor vehicle for not more than two additional hours beyond 
the maximum allowable hours permitted under Sec.  395.3(a) or Sec.  
395.5(a) 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.
* * * * *
    (e) * * *
    (1) 150 air-mile radius driver. A driver is exempt from the 
requirements of Sec. Sec.  395.8 and 395.11 if:
    (i) The driver operates within a 150 air-mile radius (172.6 statute 
miles) of the normal work reporting location;
    (ii) The driver, except a driver-salesperson, returns to the work 
reporting location and is released from work within 14 consecutive 
hours;
    (iii)(A) A property-carrying commercial motor vehicle driver has at 
least 10 consecutive hours off-duty separating each 14 hours on-duty;
    (B) A passenger-carrying commercial motor vehicle driver has at 
least 8 consecutive hours off-duty separating each 14 hours on-duty; 
and
    (iv) The motor carrier that employs the driver maintains and 
retains for a period of 6 months accurate and true time records 
showing:
    (A) The time the driver reports for duty each day;
    (B) The total number of hours the driver is on-duty each day;
    (C) The time the driver is released from duty each day; and
    (D) The total time for the preceding 7 days in accordance with 
Sec.  395.8(j)(2) for drivers used for the first time or 
intermittently.
* * * * *
    (g) * * *
    (1) Property-carrying commercial motor vehicle--(i) General. A 
driver who operates a property-carrying commercial motor vehicle 
equipped with a sleeper berth, as defined in Sec.  395.2, and uses the 
sleeper berth to obtain the off-duty time required by Sec.  395.3(a)(1) 
must accumulate:
    (A) At least 10 consecutive hours off-duty;
    (B) At least 10 consecutive hours of sleeper berth time;
    (C) A combination of consecutive sleeper berth and off-duty time 
amounting to at least 10 hours;
    (D) A combination of sleeper berth time of at least 7 consecutive 
hours and up to 3 hours riding in the passenger seat of the vehicle 
while the vehicle is moving on the highway, either immediately before 
or after the sleeper berth time, amounting to at least 10 consecutive 
hours; or
    (E) The equivalent of at least 10 consecutive hours off-duty 
calculated under paragraphs (g)(1)(ii) and (iii) of this section.
    (ii) Sleeper berth. A driver may accumulate the equivalent of at 
least 10 consecutive hours off-duty by taking not more than two periods 
of either sleeper berth time or a combination of off-duty time and 
sleeper berth time if:
    (A) Neither rest period is shorter than 2 consecutive hours;
    (B) One rest period is at least 7 consecutive hours in the sleeper 
berth;
    (C) The total of the two periods is at least 10 hours; and
    (D) Driving time in the period immediately before and after each 
rest period, when added together:
    (1) Does not exceed 11 hours under Sec.  395.3(a)(3); and
    (2) Does not violate the 14-hour duty-period limit under Sec.  
395.3(a)(2).
    (iii) Calculation--(A) In general. The driving time limit and the 
14-hour duty-period limit must be re-calculated from the end of the 
first of the two periods

[[Page 33452]]

used to comply with paragraph (g)(1)(i)(E) of this section.
    (B) 14-hour period. The 14-hour driving window for purposes of 
Sec.  395.3(a)(2) does not include qualifying rest periods under 
paragraph (g)(1)(ii) of this section.
* * * * *
    (h) State of Alaska--(1) Property-carrying commercial motor 
vehicle--(i) In general. The provisions of Sec.  395.3(a) and (b) do 
not apply to any driver who is driving a commercial motor vehicle in 
the State of Alaska. A driver who is driving a property-carrying 
commercial motor vehicle in the State of Alaska must not drive or be 
required or permitted to drive:
    (A) More than 15 hours following 10 consecutive hours off-duty;
    (B) After being on-duty for 20 hours or more following 10 
consecutive hours off-duty;
    (C) After having been on-duty for 70 hours in any period of 7 
consecutive days, if the motor carrier for which the driver drives does 
not operate every day in the week; or
    (D) After having been on-duty for 80 hours in any period of 8 
consecutive days, if the motor carrier for which the driver drives 
operates every day in the week.
    (ii) Off-duty periods. Before driving, a driver who operates a 
property-carrying commercial motor vehicle equipped with a sleeper 
berth, as defined in Sec.  395.2, and uses the sleeper berth to obtain 
the required off-duty time in the State of Alaska, must accumulate:
    (A) At least 10 consecutive hours off-duty;
    (B) At least 10 consecutive hours of sleeper berth time;
    (C) A combination of consecutive sleeper berth and off-duty time 
amounting to at least 10 hours;
    (D) A combination of consecutive sleeper berth time and up to 3 
hours riding in the passenger seat of the vehicle while the vehicle is 
moving on a highway, either immediately before or after a period of at 
least 7, but less than 10, consecutive hours in the sleeper berth; or
    (E) The equivalent of at least 10 consecutive hours off-duty 
calculated under paragraph (h)(1)(iii) of this section.
    (iii) Sleeper berth. A driver who uses a sleeper berth to comply 
with the hours of service regulations may accumulate the equivalent of 
at least 10 consecutive hours off-duty by taking not more than two 
periods of either sleeper berth time or a combination of off-duty time 
and sleeper berth time if:
    (A) Neither rest period is shorter than 2 consecutive hours;
    (B) One rest period is at least 7 consecutive hours in the sleeper 
berth;
    (C) The total of the two periods is at least 10 hours; and
    (D) Driving time in the period immediately before and after each 
rest period, when added together:
    (1) Does not exceed 15 hours; and
    (2) Does not violate the 20-hour duty period under paragraph 
(h)(1)(i)(B) of this section.
    (iv) Calculation--(A) In general. The driving time limit and the 
20-hour duty-period limit must be re-calculated from the end of the 
first of the two periods used to comply with paragraph (h)(1)(ii)(E) of 
this section.
    (B) 20-hour period. The 20-hour duty period under paragraph 
(h)(1)(i)(B) does not include off-duty or sleeper berth time.
    (2) Passenger-carrying commercial motor vehicle. The provisions of 
Sec.  395.5 do not apply to any driver who is driving a passenger-
carrying commercial motor vehicle in the State of Alaska. A driver who 
is driving a passenger-carrying commercial motor vehicle in the State 
of Alaska must not drive or be required or permitted to drive--
    (i) More than 15 hours following 8 consecutive hours off-duty;
    (ii) After being on-duty for 20 hours or more following 8 
consecutive hours off-duty;
    (iii) After having been on-duty for 70 hours in any period of 7 
consecutive days, if the motor carrier for which the driver drives does 
not operate every day in the week; or
    (iv) After having been on-duty for 80 hours in any period of 8 
consecutive days, if the motor carrier for which the driver drives 
operates every day in the week.
    (3) Adverse driving conditions. (i) A driver who is driving a 
commercial motor vehicle in the State of Alaska and who encounters 
adverse driving conditions (as defined in Sec.  395.2) may drive and be 
permitted or required to drive a commercial motor vehicle for the 
period of time needed to complete the run.
    (ii) After a property-carrying commercial motor vehicle driver 
completes the run, that driver must be off-duty for at least 10 
consecutive hours before he/she drives again; and
    (iii) After a passenger-carrying commercial motor vehicle driver 
completes the run, that driver must be off-duty for at least 8 
consecutive hours before he/she drives again.
* * * * *

0
5. Amend Sec.  395.2 by revising the definition of ``Adverse driving 
conditions'' and paragraph (4)(iii) in the definition of ``On-duty 
time'' to read as follows:


Sec.  395.2  Definitions.

* * * * *
    Adverse driving conditions means snow, ice, sleet, fog, or other 
adverse weather conditions or unusual road or traffic conditions that 
were not known, or could not reasonably be known, to a driver 
immediately prior to beginning the duty day or immediately before 
beginning driving after a qualifying rest break or sleeper berth 
period, or to a motor carrier immediately prior to dispatching the 
driver.
* * * * *
    On-duty time * * *
    (4) * * *
    (iii) Up to 3 hours riding in the passenger seat of a property-
carrying vehicle moving on the highway immediately before or after a 
period of at least 7 consecutive hours in the sleeper berth;
* * * * *

0
6. Amend Sec.  395.3 by revising paragraphs (a)(2) and (3) to read as 
follows:


Sec.  395.3   Maximum driving time for property-carrying vehicles.

    (a) * * *
    (2) 14-hour period. A driver may not drive after a period of 14 
consecutive hours after coming on-duty following 10 consecutive hours 
off-duty.
    (3) Driving time and interruptions of driving periods--(i) Driving 
time. A driver may drive a total of 11 hours during the period 
specified in paragraph (a)(2) of this section.
    (ii) Interruption of driving time. Except for drivers who qualify 
for either of the short-haul exceptions in Sec.  395.1(e)(1) or (2), 
driving is not permitted if more than 8 hours of driving time have 
passed without at least a consecutive 30-minute interruption in driving 
status. A consecutive 30-minute interruption of driving status may be 
satisfied either by off-duty, sleeper berth or on-duty not driving time 
or by a combination of off-duty, sleeper berth and on-duty not driving 
time.
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
James A. Mullen,
Deputy Administrator.
[FR Doc. 2020-11469 Filed 5-26-20; 8:45 am]
BILLING CODE 4910-EX-P