[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Proposed Rules]
[Pages 3339-3354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1248]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390 and 395

[Docket No. FMCSA-2004-19608; formerly FMCSA-1997-2350]
RIN-2126-AA90


Hours of Service of Drivers

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

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: FMCSA is reviewing and reconsidering the regulations on hours 
of service of drivers published on April 28, 2003 (68 FR 22456) and 
amended on September 30, 2003 (68 FR 56208). The regulations were 
vacated by the U.S. Court of Appeals for the District of Columbia 
Circuit on July 16, 2004 (Public Citizen et al. v. Federal Motor 
Carrier Safety Administration, 374 F.3d 1209). Congress subsequently 
provided that the 2003 regulations will remain in effect until the 
effective date of a new final rule addressing the issues raised by the 
court or September 30, 2005, whichever occurs first (Section 7(f) of 
the Surface Transportation Extension Act of 2004, Part V). FMCSA is 
reconsidering the 2003 regulations to determine what changes may be 
necessary to be consistent with the holdings and dicta of the Public 
Citizen decision. In order to allow effective public participation in 
the process before the statutory deadline, FMCSA is publishing this 
NPRM concurrently with its ongoing research and analysis of the issues 
raised by the court. To facilitate discussion, the agency is putting 
forward the 2003 rule as the ``proposal'' on which public comments are 
sought. This NPRM, however, asks the public to comment on what changes 
to that rule, if any, are necessary to respond to the concerns raised 
by the court, and to provide data or studies that would support changes 
to, or continued use of, the 2003 rule. The NPRM includes specific 
information on a variety of topics and specific questions for comment. 
FMCSA is not considering changes to the hours-of-service regulations 
applicable to drivers and operators of passenger-carrying commercial 
motor vehicles (CMVs).

DATES: Comments must be received by March 10, 2005.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2004-19608 by any of the following methods. Do not submit the 
same comments by more than one method. However, in order to allow 
effective public participation in this rulemaking before the statutory 
deadline, we encourage use of the web site that is listed first below. 
It will provide the most efficient and timely method of receiving and 
processing your comments.
     Web site: http://dms.dot.gov: Follow the instructions for 
submitting comments on the DOT electronic site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number (FMCSA-2004-19608) or Regulatory Identification Number 
(RIN) for this rulemaking (RIN-2126-AA90). Note that all comments 
received will be posted without change to http://dms.dot.gov, including 
any personal information provided. Please see the Privacy Act heading 
for further information. If addressing a specific request for comments 
in this NPRM, please clearly identify the related ``request number(s)'' 
for each topic addressed in your comments. Further

[[Page 3340]]

important guidance for commenters is contained within individual 
sections of this NPRM.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
    Comments received after the comment closing date will be included 
in the docket and we will consider late comments to the extent 
practicable. FMCSA may, however, issue a final rule at any time after 
the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Mr. Tom Yager, Hours-of-Service Team, 
Federal Motor Carrier Safety Administration, 202-366-1425.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Legal Basis for the Rulemaking
B. Background Information
    B.1. History of the Hours-of-Service Rule
    B.2. Premise of the 2003 Hours-of-Service Rule
C. Purpose of This Rulemaking
D. Guidance for Commenters
E. Driver Health and Safety Relationships
    E.1. Combined Effects
    E.2. Sleep Loss and Deprivation
    E.3. Exposure to Environmental Stressors
    E.4. Workplace Injuries and Fatalities
    E.5. Lifestyle Choices
F. Primary Components
    F.1. Driving Time, On-Duty Time, and Off-Duty Time
    F.2. The 34-Hour Restart and 60/70-Hour Rules
    F.3. Sleeper-Berth Use
    F.4. Electronic On-Board Recording Devices (EOBRs)
    F.5. Other Provisions
G. Rulemaking Analyses and Notices
    G.1. Executive Order 12866 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures
    G.2. Regulatory Flexibility Act
    G.3. Unfunded Mandates Reform Act of 1995
    G.4. National Environmental Policy Act
    G.5. Paperwork Reduction Act
    G.6. Executive Order 13211 (Energy Supply, Distribution, or Use)
    G.7. Executive Order 12898 (Environmental Justice)
    G.8. Executive Order 13045 (Protection of Children)
    G.9. Executive Order 12988 (Civil Justice Reform)
    G.10. Executive Order 12630 (Taking of Private Property)
    G.11. Executive Order 13132 (Federalism)
    G.12. Executive Order 12372 (Intergovernmental Review)
H. List of Subjects

A. Legal Basis for the Rulemaking

    This rulemaking is based on the authority of the Motor Carrier Act 
of 1935 and the Motor Carrier Safety Act of 1984.
    The Motor Carrier Act of 1935, as amended, provides that ``[t]he 
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)).
    For reasons explained in more detail below, this NPRM raises for 
reconsideration the hours-of-service regulations applicable to drivers 
and operators of property-carrying CMVs, which were promulgated by 
FMCSA on April 28, 2003 (68 FR 22456) and amended on September 30, 2003 
(68 FR 56208). The agency may ultimately modify those regulations as a 
result of this review. The hours-of-service regulations deal directly 
with the ``maximum hours of service of employees of * * * a motor 
carrier (section 31502(b)(1)) and the ``maximum hours of service of 
employees of * * * a motor private carrier'' (section 31502(b)(2)). The 
adoption and enforcement of such rules were specifically authorized by 
the Motor Carrier Act of 1935. This NPRM rests squarely on that 
authority.
    The Motor Carrier Safety Act of 1984 provides concurrent authority 
to regulate drivers, motor carriers, and vehicle equipment. It requires 
the Secretary of Transportation to ``prescribe regulations on 
commercial motor vehicle safety. The regulations shall prescribe 
minimum safety standards for commercial motor vehicles. At a minimum, 
the regulations shall ensure that: (1) Commercial motor vehicles are 
maintained, equipped, loaded, and operated safely; (2) the 
responsibilities imposed on operators of commercial motor vehicles do 
not impair their ability to operate the vehicles safely; (3) the 
physical condition of operators of commercial motor vehicles is 
adequate to enable them to operate the vehicles safely; and (4) the 
operation of commercial motor vehicles does not have a deleterious 
effect on the physical condition of the operators'' (49 U.S.C. 
31136(a)).
    This NPRM deals with the hours of service of drivers. It is based 
primarily on the requirements of section 31136(a)(2) and (a)(4), and 
secondarily on section 31136(a)(1) and (a)(3). The fundamental purpose 
of the hours-of-service regulations is to ensure that driving 
requirements and other employment obligations imposed on CMV operators 
``do not impair [the drivers'] ability to operate the vehicles safely'' 
(section 31136(a)(2)). Broadly speaking, this NPRM is seeking public 
comment on whether the April 2003, final rule achieves that goal 
through a combination of three provisions (though others also play a 
role) which require drivers to take 10 consecutive hours off duty 
before driving a CMV, limit driving time after 10 hours off duty to 11 
hours, and prohibit driving after the 14th hour after coming on duty 
following 10 hours off duty.
    FMCSA also seeks comment on whether that same combination of 
provisions addresses some of the requirements of section 31136(a)(4) by 
minimizing the ``deleterious effect[s]'' of sleep deprivation and 
cumulative fatigue on ``the physical condition'' of CMV drivers, and 
thus reducing the risk of fatigue-related accidents. This NPRM also 
requests public comments and information about other possible 
``deleterious effect[s]'' associated with hours of service and with the 
operation of CMVs, which the agency is considering in the course of 
this rulemaking. While section 31136(a)(1) deals primarily with vehicle 
equipment and loading (now codified at 49 CFR part 393 and Sec.  
392.9), it also requires that CMVs be ``operated safely,'' which 
encompasses both the vehicle and the driver. Finally, section 
31136(a)(3) requires regulations which ensure that ``the physical 
condition'' of CMV drivers enables them to drive safely. Although that 
subsection requires the agency to adopt general physical qualification 
standards (now codified at 49 CFR 391.41(b)), a CMV driver's ``physical 
condition'' may be affected by ``the responsibilities imposed'' on him/
her and by ``deleterious effect[s]'' associated with the operation of 
large CMVs. To enable FMCSA to evaluate the need for any changes to the 
April 2003, hours-of-service regulations, this NPRM requests comments 
and information on all of these issues as they relate to the hours-of-
service regulations.

[[Page 3341]]

    Before prescribing any regulations, however, FMCSA must also 
consider the ``costs and benefits'' of its proposal (49 U.S.C. 
31136(c)(2)(A)). For that reason, this NPRM seeks comment on the 
economic effects of this proposal as well.

B. Background Information

B.1. History of the Hours-of-Service Rule

    The Interstate Commerce Commission (ICC) promulgated the first 
Federal hours-of-service regulations in the late 1930s. The rules were 
based on the Motor Carrier Act of 1935. The regulations remained 
largely unchanged from 1940 until 2003, except for a significant 
amendment in 1962. Prior to 1962, driver hours-of-service regulations 
were based on a 24-hour period from noon to noon or midnight to 
midnight. A driver could be on duty no more than 15 hours in a 24-
consecutive-hour period. In 1962, among other rule changes, the 24-hour 
cycle was removed and replaced by minimum off-duty periods. A driver 
could ``restart'' the calculation of his or her driving and on-duty 
limitations after any period of 8 or more hours off duty.
    Section 408 of the ICC Termination Act of 1995 (ICCTA) (Pub. L. 
104-88, 109 Stat. 803, at 958) required the Federal Highway 
Administration (FHWA) to conduct rulemaking ``dealing with a variety of 
fatigue-related issues pertaining to commercial motor vehicle safety.'' 
In response, FHWA published an advance notice of proposed rulemaking 
(ANPRM) on November 5, 1996 (61 FR 57252). FMCSA was established as a 
separate agency on January 1, 2000. At that time, responsibility to 
promulgate CMV regulations was transferred from FHWA to FMCSA, which 
published an hours-of-service NPRM on May 2, 2000 (65 FR 25540) and a 
final rule on April 28, 2003 (68 FR 22456). Technical amendments to the 
final rule were published on September 30, 2003 (68 FR 56208). Motor 
carriers and drivers were required to comply with the final rule 
starting on January 4, 2004.
    FMCSA's 2003 final rule did not change any hours-of-service 
requirements for motor carriers and drivers operating passenger-
carrying vehicles. They are required to continue complying with the 
hours-of-service rules existing before the 2003 final rule (see 68 FR 
22461-22462). Changes in hours-of-service provisions in the new rule 
applied only to motor carriers and drivers operating property-carrying 
vehicles. Compared to the previous regulations, the new rule: (1) 
Required drivers to take 10, instead of 8, consecutive hours off duty 
(except when using sleeper berths); (2) retained the prior prohibition 
on driving after 60 hours on duty in 7 consecutive days or 70 hours in 
8 consecutive days; (3) increased allowable driving time from 10 hours 
to 11 hours; and (4) replaced the so-called 15-hour rule (which 
prohibited drivers from driving after being on duty more than 15 hours, 
not including intervening off-duty time) with a 14-hour rule (which 
prohibited driving after the 14th hour after the driver came on duty, 
with no extensions for off-duty time). Additionally, FMCSA allowed 
drivers to ``restart'' the calculations for the 60- and 70-hour limits 
by taking 34 consecutive hours off duty. Based on the data and research 
available at the time, FMCSA was convinced that these new rules 
constitute a significant improvement in the hours-of-service 
regulations compared to the rules they replaced, by providing drivers 
with better opportunities to obtain restorative sleep, thereby reducing 
the incidence of crashes wholly or partially attributable to drowsiness 
or fatigue.
    On June 12, 2003, Public Citizen, Citizens for Reliable and Safe 
Highways (CRASH) and Parents Against Tired Truckers (PATT) filed a 
petition to review the new hours-of-service rule with the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit). 
On July 16, 2004, the D.C. Circuit issued an opinion holding ``that the 
rule is arbitrary and capricious [under the Administrative Procedure 
Act] because the agency failed to consider the impact of the rules on 
the health of drivers, a factor the agency must consider under its 
organic statute. Because the agency has wholly failed to comply with 
this specific statutory requirement [i.e., 49 U.S.C. 31136(a)(4)], this 
single objection from petitioners is sufficient to establish an 
arbitrary-and-capricious decision requiring vacatur \1\ of the rule.'' 
Public Citizen et al. v. Federal Motor Carrier Safety Administration, 
374 F.3d 1209, at 1216. The court said that ``[t]he FMCSA points to 
nothing in the agency's extensive deliberations establishing that it 
considered the statutorily mandated factor of drivers' health in the 
slightest.'' Id. Although FMCSA argued that the effect of driver health 
on vehicle safety had ``permeated the entire rulemaking process,'' the 
court said that ``[u]nder the statute, vehicle safety is a distinct 
factor the agency must consider, so considering the effect of driver 
health on safety cannot be equal to considering the impact on the 
physical condition of the operators. * * * It may be the case, for 
example, that driving for extended periods of time and sleep 
deprivation cause drivers long-term back problems, or harm drivers' 
immune systems. The agency may of course think that these and other 
effects on drivers are not problematic (or are outweighed by other 
considerations, like cost), but if so it was incumbent on it to say so 
in the rule and to explain why. Its failure to do so, standing alone, 
requires us to vacate the entire rule as arbitrary and capricious * * 
*'' Public Citizen at 1217.
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    \1\ Vacatur: An order of a court vacating (voiding or annulling) 
a legal proceeding.
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    The court also found fault with other aspects of the final rule and 
in dicta stated that (1) FMCSA's justification for increasing driving 
time from 10 to 11 hours (i.e., more off-duty time and a shorter 14-
hour driving window compensate for the additional driving time) may be 
legally insufficient because the agency failed to adequately 
demonstrate that other provisions of the rule offset the increase and 
failed to take into account the fatigue effects of ``time on task'' in 
the context of longer weekly on-duty periods allowed by the 34-hour 
restart; (2) the justification for allowing drivers of CMVs equipped 
with sleeper berths to split their 10-hour off-duty period into two 
separate periods was probably arbitrary and capricious, since FMCSA 
itself asserted that drivers need an opportunity for eight hours of 
uninterrupted sleep each night; (3) the agency's failure to collect and 
analyze data on the costs and benefits of requiring electronic on-board 
recording devices (EOBRs) probably failed to meet the requirements of 
section 408 of the ICC Termination Act, which requires FMCSA to ``deal 
with'' EOBRs; and (4) the agency's explanation of the 34-hour restart 
provision did not address or justify increases in the maximum weekly 
driver hours permitted by that provision.
    At the end of August 2004, FMCSA modified an existing contract with 
the Transportation Research Board (TRB) of the National Academy of 
Sciences. The modification requires TRB to review, first, the 
literature published between 1975 and the present concerning the health 
implications of the hours-of-service regulations for CMV drivers, and, 
second, the literature relating to CMV drivers' hours of service and 
fatigue from 1995 to the present. The review is expected to be complete 
by early 2005. All pertinent information will be made available in the 
public docket for this rulemaking.
    On September 1, 2004, FMCSA published an ANPRM requesting 
information about factors the agency should consider in developing

[[Page 3342]]

performance specifications for EOBRs. As the agency said in the 
preamble to that document, ``FMCSA is attempting to evaluate the 
suitability of EOBRs to demonstrate compliance with the enforcement of 
the hours-of-service regulations, which in turn will have major 
implications for the welfare of drivers and the safe operation of 
commercial motor vehicles.'' The ANPRM asked for comments and 
information, both on technical questions relating to EOBRs, and about 
the potential costs and benefits of such devices.
    On September 30, 2004, the President signed the Surface 
Transportation Extension Act of 2004, Part V (Public Law 108-310, 118 
Stat. 1144). Section 7(f) of the Act provides that ``[t]he hours-of-
service regulations applicable to property-carrying commercial drivers 
contained in the Final Rule published on April 28, 2003 (68 FR 22456-
22517), as amended on September 30, 2003 (68 FR 56208-56212), and made 
applicable to motor carriers and drivers on January 4, 2004, shall be 
in effect until the earlier of : (1) the effective date of a new final 
rule addressing the issues raised by the July 16, 2004, decision of the 
United States Court of Appeals for the District of Columbia in Public 
Citizen, et al. v. Federal Motor Carrier Safety Administration (No. 03-
1165); or (2) September 30, 2005.'' (118 Stat. 1144, at 1154).

B.2. Premise of the 2003 Hours-of-Service Rule

    The premise of the current hours-of-service rule is that safety and 
driver health related to the operation of a CMV will be improved by 
regulations moving drivers toward a 24-hour work cycle and providing 
drivers with sufficient time off to obtain eight hours sleep, while 
allowing carriers flexibilities in meeting schedule demands. There is 
general agreement among sleep researchers and industry participants 
that the hours-of-service rules should build on the foundation of a 24-
hour day. Studies performed in laboratory settings, as well as studies 
assessing operational situations, have explored the relationships 
between the sleep obtained and subsequent performance. (Dinges, D.F., & 
Kribs, N.B., ``Performing While Sleepy: Effects of Experimental-Induced 
Sleepiness'' (1991); Bonnet, M.H., & Arrand, D.L., ``We are Chronically 
Sleep Deprived'' (1995); Belenky, G., et al., ``The Effects of Sleep 
Deprivation on Performance During Continuous Combat Operations'' 
(1994); Dinges, D.F., et al., ``Cumulative Sleepiness, Mood 
Disturbances, and Psychomotor Vigilance Performance Decrements During a 
Week of Sleep Restricted to 4-5 Hours Per Night'' (1997); Pilcher, 
J.J., & Hufcutt, A.I., ``Effects of Sleep Deprivation on Performance: A 
Meta-Analysis'' (1996); and Belenky, G., et al., ``Effects of 
Continuation Operations on Soldier and Unit Performance: Review of the 
Literature and Strategies for Sustaining the Soldier'' (1987)). The 
results of these studies can be summarized simply: a person who is 
sleepy is more prone to perform poorly on tasks requiring vigilance, 
quick reaction time, and decision-making than a person who is alert. 
The scientific basis for proposing daily restrictions is that an 
individual experiencing multiple periods of insufficient sleep quantity 
or quality incurs a cumulative sleep debt leading to increased levels 
of fatigue. The current rule permits a maximum of 11 hours of 
cumulative driving time, an increase of one hour from the previous 
rule. This current rule is, however, more restrictive in that it does 
not, as did the previous rule, permit a driver to extend on-duty time 
by subtracting breaks and waiting time from the on-duty time 
calculation. The 2003 rule reconsidered here adopted a number of 
provisions that combine to enhance highway safety and the health of CMV 
drivers as related to the operation of a CMV. The rule increased by two 
hours (from 8 to 10) the amount of off-duty time drivers must take 
between shifts and reduced the window in which driving can occur by one 
hour (from 15 to 14). Because the rule also eliminated a loophole in 
the previous rule permitting truckers to extend the 15-hour limit by 
taking breaks of any length, the driving ``window'' was actually 
shortened by more than one hour. Since these safety measures gave 
drivers substantially more opportunity to obtain restorative sleep, the 
agency concluded that a one-hour increase in driving time (from 10 to 
11 hours) would not compromise the safe operation of CMVs or the health 
of drivers related to the hours-of-service regulations. A 14-hour work 
shift combined with a 10-hour off-duty period allows drivers to work in 
a 24-hour cycle, in step with the normal 24-hour circadian \2\ rhythms. 
The agency retained the previous prohibition on driving after 60 hours 
on duty in 7 consecutive days, or 70 hours in 8 days, but it allowed 
drivers to restart the 60/70-hour calculation after taking 34 
consecutive hours off duty. This gave drivers an opportunity to take 
two full 8-hour sleep periods and to return to duty close to their 
previous starting times, thus helping to maintain their 24-hour 
circadian rhythms. The agency retained the rule permitting truckers to 
split their required off-duty time into two periods in a sleeper berth, 
neither of which could be less than two hours. Total sleeper-berth 
time, however, was increased from 8 to 10 hours. Finally, the agency 
declined to adopt a rule that would have required electronic on-board 
recording devices in all long-haul vehicles because both costs and 
benefits were unknown at the time.
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    \2\ Circadian rhythms: Biological functions or activities 
naturally occurring in approximately 24-hour cycles.
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C. Purpose of This Rulemaking

    This rulemaking is necessary to develop hours-of-service 
regulations to replace those vacated by the Court. The vacated rule 
remains in effect until replaced or until September 30, 2005, whichever 
occurs first. This NPRM seeks public comment on what changes, if any, 
should be made to the April 2003 final rule to address the concerns 
raised by the D.C. Circuit, as outlined below. FMCSA's review of the 
literature on driver health and the various hours-of-service issues 
discussed by the Court will help the agency determine whether the 2003 
final rule should be changed. The hours-of-service regulations for 
drivers of passenger-carrying CMVs, i.e., the rules previously 
applicable to the entire motor carrier industry, were not changed by 
the 2003 final rule and, consequently, were not at issue in Public 
Citizen. Therefore, the agency is neither requesting comment on, nor 
proposing to change, the motorcoach regulations at this time.

D. Guidance for Commenters

    See the ``Instructions'' subsection early in this NPRM for specific 
methods of submitting comments. When you are addressing a specific 
request for comments in this NPRM, please clearly identify the related 
``request number(s)'' for each topic addressed in your comments.
     FMCSA requests comments on the alternatives and issues 
presented in this NPRM. Commenters are also welcome to present other 
alternatives or raise additional issues directly related to the hours-
of-service regulations.
     Commenters should address the incremental, direct impact 
of any proposed changes in hours-of-service requirements on driver 
health, the safe operation of CMVs, and economic factors. In other 
words, for any aspect of the hours-of-service rule being commented 
upon, please address the impact any change would have or has had on 
driver health, the safe operation of CMVs, and economic factors. Only 
issues directly related to the hours-of-

[[Page 3343]]

service regulations and the operation of a CMV are being considered in 
this rulemaking.
     Whenever possible, commenters should address the 
relationship of the subject commented upon to other aspects of hours-
of-service requirements. For example, a recommendation to change the 
current 11-hour maximum driving time to some other driving time should 
discuss this in the context of any other changes being suggested to the 
14-hour duty period or minimum 10-hours off-duty requirement, and, if 
so, how the combination of these factors impacts driver health, the 
safe operation of CMVs, and economic factors.
     Commenters are requested to include a clear rationale for 
any recommendations offered, along with documentation and data to 
support the recommendation.
     Specific references to scientific studies supporting a 
recommendation are also requested.
     For motor carriers and drivers, please provide information 
on your current operations, such as (a) Whether your primary operations 
are short-haul (i.e., operations limited to 150 miles or less, with 
drivers typically spending each night at home) or long haul, (b) 
whether you are a private or for-hire motor carrier (or drive for one), 
(c) whether you are a truckload or less-than-truckload motor carrier 
(or drive for one) and (d) the commodity or commodities you most 
frequently haul.

E. Driver Health and Safety Relationships

    The D.C. Circuit held in Public Citizen that FMCSA failed to 
consider the possibly deleterious effect of the 2003 hours-of-service 
rule on the physical condition of drivers, as required by 49 U.S.C. 
31136(a)(4). This NPRM seeks information on that issue. The court in 
dicta also addressed several safety issues. Health and safety issues, 
while treated separately in the Motor Carrier Safety Act of 1984, are 
inextricably related. Any post-1984 changes to the hours-of-service 
regulations must ensure that driving a CMV does not harm drivers. 
Conversely, the physical condition of drivers can have a direct impact 
on highway safety, though all health problems do not have equally 
immediate effects. The 2003 final rule addressed the impacts of changes 
to the hours-of-service rules, but FMCSA is again inviting the public 
to comment on safety and driver health issues related to changes in the 
hours-of-service rule and the operation of a CMV.
    Since publication of the 2003 final rule, the literature and 
studies on driver safety and health have expanded and evolved. In 
addition to any studies and reports referenced in the May 2000 NPRM, 
the April 2003 final rule, and in this NPRM, FMCSA is continuing to 
study emerging data and information on these related issues. The agency 
will file in the docket (FMCSA-2004-19608) a copy or summary of any 
study or report that is being considered in this rulemaking and has not 
previously been referenced.
    FMCSA requests comments on the relationships between driver health 
and safety generally, but also between the net effect of the changes 
produced by the 2003 hours-of-service rule and health and safety.

Background

    Scientific research has made important contributions to the 
development and assessment of regulatory proposals. A 1941 empirical 
study of human fatigue and stress in a workplace environment was 
completed under the direction of the U.S. Public Health Service to 
support the ICC's initial activity in hours-of-service regulations. 
Legislative and regulatory history, however, also show many examples of 
``common sense'' proposals that are now seen as having had a scientific 
basis. One example was the ICC's original regulatory proposal. It 
limited CMV drivers to 12 hours of on-duty time (driving or not 
driving) in a 15-hour duty period, allowing 3 hours for breaks. The ICC 
rule required motor carriers to provide drivers 9 consecutive hours off 
duty--a schedule that would have maintained circadian rhythms. This 
provided a 15-hour duty period and 9-consecutive-hour minimum off-duty 
period, similar to the 14-hour duty period and 10-consecutive-hour off-
duty periods of the current rule.
    In developing its May 2000 proposed rulemaking, FMCSA reviewed 
nearly 150 research studies and other documents, many of which were 
submitted or referred to by docket commenters. Many of the reviewed 
documents reported on research conducted on motor carriers and CMV 
drivers. Others, such as studies on shiftwork, sleep and performance, 
and the physiological nature of sleep, were relevant to the issue of 
CMV driver safety.
    The studies underlying this proposed rule make the point that 
adverse effects of sleep deprivation can occur when the opportunity to 
take sleep is curtailed, when people try to obtain sleep during periods 
of the day when their systems are in a more active physiological state 
(such as mid-morning and early evening), or when environmental 
conditions are not conducive to obtaining sleep. Adverse effects 
include slower reaction times, poor and variable responses, 
deterioration of judgment, less vigilance and attention, and loss of 
alertness. Lack of sleep can also produce subjective feelings of 
tiredness, loss of motivation, and deterioration of mood.
    Many of the studies germane to this NPRM, as well as to FMCSA's 
prior regulatory activities, are referenced in An Annotated Literature 
Review Relating to Proposed Revisions to the Hours-of-Service 
Regulation for Commercial Motor Vehicle Drivers, Freund, D.M., Office 
of Motor Carrier Safety, November 1999, Publication No. DOT-MC-99-129. 
That review is available in DOT Docket No. 2350, entry 956.
    In preparing the 2000 NPRM and the 2003 final rule, FMCSA 
considered the effect of sleep quality and quantity, first and 
foremost, in the context of safe driving. Hours-of-service regulations 
exist to ensure a safe environment for the CMV driver, and for the 
driving public that shares the nation's highways. That said, there 
exists an extensive body of scientific literature that addresses the 
influences of hours of work and work schedules on employees' health and 
well-being.
    Rutenfranz, J., Knauth, P., & Colquhoun, W. (1976), ``Hours of Work 
and Shiftwork,'' Ergonomics 19(3), pp. 331-340, presents an overview of 
health and social concerns arising from long working hours and 
shiftwork. The authors consider elements of a workday (work, leisure, 
sleep); they note work by others indicating that sleep during the day 
may have less recuperative value than sleep during the night, and also 
that an insufficient amount of ``genuine leisure time'' [i.e., time 
over and above that needed for personal needs] could result in 
decreased sleeping time. Although the authors hold that a daily working 
time of 8 hours is optimal, they note that longer or shorter workdays 
may be allowed or required, depending on environmental influences and 
levels of mental or emotional stress associated with the job. The 
authors cite research documenting digestive and sleep disorders among 
shiftworkers. Shiftworkers' sleep is shorter and of poorer quality and 
quantity as measured by quantitative clinical (i.e., 
electroencephalographic) criteria. They also have considerable 
difficulties re-entraining [reestablishing timing of] physiological 
functions after shiftwork. Finally, shiftwork has adverse impacts on 
family and social life.

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    Research on CMV driver health issues generally falls into three 
categories: (1) The effects of sleep loss or deprivation; (2) the 
effects of exposure to noise, vibration, and exhaust gases and other 
chemicals while operating a CMV; and (3) workplace injuries and 
fatalities while operating a CMV.

E-1. Combined Effects

    Request E-1-1. Because the new hours-of-service rule is a 
combination of several elements (longer driving time, a reduced driving 
window, more off-duty time, an optional restart section, etc.), FMCSA 
requests studies and other data on the combined or net effects of these 
hours-of-service recommendations on driver health, the safe operation 
of CMVs, and economic factors. The agency also seeks comments on the 
mutual interactions of the various elements of the rule, e.g., whether 
they reinforce or conflict with each other, how the net effect of the 
elements could be improved, etc. The agency further requests comparison 
of the combined effect of the incremental changes in the 2003 rule 
compared to the rule prior to 2003. Commenters should take into account 
the combined effect of any recommendations they submit on the daily on- 
and off-duty periods, circadian rhythms, accumulated duty time over 
multi-day periods, and other relevant factors.
    Request E-1-2. Do the new regulations provide drivers with 
additional time for rest and relaxation, personal matters, and family 
activities? How have the new regulations impacted the ``quality of 
life'' for drivers?

E.2. Sleep Loss and Deprivation

    Truck drivers have always worked long hours. This is especially 
true for long-haul drivers. Particularly in the truckload sector of the 
industry, drivers are required to spend many, and in most cases 
uncompensated, hours waiting to pick up and unload goods. This affects 
their ability to maintain their driving schedules and can have an 
adverse impact on regular wake-sleep cycles. From a compliance point of 
view, it can affect the driver's ability to operate within the bounds 
of the hours-of-service regulations while still obtaining the mandatory 
minimum off-duty time for sleep, meals, and attending to personal needs 
(see Freund (1999) for discussions of studies by McCartt, et al. 
(1995), Van Ouwerkerk (1988), and Belzer, M.H., et al., ``Proposed 
Changes in Motor Carrier Hours of Service: Project Report'' (2002)).
    Serious adverse health conditions appear to be associated with 
chronic sleep deprivation. In his review, [Aring]kerstedt (1991) cited 
findings by other researchers who noted increased sleep problems, as 
well as increased incidence of myocardial infarcts and cardiovascular 
disease in general. A 1999 study claimed to find that restricting sleep 
in healthy young men to four hours per night for only six nights ``is 
associated with striking alterations in metabolic and endocrine 
function. The effects are similar to those seen in normal aging and, 
therefore, sleep debt may increase the severity of age-related chronic 
disorders'' such as diabetes and hypertension (Spiegel, K., et al., 
``Impact of Sleep Debt on Metabolic and Endocrine Function,'' The 
Lancet, Vol. 354, No. 9188, 23 October 1999, pp. 1435-1439). However, 
the implications of this study for this rulemaking appear to be 
ambiguous. The amount and duration of sleep deprivation required to 
exacerbate chronic disorders appear unclear, and the conditions under 
which the effects of sleep deprivation can be reversed also appear to 
be unclear. Finally, extended working hours tend to desynchronize the 
internal circadian rhythms of long-haul drivers who have work/rest 
cycles less than 24 hours (Stoynev, A.G., & Minkova N.K., ``Circadian 
Rhythms of Arterial Pressure, Heart Rate and Oral Temperature in Truck 
Drivers,'' Occupational Medicine (London), Vol. 47, No. 3, April 1997, 
pp. 151-154).
    Request E-2-1. Sleep Loss/Deprivation. FMCSA requests information 
on all adverse and beneficial effects of the new hours-of-service rule 
on the health of CMV drivers in contrast to the old rule. We are 
particularly interested in identifying any increase or reduction in 
sleep deprivation, and any measured changes in driver health impacts, 
generated as a consequence of the 2003 rule. Sleep deprivation in 
general: What identifies the presence or the absence of sleep 
deprivation in the CMV driver population? Is there any differential 
evidence of sleep deprivation in the CMV driver population subject to 
the new hours-of-service rule compared to the previous rule? How much 
sleep do drivers operating under the new regulations average on a daily 
basis, and how has this average changed as a result of the new rule? In 
other words, are drivers getting more or less sleep because of the new 
rule? Are they getting the 8 hours of sleep each day considered 
necessary to maintain alertness? Is there any evidence that 10 
continuous hours of off-duty time does not provide adequate opportunity 
for drivers to obtain 8 hours of sleep each day?
    Request E-2-2. Naps/Rest Periods. Several studies have addressed 
the effectiveness of naps and breaks in alleviating or preventing 
fatigue and drowsiness (Wylie, C.D., et al. (1996, 1997, 1998) and 
other studies referenced in Freund Annotated Literature Review (1999)). 
Do naps or short rest periods improve driver alertness in the operation 
of a CMV? How long should they be? At what point in the driving or duty 
cycle would they provide the greatest benefit? At what time of day 
would they provide the greatest benefit? If rest or other breaks from 
driving improve alertness, is there some additional amount of 
operational flexibility that could be afforded to a driver who chooses 
to take certain minimum breaks that would not increase safety risks or 
impair driver health? Are naps or rest periods beneficial to driver 
health? Does napping in a seated position provide rest equivalent to 
napping while lying flat (as in a sleeper berth)? Please explain.

E.3. Exposure to Environmental Stressors

    CMV drivers may be exposed to harmful substances or conditions, 
such as diesel engine exhaust emissions and chemicals. Drivers are also 
exposed to vehicle vibration and noise. A number of research studies 
are being evaluated to determine their relationship to CMV driver 
hours-of-service regulations.
    There has been some research on the relationship between exposure 
to diesel engine exhaust emissions and driver health. A Danish study 
claimed that a group of 14,225 truck drivers had a higher mortality 
rate over a ten-year period from lung cancer and multiple myeloma than 
did a group of 43,024 unskilled male laborers in other occupations 
(Hansen, E.S., ``A Follow-Up Study on the Mortality of Truck Drivers,'' 
American Journal of Industrial Medicine, Vol. 23, No. 5, May 1993, pp. 
811-821). Another study asserted that male truck drivers faced higher 
risk of death than other men did from colon cancer, laryngeal cancer, 
lung cancer, diabetes, ischemic heart disease, non-alcohol cirrhosis, 
and motor vehicle crashes (Aronson, K.J., et al., ``Surveillance of 
Potential Associations Between Occupations and Causes of Death in 
Canada, 1965-91,'' Occupational and Environmental Medicine, Vol. 56, 
No. 4, April 1999, pp. 265-269). A review of 30 epidemiological studies 
in North America and Europe (including 10 studies of truck drivers, two 
of bus drivers, and four of all professional drivers) similarly 
concluded that

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occupational exposure to diesel exhaust raised the risk of lung cancer 
(Lipsett, M., & Campleman, S., ``Occupational Exposure to Diesel 
Exhaust and Lung Cancer: A Meta-Analysis,'' American Journal of Public 
Health, Vol. 89, No. 7, July 1999, pp. 1009-1017). Another review of 15 
studies of truck drivers and 10 of bus drivers suggested that exposure 
to diesel exhaust may also raise the risk of bladder cancer (Boffetta, 
P., & Silverman, D.T., ``A Meta-Analysis of Bladder Cancer and Diesel 
Exhaust Exposure,'' Epidemiology, Vol. 12, No. 1, January 2001, pp. 
125-130). Finally, CMV drivers can be exposed to chemicals in liquid or 
vapor form. One study, for example, found that drivers delivering 
gasoline can experience acute headaches, dizziness, or nausea after 
exposure to vapors during loading and unloading (Hakkola, M.L., et al., 
``Changes in Neuropsychological Symptoms and Moods Among Tanker Drivers 
Exposed to Gasoline During a Work Week,'' Occupational Medicine 
(London), Vol. 47, No. 6, August 1997, pp. 344-348).
    Drivers face extended exposure to highway noise that may lead to 
hearing loss (Van Den Heever, D.J., & Roets, F.J., ``Noise Exposure of 
Truck Drivers: A Comparative Study,'' American Industrial Hygiene 
Association Journal, Vol. 57, No. 6, June 1996, pp. 564-566). Highway 
noise can also cause problems for drivers who are attempting to sleep 
in the sleeper berth while their partners drive, thereby reducing the 
adequacy of their restorative sleep (Seshagiri, B., ``Occupational 
Noise Exposure of Operators of Heavy Trucks,'' American Industrial 
Hygiene Association Journal, Vol. 59, No. 3, March 1998, pp. 205-213). 
Additionally, drivers are exposed to whole body vibration (Palmer, K., 
``Prevalence and Pattern of Occupational Exposure to Whole Body 
Vibration in Great Britain: Findings from a National Survey,'' 
Occupational and Environmental Medicine, Vol. 57, No. 4, April 2000, 
pp. 229-236), which may lead to lower back pain (Pope M.H., et al., 
``Low Back Pain and Whole Body Vibration,'' Clinical Orthopedics and 
Related Research, No. 354, September 1998, pp. 241-248). A Danish study 
examining hospital admissions over several years concluded that truck 
and bus drivers had higher age-standardized admission ratios for 
prolapsed cervical or lumbar discs, and also markedly high admission 
ratios for back injuries (Hannerz, H., & Tuchsen, F., ``Hospital 
Admissions Among Male Drivers in Denmark,'' Occupational and 
Environmental Medicine, Vol. 58, No. 4, 1 April 2001, pp. 253-260). 
Many truck drivers must perform heavy lifting, often after spending 
hours driving; this may contribute to injuries to the spine and 
ligaments (Jensen, M.V., et al., ``Prolapsed Cervical Intervertebral 
Disc in Male Professional Drivers in Denmark, 1981-1990: A Longitudinal 
Study of Hospitalizations,'' Spine, Vol. 21, No. 20, 15 October 1996, 
pp. 2352-2355).
    The implications of these studies are not always clear. Some of the 
research has suggested that the effect of exposure to diesel exhaust 
was concentrated among older drivers--many of whom drove years ago when 
few or weaker emissions standards existed. The mortalities of drivers 
who drove in later time periods did not show a similar relationship. 
The Environmental Protection Agency (EPA) has tightened its standards 
on vehicle emissions in the last two decades and will again beginning 
in 2006. In the past five years alone, many of the components of diesel 
exhaust that are considered dangerous to health have been significantly 
reduced (Bunn, W.B., et al., ``What is New in Diesel Emissions?'' 
International Archives of Occupational and Environmental Health, July 
2002, pp 122-132). EPA regulations that will go into effect in 2007 and 
2010 will reduce these emissions levels even further.
    Modern CMVs have also evolved. Truck manufacturers have improved 
ergonomics and driving comfort considerably. Noise levels in the cab--
whether from the engine, tires, or outside sources--have been reduced. 
Manufacturers have continued to make great strides in reducing high-
frequency truck vibration through improved cab suspensions and engine 
mounts. Air-suspension driver's seats are also commonplace. However, 
the long-term effects of current emissions, noise levels, and 
vibration, even in modern vehicles, are largely unknown. To this end, 
FMCSA requests information on the impacts of exposure (noise, 
vibration, and chemical emissions) on the health of commercial motor 
vehicle drivers as they relate to driver hours of service.
    Request E-3-1. Exposure. In this request and throughout this NPRM, 
we are looking at only injuries or conditions directly related to the 
hours-of-service regulations and operating a CMV, not other workplace 
injuries, which are outside the jurisdiction of FMCSA. What are the 
current standards and/or testing data regarding vehicle noise, 
vibration, and emissions? How have these standards changed over time? 
Does any research or data assess the impact on driver health of 
exposure to diesel exhaust emissions, exposure via respiration or skin 
contact with other chemicals, noise, and vibration during the operation 
of a CMV or during rest periods in a sleeper berth? Since the new 
hours-of-service rule allows drivers 11, rather than 10, hours of 
driving time, what are the consequences to drivers of one additional 
hour of such exposure in the vehicle per day? What are the exposure 
effects of the new 14-hour rule, in contrast to the previous 15-hour 
rule? What other exposure factors relating to the new hours-of-service 
regulations adversely or beneficially affect CMV driver health? Is 
revision of the hours-of-service rule the appropriate answer to adverse 
exposure impacts? What are the economic costs of addressing exposure 
through hours of service?

E.4. Workplace Injuries and Fatalities

    According to information from the Bureau of Labor Statistics, U.S. 
Department of Labor, transportation workers suffer more fatalities than 
any other occupational group, accounting for 12 percent of all U.S. 
worker deaths annually. Nearly two-thirds of these fatalities are 
caused by highway crashes. Truck drivers also have more nonfatal 
injuries than workers in any other occupation. Half of the nonfatal 
injuries were serious sprains and strains.
    Request E-4-1. Workplace Injuries and Fatalities. In this request 
and throughout this NPRM, we are looking at only injuries directly 
related to the hours-of-service regulations and operating a CMV, not 
other workplace injuries that are outside the jurisdiction of FMCSA. 
What is the impact of fatigue and loss of alertness on CMV driver 
workplace injuries and fatalities? Does the evidence connect these 
injuries or fatalities to specific aspects of the current or previous 
hours-of-service regulations? Please distinguish injuries and 
fatalities related to the hours-of-service regulations and operation of 
a CMV from other workplace hazards such as those related to loading and 
unloading.

E.5. Lifestyle Choices

    Lifestyle choices, including diet and exercise, may impact driver 
health and safety. Realistically, such choices cannot be regulated by 
FMCSA. For example, while the hours-of-service regulations prohibit 
driving during off-duty hours, they do not prevent the driver from 
engaging in personal activities, rather than sleeping. Similarly, an 
excessive or unhealthy diet can lead to obesity, which in turn may 
predispose a driver to diabetes or back problems.

[[Page 3346]]

    Request E-5-1. Lifestyle Choices. What effect do certain lifestyle 
choices, such as diet, exercise, and the use of off-duty time, have on 
driver safety and health?

F. Primary Components

F.1. Driving Time, On-Duty Time, and Off-Duty Time

    Sleep researchers and the motor carrier industry generally agree 
that the hours-of-service rules should promote work schedules built on 
a 24-hour day. Studies exploring the relationship between sleep 
obtained and subsequent performance, both in laboratory and operational 
settings, generally indicate that a person who is sleepy is more prone 
to perform poorly on tasks requiring vigilance, quick reaction time, 
and decisionmaking than a person who is alert. The scientific basis for 
restricting driving time includes research findings indicating that 
inadequate sleep can lead to fatigue, and several periods of 
insufficient sleep (inadequate in quantity or quality) cause sleep debt 
or cumulative fatigue.
    The 2003 hours-of-service rule permits up to 11 hours of driving 
time after 10 consecutive hours off duty. Compared to the previous 
rule, this permits up to one additional hour of driving time, but 
requires at least 2 additional hours of off-duty time. The new rule 
also limits driving to a 14-hour window after a driver comes on duty. 
Unlike the previous 15-hour rule, the new rule does not permit a driver 
to extend his or her on-duty time by subtracting breaks, waiting, and 
other off-duty periods from the calculation of on-duty time. The new 
rule addresses the issue of driver fatigue by providing drivers a daily 
opportunity to obtain a full 8 hours of sleep and still have time 
available for other personal activities within the minimum 10-hour off-
duty period. We believe that the net effect of these changes is that 
the driver spends less time on duty, in most cases, and usually has the 
time necessary to commute and attend to personal matters, while still 
obtaining the 8 consecutive hours of sleep recommended in the 
scientific literature to ensure alertness.
    The mandatory minimum 10-hour off-duty time, combined with a 
maximum 14-hour window in which driving can occur, establishes a 24-
hour day for the driver who maximizes on-duty time and minimizes off-
duty time. This routine is consistent with the well documented, near-
24-hour circadian cycle that regulates energy and alertness levels. 
FMCSA concluded that the advantages of putting most drivers on a 24-
hour, or near-24-hour, work cycle, combined with the opportunity to 
obtain 8 or more hours of sleep per night, will result in a well-rested 
driver capable of driving the additional 1 hour per day. The new rule 
also provides flexibility for the motor carrier industry and drivers. 
If necessary, a driver can work a 21-hour ``day'' by driving for 11 
hours, taking 10 hours off duty, using no other on-duty time, and then 
resuming driving again. This compressed schedule may be useful to 
address operational demands. We doubt drivers will use it regularly, 
however, because their workload requires on-duty activities such as 
loading and unloading, completing paperwork, fueling, daily vehicle 
inspections, and dispatch call-ins beyond the 11-hour driving period. 
But when the 21-hour cycle is used, it is considerably less disruptive 
to the body's circadian rhythms than the 18-hour ``day'' allowed by the 
old hours-of-service rules (10 hours of driving followed by 8 hours off 
duty). We invite comments on the safety and health effects of the 21-
hour cycle, especially as compared to the 18-hour cycle allowed under 
the old rule.
    Among other dicta included in its Public Citizen decision, the D.C. 
Circuit questioned whether FMCSA's argument that additional off-duty 
time and a 14-hour driving window justified a one-hour increase in 
total driving time. The court suggested the agency lacked supportive 
scientific evidence to support allowing an additional hour of driving 
per ``day.''
    Each driver should have an opportunity for 8 consecutive hours of 
uninterrupted sleep every day. Nine hours off duty were originally 
required in 1937. For various reasons, organized labor objected to most 
of the original regulations, and upon further deliberation, the ICC 
reduced the 9-hour off-duty period to 8 hours in each 24 hours (6 
M.C.C. 557, July 12, 1938). In 1962, the hours-of-service rule was 
changed to move away from a strict 24-hour period, and allow driving to 
resume again after 8 hours off-duty regardless of whether a new ``day'' 
(24-hour period) had begun. FMCSA's final rule of April 2003, required 
a minimum of 10 consecutive hours off duty. This was a result of the 
concern that many carriers were not providing drivers more than the 
minimum 8 hours off duty (although the previous regulation allowed them 
to do so) and that many drivers accept tight schedules without 
objection. These drivers also had to commute home, eat one or two 
meals, care for family members, bathe, get physical exercise, and 
conduct other personal activities, all within an 8-hour off-duty 
period. To afford the driver an opportunity to obtain a minimum period 
of 8 hours of sleep, research showed that the off-duty period needed to 
be increased from 8 hours to 10 hours.
    Studies in aviation (Gander, et al. (1991)), rail (Thomas et al. 
(1997), Moore-Ede et al. (1996)), and maritime environments (U.S. Coast 
Guard Report No. CG-D-06-97, U.S. Coast Guard (1997) (MCS 68/INF.11)) 
confirmed the need for additional off-duty time. Studies of truck 
drivers, including Lin et al. (1993) and McCartt et al. (1995), point 
specifically to increased crash risk and recollections of increased 
drowsiness or sleepiness after fewer than nine hours off duty. Studies 
performed in laboratory settings, as well as studies assessing 
operational situations, explore the relationships between the sleep 
obtained and subsequent performance (Dinges, D.F., & Kribbs, N.B. 
(1991); Bonnet, M.H., & Arand, D.L. (1995); Belenky, G., et al. (1994); 
Dinges, D.F., et al. (1997); Pilcher, J.J., & Hufcutt, A.I. (1996); 
Belenky, G., et al. (1987)). The results of the studies show that a 
person who is sleepy is prone to perform more poorly on tasks requiring 
vigilance and decision-making than a person who is alert. The time when 
sleep is taken is important as well because sleep fragmentation can be 
a byproduct of the timing or the quality of the sleep environment 
(Bonnet, M.H. (1994); Roehrs, T., Zorick, F., & Roth, T. (1994); 
Mitler, M.M., et al. (1997)); and Wylie, D. (1998)). It is virtually 
impossible to get an adequate amount of sleep when time for commuting, 
meals, personal errands, and family/social life is subtracted from an 
8-hour off-duty period, as the ICC found in 1937. Wylie et al. (1996) 
also addresses these issues.
    Request F-1-1. What are the impacts on driver health, the safe 
operation of CMVs, and economic factors of incremental increases in 
maximum driving time? For example, to what extent does an increase in 
maximum driving time from 10 hours to 11 hours affect driver health, 
the safe operation of CMVs, and economic factors in the CMV industry?
    Request F-1-2. What are the impacts on driver health, the safe 
operation of CMVs, and economic factors of incremental increases in the 
minimum required off-duty period? For example, to what extent does an 
increase in minimum off-duty time from 8 hours to 10 hours affect 
driver health, the safe operation of CMVs, and economic factors in the 
CMV industry?
    Request F-1-3. What are the impacts on driver health, the safe 
operation of

[[Page 3347]]

CMVs, and economic factors of incremental decreases in the ``duty 
period'' from 15 non-consecutive hours to 14 consecutive hours? For 
example, to what extent does a decrease in the duty period from 15 non-
consecutive hours to 14 consecutive hours affect driver health, the 
safe operation of CMVs, and economic factors in the CMV industry?
    Request F-1-4. To what extent does a reduction of the ``daily'' 
duty-period from 15 non-consecutive hours to 14 consecutive hours, and 
the increase in minimum off-duty time from 8 hours to 10 hours, offset 
the increase in allowable driving time from 10 hours to 11 hours in 
terms of driver health, the safe operation of CMVs, and economic 
factors in the CMV industry? Are there clinical or other studies 
examining the impact on driver health and the safe operation of CMVs of 
up to 11 hours of limited physical activity, such as driving for up to 
11 hours?
    Request F-1-5. How has the length of a driver's total daily work 
period changed under the new rules? How long was the typical total 
workday, from start to finish, under the former rule compared to the 
new 14-consecutive-hour rule?

F.2. The 34-Hour Restart and 60/70-Hour Rules

    Few research studies address the effect of recovery periods between 
work periods spanning multiple days. O'Neill et al. (1999) [referenced 
in the 1999 Literature Review] assessed the interactions between 
several trucking industry operating practices and driver fatigue-
related performance decrements. The activities studied were: loading 
and unloading freight; the amount of non-duty time (``rest and 
recovery'') required to reestablish baseline fitness for duty at the 
end of a multiday series of work shifts; and a sustained schedule 
consisting of 14 hours on duty and driving time followed by 10 hours 
off duty. The study design included two days of orientation; five 14-
hour days (7 a.m. to 9 p.m.) followed by 58 hours off; five more 14-
hour days and a second 58-hour period off; and a final 14-hour day. The 
14-hour duty periods included three scheduled breaks totaling 
approximately two hours. The study participants alternated periods of 
driving a high-fidelity fixed base simulator with performance of a 
physical loading task. The researchers reported the drivers did not 
appear to have accumulated significant sleep loss during the study but 
their amount of measured sleep increased and their sleep latency 
decreased on their first off-duty days. The researchers suggested, 
among other things, that a full two nights and one day off (that is, 
``Friday night'' to ``Sunday morning''--about 32 hours off duty) would 
be a minimum safe restart period, under the conditions tested. They 
also stated, as a caveat, that results of this study may not be 
generalized to operations that are not day shifts, have shorter post-
shift off-duty periods, have few or no breaks during the duty period, 
or vary from what the driver is accustomed to in terms of circadian 
disruptions or longer-than-usual on-duty periods.
    On the other hand, not all research studies have reached the same 
conclusions. Wylie, C.D., et al. (1997) [referenced in Freund, 1999] 
stated the following in the Abstract of their study report:

    The purpose of the study was to assess the ``recovery'' effects 
of zero, one, and two workdays off on driver fatigue, alertness, and 
performance. It involved 25 of the 40 drivers who participated in 
the two 13-hour observational conditions of the DFAS [Driver Fatigue 
and Alertness Study]. Drivers had nominally 12, 36, and 48 hours 
time off after the fourth workday.
    For one workday off (36 hours), there was: (1) No objective 
evidence of driver recovery; (2) some improvement in drivers 
subjective feeling reflected by self-rating, although this could be 
a reflection of driver expectation of recovery; (3) for day-start 
drivers, some increase in the amount of sleep obtained during time 
off; and (4) for night-start drivers, interference with work-rest 
patterns and less sleep during time off.
    For two workdays off (i.e., 48 hours), there was no objective 
evidence of driver recovery although the statistical power of the 
tests to detect recovery effects was not high because of random 
variation associated with the smaller number of drivers. (p. iii)

    Smiley, A., & Heslegrave, R. (1997) found only one study (Wylie et 
al., 1997) that specifically dealt with an operational schedule that 
would be permitted under a 36-hour reset scenario. The authors state 
this is mainly because such a short reset period would result in 
schedules that would exceed current hours-of-work regulations in most 
countries. They note that Wylie and his co-authors, as well as the 
reviewers, considered data from this study to be more suggestive of 
trends because of the small number of subjects and the fact that sleep 
during recovery periods was not recorded using full polysomnography (as 
were the sleep periods during the work periods). They cited several 
other scientific studies dealing with recovery time. The results of 
these studies and CMV driver hours-of-service requirements may or may 
not be related. For example, a 1967 study by Lille suggested that a 
single day off was insufficient for night workers to recover after a 
sleep debt accumulated over five days. Other studies indicated a 
preference for a three-day rest period compared to a two-day period 
after three 12-hour night shifts; a preference for two days and three 
days off over one day off when comparing automatic brakings experienced 
by locomotive engineers; and a 1994 literature review indicating two 
nights of recovery sleep as usually being sufficient to allow near full 
recovery after extended periods of sleep loss.
    Under both the old and new hours-of-service regulations, most 
drivers are prohibited from driving after reaching a maximum 60 hours 
of on-duty time in any consecutive 7-day period, or 70 hours in 8 days. 
A driver working the current maximum 14-consecutive-hour duty period 
without a break and taking the minimum 10 hours off duty would reach 
the 60-hour on-duty limit in slightly less than 4\1/2\ days (4\1/2\ 
days x 14 hours = 63 hours), after which he or she could not drive a 
CMV until enough calendar days had passed to bring the driver within 
the 60-hours-in-7-consecutive-days limitation. In this example, the 
driver could only drive 4 hours on the fifth day (60 - (14 x 4) = 4) 
and would then have to take an additional 2 full days off duty to fall 
within the limit of 60 hours in any 7 consecutive days. This results in 
nearly 3 days of required off-duty time.
    A fairly common misunderstanding is the belief that the hours-of-
service rule establishes a limit on the number of hours a driver may 
work in any time period. The rule only limits the driver's ability to 
drive a CMV after a certain number of hours of work or driving. In 
other words, the driver may work unlimited hours, but may not drive a 
CMV unless he or she is within hours-of-service limits. For example, on 
a Friday night a driver has reached the 60-or 70-hour on-duty limit 
within 7 or 8 consecutive days. On a Friday night, Saturday, and 
indefinitely thereafter, this driver could continue to perform non-
driving duties without being in violation of the hours-of-service rule. 
However, before the driver could operate a CMV, the driver would have 
to be completely off-duty for enough days to bring the total on-duty 
hours within any 7- or 8-consecutive days under the 60- or 70-hour 
limits.
    As a matter of background, section 345 of the National Highway 
Designation Act of 1995 [Pub. L. 104-50, 109 Stat. 568] created a ``24-
hour restart'' exemption from the 60- and 70-hour rules for drivers of 
utility service vehicles, CMVs transporting ground-water well drilling 
rigs, and

[[Page 3348]]

construction materials and equipment. This exemption is still in 
effect.
    In 49 CFR 395.3(c) FMCSA added a ``restart provision'' which 
allowed any 7- or 8-day period to end with the beginning of any off-
duty period of 34 or more consecutive hours. In other words, at any 
point before exceeding the 60/70-hour limit, a driver may restart the 
60/70-hour clock (or calculation) after taking 34 or more consecutive 
hours off duty. Consistent with previous interpretations of the 60/70-
hour rule, FMCSA interprets this provision to mean that if the driver 
exceeded the 60 or 70 hours on duty, he or she could not start the 34-
hour restart period until enough calendar days had passed to bring the 
driver within the 60 hours in 7 consecutive days (or 70 hours in 8 
days) limitation. The 34-hour restart provides an option that permits 
the driver to have enough time for two uninterrupted periods of 8 hours 
sleep before returning to work in a new multi-day duty period. However, 
it also allows a driver to drive more hours and be on duty more hours 
before driving is prohibited in a 7- or 8-day period, as shown in the 
table below.
    This table is based on two hypothetical scenarios. The first is a 
daily schedule in which the driver drives continuously for the maximum 
allowable time (11 hours). The second is a daily schedule in which the 
driver is on-duty/not-driving continuously for the maximum allowable 
time (14 hours of which 11 are driving). In each case, the driver takes 
only the minimum required off-duty (10 hours) period and, prior to 
reaching the 60/70 hour limit, the driver invokes the 34-hour restart 
provision and resumes the scenario of maximizing driving and on-duty 
time for the remainder of the 7/8 day period.

                                   Maximum Possible Driving and On-Duty Hours
----------------------------------------------------------------------------------------------------------------
                                        Current (2003) rule          Old rule        Available hours off duty
                                 -------------------------------------------------------------------------------
 (Assuming minimum 10-hour off-                       Without
          duty periods)               34-hour     restart  (note    60/70 rule     Current rule      Old rule
                                      restart           1)           (note 1)        (note 2)        (note 3)
----------------------------------------------------------------------------------------------------------------
Max. Hours Driving Only in 7                  77              60              60              91             108
 consecutive days, before
 driving is prohibited..........
Max. Hours Driving & On-duty in               84              60              60              84             108
 7 consecutive days, before
 driving is prohibited..........
Max. Hours Driving Only in 8                  88              70              70             104             122
 consecutive days, before
 driving is prohibited..........
Max. Hours Driving & On-duty in               98              70              70              94            122
 8 consecutive days, before
 driving is prohibited..........
----------------------------------------------------------------------------------------------------------------
Note 1: Under the current 2003 rule without imposing the 34-hour restart, and under the old rule, the maximum
  hours a driver may work and continue to operate a commercial motor vehicle is capped at 60 hours in 7
  consecutive days (70 hours in 8 consecutive days).
Note 2: The ``available hours off duty'' calculation assumes the driver is maximizing the driving and driving
  and on-duty not driving hours (11/14 hours respectively), coupled with taking only the minimum mandatory off-
  duty periods (10 hours).
Note 3: The old rules prohibited driving after 60 hours in 7 consecutive days (70 hours in 8 consecutive days).
  Considering the total hours available within each period, 168 (7 x 24) and 192 (8 x 24) would provide 108 (168
  less 60) and 122 (192 less 70) available hours off duty. However, the actual available off-duty hours may vary
  since the 60/70 hour rule only prohibits driving after the 60- or 70-hour limit, but does not prohibit
  additional hours on duty, not driving. The figure in the table represents the maximum available hours off duty
  for a driver not working any additional hours after reaching the 60/70 hour limit.

    The 60/70-hour limitation helps prevent a driver from developing 
severe, cumulative fatigue and sleep deprivation when working and 
driving the maximum ``daily'' limits for an extended period. However, 
at times this provision may require the driver to remain off duty for 
longer periods of time than necessary to gain adequate restorative 
sleep. This occurs because the rule refers to the maximum hours on duty 
in a certain number of ``days.'' The hours worked in the prior 7 or 8 
consecutive days and the hours available to work in a future 7-or 8-
consecutive-day period are re-calculated at midnight when a new ``day'' 
begins. As noted previously, the restart provision avoids this 
limitation by permitting the driver to ``restart the 60/70 hour clock'' 
after having 34 or more consecutive hours off duty, which would afford 
two uninterrupted periods of 8 hours sleep before returning to work in 
a new multi-day duty period.
    The D.C. Circuit criticized FMCSA for not even acknowledging, much 
less justifying, that the new rule ``dramatically increases the maximum 
permissible hours drivers may work each week'' Public Citizen, at 1222-
1223. As shown in the table above, the restart increases the total 
hours of permissible on-duty time in a 7-day period, after which a 
driver may not drive a CMV, from 60 hours to 84 hours. It also 
increases the maximum driving time permitted in a 7-consecutive-day 
period (from 60 hours to 77 hours). Also as shown in the table above, 
the restart increases the total hours of permissible on-duty time in an 
8-day period, after which a driver may not drive a CMV, from 70 hours 
to 98 hours. It also increases the maximum driving time permitted in an 
8-consecutive-day period (from 70 hours to 88 hours).
    In the 2003 final rule, the agency explained its rationale for the 
adoption of the 34-hour restart period. In essence, studies indicated 
that cumulative fatigue and sleep debt can develop over a weekly 
period, and at least two full periods of sleep are needed to 
``restore'' a driver to full alertness. The agency determined that the 
34-hour restart period, based on a full 24-hour period plus an 
additional 10-hour period available for sleep, was the minimum restart 
which would provide adequate restorative rest.
    The 34-hour restart was also seen in the 2003 final rule as a 
flexible alternative to the ``mandatory weekend'' proposed in the 2000 
NPRM. Not all motor carrier operations work on a ``fixed and recurring 
7-day period,'' instead having intense days of work followed by slack 
times. Other operations can be disrupted by weather. The 34-hour 
restart allows motor carriers and drivers the option of restorative 
rest during the times work is not available or is interrupted.
    The agency is seeking research and other data to further ascertain 
the effects of a 34-hour restart period on safety and driver health, 
and whether 34 hours is the appropriate length of time for a restart, 
compared to periods ranging from 24 hours (as in the NHS Act) to more 
than 34 hours. The agency is also reviewing the alternative of 
eliminating the restart provision, or of implementing it in a different 
way, such as limiting its use within a given time period, so as to 
preclude a driver accumulating an

[[Page 3349]]

excessive amount of on-duty time before driving.
    Request F-2-1. What effect has the 34-hour restart had on driver 
fatigue and the ability to obtain restorative sleep? Is a 34-
consecutive-hour off-duty period long enough to provide sufficient 
restorative sleep regardless of the number of hours worked prior to the 
restart? Is it different for a driver working a night or irregular 
schedule? What length of continuous off-duty time provides adequate 
opportunity for most drivers to obtain 8 hours of sleep per day?
    Request F-2-2. How many drivers (or what percentage of the current 
driver population) are currently using the 34-hour restart option to 
accumulate more than 60 or 70 hours of driving time in any consecutive 
7-or 8-day period? How consistently are they using this option? On the 
average, how many hours of driving are they accumulating in 7 or 8 
consecutive days? How many drivers, or what percentage of the current 
driver population, are currently logging 11 hours of daily driving on a 
consistent basis; i.e., the drivers consistently driving the maximum 
permissible driving time?
    Request F-2-3. If a driver has already exceeded 60 hours on duty in 
7 days, or 70 hours in 8 days, should the driver be permitted to 
utilize the 34-hour restart at any time, or should the driver be 
required to take enough days off duty to be in compliance with the 60/
70 hour provision before starting the restart period?
    Request F-2-4. What would be the impact on the industry of 
eliminating the 34-hour restart option relative to productivity, annual 
revenues, and operational costs such as labor, capital, and other? How 
many additional drivers does the industry anticipate it would need to 
hire to absorb the loss in weekly driving hours incurred if the 34-hour 
restart period was increased? Eliminated?
    Request F-2-5. What would be the safety impact of eliminating the 
34-hour restart option in terms of crashes, fatalities, and injuries?
    Request F-2-6. What would be the impact on driver health of 
modifying or eliminating the 34-hour restart option? How would the 
modification or elimination of the 34-hour restart period affect driver 
health and the safe operation of CMVs, as a result of its effect on the 
24-hour cycle (circadian rhythms)?

F.3. Sleeper-Berth Use

    Historically, the sleeper berth is widely used by commercial 
vehicle operators to obtain rest and restore available hours, making it 
legal to drive without having to take 10 consecutive hours off duty. 
The regulation of sleeper berth use was first considered by the ICC 
under the Motor Carrier Act of 1935. At that time and since, the 
economic and operational advantages of sleeper berths in some segments 
of the trucking industry have been recognized. In one of its first 
hours-of-service decisions, the ICC in 1937 discussed the economic need 
for sleeper-berth use, but stated, ``We shall watch this matter closely 
and if we see any tendency on the part of the carriers to use sleeper 
cabs where such use does not appear to be reasonably necessary, steps 
will be taken to put limits upon this practice'' (3 M.C.C. 689).
    Under the 2003 final rule, drivers are permitted to accumulate the 
mandatory off-duty period in four ways: (1) A minimum of 10 consecutive 
hours off duty, (2) a minimum of 10 consecutive hours in a sleeper 
berth, (3) a minimum of 10 consecutive hours in any combination of off-
duty and sleeper-berth periods, or (4) two sleeper-berth periods 
totaling 10 or more hours, with neither period being less than 2 hours.
    The split-sleeper-berth provision of the 2003 final rule only 
permits a combination of two sleeper-berth periods for the purpose of 
accumulating the required 10 hours off duty. A sleeper-berth period may 
only be excluded in calculating compliance with the 14-hour rule when 
it is combined with a second qualifying sleeper-berth period. Another 
way of stating this is that a single sleeper-berth period of less than 
10 consecutive hours is included in calculating the 14-hour tour-of-
duty provision. Thus, for a driver who starts the day at 5 a.m., and 
later takes one sleeper-berth break for a few hours around noon, the 
14-hour duty period would still end at 7 p.m. The single sleeper-berth 
period cannot be excluded from calculation of the 14-hour limitation.
    Informal communications with drivers and carriers indicate that 
this limitation may create a hardship on drivers and may encourage them 
to avoid taking rest breaks during the duty period. Under the previous 
rule, drivers could exclude off-duty periods, such as ``breaks'' during 
the day, from the 15-hour on-duty maximum. Under the current rule, the 
14-hour duty period represents consecutive hours, meaning that drivers 
may avoid breaks and meals in an attempt to accomplish as much work or 
travel as far as possible in the 14 hours allowed. This is in contrast 
to the indefinite period allowed under the old rule, because there was 
no maximum amount of off-duty breaks which could be taken during the 
duty ``day.''
    The use of a split-sleeper-berth period affects calculation of the 
maximum 11-hour driving time, 14-hour limitation, and the 60/70-hour 
limitation. Because sleeper-berth periods may be taken by a driver at 
any time, the calculations to determine whether a driver is in 
compliance may be very difficult. In other words, a ``real world'' 
series of logbook pages may reflect that the driver has taken a variety 
of sleeper-berth periods, as well as other on-duty and off-duty 
periods. The way in which these periods interact to determine the hours 
available for driving, or hours available under the 14-hour limitation, 
can be very complex, and has required the agency to issue extensive 
interpretations. Training of drivers and enforcement personnel 
regarding the new rule has reportedly been very difficult due to the 
complexities involved. Vendors of computer software for monitoring 
hours-of-service compliance have reported difficulty in programming 
their software to consistently calculate compliance. They have advised 
the agency that the current regulatory language, even with extensive 
interpretations and guidance, does not necessarily provide answers to 
every scenario that may develop. Enforcement personnel have also 
reported difficulty in calculating compliance during a roadside 
inspection when split-sleeper-berth periods are used. For example, at 
the time of inspection a driver may have only taken one sleeper-berth 
period and could appear to be in violation of one or more limitations. 
However, compliance would depend on whether the driver later takes a 
second combinable sleeper-berth period. Determining compliance based on 
potential future actions of the driver may create confusion and 
inconsistency, and needs to be addressed in this rulemaking.
    FMCSA will consider a variety of possible changes to the sleeper-
berth provisions, including but not limited to: (1) Not permitting any 
split sleeper-berth use to count toward the minimum 10-hours off duty, 
(2) allowing one continuous sleeper-berth period of less than 10-hours, 
such as 8 hours, to substitute for the otherwise minimum 10 hours, (3) 
eliminating split-sleeper-berth periods or establishing a minimum time 
for one of the two ``splits,'' such as 5 hours, 8 hours, or some other 
appropriate level, (4) revising the manner in which sleeper-berth 
periods affect the calculation of the 14-consecutive-hour period, and 
(5)

[[Page 3350]]

restricting variations on permissible sleeper-berth use to team drivers 
only.
    On November 3, 2003, the American Trucking Associations (ATA) 
submitted a petition for rulemaking to FMCSA, requesting that the 
hours-of-service rule be modified to permit a driver to extend the 14-
hour on-duty period by the use of one sleeper-berth period of a minimum 
2 hours duration, provided the on-duty period is followed by a minimum 
10-consecutive-hour off-duty period. A copy of the ATA petition is 
filed in the docket for this rulemaking, and the subject matter of the 
ATA petition will be addressed in this rulemaking.
    Request F-3-1. Does sleeping in a sleeper berth, either in a moving 
or stationary vehicle, have a detrimental effect on driver health and 
the safe operation of CMVs? What are the obstacles to getting adequate 
sleep in a sleeper berth? Does using a sleeper berth in a moving or 
stationary CMV yield less restorative sleep (qualitatively or 
quantitatively) than sleeping in a bed at home or at a motel? How do 
in-vehicle temperature fluctuations due to ``no-idling'' laws, and 
other environmental issues, impact sleeper-berth use?
    Request F-3-2. What is the minimum time in each of two split-
sleeper-berth periods necessary to provide restorative sleep? What is 
the impact of split-sleeper-berth periods on driver health and his or 
her ability to obtain restorative sleep and manage fatigue? How often 
is a single, continuous 10-hour sleeper-berth period used? How often 
are consecutive off-duty time and a single sleeper-berth period (i.e., 
no split-sleeper-berth use) combined to meet the minimum 10-hour off-
duty requirement?
    Request F-3-3. How often are split-sleeper-berth periods used to 
obtain the required 10 or more hours of off-duty time? In a split-
sleeper-berth operation, how much time is usually spent in the sleeper 
berth during a typical period? How are split-sleeper-berth periods 
managed (i.e., number of hours in each of the two periods)? Why? How 
does this provide restorative sleep or prevent sleep deprivation?
    Request F-3-4. What impact does team drivers' use of sleeper berths 
have on driver health, safe operation of CMVs, and economic factors and 
how do such impacts differ from impacts on single drivers?
    Request F-3-5. If the agency were to eliminate the split-sleeper-
berth exception and require a driver to take 10 consecutive hours off 
duty (in a sleeper berth, or in combination with off-duty time), what 
impact would this have upon driver health, the safe operation of CMVs, 
and business operating practices?
    Request F-3-6. If the agency were to retain the split-sleeper-berth 
provision, but require that one of the two periods be at least 7, 8, or 
9 hours in length, what impact would this action have on driver health, 
the safe operation of CMVs, and economic factors? If one period is 7 or 
more hours in length, is that equivalent to 10 consecutive hours of 
non-sleeper-berth off-duty time (since little commuting and personal 
time would be needed, allowing a greater percentage of the off-duty 
period for sleep), or would a second sleeper-berth period still be 
required?
    Request F-3-7. What time and costs are saved by utilizing a sleeper 
berth rather than commuting to other sleep locations such as home or a 
motel, and what portion of the time saved is actually spent sleeping?
    Request F-3-8. How does prohibiting extension of the 14-hour tour 
of duty through the use of a single sleeper-berth period affect driver 
health, safe operation of CMVs, and economic factors? How could 
allowing the use of a limited sleeper-berth period to extend the 14-
hour limitation be accomplished without having a detrimental effect on 
highway safety? What would be the appropriate length of such a limited 
sleeper-berth rest period?
    Request F-3-9. If the current hours-of-service rules are generally 
retained ``as is,'' do you have any suggestions to simplify the 
sleeper-berth calculations, yet provide the same or better levels of 
driver health, safety, and operational flexibility? How could the 
sleeper-berth provisions be modified or more clearly stated to simplify 
calculations but not have a negative impact on driver health, safety, 
and operational considerations?
    Request F-3-10. Should the rule allow sleeper-berth periods to be 
combined with off-duty periods when calculating a continuous off-duty 
period? Should a sleeper-berth period that is part of a period of 10 or 
more consecutive hours off duty also be combinable with a later 
sleeper-berth period to allow a split-sleeper-berth calculation?

F.4. Electronic On-Board Recording Devices (EOBRs)

    As indicated above, on September 1, 2004 (69 FR 53386), FMCSA 
published an ANPRM requesting information about the use of electronic 
on-board recording devices as a substitute for paper copies of driver 
records of duty status (``logbooks''). As the agency said in the 
preamble to that document, ``FMCSA is attempting to evaluate the 
suitability of EOBRs to demonstrate compliance with the enforcement of 
the hours-of-service regulations, which in turn will have major 
implications for the welfare of drivers and the safe operation of 
commercial motor vehicles.'' The ANPRM requested comments and 
information on EOBR performance specifications and the potential costs 
and benefits of such devices.

F.5. Other Provisions

General Requests
    Request F-5-1. Please provide supplemental information or data on 
any topic discussed in this NPRM that could augment existing 
information for a final rule or other agency action regarding hours of 
service in the future. Are there ``gaps'' in available data? Describe 
the substantive nature of any data or information that you believe is 
necessary to support a particular requirement but does not exist. 
Explain what the ideal data or information set would contain. Include a 
discussion not only of the individual requirements of the current rule, 
but also of the interrelationships among those requirements and their 
impact on driver health, the safe operation of CMVs, and economic 
factors. In addition, suggest processes, methodologies, and sources 
that would facilitate the collection and analysis of data on the topic 
or topics. In responding here, commenters are requested to provide data 
and other information in the context of driver hours-of-service 
requirements and the incremental changes from the old rule to the new 
rule.
    Request F-5-2. What has been the effect of the new hours-of-service 
regulations upon CMV-related crashes? Please provide detailed 
information, if available.
    Request F-5-3. What has been and will be the effect of CMV improved 
or reduced driver compliance as a result of the changes made by the new 
hours-of-service rules? Have CMV drivers become more or less compliant 
with the regulations?
Short-Haul Exemption
    For local short-haul drivers, driving is only part of their daily 
work routine. These drivers perform a variety of tasks including, but 
may not be limited to, receiving the day's driving schedule, driving, 
loading and unloading the vehicle, getting in and out of the vehicle 
numerous times, lifting and carrying packages, and engaging in customer 
relations. The research on local short-haul operations has suggested 
that fatigue is less of a problem than for long-haul drivers (``Impact 
of the Local

[[Page 3351]]

Short Operations on Driver Fatigue,'' Hanowski, R., et al. (2000) and 
``Short-Haul Trucks and Driver Fatigue,'' Massie, D.L., et al. (1997)). 
Since local short-haul drivers typically work daytime hours, they are 
much more likely to maintain regular schedules that are less intense 
than many long-haul drivers. Short-haul drivers are significantly less 
likely to be working 13 or more hours or to have irregular circadian 
patterns. Also, local short-haul drivers typically sleep at home every 
night in their own beds. Thus, local short-haul drivers are much more 
likely to be getting the daily restorative sleep necessary to maintain 
vigilance.
    As a result, the 2003 hours-of-service rule provided a special 
exemption for local short-haul operations, which included those drivers 
who return to their normal work-reporting location on a regular daily 
basis. The exemption provided greater flexibility with regard to on-
duty hours for local short-haul drivers. The rule provided an exception 
to the 14-hour limit once a week (or after a 34-hour restart period), 
which allows two additional non-driving hours.
    Based on the data and research available at the time, FMCSA was 
convinced that the 14-hour limit for most drivers, with a 16-hour limit 
for short-haul drivers once a week, is materially better from a safety 
standpoint than the earlier hours-of-service rule. Drivers under the 
old rule could extend their daily working well beyond the allowed 15-
hour limit, because of ``off-duty'' breaks, meals, and weather-related 
conditions. The added two hours of work time once a week could be 
productively used by the short-haul segment to meet peak demands, 
accommodate training, and complete required recordkeeping.
    For these reasons, FMCSA is proposing to continue the local short-
haul exemption.

G. Rulemaking Analyses and Notices

    Because FMCSA is reexamining the hours-of-service regulations for 
drivers and operators of property-carrying CMVs that were published on 
April 28, 2003 (68 FR 22456) and amended on September 30, 2004 (68 FR 
56208), the rulemaking analyses and notices, and regulatory language 
accompanying that final rule (see 68 FR 22505-22513) remain applicable 
to this NPRM and are not being fully reprinted in this notice.
    In the Regulatory Impact Analysis (RIA) to the 2003 final rule, 
FMCSA evaluated three alternative proposals for the hours-of-service 
rule. The alternative that was adopted and became the 2003 final rule 
was referred to in the RIA as the ``FMCSA Proposal.'' The full text of 
the RIA that was prepared for the 2003 final rule is located in that 
docket (FMCSA-1997-2350-23302) and the docket to this rulemaking.

G.1. Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA has determined that this rulemaking constitutes an 
economically significant regulatory action under Executive Order 12866 
because the agency estimates this action will have an annual effect on 
the economy of $100 million or more. This is the effect of the change 
from the hours-of-service rule prior to 2003, compared to the current 
rule published in 2003, which is being reexamined in this NPRM. FMCSA 
has also determined that this regulatory action is significant under 
the regulatory policies and procedures of DOT because of the high level 
of interest concerning motor carrier safety issues expressed by 
Congress, motor carriers, their drivers and other employees, State 
governments, safety advocates, and members of the traveling public. 
Finally, FMCSA has determined that this regulatory action is a major 
rule under the Congressional Review Act, 5 U.S.C. 801 et seq.
    The RIA for the final rule published on April 28, 2003 (Docket 
FMCSA-1997-2350-23302), estimated net social benefits to be $1.1 
billion annually, when compared to the previous hours-of-service rules 
with full compliance. Alternatively, when compared to the previous 
rules under an assumption of less than full compliance, the current 
rule results in annual net social benefits of -$611 million. When 
assuming less than full compliance by industry with the previous hours-
of-service rules, total annual costs of the new rules equal 
approximately $1.3 billion. For major rules involving annual economic 
effects of $1 billion or more, the Office of Management and Budget 
requires several new issues to be considered as part of the RIA (OMB 
Circular A-4, published September 17, 2003). Most notably, the RIA must 
present a formal quantitative analysis of the relative uncertainties 
concerning particularly important benefit and cost elements of the 
rule. Additionally, a cost-effectiveness analysis is required for all 
major rulemakings for which the primary benefits are improved public 
health and safety, where valid effectiveness measures can be developed. 
As such, FMCSA has prepared these two supplemental analyses to the RIA 
and will include them in the docket to this rulemaking.
    The original RIA that accompanied the 2003 final rule has not been 
changed or reprinted, but answers to the following questions would help 
FMCSA to prepare the new RIA that will be required when the agency 
adopts a final rule.
    Request G-1-1. What changes have been made by shippers and carriers 
to adjust to the 14-hour rule? What was the cost of those changes? What 
would be the additional costs if the 14-hour rule were changed again? 
Has the loading and unloading of CMVs become more or less efficient as 
a result of the 14-hour rule? What has been the economic impact of this 
change?
    Request G-1-2. What has been the economic impact of the new 
regulations on all segments of the motor carrier industry? For example, 
have motor carrier revenues and shipping costs increased or decreased 
as a result of the new hours-of-service regulations?
    Request G-1-3. What costs have been incurred in re-training 
personnel to understand the new hours-of-service rule?
    Request G-1-4. What is the impact of the driver wage structure 
(either per mile or per hour) on the hours driven and/or health and 
safety of drivers under the new rule?
    Request G-1-5. How many, or what percentage of, motor carriers 
provide health insurance for their drivers? If not covered by their 
employer, how many drivers currently purchase their own health 
insurance? How many are uncovered? If the agency reduced the driving 
time allowed by the 2003 rule, or shortened the daily or weekly on-duty 
period during which driving is allowed, would motor carrier revenues 
and/or profits be sufficient to sustain employer-provided health 
insurance? At what point, in terms of regulatory limits, would 
employers curtail or end such health insurance? At what point would 
shorter driving times or on-duty windows reduce driver income enough to 
make health insurance unaffordable?

G.2. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), requires Federal 
agencies to analyze the impact of rulemakings on small entities, unless 
the agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. In its analysis for 
the April 28, 2003, final rule, FMCSA determined that while large 
numbers of small entities would be affected with regard to their short-
haul operations, no significant economic

[[Page 3352]]

impacts were projected for a substantial number of small entities.
    Although the RFA section of the 2003 final rule is not being 
changed or reprinted, answers to the following questions would help 
FMCSA to prepare the small-business impact analysis that will be 
required when the agency adopts a final rule.
    Request G-2-1. Since implementation of the 2003 final rule starting 
in January 2004, what has been the impact on small motor carriers 
(those with less than $21.5 million in annual revenues) with short-haul 
operations, specifically with regard to your revenues and costs (labor, 
capital, and other)? In responding to this question, please be specific 
as to the period for which the revenue and cost impacts are being 
measured (e.g., monthly, biannual, or six months). In addition, please 
indicate whether you are a truckload or less-than-truckload (LTL) 
carrier (or drive for one), a private or for-hire motor carrier (or 
drive for one), and those commodities you haul most frequently.
    Request G-2-2. Since implementation of the 2003 final rule, what 
has been the impact on small motor carriers (those with less than $21.5 
million in annual revenues) with long-haul operations, specifically 
with regard to your revenues and costs (labor, capital, and other)? In 
responding to this question, please be specific as to the period for 
which the revenue and cost impacts are being measured (e.g., monthly, 
biannual, or six months). Please indicate whether you are a truckload 
or LTL carrier (or drive for one), a private or for-hire motor carrier 
(or drive for one), and those commodities you haul most frequently.
    Request G-2-3. For small motor carriers with short-haul operations, 
please provide a breakdown of the cost changes resulting from 
implementation of the 2003 final rule. For example, please separate 
cost increases or decreases by changes in labor costs (e.g., driver 
salaries and fringe benefits), capital or equipment costs (e.g., recent 
purchase or sale of tractors and trailers), and other capital (i.e., 
infrastructure) or operating costs. Please indicate whether you are a 
truckload or LTL carrier (or drive for one), a private or for-hire 
motor carrier (or drive for one), and those commodities you haul most 
frequently.
    Request G-2-4. For small motor carriers with long-haul operations, 
please provide a breakdown of the cost changes resulting from 
implementation of the 2003 final rule. For example, please separate 
cost increases or decreases by changes in labor costs (e.g., driver 
salaries and fringe benefits), capital or equipment costs (e.g., recent 
purchase or sale of tractors and trailers), and other capital (i.e., 
infrastructure) or operating costs. Please indicate whether you are a 
truckload or LTL carrier (or drive for one), a private or for-hire 
motor carrier (or drive for one), and those commodities you haul most 
frequently.

G.3. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 requires each agency to 
assess the effects of its regulatory actions on State, local, and 
tribal governments and the private sector. Any agency promulgating a 
final rule resulting in a Federal mandate requiring expenditure by a 
State, local, or tribal government or by the private sector of $120.7 
million or more in any one year must prepare a written statement 
incorporating various assessments, estimates, and descriptions that are 
delineated in the Act. The hours-of-service final rule published in 
2003 and being reexamined in this NPRM is a major rule that costs motor 
carriers more than $120.7 million in a given year. FMCSA has prepared 
the following statement which addresses each of the elements required 
by the Unfunded Mandates Reform Act of 1995 (UMRA).
Qualitative and Quantitative Assessment of Costs and Benefits
    The UMRA requires a qualitative and quantitative assessment of the 
anticipated costs and benefits of this Federal mandate. The 2003 final 
rule evaluated several proposals, including an ``FMCSA Staff'' option. 
Relative to the previous rules with full compliance, the FMCSA option 
was estimated to result in a cost savings of approximately $900 million 
per year. Benefits under this ``full compliance'' scenario were 
estimated to be approximately $200 million per year, resulting in net 
benefits of $1.1 billion per year. The final rule does not impose any 
cost on State, local, or tribal governments.
Effect on Health, Safety, and the Natural Environment
    The UMRA also requires FMCSA to discuss the effect of the Federal 
mandate on health, safety, and the natural environment. FMCSA prepared 
an environmental assessment for the 2003 final rule, which was placed 
in the docket (FMCSA-1997-2350-23303), and is also in the docket to 
this rulemaking, showing that the rule would not have a significant 
impact on the natural environment. The effects of the rule on health 
and safety are much more significant: the primary benefit of the 2003 
final rule (and thus of this reexamination) was a reduction in 
accidents. The RIA that accompanied the 2003 final rule explains these 
estimates in detail in Chapters 8 and 9.
Federal Financial Assistance
    Section 202(a)(2)(A) of the UMRA requires that this qualitative and 
quantitative assessment of costs and benefits include an analysis of 
the extent to which costs to State, local, and tribal governments may 
be paid with Federal financial assistance or otherwise paid for by the 
Federal Government. Since this rulemaking action is applicable only to 
motor carriers subject to the Federal Motor Carrier Safety Regulations 
(FMCSRs), there would be no cost to State, local, and tribal 
governments. Therefore, no Federal funds for these entities would be 
necessary for motor carriers to comply with the requirements. All 
States, however, receive Motor Carrier Safety Assistance Program 
(MCSAP) grants requiring them to adopt and enforce most of the FMCSRs 
or compatible State regulations, including the 2003 hours-of-service 
rule.
Future Compliance Costs
    To the extent feasible, section 202(a)(3) of the UMRA requires 
estimates of the future compliance costs of this rulemaking action, and 
any disproportionate budgetary effects upon particular regions, or upon 
urban, rural, or other types of communities, or upon particular 
segments of the private sector. The 2003 final rule, which is being 
reexamined here, has no disproportionate budgetary effects upon 
particular regions, or upon urban, rural, or other types of 
communities. The RIA accompanying the 2003 final rule includes an 
analysis of the impact of the ``FMCSA Proposal'' on various regions, 
using the REMI Policy InsightTM Model. The model showed no 
significant disparate impact on any region. These impacts are discussed 
in chapter 11 of the RIA.
Effect on the National Economy
    Section 202(a)(4) of the UMRA requires estimates of the effect on 
the national economy, such as the effect on economic growth, full 
employment, creation of productive jobs, and international 
competitiveness. The REMI model mentioned above also yielded an 
estimate of the macroeconomic \3\ costs of the options. Relative to the 
previous rule with 100

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percent compliance, FMCSA estimated that the impact on gross regional 
product \4\ (GRP) would be minimal, less than 0.1 percent of GRP for 
all the alternatives. One alternative would have reduced GRP by almost 
$12 billion per year, while all other alternatives would have resulted 
in a small increase in GRP.
---------------------------------------------------------------------------

    \3\ Macroeconomics: concerned with the behavior of the entire 
national economy, or major segments of it.
    \4\ Gross Regional Product (GRP): the market value of all goods 
and services produced by a regional (i.e., multi-State) economy. The 
REMI model used in this analysis included six multi-state regions 
that, when aggregated, comprise the entire U.S. economy.
---------------------------------------------------------------------------

    Because FMCSA believed the overall driving time for most CMV 
drivers would not change, the agency concluded the alternatives would 
not have a significant impact on full employment or the creation of 
productive jobs. The agency also did not believe that the ``FMCSA 
Proposal'' would have any significant impact on international 
competitiveness.
Prior Consultations With Elected Representatives of Any Affected State, 
Local, or Tribal Governments
    This reexamined rule does not require action by State, local, or 
tribal governments. Therefore, no prior consultations with elected 
representatives of these governments were initiated.
Decision To Impose an Unfunded Mandate
    When Congress created FMCSA, it provided that, ``[i]n carrying out 
its duties the Administration shall consider the assignment and 
maintenance of safety as the highest priority * * *'' [49 U.S.C. 
113(b)]. As indicated above, section 408 of the ICCTA directed the 
agency--then part of FHWA--to begin a rulemaking dealing with a variety 
of fatigue-related safety issues, including ``8 hours of continuous 
sleep after 10 hours of driving, loading and unloading operations, 
automated and tamper-proof recording devices, rest and recovery cycles, 
fatigue and stress in longer combination vehicles, fitness for duty, 
and other appropriate regulatory and enforcement countermeasures for 
reducing fatigue-related incidents and increasing driver alertness * * 
*'' [109 Stat. 958]. The agency's statutory focus on safety and the 
specific mandate of section 408 both demanded that the 2003 final rule 
improve CMV safety.
    The 2003 final rule, which is being reexamined, represents a 
substantial improvement in addressing driver fatigue over the previous 
rule. Together, the provisions are expected to reduce the effect of 
cumulative fatigue and prevent many of the accidents and fatalities to 
which fatigue is a contributing factor. Because the agency's statutory 
priority is safety, FMCSA adopted a rule that was marginally more 
expensive than other alternatives but would reduce fatigue-related 
accidents and fatalities more substantially, even though it imposes an 
unfunded mandate.

G.4. National Environmental Policy Act

    FMCSA analyzed the alternatives discussed in the RIA accompanying 
the 2003 final rule as required by the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321 et seq.) and DOT Order 5610.1C. As shown in 
Table 25 of the 2003 final rule preamble (Environmental Assessment), 
none of the alternatives had a significant adverse impact on the human 
environment and all of the alternatives had beneficial impacts in some 
areas. None of the alternatives stood out as environmentally 
preferable, when compared to the other alternatives. This environmental 
assessment and finding of no significant impact (FONSI) for the 2003 
final rule are in the docket for that rule (FMCSA-1997-2350-23303), as 
well as in the docket to this rulemaking. The National Environmental 
Policy Act (NEPA) section of the 2003 final rule preamble is not being 
changed or reprinted here. However, to assist the agency in preparing 
the NEPA analysis that will be required when the agency adopts a final 
rule, FMCSA requests comments.
    Request G-4-1. What impact would the possible changes to the 2003 
final rule discussed in this NPRM have on the environment?

G.5. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FMCSA determined that 
this NPRM will affect a currently approved information clearance for 
OMB Control Number 2126-0001, titled ``Hours of Service of Drivers 
Regulation.'' OMB approved this information collection on April 29, 
2003, at a revised total of 160,376,492 burden hours, with an 
expiration date of April 30, 2006. The PRA requires agencies to provide 
a specific, objectively supported estimate of burden that will be 
imposed by the information collection. See 5 CFR 1320.8. The paperwork 
burden imposed by FMCSA's record-of-duty-status (RODS) requirement is 
set forth at 49 CFR 395.8.
    The agency believes that the possible revisions to the 2003 final 
rule discussed in this NPRM will not bring about an appreciable change 
in the paperwork burden to the estimated 4.2 million drivers required 
to complete and maintain the RODS, which is commonly referred to as a 
``logbook.'' This NPRM and a supporting statement reflecting this 
assessment have been submitted to OMB. You may submit comments on this 
directly to OMB. OMB must receive your comments by March 10, 2005. You 
must mail or hand deliver your comments to: Attention: Desk Officer for 
the Department of Transportation, Docket Library, Office of Information 
and Regulatory Affairs, Office of Management and Budget, Room 10102, 
725 17th Street, NW., Washington, DC 20503.

G.6. Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA analyzed the 2003 final rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. As a part of the Environmental Assessment, FMCSA 
analyzed the alternatives discussed in the preamble to the 2003 final 
rule. Table 26 of that final rule preamble showed the energy 
consumption effects of the alternatives. From a national energy 
consumption perspective, the FMCSA alternative, which was adopted and 
is being reexamined in this NPRM, had essentially a net zero effect on 
national energy consumption. FMCSA does not consider this effect to be 
significant.
    In accordance with Executive Order 13211, the agency prepared a 
``Statement of Energy Effects'' for the 2003 final rule. A copy of this 
statement is in Appendix D to the Environmental Assessment of the 2003 
final rule (Docket FMCSA-1997-2350-23303).

G.7. Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of the alternatives 
discussed in the 2003 final rule in accordance with Executive Order 
12898 and determined that there were no environmental justice issues 
associated with revising the hours-of-service regulations. 
Environmental justice issues would be raised if there were 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations. FMCSA determined through the Environmental 
Assessment that there were no high and adverse impacts associated with 
any of the alternatives. In addition, FMCSA analyzed the demographic 
makeup of the trucking

[[Page 3354]]

industry potentially affected by the alternatives and determined that 
there was no disproportionate impact on minority or low-income 
populations. This is based on the finding that low-income and minority 
populations are generally underrepresented in the trucking occupation. 
In addition, the most impacted trucking sectors do not have 
disproportionate representation of minority and low-income drivers 
relative to the trucking occupation as a whole. Appendix E of the 
Environmental Assessment provides a detailed analysis used to reach 
this conclusion.

G.8. Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (April 23, 1997, 62 FR 19885), requires 
agencies issuing ``economically significant'' rules to include an 
evaluation of their environmental health and safety effects on 
children, providing the agency has reason to believe the rule may 
disproportionately affect children. FMCSA evaluated the projected 
effects of the 2003 final rule and the various alternatives and 
determined that they would not create disproportionate environmental 
health or safety risks to children. The only adverse environmental 
effect with potential human health consequences is the projected 
increase in emissions of air pollutants. The final rule resulted in a 
minor increase in emissions on a national scale. FMCSA projects no 
adverse human health consequences to either children or adults because 
the magnitude of emission increases is small. The 2003 final rule and 
alternatives, however, reduced the safety risk posed by tired, drowsy, 
or fatigued drivers of CMVs. These safety risk improvements accrued to 
children and adults equally.

G.9. Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

G.10. Executive Order 12630 (Taking of Private Property)

    This reexamined rule will not effect a taking of private property 
or otherwise have ``taking implications'' under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

G.11. Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. FMCSA has determined the 
2003 final rule, which is being reexamined here, does not have a 
substantial direct effect on States, nor would it limit the 
policymaking discretion of the States. Nothing in this document 
preempts any State law or regulation.
    A State participating in the Motor Carrier Safety Assistance 
Program (MCSAP) that fails to adopt the 2003 final rule three years 
after its effective date (June 27, 2003) will be deemed to have 
incompatible regulations and will not be eligible for MCSAP Basic 
Program or Incentive Funds in accordance with 49 CFR 350.335(b). MCSAP 
has no federalism implications under Executive Order 13132.

G.12. Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this NPRM.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.
    In consideration of the foregoing, FMCSA is reexamining the 
amendments to 49 CFR chapter III, parts 385, 390, and 395 as set forth 
in the final rule on hours of service of drivers published on April 28, 
2003 (68 FR 22456) and amended on September 30, 2003 (68 FR 56208). 
Those amendments are not being reprinted here.

    Issued on: January 18, 2005.
Annette M. Sandberg,
Administrator.
[FR Doc. 05-1248 Filed 1-18-05; 4:20 pm]
BILLING CODE 4910-EX-P