[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Proposed Rules]
[Pages 82170-82198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32251]



[[Page 82169]]

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Part III





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Parts 385, 386, 390, et al.



Hours of Service of Drivers; Proposed Rule

  Federal Register / Vol. 75 , No. 249 / Wednesday, December 29, 2010 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

[Docket No. FMCSA-2004-19608]
RIN 2126-AB26


Hours of Service of Drivers

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: To promote safety and to protect driver health, FMCSA proposes 
to revise the regulations for hours of service for drivers of property-
carrying commercial motor vehicles (CMVs). To achieve these goals, the 
proposed rule would provide flexibility for drivers to take breaks when 
needed and would reduce safety and health risks associated with long 
hours. The proposed rule would make seven changes from current 
requirements. First, the proposed rule would limit drivers to either 10 
or 11 hours of driving time following a period of at least 10 
consecutive hours off duty; on the basis of all relevant 
considerations, FMCSA currently favors a 10-hour limit, but its 
ultimate decision will include a careful consideration of comments and 
any additional data received. Second, it would limit the standard 
``driving window'' to 14 hours, while allowing that number to be 
extended to 16 hours twice a week. Third, actual duty time within the 
driving window would be limited to 13 hours. Fourth, drivers would be 
permitted to drive only if 7 hours or less have passed since their last 
off-duty or sleeper-berth period of at least 30 minutes. Fifth, the 34-
hour restart would be retained, subject to certain limits: The restart 
would have to include two periods between midnight and 6 a.m. and could 
be started no sooner than 168 hours (7 days) after the beginning of the 
previously designated restart. Sixth, the definition of ``on duty'' 
would be revised to allow some time spent in or on the CMV to be logged 
as off duty. Seventh, the oilfield operations exception would be 
revised to clarify the language on waiting time and to state that 
waiting time would not be included in the calculation of the driving 
window.

DATES: You may submit comments by February 28, 2011.

ADDRESSES: You may submit comments, identified by docket number FMCSA-
2004-19608 or RIN 2126-AB26, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, (202) 366-4325.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Overview
III. Legal Basis
IV. Background
    A. History
    B. Process
    C. Description of Industry
V. Agency Goals
    A. Safety--Fatigue
    B. Driver Health
    CVD
    C. Flexibility
VI. Discussion of Proposed Rule
    A. Driving Time
    B. Breaks
    C. Duty Time/Driving Window
    D. Restart and Weekly Limits
    E. Sleeper Berth
    F. Other Issues
VII. Section-by-Section Analysis
VIII. Required Analyses
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    1. A Description of the Reasons why Action by the Agency Is 
Being Considered
    2. A Succinct Statement of the Objectives of, and Legal Basis 
for, the Proposed Rule
    3. A Description of and, where Feasible, an Estimate of the 
Number of Affected Small Entities to which the Proposed Rule Will 
Apply
    4. Discussion of the Impact on Affected Small Entities
    5. A Description of the Projected Reporting, Recordkeeping, and 
Other Compliance Requirements of the Proposed Rule, Including an 
Estimate of the Classes of Small Entities which will be Subject to 
the Requirement and the Type of Professional Skills Necessary for 
the Preparation of the Report or Record
    6. An Identification, to the Extent Practicable, of all Relevant 
Federal Rules which may Duplicate, Overlap, or Conflict with this 
Proposal
    7. A Description of any Significant Alternatives to the Proposed 
Rule which Minimize any Significant Impact on Small Entities
    C. Paperwork Reduction Act
    D. National Environmental Policy Act
    E. Executive Order 13132 (Federalism)
    F. Privacy Impact Assessment
    G. Executive Order 12630 (Taking of Private Property)
    H. Executive Order 12988 (Civil Justice Reform)
    I. Executive Order 13045 (Protection of Children)
    J. Executive Order 13211 (Energy Supply, Distribution, or Use)
    K. Executive Order 12898 (Environmental Justice)
    L. Unfunded Mandate Reform Act

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments, data, and related materials. All comments received 
will be posted without change to http://www.regulations.gov and will 
include any personal information you provide.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2004-19608), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that FMCSA can contact you if there are questions regarding 
your submission. However, see the Privacy Act section below regarding 
availability of this information to the public.
    To submit your comment online, go to http://www.regulations.gov and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Proposed Rules,'' insert ``FMCSA-2004-19608'' in the ``Keyword'' box, 
and click ``Search.'' When the new screen appears, click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them

[[Page 82171]]

in an unbound format, no larger than 8 \1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    All public comments, as well as documents mentioned in this notice, 
are available in the public docket. To view them, go to http://www.regulations.gov and click on the ``read comments'' box in the upper 
right hand side of the screen. Then, in the ``Keyword'' box insert 
``FMCSA-2004-19608'' and click ``Search.'' Next, click the ``Open 
Docket Folder'' in the ``Actions'' column. Finally, in the ``Title'' 
column, click on the document you would like to review. If you do not 
have access to the Internet, you may view the docket online by visiting 
the Docket Management Facility in Room W12-140 on the ground floor of 
the Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

C. Privacy Act

    Anyone may search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review Department of 
Transportation's (DOT) Privacy Act Statement for the Federal Docket 
Management System published in the Federal Register on January 17, 2008 
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

II. Overview

    Goals. The goal of this HOS proposed rule is to improve safety 
while ensuring that the requirements would not have an adverse impact 
on driver health. The proposed rule also would provide drivers with the 
flexibility to obtain rest when they need it and to adjust their 
schedules to account for unanticipated delays. FMCSA has also attempted 
to make the proposed rule easy to understand and readily enforceable.
    Admittedly, design of HOS rules raises conceptual and empirical 
challenges. The impact of such rules on CMV safety is difficult to 
separate from the many other factors that affect heavy-vehicle crashes. 
The 2008 FMCSA final rule on HOS noted that ``FMCSA has consistently 
been cautious about inferring causal relationships between the HOS 
requirements and trends in overall motor carrier safety. The Agency 
believes that the data show no decline in highway safety since the 
implementation of the 2003 rule and its re-adoption in the 2005 rule 
and the 2007 [interim final rule]'' (73 FR 69567, 69572, November 19, 
2008). While that statement remains correct, the total number of 
crashes, though declining, is still unacceptably high. Moreover, the 
source of the decline in crashes is unclear.
    FMCSA believes that the HOS regulations proposed today, coupled 
with the Agency's many other safety initiatives and assisted by the 
actions of an increasingly safety-conscious motor carrier industry, 
would result in a significant improvement in safety. We note as well 
that the proposed rule is intended to protect drivers from the serious 
health problems associated with excessively long work hours, without 
significantly compromising their ability to do their jobs and earn a 
living.
    Summary of the Proposed Rule. The proposed rule would change the 
existing HOS regulations in a number of ways. The required off-duty 
period would remain at a minimum of 10 consecutive hours. Driving time 
between two such periods could either be 10 hours, as it was prior to 
the 2003 rule (68 FR 22455; April 28, 2003), or 11 hours. While the 10-
hour rule is currently FMCSA's currently preferred option, the Agency 
discusses both alternatives in detail below. The driving window would 
remain, on most days, at 14 consecutive hours after coming on duty 
following a break of at least 10 hours; but a driver would be permitted 
to be on duty for only 13 hours of that time as opposed to the current 
14 hours. A driver would also be required to be released from duty at 
the end of the 14-hour period. To provide drivers with the ability to 
rest, if needed, or to respond to unanticipated conditions, twice a 
week, drivers would be allowed to extend the driving window to 16 
hours. Extending the driving window, however, would not increase either 
driving or on-duty time. As a consequence of the 13-hour on-duty limit, 
a driver using the extension would need to take up to 3 hours off duty 
during that duty day. A driver would be required to go off duty at the 
end of the 16-hour driving window.
    To prevent excessive hours of continuous driving, the proposed rule 
would permit drivers to drive only if 7 hours or less have passed since 
the driver's last off-duty or sleeper-berth period of at least 30 
minutes. For example, if a driver began driving immediately after 
coming on duty, he or she could drive until the 7th hour. However, 
because the required breaks would be linked to time on duty, a driver 
who first worked 3 hours at a terminal and then began driving would 
have to take a half-hour (or longer) break no later than the end of the 
4th hour of driving (i.e., the 7th hour on duty). The proposed rule 
would give drivers great flexibility in scheduling their breaks. If 
someone began driving immediately after coming on duty and took an 
early break between hours 2.5 and 3.0, he or she could drive 7 
consecutive hours before reaching the 10-hour limit. If the 11-hour 
driving-time limit was adopted, the early break would have to occur 
between hours 3.5 and 4.0 to allow 7 consecutive hours of driving 
before reaching the end of the 11th hour. Conversely, a driver could 
drive until the 7th hour before taking the break, whether the daily 
limit was 10 or 11 hours. Assuming that truckers do nothing but drive 
(which is unrealistic) and want to minimize their breaks, they could 
take the required half-hour break anywhere between hours 2.5 and 7 of a 
10-hour driving period or between hours 3.5 and 7 of an 11-hour driving 
period. Working beyond the 7th hour without a break is permitted, 
however, as long as the driver does not actually drive a CMV after the 
7th hour. In practice, a driver who took a half-hour break at 6 to 7 
hours after coming on duty would not be required to take a second break 
during the driving window of 14 hours.
    The weekly limits in the current rule (60 hours on duty in 7 days 
or 70 hours on duty in 8 days) would remain unchanged. The 34-hour 
restart allowed under the current rule, which permits drivers to 
restart the 60- or 70-hour ``clock'' by taking a break of at least 34 
consecutive hours off duty, would be retained, but with certain 
limitations. First, any restart would have to include two periods 
between midnight and 6 a.m. Depending on when the restart begins, 34 
consecutive hours off duty could satisfy this requirement. In other 
instances, the restart period would have to be longer to incorporate 
the two nights. The two-night requirement would have no impact on the 
majority of drivers who regularly drive during the day. Drivers who 
regularly drive at night would have to take longer restarts to obtain 
two nights of sleep. Second, a driver would be allowed to begin another 
34-hour off-duty period no sooner than 168 hours (7 days) after the 
beginning of the previous restart.

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Limiting the restart to once in 7 days effectively reduces the number 
of hours a driver could be on duty and drive from an average of about 
82 hours in 7 days under the current rule to an average of 70 hours. 
Third, the driver would have to designate whether a period of 34 hours 
or more off duty was to be considered a restart.
    FMCSA is not proposing any changes to the sleeper-berth rule at 
this time. Drivers using the current rule must take at least 8, but 
less than 10, consecutive hours in the sleeper berth and a shorter 
break of at least 2 hours off duty or in the sleeper berth (in lieu of 
the standard 10 consecutive hours off duty). The shorter of the breaks 
used under the sleeper berth rule is included in the calculation of the 
driving window. The use of the sleeper berth rule, however, would be 
affected by the other changes proposed. The driving window would be 14 
to 16 hours long; duty time would be limited to 13 hours. A driver 
using the 16-hour window could count the shorter period toward the 3 
hours of breaks that the driver would have to take to reach 16 hours; 
the shorter period, therefore, would not reduce the 13 hours of on-duty 
time. When the driver uses the 14-hour window, the shorter break will 
reduce the 13-hour on-duty time by at least 1 hour.
    FMCSA proposes to change the definition of ``on duty'' to allow 
team drivers to log as off duty up to 2 hours spent in the passenger 
seat immediately before or after a period of 8 or more hours in the 
sleeper berth while the other team member is driving. FMCSA is also 
proposing additional language that would exclude time spent resting in 
a non-moving CMV from the definition of ``on duty'' time.
    Finally, FMCSA is proposing to make drivers and motor carriers 
potentially liable for the maximum penalty available if they drive or 
permit someone to drive 3 or more hours over the 10/11-hour driving-
time limit. This provision targets egregious violations of the driving-
time limits.
    The Agency has attempted to structure these requirements to protect 
safety and health while maintaining industry flexibility and minimizing 
the impact on drivers working more reasonable schedules. Because the 
drivers who work very extensive hours are a relatively small minority, 
FMCSA does not anticipate that this rule would have significant adverse 
impact on the industry. Since the drivers who work to the limits of the 
current rule are those most likely to develop fatigue over the course 
of the day and week, a reduction in their driving hours should lead to 
reductions in fatigue-related crashes. Preventing these crashes and 
reducing relative crash risk overall to improve safety is the principal 
goal of the HOS regulations.
    Although the Agency is primarily concerned with highway safety, 
FMCSA anticipates an additional benefit from reducing allowable daily 
and weekly work hours for the drivers with high-intensity schedules. 
Recent research indicates that inadequate sleep is associated with 
increases in mortality. This effect is believed to involve an increase 
in the propensity for workplace (and leisure time) accidents and in 
mortality due to an increase in the incidence of high blood pressure, 
diabetes, cardiovascular disease, and other health problems; some of 
these conditions could disqualify drivers for medical reasons. Since 
increases in hours worked are associated with decreases in hours spent 
sleeping, and truck drivers working high-intensity schedules get 
significantly less than the 7 hours of sleep required for optimal 
mortality, cutting back on such schedules should reduce, to some 
extent, mortality among these drivers. These benefits should be counted 
as outcomes of reductions in total work allowed to drivers.

    Table 1--Summary of 10-Year Costs and Benefits for Proposed Rule
                            [Millions 2008$]
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                                          Option 2   Option 3   Option 4
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7% Discount Rate:
    Costs..............................     $7,246     $3,662    $16,213
    Benefits...........................      9,913      7,562     13,232
    Net Benefits.......................      2,667      3,900    (2,981)
3% Discount Rate:
    Costs..............................      8,748      4,394     19,639
    Benefits...........................     12,040      9,184     16,071
    Net Benefits.......................      3,292      4,789    (3,568)
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III. Legal Basis

    This proposed rule is based on the authority of the Motor Carrier 
Act of 1935 and the Motor Carrier Safety Act of 1984 (1984 Act). The 
Motor Carrier Act of 1935 provides that ``The Secretary of 
Transportation may prescribe requirements for (1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a motor carrier; and, (2) qualifications and maximum 
hours of service of employees of, and standards of equipment of, a 
motor private carrier, when needed to promote safety of operation'' 
(Section 31502(b) of Title 49 of the United States Code (49 U.S.C.)).
    The HOS regulations proposed today concern the ``maximum hours of 
service of employees of * * * a motor carrier'' (49 U.S.C. 31502(b)(1)) 
and the ``maximum hours of service of employees of * * * a motor 
private carrier'' (49 U.S.C. 31502(b)(2)). The adoption and enforcement 
of such rules were specifically authorized by the Motor Carrier Act of 
1935. This proposed rule rests on that authority.
    The 1984 Act provides concurrent authority to regulate drivers, 
motor carriers, and vehicle equipment. It requires the Secretary of 
Transportation to ``prescribe regulations on commercial motor vehicle 
safety. The regulations shall prescribe minimum safety standards for 
commercial motor vehicles.'' Although this authority is very broad, the 
1984 Act also includes specific requirements: ``At a minimum, the 
regulations shall ensure that (1) commercial motor vehicles are 
maintained, equipped, loaded, and operated safely; (2) the 
responsibilities imposed on operators of commercial motor vehicles do 
not impair their ability to operate the vehicles safely; (3) the 
physical condition of operators of commercial motor vehicles is 
adequate to enable them to operate the vehicles safely; and (4) the 
operation of commercial motor vehicles does not have a deleterious 
effect on the physical condition of the operators'' (49 U.S.C. 
31136(a)). The United States Court of Appeals for the District of 
Columbia Circuit (DC Circuit) has said with regard to 49 U.S.C. 
31136(a)(4) that ``the statute

[[Page 82173]]

requires the agency to consider the impact of the rule on `the physical 
condition of the operators,' not simply the impact of driver health on 
commercial motor vehicle safety. * * * It is one thing to consider 
whether an overworked driver is likely to drive less safely and 
therefore cause accidents. Whether overwork and sleep deprivation have 
deleterious effects on the physical health of the driver is quite 
another.'' Public Citizen et al. v. FMCSA, 374 F.3d 1209, 1217 (DC 
Circuit 2004). This proposal would improve both highway safety and the 
health of CMV drivers.
    This proposed rule is also based on the authority of the 1984 Act 
and addresses the specific mandates of 49 U.S.C. 31136(a)(2), (3), and 
(4). Section 31136(a)(1) mainly addresses the mechanical condition of 
CMVs, a subject not included in this rulemaking. To the extent that the 
phrase ``operated safely'' in paragraph (a)(1) encompasses safe 
driving, this proposed rule also addresses that mandate.
    Before prescribing any regulations, FMCSA must also consider their 
``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those 
factors are also discussed in this proposed rule.

IV. Background

A. History

    For drivers of CMVs, HOS have been regulated since December 1937 
when the Interstate Commerce Commission (ICC) promulgated the first 
Federal HOS rules. The rules were revised significantly in 1938 and 
1962. The 1938 revision limited drivers to 10 hours of driving in 24 
hours with at least 8 hours off duty; drivers could be on duty 60 hours 
in 7 days or 70 hours in 8 days. The 1962 revision dropped the 24-hour 
requirement, effectively allowing drivers to drive 10 hours and take 8 
hours off, then drive again. (See the May 2, 2000, notice of proposed 
rulemaking (NPRM) for a detailed history of the provisions (65 FR 
25540)).
    The 2000 NPRM proposed a comprehensive revision of the HOS 
regulations in response to the ICC Termination Act of 1995. The new 
rules were to be science-based; the Agency collected relevant studies 
and completed its own comprehensive Commercial Motor Vehicle Driver 
Fatigue and Alertness Study, a joint undertaking with Canada and the 
trucking industry. FMCSA assembled an expert panel of recognized 
authorities on traffic safety, human factors, and fatigue to review the 
science and evaluate regulatory alternatives. FMCSA conducted eight 
nationwide public hearings on the NPRM and three 2-day public 
roundtable discussions. On April 28, 2003, the Agency promulgated a 
final rule (68 FR 22455).
    The 2003 rule made significant changes in the rules for property-
carrying operations. Driving time was extended from 10 to 11 hours, but 
the driving window was limited to 14 consecutive hours after coming on 
duty (as opposed to the previous 15 cumulative on-duty hours). The 
daily rest period was extended from 8 to 10 hours. The weekly limits 
were unchanged, but drivers were allowed to restart the calculation of 
weekly hours anytime they took an off-duty break of at least 34 
consecutive hours (the 34-hour restart). Drivers using sleeper berths 
were allowed to accumulate the equivalent of 10 consecutive hours off 
in two periods, neither of which could be less than 2 hours. (See the 
2003 final rule for a detailed discussion of the changes.)
    On June 12, 2003, Public Citizen, Citizens for Reliable and Safe 
Highways, and Parents Against Tired Truckers filed a petition to review 
the 2003 HOS rules with the DC Circuit. On July 16, 2004, the DC 
Circuit issued an opinion holding ``that the rule is arbitrary and 
capricious [under the Administrative Procedure Act (APA)] because the 
agency failed to consider the impact of the rules on the health of 
drivers, a factor the agency must consider under its organic statute'' 
and vacated the rule (Public Citizen et al. v. FMCSA, 374 F.3d 1209, at 
1216). Congress then directed that the 2003 regulations would remain in 
effect until the effective date of a new final rule addressing the 
issues raised by the Court or September 30, 2005, whichever occurred 
first.\1\
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    \1\ Section 7(f) of the Surface Transportation Extension Act of 
2004, Part V, Public Law 180-310; 118 Stat. 1144.
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    On August 25, 2005, FMCSA published a final rule that addressed 
driver health issues; it also retained the 11 hours of driving, 14-hour 
driving window, 10 hours off duty, and the 34-hour restart (70 FR 
49978). The rule revised the sleeper-berth provision to require at 
least 8, but less than 10, consecutive hours in the sleeper berth, 
providing drivers with the opportunity to obtain 7 to 8 hours of 
uninterrupted sleep each day. Drivers using the sleeper berth exception 
had to take an additional 2 hours either off duty or in the sleeper 
berth, which is included in the calculation of the 14-hour driving 
window. The 2005 rule also provided an exception for drivers who 
operate within 150 air-miles of their work reporting location and who 
drive CMVs that do not require a commercial driver's license (CDL) to 
operate. To enable these short-haul carriers to meet unusual scheduling 
demands, the driver could use a 16-hour driving window twice a week. 
(See the 2005 final rule for a detailed discussion of the changes and a 
discussion of driver health issues.)
    Public Citizen and others challenged the 2005 rule on several 
grounds, as did the Owner-Operator Independent Drivers Association 
(OOIDA). On July 24, 2007, the DC Circuit rejected OOIDA's arguments, 
which focused on the sleeper-berth provision, but accepted part of 
Public Citizen's arguments. The DC Circuit concluded that FMCSA did not 
satisfy the APA's requirements to explain its reasoning and provide an 
opportunity for notice and comment on portions of the regulatory 
evaluation; the Court, therefore, vacated the 11-hour driving-time and 
34-hour restart provisions (OOIDA v. FMCSA, 494 F.3d 188 (DC Cir. 
2007)).
    FMCSA published an interim final rule (IFR) on December 17, 2007 
(72 FR 71247), to prevent disruption of both enforcement and compliance 
while the Agency responded to the issues identified by the Court. The 
IFR re-promulgated both 11 hours of driving time and the 34-hour 
restart. In response to the Court's findings, the preamble to the IFR 
included a detailed explanation of the Agency's time-on-task 
methodology (72 FR 71252 et seq.). On November 19, 2008, FMCSA 
published the provisions of the IFR as a final rule (73 FR 69567).
    On December 18, 2008, Advocates for Highway and Automotive Safety, 
Public Citizen, the International Brotherhood of Teamsters, and the 
Truck Safety Coalitions (HOS petitioners) petitioned FMCSA to 
reconsider the research and crash data justifying the 11-hour driving 
rule and the 34-hour restart provision. FMCSA denied the petition.\2\ 
On March 9, 2009, the HOS petitioners filed a petition for review of 
the 2008 rule in the DC Circuit and, on August 27, 2009, filed their 
opening brief. However, in October 2009, DOT, FMCSA, and the HOS 
petitioners reached a settlement agreement.
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    \2\ January 16, 2009, docket  FMCSA-2004-19608-3525.1.
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    Pursuant to the agreement, the petition for review is in abeyance 
pending FMCSA's publication of this NPRM. After considering all the 
comments, FMCSA must publish a final rule by July 26, 2011.

[[Page 82174]]

B. Process

    As part of its process for considering revisions to the HOS rule, 
FMCSA sought input and comments from its Motor Carrier Safety Advisory 
Committee (MCSAC) and from the public, including carriers, drivers, 
unions, safety advocacy groups, and others. The latter comments were 
provided at five public listening sessions. In addition, the HOS docket 
has been open and comments filed during this period have been reviewed.
    MCSAC. MCSAC was established by the Secretary of Transportation on 
September 8, 2006, and is charged with providing advice and 
recommendations to the FMCSA Administrator on motor carrier safety 
programs and regulations. In the fall of 2009, FMCSA asked its MCSAC to 
identify ideas and concepts that the Agency should consider in 
developing the HOS regulations. At the time, MCSAC membership was 
comprised of 15 experts from the motor carrier industry, safety 
advocates, and safety enforcement sectors.\3\ In addition, three 
organizations (Public Citizen, the Teamsters, and the Truck Safety 
Coalition) participated in the meetings as guests. MCSAC met in 
December 2009 and February 2010 to discuss the regulations. On February 
2, 2010, they forwarded a report to the Administrator. The full report 
is available in the Docket (FMCSA-2004-19608-3867). The committee's 
principles included the following:
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    \3\ Eight new members were added to the MCSAC on June 8, 2010. 
Representatives of the Teamsters and the Truck Safety Coalition were 
among the groups added to the MCSAC. See http://mcsac.fmcsa.dot.gov/members.htm.
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     The rule should be simple, enforceable, and compliance 
should be measurable.
     FMCSA should consider expert opinion, all available data, 
and feedback from HOS listening sessions.
     FMCSA should consider the appropriateness (implementation 
vs. enforcement) of a one-size-fits-all approach.
     Safety, not profit/productivity, should be considered 
first and foremost.
     A guiding principle should be how driver health relates to 
the safety of the public.
     FMCSA should consider total cost to industry.
    In the short term, MCSAC recommended that FMCSA consider:
     All available valid research on all impacts (e.g., 
health), including new research performed since the 2008 HOS rule. 
Additionally, FMCSA should review studies that were not considered 
under the previous rulemakings (e.g., shift work studies and 
epidemiological research findings that are related to driver health and 
HOS).
     Each incremental hour on duty and its effect on driver 
fatigue, beginning with the first hour. Determine whether there is a 
fatigue breakpoint (a point in time after which performance declines).
     Driving schedules in light of circadian rhythm research 
and crash rates by time of day, while balancing the effects on the 
general public.
     Industry safety performance data under the current rule 
(e.g., crash data, fatalities, injuries, compliance-related data, 
exposure data).
     Existing data on the total cost to society of all fatigue-
CMV crashes (not just fatal or injury crashes) (e.g., economic 
paralysis of section of city/State to clear a CMV crash; medical care 
for those seriously injured without insurance; lost productivity; fuel 
costs; air pollution; costs to families of persons injured).
     Current practices, research, and technologies within other 
transportation modes and industries regarding fatigue. Consider 
international approaches to HOS, including those of Canada, the 
European Union (EU), Australia, and Japan. For example, EU requires 
electronic logging devices with well-educated enforcement. Also, in 
Canada, drivers may ``borrow'' driving time from the following day 
while meeting a weekly average.
     Allowing more flexibility with respect to rest breaks and 
driving time, including, but not limited to, sleeper berth rest breaks.
    Listening sessions. To solicit further information, FMCSA held five 
public listening sessions in January and March 2009, in Washington, DC, 
Dallas, TX, Los Angeles, CA, Davenport, IA, and Louisville, KY. The 
Davenport session was held adjacent to a large truck stop and the 
Louisville session was held at the Mid-America Trucking Show to 
encourage participation by drivers. The sessions were webcast, and 
comments were also submitted via toll-free telephone lines. 
Approximately 300 individuals and organizations spoke at the sessions. 
The majority of the speakers were drivers and carriers or associations 
representing them; most of the drivers who spoke were in for-hire, 
long-haul, truck-load (TL) operations.
    In general, the carriers, drivers, and their associations supported 
the existing rule with two exceptions. They supported maintaining 11 
hours of driving time and the 34-hour restart. Carriers and their 
associations stated that the 11 driving hours provided flexibility and 
that some carriers had redesigned routes and schedules to use the full 
11 hours; they believed that changing to a shorter period would be 
costly. Drivers indicated that they use the restart frequently; when 
away from home, they may take no more than 34 hours off; at home, the 
restart is usually longer. Some drivers argued for a shorter restart 
(24 hours or less).
    Many, but not all, drivers objected to the 14-hour consecutive 
period, saying that it forced them to drive when they were tired 
because breaks were included in the calculation of the driving window. 
They also said that the rule made it difficult to avoid congestion 
because they had to drive during rush hours; under the pre-2003 rule, 
they could have pulled off the road and waited until congestion eased 
without reducing their available duty hours. Drivers sought more 
flexibility. Specifically, they asked FMCSA to make the 14-hour period 
cumulative (i.e., off-duty time would not be included in calculation of 
the driving window) or allow the driving window to be extended to 16 or 
18 hours. A few drivers supported the current 14-hour rule, stating 
that it prevented carriers and brokers from forcing them to log waiting 
time at shippers and receivers as off duty so they could work longer 
days.
    Many drivers and carriers objected to the existing sleeper berth 
rule that allows 10 hours off duty to be taken in two periods, one of 8 
to 10 hours and the other of 2 or more hours, with the shorter period 
included in the calculation of the driving window. Team drivers in 
particular wanted the flexibility to be able to divide their 8-hour 
sleeper berth time into shorter periods (e.g., 4 + 4 hours, 5 + 3 
hours, etc.). Drivers who spoke on this issue asked that the shorter 
period not be included in the calculation of the duty period.
    Representatives of the safety advocacy groups and the Teamsters 
generally supported the 14-consecutive-hour provision, but opposed 11 
hours of driving and the 34-hour restart because these provisions allow 
long days of continuous work and work weeks up to 84 hours in 7 days. 
They urged FMCSA to consider the body of research on the effects of 
long hours on performance and health and to establish a 24-hour 
circadian schedule.
    Drivers also raised several issues that affect them, but are 
outside of FMCSA's statutory authority. The number of available areas 
where truck drivers can safely stop and rest, although never adequate, 
has been reduced in the last few years as some States have closed rest 
areas for budgetary reasons. Drivers stated that the lack of safe rest 
areas

[[Page 82175]]

made it difficult for them to find a place to take their 10-hour off-
duty period. A number of drivers also stated that the current methods 
of paying many drivers (by the mile or load) provide shippers with no 
incentive to load or unload a truck promptly. Independent owner-
operators and smaller carriers complained that they could spend 30 to 
40 hours of unpaid time a week waiting for shippers. Finally, drivers 
stated that anti-idling laws adopted by some State and local 
governments to reduce pollution can make it difficult to sleep because 
they cannot run their air conditioning or heating. FMCSA acknowledges 
these complaints; but, as explained in previous HOS rulemakings, the 
Agency does not have the statutory authority to address these issues.

C. Description of Industry

    The trucking industry comprises hundreds of thousands of carriers 
and millions of drivers moving goods locally or in long hauls between 
cities. The industry is diverse, and different sectors have different 
operational characteristics. The industry can be divided in a number of 
ways: Private versus for-hire; long-haul versus short-haul; TL versus 
less than truckload (LTL). Private carriers are not trucking firms; 
they are manufacturers, distributors, or retailers that move their own 
goods among factories, distribution centers (warehouses), and retail 
outlets. Their drivers generally operate on a regular basis over routes 
set by the locations of their own facilities and those of their 
customers. For-hire carriers are in the transport business; they move 
goods for their customers. An LTL carrier usually picks up and delivers 
small shipments in a local area served by one of its terminals. 
Shipments are consolidated into loads for large trucks that make long 
runs to the firm's terminals in other areas. Moves between terminals 
are almost always overnight on regular routes. The goods moved 
overnight are delivered the next day by the local drivers at the 
destination terminal. The TL carriers typically pick up a full load 
from a shipper and move it directly to the receiver of the goods. Some 
of their business is regular and predictable under contracts or less-
formal agreements. Much of their business is almost random in nature, 
movements from one place to another being sold and booked on a daily 
basis. Drivers in random service may not know where they will be at the 
end of each day. Their runs are often made by day, but many also 
require night-time driving. Short-haul drivers operate within a local 
area; most are not exclusively night-time drivers. Their routes may 
vary day by day, but they are always in the same general area. They may 
spend a good part of each day loading and unloading at multiple 
locations. Although there are exceptions, most long-haul drivers do not 
load or unload the cargo.
    The various segments of the industry are affected differently by 
HOS provisions. Many short-haul drivers, including unionized drivers 
who mostly engage in local or LTL operations, operate well within all 
of the provisions of the rule. LTL firms and many private carriers have 
set their routes and terminals to stay within the HOS rule. Those who 
are most affected are long-haul TL carriers. According to the 2007 
Commodity Flow Survey, more than 95 percent of the tonnage moved by 
private carriers is transported less than 250 miles and less than 1 
percent is carried more than 500 miles; 500 miles is about the maximum 
for a 1-day trip. About 12 percent of the tonnage moved by for-hire 
carriers is transported more than 500 miles; only 4 percent is 
transported 1,000 miles or more. Overall, 93 percent of the tonnage 
moved solely by truck is transported in trips of 500 miles or less.\4\ 
This percentage may be rising because a number of the largest TL 
carriers are shifting to intermodal operations, putting cargo on 
intermodal trains for moves that require more than a day and making 
all-truck moves only in regional operations.
---------------------------------------------------------------------------

    \4\ Bureau of Transportation Statistics (RITA, DOT) and U.S. 
Census Bureau, ``2007 Commodity Flow Survey,'' April 2010. FMCSA-
2004-19608-4024.
---------------------------------------------------------------------------

V. Agency Goals

    FMCSA set three primary goals as it developed this proposed rule. 
First, the rule provisions should improve safety by reducing driver 
fatigue in a cost-effective, cost-justified manner. Second, the rule 
should ensure that the requirements do not have an adverse effect on 
driver health. Third, the rule should provide drivers with some 
flexibility in their schedules to encourage them to take rest breaks 
when they need them. This section discusses the general rationale for 
these goals.

A. Safety--Fatigue

    A fundamental purpose of the HOS regulations is to reduce crash 
risk in order to improve safety, and as elaborated at length, the 
Agency has concluded that the proposed rules will have significant 
safety benefits. Ideally, the Agency would have data to measure crash 
risk along all of the dimensions for which regulations are proposed. 
Because the Agency has been not been able to gather such data, it has 
based its analysis, in significant part, on share of crashes that are 
fatigue-coded. The Agency recognizes that using share of crashes that 
are fatigue-coded could have two possible problems:

    a. Accident inspectors may be more likely to code crashes as 
fatigue-related if the driver has been on the road longer.
    b. The share of crashes that are coded as fatigue-related may 
conceivably increase because the share of crashes caused by other 
factors goes down. There could be no increase in the risk of a 
fatigue-related crash (the central question), but an increase in the 
share of fatigue-related crashes.

    Nonetheless, while the data are not as complete as FMCSA would like 
them to be, the Agency aimed to limit, to the extent possible, the 
likelihood that drivers will be fatigued, either when they come on duty 
or during or at the end of a working period. Fatigue affects 
performance well before a person becomes sleepy. As a person becomes 
fatigued, reaction times slow, concentration becomes more erratic, and 
decision-making is slowed; all of which affect the ability of a driver 
to respond quickly to a hazardous driving situation. Eventually fatigue 
reaches a point where the person has trouble staying awake and may be 
unable to avoid falling asleep.
    The fatigue that this rule addresses is primarily that caused by 
lack of adequate sleep (as opposed to physical fatigue caused by 
strenuous activity). A regulation cannot compel a driver to sleep when 
off duty. FMCSA can only ensure that the hours that a driver is allowed 
to work in a day and a week do not interfere with the opportunity to 
obtain adequate sleep if the driver works the maximum hours 
permissible. The studies of restricted sleep show that over days of 
mild, moderate, or severe sleep restriction (1) alertness and 
performance degrade as cumulative sleep debt rises; (2) even mild sleep 
restriction (loss of less than 1 hour of sleep a day) degrades 
performance over days. Seven to 8 hours of consolidated night-time 
sleep in each 24 hours appear to sustain performance over multiple 
days, if not longer, for most people.\5\
---------------------------------------------------------------------------

    \5\ Belenky, G., Wesensten, N.J., Thorne, D.R., Thomas, M.L., 
Sing, H.C., Redmond, D.P., Russo, M.B. & Balkin, T.J., ``Patterns of 
Performance Degradation and Restoration During Sleep Restriction and 
Subsequent Recovery: A Sleep Dose-Response Study,'' Journal of Sleep 
Research, Vol. 12, No. 1, March 2003, pp. 1-12. FMCSA-2004-19608-
3959.
    Van Dongen, H.P., Maislin, G., Mullington, J.M. & Dinges, D.F., 
``The Cumulative Cost of Additional Wakefulness: Dose-Response 
Effects on Neurobehavioral Functions and Sleep Physiology from 
Chronic Sleep Restriction and Total Sleep Deprivation,'' Sleep, Vol. 
26, No. 2, March 15, 2003, pp. 117-126. FMCSA-2004-19608-3993.

---------------------------------------------------------------------------

[[Page 82176]]

    Sleep deprivation is classified as acute or chronic. A person who 
gets little or no sleep for 24 hours will suffer from acute sleep loss; 
that person's cognitive ability at the end of the period of being awake 
for 24 hours is significantly impaired. Research indicates that people 
can recover completely from acute sleep loss with 1 or 2 nights of 
adequate sleep (7-8 hours). A person who gets an hour or two less sleep 
per night than needed develops chronic sleep deprivation. Over 5 days, 
the person accumulates 5 to 10 hours of sleep debt. Sleep research 
indicates that people who are chronically sleep deprived need at least 
2 nights of adequate sleep to recover. Depending on the level of sleep 
deprivation, individuals may stabilize at a lower level of performance 
and believe they have recovered, but their performance will deteriorate 
more rapidly across waking hours.\6\ Belenky, G., et al. (2003) 
concluded that this stabilization makes it difficult to recover rapidly 
to the same level of performance that existed prior to the sleep 
deprivation even when a person is able to obtain adequate sleep. Van 
Dongen, H.P., et al. (2003) found that chronic sleep restriction to 6 
hours or less produced cognitive performance deficits equivalent to up 
to 2 nights of total sleep deprivation.
---------------------------------------------------------------------------

    \6\ Cohen, D. A., Wang, W., Wyatt, J. K., Kronauer, R. E., Dijk, 
D.J., Czeisler, C. A. & Klerman, E. B., ``Uncovering Residual 
Effects of Chronic Sleep Loss on Human Performance,'' Science 
Translational Medicine, Vol. 2, Issue 14ra3, January 13, 2010. 
FMCSA-2004-19608-4021 and 4021.1.
     Balkin, T.J., Rupp, T., Picchioni, D. & Wesensten, N.J., 
``Sleep Loss and Sleepiness: Current Issues,'' CHEST, Vol. 134, No. 
3, September 2008, pp. 653-660. FMCSA-2004-19608-3956. Belenky, G., 
et al. (2003).
---------------------------------------------------------------------------

    The central issue that FMCSA must consider in developing HOS 
regulations involves the relative crash risk associated with each hour 
of driving. It would be valuable, for example, to know the crash risk 
in the ninth, tenth, and eleventh hours, and to compare that risk to 
the risk in other hours. However, as noted above, FMCSA needs 
additional data to estimate relative crash risk in each hour of driving 
and hence has decided to consider, as a proxy, how many hours drivers 
can consistently work over a period of time without becoming sleep-
deprived. There are two approaches to answering that question. The 
Agency can examine data on fatigue-related crashes, and it can review 
research that measures the amount of sleep that drivers are getting 
under the existing rule and compare that to the science on sleep 
deprivation.
    As FMCSA discussed at length in previous HOS rulemakings, the 
percentage of CMV crashes associated with fatigue is not known. 
Estimates range from the 1.5 percent to 2.1 percent found in the Trucks 
in Fatal Accident (TIFA) data \7\ to 13 percent in the Large Truck 
Crash Causation Study (LTCCS) \8\ to even higher percentages mentioned 
in other studies.\9\ Because fatigue is difficult to determine after 
the fact, it is often not coded in crash reports, while, in some cases, 
it may be coded even when the driver was not fatigued because the 
driver's log showed long hours at work and investigators assumed 
fatigue. It is generally believed, however, that fatigue-coding 
understates the level of fatigue-related crashes. In 2008, large trucks 
were involved in approximately 365,000 recorded crashes, 3,700 of which 
involved fatalities, 64,000 involved injuries only, and 297,000 were 
property-damage only.\10\ Even if fatigue is a contributing factor in 
only a small percentage of crashes, it still has a profound safety 
impact.
---------------------------------------------------------------------------

    \7\ Jarossi, L., Matteson, A. & Woodrooffe, J., ``Trucks 
Involved in Fatal Accidents Factbook 2007,'' 2010. FMCSA-2004-19608-
4007.
    \8\ FMCSA, ``Large Truck Crash Causation Study Summary Tables,'' 
2007. Retrieved June 8, 2010, from: http://ai.fmcsa.dot.gov/ltccs/data/documents/SummaryTables.pdf. FMCSA-2004-19608-3971.
    \9\ National Transportation Safety Board (NTSB) has studied 
single-vehicle crashes and crashes in which the truck driver was 
killed and estimated that 31 percent of fatal-to-driver accidents 
may be fatigue-related.
    \10\ FMCSA, ``Large Truck and Bus Crash Facts 2008,'' March 
2010. Retrieved June 8, 2010, from: http://www.fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008LargeTruckandBusCrashFacts.aspx.
---------------------------------------------------------------------------

    During the 2010 listening sessions, a number of the carriers and 
their associations argued that the sharp decline in fatal crashes in 
the past several years is proof that the long hours that may be worked 
under the existing rule have not reduced safety and may have improved 
it. The crash rates for CMVs have been declining since 1979; the rates 
went up slightly in 2004 and 2005 before declining again. Neither the 
slight increase after the adoption of the existing rule nor the decline 
thereafter can be definitely associated with the HOS rule. Crashes have 
multiple causes and the consequences of a crash are affected by many 
factors--including speed, size of vehicles involved, roadway 
conditions, and improved safety features in vehicles.
    The percentage of fatigue-coded crashes in TIFA fluctuated between 
1.5 percent and 2.1 percent between 1998 and 2007. The number of CMV 
driver fatalities rose 14 percent between 2003 and 2007 (heavy truck 
vehicle miles traveled rose only 4 percent), but declined sharply in 
2008. (Driver fatalities occur more often in single vehicle crashes, 
which are more likely to be associated with fatigue.) The decline in 
2008, which the industry noted, also occurred in passenger-vehicle-only 
crashes. In general, crashes decline in recessions, as they did in 
1982-83, 1991-92, and 2001-02. The recent decline in crashes is 
welcome; but it cannot be attributed to any single factor affecting 
crashes, including implementation of the 2003 rule.
    Because the crash data understate fatigue and because crashes often 
have multiple causes, which make it difficult to determine the role of 
fatigue even when it is suspected, FMCSA has to look at other research 
to determine whether the rules require drivers to take enough off-duty 
time to allow them to obtain sufficient sleep to avoid being fatigued. 
As noted above, sleep research indicates that humans need between 7 and 
8 hours a night to avoid sleep deprivation and accumulating sleep debt. 
There are individual variations in sleep needs, but the Agency must 
base its assessment of the regulation on the average driver, not the 
outliers who need considerably less or more sleep to avoid fatigue. In 
the Virginia Tech Transportation Institute (VTTI) naturalistic driving 
study of CMV drivers operating under the 2003 rule, measured sleep 
averaged 6.15 to 6.28 hours (the average includes both work days and 
days off); the average on work days was 5.6 hours.\11\ These drivers 
drove at night, which would have reduced their sleep, but they were not 
working full 14-hour days (less than half of the work shifts identified 
included driving in the 10th hour; a third did not include driving 
beyond 8 hours).\12\
---------------------------------------------------------------------------

    \11\ The 6.15 hour average was derived from all days on which 
data were collected (excluding vacations); the 6.28 hour average was 
based on only weeks in which there was data for all 7 days.
    \12\ Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L. & 
Dingus, T.A., ``The Sleep of Commercial Vehicle Drivers Under the 
2003 Hours-of-Service Regulations,'' Accident, Analysis and 
Prevention, Vol. 39, No. 6, November 2007, pp. 1140-1145. FMCSA-
2004-19608-3977.
---------------------------------------------------------------------------

    Two other surveys covered drivers after the implementation of the 
2003 rule. Both asked drivers about the amount of sleep they obtain on 
working days. Research indicates that self-reports of sleep 
overestimate sleep by 20 to 60 minutes, particularly for sleep times 
below 7 hours.\13\ Nonetheless the

[[Page 82177]]

results are consistent with the findings of other research. The Truck 
Driver Fatigue Management Survey conducted for FMCSA collected data in 
2005 from almost 2,300 unionized LTL drivers.\14\ About 60 percent of 
the respondents drove at night; most respondents drove routes that 
required fewer than 10 hours of driving and returned home daily. The 
survey found similar levels of sleep (average 6.23 reported hours of 
sleep prior to starting a run). The drivers reported an average 6.94 
hours of sleep in 24 hours on working days, which means that drivers 
estimated they were getting about 42 minutes of additional sleep during 
the working day.
---------------------------------------------------------------------------

    \13\ Lauderdale, D. S., Knutson, K. L., Yan, L.L., Liu, K. & 
Rathouz, P.J., ``Sleep Duration: How Well Do Self-Reports Reflect 
Objective Measures? The CARDIA Sleep Study,'' Epidemiology, Vol. 19, 
No. 6, November 2008, pp. 838-845. FMCSA-2004-19608-4011.
    \14\ Dinges, D.F. & Maislin, G., ``Truck Driver Fatigue 
Management Survey,'' May 2006. FMCSA-2004-19608-3968.
---------------------------------------------------------------------------

    The Bureau of Labor Statistics' (BLS) American Time Use Survey 
(ATUS) has participants complete a daily log of time spent on various 
activities for the same day of the week for 60 weeks. For example, a 
participant will record time spent working, eating, exercising, 
watching television, and checking e-mail every Monday for 60 weeks.\15\ 
A National Institute for Occupational Safety and Health (NIOSH) 
analysis of ATUS data on truck drivers from the 2003 to 2006 surveys 
found that while drivers reported an extra hour of sleep in 2004 
compared to 2003, the amount of sleep reported had declined to close to 
the 2003 level by 2006 and that sleep on working weekend days also 
declined. The drivers who participated in the survey appear to be 
mostly local drivers.\16\ The decline in sleep as work hours increase 
is consistent with previous research on CMV drivers that has showed 
sleep time is a function of the amount of off duty time available, 
i.e., as off duty time increases so does average nightly sleep 
time.\17\ Table 2 presents the reported sleep of drivers in the 2008 
ATUS by hours worked.\18\
---------------------------------------------------------------------------

    \15\ Bureau of Labor Statistics, ``American Time Use Survey, 
Census Code 9130, Drivers/Sales Workers and Truck Drivers.'' 
Accessed August 18, 2010 from: http://www.bls.gov/tus/. FMCSA-2004-
19608-4023.
    \16\ Chen, G.X., Amandus, H. E. & Cezar, C., ``Do the Revised 
Hours of Service Regulations Change Truck Driver Work and Sleep 
Time?'' Chart from the 137th APHA Annual Meeting, November 7-11, 
2009. FMCSA-2004-19608-3541.
    \17\ Balkin, T., Thorne, D., Sing, H., Thomas, M., Redmond, D., 
Williams, J., Hall, S. & Belenky, G., ``Effects of Sleep Schedules 
on Commercial Vehicle Driver Performance,'' 2000. FMCSA-2004-19608-
2007.
    \18\ Data extracted from the Bureau of Labor Statistics, 
``American Time Use Survey, Census Code 9130, Drivers/Sales Workers 
and Truck Drivers,'' 2008. FMCSA-2004-19608-4023.

             Table 2--Hours Slept by Hours Worked--2008 ATUS
------------------------------------------------------------------------
                                             Number of    Driver average
              Hours worked                    driver        hours slept
                                            respondents       per day
------------------------------------------------------------------------
6.......................................              67            8.17
7.......................................              61            7.85
8.......................................              48            7.70
9.......................................              40            7.53
10......................................              32            7.33
11......................................              18            7.34
12......................................              10            6.56
------------------------------------------------------------------------

    Although the sleep measured by VTTI, which provides the most 
reliable data on sleep under the current rule, is better than many 
drivers obtained under the pre-2003 rule, the weekly average (with 2 
nights off) of slightly more than 6 hours a night is not enough sleep. 
The Truck Driver Fatigue Management Survey indicated that fatigue 
continues to be an issue for a substantial percentage of drivers. About 
38 percent of the drivers said they sometimes and 6.7 percent said they 
often had trouble staying awake while driving. About 13 percent 
reported that they often or sometimes fell asleep while driving; 47.6 
percent said they had fallen asleep while driving in the previous year. 
Although only 23.4 percent said they often or sometimes felt fatigued 
while driving, 65 percent reported that they often or sometimes felt 
drowsy while driving. A third of the drivers reported that they became 
fatigued on a half or more of their trips. The factor that most drivers 
stated contributed to fatigue while driving was the amount of sleep 
before the trip; weather and hours of driving were the next most 
frequently cited factors.
    Drivers at the listening sessions frequently stated that they know 
when they are tired and, therefore, are the best judges of when they 
need rest and how much. Research, however, indicates that people are 
not good at assessing their own level of fatigue. In sleep research on 
CMV drivers, self-assessments of fatigue and sleepiness show little if 
any relationship to measured performance and sleepiness.\19\ People who 
are chronically fatigued do not recognize performance impairment; some 
do not even recognize sleepiness.\20\ Drivers appear to equate 
tiredness with being sleepy, but performance is impaired well before a 
driver becomes sleepy. Some drivers at the listening sessions noted 
that they needed naps in the middle of their working day even though 
they had a full 10-hour off-duty period prior to starting, which 
indicates that they are not obtaining adequate sleep during the long 
off-duty period. The importance of adequate sleep was shown in the VTTI 
study, which found that in the 24 hours before a critical incident 
(i.e., crashes, near crashes, and crash-relevant conflicts such as 
unintended lane deviations), the average sleep was only 5.2 hours, 
about 0.4 hours less than an average working day. FMCSA believes that 
fatigue continues to be a problem for CMV drivers working the longest 
hours. The 2003 rule, however, does not appear to have decreased the 
daily hours worked, which may partly explain why drivers continue to 
obtain inadequate sleep. The NIOSH analysis of ATUS data on truck 
drivers, discussed above, found an increase in drivers working longer 
hours since the 2003 rule became effective. FMCSA requests comments on 
additional studies the Agency should consider in developing the final 
HOS rules.
---------------------------------------------------------------------------

    \19\ Balkin, T.J., et al. (2008); Van Dongen, H.P., et al. 
(2003).
    \20\ Balkin, T.J., et al. (2008); Van Dongen, H.P., et al. 
(2003).
---------------------------------------------------------------------------

    Ideally, if available, the Agency would use post-2003 data to 
provide a before and after analysis of the 2003 change from a 10- to an 
11- hour limit. It might compare States with different hours limits. 
Under this approach, the Agency could use the probability of a crash in 
each hour of driving, not the proportion of crashes that are fatigue-
related.

B. Driver Health

    Adverse effects on driver health must be carefully considered in 
the formulation of HOS regulations. Driving a CMV, particularly in 
regional and long-haul operations, involves both long hours of work and 
long hours of continuous sitting. A growing body of research across 
industries (described in greater detail in the regulatory impact 
analysis (RIA) available in the docket) indicates that long hours of 
work are linked to sleep loss, which in turn is linked to obesity, 
cardiovascular disease (CVD), diabetes, and a variety of other health 
impacts.\21\ Long hours are also independently associated with 
obesity.\22\ There is no simple linear relationship between the 
``driver's life'' of long hours, protracted sitting, and moderate-to-
severe sleep deprivation and one or more health outcomes.

[[Page 82178]]

Rather this relationship must be viewed as a network of mutually 
reinforcing effects that result in varying levels of risk for 
particular outcomes such as CVD. Table 3 reflects current scientific 
thinking on how this network of relationships acts on health:
---------------------------------------------------------------------------

    \21\ Knutson, K.L., Spiegel, K., Penev, P. & Van Cauter, E., 
``The Metabolic Consequences of Sleep Deprivation,'' Sleep Medicine 
Review, Vol. 11, No. 3, June 2007, pp.163-178. FMCSA-2004-19608-
4010.
    \22\ Di Milia, L. & Mummery, K., ``The Association Between Job 
Related Factors, Short Sleep and Obesity,'' Industrial Health, Vol. 
47, 2009, pp. 363-368. FMCSA-2004-19608-3967.

              Table 3: Health Habit and Risk Relationships
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Long hours............................  [rarr]  Insufficient sleep.
                                        [rarr]  Obesity.
                                        [rarr]  CVD.
------------------------------------------------------------------------
Insufficient sleep....................  [rarr]  Obesity.
                                        [rarr]  High blood pressure.
                                        [rarr]  Diabetes.
------------------------------------------------------------------------
Sedentary pattern.....................  [rarr]  Obesity.
                                        [rarr]  Metabolism.
                                        [rarr]  Increased risk of
                                                 mortality.
------------------------------------------------------------------------
Obesity...............................  [rarr]  Obstructive sleep apnea.
                                        [rarr]  High blood pressure.
                                        [rarr]  CVD.
                                        [rarr]  Stroke.
                                        [rarr]  Diabetes.
                                        [rarr]  Arthritis.
                                        [rarr]  Other disease.
------------------------------------------------------------------------

    The RIA includes a detailed discussion of research related to sleep 
loss, health effects related to sleep loss, and particularly the 
biochemical mechanisms that link sleep loss with obesity, diabetes, and 
CVD. It is important to note that the links between sleep loss and many 
of the health effects are not simply correlations; in many cases, 
scientists have been able to identify the biochemical changes 
associated with sleep deprivation that produce the health effects.\23\
---------------------------------------------------------------------------

    \23\ Banks, S. & Dinges, D. F., ``Behavioral and Physiological 
Consequences of Sleep Restriction,'' Journal of Clinical Sleep 
Medicine, Vol. 3, No. 5, August 15, 2007, pp. 519-528. FMCSA-2004-
19608-3957.
---------------------------------------------------------------------------

    Although sleep loss, long hours, and sedentary work are not the 
only factors contributing to obesity, the level of obesity among CMV 
drivers is dramatically higher than among U.S. adult male workers as a 
whole--67 percent higher for all obesity (about 30 percent of all adult 
male workers \24\ are obese versus 50 \25\-55 percent of CMV drivers 
\26\), and about 3 times greater for body mass indices (BMIs) >40 (4.2 
percent of all adult male workers versus 12 percent of CMV 
drivers).\27\ As discussed in detail in the RIA, chronic sleep loss is 
associated with increased mortality. The increased mortality rates 
associated with obesity are much higher. Hauner, H. (2009) cites a 
study, published in 2009, on BMI and cause-specific mortality in 
900,000 adults that ``showed an average loss of 2 to 4 years of life 
with a BMI between 30 and 34.9; and a BMI between 40 and 45 shortened 
life by an average of 8 to 10 years.'' \28\ Finkelstein, E.A., et al. 
(2010) did not find significant impacts below a BMI of 35, but found 
that BMIs of 35 to < 40 reduced life span for whites by 4 to 5 years; 
BMIs of 40 and above reduced life spans by 8 to 10 years.\29\ Beyond 
mortality effects, the health conditions that result from sleep 
deprivation and sedentary work are associated with higher health care 
costs and the risk that drivers who develop the conditions may fail to 
meet the medical standards for driving a CMV.
---------------------------------------------------------------------------

    \24\ Flegal, K.M., Carroll, M.D., Ogden, C.L. & Johnson, C.L., 
``Prevalence and Trends in Obesity Among U.S. Adults, 1999-2008,'' 
Journal of the American Medical Association, Vol. 303, No. 3, 2010, 
pp. 235-241. FMCSA-2004-19608-3970.
    \25\ RoadReady data provided to FMCSA.
    \26\ Martin, B.C., Church, T.S., Bonnell, R., Ben-Joseph, R. & 
Borgstadt, T., ``The Impact of Overweight and Obesity on the Direct 
Medical Costs of Truck Drivers,'' Journal of Occupational and 
Environmental Medicine, Vol. 51, No. 2, February 2009, pp. 180-184. 
FMCSA-2004-19608-4004.
    \27\ BMI is a measure of body fat based on height and weight. 
Normal weight is considered a BMI of 18.5 to 24.9. BMI between 25 
and 29.9 is considered overweight. BMIs above 30 are considered 
obese.
    \28\ Hauner, H., ``Overweight--Not Such a Big Problem,'' 
Deutsches [Auml]rzteblatt International, Vol. 106, No. 40, 2009, pp. 
639-640. FMCSA-2004-19608-3979.
    \29\ Finkelstein, E.A., Brown, D.S., Wrage, L.A., Allaire, B. T. 
& Hoerger, T.J., ``Individual and Aggregate Years-of-Life-Lost 
Associated with Overweight and Obesity,'' Obesity, Vol. 18, No. 2, 
February 2010, pp. 333-339. FMCSA-2004-19608-4006.
---------------------------------------------------------------------------

    In the 2005 final rule, FMCSA discussed in detail other potential 
factors associated with health effects, including exposure to 
particulate matter in diesel fumes, vibration, noise, etc.\30\ For all 
of these, it was difficult to develop a dose-response relationship that 
relates specific hours of exposure to particular health impacts. For 
diesel exposure, there is the confounding factor that drivers may be 
less exposed when driving than when stopped at truck stops or 
terminals. FMCSA supported research conducted by the University of 
Tennessee to examine factors that are suspected to influence health and 
performance of CMV drivers--noise, vibration, and cabin air quality of 
heavy-duty diesel vehicles. These variables were measured both while 
vehicles were driven and while they were parked with the engine idling. 
The resulting data will serve as a baseline from which similar future 
studies can determine if new truck designs have changed the existing 
state of these conditions for drivers. Twenty-seven trucks (model years 
2006-2008) from four manufacturers were tested. Overall, in-cab noise 
levels were found to be below the 8-hour standard limits established by 
the Occupational Safety and Health Administration and FMCSA. Average 
vibrations from the seats were generally found to be below 
International Standards Organization-established (but non-regulatory) 
standard exposures for an 8-hour driving day. Air quality was 
determined by measuring in-cab concentrations of carbon monoxide, 
nitrogen oxides and particulate matter less than 2.5 microns 
aerodynamic diameter. The results indicated that trucks have a tendency 
to self-pollute the cabs during extended periods parked with the engine 
idling; on-road concentrations were several orders of magnitude lower. 
Carbon monoxide concentrations were well below standard permissible 
exposure levels. During several parked-idling scenarios, particulate 
matter concentrations exceeded air quality standards for 24-hour and 
annual averages.\31\
---------------------------------------------------------------------------

    \30\ 70 FR 49983, et seq.; August 25, 2005.
    \31\ Fu, J. S., Calcagno, J. & Davis, W.T., ``Improving Heavy-
Duty Diesel Truck Ergonomics to Reduce Fatigue and Improve Driver 
Health and Performance,'' Report  FMCSA-RRR-10-010.
---------------------------------------------------------------------------

    FMCSA has not changed the conclusions it drew in 2005 on health 
impacts regarding noise, vibration, and air quality. FMCSA has not 
found any other research that changes the conclusions regarding these 
health impacts. However, FMCSA emphasizes that it is important to study 
the chronic conditions of truck drivers. We therefore seek information 
from the public on conditions that truck drivers face.

C. Flexibility

    As discussed above, drivers at the public listening sessions asked 
FMCSA to provide some flexibility in the rules so that they could take 
breaks when they need rest or encounter unexpected delays. FMCSA agrees 
that drivers should be encouraged to take rest when they need it and 
has included provisions to incorporate flexibility into schedules. In 
developing the proposed rule, however, FMCSA was aware that the 
flexibility that some drivers were seeking, if unconstrained, would 
simply allow them or their employers to build into their schedules the 
extended hours that the 2003 rule was intended to curb. FMCSA, 
therefore, strove to balance flexibility with the need to limit hours 
of work.

[[Page 82179]]

VI. Discussion of Proposed Rule

A. Driving Time

    For the reasons explained below, while FMCSA views the 10-hour 
driving limit as the currently preferred option, FMCSA understands that 
available data are susceptible to more than one interpretation and, 
consequently, is considering both a 10-hour driving limit and an 11-
hour driving limit within one duty day. Commenters are therefore 
encouraged to submit data or studies that would allow FMCSA to 
calculate more effectively the difference, if any, in crash risk 
between a 10- and an 11-hour driving limit. Such a calculation would be 
especially important in developing benefits estimates.
    FMCSA seeks information on the increased probability of a fatigue-
related crash during the 11th hour; to obtain such information, FMCSA 
seeks information on the percentage of total number of hours driven 
after the 10th hour. With respect to cost estimates, FMCSA seeks 
information regarding the impact of eliminating the 11th hour of 
driving on logistics, location centers, distribution centers, just in 
time inventories, competitiveness with global markets, and delivery of 
perishable goods. With respect to benefits and costs, FMCSA seeks 
information with respect to any other process/logistics aspects of 
driving hours not captured in safety, productivity of drivers, and 
driver health.
    The motor carrier industry operated under a 10-hour driving limit 
for decades prior to the 2003 rule. FMCSA acknowledged in past 
rulemakings that the risk associated with driving increases with the 
number of hours driven. Data from the LTCCS and TIFA show that the 
prevalence of fatigue-related crashes increases with hours driven, most 
notably between the 10th and 11th driving hours. LTCCS also found the 
probability of having a fatigue-coded crash increased with hours worked 
and awake. Any person driving 11 hours rather than 10 is likely to have 
been working for a longer period.
    The approach to estimating the effects of long driving hours on 
crash risks assumes that higher ratios of fatigue-related crashes to 
total crashes implies higher crash rates. It is mathematically 
possible, though, that the increase in this ratio could come about 
because the denominator--the total number of crashes--is falling at a 
faster rate than fatigue-involved crashes as driving hours increase, 
not because fatigue increases. In other words, crash rates due to 
weather, mechanical failure, traffic, or road conditions may fall, as 
each driver accumulates more hours on the road; and this could make it 
appear that fatigue is a growing problem whereas it is actually stable. 
Because fatigue-related crashes more than triple over a long driving 
day, however, the incidence of crashes caused by other factors would 
have to drop precipitously for this explanation of the increasing ratio 
of fatigue crashes to hold. The Agency has no evidence for a pattern in 
which greater hours on the road would be associated with systematic 
reductions in crash causes other than fatigue, let alone a pattern so 
dramatic as to explain the increasing rate of fatigue-related crashes. 
Hence, the Agency is using the share of fatigue-related crashes in lieu 
of data on the relative crash risk at each hour.
    Generally, studies of time-on-task fatigue have not determined 
whether, let alone when, the driver took breaks during the driving 
window, how long a driver had been awake or on duty, or how many hours 
the driver had worked that week. All of these factors could have an 
impact on fatigue and on the likelihood of crashes in the later hours 
of a work day.
    The VTTI naturalistic driving study, sponsored by DOT and used for 
other distracted driving rulemakings, found no increase in risk between 
the 10th and 11th hours of driving.\32\ Indeed, this study found that 
the first hour of driving is the riskiest and that there is little, if 
any, difference in risk among other hours. This is significant because 
the VTTI study is one of the few research studies that looks at 11th 
hour crash risk using data from the period after 2003, when 11th hour 
driving became legal for interstate as well as intrastate drivers. This 
study has been published and subject to peer review.
---------------------------------------------------------------------------

    \32\ Hanowski, R.J., Hickman, J.S., Olson, R.L. & Bocanegra, J., 
``Evaluating the 2003 Revised Hours-of-Service Regulations for Truck 
Drivers: The Impact of Time on Task on Critical Incident Risk,'' 
Accident, Analysis and Prevention, Vol. 41, No. 2, March 2009, pp. 
268-275. FMCSA-2004-19608-3978.
---------------------------------------------------------------------------

    For several reasons, however, the VTTI study does not appear to be 
definitive. First, it involved a small sample size of 102 drivers that 
was not representative of the trucking industry. Second, the study 
looks at the risk of critical incidents, which include near-crashes and 
crash-avoidance responses, as well as actual crashes. A definitive link 
between critical incidents and crash risk has not been established. 
Third, the study involved drivers who were, with their knowledge, 
observed by video cameras and other electronic equipment. It is 
possible that this may have led drivers to behave more carefully than 
drivers would have in the absence of observation, leading to an overall 
underestimate of crash likelihood, and possibly an underestimate of the 
risk during the eleventh hour. (Note that the observation occurred at 
all hours and hence the question is whether the observation effect, if 
it existed, eliminated what would otherwise be an elevated risk in the 
eleventh hour. There is no reason to believe that being observed would 
cause drivers to be relatively more careful when driving longer hours 
than when driving shorter hours.) Fourth, drivers and carriers who 
participated in the video-surveyed study did so voluntarily, which 
could skew the study towards participation from more safety-conscious 
drivers and carriers.
    Ideally, FMCSA would want to compare the number of serious crashes 
in each hour of driving after an extended break to the total driving 
time by hour of driving or, alternatively, vehicle miles traveled by 
hour. Conceptually, the degree to which the distribution of crashes 
falls into later driving hours relative to the distribution of driving 
would indicate the change in risk for longer trips. The data set would 
have to be reasonably representative of the drivers affected by the 
regulations; large enough to provide an accurate picture for individual 
hours, despite the rarity and randomness of crashes and the relatively 
small fraction of driving in the later hours; use an unbiased measure 
of hours; and cover a period in which long driving hours were legal. 
Furthermore, data on other factors that are known to affect fatigue and 
crash risks--total time on duty that day and previous days, short 
breaks, opportunities for restorative rest, time of day, and 
experience, for example--would have to be included in the data set as 
well, to allow the time-on-task effect to be isolated.
    A data set meeting these criteria is not available at this time. 
The Agency is requesting commenters to provide any statistically 
reliable data that would allow specification of relative crash risk of 
each hour of driving. An answer would turn on knowing the total number 
of crashes in each hour and the percentage of driving takes place in 
each hour. The Agency is also interested in knowing whether the risk of 
fatigue-related crashes increases with additional hours awake or on 
task, or if the relative crash risk (of all crashes not just the 
likelihood that crashes will be coded as fatigue) does not increase in 
later hours, as the VTTI study suggests. There are some large samples 
of crash data that include the number of hours

[[Page 82180]]

of driving, including the LTCCS (published but not peer reviewed) and 
TIFA; but the time periods these cover are largely or entirely before 
the HOS rules were changed in 2003. They are also deficient, to varying 
degrees, in the availability and reliability of information on driver 
schedules and other factors that affect crash risks. Even more 
seriously, these studies do not directly provide information on the 
distribution of all driving by hour for either the drivers involved in 
the crashes or for comparable drivers. In other words, the data sets 
provide the numerator for the rate of crashes per hour, but not the 
denominator.
    It is possible to develop distributions of all driving by hour 
(through surveys, for example), but these cannot be used along with 
crash data for a different population without biasing the results to an 
unacceptable degree. Researchers have also collected data on both 
crashes and total driving hours for the same populations; but, to date, 
these studies have had samples too small (and narrow, in terms of their 
subjects' characteristics) to give reliable results on long hours. 
FMCSA is currently sponsoring a study based on schedule data collected 
by electronic logs that should be able to solve most of the problems in 
this type of research, but that study is not complete as of the time of 
the analysis. Given the imprecise but demonstrated relationship between 
fatigue, time-on-task, hours awake, and hours worked, there is a 
reasonable argument for limiting driving time to 10 hours.
    Before making a final decision, however, FMCSA is seeking 
additional studies or data that examine, in greater detail, the 
differences between driving in the 10th or the 11th hours. FMCSA is 
also interested in data that indicate when and how frequently the 11th 
hour is used. It seeks data on how much of the 11th hour is used when a 
driver goes into the 11th hour. For example, on days in which the 
driver both picks up and delivers a truckload, how often does the 
driver have enough duty time to reach the 11th hour? When the driver 
drives over 10 hours, is it by 5 minutes or by 55 minutes? What is the 
percentage of driving that takes place in each hour compared to total 
driving that occurs?
    The American Trucking Associations (ATA), in their comments to the 
docket (April 21, 2010), argued that reducing driving time or on-duty 
time would increase crashes because more inexperienced drivers would 
need to be hired to move freight. FMCSA recognizes that there is a risk 
associated with inexperienced drivers, but believes that this problem 
is not as serious as ATA suggests. The 2007 Commodity Flow Survey 
indicated that about 75 percent of freight is moved in trips of less 
than 100 miles; with loading and unloading time, it is unlikely that 
drivers making multiple short trips in a day are able to drive 10, let 
alone 11 hours. FMCSA's 2007 Field Study found that for longer haul 
operations (beyond 100 miles) 27 percent of the driving periods 
extended into the 11th hour.\33\ Based on comments about long loading/
unloading time that drivers made at the listening sessions, it appears 
that there will be many days when drivers cannot reach even 10 hours.
---------------------------------------------------------------------------

    \33\ FMCSA, ``2007 Hours of Service Study,'' 2007. Available in 
the docket: FMCSA-2004-19608-2538.
---------------------------------------------------------------------------

    In an industry where TL motor carriers experience annual driver 
turnover above 100 percent, there is always a considerable influx of 
new drivers each year, as well as experienced drivers changing jobs. 
Better training and supervision of new drivers would seem a more 
reasonable response than pushing older drivers to work longer hours. In 
addition, when FMCSA analyzed this issue in the 2003 RIA, it found the 
effects of hiring new drivers were almost exactly counterbalanced by 
the reduced volume of long-haul trucking caused by shifting some 
traffic to rail.
    Nonetheless, there is considerable uncertainty about the extent of 
the elevated crash risk associated with inexperience; and the 
possibility that new drivers operating under a 10-hour limit might be 
involved in more crashes than veteran drivers following an 11-hour rule 
cannot be ignored. According to BLS figures, employment in the trucking 
industry has declined by between 9 and 13 percent since 2008--or by 
120,000 to 180,000 drivers. A 10-hour limit that required carriers to 
hire additional personnel might result in the return of experienced 
drivers largely immune to ``rookie'' driving mistakes. In any case, 
while FMCSA currently favors the 10-hour limit, it requests further 
research and data from the commenters before making a decision.

B. Breaks

    Under the existing rule, a driver may drive for up to 11 
consecutive hours. Although a relatively small percentage of drivers 
drive without breaks, the complaints from drivers about their inability 
to take breaks under the 14-hour rule suggest that some may, in fact, 
work without any breaks. ATA, in their comments to the docket, stated 
that the full 14-hour day has been built into supply chain planning and 
that any reduction would affect productivity. This argument implies 
that some carriers expect their drivers to work the full 14 hours 
without a break. A NIOSH analysis of ATUS data on truck drivers found 
that truck drivers worked 1 hour per day more on weekdays and 3.4 hours 
per day more on weekends in 2006 compared to 2003.\34\
---------------------------------------------------------------------------

    \34\ Chen, G.X., et al. (2009).
---------------------------------------------------------------------------

    FMCSA believes that working continuously without a break is neither 
safe nor healthy. Research indicates that breaks during work can 
counteract fatigue and reduce the risk of crashes.\35\ On the health 
side, Hamilton, M.T., et al. (2007) found that increased standing and 
moving had a greater effect on the body's ability to block molecular 
signals that cause metabolic diseases than adding vigorous exercise. 
They concluded that a non-exercising person may become even more 
metabolically unfit by sitting too much.\36\
---------------------------------------------------------------------------

    \35\ Folkard, S. & Lombardi, D. A., ``Modeling the Impact of the 
Components of Long Work Hours on Injuries and `Accidents','' 
American Journal of Industrial Medicine, Vol. 49, No. 11, November 
2006, pp. 953-963. FMCSA-2004-19608-4019.
     O'Neill, T.R., Krueger, G.P., Van Hemel, S.B. & McGowan, A.L., 
``Effects of Operating Practices on Commercial Driver Alertness,'' 
1999. FMCSA-2004-19608-0071.
    \36\ Hamilton, M. T., Hamilton, D. G. & Zderic, T. W., ``Role of 
Low Energy Expenditure and Sitting in Obesity, Metabolic Syndrome, 
Type 2 Diabetes, and Cardiovascular Disease,'' Diabetes, Vol. 56, 
No. 11, November 1, 2007, pp. 2655-2667. FMCSA-2004-19608-3976.
---------------------------------------------------------------------------

    FMCSA wants to give drivers flexibility in scheduling breaks, 
recognizing that they are not always able to find a place to stop at a 
particular point in their schedule. Under the proposed rule, drivers 
would be able to work and drive for up to 7 hours without a required 
break. Upon reaching the 7th hour since coming on duty, the driver 
would need to take a break of at least a half hour before resuming 
driving. The driver could remain on duty without a break after the 7th 
hour, but could not drive again without taking a break. A driver who 
took a half hour break at 6.5 or 7 hours after coming on duty would 
generally not need a second break. But a driver who took a half-hour 
break 4 hours after coming on duty would need a second break no later 
than 11.5 hours after coming on duty to drive after that time. This 
approach should give drivers considerable latitude in scheduling 
breaks. Many drivers take breaks already; the 2006 FMCSA Truck Driver 
Fatigue Management Survey indicated that more than 65 percent of the 
drivers took breaks of a half hour or more during the work day.\37\ A 
break will

[[Page 82181]]

reduce time-on-task effects and negative health impacts of prolonged 
sitting.
---------------------------------------------------------------------------

    \37\ Dinges, D.F. & Maislin, G. (2006).
---------------------------------------------------------------------------

C. Duty Time/Driving Window

    FMCSA proposes to set a 14-consecutive-hour driving window during 
which a driver may be on-duty for 13 hours. At the end of the driving 
window, the driver would have to go off duty. This approach effectively 
reduces the maximum allowable work during a duty period by 1 hour from 
the existing rule and gives drivers an opportunity to take up to an 
hour off duty during the working day. An extra hour off duty per day 
should increase sleep and mitigate fatigue and health impacts for 
drivers working to the limits of the rule. Even if drivers do not sleep 
during the breaks, they can engage in other non-work activity (e.g., 
eating and talking to friends and family) that might otherwise reduce 
sleep time during the 10-hour off-duty period. The 1-hour reduction in 
duty time, in combination with 10 hours of driving time, would maintain 
the amount of on-duty-not-driving time that the current rule allows for 
drivers who are using all of their driving time, i.e., 3 hours. If the 
Agency adopts the 11-hour driving limit, drivers would have only 2 
hours of on-duty-not-driving time. FMCSA field studies in 2005 and 2007 
indicated that many drivers do not work the 14 hours allowed under the 
current rule; the reduction to 13 on-duty hours, therefore, should have 
a limited impact on most drivers.
    As discussed above, drivers at the listening sessions and in 
comments on the previous rulemakings stated that the existing rule 
discourages them from taking breaks because breaks are included in the 
calculation of the 14-hour driving window. They asked FMCSA to return 
to the pre-2003 rule, which did not include off-duty time in the 
calculation of the 15-hour limit then in effect. FMCSA rejected that 
approach in 2003 because it enabled drivers to extend the duty day well 
beyond 15 hours, allowing them to drive 17 to 20 hours or more after 
starting work, when fatigue can be extreme.
    Because FMCSA wants to encourage drivers to take rest breaks when 
needed and in response to requests for flexibility, the Agency is 
proposing to allow drivers of property-carrying CMVs to extend the 
driving window by 2 hours, to 16 consecutive hours, twice in the 
previous 168 consecutive hours. This is not a calendar week (e.g., 
12:01 a.m. Monday to 12 p.m. Sunday, etc.) but rather a moving period 
comprised of the past 168 hours, a period that changes every hour. A 
driver who used one 16-hour driving window starting at 6 a.m. on 
Tuesday and a second beginning at 8 a.m. on Thursday, could not start 
another 16-hour day until 6 a.m. on the following Tuesday. It should 
also be noted that taking a 34-hour (or longer) restart does not affect 
this 168-hour look-back period. In other words, the driver does not get 
two 16-hour days simply by completing a restart period. The proposed 
extension would not extend the 13-hour duty time; any driver who wanted 
to drive to the 16th hour after coming on duty would have to have taken 
3 hours of off-duty time during the driving window. Any use of time 
beyond 14 hours after coming on duty would count as a use of the 
extension. For example, a driver who worked a 14.5 hour period would be 
considered to have used one extension. Finally, the driver would have 
to go off duty at the end of the 16th hour (instead of the end of the 
14th hour on normal days).
    FMCSA considered extending the driving window to 16 hours daily, 
but decided that such a change would invite the extended hours that 
occurred under the pre-2003 rules. Once drivers, carriers, brokers, and 
shippers knew drivers could work over a 16-hour period daily, they 
could build that period into their scheduling, as ATA indicates they 
have done with the 14-hour clock. That could mean drivers would be 
routinely driving in the 16th hour after the start of the driving 
window. It would also put the driver on a schedule that could move 
starting time forward 2 hours a day or 10 hours over a 5-day period. 
Although it is easier to obtain adequate sleep when moving a schedule 
forward rather than backward, this level of forward change could 
seriously disrupt sleep. Unlike drivers on regular schedules who would 
use the extension only if necessary to deal with unexpected problems 
(breakdowns, unanticipated congestion) because using it would disrupt 
their work schedule the next day, long-haul TL drivers are not on a 
regular schedule and would have no disincentive for using a daily 16-
hour extension. FMCSA believes that limiting the 16-hour provision to 
twice a week and not allowing the extension to add duty time will 
encourage drivers to use it only when they need flexibility.
    A number of drivers at the listening sessions wanted the option of 
extending the driving window so they could reach a safe location when 
they were held at a loading dock until they ran out of duty time but 
still had to move the truck. FMCSA does not believe that such a 
provision is advisable. It could take several hours to find a safe 
location in some parts of the country. These drivers were essentially 
asking for an unlimited extension of the work day as the result of 
frequently occurring incidents that should be foreseeable under most 
circumstances. In addition, it would be impossible to determine whether 
the driver needed time (however little) to reach a safe location or was 
simply working beyond the limits. Similarly, drivers argued that they 
want to be able to stop driving and ``sit out'' rush hours. Drivers 
could use the 16-hour window to avoid rush hour congestion twice a 
week, if they choose to use it that way, but not more frequently. FMCSA 
requests comments on whether 16 hours is an appropriate extension or 
whether 15 hours would be sufficient. FMCSA also requests comments on 
whether the extension should be limited to once a week, twice a week, 
or allowed more frequently, and whether drivers should be barred from 
using the extension on consecutive days.
    Night drivers, particularly those using the sleeper berth at rest 
areas or truck stops, may find it difficult to obtain a reasonable 
amount of sleep in the day-time. Even people who are suffering from 
acute sleep deprivation (e.g., no sleep for 24 hours) find it hard to 
sleep during the day under ideal conditions (dark, quiet spaces). FMCSA 
is soliciting information on patterns of work for night drivers: For 
drivers who always drive overnight, what is the typical length of their 
duty day? For drivers who sometimes drive overnight, how frequently do 
they do that? FMCSA is seeking comments on whether drivers who drive at 
least 3 hours between midnight and 6 a.m. should have an hour less duty 
time available (12 hours rather than 13) to provide a longer period to 
obtain sleep.

D. Restart and Weekly Limits

    The pre-2003 rule prohibited driving after being on duty 60 hours 
in 7 days or 70 hours in 8 days. This meant that drivers working to the 
daily limits could run out of hours and would need to take up to 3 days 
off before they could start driving again. Particularly for long-haul 
drivers, this prolonged off-duty period away from home was seen as a 
serious problem. The 2003 final rule allowed drivers to reset their 
calculation of the 60- or 70-hour limits whenever they take at least 34 
consecutive hours off duty. The 34-hour restart provision has been 
almost uniformly praised by drivers and carriers, except for those who 
would like a shorter restart. Safety advocacy groups, however, have 
opposed the restart because it allows a driver who is driving and 
working to the limits to be on duty up to 84 hours in 7 days and 98 
hours in 8 days, a substantial increase over the 60-/70-hour limits of 
the pre-2003 rule. The

[[Page 82182]]

safety advocacy groups have also pointed out that, as a practical 
matter, the 34-hour restart provides only one night of sleep for night-
time drivers.
    FMCSA did not amend the restart provision in the 2005 and 
subsequent rulemakings because it provides substantial economic 
productivity benefits and because the Agency believed that drivers 
would not generally take the minimum of 34 hours or work extreme hours; 
the Agency assumed that drivers would use the restart mainly to 
simplify bookkeeping and to limit down-time while away from home. 
Drivers and carriers, however, stated at the listening sessions and in 
their comments that, especially on the road, drivers do indeed take the 
minimum restart allowed. Drivers who are on the road for several weeks 
at a time could, therefore, work very long hours even if they cannot 
actually reach the maximum allowed because of delays in pick-ups and 
deliveries. Some carriers with regular schedules stated that they have 
used the restart to add one work shift a week. If carriers have 
arranged their schedules so that drivers are on duty for the full 14-
hour day, as ATA claimed in its 2010 comment to the docket, then the 
restart allows a driver to work more than 80 hours in 7 days compared 
with 60 hours in the pre-2003 rule.
    FMCSA continues to believe that allowing drivers to spend less idle 
time on long runs is sensible, but must balance this against the fact 
that the restart provision may be exacerbating problems with long hours 
and resulting fatigue. As discussed above, long weekly hours are 
associated with sleep loss, fatigue, and serious health impacts. FMCSA 
is, therefore, proposing two limits to the 34-hour restart. First, any 
34-hour or longer period used as a restart would have to include two 
periods between midnight and 6 a.m. (2 nights of sleep). Second, 
drivers would be allowed to take only one restart a week; that is, they 
would be able to begin a restart only 168 hours after the beginning of 
the previous restart. For example, if a driver ends a work week at 
Friday at 6 p.m. and begins the restart, the restart could end no 
earlier than Sunday at 6 a.m. The next restart could not begin earlier 
than the following Friday at 6 p.m. If the driver ran out of weekly 
hours at noon on that second Friday, for example, he or she could not 
count the off-duty hours between noon and 6 p.m. toward the 34 hours.
    The 2-night provision would mainly impact night-time drivers 
because daytime schedules already allow drivers to obtain 2 nights of 
sleep within the 34-hour period. For night time drivers, the 2-night 
provision would extend the required restart provision. Under the NPRM, 
a driver with a regular night-time schedule would need to take 
virtually an extra day off duty to meet the requirement for two night-
time sleep periods and stay on schedule. ATA argued in its 2010 comment 
to the docket that, if confronted with this requirement, these drivers 
would ``flip'' to a day-time schedule to maximize work time, which 
would add to congestion. FMCSA notes that many of the drivers who work 
a regular night-time schedule drive for LTL or local carriers and 
usually take the weekend off. They will not be affected by this change. 
ATA also argued that 2 nights off were not needed for night drivers 
because they could get two sleep periods in 34 hours off. Research on 
shift workers indicates that on their days off they switch to a regular 
night-time sleep schedule.\38\
---------------------------------------------------------------------------

    \38\ Kecklund, G. & [Aring]kerstedt, T., ``Effects of Timing of 
Shifts on Sleepiness and Sleep Duration,'' Journal of Sleep 
Research, Vol. 4, No. S2, December 1995, pp. 47-50. FMCSA-2004-
19608-4008.
---------------------------------------------------------------------------

    Washington State University conducted a study for FMCSA to 
determine the effectiveness of the current 34-hour restart provision in 
restoring performance.\39\ The first phase of the study evaluated the 
effectiveness of the 34-hour restart using a laboratory setting to 
compare best-case (day-time work) and worst-case (night-time work) 
scenarios. The study found that a 34-hour break was effective at 
mitigating sleep loss and consequent performance impairment for day-
time workers who obtained 2 nights of sleep, but was not effective for 
night-time workers who obtained only 1 night of sleep in the break plus 
two long nap periods. Research indicates that daytime sleep is not as 
restorative as nighttime sleep.\40\ Even when the time is available, 
the time actually spent sleeping is less during the day than at 
night.\41\ Shift work and night work are associated with less sleep, 
even when night work is permanent,\42\ presumably because of the 
disrupting effects of circadian cycles.\43\ Sleep obtained is not only 
reduced in length, but also poorer in quality.\44\ Although it is not 
feasible to eliminate nighttime driving, such driving cannot be treated 
the same as driving during daytime.
---------------------------------------------------------------------------

    \39\ Van Dongen, H.P.A. & Belenky, G., ``Investigation into 
Motor Carrier Practices to Achieve Optimal Commercial Motor Vehicle 
Driver Performance: Phase I,'' April 2010. FMCSA-2004-19608-4020.
    \40\ Lavie, P., ``To Nap, Perchance to Sleep--Ultradian Aspects 
of Napping,'' in D. Dinges and R. Broughton (eds.), Sleep and 
Alertness, Cronobiological, Behavioral and Medical Aspects of 
Napping, New York: Raven Press, Ltd., 1989, pp. 99-120. FMCSA-2004-
19608-4032.
    \41\ Kurumatani, N., Koda, S., Nakagiri, S., Hisashige, A., 
Sakai, K., Saito, Y., Aoyama, H., Dejima, M. & Moriyama, T., ``The 
Effects of Frequently Rotating Shiftwork on Sleep and the Family 
Life of Hospital Nurses,'' Ergonomics, Vol. 37, No. 6, June 1994, 
pp. 995-1007. FMCSA-2004-19608-4065.
    \42\ Bonnet, M.H. & Arand, D.L., ``We Are Chronically Sleep 
Deprived,'' Sleep, Vol. 18, No. 10, 1995, pp. 908-911. FMCSA-2004-
19608-4033.
    \43\ [Aring]kerstedt, T., ``Work Hours, Sleepiness and the 
Underlying Mechanism,'' Journal of Sleep Research, Vol. 4, 
Supplement 2, December 1995, pp. 15-22. FMCSA-2004-19608-4064.
    \44\ Lavie, P., ``Ultrashort Sleep-Waking Schedule. III. `Gates' 
and `Forbidden Zones' for Sleep,'' Electroencephalography and 
Clinical Neurophysiology, Vol. 63, No. 5, May 1986, pp. 414-425. 
FMCSA-2004-19608-4053.
---------------------------------------------------------------------------

    Washington State University recently completed a second phase of 
its study. It has not been published or peer reviewed yet but will be 
completed soon. Phase II examined a restart provision for night-time 
drivers that contains two sleep periods between midnight and 6 a.m., 
with a minimum of 34 hours off duty. In this study, the primary 
performance measure, the number of lapses on a 10-minute psychomotor 
vigilance test (PVT), was administered eight times per day in the 
working periods. The study data showed no significant difference in PVT 
lapses between the pre-restart and post-restart work periods overall, 
indicating that the 2-night recovery period was effective at 
maintaining driver performance.\45\ The study included a 58-hour 
restart period instead of a 34-hour restart period. The Washington 
State University study has some shortcomings. It utilized a very small 
sample size of participants (12 drivers). Also, the study took place 
not on the road, but in a laboratory setting with participants who knew 
that their behavior was being observed. In addition, the participants 
were instructed to sleep and were all recruited as perfectly healthy 
drivers. Because the study included a 58-hour restart time, not a 34-
hour restart, the improvements could have been attributable to the 
extra off-duty period these 12 drivers were getting. In reality, 
drivers are not always in perfect health, and they cannot be told to 
sleep at a particular time by FMCSA. Nonetheless, FMCSA believes that 
the two phases of this study plus the research cited above justify 
today's proposal to amend the 34-hour restart by expanding the required 
restart period and adding a requirement for two off-duty periods

[[Page 82183]]

from midnight to 6 a.m. The 168-hour provision would have the effect of 
limiting drivers' weekly hours to an average of 70 in 7 days. This 
represents a substantial reduction from the current limits, but still 
allows drivers on the road to take restarts that are shorter than 
required under the pre-2003 rule. Most restarts for day-time drivers 
would range from 34 hours to 48 hours. Drivers on a regular night 
schedule would need about 58 hours to obtain 2 nights of sleep and stay 
on schedule.
---------------------------------------------------------------------------

    \45\ Van Dongen, H.P.A., Jackson, M. & Belenky, G., ``Duration 
of Restart Period Needed to Recycle with Optimal Performance: Phase 
II,'' FMCSA, October 2010.
---------------------------------------------------------------------------

    Finally, under the proposed rule, drivers would have to designate a 
specific period as a restart. This provision is intended to help 
drivers who may have a long break in the middle of the week (e.g., 
while waiting for the next load or because of illness), but who do not 
want to use that as a restart even if they are eligible to do so. 
Drivers may want to postpone use of the restart until a specific time 
so they can be sure of having the entire 60 or 70 hours available when 
resuming a full work schedule.
    It should be noted that the restart provision is mainly important 
for drivers who are working long days and who, therefore, reach their 
60- or 70-hour limit, which remains unchanged, in less than 7 or 8 
days. Drivers who do not work long hours, or do so only on a limited 
number of days during the week, may never need to use the restart 
except as a way to simplify keeping track of their hours. For example, 
a driver could work 10 hours a day for 7 days, take the eighth day off, 
and continue to work without using the restart provision.

E. Sleeper Berth

    Prior to 2005, FMCSA's rules allowed drivers to obtain the 
equivalent of 10 consecutive hours off by taking two periods in the 
sleeper berth, neither of which could be less than 2 hours long. 
Drivers, particularly team drivers, frequently divided their time into 
5 hours of driving followed by 5 hours in the sleeper berth. In 2005, 
FMCSA eliminated the split sleeper berth provision and required at 
least 8 consecutive hours in the sleeper berth so that drivers would 
have the chance to obtain at least one long sleep period. Drivers using 
the 8-hour sleeper berth period must also take a second break of at 
least 2 hours, either in the sleeper berth or off duty. The shorter 
period is included in the calculation of the 14-hour duty period.
    For years, drivers and carriers have expressed concerns about the 
2005 revisions. Team drivers have complained that, because it is 
difficult to sleep in a moving truck, alternating shorter runs with 
their co-driver would allow them to stop before they become too tired. 
Other drivers argued that it is hard to stay in the sleeper berth for 8 
consecutive hours. Drivers generally objected to the requirement to 
include the shorter period in the calculation of the 14-hour window, 
saying it discourages the use of the provision. Some drivers and 
carriers have also said that the complexity of the provision makes them 
reluctant to use it because they are uncertain how it should be logged.
    FMCSA recognizes that drivers have concerns about the existing 
provision, but there is no clear evidence at this time that two short 
sleep periods can provide the equivalent of one longer period. Emerging 
research indicates that dividing sleep into two shorter periods results 
in equal alertness levels,\46\ but this is not the only issue. The time 
of day in which the sleep periods are taken is critically important.
---------------------------------------------------------------------------

    \46\ Mollicone, D.J., Van Dongen, H.P., Rogers, N.L. & Dinges, 
D.F., ``Response Surface Mapping of Neurobehavioral Performance: 
Testing the Feasibility of Split Sleep Schedules for Space 
Operations,'' Acta Astronaut, Vol. 63, No. 7-10, 2008, pp. 833-840. 
FMCSA-2004-19608-4017.
---------------------------------------------------------------------------

    FMCSA is not proposing to change the sleeper berth exception, but 
the other changes to the rule would have an impact on sleeper berth 
users. The shorter off-duty or sleeper berth period would be included 
in the calculation of the driving window, as it is now. Because the 
driving window (14 hours) would be longer than allowed duty time (13 
hours), use of the shorter period would not always reduce available 
duty time. On days when the driver is using the 16-hour extended 
window, the shorter period would not reduce duty time unless the period 
is more than 3 hours or unless the driver takes more than an hour of 
other breaks during the driving window. On days when the driver is 
using the 14-hour driving window, use of the sleeper exception would 
reduce the available duty hours by at least 1 hour.

F. Other Issues

    On-duty definition. In September 2005, ATA petitioned FMCSA to 
change the definition of ``on duty time'' to allow team drivers to log 
as off duty up to 2 hours spent in the passenger seat. Under the 
existing definition, drivers are on duty if they are in the truck 
unless they are resting in the sleeper berth. Single drivers may spend 
the shorter break (at least 2 hours) either in the sleeper berth or off 
duty. Because one of the team members drives while the other takes his 
or her break, the result of the rule is that the non-working driver has 
to take both periods in the sleeper berth because it is not possible to 
log the shorter time as off duty while he or she is ``in or on upon any 
commercial motor vehicle.''
    FMCSA agrees with ATA's recommendation and is proposing to revise 
the definition of ``on duty'' to allow a team driver to log as off duty 
up to 2 hours spent in the passenger seat either immediately before or 
after the 8-hour period in the sleeper berth. In addition, FMCSA is 
proposing to exclude from the definition of ``on duty,'' time spent 
resting in or on a parked CMV. Drivers in the past have noted that the 
current definition makes it difficult for drivers of CMVs without 
sleeper berths (known as day cabs) to rest because they were considered 
to be on duty if they were in a parked truck. In many cases, the 
safest, most comfortable, and often the only place for such a driver to 
rest during a duty tour will be in the parked truck.
    Penalties. FMCSA is proposing to add to the penalty schedule in 
Appendix B to 49 CFR part 386 a new paragraph that would define as 
potentially egregious violations of Sec.  395.3(a) or Sec.  395.5(a) 
any instance where the driver exceeds the driving-time limit (whether 
10 or 11 hours) by 3 or more hours. The Agency would consider drivers 
or motor carriers who commit such violations to be eligible for the 
maximum civil penalties available.
    In determining the amount of any civil penalty, Congress instructed 
FMCSA to consider a number of factors, including the nature, 
circumstances, extent, and gravity of the violation committed, as well 
as the degree of culpability, history of prior offenses, ability to 
pay, effect on ability to continue to do business, and other such 
matters as justice and public safety may require. Congress instructed 
FMCSA to calculate each penalty to induce further compliance (49 U.S.C. 
521(b)(2)(D)). Congress, however, also entrusted FMCSA with the 
responsibility to ensure that motor carriers operate safely by imposing 
penalties designed to ensure prompt and sustained compliance with 
safety laws (Section 222 of the Motor Carrier Safety Improvement Act of 
1999 (MCSIA), (49 U.S.C. 521 note)). Prompt and sustained compliance 
with driving-time limits is paramount to the Agency's safety mission; 
FMCSA believes that making egregious violations eligible for the 
maximum penalty will help to promote these goals. Although some of the 
statutory factors in 49 U.S.C. 521(b)(2)(D) may limit the Agency's 
ability to impose penalties, others--like the extent and gravity of the 
violation--

[[Page 82184]]

could favor enhanced penalties. Furthermore, section 521(b)(2)(D) 
allows FMCSA to take into account ``such other matters as * * * public 
safety may require.'' The mandate to consider ``public safety,'' 
combined with the injunction of section 222 to impose civil penalties 
``calculated to ensure prompt and sustained compliance,'' clearly 
authorizes FMCSA to balance mitigating factors against aggravating 
factors and to impose the maximum penalty for a first offense that has 
significant potential to cause serious injury or death, such as 
excessively long driving hours. FMCSA has no desire to impose such a 
penalty; on the contrary, the Agency's hope is that the deterrent 
effect will make such action unnecessary. But this is a penalty the 
Agency believes it should have at the ready to deal with truly extreme 
violations.
    FMCSA is not proposing to make the imposition of maximum penalties 
automatic because it recognizes that a driver may be considered to have 
exceeded the limit to this degree in different circumstances. For 
example, one driver may have driven 14 hours between 8 a.m. and 10 
p.m.; a second driver may have driven 10 hours, taken a 9-hour off-duty 
period, then driven another 4 hours. Both of these drivers have 
technically driven more than the proposed rule would allow (either 3 
hours more than an 11-hour driving-time limit or 4 hours more than a 
10-hour limit), but only the first might be considered an egregious 
violation. FMCSA requests comments on whether 3 hours is the 
appropriate period to trigger the consideration of egregious violation 
penalties. FMCSA is also seeking comment on whether it should apply a 
similar concept to other provisions (duty time, driving window, weekly 
limits, restart) and if so, what those periods should be.
    Section 395.1(o). FMCSA proposes removing paragraph (o), which 
allows property-carrying CMV drivers who return to their work-reporting 
locations daily to extend the duty day to 16 hours once a week. FMCSA 
believes that anyone driving a CMV large enough to require a commercial 
driver's license (CDL) (the drivers affected by paragraph (o)) at the 
16th hour should not be doing so without taking at least 3 hours off 
duty during that shift. FMCSA thinks the proposed rule, which would 
allow drivers to extend the driving window to 16 hours without 
extending duty time twice a week, is preferable for reasons of safety. 
Furthermore, retaining Sec.  395.1(o) while introducing two 16-hour 
driving windows with 13-hour on-duty periods would add considerable 
confusion to the rule with no corresponding advantage and indeed a 
possible detriment to safety.
    Section 395.1(e)(2). Today's proposal for a 13-hour work limit 
within a general 14-hour driving window, and an optional 16-hour window 
twice a week, is similar in some respects to the current provision for 
short-haul operations with vehicles that do not require a CDL (Sec.  
395.1(e)(2)). The rule for drivers of non-CDL vehicles includes certain 
exceptions and restrictions (an exemption from the logging requirement 
coupled with a 150 air-mile operating radius and an obligation to 
return to the work reporting location every day); however, like the 
proposed rule for larger vehicles, Sec.  395.1(e)(2) allows a 14-hour 
driving window 5 days a week and a 16-hour window 2 days a week. In 
order to simplify the HOS regulations, FMCSA is considering rescinding 
paragraph (e)(2) and requiring the drivers who now use it to comply 
with the standard HOS limits. Although we have not formally included 
such a proposal in this NPRM, the Agency seeks comments on the effect 
of eliminating paragraph (e)(2). Our preliminary analysis suggests that 
removing paragraph (e)(2) would offer drivers advantages (e.g., greater 
geographical range and freedom from the need to return to their point 
of departure every day) that might compensate for the more restrictive 
13-hour work limit and the loss of the logbook exemption. FMCSA has 
little hard information about operations currently conducted under 
paragraph (e)(2); we invite drivers and carriers that utilize this 
provision to explain how a decision to remove it would affect them.
    Paragraph (e)(1) of Sec.  395.1, like paragraph (e)(2), also 
exempts drivers from keeping logs, but limits them to a 100 air-mile 
operating radius and requires them to return to their work reporting 
location and go off duty within 12 hours of coming on duty; unlike 
paragraph (e)(2), it is available to drivers of all vehicles, even 
those large enough to require a CDL. To what extent could carriers and 
drivers use this provision to compensate for a possible elimination of 
Sec.  395.1(e)(2)?
    In conjunction with a potential rescission of Sec.  395.1(e)(2), 
the Agency is also considering an expansion of the 100 air-mile radius 
in Sec.  395.1(e)(1) to 150 miles while leaving the rest of that 
paragraph unchanged. Please comment on the combined effects on carrier 
operations of those two possible amendments.
    Compliance dates. When FMCSA adopted the 2003 HOS rule, it set a 
compliance date about 8 months after the date of publication. Before 
that time, drivers had to operate under the old rules. For enforcement 
reasons, it is necessary to set a specific date for compliance. FMCSA 
requests comments on the appropriate period between the effective date 
and compliance date of the rule. It should be long enough to allow 
training of drivers and inspectors and reprogramming of electronic log 
software.
    Twenty-four hour clock. Safety advocacy groups have asked FMCSA to 
re-impose the ``24-hour clock'' that existed under the pre-1962 rules. 
They argue that working on a 24-hour schedule would allow drivers to 
establish a regular sleep pattern, which would increase the chances 
that the drivers could obtain more sleep. In practice, a substantial 
part of the industry already meets the requirement for a regular 
schedule. The long-haul TL sector, however, does not. In theory, under 
the existing rule a long-haul TL driver could drive 11 hours, take 10 
hours off duty, then start driving again, moving his or her starting 
time back 3 hours a day.
    FMCSA considered whether it was possible to limit drivers to a 24-
hour schedule but was not able to develop a provision that was not 
operationally disruptive. Although superficially simple--the start time 
on the first day of a weekly cycle sets the start time for all other 
days--a 24-hour schedule is too rigid in practice and fails to 
accommodate the events over which the driver or carrier has no control. 
A few cities limit the hours when trucks are allowed to load and 
unload; shippers control loading and unloading time based on their 
needs, not drivers' schedules. At the beginning of a work week, drivers 
may not know where and when their subsequent loads will be. Adding 
another set of restrictions to their schedules is unnecessarily 
complex. It could also discourage drivers from taking shorter work days 
so they will be able to make a delivery appointment early the next day. 
The alternatives, such as limiting start times within a single trip, 
which would address the most likely period during which a driver might 
rotate the clock backward, would be difficult to enforce.
    Although FMCSA is concerned about the effect of schedules that 
rotate backward or forward by several hours over days or the work week, 
the Agency has no information on the extent to which this is actually 
occurring. Under the current rule, a driver could theoretically drive 
11 hours, then take 10 hours off before driving another 11 hours, but 
this cannot occur on very many consecutive days. On the first day of 
any trip, the driver has to spend on-

[[Page 82185]]

duty time while the truck is being loaded and on the last day, the 
driver has to wait while it is unloaded. As discussed in the 
description of the industry above, according to the 2007 Commodity Flow 
Survey, only 12 percent of the tons moved in for-hire trucks and less 
than 1 percent in private carrier trucks traveled more than 500 miles, 
which represents a 1-day trip. This average is consistent with a trend 
in the industry to shift to intermodal transport for long hauls, using 
rail for the long distance segments and trucks for regional operations. 
Drivers on 1-day trips may not be able to rotate their schedules 
backward substantially.
    One-size-fits-all approach. MCSAC and some commenters at the 
listening sessions recommended that FMCSA consider developing different 
rules for different sectors of the industry. The Agency recognizes that 
different parts of the industry have different operational patterns and 
demands. Drivers and carriers, however, frequently conduct different 
types of operations in a single week. In 2000, FMCSA proposed to 
segregate the industry into five broad kinds of operation and to 
promulgate different rules for each. Most commenters thought the result 
was far too complex while others complained about the absence of a 
special provision for their particular operational niche. There was no 
consensus except that the proposal was unworkable. FMCSA continues to 
believe that creating separate requirements for the various sectors 
would make the rule extremely difficult to understand, implement, and 
enforce.
    FMCSA notes that there are special provisions (some regulatory, 
some statutory) for farmers, driver salesmen, drivers in the 
construction industry, utility service vehicles, motor coaches, 
oilfield operations, adverse driving conditions, Alaska, and Hawaii. 
The HOS rules do not apply when truckers are providing emergency relief 
in the wake of a State or Federal declaration of an emergency. 
Furthermore, drivers and carriers have significant flexibility in 
complying with the rules. Neither FMCSA nor its predecessor agencies 
have ever had a genuine ``one-size-fits-all'' approach, but a safety 
age ncy cannot have separate standards for each and every element of 
the staggeringly diverse motor carrier industry.

VII. Section-by-Section Analysis

    In part 385, Appendices B (explanation of the safety rating 
process) and C (regulations pertaining to remedial directives in Part 
385, subpart J) would be revised to update references to part 395 and 
to remove references to Sec.  395.1(o), which would be deleted. Revised 
references would be added for paragraphs in Sec.  395.3. References to 
Sec.  395.3(c)(1) and (2) would be deleted because a violation of the 
minimum restart period would constitute, and be cited as, a violation 
of the 60- or 70-hour rule. Providing separate violations for elements 
of the proposed rule would allow FMCSA to determine what parts of the 
rule had been violated. Under the current method of citing violations, 
a driver who drives for 18 hours straight cannot be distinguished from 
the driver who drives 11 hours, takes a 9.5 hour break, then drives 
another 7 hours. Both are cited for violating the 11-hour rule.
    In part 386, Appendix B, paragraph (a) (penalty schedules; 
violations and maximum civil penalties) would be revised to add a new 
paragraph (6) to state that any violation of the driving-time limit 
that was 3 or more hours above the 10- or 11-hour limit could be 
considered an egregious violation that could trigger imposition of the 
maximum penalty.
    Section 390.23(c)(2) (relief from regulations) would be revised to 
make the 34-hour restart provision consistent with the revised 
requirements in part 395.
    In Sec.  395.1, paragraph (b) (adverse driving conditions), would 
be revised to update (1)(i) to change 13 hours to 12 hours if a 10-hour 
driving-limit is adopted (2 hours more than the driving limit). If an 
11-hour driving-time limit is adopted, no change would be needed. 
Paragraph (b)(1)(ii) would be revised to reference both the 14-hour and 
the 16-hour driving window.
    In Sec.  395.1, paragraph (d)(2) (oilfield operations) would be 
revised to clarify the language on waiting time and to state that 
waiting time would not be included in the calculation of the driving 
window.
    In Sec.  395.1, paragraph (e) (short-haul operations), paragraphs 
(1)(iv)(A) and (2)(v) would be revised to change the driving hours 
allowed to 10 hours; if an 11-hour driving-time limit is adopted, no 
change would be needed. The introduction to paragraph (e)(2) would be 
revised to eliminate the reference to paragraph (o). Paragraph 
(e)(2)(viii) would be revised to include the provision that the restart 
must include two night-time periods and is subject to the 168-hour 
limit.
    Section 395.1(g) (sleeper berths) would be revised to change the 
driving time (if a 10-hour limit is adopted); it would be revised to 
change the duty-time and driving-window numbers and to add the 
provision (to paragraph (g)(1)(ii)(C)) that a team driver may log as 
off duty up to 2 hours in the passenger seat of a moving vehicle 
immediately before or after an 8- to 10-hour period in the sleeper 
berth.
    Section 395.1(o) and (q) would be removed. Paragraph (q), a 
statutory exemption for certain transporters of grapes, expired on 
September 30, 2009. See Sec. 4146 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users, Public Law 
109-59, 119 Stat. 1144, 1749, August 10, 2005.
    In Sec.  395.2, the definition of ``on-duty time'' would be revised 
to allow a team driver to log as off duty up to 2 hours spent in the 
passenger seat either immediately before or after the 8-hour period in 
the sleeper berth. In addition, FMCSA is proposing to exclude from the 
definition of ``on duty,'' time spent resting in or on a parked CMV. In 
the past, drivers have noted that the current definition makes it 
difficult for drivers of truck tractors without sleeper berths (known 
as day cabs) to rest because they were considered to be on duty if they 
were in a parked truck. In many cases, the safest, most comfortable, 
and often the only place for such a driver to rest during a duty tour 
will be in the parked truck.
    Section 395.3 would be revised to place the individual requirements 
in separate paragraphs so that FMCSA would be able to cite drivers for 
violations of specific elements. Under the current rule, drivers are 
cited only for violations of driving time, on-duty time, and the weekly 
limits. The proposed rule would make it possible to cite drivers for 
violations of the daily off-duty break, the use of the 16-hour 
extension, the 34-hour restart, the 2-night provision, and the 168-hour 
provision as well as driving time, weekly hours, and on-duty time. This 
approach would provide useful information about the types of violations 
being committed.

VIII. Required Analyses

A. Executive Order 12866

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), 
FMCSA must determine whether a regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget review and 
the requirements of the E.O. The E.O. defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or

[[Page 82186]]

State, local, or Tribal governments or communities.
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency.
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof.
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the E.O.
    Under the E.O., agencies must estimate the costs and benefits of 
potential rules; for rules that may be considered economically 
significant ($100 million or more in costs and benefits), agencies must 
also evaluate options.
    For this analysis, FMCSA considered and assessed the consequences 
of four potential regulatory options. (A copy of the complete RIA is 
available in the docket.) Option 1 is the no-action alternative, which 
would leave the existing 2008 rule in place. Options 2, 3, and 4 each 
would adopt several revisions to the rule. The RIA addresses each 
option separately. Option 2 proposes a 10-hour driving-time limit; it 
would also require the driver to take a rest break during the day; 
impose a daily duty limit; and reduce the weekly maximum driving and 
on-duty time theoretically achievable. Option 2 would give drivers the 
flexibility to work intensely for a single week, after taking two full 
days off; for example, daytime drivers could work up to 13 hours per 
day for 5 days in a row (a cumulative 65 hours), take 34 hours off to 
restart the 70-hour clock, and then work another 13-hour day, for a 
total of 6 13-hour days, which is a cumulative 78 hours on-duty (out of 
7 consecutive calendar days). Options 3 and 4 are identical to Option 2 
in all respects except for the amount of driving time allowed. Option 3 
would allow an 11-hour driving-time limit, while Option 4 would adopt a 
9-hour driving-time limit. Although Option 2 is the Agency's currently 
preferred option, this summary presents the impacts of Options 2 
through 4.
    Compliance with HOS rules was assumed to be 100 percent for both 
the baseline and options; no attempt was made to estimate real-world 
compliance rates or to adjust costs and benefits for non-compliance. 
This assumption was made to avoid understating the true costs of the 
rule. To the extent that compliance rates fall short of 100 percent, 
both costs and benefits would be lower. This approach allows for 
analyses of supplementary rules aimed at improving compliance, which 
would presumably move both costs and benefits closer to the levels 
estimated in this analysis. These incremental changes in costs and 
benefits would not duplicate the costs and benefits estimated for this 
proposal; rather they would indicate the extent to which the 
supplementary rules ensured that the proposal's costs and benefits were 
realized.
    To calculate the impacts of the proposed changes to the HOS rule, 
it is necessary to develop a profile of the motor carrier industry and 
estimate the degree to which drivers in various segments work up to or 
close to the limits of the current rule. Drivers whose preferences or 
work demands would lead them to choose schedules well within the 
current limits for reasons unrelated to those limits will not be 
affected by the rule changes.
    The analysis concentrated on inter-city long-haul or regional, as 
opposed to local, trucking operations. In general, short-haul trucking 
work has far more in common with other occupations than it does with 
regional or long-haul trucking. These local, short-haul trucking 
operations are generally 5-day-a-week jobs, and much of the time on 
duty is given to tasks other than driving. Typical work days are 8 to 
10 hours or so and typical weeks are 40 to 55 hours. Many, if not most, 
of these drivers receive overtime pay past 8 hours in a day. Most of 
the work is regular in character; drivers go to basically the same 
places and do the same things every day. The rule changes proposed in 
this NPRM are expected to have little effect on such operations.
    Both for simplicity of presentation and because of the nature of 
the available data, the analysis used 100 miles as the point of 
demarcation between local and over-the-road (OTR) service. Much of the 
information on working and driving hours is drawn from FMCSA's 2007 
Field Survey.\47\ Companies and drivers were identified as operating 
within or beyond a 100-mile radius. The Economic Census,\48\ which 
provided data on revenue, defines a long-distance firm as one carrying 
goods between metropolitan areas; this is roughly compatible with a 
100-mile radius for the distinction between local and OTR service. One 
hundred miles is also compatible with the length-of-haul classes in the 
Commodity Flow Survey.
---------------------------------------------------------------------------

    \47\ The ``2007 Field Survey'' is an alternate title for the 
FMCSA, ``2007 Hours of Service Study,'' 2007. FMCSA-2004-19608-2538.
    \48\ U.S. Census Bureau, ``2007 NAICS [North American Industry 
Classification System] Definitions 484 Truck Transportation,'' 2008. 
FMCSA-2004-19608-4066.
---------------------------------------------------------------------------

    To analyze the impact of the proposed rule changes, the analysis 
needed to define the prevailing operating patterns in the industry. Of 
particular interest is the extent to which drivers work close to the 
limits set by the current rule. To analyze current patterns in work 
intensity, drivers were assigned to four intensity groups, based on 
their average weekly hours of work. For this purpose, the analysis used 
data on weekly work hours from the 2007 Field Survey to define 
intensity groups as shown in Table 4.
    Moderate-intensity drivers are on duty an average of 45 hours per 
week. High-intensity drivers are on duty an average of 60 hours per 
week. The third group, very-high-intensity drivers, works an average of 
70 hours per week. The fourth group, extreme-intensity drivers, is on 
duty an average of 80 hours per week. The 2007 Field Survey indicated a 
distribution of the driver population across these groups as shown 
below.

                                 Table 4--Driver Groups by Intensity of Schedule
----------------------------------------------------------------------------------------------------------------
                                                                                                     Weighted
                      Work intensity group                        Average weekly    Percent of     average hours
                                                                     work time       workforce       per week
----------------------------------------------------------------------------------------------------------------
Moderate........................................................              45             66%           29.70
High............................................................              60             19%           11.40
Very High.......................................................              70             10%            7.00
Extreme.........................................................              80              5%            4.00
----------------------------------------------------------------------------------------------------------------
    Total.......................................................  ..............  ..............           52.10
----------------------------------------------------------------------------------------------------------------


[[Page 82187]]

    The weighted average is obtained by multiplying the average work 
time in each class by the fraction of the workforce in that class. The 
sum, just over 52 hours, is average hours of work per week based on 
each group's share of the total population. Data analyzed in 2005 from 
the 2004 Field Survey and a large truck-load carrier suggested a 
slightly higher industry-wide average work week of 53 hours, which is 
the value used in the cost-benefit analysis.\49\ The analysis made 
similar calculations using the Field Survey data to determine the 
weighted averages for use of the 10th and 11th hour of drive time and 
the 14th hour of daily on-duty time. These figures can be found in the 
accompanying RIA.
---------------------------------------------------------------------------

    \49\ These data are shown in Exhibit 2-6 in the 2008 RIA [docket 
item number FMCSA-2004-19608-3510.1]. Details are in the 2010 RIA, 
Appendix A, ``Data and Calculations for Industry Profile.''
---------------------------------------------------------------------------

    The basic approach for calculating impact on the industry is to 
follow the chain of consequences from changes in HOS provisions to the 
way they would affect existing work patterns in terms of work and 
driving hours per week, taking into account overlapping impacts of the 
rules. The resulting predicted changes in work and driving hours are 
then translated into changes in productivity by comparing them to 
average hours. The changes in productivity, in turn, are translated 
into changes in costs measured in dollars. The total combined effect 
would be to decrease industry productivity by approximately 2 percent 
for Option 2, 1 percent for Option 3 and 6 percent for Option 4. These 
decreases in industry productivity result in total annual cost of $990 
million for Option 2, $480 million for Option 3 and $2,270 million for 
Option 4. In addition, the cost of re-training drivers, carriers, and 
enforcement personnel, as well as re-programming electronic logbook and 
other carrier driver-management software would result in approximately 
$320 million in costs in the first year for Options 2 through 4. The 
training and re-programming costs have been annualized because they 
would not recur; over the first 10 years at a 7 percent discount rate, 
they would amount to about $40 million per year. The total annualized 
costs of the changes in operating, training, and re-programming would 
therefore be approximately $1.030 billion for Option 2, $520 million 
for Option 3, and $2.310 billion for Option 4.
Rule Benefits
    The primary goal of the proposed changes is to improve highway 
safety by reducing driver fatigue and the associated increase in the 
probability that fatigued drivers will be involved in crashes. A 
secondary benefit expected from this rule is a decrease in driver 
mortality due to health problems caused by long working hours and the 
association of long working hours with inadequate sleep.
    To analyze the safety impacts of these changes, the Agency has 
developed a series of functions that incorporate fatigue-coded to hours 
of daily driving and hours of weekly work. In past HOS regulatory 
analyses, the effects on fatigue and fatigue-related crashes of 
changing the HOS rules were calculated using fatigue models. These 
models (the Walter Reed Sleep Performance Model for the 2003 rules, and 
the closely related SAFTE/FAST Model for later analyses) took into 
account the drivers' recent sleeping and waking histories, and 
calculated fatigue based on circadian effects as well as acute and 
cumulative sleep deprivation. These models did not incorporate 
functions that independently accounted for hours of driving after an 
extended rest (i.e., acute time-on-task) or cumulative hours of work 
(as opposed to off-duty time) over recent days. These effects were 
assumed, instead, to be accounted for in the effects of long daily and 
weekly work hours on the drivers' ability to sleep. For the 2005 and 
later analyses, a separate time-on-task function based on statistical 
analysis of TIFA data was added to ensure that available evidence for 
time-on-task effects was not ignored; those analyses were still 
criticized as deficient for excluding consideration of cumulative time-
on-task effects.
    For the current analyses, FMCSA is replacing the use of the sleep-
related fatigue models with a simpler approach that explicitly relates 
the risk of a fatigue-coded crash to hours of daily driving and hours 
of weekly work. The function used to model the effects of daily driving 
hours is the same as the TIFA-based logistic function used since 2005, 
while the function for modeling weekly work hours is taken from FMCSA's 
analysis of the LTCCS. Other fatigue effects, including the effects of 
insufficient sleep and circadian effects of working and sleeping at 
sub-optimal times, are implicitly assumed to be incorporated in the 
daily driving and weekly work hour functions because those effects were 
at work on the drivers involved in the crashes recorded in TIFA and 
LTCCS. To add fatigue effects calculated by a sleep/performance model 
on top of the empirically based functions would, therefore, run the 
risk of double counting the benefits of restrictions on work and 
driving. These functions, and the uncertainty surrounding them, are 
described in detail in the RIA.
    The basic approach for using the empirically based fatigue risk 
functions was to count the changes in hours worked and driven as a 
result of the regulatory options. Each hour of driving that is avoided 
results in a reduction in expected fatigue-related crashes. These 
reductions were calculated using the predicted levels of fatigue-
related crashes indicated by the fatigue functions. The hours of 
driving and working that are prevented by the options, though, were 
assumed to be shifted to other drivers or to other work days rather 
than being eliminated altogether. The fatigue crash risks for those 
other drivers and other days were also calculated. Taking account of 
these partially offsetting risks means that the predicted crash 
reductions attributable to the options were really the net effect of 
reducing risks at the extremes of driving and working while increasing 
risks for other drivers and on other days.
    The changes in crash risks were monetized (i.e., translated into 
dollars) using a comprehensive and detailed measure of the average 
damages from large truck crashes. This measure takes into account the 
losses of life (based on the DOT's accepted value of a ``statistical 
life,'' recently set at $6 million); medical costs for injuries of 
various levels of severity, pain, and suffering; lost time due to the 
congestion effects of crashes; and property damage caused by the 
crashes themselves.\50\
---------------------------------------------------------------------------

    \50\ Average large truck crash costs were obtained from the 
report, ``Unit Costs of Medium/Heavy Truck Crashes,'' March 13, 
2007, by E. Zaloshnja and T. Miller. The cost of a crash was updated 
to 2008 dollars and to reflect a value of a statistical life of $6 
million. The report is in docket FMCSA-2004-19608-3995.
---------------------------------------------------------------------------

    Based on these functions, we have estimated that the safety 
benefits of this rule would be substantial. The mid-point estimate of 
the annual crash reduction benefits associated with these changes is 
based on the assumption that fatigue is involved in roughly 13 percent 
of large truck crashes, based on the LTCCS; this yielded a monetized 
safety benefit of approximately $720 million per year for Option 2, 
$430 million for Option 3, and $1.220 billion for Option 4. The 
analysis included a series of sensitivity analyses surrounding these 
estimates because the level of fatigue involvement in truck crashes is 
uncertain. For each of the options, the sensitivity analysis produced a 
range of benefits per year under the assumption that fatigue is 
involved in approximately 7 percent of crashes and under the assumption 
of a higher 18

[[Page 82188]]

percent fatigue involvement. The estimated safety benefits ranged from 
$390 million to $1.000 billion for Option 2, from $230 million to $590 
million for Option 3, and from $660 million to $1.690 billion for 
Option 4.
    The analysis also calculated benefits associated with improvements 
in driver health. The Agency has a statutory mandate to ensure that 
driving conditions do not impair driver health. Research indicates that 
reducing total daily and weekly work for the drivers working high-
intensity schedules should result in these drivers getting more sleep 
on a daily and weekly basis. Recent research on sleep indicates that 
inadequate sleep is associated with increases in mortality. This effect 
appears to involve several complex pathways, including an increase in 
the propensity for workplace (and leisure time) accidents and mortality 
due to decrements in several health-related measures, such as an 
increase in the incidence of high blood pressure, obesity, diabetes, 
cardiovascular disease (CVD), and other health problems. The analysis 
attempted to model the workplace accident effect explicitly in the 
crash reduction benefits. However, explicit modeling of all the other 
various ways that insufficient sleep increases mortality becomes too 
complex and uncertain for this analysis. The studies the analysis 
relied on to model health benefits, therefore, are population-based 
studies that look at overall mortality, independent of the cause of 
death, as a function of sleep. Because increases in hours worked are 
associated with decreases in hours spent sleeping, and truck drivers 
working high-intensity schedules get significantly less than the 7 or 
more hours of sleep required for optimal mortality, cutting back on 
extreme work should, to some extent, reduce mortality among these 
drivers.
    These benefit estimates depend on how much sleep CMV drivers 
currently get and how much more sleep they are expected to get under 
the proposed rule. The analysis developed a function that relates hours 
worked to hours slept and used this function to predict how much more 
sleep drivers would get under the proposed rule than they currently 
obtain under the existing rule. The results of this analysis are 
sensitive to the amount of sleep drivers are currently getting; 
increases in sleep have less substantial health benefits if individuals 
are already getting close to the optimal 7-8 hours per night than if 
they average less sleep. Since there is a degree of uncertainty 
surrounding how much sleep drivers currently get, a sensitivity 
analysis varied the baseline amount of sleep drivers are currently 
obtaining. This analysis showed that health improvement benefits are 
greatest when drivers are getting the least sleep under the current 
rule, because they have the most room for improvement.
    The sensitivity analysis scenarios are divided into the low sleep, 
medium sleep, and high sleep categories. Under the low sleep scenario, 
the benefits are greatest because it is the most pessimistic regarding 
how much sleep drivers currently obtain. The high sleep scenario 
assumed that drivers are getting close to the optimal amount; as a 
result, there is little if any benefit to giving them opportunity for 
more sleep. For the low sleep scenario, driver health improvement 
benefits are estimated to be $1.480 billion per year for Option 2, 
$1.190 billion for Option 3, and $1.990 billion for Option 4. Under the 
medium sleep scenario, these benefits fall to $690 million per year for 
Option 2, $650 million for Option 3, and $660 million for Option 4. For 
the assumption of a high level of baseline sleep for Options 2 and 4, 
it is interesting to note that the benefits are negative, indicating 
that it is not beneficial for individuals to get additional sleep if 
they are already getting adequate sleep. As discussed in the RIA, we do 
not believe that the negative benefits for drivers with a high baseline 
level of sleep would be realized, but we include them to keep the 
analysis consistent with our other scenarios.
    Tables 5 through 7 below present the total annual benefits of 
Options 2 through 4 for all three fatigue involvement and sleep 
scenarios described above. As this analysis indicates, Option 2 could 
generate anywhere from $280 million to $2.480 billion in annual 
benefits; Option 3 could generate between $330 million and $1.790 
billion in annual benefits; and Option 4 could generate between 
negative $10 million and $3.680 billion in annual benefits, These 
estimates include both health and safety benefits. The mid-point 
estimate for Options 2 and 3 would result in a cost beneficial rule. 
For Option 2, the mid-point estimate is $1.410 billion in benefits, 
with associated costs of $1.030 billion; and for Option 3, the mid-
point estimate is $1.080 billion in benefits, with associated costs of 
$520 million. For Option 4, the mid-point estimate is not cost 
beneficial, with benefits of $1.880 billion and associated costs of 
$2.310 billion.

Table 5--Estimated Benefits by Amount of Sleep and Crash Rate for Option
                          2 (10 Hours Driving)
                           [Millions per year]
------------------------------------------------------------------------
                                      Assumed amount of nightly sleep
Assumed percent of crashes due to --------------------------------------
             fatigue                               Medium
                                    Low sleep      sleep      High sleep
------------------------------------------------------------------------
7 percent........................       $1,870       $1,080         $280
13 percent.......................        2,210        1,410          620
18 percent.......................        2,480        1,690          890
------------------------------------------------------------------------


Table 6--Estimated Benefits by Amount of Sleep and Crash Rate for Option
                          3 (11 Hours Driving)
                           [Millions per year]
------------------------------------------------------------------------
                                      Assumed amount of nightly sleep
Assumed percent of crashes due to --------------------------------------
             fatigue                               Medium
                                    Low sleep      sleep      High sleep
------------------------------------------------------------------------
7 percent........................       $1,420         $880         $330
13 percent.......................        1,620        1,080          530
18 percent.......................        1,790        1,240          700
------------------------------------------------------------------------


[[Page 82189]]


Table 7--Estimated Benefits by Amount of Sleep and Crash Rate for Option
                           4 (9 Hours Driving)
                           [Millions per year]
------------------------------------------------------------------------
                                      Assumed amount of nightly sleep
Assumed percent of crashes due to --------------------------------------
             fatigue                               Medium
                                    Low sleep      sleep      High sleep
------------------------------------------------------------------------
7 percent........................       $2,650       $1,320         -$10
13 percent.......................        3,210        1,880          560
18 percent.......................        3,680        2,350        1,030
------------------------------------------------------------------------

    Table 8 below presents the net benefits of Options 2 through 4 for 
all three baseline sleep scenarios. These figures use the 13 percent 
fatigue-involvement scenario described above. Option 3 has the highest 
net benefits for the medium and high sleep scenarios, while Option 2 
has slightly higher net benefits in the low sleep scenario. The higher 
net benefits of Option 3 are due to the allowance of 11 hours of 
driving per day, which reduces productivity losses to the industry. 
Option 2 results in greater safety benefits than Option 3; and for 
high-benefit scenarios, the monetary value of those safety improvements 
outweighs their economic impact. Furthermore, this option appears 
likely to be cost beneficial under all but the most optimistic 
assumptions about how much sleep drivers get under the current rule. 
Under Option 4, the economic costs to industry are likely to outweigh 
the combined benefits of crash reductions and improvements in driver 
health. The high negative value for Option 4 for high baseline sleep is 
the result of the U-shaped relationship between average sleep per night 
and mortality rates mentioned above. Although the analysis shows a 
negative health benefit for drivers with medium and high baseline 
levels of sleep, FMCSA does not believe that these negative benefits 
would be realized because drivers might choose other activities rather 
than sleeping if they are getting enough sleep already. The negative 
benefits are included in the analysis to be consistent with assumptions 
regarding the other scenarios.

                                         Table 8--Net Benefits by Option
                                               [Millions per year]
----------------------------------------------------------------------------------------------------------------
                                                                    Option 2 10     Option 3 11     Option 4 9
                                                                     hours of        hours of        hours of
                      Net benefit scenario                            driving         driving         driving
                                                                      allowed         allowed         allowed
----------------------------------------------------------------------------------------------------------------
Low Baseline Sleep..............................................          $1,170          $1,100            $900
Medium Baseline Sleep...........................................             380             560            -420
High Baseline Sleep.............................................            -410              10          -1,750
----------------------------------------------------------------------------------------------------------------

    In addition to the quantified and monetized benefits discussed 
above, there may be other health benefits that shorter work days and 
weeks could produce. Research indicates that the metabolic and 
endocrine disruptions associated with short sleep time and long work 
hours are significantly related to obesity.\51\ Obesity is in turn 
associated with higher incidences of diabetes, CVDs, hypertension, and 
obstructive sleep apnea.\52\ These medical conditions impose costs on 
drivers who suffer from them and affect the quality of their lives. 
Sedentary work alone is also associated with obesity and mortality 
impacts.\53\
---------------------------------------------------------------------------

    \51\ Van Cauter, E. & Knutson, K., ``Sleep and the Epidemic of 
Obesity in Children and Adults,'' European Journal of Endocrinology, 
Vol. 159, 2008, pp. S59-66. FMCSA-2004-19608-3991.
     Di Milia, L. & Mummery, K. (2009).
    \52\ Mokdad, A.H., Ford, E.S., Bowman, B.A., Dietz, W.H., 
Vinicor, F., Bales, V.S. & Marks, J.S., ``Prevalence of Obesity, 
Diabetes, and Obesity-Related Health Risk Factors, 2001,'' Journal 
of the American Medical Association, Vol. 289, No. 1, 2003, pp. 76-
79. FMCSA-2004-19608-4016.
    \53\ Katzmarzyk, P.T., Church, T.S., Craig, C.L. & Bouchard, C., 
``Sitting Time and Mortality from All Causes, Cardiovascular 
Disease, and Cancer,'' Medicine and Science in Sports and Exercise, 
Vol. 41, No. 5, May 2009, pp. 998-1005. FMCSA-2004-19608-4001.
---------------------------------------------------------------------------

    Research on the health and health costs found that CMV drivers are 
both heavier for their height and less healthy than adult males as a 
whole. As discussed in Section V. of this NPRM, drivers are far more 
likely than adult male workers as a whole to be obese. Table 9 presents 
the distribution of drivers by weight category and the incidence of 
health conditions for drivers in each weight group, taken from a study 
that used medical examination records and health insurance claims of 
2,950 LTL drivers.\54\ (The national statistics for the incidence of 
health conditions among adult males include men over 70, who may have 
higher incidences of some conditions than the younger working 
population.)
---------------------------------------------------------------------------

    \54\ Martin, B.C., et al. (2009).

                              Table 9--Driver Health Conditions by Weight Category
----------------------------------------------------------------------------------------------------------------
                                               Presence of at
                                  Percent        least one                                             High
           N=2,950              drivers in      health risk      Hypertension       Diabetes       cholesterol
                                  weight           factor         (percent)        (percent)        (percent)
                                 category        (percent)
----------------------------------------------------------------------------------------------------------------
Normal weight...............              13  26.............  21.............  5..............  11
Overweight..................              30  39.............  31.............  10.............  17

[[Page 82190]]

 
Obese.......................              55  59.............  51.............  21.............  26
Overall.....................  ..............  48.............  41.............  16.............  21
National adult male (CDC      ..............  ...............  31.80..........  10.9 (7.4%       15.60
 statistics).                                                                    diagnosed).
----------------------------------------------------------------------------------------------------------------

    FMCSA has not attempted to quantify the benefits of improved health 
that may accrue to drivers who have more time off. First, the Agency 
does not have dose-response curves that it can use to associate sleep 
time with mitigation or exacerbation of the various health impacts 
other than sleep loss itself. Second, the Agency has no basis for 
estimating the extent to which drivers who have an extra hour a day or 
extra hours per week off duty will use that time to exercise and sleep. 
Third, many of the health impacts are linked to obesity; given the 
difficulty most people have in losing weight, it would be unjustifiably 
optimistic to attempt to estimate the degree of potential weight loss.
    The health consequences of long hours, inadequate sleep, and long 
stretches of sedentary work are, however, significant: They cause 
serious health conditions that may shorten a driver's life and increase 
healthcare costs. In addition, some studies have linked obesity to 
increased crash risks, including a recent analysis of the VTTI data, 
which found that obese CMV drivers were between 1.22 and 1.69 times as 
likely to drive while fatigued, 1.37 times more likely to be involved 
in a safety-critical event, and at 1.99 times greater risk of being 
above the fatigue threshold as measured by eye closure when 
driving.\55\
---------------------------------------------------------------------------

    \55\ Wiegand, D.M., Hanowski, R.J. & McDonald, S.E., 
``Commercial Drivers' Health: A Naturalistic Study of Body Mass 
Index, Fatigue, and Involvement in Safety-Critical Events,'' Traffic 
Injury Prevention, Vol. 10, No. 6, December 2009, pp. 573-579. 
FMCSA-2004-19608-3994.
---------------------------------------------------------------------------

Conclusion
    In conclusion, the RIA shows an annualized cost of about $1 billion 
for Option 2, about $500 million for Option 3, and over $2 billion for 
Option 4. Annual safety and health benefit estimates range from below 
$300 million to more than $2.4 billion in quantifiable benefits for 
Option 2, from $300 million to more than $1.7 billion for Option 3, and 
from negative $10 million to more than $3.6 billion for Option 4. Net 
quantifiable benefits, as a result, are likely to be positive, but 
could, under the 13 percent baseline fatigue involvement scenario, 
range from a negative $410 million per year to more than a positive 
$1.1 billion per year for Option 2, from a negative $10 million to a 
positive $1.1 billion for Option 3, and from more than a negative $1.8 
billion to more than a positive $900 million for Option 4.
    The wide range in estimated quantifiable benefits and net 
quantifiable benefits is a consequence of the difficulty of measuring 
fatigue and fatigue reductions, which are complex and often subjective 
concepts, in an industry with many different participants and diverse 
operational patterns. Uncertainty in the value of avoided deaths and 
greater expected lifespans create yet more uncertainty, the quantified 
benefits would be higher for higher values of ``statistical lives.'' 
Still, it seems clear that the quantifiable benefits could easily be 
quite substantial, and could easily exceed the costs.
    The costs, for their part, are large in absolute terms but minor 
when compared to the size of the industry: $1 billion per year (the 
total annualized cost for Option 2) is only half of 1 percent of 
revenues, $500 million per year (the total annualized cost for Option 
3) is only one quarter of 1 percent of revenues, and $2 billion per 
year (the total annualized cost for Option 4) is only 1 percent of 
revenues in the for-hire long-haul segment of the industry. These total 
annual costs are an even smaller fraction of revenues of the long-haul 
segment as a whole. As an additional example, the costs of Option 2 are 
equivalent to less than a $0.02 per gallon increase in industry fuel 
costs, which is a minimal increase in an industry used to wide swings 
in fuel costs. Between 2006 and 2010, diesel fuel prices ranged from 
$2.09 a gallon to $4.70 a gallon.\56\
---------------------------------------------------------------------------

    \56\ http://tonto.eia.doe.gov/oog/info/gdu/gasdiesel.asp, 
accessed May 11, 2010.
---------------------------------------------------------------------------

    Compared to the other two options that were analyzed, Option 2 
would have roughly twice the costs of Option 3 (which allows 11 hours 
of daily driving), and less than half the cost of Option 4 (which 
allows 9 hours). In keeping with their relative stringencies, Option 3 
has lower and Option 4 has higher projected benefits than Option 2. 
Option 4's substantially larger costs do not appear to be justified by 
its generally higher range of benefits. While both Option 2 and Option 
3 are generally cost-effective, Option 3's calculated net benefits 
appear likely to be somewhat higher than the net benefits of Option 2 
under most assumptions about baseline conditions.
    The Agency's goal of improving highway safety and protecting driver 
health, combined with the potentially significant but unquantifiable 
health benefits of reductions in maximum working and driving hours, 
make Option 2 a reasonable choice. Nonetheless, because of the costs of 
Option 2, the Agency requests additional data before making its final 
decision.
    The Agency requests commenters to submit, to the extent possible, 
statistically reliable information on the costs and benefits of Options 
2 and 3, especially with regard to a 10- and 11-hour driving limit, but 
also on other aspects of this NPRM of interest to the public. When 
submitting analyses of data, it is important to provide enough 
information on how the data were collected and enough actual data to 
allow FMCSA to determine if the conclusions drawn are justified by the 
underlying data.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
Federal Agencies to determine whether proposed rules could have a 
significant economic impact on a substantial number of small entities. 
FMCSA conducted an Initial Regulatory Flexibility Analysis (IRFA) to 
analyze the impact of the proposed changes to the HOS regulations on 
small entities. After a description of why action is being taken by the 
Agency, this IRFA discusses the possible number of affected small 
entities. FMCSA estimates the impact of the new HOS rule provisions on 
small carriers in the first year in which the rule would be in

[[Page 82191]]

effect for Options 2 and 3. We then estimate the annual burden on small 
entities over the first 10 years of the rule being in effect. Lastly, 
we discuss the reporting, recordkeeping, and other compliance 
requirements of the proposed rule, discuss whether any other Federal 
regulations overlap with the proposed rule, and discuss the 
consideration of alternatives to minimize the impact of the proposed 
rule on small entities.
1. A Description of the Reasons Why Action by the Agency is Being 
Considered
    The goals of the proposed changes to the HOS rule are to improve 
safety while ensuring that the requirements would not have an adverse 
impact on driver health. The proposed rule would also provide drivers 
with the flexibility to obtain rest when they need it and to adjust 
their schedules to account for unanticipated delays. The impact of HOS 
rules on CMV safety is difficult to separate from the many other 
factors that affect heavy-vehicle crashes. While the Agency believes 
that the data show no decline in highway safety since the 
implementation of the 2003 HOS rule and its re-adoption in the 2005 HOS 
rule, the 2007 IFR, and the 2008 HOS rule (73 FR 69567, 69572, Nov. 19, 
2008), the total number of crashes, though declining, is still 
unacceptably high. Moreover, the source of the decline in crashes is 
unclear. FMCSA believes that, with the 10-hour option, the modified HOS 
rules proposed in this NPRM, coupled with FMCSA's many other safety 
initiatives and assisted by the actions of an increasingly safety-
conscious motor carrier industry, would result in continued reductions 
in fatigue-related CMV crashes and fatalities. Furthermore, with the 10 
hour option, the proposed rule is intended to protect drivers from the 
serious health problems associated with excessively long work hours, 
without significantly compromising their ability to do their jobs and 
earn a living.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The objectives of the proposed rule are to reduce large-truck 
involved crashes--especially those where fatigue is a causative 
factor--and protect drivers against the adverse health impacts of 
working excessively long hours. This proposed rule is based on the 
authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety 
Act of 1984. See the Legal Basis section earlier in this document for a 
discussion of these two Acts. Before prescribing any regulations, FMCSA 
must also consider their ``costs and benefits'' (49 U.S.C. 
31136(c)(2)(A) and 31502(d)). Those factors are also discussed in this 
proposed rule.
3. A Description of and, Where Feasible, an Estimate of the Number of 
Affected Small Entities to Which the Proposed Rule Will Apply
    The HOS regulations apply to both large and small motor carriers. 
The Small Business Administration defines a small entity in the truck 
transportation sub-sector (North American Industry Classification 
System [NAICS] 484) as an entity with annual revenue of less than $25.5 
million [13 CFR 121.201]. Using data from the 2007 Economic Census, 
FMCSA estimated that the average carrier earns almost $200,000 in 
annual revenue per truck for firms with multiple power units,\57\ 
suggesting that a typical carrier that qualifies as a small business 
would have fewer than 128 ($25.5 million/$200,000) power units (i.e., 
trucks or tractors) in its fleet. Also using data from the 2007 
Economic Census, FMCSA estimated that sole proprietorships earned 
approximately $85,000 in annual revenue.\58\
---------------------------------------------------------------------------

    \57\ As shown in the ``2007 Economic Census,'' the entire 
trucking industry (NAICS code 484) generated revenue of $228,907 
million (in 2006 dollars). FMCSA then used 2007 Economic Census data 
for NAICS code 484 to derive a total estimate of 1,183,000 trucks in 
the for-hire sector. FMCSA then divided total revenue by the total 
number of trucks to obtain an estimate of average revenue of 
$193,000 in 2006 dollars, or $199,967 inflated to 2008 dollars using 
the Gross Domestic Product (GDP) Deflator (http://cost.jsc.nasa.gov/inflateGDP.html). This $199,967 value was rounded to $200,000 in the 
analysis.
    \58\ There were 499,706 individual proprietorships in the 
``truck transportation'' NAICS code with total revenue of $41,110 
million. Dividing the total revenue by the total number of firms 
resulted in average revenue per firm of $82,269 in 2006 dollars, or 
$85,239 when inflated to 2008 dollars using the GDP Deflator (http://cost.jsc.nasa.gov/inflateGDP.html). This $85,239 value was rounded 
to $85,000 in the analysis.
---------------------------------------------------------------------------

    To determine the number of affected small entities, we used the 
analysis conducted by FMCSA for the Unified Carrier Registration (UCR) 
rule.\59\ The economic analysis for the UCR rule divided carriers into 
brackets based on their fleet size (i.e., number of power units), and 
estimated the number of carriers in each bracket. These brackets and 
their corresponding numbers of carriers are shown in Table 10. 
According to these estimates and the above-mentioned characterizations 
of small entities in the trucking industry, all of the carriers in 
Brackets 1 through 4 would qualify as small entities, as would many of 
the carriers in Bracket 5. Therefore, this analysis estimates that 
between 422,196 (Brackets 1 through 4) and 425,786 (Brackets 1 through 
5) small entities would be affected by the HOS rule changes. This range 
may overstate the number of affected small entities because many 
private carriers with small fleets may not qualify as small businesses 
because their primary business is not the movement of freight. These 
private firms would thus have other sources of revenue and fall under 
different NAICS codes.
---------------------------------------------------------------------------

    \59\ FMCSA, ``Regulatory Evaluation of the Fees for the Unified 
Carrier Registration Plan,'' February 19, 2010. Available in the 
docket: FMCSA-2009-0231-0181.

               Table 10--Number of Carriers by Fleet Size
  [From FMCSA's Analysis of the Unified Carrier Registration Plan Rule]
------------------------------------------------------------------------
                                                             Number of
             Bracket                     Fleet size          carriers
------------------------------------------------------------------------
1................................  1....................         194,425
2................................  2-5..................         145,266
3................................  6-20.................          65,155
4................................  21-100...............          17,350
5................................  101-1,000............           3,590
6................................  1,001-More...........             292
------------------------------------------------------------------------
    Total........................  .....................         433,535
------------------------------------------------------------------------


[[Page 82192]]

    Table 11 below presents figures for private carriers by NAICS code 
for industries with large numbers of drivers (and hence the likelihood 
of large numbers of fleets). The table includes the total number of CMV 
drivers working in each industry, the percentage of payroll those 
drivers account for, and the payroll of those industries as a percent 
of total industry revenue. Some of these industries have SBA size 
thresholds that are considerably lower than the threshold for truck 
transportation, strongly suggesting that many firms in these industries 
that would be considered small using the threshold of 128 power units 
are actually large. For example, a wholesaler with 128 trucks is 
certainly a large firm because it will have more than 100 employees. 
Other industries have thresholds as high as 1,500 full-time equivalent 
employees (FTEs); a firm in one of these industries might rank as small 
with even more than 128 power units if the number of power units in its 
fleet were large compared to the size of its workforce (e.g., if it had 
300 power units, and only three employees per power unit, it could be 
considered small in an industry with a threshold of 1,500 FTEs). From 
Table 11, however, this circumstance is not likely to be common: In 
firms in NAICS 21 and 31-33, which have high FTE thresholds, drivers 
make up only a very small percentage of the workforce. Thus, firms with 
a substantial numbers of power units are likely to have much larger 
labor forces, and are therefore likely to rank as large firms. Given 
these considerations, we are, if anything, over-counting the number of 
private carriers that would qualify as small businesses.

                               Table 11--Private Carriers and Drivers by Industry
----------------------------------------------------------------------------------------------------------------
                                                                                    Drivers as      Payroll as
            NAICS                  Industry        SBA standard      Number of    percent of all    percent of
                                                                      drivers        employees       revenues
----------------------------------------------------------------------------------------------------------------
21...........................  Mining,           500 FTE........          29,900            4.17              10
                                Quarrying, and
                                Oil and Gas
                                Extraction.
23...........................  Construction....  $14 million to          127,200            1.76              19
                                                  $33.5 million.
31-33........................  Manufacturing...  500-1,500 FTE..         238,600            1.78              11
42...........................  Wholesale.......  100 FTE........         509,000            8.53             5.5
44-45........................  Retail..........  $7 million to           307,900            2.01              10
                                                  $29 million.
53...........................  Real Estate and   $7 million to            40,500             1.9              18
                                Leasing.          $25 million.
56...........................  Administrative    $7 million to           132,300            1.64              46
                                and Support and   $35.3 million.
                                Waste
                                Management and
                                Remediation
                                Services.
722..........................  Food Services...  $7 million.....         175,400            1.82              29
81...........................  Other Services..  $7 million.....          44,000            0.80              24
----------------------------------------------------------------------------------------------------------------

First Year Impacts on Small Entities
    Affected small entities would incur several types of costs as a 
result of the HOS rule provisions. First, as discussed in the HOS RIA, 
carriers would incur annual costs due to losses in productivity. As 
discussed in the HOS RIA, these productivity impacts are roughly $990 
million per year for Option 2 and $480 million per year for Option 3. 
We divided this total productivity impact by the approximate number of 
long-haul drivers (1,600,000) to obtain an annual per driver 
productivity impact of approximately $620 for Option 2 and $400 for 
Option 3. We then converted these per driver impacts to per power unit 
impacts (shown below in Tables 12 and 13). For sole proprietorships, we 
assumed for this analysis that these were single power unit firms and 
there was one driver per tractor. The total annual operational cost for 
sole proprietorships was thus $620 ($620 x 1) for Option 2 and $300 
($300 x 1) for Option 3.\60\ For firms with multiple power units, this 
analysis assumes that multiple unit carriers have 1.1 drivers per power 
unit.\61\ The annual per power unit operational cost for firms with 
multiple power units was thus $682 ($620 x 1.1) for Option 2 and $330 
($300 x 1.1) for Option 3.
---------------------------------------------------------------------------

    \60\ In this analysis, we consider sole proprietorships 
separately due to the fact that these firms tend to have low 
revenues and are thus impacted by the proposed rule differently than 
larger firms. We have assumed that sole proprietorships have one 
power unit, but their defining characteristic is their average 
revenues and not the number of power units they have.
    \61\ FMCSA, ``SAFER Data: Average Drivers per Power Unit for TL 
Firms,'' http://safer.fmcsa.dot.gov/.
---------------------------------------------------------------------------

    In addition to the productivity impacts, each carrier would incur 
one-time costs for training in the requirements of the new rule. To 
estimate the training cost, we used information from Agency personnel 
who participated in previous HOS retraining efforts to determine that 
each driver would need to take a one-time 2-hour training course to 
ensure compliance with the new rule provisions. As described in Chapter 
6 of the RIA, we used a loaded average hourly rate of $23.96 (wages 
plus fringe benefits) for the industry. The 2-hour training course thus 
resulted in a cost of approximately $48 per driver.
    Carriers would incur additional one-time costs for software 
reprogramming and other transition costs. As discussed in the RIA, 
reprogramming and other transition costs were estimated using 
information obtained from the HOS listening sessions conducted in 
various locations in early 2010. Based on information from these 
sessions, we assumed that the total one-time training, reprogramming, 
and other transition costs were about $200 per driver (including the 
$48 training cost discussed above). For sole proprietorships, we again 
assumed one driver per power unit for a total one-time cost of $200 per 
power unit. We view this estimate as conservative due to the fact that 
many firms will not incur any programming costs. We again assumed that 
carriers with multiple units have 1.1 drivers per power unit, for a 
total one-time cost of $220 per power unit.\62\ These one-time costs 
for sole proprietorships and multiple power unit firms are the same for 
Options 2 and 3, and are shown below in Table 12.
---------------------------------------------------------------------------

    \62\ FMCSA, ``SAFER Data: Average Drivers per Power Unit for TL 
Firms,'' http://safer.fmcsa.dot.gov/.
---------------------------------------------------------------------------

    To estimate the first-year costs per-power unit for affected firms, 
the annual and one-time costs for Option 2 and 3 were summed as shown 
in Tables 12 and 13. For Option 2, this calculation resulted in a total 
first-year cost to sole proprietorships of $820 per power-unit in the 
first year and a total first-year cost to firms with multiple power 
units of

[[Page 82193]]

$902 per power unit. For Option 3, this calculation resulted in a total 
first-year cost to sole proprietorships of $500 per power unit in the 
first year and a total first-year cost to firms with multiple power 
units of $550 per power unit.

                    Table 12--First-Year Costs to Affected Firms per Power Unit for Option 2
----------------------------------------------------------------------------------------------------------------
                                                                  Cost per power unit      Cost per power unit
                         Type of cost                            (sole proprietorship)     (multiple power unit
                                                                          \a\                   firm) \a\
----------------------------------------------------------------------------------------------------------------
Annual Operating Cost (A).....................................                     $620                     $682
One Time Training, Reprogramming, and Other Costs (B).........                      200                      220
                                                               -------------------------------------------------
    Total First Year Cost (A + B).............................                      820                      902
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.


                    Table 13--First-Year Costs to Affected Firms per Power Unit for Option 34
----------------------------------------------------------------------------------------------------------------
                                                                  Cost per power unit      Cost per power unit
                         Type of cost                            (sole proprietorship)     (multiple power unit
                                                                          \a\                   firm) \a\
----------------------------------------------------------------------------------------------------------------
Annual Operating Cost (A).....................................                     $300                     $330
One Time Training, Reprogramming, and Other Costs (B).........                      200                      220
                                                               -------------------------------------------------
    Total First Year Cost (A + B).............................                      500                      550
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.

    Next, we compared the estimated first-year costs to the average 
revenue for sole proprietorships and multiple power unit firms for 
Options 2 and 3 (shown in Tables 14 and 15). As noted earlier, average 
revenues for different sized firms were taken from 2007 Economic Census 
data.\63\ For Option 2, the first year costs of the proposed rule 
changes would be equal to 0.96 percent of average revenue for sole 
proprietorships and 0.45 percent of average revenue for multiple unit 
carriers. For Option 3, the first year costs of the proposed rule 
changes would be equal to 0.59 percent of average revenue for sole 
proprietorships and 0.28 percent of average revenue for multiple unit 
carriers. Thus, when looking only at first year costs for Options 2 and 
3, the new HOS rule is not expected to have a significant impact on the 
average sole proprietorship or firm with multiple power units. Because 
of variability in both the first-year costs and the average revenues to 
which they are compared, however, the impact on firms would vary. It is 
thus likely that the impact of the first year costs would be higher for 
some carriers, rising to a level that could be considered significant.
---------------------------------------------------------------------------

    \63\ To be conservative in assessing potential impacts, the 
revenues per power unit are based only upon for-hire firms (that is, 
those in Truck Transportation). Drivers make up only a small 
fraction of the labor force in other industries, which underlines 
the point that transportation is a small part of their operations. 
When the Agency has looked at the impact on private carriers in 
relation to their revenue in the past, the percentage impact of 
costs to private carriers as a share of revenue have been generally 
been an order of magnitude smaller than the impacts on for-hire 
trucking firms.

                       Table 14--Impact of First-Year Costs on Affected Firms for Option 2
----------------------------------------------------------------------------------------------------------------
                                                                                           Multiple power unit
                         Type of cost                             Sole proprietorships            firms
----------------------------------------------------------------------------------------------------------------
First Year Cost Per Power Unit (A) \a\........................                     $820                     $902
Annual Revenue Per Power Unit (B) \b\.........................                  $85,239                 $199,967
First Year Cost Impact as a Percentage of Annual Revenue (A/B)                    0.96%                    0.45%
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.
\b\ FMCSA analysis of 2007 Economic Census data.


                       Table 15--Impact of First-Year Costs on Affected Firms for Option 3
----------------------------------------------------------------------------------------------------------------
                                                                                           Multiple power unit
                         Type of cost                             Sole proprietorships            firms
----------------------------------------------------------------------------------------------------------------
First Year Cost Per Power Unit (A) \a\........................                     $500                     $552
Annual Revenue Per Power Unit (B) \b\.........................                  $85,239                 $199,967
First Year Cost Impact as a Percentage of Annual Revenue (A/B)                    0.59%                    0.28%
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.
\b\ FMCSA analysis of 2007 Economic Census data.

Annual Burden on Affected Small Entities
    To analyze the annual burden on affected small entities for Options 
2 and 3, we amortized the one-time costs over a 10-year period, 
assuming a 7 percent discount rate. As shown in Table 16 for Option 2, 
the sum of the annual operating costs and the amortized one-time costs 
resulted in an annual burden of $647 per year over 10 years for sole 
proprietorships and an annual burden of $711 per year over 10 years for 
firms with multiple power units. As shown in Table 17 for Option 3, the 
sum of the

[[Page 82194]]

annual operating costs and the amortized one-time costs resulted in an 
annual burden of $327 per year over 10 years for sole proprietorships 
and an annual burden of $359 per year over 10 years for firms with 
multiple power units.
    Next, we compared the annual burden to the average annual revenues 
of affected firms. As shown in Table 16, the annual costs of Option 2 
are 0.76 percent of average annual revenue for sole proprietorships and 
0.36 percent of average revenue for carriers with multiple power units. 
As shown in Table 17, the annual costs of Option 3 are 0.38 percent of 
average annual revenue for sole proprietorships and 0.18 percent of 
average revenue for carriers with multiple power units. These 
percentages fall below what the Agency views as a reasonable threshold 
for a significant impact. However, as mentioned above, the impact may 
vary across carriers. Therefore, the annual impact of the regulations 
on some affected carriers may be significant in relation to their 
revenue.

                      Table 16--Annual Impact of Costs on Firms Over 10 Years for Option 2
----------------------------------------------------------------------------------------------------------------
                                                                                           Multiple power unit
                         Type of cost                             Sole proprietorships            firms
----------------------------------------------------------------------------------------------------------------
Annual Cost per Power Unit (One Time Costs Amortized Over 10                       $647                     $711
 Years) (A) \a\...............................................
Annual Revenue per Power Unit (B) \b\.........................                  $85,239                 $199,967
Annual Cost Impact as a Percentage of Annual Revenue (A/B)....                    0.76%                    0.36%
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.
\b\ FMCSA analysis of 2007 Economic Census data.


                      Table 17--Annual Impact of Costs on Firms Over 10 Years for Option 3
----------------------------------------------------------------------------------------------------------------
                                                                                           Multiple power unit
                         Type of Cost                             Sole proprietorships            firms
----------------------------------------------------------------------------------------------------------------
Annual Cost per Power Unit (One Time Costs Amortized Over 10                       $327                     $359
 Years) (A) \a\...............................................
Annual Revenue per Power Unit (B) \b\.........................                  $85,239                 $199,967
Annual Cost Impact as a Percentage of Annual Revenue (A/B)....                    0.38%                    0.18%
----------------------------------------------------------------------------------------------------------------
\a\ FMCSA analysis.
\b\ FMCSA analysis of 2007 Economic Census data.

4. Discussion of the Impact on Affected Small Entities
    The analysis of the impact of the HOS rule on small entities shows 
that, while it is unlikely for the rule to have a significant impact on 
most small entities, FMCSA cannot certify that there would be no 
significant impacts. For a typical firm, the first year costs of 
Options 2 and 3 are below 1 percent of revenues, as are the average 
annual costs when society spreads the costs over 10 years.
    However, projecting the distribution of impacts across carriers, 
few of which fit the definition of typical, is made more difficult by 
the variability in both costs and revenues. The new HOS rule provisions 
are designed to rein in the most extreme patterns of work while leaving 
more moderate operations largely unchanged. As a result, we project a 
substantial majority of the costs of the rule to fall on the sixth of 
the industry currently logging the most hours per week. Thus, most 
carriers are likely to be almost unaffected, while a minority would 
experience productivity impacts--and hence costs--well above the 
industry average.
    Average revenues presumably range widely as well, meaning that the 
ratio of costs to revenues is difficult to characterize. Because 
greater work intensities are likely to generate greater revenues, 
though, the impacts and revenues per power unit are likely to be 
positively correlated: The carriers for which productivity is curtailed 
the most and which would incur the greatest costs would, therefore, be 
likely to have unusually large revenues per power unit as well.
    These heavily affected carriers would still be likely to face costs 
that exceed the threshold used to define significant impacts. On the 
other hand, they could also have unusually high rates of profit in the 
baseline; because their drivers are currently putting in the most hours 
of work per week, they are able to spread their fixed costs over more 
hours. In other words, most of the impacts of the new HOS rule are 
likely to fall on the carriers with the greatest revenues and profit 
potential in the industry. These circumstances should reduce concern 
that large numbers of small carriers would experience significant 
impacts.
    Another consideration in assessing the seriousness of the rule's 
impacts is that the industry is now gaining strength after an unusually 
deep recession. That recession depressed demand for transportation 
services. As the economy recovers, demand for the motor carrier 
industry is likely to recover as well, meaning that the new HOS rule's 
impacts could be experienced more as limitations on the potential 
growth in revenues than absolute reductions.
    In recognition of the fact that the rule may significantly impact 
small entities, FMCSA explored options for decreasing the burden on 
small entities. FMCSA did not consider the option of exempting small 
entities from this rule because doing so would substantially decrease 
the safety benefits of the rule due to the large number of drivers 
working for small entities. The rule addresses fatigue of individual 
drivers, which is not affected by the size of the employer. Several 
provisions of the proposed rule, including the restart provision, the 
opportunity for 16-hour driving windows, and the break provisions, 
however, were designed to afford maximum flexibility for drivers who 
work close to the legal maximum limits, thus reducing the productivity 
impacts on carriers while still realizing the safety benefits of the 
new rule. FMCSA expects small carriers and owner-operators to be among 
the main beneficiaries of these provisions.
5. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for the Preparation of 
the Report or Record
    The proposed rule does not change recordkeeping or reporting 
requirements. Drivers are required, by current rules, to keep records 
of duty status that document their daily and

[[Page 82195]]

weekly on-duty and driving time, and submit these records of duty 
status to their employing motor carrier on a bi-weekly basis. This rule 
would not change or add to this recordkeeping requirement for drivers 
or carriers. Drivers in all segments of the industry, including 
independent owner-operators, are well accustomed to complying with 
these recordkeeping and reporting requirements, and no professional 
skill over and above those skills that drivers already possess would be 
necessary for preparing these reports. All small entities within the 
industry would be subject to these rules. The type and classes of these 
small entities are described in the previous section of this analysis.
6. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules Which May Duplicate, Overlap, or Conflict with this 
Proposal
    The Agency is unaware of any Federal rules which may duplicate, 
overlap, or conflict with the proposed rule.
7. A Description of Any Significant Alternatives to the Proposed Rule 
Which Minimize Any Significant Impact on Small Entities
    The Agency did not identify any significant alternatives to the 
proposed rule that could lessen the burden on small entities without 
compromising its goals. This rule is targeted at preventing driver 
fatigue, and the Agency is unaware of any alternative to restricting 
driver work that the Agency has authority to implement that would 
address driver fatigue. This rule impacts motor carrier productivity 
proportionally to the number of drivers a motor carrier employs and the 
intensity of the schedules that motor carrier's drivers work. It is not 
obvious that productivity losses would be greater for small entities 
than for larger firms. To the extent that drivers working for a small 
entity work more intense schedules, that entity may experience greater 
productivity losses than a carrier whose drivers work less intensely on 
a daily and weekly basis. However, there appears to be no alternative 
available to the Agency that would limit driver fatigue while allowing 
more work. To improve public safety, all drivers, regardless of the 
size of the carrier they work for, must work within reasonable limits.
    The recordkeeping and reporting burdens related to this rule would 
also affect entities proportional to the number of drivers they employ, 
and therefore does not disproportionately affect small motor carriers 
in any way. As noted above, drivers in all segments of the industry, 
working for entities of all sizes, are accustomed to compiling and 
submitting records of duty status on a regular basis. This rule would 
therefore not place an undue recordkeeping or reporting burden on 
smaller entities. The Agency seeks public comment on all aspects of 
this Initial Regulatory Flexibility Analysis.

C. Paperwork Reduction Act

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. National Environmental Policy Act

    The Agency analyzed this NPRM for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004 in the Federal Register (69 FR 9680), that this action 
will not have a significant impact on the environment. FMCSA has also 
analyzed this proposed rule under the Clean Air Act, as amended (CAA) 
section 176(c), (42 U.S.C. 7401 et seq.) and implementing regulations 
promulgated by the Environmental Protection Agency. Approval of this 
action is exempt from the CAA's general conformity requirement since it 
would not result in any potential increase in emissions that are above 
the general conformity rule's de minimis emission threshold levels (40 
CFR 93.153(c)(2)). A copy of the Environment Assessment is available in 
the docket.

E. Executive Order 13132 (Federalism)

    A rule has implications for Federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. This action has been analyzed in 
accordance with E.O. 13132. FMCSA has determined this rule would not 
have a substantial direct effect on States, nor would it limit the 
policymaking discretion of States. Nothing in this document preempts 
any State law or regulation.

F. Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis (PTA) for the proposed 
rule on hours of service and determined that it is not a privacy-
sensitive rulemaking because the rule will not require any collection, 
maintenance, or dissemination of Personally Identifiable Information 
(PII) from or about members of the public.

G. Executive Order 12630 (Taking of Private Property)

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

H. Executive Order 12988 (Civil Justice Reform)

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

I. Executive Order 13045 (Protection of Children)

    FMCSA analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule would not create an environmental risk to health or 
risk to safety that might disproportionately affect children.

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

    FMCSA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA determined that it is not a ``significant 
energy action'' under that order. Though it is a ``significant 
regulatory action'' under Executive Order 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

K. Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this NPRM in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impact that could result from its 
promulgation. Environmental justice issues would be raised if there 
were ``disproportionate'' and ``high and adverse impact'' on minority 
or low-income populations. None of the alternatives analyzed in the 
Agency's EA, discussed under NEPA, would result in high and adverse 
environmental impacts.

[[Page 82196]]

L. Unfunded Mandate Reform Act

    The Unfunded Mandate Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the net expenditure by a State, local, or Tribal government, 
in the aggregate, or by the private sector of $140.3 million or more in 
any one year. Though this rule would not result in a net expenditure at 
this level, the economic impacts of the proposed rule have been 
analyzed in the RIA.

List of Subjects

49 CFR Part 385

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

49 CFR Part 386

    Administrative practice and procedure, Brokers, Freight forwarders, 
Hazardous materials transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Penalties.

49 CFR Part 390

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

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, FMCSA is proposing to amend 49 
CFR Chapter III, parts 385, 386, 390, and 395 as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation continues to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec. 
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L. 
107-87; and 49 CFR 1.73.

    2. In Appendix B to part 385, amend section VII, List of Acute and 
Critical Violations, as follows:
    a. Revise the entries for Sec.  395.3(a)(1) and Sec.  395.3(a)(2);
    b. Add two entries for Sec.  395.3(a)(3) and one entry for Sec.  
395.3(a)(4); and
    c. Remove the entries for Sec.  395.3(c)(1), Sec.  395.3(c)(2), and 
Sec.  395.1(o).

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

* * * * *
    Sec.  395.3(a)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive without taking an off-duty 
period of at least 10/11 consecutive hours prior to driving 
(critical).
    Sec.  395.3(a)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive or be on duty after the end 
of the 14th hour after coming on duty and after the end of the 16th 
hour after coming on duty on 2 days out of the previous 168 
consecutive hours (critical).
    Sec.  395.3(a)(3) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 10/11 hours 
(critical).
    Sec.  395.3(a)(3) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive if more than 7 hours have 
passed since the driver's last off-duty or sleeper-berth period of 
at least 30 minutes (critical).
    Sec.  395.3(a)(4) Requiring or permitting a property-carrying 
commercial motor vehicle driver to be on duty more than 13 hours 
during a 14-hour or 16-hour driving window (critical).
* * * * *

    3. Amend Appendix C to part 385 as follows:
    a. Revise the entries for Sec.  395.3(a)(1) and Sec.  395.3(a)(2);
    b. Add two entries for Sec.  395.3(a)(3) and one entry for Sec.  
395.3(a)(4);
    c. Remove the entries for Sec.  395.3(c)(1), Sec.  395.3(c)(2), and 
Sec.  395.1(o).

Appendix C to Part 385--Regulations Pertaining to Remedial Directives 
in Part 385, Subpart J

* * * * *
    Sec.  395.3(a)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive without taking an off-duty 
period of at least 10 consecutive hours prior to driving.
    Sec.  395.3(a)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive or be on duty after the end 
of the 14th hour after coming on duty and after the end of the 16th 
hour after coming on duty on 2 days out of the previous 168 
consecutive hours.
    Sec.  395.3(a)(3) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 10/11 hours.
    Sec.  395.3(a)(3) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive if more than 7 hours have 
passed since the driver's last off-duty or sleeper-berth period of 
at least 30 minutes.
    Sec.  395.3(a)(4) Requiring or permitting a property-carrying 
commercial motor vehicle driver to be on duty more than 13 hours 
during a 14-hour or 16-hour driving window.
* * * * *

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT 
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS 
PROCEEDINGS

    4. The authority citation for part 386 continues to read as 
follows:

    Authority: 49 U.S.C. 521, 5123, 13301, 13902, 14915, 31132-
31133, 31136, 31144, 31151, 31502, 31504; Sec. 204, Pub. L. 104-88, 
109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 
113 Stat. 1748, 1767; and 49 CFR 1.73.

    5. Amend Appendix B to part 386 by adding a new paragraph (a)(6) to 
read as follows:

Appendix B to Part 386--Penalty Schedule; Violations and Maximum Civil 
Penalties

* * * * *
    (a) * * *
    (6) Egregious violations of driving-time limits in 49 CFR part 
395. A driver who exceeds, and a motor carrier that requires or 
permits a driver to exceed, by more than 3 hours the 10/11-hour 
driving-time limit in 49 CFR 395.3(a) or the 10-hour driving-time 
limit in 49 CFR 395.5(a), as applicable, shall be deemed to have 
committed an egregious driving-time limit violation. In instances of 
an egregious driving-time violation, the Agency will consider the 
``gravity of the violation,'' for purposes of 49 U.S.C. 
521(b)(2)(D), sufficient to warrant imposition of penalties up to 
the maximum permitted by law.
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    6. The authority citation for part 390 continues to read as 
follows:

    Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136, 
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49 
CFR 1.73.
    7. Amend Sec.  390.23, by revising paragraph (c)(2) introductory 
text to read as follows:


Sec.  390.23  Relief from regulations.

* * * * *
    (c) * * *
    (2) The driver has had at least 34 consecutive hours off duty, 
including two consecutive periods from midnight to 6 a.m. when:
* * * * *

[[Page 82197]]

PART 395--HOURS OF SERVICE OF DRIVERS

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

    Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 
31504, and Sec.  204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 
701 note); Sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; Sec. 
217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.

    9. Amend Sec.  395.1 as follows:
    a. Revise paragraphs (b)(1), (d)(2), and (e)(1)(iv), (e)(2) 
introductory text, (e)(2)(v), (e)(2)(viii), (g)(1), and (g)(2)(ii);
    b. Remove and reserve paragraph (o); and
    c. Remove paragraph (q).


Sec.  395.1  Scope of rules in this part.

* * * * *
    (b) * * *
    (1) Adverse driving conditions. Except as provided in paragraph 
(h)(2) of this section, a driver who encounters adverse driving 
conditions, as defined in Sec.  395.2, and cannot, because of those 
conditions, safely complete the run within the maximum driving time 
permitted by Sec. Sec.  395.3(a) or 395.5(a) may drive and be permitted 
or required to drive a commercial motor vehicle for not more than 2 
additional hours to complete that run or to reach a place offering 
safety for the occupants of the commercial motor vehicle and security 
for the commercial motor vehicle and its cargo. However, that driver 
may not drive or be permitted to drive--
    (i) For more than 12 hours in the aggregate following 10 
consecutive hours off duty for drivers of property-carrying commercial 
motor vehicles;
    (ii) After the end of the 14th or 16th hour since coming on duty 
following 10 consecutive hours off duty for drivers of property-
carrying commercial motor vehicles, pursuant to Sec.  395.3(a)(2);
    (iii) For more than 12 hours in the aggregate following 8 
consecutive hours off duty for drivers of passenger-carrying commercial 
motor vehicles; or
    (iv) After he/she has been on duty 15 hours following 8 consecutive 
hours off duty for drivers of passenger-carrying commercial motor 
vehicles.
* * * * *
    (d) * * *
    (2) In the case of specially trained drivers of commercial motor 
vehicles which are specially constructed to service oil wells, on-duty 
time shall not include waiting time at a natural gas or oil well site. 
Such waiting time shall be recorded as ``off duty'' for purposes of 
Sec. Sec.  395.8. 395.15, and 395.16, with remarks or annotations to 
indicate the specific off-duty periods that are waiting time, or on a 
separate ``waiting time'' line on the record of duty status to show 
that off-duty time is also waiting time. Waiting time shall not be 
included in calculation of the 14- or 16-hour duty period in Sec.  
395.3(a)(2). Specially trained drivers of such commercial motor 
vehicles are not eligible to use the provisions of Sec.  395.1(e)(1).
    (e) * * *
    (1) * * *
    (iv)(A) A property-carrying commercial motor vehicle driver does 
not exceed 10/11 hours maximum driving time following 10 consecutive 
hours off duty; or
    (B) A passenger-carrying commercial motor vehicle driver does not 
exceed 10 hours maximum driving time following 8 consecutive hours off 
duty; and
* * * * *
    (2) Operators of property-carrying commercial motor vehicles not 
requiring a commercial driver's license. Except as provided in this 
paragraph, a driver is exempt from the requirements of Sec.  395.3 and 
Sec.  395.8 and ineligible to use the provisions of Sec.  395.1(e)(1) 
and (g) if:
* * * * *
    (v) The driver does not drive more than 10 hours following at least 
10 consecutive hours off duty;
* * * * *
    (viii) Any period of 7 or 8 consecutive days may end with the 
beginning of any off-duty period of 34 or more consecutive hours that 
includes two consecutive periods from midnight to 6 a.m.; the beginning 
of an off-duty period of 34 or more consecutive hours must be at least 
168 hours after the beginning of the last such off-duty period.
* * * * *
    (g) * * *
    (1) Property-carrying commercial motor vehicle.--
    (i) In General. A driver who operates a property-carrying 
commercial motor vehicle equipped with a sleeper berth, as defined in 
Sec. Sec.  395.2 and 393.76 of this subchapter,
    (A) Must, before driving, accumulate
    (1) At least 10 consecutive hours off duty;
    (2) At least 10 consecutive hours of sleeper-berth time;
    (3) A combination of consecutive sleeper-berth and off-duty time 
amounting to at least 10 hours; or
    (4) The equivalent of at least 10 consecutive hours off duty if the 
driver does not comply with paragraph (g)(1)(i)(A)(1), (2), or (3) of 
this section;
    (B) May not drive more than 10/11 hours following one of the 10-
hour off-duty periods specified in paragraph (g)(1)(i)(A)(1) through 
(4) of this section; however, driving is permitted only if 7 hours or 
less have passed since the driver's last off-duty or sleeper-berth 
period of at least 30 minutes; and
    (C) May not be on duty for more than the 13-hour period in Sec.  
395.3(a)(4) or drive beyond the 14- or 16-hour driving window in Sec.  
395.3(a)(2) after coming on duty following one of the 10-hour off-duty 
periods specified in paragraph (g)(1)(i)(A)(1)-(4) of this section; and
    (D) Must exclude from the calculation of the 14- or 16-hour driving 
window in Sec.  395.3(a)(2) any sleeper-berth period of at least 8 but 
less than 10 consecutive hours.
    (ii) Specific requirements.--The following rules apply in 
determining compliance with paragraph (g)(1)(i) of this section:
    (A) The term ``equivalent of at least 10 consecutive hours off 
duty'' means a period of
    (1) At least 8 but less than 10 consecutive hours in a sleeper 
berth, and
    (2) A separate period of at least 2 but less than 10 consecutive 
hours either in the sleeper berth or off duty, or any combination 
thereof.
    (B) Calculation of the 10/11-hour driving limit includes all 
driving time; compliance must be re-calculated from the end of the 
first of the two periods used to comply with paragraph (g)(1)(ii)(A) of 
this section.
    (C) Calculation of the 14- or 16-hour limit in Sec.  395.3(a)(2) 
includes all time except any sleeper-berth period of at least 8 but 
less than 10 consecutive hours and up to 2 hours riding in the 
passenger seat of a property-carrying vehicle moving on the highway 
immediately before or after a period of at least 8 but less than 10 
consecutive hours in the sleeper berth; compliance must be re-
calculated from the end of the first of the two periods used to comply 
with the requirements of paragraph (g)(1)(ii)(A) of this section.
    (2) * * *
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 10/11 hours;
* * * * *
    (o) [Reserved]
* * * * *
    10. Amend Sec.  395.2 by revising the definition of ``on duty 
time'' to read as follows:


Sec.  395.2  Definitions.

* * * * *
    On-duty time means all time from the time a driver begins to work 
or is required to be in readiness to work until the time the driver is 
relieved from work and all responsibility for performing work. On-duty 
time shall include:

[[Page 82198]]

    (1) All time at a plant, terminal, facility, or other property of a 
motor carrier or shipper, or on any public property, waiting to be 
dispatched, unless the driver has been relieved from duty by the motor 
carrier;
    (2) All time inspecting, servicing, or conditioning any commercial 
motor vehicle at any time;
    (3) All driving time as defined in the term driving time;
    (4) All time in or on a commercial motor vehicle, other than:
    (i) Time spent resting in or on a parked vehicle;
    (ii) Time spent resting in a sleeper berth; or
    (iii) Up to 2 hours riding in the passenger seat of a property-
carrying vehicle moving on the highway immediately before or after a 
period of at least 8 consecutive hours in the sleeper berth;
    (5) All time loading or unloading a commercial motor vehicle, 
supervising, or assisting in the loading or unloading, attending a 
commercial motor vehicle being loaded or unloaded, remaining in 
readiness to operate the commercial motor vehicle, or in giving or 
receiving receipts for shipments loaded or unloaded;
    (6) All time repairing, obtaining assistance, or remaining in 
attendance upon a disabled commercial motor vehicle;
    (7) All time spent providing a breath sample or urine specimen, 
including travel time to and from the collection site, to comply with 
the random, reasonable suspicion, post-crash, or follow-up testing 
required by part 382 of this subchapter when directed by a motor 
carrier;
    (8) Performing any other work in the capacity, employ, or service 
of, a motor carrier; and
    (9) Performing any compensated work for a person who is not a motor 
carrier.
* * * * *
    11. Revise Sec.  395.3 to read as follows:


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

    (a) Except as otherwise provided in Sec.  395.1, no motor carrier 
shall permit or require any driver used by it to drive a property-
carrying commercial motor vehicle, nor shall any such driver drive a 
property-carrying commercial motor vehicle, regardless of the number of 
motor carriers using the driver's services, unless the driver complies 
with the following requirements:
    (1) Start of work shift. A driver may not drive without first 
taking 10 consecutive hours off duty;
    (2) Driving window. (i) In General.--A driver may drive only during 
a driving window of 14 consecutive hours after coming on duty following 
10 consecutive hours off duty. The driver may not drive after the end 
of the driving window without first taking 10 consecutive hours off 
duty.
    (ii) Exception.--A driver may drive during a driving window of 16 
consecutive hours after coming on duty following 10 consecutive hours 
off duty on no more than 2 days out of the previous 168 consecutive 
hours. The driver may not drive after the end of the driving window 
without first taking 10 consecutive hours off duty.
    (iii) Drivers who are on duty after the end of the 14th hour after 
coming on duty are deemed to have used a 16-hour driving window.
    (iv) Drivers must go off duty by the end of the 14th or 16th 
consecutive hour after coming on duty.
    (3) Driving time and rest breaks. A driver may drive a total of 10/
11 hours during the on-duty period specified in paragraph (a)(4) of 
this section, but driving is permitted only if 7 hours or less have 
passed since the driver's last off-duty or sleeper-berth period of at 
least 30 minutes.
    (4) On-duty period. A driver may be on duty no more than 13 hours 
during the 14-hour or 16-hour driving window.
    (b) No motor carrier shall permit or require a driver of a 
property-carrying commercial motor vehicle to drive, nor shall any 
driver drive a property-carrying commercial motor vehicle, regardless 
of the number of motor carriers using the driver's services, for any 
period after--
    (1) Having been on duty 60 hours in any period of 7 consecutive 
days if the employing motor carrier does not operate commercial motor 
vehicles every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive 
days if the employing motor carrier operates commercial motor vehicles 
every day of the week.
    (c)(1) Any period of 7 consecutive days may end with the beginning 
of an off-duty period of 34 or more consecutive hours that includes two 
consecutive periods from midnight to 6 a.m.; or
    (2) Any period of 8 consecutive days may end with the beginning of 
an off-duty period of 34 or more consecutive hours that includes two 
consecutive periods from midnight to 6 a.m.
    (d) A driver may not take an off-duty period allowed by paragraph 
(c) of this section to restart the calculation of 60 hours in 7 
consecutive days or 70 hours in 8 consecutive days until 168 or more 
consecutive hours have passed since the beginning of the last such off-
duty period. When a driver takes more than one off-duty period of 34 or 
more consecutive hours within a period of 168 consecutive hours, he or 
she must indicate in the Remarks section of the record of duty status 
which such off-duty period is being used to restart the calculation of 
60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

    Issued on: December 20, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-32251 Filed 12-23-10; 11:15 am]
BILLING CODE P