[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 81134-81188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32696]

[[Page 81133]]

Vol. 76


No. 248

December 27, 2011

Part IV

Department of Transportation


Federal Motor Carrier Safety Administration


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

Hours of Service of Drivers; Final Rule

Federal Register / Vol. 76 , No. 248 / Tuesday, December 27, 2011 / 
Rules and Regulations

[[Page 81134]]



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: Final rule.


SUMMARY: FMCSA revises the hours of service (HOS) regulations to limit 
the use of the 34-hour restart provision to once every 168 hours and to 
require that anyone using the 34-hour restart provision have as part of 
the restart two periods that include 1 a.m. to 5 a.m. It also includes 
a provision that allows truckers to drive if they have had a break of 
at least 30 minutes, at a time of their choosing, sometime within the 
previous 8 hours. This rule does not include a change to the daily 
driving limit because the Agency is unable to definitively demonstrate 
that a 10-hour limit--which it favored in the notice of proposed 
rulemaking (NPRM)--would have higher net benefits than an 11-hour 
limit. The current 11-hour limit is therefore unchanged at this time. 
The 60- and 70-hour limits are also unchanged. The purpose of the rule 
is to limit the ability of drivers to work the maximum number of hours 
currently allowed, or close to the maximum, on a continuing basis to 
reduce the possibility of driver fatigue. Long daily and weekly hours 
are associated with an increased risk of crashes and with the chronic 
health conditions associated with lack of sleep. These changes will 
affect only the small minority of drivers who regularly work the longer 

DATES: Effective date: February 27, 2012.
    Compliance date: The rule changes that affect Appendix B to Part 
386--Penalty Schedule; Violations and Monetary Penalties; the oilfield 
exemption in Sec.  395.1(d)(2); and the definition of on-duty time in 
Sec.  395.2 must be complied with on the effective date. Compliance for 
all the other rule changes is not required until July 1, 2013.

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.


Table of Contents

I. Summary
    A. Overview
    B. Proposed Rule
    C. Final Rule
    D. Summary of Economic Impacts
    E. Overview of Major Comments and Agency Responses
II. Legal Basis
III. Background and Description of the Trucking Industry
IV. Discussion of All Comments
    A. Safety
    B. Economic Impacts
    C. Sleep Loss and Chronic Fatigue
    D. New Research Studies
    E. Driving Time Limits
    F. 30-Minute Break Provision
    G. Restart
    H. Duty Period/Driving Window
    I. Paragraphs 395.1(e)(2) and (o)
    J. On-Duty Definition
    K. Penalties
    L. Compliance Dates
    M. Other Comments
    N. Beyond the Scope
V. Section-by-Section Analysis
VI. Required Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Regulatory Flexibility Act
    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
VII. Bibliography

I. Summary

A. Overview

    The goal of this rulemaking is to reduce excessively long work 
hours that increase both the risk of fatigue-related crashes and long-
term health problems for drivers. A rule cannot ensure that drivers 
will be rested, but it can ensure that they have enough time off to 
obtain adequate rest on a daily and weekly basis. The objective of the 
rule, therefore, is to reduce both acute and chronic fatigue by 
limiting the maximum number of hours per day and week that the drivers 
can work.
    The 2003 hours-of-service (HOS) rule shortened the driving window 
to 14 consecutive hours and increased the off-duty period from 8 to 10 
hours, but increased driving time from 10 to 11 hours and allowed 
drivers to restart their duty time calculations whenever they took at 
least 34 consecutive hours off. Limiting the driving window and 
increasing the daily off-duty period reduced the risk that a driver 
would be driving so long after the start of the duty day that acute 
fatigue would be extreme. It also moved drivers toward a 24-hour daily 
clock, which is people's normal pattern, reducing the risk of fatigue 
caused from continually changing sleep periods. The 2003 rule, however, 
allowed drivers to work 14 hours without a break and to work 80 or more 
hours a week, a substantial increase from the previous rule, which 
allowed about 60 hours in 7 days.
    Since the 2003 rule was promulgated, new research studies have 
demonstrated that long work hours, both daily and weekly, lead to 
reduced sleep and, in the absence of sufficient recovery time, chronic 
fatigue. Fatigued drivers have slowed reaction times and a reduced 
ability to assess situations quickly. The research has also shown that 
commercial motor vehicle (CMV) drivers (like most other people) are 
unable to assess their own fatigue levels accurately and are, 
therefore, often unaware that their performance has degraded. When 
driving an 80,000-pound CMV at highway speeds, any delay in reacting to 
a potentially dangerous situation can be deadly. In addition to the 
safety concerns, recent research has linked long work hours and the 
resulting curtailment of sleep to a range of serious health effects, 
particularly when combined with a job that is basically sedentary, like 
truck driving. These health conditions--including obesity, high blood 
pressure, other cardiovascular diseases, diabetes, and sleep apnea--not 
only shorten drivers' lives, but also can result in substantial ongoing 
medical costs and put drivers' medical certifications at risk. CMV 
drivers suffer from these conditions at a higher rate than the 
population as a whole.
    Today's rule will reduce the risk of fatigue and fatigue-related 
crashes and the harm to driver health in several ways. While the rule 
allows a driver flexibility in when to take a mandatory 30 minute 
break, it prohibits a driver from driving if more than 8 hours have 
passed since the driver's last off-duty or sleeper berth break of at 
least 30 minutes; research indicates that such breaks alleviate fatigue 
and fatigue-related performance degradation. Because research has shown 
that long weekly work hours are associated with a higher risk of 
crashes, sleep loss, and negative health effects, the rule also limits 
the use of the restart to once a week, which, on average, will cut the 
maximum work week from 82 to 70 hours. The provision allows drivers to 
work intensely for one week, but will

[[Page 81135]]

require them to compensate by taking more time off in the following 
week. Research has long demonstrated that daytime sleep is shorter in 
duration and lower in quality than nighttime sleep. The rule requires 
any driver working long enough to need a restart to take off at least 
34 consecutive hours that include 2 periods between 1 a.m. and 5 a.m., 
the window of circadian low. This provision will give those drivers who 
both routinely work at night and put in very long work weeks an 
opportunity to overcome the chronic fatigue that can build up when 
working nights.
    FMCSA has been engaged in long-term rulemaking related to its hours 
of service regulations for commercial truck drivers. Like the Federal 
Aviation Administration (FAA), FMCSA is working to address the 
universality of factors that lead to fatigue. However, the FAA has 
taken a different approach in addressing fatigue risk among pilots than 
FMCSA has with respect to commercial truck drivers. This is because the 
two industries operate differently both in terms of the likely number 
of days the affected individuals work per month and the respective 
operating environments. For example, pilots regularly cross multiple 
time zones in a very short period time--something that is simply not 
possible in other modes of transportation. Additionally, pilots may 
work several days that are very long, but then be off for an extended 
period of time, a practice that naturally imposes a non-regulatory 
restorative rest opportunity. Finally, the nature of commercial flying 
is such that under typical conditions, the actual operation is likely 
to require intense concentration primarily during take-offs and 
landings, with a constant, but generally predictable level of 
concentration required for other phases of flight.
    In contrast, commercial truck drivers face an environment where 
they are required to share the highways with drivers who have not 
received specialized training nor are they subject to the same 
regulatory constraints that pilots are subject to. This environment 
could logically lead to a regulatory approach with different fatigue 
mitigators for daytime operations on congested highways, compared to 
nighttime operations, where the roads are less crowded but the risk of 
fatigue is greater.
    In summary, the final rule will reduce the likelihood of driver 
fatigue, fatigue-related crashes, and fatigue-related health effects. 
Although crash rates have been falling, thousands of people are still 
injured and killed in truck crashes each year, including hundreds of 
truck drivers. This rule will address one of the causes of those 
crashes. The Agency estimates that the benefits of the rule (reduction 
in crashes and improved driver health) will outweigh the costs. The 
cost of the rule represents a small fraction of one percent of trucking 
industry revenues and is the cost-equivalent of less than a 3 cent-a-
gallon increase in the price of diesel fuel to the long-haul industry.

B. Proposed Rule

    On December 29, 2010, FMCSA published a notice of proposed 
rulemaking (NPRM) to revise the HOS rules (75 FR 82170). The Agency 
sought comment on both a 10- and an 11-hour daily driving limit. The 
NPRM proposed to retain the 34-hour restart, but with two 
qualifications: The restart must include two consecutive periods 
between midnight and 6 a.m. and could be used only once every 168 hours 
(7 days). It also proposed that drivers be limited to 13 hours on duty 
in each 14-hour driving window. Many drivers would be required to take 
at least one half-hour break during their work shift. FMCSA also 
proposed that twice a week, drivers would be allowed to extend the 
driving window to 16 hours, but could not work more than a maximum of 
13 hours in that time. FMCSA also proposed changing the definition of 
on-duty time to allow team drivers to log 2 hours in the passenger seat 
before or after an 8-hour period in the sleeper berth as off-duty time 
and to allow drivers resting in a parked CMV to count that time as off 
duty. FMCSA would also have clarified the oilfield exemption and 
proposed a provision to allow, but not require, FMCSA to impose maximum 
penalties if the driving-time limit was exceeded by 3 hours. The NPRM 
included a long discussion of the research on fatigue and on issues 
related to long hours, fatigue, and health.
    On May 9, 2011, FMCSA reopened the comment period to accept 
comments on four studies related to the HOS proposal (76 FR 26681).

C. Final Rule

    Although the NPRM proposed both a 10- and an 11-hour daily driving 
limit, the Agency stated that it favored a 10-hour limit. However, this 
final rule does not adopt any change in the limit on daily driving 
time; the current 11-hour limit therefore remains unchanged.
    In the course of this rulemaking, FMCSA examined many studies on 
the relationship between work hours and health and safety, both in 
trucking and other industries; reviewed the comments and information 
submitted to the docket, mostly in opposition to a 10-hour driving 
limit; and completed elaborate analyses in accordance with Presidential 
Executive Order 13563, issued January 18, 2011, '' Improving Regulation 
and Regulatory Review,'' [76 FR 3821, January 21, 2011] of the costs 
and benefits to health and safety of 9-, 10-, and 11-hour driving 
    1. 9-Hour Driving Limit. The Agency found that a 9-hour driving 
limit generally has negative net benefits (i.e., its costs exceed its 
benefits). In most cases the 11-hour limit has positive net benefits. 
For these reasons, the Agency has not adopted a 9-hour driving limit.
    2. 10-Hour Driving Limit. The 10-hour limit has positive benefits 
in approximately half the cases, with the 11-hour limit having 
substantially higher net benefits than the 10-hour limit in most cases. 
A 10-hour limit, on the other hand, might save more lives and prevent 
more crashes than an 11-hour limit, but at a higher cost.
    The research literature on fatigue in the motor carrier industry 
generally shows that crash risk increases with work hours, both daily 
and weekly. The available data, however, are not sufficiently robust to 
yield a statistically significant distinction between the crash risk 
associated with any two adjacent hours of work.
    In the absence of compelling scientific evidence demonstrating the 
safety benefits of a 10-hour driving limit, as opposed to an 11-hour 
limit, and confronted with strong evidence that an 11-hour limit could 
well provide higher net benefits, the Agency has concluded that 
adequate and reasonable grounds under the Administrative Procedure Act 
for adopting a new regulation on this issue do not yet exist and that 
the current driving limit should therefore be allowed to stand for now. 
This is not to say that FMCSA is foreclosing the possibility of action 
on this subject; future research may provide a basis for reconsidering 
the daily driving limit. Consistent with Executive Order 13563, which 
directs agencies to ``measure, and seek to improve, the actual results 
of regulatory requirements,'' FMCSA is committed to conducting a 
comprehensive analysis of the relative crash risk by driving hour and 
the impact of the changes in the HOS provisions in today's final rule. 
The Agency plans to match data collected from driver logs with crash 
information to determine the level of crash risk by hours of driving. 
The Agency also plans to estimate, for similarly situated drivers, the 
difference between crash risk after restarts that include two nights 
and those that do not. Additionally, the Agency is committed to 

[[Page 81136]]

periodic driver surveys to longitudinally track how the changes in the 
HOS provisions, such as the two-night restart, have impacted sleep 
patterns and aspects of driver fatigue and performance. FMCSA will work 
with the Office of Management and Budget (OMB) on the methodologies of 
these new statistical data collections. These efforts will build on 
several planned and ongoing FMCSA driver fatigue-related studies such 
as the on-board monitoring field test/naturalistic data collection, 
split sleep study, driver recovery and napping study, and the planned 
new large truck crash causation study.
    This decision also is consistent with the President's E.O. 13563 
and his concurrent memorandum for the heads of executive departments 
and agencies entitled ``Regulatory Flexibility, Small Business, and Job 
Creation'' [76 FR 3827, January 21, 2011]. As the President stated in 
the latter document, ``My Administration is firmly committed to 
eliminating excessive and unjustified burdens on small businesses, and 
to ensuring that regulations are designed with careful consideration of 
their effects, including their cumulative effects, on small 
businesses.'' This order is particularly important for the trucking 
industry, which has a higher percentage of small businesses than many 
other segments of the U.S. economy.
    3. Thirty-Minute Break. In response to commenters' concerns, FMCSA 
adopts a slightly modified form of the break proposed in the NPRM. 
Research with drivers and in other industrial sectors indicates that 
the risk of accidents falls substantially after a break, with off-duty 
breaks providing the greatest reduction in risk. The final rule 
requires that if more than 8 consecutive hours on duty--compared to 7 
hours in the NPRM--have passed since the last off-duty (or sleeper-
berth) period of at least half an hour, a driver must take a break of 
at least 30 minutes before driving. For example, if the driver started 
driving immediately after coming on duty, he or she could drive for 8 
consecutive hours, take a half-hour break, and then drive another 3 
hours, for a total of 11 hours. Alternatively, this driver could drive 
for 3 hours, take a half-hour break, and then drive another 8 hours, 
for a total of 11 hours. In other words, this driver could take the 
required break anywhere between the 3rd and 8th hour after coming on 
duty. A driver who plans to drive until the end of the 14th hour and 
wants to take only one break will need to take a break between the 6th 
and 8th hour after coming on duty. Drivers will have great flexibility 
in deciding when to take the break. By postponing the latest point at 
which the break can be taken from the 7th to the 8th hour, the rule 
will make it significantly easier for team drivers to fit the break 
into their schedules. To address an issue raised by commenters, FMCSA 
has also added an exception for drivers of CMVs carrying Division 1.1, 
1.2, or 1.3 explosives to allow them to count on-duty time spent 
attending the CMV, but doing no other on-duty work, toward the break.
    4. 14-Hour Driving Window. The maximum driving window will continue 
to be 14 consecutive hours after coming on duty. To address commenters' 
concerns about complexity, FMCSA has dropped the proposed 13-hour limit 
for on-duty time within the 14 hours to simplify the rule. Because of 
the break provision, drivers will be able to work 13.5 hours in the 14 
hour period (if they are driving after the 8th hour on duty).
    5. Mandatory Off-Duty Requirement at the End of the Driving Window. 
FMCSA has not adopted the proposal that drivers be required to go off-
duty at the end of the 14th hour. Neither the costs nor the benefits of 
the provision could be adequately analyzed.
    6. Twice Weekly Extension of the Driving Window. FMCSA did not 
adopt the proposed extension of the duty period to 16 hours twice a 
week. The same new research on drivers since the NPRM was completed 
indicates this provision should not be adopted. (See Section IV. 
``Discussion of All Comments'' D. ``New Research Studies'' below.) 
Driving in the 16th hour after coming on duty entails a sharply higher 
risk of crashes than driving in early hours of a duty day. In addition, 
industry commenters were divided on the provision and generally 
skeptical that the provision would be useful.
    The final rule retains provisions in paragraphs (e)(2) and (o) of 
Sec.  395.1, which apply to local and regional operations. The NPRM 
sought comments on eliminating these paragraphs because they might have 
caused confusion with the proposed 16-hour provision. Because FMCSA has 
dropped the proposed 16-hour provision, the concerns about confusion 
are moot.
    7. Restart Provisions. The final rule adopts the restart provision 
with one variation. The restart must cover at least 34 consecutive 
hours and include at least two periods between 1 a.m. and 5 a.m., not 
two periods between midnight and 6 a.m. as proposed in the NPRM. 
Although both alternatives cover most estimates of when the window of 
circadian low occurs, the 4-hour period addresses concerns drivers 
raised in the comment period by giving drivers greater flexibility in 
ending and beginning the restart than the proposed 6-hour period. This 
provision does not affect day drivers, who always get two such periods 
in a 34-hour restart, but ensures that night drivers have an 
opportunity for 2 nights of restorative sleep when they are working 
longer hours. The 2-night provision does not affect drivers who are not 
using the restart to work extra hours. The Agency believes the costs 
are low compared to other provisions considered in this rulemaking. 
Only drivers who drive nights and work more than 60 or 70 hours in a 
week will be impacted. The nighttime operations of the major Less-than-
Truckload (LTL) carriers should be minimally impacted, as their drivers 
generally receive 2 days off duty a week. Drivers who will be impacted 
by this provision work heavy and irregular schedules that include some 
nighttime driving.
    FMCSA adopts the proposed provision to limit the use of the restart 
to once every 168 hours (7 days); this allows drivers to work long 
hours (81 hours) in 1 week but requires them to compensate in the 
subsequent week by taking extra time off. The limitation reduces 
maximum time during which a driver may drive up to an average of 70 
hours in 7 days, a decrease from the 82-hour average allowed under the 
2003 rule. The purpose of the rule change is to limit work to no more 
than 70 hours a week on average. Working long daily and weekly hours on 
a continuing basis is associated with chronic fatigue, a high risk of 
crashes, and a number of serious chronic health conditions.
    This final rule adopts the definition of on-duty time as proposed 
except to add a reference to Sec.  397.5. The final rule also adopts 
the clarification of the oilfield exemption and penalty provisions.
    A more in-depth rationale for each of these provisions is presented 
in the responses to comments in Section IV ``Discussion of All 
Comments'' of this preamble.

D. Summary of Economic Impacts

    The Regulatory Impact Analysis (RIA) analyzed three options beyond 
the baseline (no change) option. Option 3 has an 11-hour driving-time 
limit; it would require the driver to take a rest break during the day 
and reduce the weekly maximum driving and on-duty time theoretically 
achievable. Options 2 and 4 are identical to Option 3 in all respects 
except for the amount of driving time allowed. Option 2 has an 10-hour 
driving-time limit, while Option 4 has a 9-hour driving-time limit. 
Option 2 (10 hours) would have a productivity impact of approximately

[[Page 81137]]

2.7 percent. That is, we estimate that productivity in the industry 
would be reduced by 2.7 percent due to adoption of this option. Option 
3 (11 hours) would have a productivity impact of 1.2 percent. The 
Agency's cost estimate for Option 3 is less than one third of one 
percent of industry revenues. Option 4 (9 hours) would involve much 
higher costs. Tables 1 and 2 provide a summary of the estimated costs, 
benefits, and net benefits at 3 and 7 percent discount rates. The RIA 
is discussed in Section VI ``Required Analyses'' A. ``Executive Order 
12866 and Executive Order 13563'' of this preamble and is available in 
the docket.
    The RIA also estimated the impacts of the HOS rule components 
individually. To estimate the impacts of the rule provisions, we 
consider the overlapping effects of the individual rule components to 
ensure that the impacts of one provision are not also attributed to a 
second provision. Because this analysis accounts for the individual 
impact of the rule provisions, the sum of the individual provisions is 
greater than the combined impact of the rule provisions. Table 3 
summarizes these differences, rounded to the nearest million to 
demonstrate the similarity in net benefits for some of these 
alternatives. Option 3, with all three provisions analyzed as a 
package, is shown to have net benefits of $205 million. This 
calculation does not include the $40 million FMCSA has estimated for 
reprogramming costs. That package with the 2 night provision removed 
(that is, including only the 7 day restart provision and the 30 minute 
break) appears to have marginally greater net benefits, at $206 
million. Not shown in the table, however, are the substantial 
unmonetized benefits the 2 night provision is expected to have due to 
the circadian advantages of nighttime sleep. As noted in Section 6.4 of 
the RIA, these additional benefits were too complex to be quantified 
and monetized reliably, but could only be beneficial both to driver 
health and to highway safety. They would almost certainly be large 
enough, though, to ensure that the net benefits of the rule are 
improved by the inclusion of the 2 night provision. Similarly, the net 
benefits of a package that excluded the 30 minute break provision 
appears to be slightly greater than the net benefits of the Option 3 
package, at $206 million. Again, the 30 minute break provision is 
expected to provide very substantial crash reduction benefits that 
could not be included in the analysis. These benefits, as noted in 
Section 6.4, are related to the short-term reductions in crashes 
provided by the break's restorative effects on alertness. If these 
short-term benefits could be monetized and added to the break's effects 
on cumulative fatigue, they would almost certainly show it to be a 
cost-beneficial addition to the rule. Table 3 also presents the 
difference for each option when the provisions are considered 
separately or as a package.
    These tables also make clear that under most assumptions about 
current sleep levels, moving to 10-hour driving time would result in 
lower net benefits, relative to an 11-hour driving time. Comparing 
Option 2 to Option 3, allowing only 10 hours of driving would increase 
costs substantially, without a commensurate increase in benefits.

          Table 1--Summary of Annualized Costs and Benefits for Rule Options (7 Percent Discount Rate)
                                                [Millions 2008$]
                                                              Option 2: 10      Option 3: 11       Option 4: 9
                                                            hours of driving  hours of driving  hours of driving
                                                                 allowed           allowed           allowed
Total Costs...............................................            $1,000              $470            $2,290
Benefits with Low Sleep...................................             1,410               910             2,240
Benefits with Medium Sleep................................               980               630             1,500
Benefits with High Sleep..................................               550               350               770
Net Benefits with Low Sleep...............................               400               440               -50
Net Benefits with Medium Sleep............................               -20               160              -790
Net Benefits with High Sleep..............................              -450              -120            -1,520
Note: Totals do not add due to rounding.

          Table 2--Summary of Annualized Costs and Benefits for Rule Options (3 Percent Discount Rate)
                                                [Millions 2008$]
                                                                   Option 2: 10    Option 3: 11     Option 4: 9
                                                                     hours of        hours of        hours of
                                                                      driving         driving         driving
                                                                      allowed         allowed         allowed
Total Costs.....................................................          $1,000            $470          $2,290
Benefits with Low Sleep.........................................           1,690           1,130           2,620
Benefits with Medium Sleep......................................           1,110             750           1,630
Benefits with High Sleep........................................             530             370             630
Net Benefits with Low Sleep.....................................             690             660             340
Net Benefits with Medium Sleep..................................             110             280             660
Net Benefits with High Sleep....................................            -470             -90          -1,650
Note: Totals do not add due to rounding.

[[Page 81138]]

   Table 3--Component and Interaction Costs, Benefits and Net Benefits For Option 3 (11-Hour Driving Allowed)
                                                [Millions 2008$]
                                                                      Safety         benefits
                                                                   benefits (13    (medium sleep
        Change from current rule baseline             Costs *         percent        level, 7     Net benefits *
                                                                     fatigue)         percent
7-day restart alone.............................            $342            $227            $318            $204
2-night restart alone...........................              51              35              38              22
30-minute break alone...........................              94              72              94              72
Sum of Option 3 provisions, taken separately....             487             334             450             297
Option 3 analyzed as a package..................             426             282             349             205
Overlap among Option 3 provisions (difference                 62              52             102              92
 between sum of separate provisions and package)
Sum of 7 day and 2 night provisions, taken                   393             262             356             225
7 day and 2 night provisions, analyzed as a                  393             260             340             206
Overlap between 7 day and 2 night provisions                   0               2              17              19
 (difference between sum of separate provisions
 and package)...................................
Sum of 7 day and 30 minute provisions, taken                 436             299             412             276
7 day and 30 minute provisions, analyzed as a                374             253             328             206
Overlap between 7 day and 30 minute provisions                62              47              84              69
 (difference between sum of separate provisions
 and package)...................................
Sum of 2 night and 30 minute provisions, taken               145             107             132              94
2 night and 30 minute provisions, analyzed as a              145              95             127              76
Overlap between 2 night and 30 minute provisions               0              12               5              17
 (difference between sum of separate provisions
 and package)...................................
* Does not include the $40 million in reprogramming costs.
Note: Totals do not add due to rounding.

E. Overview of Major Comments and Agency Responses

    FMCSA held a public listening session and an online comment and 
question forum from noon to midnight on February 17, 2011, and accepted 
comments, until June 8, 2011, on the NPRM and on four studies later 
posted to the docket. The Agency received about 21,100 unique comments, 
mostly from drivers, carriers, and industry associations. After FMCSA 
reopened the comment period on May 9, 2011, it received 14 comments on 
the four studies discussed in that notice. A summary of the comments 
and the Agency's responses are presented in Section IV ``Discussion of 
All Comments'' of this preamble. Table 4 presents the data on the 
number and type of commenters. Table 5 presents the number of comments 
on each issue. As indicated in the table, no single rule provision drew 
comments from a majority of commenters.

                                 Table 4--Analyzed Submissions by Commenter Type
                                                                     Number of
                         Commenter type                               unique      Number of form   Total number
                                                                    submissions    letter copies  of submissions
Drivers.........................................................          18,875           2,209          21,084
Owner-Operators.................................................             273               3             276
Carriers........................................................             846             238           1,084
Individual Citizens.............................................             740             334           1,074
Other Industry..................................................              65               6              71
Trucking Associations...........................................              59               1              60
Other Trade Associations........................................              62               1              63
Federal Agency..................................................               5               0               5
Federal Elected Official........................................              21               2              23
State Government................................................               4               0               4
Law Enforcement.................................................               5               0               5
Safety Advocacy Group...........................................              10               0              10
Other Advocacy Group............................................               3               0               3
Anonymous.......................................................             113              10             123
Other...........................................................              25               2              27
    Total.......................................................          21,106           2,806          23,912
Note: Totals do not include 546 non-germane, non-responsive, or duplicate submissions.

[[Page 81139]]

                 Table 5--Issues Addressed by Commenters
                                                        Number of unique
                         Issue                             submissions
Generally agree or disagree with the proposed rule:
    Agree (w/o substantive comment)...................               601
    Disagree (w/o substantive comment)................             8,028
Driving time..........................................             4,633
Breaks................................................             2,569
Duty time.............................................             3,112
Driving window........................................               598
Restart...............................................             4,776
On-duty definition:
    Support change to definition......................               109
    Oppose change to definition.......................                23
    Other comments on definition of on-duty...........                30
Sleeper berth:
    Oppose current rule (want shorter splits).........               594
    Oppose current rule (oppose any splits)...........                14
    Other comments on sleeper berth use...............               186
Penalties.............................................                66
Changes in Sec.   395.1(e)(2) and (o):
    Sec.   395.1(e)(2)................................                13
    Sec.   395(o).....................................                 4
Compliance dates......................................                 9
Cost-benefit analyses.................................               388
Impacts on the economy................................            10,343
Comments on fatigue research presented................                84
    Comments on additional fatigue studies posted on                  14
     May 6, 2011......................................
Comments on health research presented.................                24
Comments beyond the scope of the rule:
    Parking...........................................             1,028
    Payment by mile...................................               184
    Shippers..........................................               550
    Electronic On-Board Recorders (EOBRs).............               499
    Other out-of-scope issues.........................               785
Other comments........................................               679
    Request extension of comment period...............                 2
    Request public meetings/outreach..................                 3
    Oilfield exemption................................                44
    10-hour off-duty time (shorter, longer)...........               205
    One-size-fits-all (different rules for teams,                    442
     locals, etc.)....................................

    The National Transportation Safety Board (NTSB), the National 
Institute of Occupational Safety and Health (NIOSH), and safety 
advocacy groups generally supported the rule, as did many of the 
citizens who commented. The industry, however, almost uniformly opposed 
the proposed changes. The industry commenters made two overarching 
arguments in opposing the provisions. First, they argued that the 
industry has never been safer, as indicated by the declines in crashes 
and crash rates and, therefore, that the 2003 rule has at least not 
made the industry less safe. Second, they stated that the rule changes 
would impose substantial costs on the industry, make night deliveries 
difficult, increase congestion, and lower driver incomes.
    The industry also took the position that the 11th hour of driving 
time is used far less than FMCSA assumed in its economic analysis, that 
most drivers use the 34-hour restart provision to make recordkeeping 
easier and for flexibility, not to work the maximum number of hours, 
and that drivers already take breaks. The industry stated that the data 
do not support the claim that the 11th hour of driving represents a 
higher risk than the 10th.
    FMCSA acknowledged the decline in crashes and crash rates in the 
NPRM, but stated then, and reiterates now, that the decline in crashes 
and crash rates for both trucks and cars started in the late 1970s and 
has continued for both types of vehicles. The declines tend to be 
sharper during periods of economic recession, but other factors, such 
as improved vehicle and road design, are generally considered to have 
contributed to reductions. Furthermore, the significant decrease in 
truck crashes may not necessarily translate into significant decreases 
in fatigue-related crashes. FMCSA believes that the 2003 rule, which 
limited the duty period and lengthened the off-duty period, has 
certainly not diminished safety, but the recent declines in crashes 
cannot be specifically attributed to that rule. More importantly, 
despite the improvement, 3,380 people were killed in truck crashes in 
2009 (including 503 CMV drivers) and 74,000 were injured. Based on 
preliminary reports from the National Highway Traffic Safety 
Administration (NHTSA), the number of fatalities for truck-related 
crashes in 2010 rose by 8.7 percent to 3,675. Although historically 
low, the numbers are still far too high.
    On the economic impact of the rule, industry comments and claims 
were internally contradictory (see Section IV. ``Discussion of All 
Comments,'' B. ``Economic Impacts'' of this preamble for a detailed 
discussion). The American Trucking Associations (ATA), other industry 
associations, carriers, and the economic analysis commissioned by ATA 
(Edgeworth) \1\ argued that

[[Page 81140]]

FMCSA's economic analysis had overstated the use of the 11th hour and 
restart provisions. ATA and other industry commenters argued that the 
low use of the provisions meant that fatigue was not a problem, but 
that changing the provisions would impose high costs. The Edgeworth 
study submitted by ATA, however, recognized that if the use of the 
provisions was less than FMCSA had estimated, both the costs and 
benefits of the rule would also be lower than FMCSA had estimated.

    \1\ References to studies, reports, or other publications 
mentioned in this final rule use only the lead author's last name or 
another short descriptive reference that may be used by the reader 
to reference the material in the ``Bibliography'' in Section VII at 
the end of this preamble. The lead author's professional titles or 
degrees are not shown. For example, Edgeworth references a data 
source described fully in the bibliography section later in this 
final rule.

    In September 2010, ATA submitted data to the HOS docket based on 
analyses of duty time for drivers. In the first sample, ATA looked at 
records for 3 months for over 118,000 drivers, mostly from the 
truckload sector; the data indicated that drivers were averaging 43.6 
hours on duty in 7 days. In a smaller data set (149 drivers and records 
for 1 month), ATA reported that the drivers averaged 57.5 hours on duty 
in 8 days (which is the equivalent to 50.3 hours in 7 days). ATA 
concluded that drivers were using the restart not to maximize hours, 
but rather to take extended off-duty periods.\2\ If drivers are working 
as little as the ATA data and other comments indicate, the changes to 
the restart provision will have little impact because the provision 
only affects drivers who are working longer hours week after week. The 
restart does not simplify bookkeeping. Unless a driver knows that he is 
working less than 60 hours a week (e.g., a regular 10-hour day, 5 days 
a week), he must keep a running 7- or 8-day total of on-duty hours to 
be sure he is within the limits regardless of the restart provision or 
the changes this rule makes to it. If a driver takes 34 hours or more 
off, he simply has a new point from which to keep the total, but he 
still needs to keep track of his total hours if he could be pressing 
the limits. Many drivers do these calculations in their heads without 
needing to write them down. FMCSA believes that this provision will not 
result in a paperwork burden increase. If drivers are not using the 
restart to gain hours of work, their productivity will not be affected 
by today's rule. No one needs the restart to take the ``extended off-
duty period'' cited by ATA; the restart is only useful for drivers who 
are trying to minimize their off-duty time. Even those drivers will not 
have their work seriously curtailed in a single week. Under today's 
rule, a driver will still be able to work up to 81 hours in a single 
week and will be able to average 70 hours of work a week over time.

    \2\ Stephenson, B., ATA, email to Tom Yager, FMCSA, September 8, 
2010. FMCSA-2004-19608-4026.

    Industry claims that the 2-night requirement for drivers would 
affect nighttime deliveries and increase congestion are also 
unsupported. Given ATA's data, the substantial majority of drivers do 
not need the restart and would not be subject to the requirement. These 
drivers can continue to work their usual schedules, including making 
deliveries at night 7 days a week. Even drivers who are working maximum 
schedules will still be able to drive and make deliveries at night 5 
days a week.
    In general, although many industry commenters stated that they 
would suffer substantial economic impacts, they submitted no data or 
explanations. The rule will reduce maximum weekly driving time by no 
more than 5 percent for the few drivers who drive longer hours. It is 
difficult to see how these provisions, if they are used as little as 
industry stated, could produce reductions in revenues of 10 to 40 
percent as some commenters claimed, particularly given that drivers who 
do work the longest hours rarely are able to do so on a continuing 
basis. On the issue of driver incomes, only those drivers working the 
longest hours will lose income and then only if they have been able to 
drive long hours in consecutive weeks.
    On the health benefits of the rule, ATA submitted the opinion of 
one researcher who disputed the Agency's use of data in a study that 
the researcher co-authored dealing with the effect on mortality of 
improvements in sleep (Cappuccio). The lead author of the same study, 
however, supported FMCSA's analysis and considered it conservative 
(Ferrie). Industry commenters did not otherwise attempt to address the 
issue of the health impacts of long work hours and sleep loss. FMCSA 
notes that the industry chose to ignore an ever increasing body of 
research that links long hours of work to sleep loss and an increased 
risk of obesity, diabetes, and cardiovascular diseases.
    Similarly, on the risk of long hours in general, the industry 
dismissed the many studies, including the new research discussed below, 
that have found that risk increases with hours worked. Industry did not 
submit any statistically usable data on their own crash rates. NIOSH 
drew attention to the considerable body of research in other sectors 
that has also found that risk increases with hours worked. Like workers 
in other sectors, drivers are susceptible to fatigue, and, therefore, 
these other studies should be considered in weighing the evidence for 
increasing risk.
    In summary, the motor carrier industry did not provide evidence to 
support the dire economic consequences it claimed would flow from the 
Agency's HOS proposal. FMCSA believes that the changes adopted today 
are clearly supported by the evidence on the risk of fatigue and 
fatigue-related crashes associated with long daily and weekly hours, on 
the loss of sleep associated with long work hours, and the health 
effects associated with sleep loss.

II. Legal Basis

    This 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 promulgated 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 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

[[Page 81141]]

safely; and (4) the operation of commercial motor vehicles does not 
have a deleterious effect on the physical condition of the operators'' 
(49 U.S.C. 31136(a)). This rule would improve both highway safety and 
the health of CMV drivers.
    This 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 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 rule.

III. Background and Description of the Trucking Industry

    The history of the HOS regulations has been discussed at length in 
previous rulemakings and will not be repeated here. See the May 2, 
2000, NPRM for a detailed history of the earlier provisions (65 FR 
25540) and the December 29, 2010, NPRM of this final rule for the more 
recent history (75 FR 82170).
    FMCSA held a total of five public listening sessions prior to 
publishing the NPRM as well as one session after publication to gather 
information and opinions. These listening sessions were webcast, the 
Agency accepted calls during the sessions, and the Agency held an 
online comment and question forum on February 17, 2011, from noon to 
midnight to give more people a chance to participate. Transcripts of 
the listening sessions and the online comment and question forum are in 
the docket.\3\ As noted above, more than 21,000 comments were submitted 
to the docket. Each comment was read and the positions of commenters on 
each issue they addressed were logged.

    \3\ Transcripts of the listening sessions and the online comment 
and question forum may be found in the online docket on 
www.regulations.gov at:
    a. January 19, 2010 Listening Session--FMCSA-2004-19608-3854.
    b. January 22, 2010 Listening Session--FMCSA-2004-19608-3860.
    c. January 25, 2010 Listening Session--FMCSA-2004-19608-3855.
    d. January 28, 2010 Listening Session--FMCSA-2004-19608-3856.
    e. March 26, 2010 Listening Session--FMCSA-2004-19608-3904.
    f. February 17, 2011 Listening Session and Online Comment and 
Question Forum--FMCSA-2004-19608-9393.

Trucking Industry

    The trucking industry is comprised of 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; truckload versus less than 
truckload (LTL); long-haul versus short-haul. 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 (line-haul) 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 dominant pattern for line-haul 
drivers in LTL operations is driving five nights a week with the 
weekend (or at least 2 consecutive days) at home. Some firms will have 
one group of drivers working Monday through Friday nights and another 
group working Sunday through Thursday nights. Daytime driving sometimes 
occurs when, for example, a trailer is to be moved to a terminal that 
cannot be reached in a single, overnight run.
    The truckload 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, 
transportation from one place to another being booked and sold 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 nighttime driving. Short-haul drivers operate within a local 
area; most are not exclusively nighttime 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 sectors are affected by different parts of the HOS 
rules. Most short-haul carriers do not use all of the allowable driving 
hours because they spend a good part of each day loading and unloading 
the truck to make local deliveries. These drivers also generally work 5 
days per week and less than 12 hours a day, which makes the restart 
unnecessary. The local part of LTL operations has a similar work 
pattern. The line-haul LTL runs are between terminals located at the 
outer edges of metropolitan areas or in smaller cities. Like local 
drivers, except in peak season, they usually work 5 days a week. 
Private carriage is almost always limited to trips of less than 500 
miles or 10 hours of driving. There are far more long runs in the 
truckload sector, but even this sector moves much of its cargo less 
than 500 miles. The carriers most affected by the HOS rules are the 
truckload carriers that operate most or all of the time on a random 
basis, picking up a load for delivery without knowing where the next 
load will be.

IV. Discussion of All Comments

    FMCSA received more than 20,000 comments, but no single provision 
of the NPRM drew responses from a majority of the commenters. About 
4,000 commenters addressed driving time and the restart; about 3,000 
addressed breaks and duty time limits (most of these wanted a return to 
the pre-2003 cumulative duty time); approximately 200 commented on the 
on-duty definition, and about 100 commented on the penalty provision. 
Most people who took the time to comment opposed some part of the 
proposal. About 8,000 comments expressed general opposition to the 
    The primary arguments made by the commenters were limited and 
applied to the three main provisions of the NPRM--driving time, the 
restart, and breaks. To avoid redundancy, in this section the 
overarching arguments will be discussed first, incorporating specific 
points related to the provisions. The arguments that apply to a single 
provision will then be presented. Comments on the economic analysis are 
addressed in Section VI ``Required Analyses'' of this preamble.
    The motor carrier industry argued that the declining fatality rate 
for truck-involved crashes since 2004 demonstrates that the current HOS 
rule is safe and should not be changed. The main industry argument, 
however, was that changing the rule would produce serious economic 
consequences for carriers, drivers, shippers, receivers, and consumers. 
On other issues, the industry generally disagreed with the

[[Page 81142]]

notion that drivers are not getting sufficient sleep and that chronic 
fatigue is a problem. The industry's only argument on driver health 
benefits was to claim that the study used to estimate increased 
mortality had been misapplied, a claim that the study's lead author 
refuted in a comment to the docket. NTSB, NIOSH, and safety advocacy 
groups, all submitted comments to support the proposal in general, 
contradict industry arguments, and provide additional research. FMCSA 
asked for data on crash experience under the current rule, costs of the 
proposed rule, and related matters, but no carrier or association 
submitted information that proved to be useful.

A. Safety

    Industry commenters made two principal arguments on safety. The 
first was a general statement on the improving crash rates of CMVs; the 
second was specific to the 11-hour driving limit. This section presents 
the comments and response to improving the crash rates. Section 
IV.''Discussion of All Comments'' E. ``Driving Time Limit'' discusses 
the 11-hour issue.
    Comments. Many industry associations, carriers, and drivers stated 
that the 2003 rule has improved (or at least not reduced) safety and 
pointed, as proof, to the decline in truck crash rates that occurred 
from 2004 to 2009. ATA stated that truck vehicle miles traveled (VMT) 
increased during that period, countering any argument that the economy 
was the cause of the decline in crashes. Some carriers stated that 
their crash rates (variously reported as preventable, recordable, 
injury, or all crash rates) declined over similar periods. Two 
commenters noted that HOS compliance has improved as seen in roadside 
inspection data.
    Advocates et al., \4\ the Insurance Institute for Highway Safety 
(IIHS), and another commenter pointed out that the crash rates began 
falling well before 2004 and that the passenger vehicle fatality rate 
has fallen faster than the truck fatality rate in recent years. IIHS 
stated that there was no apparent change in the long-term trend 
coincident with the 2003 rule change. IIHS also noted that there had 
been a general downward trend in CMV driver deaths, but that the number 
rose between 2003 and 2006, before dropping in 2007 and 2008.

    \4\ Comments for Advocates for Highway and Auto Safety, Public 
Citizen, Truck Safety Coalition, and the International Brotherhood 
of Teamsters, filed jointly.

    FMCSA Response. Crash rates for trucks and passenger vehicles have 
been falling since the late 1970s. The reasons for the decline are 
complex and cannot be attributed to any single factor. It is very 
likely that improved vehicle safety design for cars and improved road 
design have contributed to the reduction. Injuries and fatalities have 
also decreased with greater use of seat belts by car and truck drivers. 
The rates have been steadily declining over a long period, well before 
the HOS rules changed.
    Economic conditions do play a part in the number of crashes. The 
large decrease in truck-related fatality rates from 2007 to 2009 is not 
unprecedented; similar year-to-year percentage decreases in fatal crash 
rates occurred in 1980, 1982, 1991, 1992, and other periods of 
recession. ATA argued that the recent recession could not explain the 
decline in fatality rates because truck VMT actually increased despite 
the recession. The increase in truck VMT cited by ATA and others, 
however, is an artifact of a change in the definition \5\ of ``truck'' 
used by the Federal Highway Administration (FHWA) in estimating VMT, 
which resulted in an addition of almost 1.9 million vehicles (about 
370,000 combination vehicles and 1.5 million straight trucks) and their 
associated VMT to the ``truck'' population. In estimating the number of 
trucks, FHWA has defined that term to mean any vehicle other than a bus 
with a gross vehicle weight rating greater than 10,000 pounds. The 
population of ``trucks,'' therefore, now includes mobile homes, large 
pickups, cab chassis, and various other larger vehicles, most of which 
are not used by motor carriers, except for short-haul pickups and 
deliveries.\6\ The changed definition increased the number of 
combination trucks by 17 percent and the number of single-unit trucks 
by about 22 percent (for 2008). The change increased 2008 VMT for 
combination trucks by about 28 percent and VMT for single-unit trucks 
by about 50 percent. FHWA revised VMT estimates for previous years to 
reflect its new methodology and allow year-to-year comparisons. These 
revised VMT numbers show that combination truck VMT peaked in 2007, 
fell slightly in 2008, and fell sharply in 2009. This pattern obviously 
reflects the decline in demand for transportation associated with the 
recent recession.

    \5\ The FHWA 2009 VMT estimates and its revision of the 
estimates for 2000-2008 were posted in April 2011 in Table VM-1 of 
Highway Statistics (annual editions) (http://www.fhwa.dot.gov/policyinformation/statistics.cfm).
    \6\ A combination vehicle is any vehicle towing a trailer. Semi-
trailers are combination trucks as are pick-ups, cars, or straight 
trucks towing a trailer; for example, a sport utility vehicle towing 
a boat is considered a combination vehicle.

    These drops in VMT are consistent with other data that reflect VMT 
for trucks. Diesel fuel sales for over-the-road-vehicles, which are 
primarily for trucks, dropped 14 percent from 2007 to 2009, according 
to data from the Energy Information Administration. The Census Bureau's 
Annual Survey of the Service sector indicated that the trucking 
industry revenues dropped by about 19 percent from 2008 to 2009 and VMT 
for for-hire carriers by 15 percent.\7\ ATA's own trucking activity 
index (year 2000=100) lists the mileage index for truckload carriers in 
December 2003 as 100.4 seasonally adjusted; the index fell slightly 
(less than 10 percent) until the middle of 2008 when it began to fall 
sharply, reaching a low point of 71.3 in April 2009.\8\

    \7\ U.S. Census Bureau, ``Truck Transportation, Messenger 
Services, and Warehousing--NAICS 48/49 http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf.
    \8\ ATA, Economic Statistics Group, ATA Trucking Activity Report 
Historical Truckload Sector Database as of March 2011. Available 
online at http://www.atabusinesssolutions.com/p-24-ata-trucking-activity-report-trac.aspx.

    A study conducted by the National Highway Traffic Safety 
Administration showed that large fatality declines (for all vehicles) 
tended to coincide with areas with higher increases in the unemployment 
rate, which limits driving, particular long-distance driving 
(Longthorne). A similar study conducted by the University of Michigan 
Transportation Research Institute attributed the decline to a number of 
factors (Sivak). The study noted that crashes (for all vehicles) had 
fallen more sharply on rural interstates than on other roads, which 
they stated was consistent with a decline in long-distance leisure 
travel. Similarly, crashes during rush hours dropped more than crashes 
at other times, consistent with reduced traffic. They noted that the 
decline in truck crashes was consistent with the decline in freight 
    The assumption in the industry argument is that fatigue-related 
crashes, which are the target of the HOS rules, have declined as 
sharply as crashes as a whole. The data from the Trucks Involved in 
Fatal Accident reports, however, indicated that the trend in fatigue-
coded fatal crashes has not been as consistent as the decline in 
crashes. The highest percentage of fatigue-coded fatal crashes occurred 
before the 2003 rule in 1999 and 2000 (both 2.1 percent) followed by 2 
percent in 1994 and 2007, before and after the rule; the lowest rate

[[Page 81143]]

occurred before the rule (1.4 percent in 2001) followed by 1.5 percent 
in 2002, 2004, and 2006, before and after the rule.
    While the declines in crashes are welcome, they are not sufficient. 
The IIHS commented that driver deaths increased after the 2003 rule was 
implemented. FMCSA notes that drivers are far more likely to die in 
single-vehicle crashes than in multi-vehicle crashes and single-vehicle 
crashes are more often associated with driver fatigue. The more recent 
sharp drop in driver deaths may be the result of less general traffic 
and lower demand for trucking services, which may have reduced fatigue 
and trucks on the road, or other factors, such as carriers laying off 
their riskier drivers and significantly higher truck driver use of seat 
belts. It remains the case, however, that almost 300 CMV drivers died 
and 6,000 were injured in single-vehicle crashes in 2009. As noted 
above, 3,380 people died in truck crashes and 74,000 were injured in 
2009. These numbers may be low historically, but they are still too 
high. Furthermore, preliminary reports from NHTSA indicate 3,675 people 
were killed in truck-related crashes in 2010, an increase of 8.7 
percent over 2009.

B. Economic Impacts

    Economic arguments formed the core of the comments on the proposed 
rule. This section discusses those arguments, both the general 
statements and the specific claims about individual provisions.
    Comments on General Economic Impacts. Industry associations, 
carriers, and drivers stated in general that the rule as proposed would 
do the following:
     Reduce productivity of carriers.
     Reduce driver incomes.
     Affect shippers, receivers, and consumers.
     Increase demand for more drivers and put more 
inexperienced drivers on the road.
     Increase congestion.
    The majority of commenters on these issues stated that the NPRM--
particularly the 10-hour driving time, the 2-night requirement for, and 
the weekly availability of, the 34-hour restart--would have serious 
negative financial impacts on carriers and affect the reliability of 
the industry. Many commenters believed these provisions would reduce 
operating resources (drivers' hours) and increase the cost of goods 
sold (adding drivers, equipment, and operating costs), which could also 
result in delays in deliveries to customers and loss of business. Many 
commenters seemed to assume that the two-night limit on the restart 
would eliminate nighttime deliveries. Commenters generally claimed 
that, to accomplish the same amount of productivity, the proposed 
regulations would require carriers to add more equipment and drivers to 
offset the decrease in available hours per driver, which would also 
lead to increased fuel and maintenance costs. Carriers predicted 
varying degrees of loss--from 4.72 percent reduction in utilization to 
25 to 33 percent decline in revenues--and increased costs ranging from 
$10,000 to $25,000 per truck. Carriers said that they would have to 
hire new drivers and buy new trucks; their estimates of the effect on 
revenues ranged from considerably less than 1 percent to 25 percent or 
more. Shippers and shipper associations emphasized the impact on supply 
chains, the need to reconfigure schedules and routes, and the costs 
associated with those changes.
    FMCSA Response. The Agency relied on published data and reports 
from a range of sources for the NPRM and this final rule. These 
documents did not include any information indicating that the adverse 
economic outcomes described above were likely to occur. The Agency 
estimates that this rule would reduce productivity by 2.7 percent with 
a 10-hour driving limit, and by 1.2 percent with an 11-hour limit. In 
either case, this estimate is significantly lower than that of many 
industry commenters, but given that the Final Rule is functionally 
equivalent to Option 3 (11 hours), the lower impact of 1.2 percent 
applies. It is true that some carriers, depending on their operations, 
may experience greater impacts, but others will experience more 
moderate impacts. Our estimate for the total costs of the rule are also 
much lower than those claimed by the industry: we estimate that the 
total cost of the rule would equate to roughly one-third of one percent 
of industry revenue, not the 25 to 33 percent declines stated by the 
industry. To put this figure into context, a 3 cent rise in the price 
of diesel fuel would impose greater costs on the long-haul segment of 
the industry than this rule. Data submitted by ATA to the docket, while 
not complete enough to be used to re-estimate the costs of the rule, 
indicates that drivers may be working less intensely than the Agency 
assumed in conducting the analysis. If that is the case, the costs (and 
benefits) would be lower than the Agency estimates, as ATA's consultant 
acknowledged in its analysis.
    Although commenters made a wide range of claims for the cost of the 
NPRM, they provided little data to support those claims and few 
explanations of how the rule changes could affect their operations to 
the degree claimed. A number of publicly traded motor carriers 
submitted cost estimates that, when compared to their reported 
revenues, were found to represent a small fraction of 1 percent of 
their revenues, which is much less than FMCSA had estimated in its 
economic analysis. None of the commenters provided an explanation of 
how a reduction in weekly driving hours of about 5 percent for those 
working the longest hours could produce revenue declines of the 
magnitude claimed.
    Most of the claims seem to imply that every truck and driver is 
working the maximum hours every day. Commenters addressing other issues 
(including many of the same commenters) indicated that use of the 11th 
hour of driving is considerably lower than FMCSA estimated (on about 10 
percent of the runs compared to the 21 percent FMCSA had estimated) and 
that restarts are generally longer than 34 to 40 hours. The critique of 
the RIA submitted by ATA and cited by many industry commenters claimed 
that FMCSA had overstated the number of drivers working long hours. 
Data submitted by ATA based on more than 118,000 drivers indicate 
average work weeks of less than 44 hours; a smaller sample of drivers 
that ATA submitted still averaged less than 58 hours in 8 days (or 
about 50 hours in 7 days). The industry, in effect, made two 
contradictory arguments--that the long hours allowed by the current 
rule are rarely used so that fatigue is not a problem and rule changes 
are not necessary, and that any reduction in those hours will have 
serious economic impacts. Both arguments cannot be true.
    Any driver who is working less than 60 to 70 hours a week does not 
need a restart and thus is unaffected by the limitations on the restart 
requirement in this final rule. Revenues generated by those drivers 
will not be affected. The restart does not simplify bookkeeping. Unless 
a driver knows that he is working less than 60 hours a week (e.g., a 
regular 10-hour day, 5 days a week), he must keep a running 7- or 8-day 
total of on-duty hours to be sure he is within the limits regardless of 
the restart provision or the changes this rule makes to it. If a driver 
takes 34 hours or more off, he simply has a new point from which to 
keep the total, but he still needs to keep track of his total hours if 
he could be pressing the limits. Many drivers do these calculations in 
their heads without needing to write them down. This calculation, at 
any rate, is

[[Page 81144]]

both simple (subtracting one day's hours from the running total, then 
adding another day's hours to the result) and can be conducted during 
waiting or refueling time, and so would result in de minimis effort and 
cost to the driver. Furthermore, any driver who only takes a restart 
once a week would not have to keep a tally of hours back beyond the 
previous restart, because that restart would reset the driver's 
cumulative available hours under the new rule, as it does under the 
current rule. Any driver who works relatively moderate hours would be 
unlikely to take multiple restarts in a week, or have to worry about 
violating the cumulative weekly hour limit.
    The two-night requirement will not stop overnight deliveries; even 
a driver who is working maximum hours and needs a restart could still 
make nighttime deliveries 5 days a week. Drivers who are not working 
longer hours can continue to make nighttime deliveries every working 
night because they do not need a restart and are not subject to the 2-
night requirement. This group of drivers includes local delivery 
drivers whose schedules may start in the early hours of the morning and 
LTL line-haul drivers. Long-haul truckload drivers, who may prefer to 
drive at night because there is less traffic, have schedules set by 
shippers and receivers and may not routinely drive at night. J.B. Hunt 
stated that 32 percent of its drivers occasionally drove at night; 
these drivers did so on average only 6 nights a month.
    Industry comments claimed that the reliability of service would be 
affected, but provided no explanation of why this would occur. 
Reliability is the ability to predict when a shipment will arrive. 
Differing limits on work time may alter arrival times, but would not 
affect the ability to estimate an arrival time.
    Carriers and drivers reiterated in comments on the NPRM that long-
haul truckload drivers spend anywhere from 10 to 50 percent of their 
time each week waiting to be loaded and unloaded, time for which the 
drivers are not usually paid. The National Small Shipments Traffic 
Conference admitted that the 2003 rule's 14-hour consecutive duty limit 
had caused some receivers to unload the product before they needed the 
product for the store shelves or production line rather than letting 
the shipments sit in the truck until needed. In essence the association 
was confirming the drivers' claim that they are treated as moving (and 
free) warehouses. Carriers stated that the shortening of wait time or 
detention that occurred after the 2003 rule has eroded and that wait 
times have increased again. If the drivers and carriers are correct,\9\ 
the supply chain includes inefficiencies that regularly absorb more of 
drivers' on-duty time than all of the changes adopted in this final 
rule. The relatively small impacts of the rule could be offset and the 
utilization of trucks and drivers improved if shippers and receivers 
set and kept appointments for loading and unloading instead of 
expecting drivers to put in long unpaid hours waiting. FMCSA has no 
obligation to allow drivers to work excessively long hours a week to 
compensate for delays in the supply chain.

    \9\ See ``Commercial Motor Carriers: More Could Be Done to 
Determine Impact of Excessive Loading and Unloading Wait Times on 
Hours of Service Violations,'' U.S. Government Accountability 
Office, January 2011, Report No. GAO-11-198, http://www.gao.gov/new.items/d11198.pdf and the letter report, ``U.S. Department of 
Transportation Statement on Government Accountability Office (GAO) 
Report'' for Report No. on GAO-11-198, May 23, 2011, available in 
the docket. The DOT letter report was sent to the Office of 
Management and Budget (OMB) and four Congressional committees, 
stating that FMCSA is planning to examine the extent to which 
detention time contributes to drivers violating hours of service 
requirements and that it plans to initiate the study in Fiscal Year 
2012, contingent on resource availability, in response to the GAO 

    Comments on Impact on the Number of Trucks. Commenters argued that 
taking an hour away from daily driving time would result in more trucks 
being used to move the same amount of freight. They stated that more 
trucks on the road would increase costs to carriers, and that those 
cost increases would be passed to shippers and ultimately to consumers 
in the form of higher prices. The National Association of 
Manufacturers, a trucking association, and a carrier noted that 
reducing the daily driving limit to 10 hours would also increase costs 
to manufacturers and retailers, as they would have to carry additional 
inventory, at additional costs, to ensure that they have products on 
their store shelves, since reliability of service could be interrupted. 
Commenters, including the Owner Operator Independent Drivers 
Association (OOIDA), also argued that changing the 11-hour driving time 
limit would increase transit time and reduce productivity and on-time 
deliveries because current distribution centers and routes are built 
around the current HOS rules. Five commenters that ship products with a 
limited shelf life or peak ripeness argued that the reduction of daily 
driving time to 10 hours would severely strain their ability to get 
fresh product to their customers by increasing days of transit time. A 
carrier that transports livestock expressed concern over increased 
livestock deaths that may result with a decrease in daily drive time, 
due to drivers being forced to stop to take their break without being 
able to provide the animals with water or relief from the summer heat. 
Commenters also argued that reducing daily driving time would reduce 
drivers' incomes.
    FMCSA Response. FMCSA sees no reason why changing the daily driving 
limit from 11 hours to 10 hours, a limit that was in effect for more 
than 60 years before 2003, would reduce the reliability of motor 
carrier service. Reliability depends on the carrier's ability to 
estimate accurately how long a trip will take, which they can do 
regardless of the driving time limit. However, FMCSA acknowledges that 
some businesses have built their distributions systems to optimize 
driving times under the 11-hour limit and that they might face 
significant costs to maintain their current delivery times if limits 
were reduced. As discussed above, the Agency has not adopted a 10-hour 
limit at this time.
    The concerns expressed by livestock haulers that a mandatory rest 
break of at least 30 minutes would increase the risk of livestock 
deaths seem overstated. Federal law allows carriers transporting 
animals to keep them confined for up to ``28 consecutive hours without 
unloading the animals for feeding, water, and rest'' (49 U.S.C. 
80502(a)(1)), and there are exceptions even to that standard (Sec.  
80502(a)(2)). This statute is obviously intended to protect animals 
during transportation. Under these circumstances, it is difficult to 
see how a half-hour break taken no later than 8 hours after the driver 
comes on duty--and presumably not much longer than that after the 
animals were loaded--could have dire consequences.
    Comments on Congestion and Parking. Many commenters stated that a 
10-hour driving limit would place more trucks on the road, increase 
congestion, and worsen an already existing truck parking shortage at 
truck stops. They also argued that the 11-hour driving limit is very 
important to them because they use the 11th hour to find safe parking 
where they can take their 10 hours off duty. Other commenters argued 
that the 11th driving hour is rarely used, but that it provides much-
needed flexibility allowing drivers time to get home or find parking 
after unforeseen events during their shift, such as congestion, 
inclement weather, or the needs/demands of shipper, receiver, carrier 
or dispatch. Commenters also implied that night drivers would switch to 
day driving to shorten their restarts, which would increase congestion. 
Commenters stated that the proposed 2-night midnight to 6 a.m. period 
for restarts would result in

[[Page 81145]]

more trucks entering the traffic stream at 6 a.m., thereby increasing 
    FMCSA Response. It is difficult to see how the change in the 
driving limit or the 2-night requirement would seriously affect the 
number of trucks on the road and, therefore, how the changes would 
increase congestion or the shortage of parking. Because the Agency is 
retaining the 11-hour driving limit, the commenters' concerns about 
increased congestion related to a need for more trucks will not be 
realized. An increase in rush hour traffic because of the 2-night 
provision is unlikely. Most drivers who routinely work at night (LTL 
and local delivery) do not work enough hours to require a restart and, 
therefore, would not need to change schedules. Truckload drivers do not 
drive at night regularly and have more ability to adjust start and stop 
time to minimize the impact of the provision on their operations. FMCSA 
has also narrowed the required period for those who are affected by the 
provision to allow earlier starts, which will further reduce effects on 
rush hours.
    Most drivers who routinely drive at night are either LTL line-haul 
operators or work for local private carriers making deliveries. Neither 
of these is likely to switch to day driving nor is there any reason why 
they would need to. Drivers need to take a restart, and thus two full 
nights off, only if they have worked more than the cumulative hours 
allowed under the weekly duty limit (60 hours in 7 days or 70 hours in 
8 days). Most of these drivers work few enough hours per week (less 
than 60) that, although nominally ``using the restart provision'' by 
virtue of taking off a day or a full weekend, they are not using the 
restart to gain any additional hours beyond the 60 hours that they 
would be allowed without the restart provision. Because they do not use 
the restart to increase the hours they are allowed to use, these 
drivers can maintain their preferred schedule while still complying 
with the HOS rule. In particular, they are not required to have 2 
consecutive nights off (although they usually do). Long-haul truckload 
drivers may prefer to drive at night, but their schedules are irregular 
and determined by their appointment times. Even these drivers, 
according to ATA, do not routinely work enough hours to trigger the 
need for the restart. When they do work maximum hours, they can still 
drive at night 5 nights a week.
    Congestion can, at times, be unexpected, but most congestion is 
predictable; any driver who will be driving around a major city during 
the rush hours knows he will encounter congestion and must therefore 
plan for it. Unforeseen weather conditions are covered by Sec.  
395.1(b), which can be used to take extra time.
    Comments 34-Hour Restart Economic Impacts. On the restart, many 
commenters said that the NPRM provision would reduce productivity. In 
contrast, Schneider National said the proposal likely would not have a 
significant negative effect on productivity, because most drivers take 
breaks that are longer than the required off-duty period. However, it 
said the 2-night requirement would add costs for the carrier and 
inefficiencies for the supply chain, because many drivers will choose 
not to restart while on the road, requiring additional ``empty miles'' 
to get them home. A number of shipper associations stated that the 
provision would limit the ability to make deliveries overnight. 
Commenters, such as ATA, the National Solid Waste Management 
Association, United Parcel Service (UPS), and others, stated that the 
proposal would deprive drivers and carriers of scheduling and 
operational flexibility. ATA commented that flexibility under the 
current rule was especially important for long-haul and irregular route 
drivers who may not know their schedules in advance and have little 
control over scheduling. Carriers in the construction and fuel delivery 
industry also stated they would be adversely affected.
    FMCSA Response. After considering numerous comments, FMCSA 
shortened the two nighttime periods that must be included in the 
restart to 1 a.m. to 5 a.m., which is the core portion of the window of 
circadian low for almost everyone. This will provide greater 
flexibility than the proposed rule while ensuring that drivers have the 
opportunity to obtain 2 nights of sleep while allowing drivers to stop 
an hour later than proposed at the beginning of the restart period and 
to start an hour earlier than proposed after the restart period. FMCSA 
acknowledges that this revised restart provision will slightly reduce 
the flexibility available under the previous rule, but recent research 
has suggested that 2 consecutive nights off duty would be necessary to 
ensure that the drivers who take a restart are adequately rested when 
they resume driving.
    Schneider National argued that its drivers would not take a restart 
with 2 nights on the road and stated that its drivers' restarts 
averaged 62 hours, which is more than enough time to cover 2 nights. 
Perhaps the largest group of regular night drivers is the LTL line-haul 
drivers, who generally work a 5-day week and whose weekend would 
normally cover two consecutive nights as a matter of course.
    As for general productivity impacts, drivers are still subject to 
the 60-hour and 70-hour limits but will still be able to use a 34-hour 
restart once a week. A driver working the longest hours will be able to 
use a restart to work those hours, but will then have to take more time 
off in the next week to compensate. Although this will limit his or her 
ability to work maximum hours every week, the commenters suggest that 
very few drivers do this. Local fuel delivery drivers are probably not 
working enough hours to need a restart as most local drivers work 5-day 
weeks. The construction industry is not subject to the restrictions 
because it observes a statutorily mandated 24-hour restart (49 CFR 
    Comments on Economic Impact of Breaks. ATA and others stated that 
because there is little or no evidence that drivers are not taking 
breaks during the course of the workday, requiring breaks at specific 
times only reduces flexibility and productivity. Drivers, carriers, the 
American Moving and Storage Association (AMSA), and others, argued that 
the break provision can decrease efficiency and productivity, prevent 
on-time deliveries, and create a longer workday; commenters cited the 
difficulty of finding a place to park. FedEx commented that a 30-minute 
rest break by the 7th hour after coming on duty would further hinder 
local package pickup and delivery drivers operating under Sec.  
    FMCSA Response. After considering numerous comments about the 
breaks, primarily from team drivers, the Agency extended by one hour 
the window in which a break must be taken. The final rule provides that 
driving is not permitted if more than 8 consecutive hours on duty--
compared to 7 hours in the NPRM--have passed since the last off-duty 
(or sleeper-berth) period of at least 30 minutes, a driver must take a 
break of at least 30 minutes before driving. For example, if the driver 
started driving immediately after coming on duty, he or she could drive 
for 8 consecutive hours, take a half-hour break, and then drive another 
3 hours, for a total of 11 hours. Conversely, this driver could drive 
for 3 hours, take a half-hour break, and then drive another 8 hours, 
for a total of 11 hours. In other words, this driver could take the 
required break anywhere between the 3rd and 8th hour after coming on 
duty. A driver who plans to drive until the end of the 14th hour and 
wants to take only one break will need to take a break between the 6th 
and 8th hour after

[[Page 81146]]

coming on duty. Drivers will have great flexibility in deciding when to 
take the break. By postponing the latest point at which the break can 
be taken from the 7th to the 8th hour, the rule will make it 
significantly easier for team drivers to coordinate their sleeper-berth 
periods and may enable drivers who do not drive late into their work 
shift to dispense with a break altogether. FMCSA has also added an 
exception for drivers of CMVs carrying Division 1.1, 1.2, or 1.3 
explosives to allow them to count on-duty time spent attending the CMV 
as required by Sec.  397.5 but doing no other on-duty work, toward the 
    If, as the data ATA and others submitted indicated, drivers are 
averaging less than 50 hours of driving a week, it is difficult to 
understand how a half hour break that can be taken sometime between the 
2nd and 8th hour in a 10-hour day could cause any delays unless the 
industry is saying that these drivers never stop for a meal or a rest 
break during that time. FedEx stated that its drivers average less than 
9 hours of driving a day except in peak periods when the average is 
slightly less than 10 hours. It seems unlikely that drivers work 
essentially non-stop. FMCSA recognizes that drivers on the road may 
have to find a safe place to park, but even the drivers working to the 
end of the 14-hour window have a 2-hour window in which to take a break 
(between the 6th and 8th hour after coming on duty), assuming they take 
just one. Drivers working shorter days have progressively longer 
windows in which to take the break and meet the requirement. That 
should be adequate time to find a safe place to park.
    Comments on Economic Impact on Drivers. A large number of 
commenters stated that the NPRM would reduce drivers' incomes because 
they would be able to drive fewer miles and would lose loads. ATA 
claimed that it could cause an income loss of 20 percent in peak 
season. Carriers estimated driver losses at anywhere from 8 percent to 
40 percent. Two large carriers, however, indicated that the result 
would be an increase in driver pay rates to offset the lost hours.
    FMCSA Response. A driver who is regularly working the longest hours 
will lose hours under the final rule; that is the intention of the rule 
changes. Drivers will still be able to average 70 hours a week, 
however, which is longer than most people work and, if the industry 
data are accurate, longer than most drivers are working. A driver on 
the 70-hour/8-day schedule working the maximum hours allowed under the 
2003 rule would lose one shift every 2 weeks (11 instead of 12 14-hour 
shifts in 14 days). According to the ATA data, very few drivers are 
working that hard; those few who do so are apparently not doing it 
consistently. The income of drivers who are averaging less than 60 
hours a week, let alone less than 50 hours, will not be affected by the 
provisions of this final rule. For the drivers working the longest 
hours, a reduction in waiting time could enable the drivers to have 
more opportunities to drive weekly. The rule reduces the maximum number 
of on-duty hours more than it reduces the maximum number of driving 
hours (a maximum of 82 hours on duty on average to 70 hours versus a 
maximum of about 74 hours of driving time to 70 hours).
    An underlying assumption in many of these claims of lost income is 
that most shipments are time-critical and that shippers will shift to 
teams to ensure delivery. The long waiting times that shippers and 
receivers often impose (2-18 hours according to drivers) indicate that 
this is not true, as do reports from drivers and others that drivers 
will generally try to arrive the night before a pick-up or delivery so 
they can be sure to make their appointment times. Teams represent a 
relatively small part of the industry, which indicates that most 
shippers do not believe the arrival time is so critical that they are 
willing to pay the higher rates associated with teams. Shipper surveys 
indicate that reliability, not transit time, is more important to 
shippers. A 2009 report on trucking stated that ``freight buyers are 
more willing now to sacrifice a day or three in transit, at a lower 
cost, as long as they and their customers know when shipments will 
arrive'' (O'Reilly (2009)). For the 2010 survey, 90 percent of surveyed 
shippers identified reliability as their most important criterion when 
selecting carriers (O'Reilly (2010)).
    Finally, as two carriers stated and as the industry has been saying 
in press reports and, for publicly held companies, reported in their 
SEC filings, regardless of the rule changes, driver wage rates are 
likely to have to rise to attract new drivers to the industry and to 
retain the current workforce. A National Transportation Institute 
survey found that 80 percent of the carriers that responded expected to 
increase driver pay (Cassidy (2010); Isidore). Pay increases may 
partially or wholly offset income losses for the limited number of 
drivers working the longest hours. FMCSA concedes that the hardest 
working drivers may lose income if they drive fewer miles under the 
revised rule.
    Comments on the Economic Impact on Consumer Prices. Some commenters 
expressed concern that the proposed regulations would lead to consumers 
paying a higher price for shipped goods, including food products, 
because higher costs to carriers would be passed on to receivers and 
customers. Other commenters cited concerns about higher prices from the 
costs of adjusting scheduling systems and training staff.
    FMCSA Response. If carriers have to raise rates to cover additional 
costs, those costs will eventually be passed on to consumers. FMCSA 
notes, however, that transportation costs represent a relatively small 
part of the cost of any consumer item and that the largest contributor 
to variability in transportation costs is the price of diesel fuel. As 
stated in the NPRM and Regulatory Impact Analysis (RIA), the cost of 
the rule changes to the industry is the equivalent of an increase of 
less than $0.03 per gallon of diesel for the long-haul segment of the 
industry. The U.S. Department of Agriculture indicates that 
transportation represents only 2 to 6 percent of each food and beverage 
dollar, a percentage which has declined over time (USDA Economic 
Research Service). Even if the rule increased transportation costs by 
10 percent, that would add less than a penny per dollar to food and 
beverage costs. If, as the RIA projects, transportation costs will 
increase by less than 0.25 percent, the increase in the price of each 
food item will be a very small fraction of a penny. The one-time costs 
of adjusting scheduling systems and related items will not add to the 
long-term cost of consumer items.
    Comments on the Driver Shortage. Commenters stated that the rule 
changes would require carriers to hire more drivers at a time when 
carriers cannot fill positions and that more inexperienced drivers, who 
are less safe, would be on road.
    FMCSA Response. FMCSA recognizes that the rule may lead to more 
driver positions. Whether the driver shortage that commenters cited is 
real is a matter of considerable debate in the industry. OOIDA has been 
quoted as saying ``The industry purged itself of 30 percent of its 
drivers in the last two years. They're everywhere, but they are not 
coming back to work for you if you're not going to pay them anything'' 
(Dills). An etrucker.com survey asked about the causes of the driver 
shortage; 40 percent of respondents attributed it to low pay, but 24 
percent said there was no shortage (Dills). Industry press reports 
indicate that carriers have many more applications than they have 
    FMCSA is aware that new drivers have a higher crash rate than more 
experienced drivers, but the industry

[[Page 81147]]

adds a large number of new drivers every year. The number added because 
of today's rule will be relatively small in comparison to the annual 
influx for an industry where turnover, until the recent recession, was 
100 percent or more in the truckload sector. The real issue for the 
industry is that many of the new drivers leave the industry within a 
few months because of long hours, the weeks away from home, and low pay 
(Burks (2007)).

C. Sleep Loss and Chronic Fatigue

    Comments. A number of commenters, including the major trucking 
associations, questioned FMCSA's assumption that drivers are not 
obtaining adequate sleep. They stated that 10 consecutive hours a day 
off duty should provide sufficient rest. ATA stated that FMCSA's data 
indicate that drivers get 6.2 to 7 hours of sleep a day, which is 
enough. The Minnesota Trucking Association argued that 6.5 to 7.5 hours 
of sleep is enough. The National Association of Manufacturers said 
manufacturers did not agree that sleep between midnight and 6 a.m. is 
different from sleep at any other period. Others, including drivers, 
claimed that they were naturally able to stay up all night and sleep 
during the day. One carrier reported that its night drivers said they 
maintained their daytime sleep patterns on days off. ATA and others 
argued that the 34-hour restart, without restrictions, provides 
sufficient rest to restore performance.
    FMCSA Response. The claim that 6.2 to 7 hours of sleep is enough is 
not supported by sleep research. As discussed in the NPRM, a study by 
Belenky (2003) found that drivers getting less than 7 hours in bed a 
night suffer degraded performance. The research indicated that someone 
who is totally deprived of sleep for one night recovers more quickly 
than someone who chronically obtains 6 to 7 hours of sleep. The VTTI 
study (Hanowski (2007)) did not show that drivers were getting even 6.2 
hours of sleep on work days; that figure was the weekly average 
including 2 days off. On working days, sleep averaged below 6 hours for 
drivers who were not, in general, working the longest hours, but who 
were mostly night drivers. The sleep data in the 2005 fatigue 
management study (slightly less than 7 hours) was self-reported sleep, 
which has been generally found to be overstated by 30 to 60 minutes; 
this study also focused on a population of drivers who often drove at 
    Sleep research has for decades shown that humans find it difficult 
to get enough sleep during daylight hours even if put in dark, quiet 
rooms. Few people can obtain as much as 6 hours of sleep during the day 
and that sleep is of lower quality than nighttime sleep; 
[Aring]kerstedt (2003) found day sleep of night shift workers was 2 to 
4 hours shorter than night sleep of day shift workers. The one group 
studied that seemed to overcome this problem worked in enclosed spaces 
with no external indications of day or night. Truck drivers do not fit 
that pattern.
    The window of circadian low varies somewhat among individuals. Some 
people, if they can choose their own times, routinely sleep between 9 
p.m. and 5 a.m. while others may sleep from 2 a.m. to 10 a.m., but 
virtually every healthy person is sleepy between 1 a.m. and 5 a.m. 
Sleep at that time is longer, less prone to interruptions, deeper, and 
more restorative (Van Dongen & Dinges (2005)).
    As several commenters noted, someone who gets 10 hours of rest a 
day should not build up sleep debt, but 10 hours off duty does not 
translate to 10 hours of rest. Research on drivers and others has shown 
that people who work 14 hour days do not get adequate sleep; 10 hours 
off usually produces less than 7 hours of sleep, often less than 6 
hours because the drivers generally attend to family matters, eating, 
and showering for the other time the drivers spend off duty. And for 
the reasons discussed above, those attempting to sleep during the day 
usually only get 4 to 6 hours of poor quality sleep. The shorter sleep 
that night workers obtain may explain the higher risk of crashes and 
lower productivity that [Aring]kerstedt and Wright (2009) found when 
comparing night shifts with day and swing shifts. Drivers who sleep 
during the day on their days off would not be getting adequate recovery 
sleep. A driver who sleeps during the day every day is building up 
sleep debt from week to week.
    The drivers who are working the long daily and weekly hours needed 
to make a restart necessary may build a sleep debt that the limited 
time off allowed by the restart might reduce only slightly. These 
drivers are more likely to be chronically fatigued, with the 
performance deficits associated with fatigue, and are subject to a 
range of health effects linked to sleep loss.

D. New Research Studies

    As discussed in the overview in Section I, on May 9, 2011, FMCSA 
posted to the docket four studies that had been recently completed and 
that addressed some of the issues of concern to this rulemaking. 
Fourteen organizations submitted comments on the studies. Advocates and 
New York State Department of Transportation (NYDOT) stated that the 
studies supported the proposed rule.
    In April 2011, Virginia Tech Transportation Institute (VTTI) 
completed a naturalistic driving study, i.e., a study of actual over-
the-road drivers and operations, that examined the activities performed 
in the 14-hour workday and investigated the relationship between 
safety-critical events (SCEs) (such as driver errors and lane tracking 
deviations) and driving hours, work hours, and breaks (referenced here 
as Blanco). The study's methodology was similar to that which VTTI has 
employed in other studies conducted in support of HOS rulemaking and 
driver fatigue research. The data acquisition system was composed of 
five main components: An encased unit that housed the computer and 
external hard drive; dynamic sensors; vehicle network; incident box; 
and five video cameras. VTTI developed a custom state-of-the-art lane-
tracking system and included it in the data acquisition system. The 
lane-tracking system consisted of a single analog black-and-white 
camera, a personal computer with a frame grabber card, and an 
interface-to-vehicle network for obtaining road speed. The system 
reported the distance from center of truck to left and right lane 
markings (average error less than 2 inches). The system accurately and 
reliably measured and stored data when the vehicle crossed the dashed 
or solid highway lines. Lane tracking has historically been shown in 
the research to be a good measure of functional impairment due to 
driver fatigue.
    VTTI's previous naturalistic driving research had not shown a time-
on-task effect; these studies looked exclusively at driving time. 
Blanco looked at both driving and duty time and found a statistically 
significant positive relationship between driving time and the number 
of SCEs. The Blanco study supports the time on task function that the 
Agency used in the RIA. Blanco showed that naturalistic driving 
research no longer contradicts other types of driving time research 
conducted using different methodologies. The studies are all now 
consistent in showing that as the number of driving hours increases, 
there is a general upward trend in the number of crashes or SCEs. 
However, the study also compared the risk of driving in the 11th hour 
and failed to find a statistically significant difference between the 
11th hours and the 7th, 8th, 9th, or 10th hours.

[[Page 81148]]

    Blanco also showed that when non-driving activities (both work- and 
rest-related) were introduced during the driver's shift--creating a 
break from the driving task--these breaks significantly reduced the 
risk of being involved in a SCE during the 1-hour window after the 
break. The benefits of breaks from driving ranged from a 30 percent 
reduction in the risk of SCEs up to a 50-percent reduction (depending 
on the type of break from driving), with the greatest benefit occurring 
for off-duty (non-working) breaks.
    Blanco evaluated driving hours based on whether the hour occurred 
at the beginning, middle, or end of an on-duty shift. The first 5 hours 
after coming on duty were categorized as the beginning of the on-duty 
shift. By definition, any hour after the 5th hour of driving could not 
fall within this work period. Hours 6-9 were categorized as the middle 
shift hours, and hours 10-14 were categorized as the end of shift 
hours. Driving hours 10 and beyond could occur only during end of shift 
hours, by definition. The first hours of driving (hours 1-5) could 
occur in any shift period depending on how much on-duty not driving and 
break time a driver incorporated into a day. For example, if a driver 
spent 7 hours loading a truck at the beginning of a day, the 1st hour 
of driving would be in the middle shift hours; if that driver drove 3 
hours, the third hour would be in the end of shift hours.
    Analysis of SCEs showed that, in general, the same hour of driving 
had more SCEs if it occurred at the end of a shift than if it occurred 
at the beginning or middle of a shift. For example, if the 5th hour of 
driving occurred at the beginning of a shift, it had 0.11 SCEs per unit 
of exposure. This same hour of driving had 0.20 SCE per hour of 
exposure if it occurred in the middle of a shift, and 0.21 SCEs if it 
occurred at the end of a shift. If the 8th and 9th hours of driving 
occurred in the middle of a shift, they had 0.09 and 0.10 SCE per unit 
of exposure, respectively. At the end of the shift, by comparison, the 
8th and 9th hours of driving had 0.22 SCE and 0.18 SCE per unit of 
exposure respectively. This finding indicates that the interaction of 
total shift length and driving time impairs safety performance later in 
the day, suggesting that safety would be negatively affected by duty 
periods in excess of 14 hours.
Jovanis (2011)
    In April 2011, Pennsylvania State University (PSU) completed a 
quantitative study of the safety implications of driver HOS using a 
case-control time-dependent logistic regression methodology (referred 
to here as Jovanis (2011)). It is important to note that alone, time-
dependant logistic regression identifies an association, it does not 
prove causation. The PSU team completed a similar study in 2005. At 
that time, the Agency had concerns regarding the sample size, 
particularly in the 11th hour of driving. The new study was designed to 
address those concerns. The PSU study team collected data from the logs 
of drivers who were in crashes that involved either a fatality, an 
injury requiring medical treatment away from the scene of the crash, or 
a tow-away. The drivers' logs covered a period of 2 weeks prior to the 
crash and were compared to a random sample (two drivers) of non-crash-
involved drivers selected from the same company, terminal, and month 
using a case-control logistic regression formulation. The team 
collected data from 1,564 drivers. The methodology employed by the team 
had been peer-reviewed in many previous research studies (i.e., Jovanis 
(1991); Kaneko and Jovanis (1992); Lin (1993); and Lin (1994)). The 
team separated the data into truckload and LTL analyses because 
previous research indicated differences in the factors contributing to 
crashes for these two segments of the trucking industry. In total, the 
team analyzed 878 drivers (318 crash-involved and 560 controls) in 
truckload operations and 686 drivers (224 crash-involved and 462 
controls) in LTL operations. The study produced counter-intuitive and 
somewhat contradictory findings. For the LTL operations, Jovanis (2011) 
found that as driving time increased so did the odds of being in a 
crash. Analysis of LTL data showed a strong and consistent pattern of 
increases in crash odds as driving time increases. The highest odds are 
in the 11th hour. For truckload drivers the study found no consistent 
trend relating crash odds to hours driving. The study team stated that 
the crash-odds increase in the last hour is in need of further analysis 
because the increase in odds may be attributable to the low sample size 
of observations (9 crashes of 318 truckload crashes in the data). Given 
the nature of the type of operations, one might expect truck load 
drivers to exhibit greater crash risk due to fatigue.
Two Sando Studies
    In April 2011, the Agency placed in the docket two additional 
studies that it became aware of after publication of the NPRM. These 
two studies were conducted by the School of Engineering at the 
University of North Florida. The first study, Sando (2010a), examined 
the influence of bus operator driving hours on the occurrence of 
preventable collisions by employing data from incident reports and 
operator schedules to evaluate the correlation between driving hours 
and operator involvement in collisions. The results showed a 
discernable pattern of an increased propensity for collision 
involvement with an increase in weekly driving hours. Based on the 
analysis, drivers involved in preventable collisions had driven an 
average of over 6 hours more per week than the general bus driving 
    The second study, Sando (2010b), examined the safety impacts of the 
existing State operator hours of duty policies in Florida. The 
researchers used questionnaire surveys, incident data archived by 
transit agencies, and bus driver schedules to determine the 
relationship between crash involvement and operator schedules. Factors 
of interest in this study were the influence of shift pattern (start 
and end time), schedule pattern (split or non-split schedule), and time 
spent driving. Split schedules occur when a driver works in the 
morning, takes a long break, then works again in the later afternoon or 
evening. The study revealed that operators working split schedules were 
more susceptible to fatigue than those working straight schedules. The 
group of operators working split schedules indicated less sleep time, 
long driving hours, and early starting/late ending schedule patterns. 
These are characteristics of a fatiguing work schedule. There was also 
a strong statistical significance attached to the association between 
crash occurrence and fatigue condition as measured by a fatigue 
assessment tool. The tool predicted the likelihood that a driver was 
fatigued on a given shift by analyzing driver multi-day schedules. The 
analysis of incident data and fatigue level found that total crash 
likelihood increased significantly for drivers who were coded as highly 
likely to be seriously fatigued.
    Although transit bus operators are governed by different HOS rules 
than interstate CMV truck drivers, the Sando studies show that 
cumulative work begins affecting bus driver performance well within the 
limits of the current HOS rules for truck drivers. In addition, less 
than 3 percent of the transit operator sample worked on schedules that 
exceeded 14 hours from the start of a duty day to the end of the 
driver's last shift. In essence, the schedules of the vast majority of 
drivers studied were within the limits of the HOS rules that govern 
interstate truck drivers. The study showed that cumulative fatigue

[[Page 81149]]

begins affecting driver crash performance for drivers averaging more 
than 45-50 hours of total shift time per week, inclusive of split 
driving schedules. The study found that crash risk increased for 
drivers averaging 9 or more hours of driving per day. In addition, the 
study examined driver schedules and determined that longer working 
hours are associated with fewer hours of nightly sleep, on average.
    It must be noted that transit bus operators work in a different 
environment from most over-the-road, but not local, truck drivers. 
Transit bus operators primarily drive on city streets in an urban 
environment, whereas over-the-road truck drivers spend far more of 
their time driving on interstate highways and rural roads. 
Nevertheless, these transit bus studies do examine safety performance 
in an occupation that involves long hours of driving. These studies 
corroborate the cumulative fatigue and work-sleep relationships used by 
the Agency in analyzing the impacts of the new HOS rules, providing 
further evidence that long daily and weekly working hours affect both 
the amount of sleep drivers get and their risk of crashing.
    Comments on Blanco. The ATA submitted an analysis prepared at its 
request by Ronald Knipling that provided the following comments 
regarding the Blanco study:
     Naturalistic driving studies may not provide an adequate 
test bed for driver fatigue studies.
     The study would have been improved if the study team had 
disaggregated the data into fatigue related SCEs, at-fault vs. not-at-
fault events, single-vehicle vs. multi-vehicle, and divided vs. 
undivided road ways.
     The study is based on SCEs such as unintentional lane 
deviations, but not ``real harm.'' Only 4 of the 2,197 SCEs in the 
study were actual crashes.
     A definitive link between critical incidents and crash 
risk has not yet been established.
     The few drivers who contributed disproportionately to the 
number of SCEs should have been excluded.
     The sample of drivers is not nationally representative of 
all CMV drivers.
    FMCSA Response. The Blanco naturalistic driving study was focused 
on better understanding the activities drivers perform in the 14-hour 
workday, and investigating the relationship between SCEs and driving 
hours, work hours, and breaks. The Agency disagrees with ATA's 
contention that naturalistic driving studies do not provide an adequate 
basis for conclusions about driver fatigue and crash risk. Naturalistic 
driving studies are one of the best means to assess driver performance. 
By reviewing video records and other data from the instrumented 
vehicle, analysts are more likely to be able to pinpoint the actual 
cause of a crash than through any other research methodology.
    FMCSA is unable to accept several aspects of the analysis of the 
Blanco study submitted by Knipling/ATA. This submission argues that 
drowsiness may actually reduce the number of distraction-related SCEs. 
This argument is based on a study that defined fatigue as visible signs 
of drowsiness. Only a small number of SCEs would have involved visible 
signs of fatigue, yet no one denies that long work hours lead to errors 
in judgment, lack of response, or degradation in lane tracking even if 
visible signs of fatigue are absent. In the long history of time-on-
task research, many investigators have measured errors, or in this case 
SCEs, to study degradation of driver performance over many work days. 
The purpose of these studies is to gain a better understanding of the 
relationship between fatigue and work hours or driving time.
    The conclusions on fatigue and distraction depended on a limited 
definition of fatigue--i.e., that fatigue is only present when visible 
signs of difficulty staying awake are present. ``Fatigue'' is defined 
as ``a non-pathologic state resulting in a decreased ability to 
maintain function or workload due to mental or physical stress'' 
(Caldwell). The term is used to describe a range of experiences from 
sleepy, or tired, to exhausted. There are three major physiological 
phenomena that have been demonstrated to create fatigue: sleep loss, 
circadian rhythm disruption, and time-on-task. Time-on-task fatigue 
describes fatigue that is accumulated during the working period and 
affects performance at different times during the shift. Performance 
declines the longer a person is engaged in a task, gradually during the 
first few hours and more steeply toward the end of a long period at 
work. Some of the consequences of fatigue are visible. These include 
eyes going in and out of focus; involuntary eyelid closure and head 
bobs; and persistent yawning. Other consequences of fatigue are not 
visibly apparent, such as wandering or poorly organized thoughts, 
spotty near term memory, missed or erroneous performance of routine 
procedures, degradation of control accuracy, impaired judgment, and 
looking but not seeing.
    While some recent studies have found that SCEs are not associated 
with visible fatigue, they may be associated with non-visible 
manifestations of fatigue. In addition, there are several studies that 
have found that fatigue is associated with an increase in SCEs. A 
Synthesis Report prepared by the Transportation Research Board of the 
National Academies, of which Knipling was the principal author 
(Knipling (2004)), examined the literature relating driving risk to 
several different potential factors. In the fatigue section of that 
report, Knipling discusses a 2001 Dingus report on sleeper berth usage 
that found a moderate correlation between high drowsiness episodes and 
SCEs. In addition, in that same report Knipling also cited a Hanowski 
(2000) report which found a positive correlation between SCEs and 
fatigue. Several researchers, such as Mast (1989), found that lane-
tracking ability decreases as the time on task increases. Skipper 
(1984) found that measures related to vehicle lane position could be 
used to detect drowsiness. Variables such as the number of lane 
deviations, the standard deviation of lane position, and the maximum 
lane deviation were found to be highly correlated with eye closures. 
According to Dingus (1987), lane deviation showed good potential as a 
drowsiness indicator. Stein (1995) studied the effect of impairment on 
driving performance in truck drivers. Using data from a simulator 
experiment, Stein found that the standard deviation of lane position 
increased remarkably after the driver was fatigued. Pilutti and Ulsoy 
(1997) performed experiments on the Ford driving simulator at the Ford 
Research Laboratory. The results, reported by the authors, indicated 
that lane position showed significant change and corresponded well with 
Percent of Eye Closure (PERCLOS) model. PERCLOS is the only validated 
measure of driver fatigue.
    Within the context of the Blanco study, it is not particularly 
important whether fatigue or other factors cause a rise in SCEs late in 
the driving day--what matters is whether driving performance declines 
(for whatever reason) over the course of long hours of daily work. 
Whether this decline in performance is caused by fatigue or some other 
factor such as inattention or distraction does not change the basic 
conclusion that driving performance suffers later in the duty day. ATA 
suggested that the Agency should have parsed all of the SCEs detected 
by Blanco, and used only those SCEs where visible signs of fatigue were 
present. Knipling, however, did not provide any research citation where 
time-on-task research was conducted in this manner, and FMCSA knows of 
no such research.

[[Page 81150]]

    The Agency does not believe that it is necessary to disaggregate 
SCEs by fault or by type of vehicle or by type of roadway. The main 
question that the Blanco study addressed was whether time-on-task 
effect exists in a truck environment, as it does in virtually every 
other work setting.
    Additionally, ATA commented that there was no harm from certain 
types of SCEs, such as lane deviations and, therefore, they should not 
be included in the analysis. A well established fact in transportation 
safety research is that crashes are caused by the interaction and 
convergence of many factors. In Knipling's 2009 and previous work, 
Knipling used the term ``crash trifecta'' to explain the complex and 
convergent nature of crashes. The ``crash trifecta'' concept asserts 
that crash genesis can be traced to three separate, but converging 
events. These include unsafe pre-incident behavior, transient driver 
inattention, and an unexpected traffic event. Not every element in the 
trifecta occurs in every crash. However, the probability of a crash 
given the three crash-trifecta elements is greater than the probability 
of a crash given only one of the crash-trifecta elements. Unintentional 
lane deviations are unsafe driving practices that may not always result 
in crashes. However, based on the ``crash trifecta'' concept, an 
unintentional lane deviation when compounded by fatigue/transient 
driver inattention and an unexpected traffic event significantly 
escalates the risk of a crash. To discount or ignore unintentional lane 
deviations simply because they do not always result in crashes is a 
simplistic argument that belies the complex nature of crash causation. 
It is also a contradiction of a principle and concept that Knipling has 
always championed.
    ATA commented that a definitive link between critical incidents and 
crash risk has not yet been established. FMCSA noted this issue in the 
NPRM and has sponsored a study that addresses it indirectly. A report 
entitled ``Distraction in Commercial Trucks and Buses: Assessing 
Prevalence and Risk in Conjunction with Crashes and Near-Crashes'' by 
Hickman, (2010), was placed in the docket of the Agency's NPRM on 
``Drivers of CMVs: Restricting the Use of Cellular Phones'' [75 FR 
80014, December 21, 2010, Docket No. FMCSA 2010-0096-0004]. ATA 
submitted detailed comments on that NPRM on February 22, 2011. FMCSA 
assumes ATA was aware of the Hickman study. The report, based on a 
combined dataset of 2,421 crashes, concluded that ``[t]he results in 
this study were similar to the results found by Olson (2009) regarding 
SCE risk and performing a tertiary task while driving.'' The Olson 
study evaluated odds risk ratios of driver distraction tasks by 
generally examining SCEs. When these events were compared to the 
Hickman study, the results did not differ significantly. These findings 
thus provide broad confirmation of the link between critical incidents 
and crash risk, making them a reasonable surrogate for crashes. In 
addition, the Agency has long argued that SCEs are an indication of 
decreases in driving performance and an indication of an increased 
crash risk. The question is not whether SCEs are related to crash risk, 
but how large an increase in crash risk is associated with a given 
increase in SCEs. For instance, if a particular factor increases the 
risk of SCEs by 30 percent, does this imply that crash risk also 
increases by 30 percent, or by a lesser or greater amount? The size of 
the link has not been established, although it is generally accepted 
that there is a link between driver performance, as measured by SCEs, 
and crash risk.
    ATA also commented on whether drivers with a disproportionate risk 
of SCEs should have been omitted from the data. Knipling noted that 
``if the scientific goals of the VTTI study were narrow--determining 
the associations between work schedules parameters and SCEs--then this 
decision was correct.'' In addition, Knipling notes that he has ``never 
encountered a study of driver risk that did not contain compelling 
evidence of extreme individual differences among drivers.'' Since these 
differences are common to all driver samples, it seems reasonable to 
conclude that drivers exhibiting high SCE risk differentials are not 
particularly rare within the larger CMV driver population. As a result, 
data describing the driving performance of these drivers should not be 
ignored or omitted if the goal is to examine work schedule parameters 
and how they affect rates of SCEs. The Agency agrees with Knipling that 
it was appropriate for Blanco to retain data for these drivers in their 
    ATA pointed out that the drivers in the VTTI study were not 
randomly selected and are not nationally representative of all CMV 
drivers. This is correct; the sample represents 97 drivers who 
volunteered to participate in the study and whose performance was 
tracked using instrumented vehicles for 4 weeks. The naturalistic 
driving data were collected from four for-hire trucking companies--
long-haul and line-haul segments of the trucking industry. The final 
project data set consisted of approximately 735,000 miles of driving 
data. Study participants also completed a daily activity register that 
provided a detailed account of the tasks that CMV drivers performed 
during their workday. The combination of naturalistic driving data and 
activity registers makes this study one of the largest data sets ever 
collected for studying driver activities, behaviors, and fatigue. The 
study team acknowledged in its report that participants may not be 
representative of the entire population of commercial drivers, but the 
Agency knows of no systematic biases in the composition of the sample 
that would distort or invalidate the conclusions drawn by the 
researchers. Identifying and securing the cooperation of a large group 
of drivers who are truly representative of the extraordinarily diverse 
motor carrier industry would be cost prohibitive, even if it was 
feasible. The Blanco study represents that best science that is 
currently available to examine driver fatigue issues.
    Comments on Jovanis (2011). ATA/Knipling provided the following 
comments regarding the Jovanis (2011) study:
     There was no description of crash characteristics (other 
than drivers' associated work schedules) provided;
     There was no distillation of the crash dataset to exclude 
non-preventable crashes;
     The researchers did not perform validation tests of study 
conclusions via disaggregation of the crash dataset by prominent 
fatigue-related factors; i.e., single-vehicle vs. multi-vehicle 
crashes, or other crash characteristics;
     Inadequate attention was paid to time-of-day as a 
potential confound;
     The study employed an inter-subject design rather than 
intra-subject design;
     There were a relatively small number of 11th hour crashes 
and exposure hours;
     The study sample may be unrepresentative due to apparent 
inclusion of truck tractors not equipped with sleeper berths.
    FMCSA Response. Knipling and the National Industrial Transportation 
League (NITL) stated that Jovanis provided no description of crash 
characteristics (other than their patterns of work schedules) and no 
distillation of the crash dataset to exclude non-preventable crashes. 
These comments are correct; the study team was tasked by the Agency to 
investigate the crash risk by hour of driving, not to investigate 
either fatigue-only crashes or crashes deemed preventable. The team was 
interested in all crashes and their association with driving hours of

[[Page 81151]]

service. The study did not adopt a ``fatigue'' or fault perspective 
used by others because the researchers did not want to inject personal 
judgment about individual crashes into the analysis.
    Knipling commented that the Penn State team did not perform 
validation tests of study conclusions via disaggregation of the crash 
dataset by prominent fatigue-related factors (e.g., single-vehicle vs. 
multi-vehicle crashes and other crash characteristics). Again, this 
research was a study of the time-on-task effects as they relate to 
crash risk for evaluation of the drivers' hours of service. 
Disaggregation of the data into the various categories suggested by ATA 
is neither necessary nor warranted in the context of determining crash 
risk as a function of driving hour. The underlying methodology used for 
this study has been employed over the last 25 years, and related 
studies based on this methodology have appeared in peer-reviewed 
journals, papers and proceedings and presentations to the 
Transportation Research Board of the National Academies.
    Knipling claimed that the Penn State team did not pay sufficient 
attention to time-of-day as a confounding factor. Time of day is 
discussed at great length in the report. The study carefully included 
multiday driving in the models, by grouping drivers with similar daily 
and weekly work and driving schedules together. Within each group, 
drivers started their duty day at approximately the same times on the 
same days, and drove for roughly the same number of hours. Drivers were 
also grouped based on where in the week their extended off-duty or 
restart fell. Because drivers in each schedule grouping drove at 
roughly the same time, and for the same duration, on a daily basis, 
their exposure at a particular time of day was similar. These 
groupings, therefore, partially controlled--although imperfectly--for 
time of day and circadian effects.
    Knipling commented the study employed an inter-subject design 
rather than intra-subject design. That is, the study compared drivers 
who had a crash to two drivers who did not rather than comparing the 
crash driver to him- or herself over a period in which there was no 
crash. This is correct, and the study team did so for good reason: 
including only an intra-subject design removes all non-crash involved 
drivers from the analysis. The Agency believes it makes sense to build 
a model representing all drivers on the road, not just those involved 
in crashes in any one year.
    Knipling noted that relatively few 11th-hour crashes and exposure 
hours were included in the study. This is also true. One of the reasons 
the Agency commissioned this study was to collect data on a larger 
number of drivers who drove into the 11th hour. However, even with this 
larger data set, which combined the 2005 data set and new information 
collected specifically for this study, the Penn State team found that 
many drivers simply are not using the 11th hour of driving.
    Comments on Relation of Blanco and Jovanis Results. OOIDA commented 
that the two new studies Blanco and Jovanis (2011) provided 
inconsistent results. ATA pointed out that the overall driving effects 
in the Blanco study were not significant.
    FMCSA Response. OOIDA correctly pointed out that the Blanco study 
was done using a naturalistic driving study perspective, while the 
Jovanis (2011) research was based upon a review of driver logbooks and 
electronic on-board recorder (EOBR) records and involved a comparison 
between the portion of logs of drivers reflecting trips where a crash 
occurred and the logs of other drivers where no crash occurred. Using 
these two very different methodologies, both studies showed a 
statistically significant time-on-task effect--as the number of hours 
increased so did the number of SCEs (Blanco) or crashes (Jovanis 
(2011)). The study by Blanco significantly qualifies the previous work 
by Hanowski (2008), which detected no difference in the crash risk 
between the 10th and 11th hour of driving. Although the new study is 
still unable to pinpoint a statistical difference between those two 
hours or between the 11th hours and the 7th, 8th, 9th, or 10th hours, 
it shows a time-on-task effect that the more narrowly focused 2008 
study did not. As a result, all major drive-time research is generally 
consistent in finding that longer work hours increase the risk of a 
crash. The primary reason for this development is that the latest VTTI 
study was able to reliably capture lane deviations. With any impairment 
such as fatigue or loss of vigilance, one of the first indications is 
the driver's inability to keep the vehicle within a particular lane. 
Lane tracking is the first and one of the best indicators for loss of 
vigilance or driver fatigue.
    Blanco and her colleagues conducted numerous statistical tests on 
their data. The NYDOT commented that the study:

    Contains some data manipulations that may be questionable. Table 
11, which summarize the raw data, shows 11th hour as having the 
highest SCE rate per hour. To accommodate certain statistical 
analysis methods the SCE data was collapsed to be binary variable 
which resulted over 42 percent of the over-all SCE data, and over 59 
percent of the SCE data for the 11th hour of driving to be 
discarded. Through a series of further data manipulations the 
researchers arrive at Table 22 (the data used to calculate the odds 
ratios in comparing driving hours), which shows 11th hour to be the 
safest hour in terms of SCE rate per shift. Some justifications for 
these data manipulations were presented, but they are not very 

    The Agency agrees with NYDOT's characterization of some of the 
analytical techniques used in the study. The Blanco study took 
continuous data and converted them to a binary function. While this may 
be necessary for calculating odds ratios, it can also conceal useful 
information. For example, a driver who becomes fatigued and has 
difficulty maintaining vigilance is more likely to have multiple SCEs. 
Given the analytical approach used by Blanco, a driver's lane 
incursions in a given hour would be coded as ``yes'' (meaning there was 
an SCE in that hour), irrespective of the actual number of incursions. 
Increasingly frequent SCEs are probably indicative of increasing 
fatigue, but converting them to a binary function eliminates that 
information. This analytical technique makes it much more difficult to 
show statistically significant differences.
    OOIDA also commented and reiterated that the Blanco study did not 
find statistically significant differences between the 10th and the 
11th hour of driving. This is true, but again given the data procedure 
discussed above and the fact, as OOIDA pointed out, that many of the 
drivers in this study did not drive into the 11th hour, the sample size 
was substantially reduced. These factors have a great effect on 
statistical significance.
    Comments from NY DOT and Advocates. The NYDOT stated that the 
Blanco and Jovanis (2011) findings supported reducing driving time to 
10 hours and requiring breaks. It stated that Jovanis (2011) and Sando 
(2010a and b) supported the changes to the restart provision. Advocates 
stated that the studies supported the 10-hour driving limit, the 
mandatory break, and a 13-hour driving window. It concluded that the 
studies contradicted the proposal to allow drivers to extend the 
driving window to a 16-hour day twice a week.
    FMCSA Response. FMCSA agrees that the studies show a general 
increase in crash risk with longer work hours. However, confronted with 
strong evidence that an 11-hour limit could provide higher net 
benefits, the Agency has concluded not enough data exists for adopting 
a new regulation on this issue and that the current driving limit 
should therefore be allowed to stand for now. As discussed elsewhere in 

[[Page 81152]]

preamble, however, based on the cost, an 11-hour driving limit is the 
most reasonable regulatory choice.
    Comments on Sando Studies. ATA and Knipling criticized the 
applicability to the trucking industry of the transit bus studies by 
Sando (2010a and 2010b). The main criticisms were that transit bus 
drivers work in a different operating environment than over-the-road 
truck drivers and under different HOS rules. Other commenters on these 
studies made these same two arguments. In addition, Knipling criticized 
some aspects of the methodology used and suggested refinements that 
might have improved the study. He argued that the study failed to 
distinguish between multi-vehicle and single-vehicle crashes, and that 
the study omitted preventable crashes that were perceived as having 
been caused by factors other than fatigue.
    FMCSA Response. The Agency agrees that transit bus operators 
generally drive in a different environment from over-the-road truck 
drivers. The former generally operate in an urban environment on city 
streets, while the latter operate on highways and rural roads and spend 
limited time driving in urban areas. In addition, transit bus operators 
drive during peak commuting periods, when traffic volumes are heavy, 
while truck drivers often adjust their schedules to avoid large urban 
areas during rush hour if possible. Finally, transit buses are not 
equipped with sleeper berths, and there are not always good places for 
transit bus operators to take breaks and rest during shifts. While 
these are legitimate reasons to use caution in applying the results of 
these studies to truck drivers, their findings cannot be totally 
ignored. Despite the differences in operating environments, both 
transit bus and over-the-road truck drivers spend the majority of their 
work time driving large motor vehicles. Furthermore, there is no reason 
to believe that truck and bus driver populations respond differently to 
long work hours.
    Florida transit bus operators are governed by different rules than 
interstate truck drivers. They are allowed a maximum duty window of 16 
hours, are required to take only an 8-hour break between shifts, and 
can drive 12 hours per day. Their maximum work hours are capped at 72 
hours in 7 days. Knipling and others argue that these different rules 
make the application of the transit bus study findings to the trucking 
industry questionable. However, a look at the transit bus operator 
schedule data in Sando 2010b shows the average weekly hours worked by 
the operators included in the study. Drivers generally averaged between 
50 and 55 hours of work per week, and the maximum weekly hours for any 
one driver was 85.67, which is barely over the maximum number of hours 
a truck driver can work under the current HOS rules. In essence, the 
vast majority of drivers included in the study were complying with the 
weekly on duty hour limits that apply to truck drivers. Although 
governed by different hours of service rules, the fact that almost all 
of the drivers in the study were working schedules that would comply 
with the current HOS rule for truck drivers makes the findings of the 
study somewhat applicable.
    The other criticisms of these studies involved minor methodological 
issues. The authors excluded crashes that were deemed to have a cause 
that was not fatigue-related. While this filtering of the data may have 
affected certain findings, especially those related to crashes during 
windows of circadian low, when fatigue would be a larger problem, it is 
unclear how this filter could invalidate the findings related to 
cumulative fatigue and long daily average working hours. Presumably 
drivers working long hours would be involved in non-fatigue-related 
crashes at rates similar to other drivers. If one accepts this 
reasonable assumption, finding that their risk of fatigue-involved 
crashes increases would logically mean that their overall crash risk is 
also higher. While it would have been helpful for the authors to look 
at all preventable crashes, the fact that they excluded some 
preventable crashes from the analysis does not invalidate the findings 
that long average daily work and excessive hours of weekly work 
increase the risk of a crash.
    Knipling also claims that the authors should have looked at multi-
vehicle and single-vehicle crashes separately. We see no reason why a 
study cannot look at crashes as a whole rather than segmenting them by 
the number of vehicles involved. True, multi-vehicle crashes have a 
different crash factor profile than single-vehicle crashes, but the 
same factor can increase the risk of either type of crash. In short, 
while the suggestions for methodological improvements are helpful, the 
authors' failure to conduct these extra analyses does not appear to 
invalidate or seriously compromise the findings of the studies.
    ATA and others have argued that the Agency ``has no basis'' for 
claiming safety benefits associated with changes to the HOS rules. One 
of the primary safety impacts claimed by the NPRM was that long weekly 
work hours are associated with an increase in the risk of a crash--
i.e., that long hours over successive days result in cumulative 
fatigue, and cumulative fatigue results in increased crash risk. The 
transit bus operator studies analyzed the association between weekly 
working hours and preventable crash involvement and found a cumulative 
fatigue impairment effect that is stronger than that used by the Agency 
in evaluating the rule adopted today. While the Agency does not believe 
it would be valid to apply the cumulative fatigue impact of these 
transit bus operator studies to a rule governing over-the-road truck 
drivers, the studies do confirm that long hours of working per week are 
associated with decrements in driving performance and pose a safety 
hazard. The studies therefore provide further evidence that it may be 
wise to limit the amount of weekly work allowed to truck drivers.
    In addition, the transit bus studies corroborate another effect 
used by the Agency in analyzing the impacts of the HOS rules: Long 
working hours are associated with fewer average hours of sleep per 
night. FMCSA used the relationship between work and sleep to estimate 
the health benefits associated with reductions in allowable daily and 
weekly work. The transit bus studies provide further evidence that long 
daily and weekly work hours are associated with sleep deficits. Chronic 
sleep deficits are associated with fatigue-impairment and long term 
adverse health consequences. Insufficient sleep therefore affects both 
public health and safety. Corroboration of the Agency's position that 
increases in work result in decreases in nightly sleep lends support to 
FMCSA decision to reduce the hours drivers can work.

E. Driving Time Limits

    Beyond the arguments on the economic impact of the 11th hour, 
industry commenters generally stated that FMCSA had no data that 
demonstrate that the 11th hour is riskier than the 10th. NTSB, NIOSH, 
and the safety groups supported reducing driving time to 10 hours.
    Comments on the Safety of the 11th Driving Hour. Less than 10 
percent of the commenters on this issue supported reducing the 
permissible driving time from 11 to 10 hours. Most of these commenters 
asserted that the reduction to a 10-hour driving time limit would 
improve safety. NTSB and NIOSH stated that the reduction to 10 hours 
would promote adequate sleep periods. NTSB stated that reducing driving 
time to 10 hours would also reduce time on task. Six commenters argued 
that the scientific evidence supports a 10-hour

[[Page 81153]]

driving time limit. The joint comments filed by Advocates et al. cited 
numerous studies to support their contention that the 10-hour driving 
time limit is supported both by ``data on driver sleep patterns under 
the current, 11-hour limit and by the reduction in added driving 
exposure at the highest level of crash risk that would be eliminated.'' 
Three commenters, including Advocates et al., cited research that they 
asserted shows that crash risk increases well before the 11th hour of 
driving. NTSB and Advocates et al. cited studies that they stated show 
that extended periods of time awake and time on task have been 
associated with fatigue-related performance decrements and increased 
crash risk. NTSB argued that because at least some statistics indicate 
that the 11th hour of driving is more dangerous than any of the first 
10, in the absence of completely relevant scientific data, FMCSA should 
err on the side of caution and reduce the driving time limit to 10 
    Advocates et al. stated that in the 2003 HOS final rule, FMCSA 
acknowledged that performance begins to degrade after the 8th hour on 
duty, but justified increasing the driving time limit to 11 hours by 
stating that other changes in the rule would make up for the added 
consecutive driving time at the highest rate of crash risk. They stated 
that ``no evidence supports the supposition that increases in other 
aspects of the off-duty time provided under the current rule reduce the 
crash risk or driver fatigue experienced in the 11th consecutive hour 
of driving.'' They noted that the appellate court that rejected the 
2003 HOS rule cited this lack of support for the trade-off. Advocates 
et al. asserted that maintaining the 11-hour limit would constitute 
arbitrary and capricious agency action since FMCSA still lacks evidence 
that driving during the 11th consecutive hour is safer than, or at 
least as safe as, the truck crash risk experienced during driving hours 
prior to the 8th consecutive hour of operation.
    Finally, Advocates et al. presented arguments to counter assertions 
that there is no new research data to support an FMCSA decision to 
adopt a 10-hour limit. They argued that the 11th hour limit was always 
unsupported by research, so no new evidence is necessary to rescind it. 
Further, they stated that there actually are data showing that, as of 
2006, drivers are not getting any more rest than they were before the 
rule took effect in 2004. They argued that since scientific evidence 
indicates that the amount of sleep drivers are currently getting is 
less than the amount necessary to restore driver performance levels, 
revising the HOS rule is both necessary and appropriate.
    ATA and most industry commenters argued that data and fatigue 
research do not show that a quantifiable safety benefit would result 
from reducing daily driving time from 11 to 10 hours, or that there is 
an increase in crash risk between the 10th and 11th hour of driving. 
Several commenters cited research studies that they asserted show that 
hours of driving is not a strong or consistent predictor of observed 
fatigue. These studies include the 2007 VTTI naturalistic driving study 
discussed in the NPRM (Hanowski (2007)), which ATA and others cited as 
showing no increase in crash risk between the 10th and 11th hours of 
driving. ATA asserted that although FMCSA expressed concerns about the 
VTTI study in the NPRM, the Agency has used that study in other 
rulemakings and has used other studies in the HOS rulemaking that had 
more severe sample size and composition flaws. Commenters, including 
ATA, also cited data that they asserted show that more crashes occur 
during the first few hours of driving, which they argued supports 
retaining the 11-hour daily driving limit.
    FMCSA Response. A new study conducted by the same VTTI researchers 
whose work was cited in the NPRM, and using the same approach praised 
by ATA and other commenters, has found that the risk of SCEs rises with 
the hours since coming on duty (Blanco).
    Although Blanco found some increase in risk in the 11th hour, the 
effect is not significant. A stronger effect is related to hours worked 
each day and week. Given the high cost of eliminating the 11th hour and 
the ambiguous data, FMCSA has decided that it does not have an adequate 
basis to change the driving limit. The rule also substantially reduces 
the maximum weekly work time and ensures that drivers cannot work the 
maximum number of hours every week while giving the flexibility to do 
so occasionally. Some of the safety benefits and most of the health 
benefits derive from limiting long work hours.
    Comments on the Use of the 11th Hour. About 35 commenters submitted 
some information on the use of the 11th hour. Although one small 
carrier and a shipper association stated that most drivers maximize 
hours, many commenters, including ATA and other trucking associations, 
indicated that the 11th hour is used primarily for flexibility to 
account for unforeseen events. Some LTL carriers stated that some 
routes (often called ``lanes'') have been rearranged to take advantage 
of the longer distances possible with 11 hours of driving time. Several 
large carriers submitted information on the frequency with which their 
drivers use the 11th hour--the percentages reported were 6 percent, 7 
percent, 9 percent, 9.5 percent, 11 percent, and 15.26 percent.
    A private carrier stated that one division uses the 11th hour 85 
percent of the time, while the rest use it 10 percent of the time. 
Another private carrier stated that its drivers rarely reach the 11th 
hour. OOIDA reported that two thirds of the respondents to its on-line 
survey said they use it 1 to 4 times a week. Individual drivers and 
smaller carriers reported higher use of the 11th hour, although again 
it was not always possible to determine whether they were reporting the 
percentage of daily periods with a full 11 hours of driving or the 
percentage of drivers who used the 11th hour at some point over the 
period examined.
    FMCSA Response. None of the commenters provided data that could be 
used to estimate the actual level of use of the 11th hour, but in any 
case, FMCSA has not adopted a 10-hour limit.
    Other Comments on Driving Limits. Finally, a few commenters 
suggested alternative driving rules. OOIDA suggested that the 10-hour 
limit apply only to new drivers; another commenter suggested that 
drivers using paper logs be limited to 10 hours. Two commenters said 
that as the first hour is the most dangerous, FMCSA should require 
drivers to be on duty for one hour before driving to be sure they are 
    FMCSA Response. It is difficult to see how limiting a 10-hour rule 
to new drivers could be enforced. It is also not clear that new drivers 
are more prone to fatigue-related crashes than experienced drivers. The 
suggestion that drivers be on duty for an hour before driving is based 
on the assumption that the factors that lead to a high number of 
crashes in the first hour (which some studies do not show) are related 
to fatigue and sleep inertia. Fatigue may play a part in some of these 
crashes, but driving on secondary roads and the simple fact that all 
drivers drive the first hour are likely to be larger factors in first-
hour crashes than fatigue. It is not clear why using paper logs would 
make longer driving times more fatiguing.

F. 30-Minute Break Provision

    Comments. A few commenters supported mandated breaks. NIOSH and 
NTSB supported a required break to reduce continuous time on task. 
Advocates et al. thought breaks were temporarily helpful, but not 
adequate to reduce fatigue.
    Commercial Vehicle Safety Alliance (CVSA) and a few other 
commenters stated that required breaks would

[[Page 81154]]

complicate enforcement. A trucking association and others warned that 
the proposed requirement could cause conflicts for drivers transporting 
Department of Defense (DOD) shipments of security-sensitive materials 
that require continuous attendance. ATA, OOIDA, and others expressed 
similar concerns about conflicts with hazardous materials 
transportation requirements. The Truckload Carriers Association (TCA) 
and OOIDA added that the provision would undermine the ability of team 
operations to keep the freight moving with minimal stops and to have 
someone in charge of the shipment for the duration of the trip.
    A few commenters suggested longer or shorter breaks. Many drivers 
misunderstood the rule and assumed that it required a break at 7 hours. 
Some argued that drivers would wait until 6.5 or 7 hours to take the 
break so they would not have to take another break. Two commenters 
supported a break from driving, but not from being on duty.
    FMCSA Response. FMCSA has revised the break provision in response 
to comments. If a driver wants to continue driving after 8 rather than 
7 hours on duty as proposed, driving is not permitted if more than 8 
hours have passed since the end of the driver's last off-duty or 
sleeper-berth period of at least 30 minutes. In other words, driving is 
prohibited if more than 8 consecutive hours have passed since a 
driver's last off-duty or sleeper-berth break of at least 30 minutes; 
after taking such a break (or a longer one), the driver may resume 
driving, provided he or she does not exceed the 11-hour driving limit. 
This change will make the break provision consistent with the sleeper-
berth rule and address the concerns of team drivers that a break at the 
7th hour will be disruptive. It will also mean that a driver working a 
full 14-hour day will be able to continue driving after the 8th hour on 
duty if he/she takes a single break between the 6th and 8th hour.
    For a driver who is on a long-haul run that involves nothing but 
driving for the duty period, any break of at least 30 minutes taken 
between 3 and 8 hours on duty will meet the requirement. If a driver 
spends 2 hours loading at the beginning of the day, then has a 10-hour 
drive ahead of him, he can take a half-hour or more break at some point 
between the 4th and 8th hours after coming on duty, and then complete 
the rest of his 10 hours of driving without another break. If, as ATA 
and others argued, drivers are already taking breaks, the final rule 
should allow most of those breaks to be used to meet the requirement.
    The Blanco and Jovanis (2011) studies demonstrate that breaks 
reduce the risk of crashes after the break, findings that are 
consistent with research on the impact of breaks on accident risks in 
other industrial sectors. Blanco analyzed SCEs in the hour preceding 
and after a break. This research found that any break from driving 
reduces risk in the hour following the break, but off-duty breaks 
produced the largest reduction. This study also showed that when non-
driving activities (both work- and rest-related) were introduced during 
the driver's shift--creating a break from the driving task--these 
breaks significantly reduced the risk of being involved in an SCE 
during the 1-hour window after the break. The benefits of breaks from 
driving ranged from a 30- to 50-percent reduction in risk of SCEs 
(depending on the type of break from driving), with the greatest 
benefit occurring for off-duty (non-working) breaks.
    Jovanis (2011) studied the effect of breaks from driving on crash 
risk. That analysis was unable to distinguish between on-duty breaks 
from driving and off-duty breaks. The analysis looked at the effects of 
one, two, or three breaks from driving in a day on the likelihood of 
crash involvement. The inclusion of any break was found to reduce the 
risk of a crash, and the effect of two breaks was found to be 
statistically significant.
    In addition, O'Neill (1999) found that breaks improve performance 
on driving simulators. The study examined driver simulation performance 
following active breaks in which loading and unloading of a vehicle was 
simulated, and rest breaks. The study found that loading and unloading 
had mixed effects on driving performance, but that off-duty breaks 
improved performance. The driving simulations showed a decrease in 
simulator performance from the start of a driving period to the point 
at which a break was taken. After a break from driving, performance was 
restored temporarily, and then began to decline as the length of time 
since the last break increased.
    To address the concerns raised about carriers of hazardous 
materials, FMCSA has added a new paragraph Sec.  395.1(q) to allow 
drivers who are attending a motor vehicle transporting Division 1.1-1.3 
explosives, but performing no other work, to log at least a half hour 
of the time spent attending the CMV toward the break. This time 
continues to be on-duty, so the driver will have to annotate his log to 
indicate when the break was taken. This exception will allow the driver 
to meet the requirements of 49 CFR 397.5 ``Attendance and surveillance 
of motor vehicles'' in the driving and parking rules for the 
transportation of hazardous materials to attend the vehicle at all 
times without violating the break requirement. FMCSA notes that Blanco 
found that such on-duty breaks provide some risk reduction in the hour 
following the break.
    On the issue of enforcement, any new requirement makes enforcement 
more complex, but breaks are an easy concept to comprehend.

G. Restart

    General Comments on the Restart. NIOSH, Advocates et al., and one 
carrier supported the changes to the restart provisions because they 
would help address fatigue issues for drivers operating at, near, or 
beyond the maximum permissible hours of service and would not affect 
compliance, given that many drivers already take weekends off. OOIDA, 
FedEx, TCA, and two carriers added that the current rule provided 
sufficient rest and sleep for drivers, regardless of whether the driver 
engaged in daytime, nighttime, or both types of operations. ATA 
referenced earlier published statements from the Agency in asserting 
that the 34-hour period was adequate. ATA argued that FMCSA should 
require long periods of ``idle time'' only if there is evidence that 
the current restart provisions may exacerbate problems with fatigue. 
Referring to fatigue associated with long driving hours, OOIDA said 
that the current rule allows drivers to return to their homes sooner 
than was possible under the old rule. OOIDA said that the proposed 
restart changes, based on FMCSA concerns of long duty hours resulting 
in fatigue, were unnecessary in light of anecdotal evidence regarding 
the actual use of the 34-hour restart. ATA stated that drivers do not 
use the restart to maximize hours, but for ease of recordkeeping and 
scheduling flexibility. OOIDA, citing the FMCSA Field Study data 
reported in the interim final rule published on December 17, 2007, 
stated that 67 percent of drivers take restarts of 44 hours or more. 
Schneider said that only 1.73 percent of its drivers had restarts 
between 34-40 hours; the average restart was 62 hours. A private 
carrier reported that 95 percent of its drivers' restarts exceeded 34 
hours and 50 percent exceeded 58 hours.
    FMCSA Response. Most industry commenters argue that changes to the 
restart are not necessary because drivers are not using it to maximize 
hours. FMCSA agrees with ATA that some drivers do not use the restart 
to maximize hours, but for ease of recordkeeping and scheduling 
flexibility. If that is the case, then the

[[Page 81155]]

changes will have little impact. Only drivers who work more than 60 
hours in 7 days or 70 hours in 8 days need the restart to obtain extra 
hours. Drivers who do not need the restart but who only use it to 
simplify bookkeeping will not lose work hours as a result of the 
changes because they can already work as many hours as they prefer 
without using the restart provision. Any driver who is taking two 
consecutive days off a week will not be affected. If drivers, in fact, 
average 44 to 52 hours on duty a week as ATA's data showed, these 
drivers will not be affected. A driver who only occasionally works 
maximum hours will not be affected because the rule will allow that 
driver to use the 34-hour restart once, with a longer break at the end 
of the subsequent week. Repeating what we said earlier on this subject, 
unless a driver knows that he is working less than 60 hours a week 
(e.g., a regular 10-hour day, 5 days a week), he must keep a running 7- 
or 8-day total of on-duty hours to be sure he is within the limits 
regardless of the restart provision or the changes this rule makes to 
it. If a driver takes 34 hours or more off, he simply has a new point 
from which to keep the total, but he still needs to keep track of his 
total hours if he could be pressing the limits. Many drivers do these 
calculations in their heads without needing to write them down. This 
calculation, at any rate, is both simple (subtracting one day's hours 
from the running total, then adding another day's hours to the result) 
and can be conducted during waiting or refueling time, and so would 
result in de minimus effort and cost to the driver. Furthermore, any 
driver who only takes a restart once a week would not have to keep a 
tally of hours back beyond the previous restart, because that restart 
would reset the driver's cumulative available hours under the new rule, 
as it does under the current rule. Any driver who works relatively 
moderate hours would be unlikely to take multiple restarts in a week, 
or have to worry about violating the cumulative weekly hour limit.
    When used to maximize hours, the 34-hour restart adopted in 2003 
allows a driver to work as many as 84 hours in 7 days. Over time, 
drivers could average 82 hours a week. It is important to note that for 
a driver to work these long hours he/she must be working close to 14 
hours a day 6 days out of 7. The final rule reduces the maximum weekly 
hours by only 3 hours for 1 week, but over time the average maximum 
hours per week will be about 70 hours in 7 days. Despite the reduction 
in the weekly work hours, drivers will retain significant operational 
flexibility because they will still be able to work long hours in 1 
week, while balancing those periods with shorter subsequent work weeks 
to obtain more rest.
    Comments on the 2-Night Requirement. NTSB, Advocates, a safety 
official for a carrier, and about 80 other commenters supported the 
proposal that each restart include two nighttime periods.
    The majority of commenters on this issue opposed the requirement. 
CVSA's comments were a summary of points raised by other opposition 
comments. CVSA said the proposal would reduce driver flexibility, 
unduly burden carrier operations that included driving time from 
midnight to 6 a.m., and add more CMVs to an already overburdened 
highway system at peak hours. Further, CVSA said it was difficult to 
determine whether driver health benefits would result from the change. 
CVSA claimed the 2-night requirement would disrupt regular weekly rest 
cycles for some drivers, leading to more driver performance issues and 
falsification of driver records of duty status (RODS). CVSA proposed a 
consecutive 48-hour restart period (a position not shared by other 
opponents of the proposal).
    Some commenters stated that the two-night requirement could extend 
the restart up to 52 to 63 hours (commenters offered differing 
estimates of the shortest period necessary to comply with the 
proposal). One association stated that the 2003 rule allows team 
drivers to be idle for only 24 hours, but the 2-night requirement would 
extend that time period to 41 hours.
    Commenters also stated that the provision would unfairly affect 
nighttime drivers. The California Highway Patrol (CHP) stated that the 
actual requirement would vary for drivers on cross-country trips 
because their time is determined based on their home terminal, so that 
the 12 a.m. to 6 a.m. period might be either 9 p.m. to 3 a.m. if a 
driver from an east-coast terminal took a restart in the Pacific time 
zone or 3 a.m. to 9 a.m. if a west-coast driver needed a restart in the 
Eastern time zone.
    FMCSA Response. As discussed above, FMCSA has shortened the 2 
nighttime periods the driver must be off duty to 1 a.m. to 5 a.m. The 
impact of the 2-night requirement on the restart length will vary with 
the time a driver goes off duty and the time he resumes work. For 
drivers who work a regular schedule that starts at night, the 2-night 
provision will generally require the driver to take 2 plus days off to 
maintain the regular work schedule. For example, a long-haul driver who 
normally drives at night may start at 11 p.m. and work until 10 a.m. 6 
days a week; the driver will need to take 2 days plus 13 hours off to 
obtain the 2 night periods and be able to return to work for an 11 p.m. 
start. For drivers who work at night irregularly, the restart length 
may be considerably shorter because the driver may be able to stop in 
time to get 2 nights into a shorter time frame; a driver who can stop 
between 7 p.m. and 1 a.m. can take the minimum 34 hours off while 
obtaining 2 periods that include 1 a.m. to 5 a.m.
    Some teams do currently manipulate the restart to shorten it to 24 
hours; the non-driving team member counts his 10-hour off-duty time 
while the other driver is driving toward the 34-hour restart, both 
drivers are then off duty for 24 hours, and the driver with 34 hours 
off duty starts driving while the second driver obtains another 10 
hours off. Exactly how much longer the 2-night requirement will make 
the restart will depend on stopping time and whether teams overlap 
restarts. At a minimum, stopping a truck driven by a team for the 28 
hours between 1 a.m. one morning and 5 a.m. the next morning would 
provide two consecutive nighttime rest periods for both drivers. Both 
drivers could meet the 34-hour off-duty requirement for a restart if 
one of them was off-duty (while the other drove) for at least 6 hours 
before the truck stopped, and if the other stayed off-duty for at least 
another 6 hours after the truck started again. As a specific example, 
suppose the first team member drives from 5 p.m. until 1 a.m. Saturday, 
during which time the second team member is off-duty in the sleeper 
berth, and then both drivers go off-duty for 28 hours until 5 a.m. 
Sunday. Because this time off includes both Saturday from 1 a.m. to 5 
a.m. and Sunday from 1 a.m. to 5 a.m., both drivers comply with the 2-
night rule. By 5 a.m. on Sunday, the second team member will have been 
off-duty for a total of 36 hours (8 hours in the sleeper berth plus 28 
hours while the truck is stopped), more than meeting the minimum 34-
hour off-duty requirement for a restart. Thus, the second team member 
will be eligible to start driving. The first team member will, by that 
point, have had only 28 hours off-duty, but will meet the 34-hour 
requirement so long as he or she remains off-duty for at least the 
first 6 hours after the truck starts moving.
    The time that the truck would have to remain stopped for both 
drivers to meet the restart requirements would depend on the time that 
the truck stopped. If it stopped at midnight instead of 1 a.m., for 
example, the team would have to be off-duty for 29 hours instead of 28 

[[Page 81156]]

both drivers to be off-duty for two consecutive periods between 1 a.m. 
and 5 a.m.; similarly, if the truck stopped at 10 p.m., it would have 
to remain at rest for 31 hours to reach 5 a.m. a second time, and so 
forth. The earlier the truck stopped, the longer it would have to 
remain stopped; but the time could be minimized by planning on the part 
of the team.
    It should be noted that teams can do two cross-country runs before 
needing a restart. If they average 50 mph, they can drive cross country 
in 50 hours; at the end of the trip, one driver will have used 20 hours 
of driving time and the other 30. Even allowing for loading and 
unloading, both drivers will have enough hours to make a return trip 
before approaching the point when a restart is needed. Many teams might 
not have multi-week schedules that rely on short restarts.
    As for the possibility that night drivers will ``flip'' their sleep 
schedule during a restart (i.e., change from daytime to nighttime 
sleep), it is likely that they do so regardless of the restart length, 
particularly when taking a restart at home; otherwise they would have 
minimal time to spend with their (day-oriented) families. Because 
daytime sleep is shorter and of lower quality, switching to a night 
sleep helps to at least attenuate the sleep debt a driver working 
maximum hours builds up ([Aring]kerstedt 2003), (Hossain). Research 
consistently indicates that it is difficult to get more than 4 to 6 
hours of sleep during the day; sleeping during the day on days off, 
therefore, simply increases the driver's sleep debt. With respect to 
CVSA's question about whether there was a health impact of the 2-night 
provision, these health effects are in part related to the increase in 
weekly sleep; the main health impact of the restart provision, however, 
is the result of the reduced maximum hours a driver can work over time.
    The Agency knows of no reason why drivers would stop driving at 
night, putting more trucks on the road during rush hours, to avoid the 
extra hours that may be needed to meet the 2-night requirement. As 
discussed previously, most drivers who regularly drive overnight do not 
work enough hours to need a restart and, therefore are not subject to 
the 2-night requirement. Pick-up and delivery times are, in any case, 
set by shippers and receivers, not by the drivers. Drivers and carriers 
will have to adjust the hours worked for those working the longest 
hours, rather than change driving patterns.
    CVSA's concern about concealment of HOS violations is reasonable, 
but mandatory use of EOBRs, if adopted by the Agency as proposed in a 
separate rulemaking proceeding on February 1, 2011, would make cheating 
more difficult because the driver would not be able to mislabel driving 
    On the issue raised by CHP about the basis for determining the 1 
a.m. to 5 a.m. period, drivers' logs are based on the time zone of 
their home terminal. The 2-night periods are, therefore, set by the 
time at the home terminal. This approach will make it easier for 
drivers and schedulers and not introduce new complexity to the rule. 
Based on comments, it appears that many and perhaps most drivers prefer 
to use their restart periods at home. To the extent that drivers are in 
other time zones during their restart, basing the time on their 
terminal time zone will also ease the concern expressed by commenters 
that all drivers would be returning to duty at the same time (i.e., 5 
    Comments on the Washington State University (WSU) Study. Commenters 
criticized studies on which the Agency relied in formulating its 2-
night requirement. ATA referenced studies indicating that the proposal 
likely would result in drivers transitioning to nighttime rest during 
the restart period, although that transition was ineffective at 
mitigating sleep loss and might contribute to driver impairment during 
the post-restart period. Several commenters also argued that the WSU 
study (Van Dongen (2010a and 2010b)) on which FMCSA based the changes 
to the restart was flawed. OOIDA criticized the WSU study as a 
laboratory exercise that had only 27 subjects in phase I and 12 in 
phase II, had no truck driver participants, and involved a 58-hour 
restart. J.B. Hunt offered a survey of 249 nighttime drivers (who 
operated between midnight and 6 a.m.); 79 percent of the survey 
participants who had scheduled night shifts reported that they do not 
change their sleep schedules when at home for time off. Hunt stated 
that this finding was contrary to the WSU study presumptions. The 
carrier added that drivers who get 10 hours of rest when off duty 
should not accumulate sleep debt.
    FMCSA Response. To study the effectiveness of the 2-night restart 
provision, FMCSA has employed a process of testing in a controlled 
sleep lab environment. This is done under the premise that if a 
provision is not effective in the lab, it certainly will not be 
effective in a field-related environment. That is, if people cannot 
obtain adequate sleep in the best-case environment (a dark, quiet room, 
with no possibility of interruption), they will not be able to obtain 
adequate sleep in a normal environment, let alone in a sleeper berth at 
a truck stop or beside a road. The first phase of the WSU study found 
that the 34-hour restart was effective at mitigating sleep loss and 
consequent performance impairment for daytime drivers, but not 
effective for nighttime drivers (Van Dongen (2010a)). The second phase 
tested a 2-night recovery period for nighttime drivers (Van Dongen 
(2010b). The study found that the 2-night provision works better than 
1-night to mitigate driver fatigue in nighttime drivers. The findings 
of the WSU study could be conservative and could be likely to 
understate the effect of night work on performance. In the WSU study, 
the subjects did not work more than half of the full 14-hour work 
period and had 58 hours off between weeks. The impact on drivers who 
are working twice as much and attempting to start work again in a 
shorter period is likely to be more severe than the study indicated. 
The subjects in the WSU study were young healthy adults with no 
apparent sleep disorders. If the study had been conducted in an 
uncontrolled field environment with actual truck drivers who sleep in a 
sleeper berth, the findings of performance degradation could be even 
more pronounced than were found in the WSU study.
    As noted in previous responses, if the carrier's survey respondents 
sleep during the day on their days off, they are adding to their sleep 
debt rather than reducing it. Monk (2000) found that married night 
workers with family commitments typically do not retain a day sleeping 
regimen during their off-duty (weekend type) break, as they want to 
interact with their day-oriented family rather than be awake when 
everyone else is asleep. In staying awake during the day, they 
experience powerful zeitgebers (i.e., an environmental cue, such as 
daylight, given to a person's biological clock to reset the sleep-wake 
cycle), pulling them away from a nocturnal circadian orientation. Even 
permanent night workers typically show a day-oriented circadian rhythm 
(as indicated, for example, by the body temperature rhythm) on their 
return to duty after a ``weekend-type'' break. Thus, to a certain 
extent, even permanent night workers are often actually rotating 
between nighttime and daytime circadian orientations.
    With regard to the issue of sample size used in the WSU study, 
FMCSA completed the power analysis to determine the minimum sample size 
needed to be able to determine whether there is statistically 
significant difference between two conditions--in this case taking 1 
night versus 2 nights

[[Page 81157]]

off. The power calculation for the WSU study determined that the 
minimum sample size is 12. WSU did find a significant effect in the 
Phase II study-- that is, the 2-night restart was a significant 
improvement over the 1-night restart in terms of the primary outcome 
variable. That makes the issue of statistical power and sample size 
(i.e., the chance of not finding an effect that is actually there) a 
moot point.
    The Agency also notes that a small sample size of only 12 is not 
unusual for sleep studies. Two of the most cited studies in the sleep 
literature are the ``Impact of Sleep Debt on Metabolic and Endocrine 
Function'' by R. Spiegel (1999), and ``The Cumulative Cost of 
Additional Wakefulness: Dose-Response Effects on Neurobehavioral 
Functions and Sleep Physiology from Chronic Sleep Restriction and Total 
Sleep Deprivation'' by H. Van Dongen, (2003). Both of these studies 
were based on a sample size of 12 or fewer participants per treatment 
and each of these studies has been cited more than 50 times per year 
since date of publication (more than 700 and 400 times total 
respectively), so they are taken seriously by the sleep research 
community. Also with respect to ATA's concern about the small sample 
size, the Agency notes that the original and only study used to justify 
the 34-hour restart provision had a sample size of 10 and was a 
laboratory-based study conducted by O'Neil (1999) for the American 
Trucking Research Institute.
    Comments on the 168-Hour Limitation for Drivers Working 70 Hours in 
8 Days. NTSB said that, with the other changes to the restart 
provisions, limiting how often drivers may use the restart should have 
the effect of increasing the amount of sleep drivers receive during the 
period and may encourage drivers to adopt more daytime oriented 
schedules. Although Advocates et al. endorsed the restart changes as an 
improvement, they argued that the limitations affected only those 
drivers operating 60 hours in 7 days. They said the Agency should apply 
similar restrictions to drivers who operate 70 hours in 8 days; that 
is, these drivers should be able to use the restart only once in 8 
days. However, they considered the 168-hour limit to be a ``positive 
step for safety'' that would have a substantial impact on the portion 
of the driving population most at risk of driving while fatigued--
drivers with very high-intensity work schedules.
    FMCSA Response. FMCSA acknowledges that the 168-hour limitation has 
different effects on the two groups: The 60-in-7-day drivers are held 
to an average of 60 on-duty hours per week, while the 70-in-8-day 
drivers are held to 70 hours in 7 days. The goal of this limitation, 
however, is to rein in the dramatic increases in weekly hours that were 
allowed by the institution of the restart in 2004, and it will 
accomplish that goal as intended. Drivers working under the 70-in-8-day 
provisions before 2004 could work no more than 70 hours in any 8 days, 
which is an average of 70/8 x 7 or 61.25 hours per week. Under the 2003 
HOS rules, a driver working 14 hours per day Monday through Friday 
could build up 70 on-duty hours before midnight on Friday. If that 
driver then took 34 hours off, the restart would allow for a new week 
of work starting Sunday morning--only 6 days after the start of the 
previous week. Continuing this pattern would mean 70 hours on-duty per 
6 days, for an average of 70/6 x 7 or 81.67 hours per week. Thus, the 
restart allows these drivers to cut up to 2 full days off the 8-day 
period originally intended for their 70 on-duty hours. Put another way, 
prior to the current rule, a driver working 14-hour days could work 5 
days out of 8; under the current rule, he could work 7 days out of 8. 
Taking into consideration the effects of cumulative fatigue \10\ and 
impacts on driver health, FMCSA considers 81.67 hours per week to be 
excessive and has, therefore, instituted a limitation to keep these 
drivers from continuously working 70 hours every 6 days. The 168-hour 
limitation ensures that they can put in no more than an average of 70 
hours per week--an increase over the average of 61.25 hours allowed 
under the pre-2003 rules, allowing for some improvements in 
productivity and a chance to spend more time at home, but a dramatic 
drop from the nearly 82 hours per week allowed now.

    \10\ ``Analyses of Fatigue-Related Large Truck Crashes, The 
Assignment of Critical Reason, and Other Variables Using the Large 
Truck Crash Causation Study,'' FMCSA, 2008, FMCSA-2004-19608-3481; 
and Sando 2010a and b.

    The situation is quite different for the 60-in-7-day drivers. To 
use the 60/7 provision, a carrier must operate only 6 days a week. 
These drivers, therefore, must always have at least one full day off 
every week (i.e., the days when the motor carrier is not operating). 
Thus, the equivalent pattern to the one that allows the 70-in-8-day 
drivers to fit their work in a period 2 days shorter than before 
(namely a 60/7 driver working 56 hours in 4 days, taking 34-hours off, 
and beginning the next ``work week'' after only 5 days instead of 7) is 
not possible because their carrier's 6-work-day week would interfere. 
Because a driver using the 60-in-7-day provision cannot accumulate the 
long hours currently allowed for the 70-in-8 day drivers, the original 
restart provision did not allow nearly as great an increase in on-duty 
time for them as for the 70-in-8 day drivers. That is, for the 60-in-7 
day drivers, the 2003 rule allowed an increase in average on-duty time 
per 7 days from 60 hours to 70 hours, which is a much smaller increase 
than the jump from 61 hours to 82 hours for the 70-in-8 day drivers.
    From that perspective, though, the 168-hour limitation has roughly 
the same impact on both groups of drivers: The maximum of nearly 82 
hours per week that could be accumulated by a 70-in-8-day driver is cut 
down to 70, a reduction of 14 percent and the maximum of 70 hours per 
week that could be accumulated by the 60-in-7-day driver is cut by 10 
down to 60, which is also a reduction of 14 percent. But FMCSA expects 
that the drivers working under the 60-in-7-day provision are unlikely 
to be pressing the HOS limits hard enough for this limitation to be an 
issue: Because they are working for carriers that take a full day off 
every week, they are unlikely to be trying to get the absolute maximum 
of physical output from their resources. Many who felt too constrained 
by the 168-hour limit would have the option of switching to a 70-in-8-
day pattern in any case.
    Comment on the Impact of the 168-Hour Limit on Driving Time. A 
shipper association, a carrier, and an individual endorsed the 168-hour 
limit, provided the Agency eliminated the provision for two periods 
between midnight and 6 a.m. during the restart window. Advocates also 
claimed that the proposed changes to the restart provision will have 
almost no effect on the intensity of work for drivers who do nothing 
but drive. Advocates presented a numerical example in which a driver 
takes a 34-hour restart break, and then commences a period of 
alternating maximum driving and minimum resting until the 70-hour 
maximum cumulative on-duty limit is reached. If 11 hours of driving 
(broken up by a \1/2\ hour break) is followed by a 10-hour off-duty 
break, then 70 hours of driving is reached prior to the end of 7 of 
these driving shifts, interspersed with 7 half-hour rest breaks and 6 
rest periods of 10 hours each. Thus, a total of [34 + 70 + (\1/2\ x 7) 
+ (6 x 10)], or 167 hours will have elapsed since the beginning of the 
restart break. With a limit of one restart break every 168 hours, 
Advocates pointed out that the 168-hour provision would obligate the 
driver to wait only another hour longer before starting a restart break

[[Page 81158]]

than would have been necessary without that provision. (A very similar 
example was provided for cases allowing 10-hour driving shifts.) Thus, 
they claimed, the 168-hour limit does almost nothing to prevent drivers 
who only drive from using the restart to accumulate driving hours at a 
high rate.
    FMCSA Response. Advocates' claim that the 168-hour limitation does 
almost nothing to reduce weekly driving time is both incorrect and 
beside the point. It is incorrect because by FMCSA's calculations the 
maximum driving hours per 7 days has been reduced from 73.9 hours down 
to 70 hours, a small but not a trivial reduction. It is beside the 
point because the 168-hour limitation was not aimed at cutting maximum 
weekly driving hours but at cutting maximum weekly on-duty hours, which 
had been increased dramatically by the 2003 rule, from about 61 to an 
average of almost 82.
    FMCSA also believes that the maximum-driving-hour examples used by 
Advocates are not realistic. Even drivers who have no tasks other than 
driving will need to inspect their trucks, fuel, do paperwork, and 
contact their carriers. If even a half hour of non-driving work is 
added to each 11-hour shift, the highest practical average number of 
hours of driving per week drops to about 66, which is 6 hours less than 
what would be possible for a driver under the existing rules who took 6 
11.5-hour shifts (including 0.5 hours of non-driving work) between 
restarts. Thus, under any plausible scenario, the proposed rule 
provides a significant reduction in allowable hours of driving per 
week. While it is true that the drivers who work the longest hours are 
in the truckload sector, even those on cross-country trips--less than 
one percent of shipments are cross country--will have some hours of 
loading and unloading time every week in addition to their daily 
driving work.
    Other Comments on the 168-Hour Limitation. Most industry commenters 
on the restart issue opposed the 168-hour requirement. ATA and others 
stated that 34 hours was enough time to recover. OOIDA said the 
requirement was an attempt to prevent drivers from working more than 70 
hours a week. A number of commenters asked why taking two 34-hour 
restarts in one week was objectionable. Various industries said it 
would be burdensome. One carrier said it would be particularly 
detrimental for carriers operating only 6 days a week. CHP asked how it 
would know if it had been 168 hours since the last restart when it 
conducted a roadside inspection.
    FMCSA Response. OOIDA's comment is correct: The purpose of the 
once-a-week restriction is to limit the ability of drivers to work the 
longest hours week after week. Multiple restarts in each week would not 
generally be a problem because frequent 34-hour-long off-duty periods 
would leave little time in a given week to build up excessive duty 
hours. If, however, restarts are taken every 6 days, a problem does 
arise: Under existing rules, alternating 14 hours on-duty and 10 hours 
off, a driver would reach 70 hours in less than 5 full days. After a 
34-hour break, the driver could then begin this same cycle again, 
totaling 70 hours on-duty every 6 calendar days, for an average of 
almost 82 hours per calendar week. Limiting restarts to one every 168 
hours prevents this excessive buildup of on-duty hours, while still 
allowing drivers to use the restart provision to their advantage and 
avoiding the complexity of special provisions for more frequent 
    On the issue of how an enforcement officer will know whether 168 
hours have passed since the last restart, Sec.  395.8(k)(2) requires 
drivers to have 8 days of logs available on the truck (logs for the 
current day and the previous 7 days). If, however, a driver has taken a 
restart in the middle of the 8 days covered by the required logs, a 
roadside inspector may not be able to tell whether 168 hours have 
elapsed since the last restart. FMCSA recognizes that this provision 
will not always be enforceable during roadside inspections. FMCSA and 
our State partners will be able to verify compliance with this 
provision during compliance reviews or other interventions.
    Other Comments on the Restart. Advocates et al. also expressed 
concern about the use of the restart by teams, where one 10-hour off 
duty period could be added to 24 hours off duty to achieve a 34-hour 
restart, which means that the team need only stop for 24 hours. Other 
commenters suggested various periods for the restart, from 24 hours to 
48 hours.
    FMCSA Response. The 2-night provision ensures that a driver would 
have to remain at rest for a minimum of 28 hours to allow drivers 
operating in the night to accumulate 2 consecutive periods from 1 a.m. 
to 5 a.m. For a team member operating solely during the day, it is true 
that the truck would not have to stop for as long a period (e.g., a day 
driver could enter the sleeper berth at 7 p.m. on a Friday, resting 
while the other team member drove for the next 10 hours until 5 a.m.). 
Then, if the truck remained at rest for another 24 hours, the first 
driver would have been off-duty for 34 hours, including two nighttime 
periods. This much time off was found by the WSU study to have been 
enough time for a driver on a daytime schedule to recover.
    Comments on the Impact of the Restart on Specific Sectors. Various 
industry groups and carriers expressed concerns about the impact of the 
restart changes on their sectors. Commenters supported continued 
exemption of oil field operations and construction from the restart 
requirement. One shipper association stated that fatigue was not a 
problem in short-haul operations and, therefore, that the restart need 
not be limited for these carriers.
    FMCSA Response. As noted above, the applicability of the restart to 
construction and oilfield operations is unchanged. The concerns about 
the general economic impact of the restart are discussed in detail in 
Section IV. ``Discussion of All Comments'' B. ``Economic Impacts.'' As 
for short-haul operations, the commenter offered no basis for its claim 
that fatigue is not a concern for drivers in these operations if they 
are working maximum hours. Local drivers may be less likely to be 
fatigued because they do not work the longest hours, but those drivers 
do not need to use the restart to obtain extra hours.

H. Duty Period/Driving Window

    Comments on 13 versus 14 hours on duty. NTSB supported limiting 
drivers to 13 hours on duty in a 14-hour consecutive period. Most 
commenters on this issue opposed the change to 13 hours because they 
claimed it could prevent drivers from completing their work, reduce 
drivers' flexibility and potential earnings, require carriers to change 
routes, require additional drivers and equipment, increase parking 
problems, increase stress, cause confusion for enforcement personnel, 
and limit the ability of carriers to serve their customers. Con-way 
stated that 50 percent of its drivers work 12 to 14 hours a day, 30 
percent work 10 to 12 hours. CVSA stated that there appears to be a 
lack of scientific studies, or collected data, to indicate that the 
movement from a 14-hour workday rule to a 14-hour driving window, with 
a 13-hour on-duty limit, will improve the overall performance of a 
driver of a CMV. OOIDA and others urged FMCSA to focus on driving time, 
and not on regulating the overall ``bottom line'' time spent working.
    FMCSA Response. FMCSA agrees that the limited benefits of the 13-
hour provision do not compensate for the increased complexity of the 
requirement, both for drivers and

[[Page 81159]]

enforcement personnel. The Agency has, therefore, eliminated this 
    Comments on Breaks within the Duty Period. The largest number of 
comments on duty time asked FMCSA to allow drivers to take breaks that 
do not count against the 14-hour limit, so that off-duty time would 
extend the 14-hour period. A few commenters argued for shorter or 
longer duty periods (from 12 to 16 or unlimited hours).
    FMCSA Response. As FMCSA discussed at length in the 2003, 2005, 
2007, and 2008 rulemakings, allowing off-duty time to extend the work 
day results in drivers being allowed to drive long past the time when 
fatigue becomes extreme. The 14-consecutive-hour rule was adopted to 
prevent that and to help drivers maintain a schedule that is consistent 
with circadian rhythms. Breaks will count against the 14-hour period.
    Comments on Night Drivers. FMCSA requested comments on whether 
drivers who drive at least three hours between midnight and 6 a.m. 
should have an hour less duty time available (to provide a longer 
period to obtain sleep). Fewer than 50 people commented on the issue, 
but most opposed the suggested provision because of the adverse impact 
it would have on them, including changes in scheduling deliveries, 
increased costs, reduced productivity, and problems in meeting 
customers' needs. One commenter asserted that such a provision could 
lead to lower pay, driving on congested roads, greater turnover of 
drivers, and less experienced drivers on the road. J.B. Hunt found that 
its drivers who drive occasionally or regularly in the midnight to 6 
a.m. window have a 2010 reportable crash rate per million miles that is 
more than 30 percent lower than the 51 percent of the driving force who 
do not drive at night. Schneider National's examination of crash data 
suggested that more analysis is required to definitively conclude that 
reducing work hours would reduce crash rates for night drivers. ATA 
opposed the restriction and noted that it would create a forward 
rotation in scheduling that could disrupt drivers' natural circadian 
rhythms. FedEx Corporation criticized FMCSA's data supporting this 
    FMCSA Response. After considering the comments on whether nighttime 
drivers should have one less hour of duty time, FMCSA concluded that it 
does not have sufficient basis to move forward with this provision. As 
a result, FMCSA has not adopted the shorter schedule for night drivers.
    Comments on Extending the Driving Window. FMCSA proposed allowing 
the extension of the driving window to 16 hours twice a week, without a 
change in allowed duty time. Relatively few commenters addressed this 
issue and those that did were about evenly divided pro and con. Some 
commenters specifically expressed their support for keeping the 14-hour 
window. One commenter opposed any change in the 14- and 10-hour format, 
as that would appear to defeat the science-based logic for the current 
rules. The commenter stated that the rules were enacted to prevent the 
alteration of circadian cycles, and the safety performance of the motor 
carrier industry in the period following their adoption speaks to the 
correctness of that underlying science.
    ATA and several other commenters supported two 16-hour periods 
because that approach could provide drivers with additional flexibility 
to drive when conditions are optimal. OOIDA and an individual driver 
believed that the extension to 16 hours was a good start, but did not 
go far enough. Advocates et al. and other commenters opposed the 16-
hour window for various reasons, including the view that the provision 
could be confusing, lead to logbook violations, require breaks away 
from home, cause a forward schedule rotation, and allow driving late in 
the duty period; they also stated that a 16-hour window lacked 
supporting data. A carrier pointed out that the proposal also mandates 
that any work, however brief, that occurs past the end of the 14th hour 
constitutes use of one of the 16-hour days. The commenter stated that 
the effect of changing the nature of the 14-hour rule to restrict work 
that occurs past the end of the 14th hour (rather than to restrict only 
driving after the end of the 14th hour) would be to eviscerate the new 
16-hour provisions. Other commenters argued that the increase in the 
driving window would be meaningless because of the reduction in maximum 
on-duty time and the need to anticipate when an unexpected event will 
occur. Schneider National stated that it would be extremely difficult 
to manage particularly with electronic logging; to be practical, the 
carrier would have to pre-approve the use of the longer period, but 
that would defeat the purpose of using it for unexpected delays.
    CVSA noted that anytime there are exceptions outlined in a 
regulation the difficulty of uniform enforcement practices is greatly 
multiplied, and the falsification of records of duty status could occur 
as drivers try to create more on-duty hours within the 14- and 16-
consecutive hour driving window. Drivers could claim inspection, 
servicing (fuel, etc.), and many other forms of on-duty time as off-
duty, to create a larger window for driving time. With no supporting 
document requirements for drivers, it would be difficult, at best, to 
determine actual regulatory compliance or non-compliance during 
roadside enforcement.
    A few commenters supported a twice-weekly extension of the driving 
window. Other commenters argued that drivers should be able to use the 
extension even more frequently. One carrier disagreed with FMCSA's 
proposal that the use of the 34-hour clock would not ``reset'' the use 
of the 16-hour provision. A trucking association indicated that 
although carriers cannot always schedule each trip accurately due to 
unforeseen circumstances, such as adverse weather or traffic 
conditions, drivers and dispatchers plan for particular schedules. 
Because it would only be available twice per week, this extension would 
likely be used infrequently by most carriers who require as much 
certainty as possible in any scheduled trip. Drivers warned that 
shippers and receivers may abuse the 16-hour period to extend waiting 
time. Some carriers were skeptical about the value of the provision, 
and drivers were sharply split, some favoring it, but others arguing 
that carriers and shippers would force them to use every bit of the 16 
hours, rather than reserving the extra time for special needs.
    FMCSA Response. FMCSA has decided not to adopt the proposed two 16-
hour driving windows. The Blanco study showed increasing risk as the 
duty period increases. The study is consistent with a large body of 
other research pointing to the same conclusion (e.g., Jovanis, TIFA, 
studies of accident rates in other sectors discussed above). Under the 
proposed provision, long-haul drivers could have been driving more than 
16 hours after waking, when fatigue becomes acute. That is a risk that 
can neither be ignored nor accepted.
    Comments on Requiring Drivers to Go Off Duty at the End of the 
Driving Window. Of the fewer than 200 commenters on this issue, some 
supported the proposal to end work at the end of the duty period. Most, 
however, objected to the provision. Reasons for opposition included a 
reduction in driver pay, the need for carriers to incur added costs and 
revise scheduling, the adverse effect on providing customer service, 
the lack of scientific support for the revision, and questioning 
FMCSA's authority to determine the number of non-driving work hours. 
AMSA stated that the

[[Page 81160]]

current rule allows a driver to complete inventorying, packing, 
loading, or unloading at the end of the day without needing to deploy 
another crew or come back the next day to finish the job. McLane stated 
that the current rule benefits team drivers because both team members 
can help unload even if one has used his full 14 hours. It stated that 
restricting additional time does not contribute to public safety 
because the first driver cannot drive again until he has taken his 10 
hours off. The provision would force more drivers and trucks on the 
road to make the same number of deliveries.
    FMCSA Response. On the question of FMCSA's authority to regulate 
work hours beyond driving hours, the Agency's statutory authority 
derives from 49 U.S.C. 31502(b), which authorizes the FMCSA to regulate 
hours of service and more broadly from 49 U.S.C. 31136(a), which 
mandates the Agency to ensure that the vehicle be operated safely and 
that the responsibilities imposed on a driver do not impair his ability 
to operate the vehicle safely. Long work hours can impair a driver's 
ability to operate safely. Moreover, none of the statutes authorizing 
FMCSA to regulate hours-of-service limit the meaning of the term 
``hours-of-service'' to driving hours, and it is entirely reasonable 
for FMCSA to construe the term to include time spent by drivers engaged 
in activities associated with their operation of CMVs. In fact, that 
construction was first adopted by the Interstate Commerce Commission 
(ICC) in the 1930s [see 3 M.C.C. 665, 690 decided December 29, 1937] 
and has been the position of all Federal agencies charged with 
enforcement of the HOS regulations for 70 years. However, the Agency is 
not using this authority to require drivers to go off duty at the end 
of the driving window.
    There are too many uncertainties associated with such a requirement 
to warrant adoption at this time. The Agency has little direct data on 
the frequency of work beyond the 14th hour, the average number of 
drivers involved, or the average amount of time spent on duty after the 
14th hour. Efforts to derive this information from available sources 
were unsuccessful. FMCSA was therefore unable to calculate the cost to 
the motor carrier industry of requiring drivers to go off duty at the 
end of the 14th hour. The benefits of such a requirement are also 
unknown. Bureau of Labor Statistics (BLS) data indicate that truck 
drivers have a substantially higher rate of occupational injuries than 
most American workers, including the kinds of injuries related to non-
driving work (back pain, sprains and strains, overexertion in lifting). 
Research on occupational injuries and accidents submitted with the 
comments of NIOSH and Advocates et al. clearly links long work hours to 
an increased risk of such injuries; the studies indicate that the risk 
of injuries rises sharply after 14 hours (Dembe). This research, 
however, is not specific to the motor carrier industry, which further 
compounds the uncertainty created by the lack of data on drivers 
working beyond the 14th hour. The Agency remains concerned with long 
work hours and will seek additional research on the risk of working 
past the 14th hour, but given the absence or uncertainty of relevant 
data at this time, FMCSA cannot justify promulgation of this proposed 
rule provision.

I. Paragraphs 395.1(e)(2) and (o)

    Comments. FMCSA proposed eliminating Sec.  395.1(o), which allows 
some regional drivers to extend their driving window to 16 hours once a 
week, because it would conflict with the proposed two 16-hour driving 
windows. The Agency also sought comments on whether Sec.  395.1(e)(2) 
should be eliminated for the same reason; this paragraph allows certain 
local drivers to extend their driving window to 16 hours twice a week. 
About 20 commenters responded. Some of the commenters sought other 
changes to the provisions, while others stated that the provisions were 
    FMCSA Response. FMCSA has decided not to rescind either of these 
paragraphs. The NPRM discussed that option to avoid the excessive 
complexity that would result from adding two 16-hour driving windows 
per week to the existing 16-hour provisions. Because the Agency is not 
extending the driving window from 14 to 16 hours twice a week, as 
proposed in Sec.  395.3(a)(2)(ii), there is no need to remove Sec.  
395.1(e)(2) or Sec.  395.1(o). FMCSA continues to believe, as explained 
in the 2005 final rule, that the risk of fatigue and fatigue-related 
crashes for the local short-haul drivers who can utilize the existing 
16-hour provisions is less than for regional or long-haul drivers 
subject to the 14-hour driving window (70 FR 49978, at 49980, 49995-
49996, August 25, 2005). Local short-haul drivers typically drive 
regular schedules of limited mileage during daylight hours, with 
frequent non-driving breaks, and return to their home terminal in time 
to sleep in their own bed virtually every night. A study cited in the 
2005 final rule (Balkin) showed that short-haul drivers often take naps 
of 1-2 hours within their work shift to reduce any fatigue accrued 
during the work day. The authors of a 1997 study of driver fatigue in 
short-haul operations, which was also cited in the 2005 rule (70 FR 
49996), concluded that, despite the limitations in the available data, 
``the numbers seem to indicate that class 7-8 tractors in over-the-road 
service have higher fatigue related fatal involvement rates, per truck 
or per mile, than the other categories of trucks that were considered'' 
(Massie). The minimization of fatigue associated with short-haul 
operational patterns may account for the results noted by Massie, et 
al. In addition, the requirement for 10 hours off duty between shifts 
makes the use of consecutive 16-hour days under Sec.  395.1(e)(2) 
unlikely because the driver would have to start his second day 2 hours 
later than normal and his third day 4 hours later, significantly 
disrupting his normal schedule. On the other hand, while the Blanco 
study on work hours was limited to line and long-haul drivers, it does 
raise concern regarding driving and working long daily hours. The 
Agency will therefore continue to study the risks posed by allowing the 
16-hour exception for local short-haul drivers.

J. On-Duty Definition

    Comments Supporting the Changes to the On-duty Definition. FMCSA 
proposed to exclude from the definition of on-duty time any time 
resting in a parked CMV or up to 2 hours in the passenger seat of a 
moving CMV, immediately before or after 8 consecutive hours in the 
sleeper berth. Fewer than 200 commenters addressed the proposed changes 
to the definition of on-duty time. ATA, OOIDA, and many others 
supported the proposed change. ATA stated that the vast majority of 
team drivers are not able to rest or sleep in a sleeper berth for a 
full 10 hours, and they would prefer spending two of those hours in the 
passenger seat. Three carriers supported the proposed changes, but they 
did not think the rest periods should be deducted from the permissible 
14-hour on-duty time. One commenter asked why a driver who can only 
sleep six or seven hours in the sleeper berth should not be allowed to 
sit in the passenger seat for the remaining time.
    A rail delivery company noted that exclusion of time resting in a 
parked vehicle from the definition of on-duty would be very beneficial 
for local short-haul drivers who have a rest period between busy 
periods or those who must park awaiting loading and unloading. TCA 
suggested that allowing

[[Page 81161]]

drivers to clock time spent resting in a parked CMV would be helpful 
for the industry provided that the definition of ``resting'' includes 
reading, checking emails, talking to friends or family, or other 
similar activities. If so, TCA commented, the ability to count hours 
wasted at shipping facilities as off-duty will benefit the truckload 
industry tremendously. It further stated that, although the adjusted 
definition would not reduce detention times, it could help prevent them 
from being such a detriment to carriers. The Petroleum Marketers 
Association of America supported allowing time spent by a driver in a 
parked CMV to count as off-duty time, and thought that up to three 
hours would be appropriate. Another commenter favored a three-hour 
allowance for drivers parked in line waiting to load product.
    FMCSA Response. FMCSA is adopting the changes as proposed. FMCSA 
emphasizes that the changes to the definition do not alter the existing 
parts of the definition that define, as on duty, ``(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.'' Unless a driver is released from all responsibility for 
the vehicle while waiting to be loaded or unloaded, time spent waiting 
is still considered on duty time.
    Comments Opposing the Changes to the On-duty Definition. Advocates 
et al., CVSA, and some other commenters opposed the proposed change, 
primarily because the rule did not specify a limit (such as two or 
three hours) for the amount of time a driver could rest in a parked 
CMV. Commenters expressed concern that drivers could ``rest'' in the 
passenger seat for 10 hours to re-qualify without the benefits of truly 
restorative rest. In addition, they stated that the rule change is 
complicated, would make enforcement more difficult, and could lead to 
logbook falsification. One commenter warned that the exclusion from on-
duty time might be used by some drivers for time spent waiting for 
loading or unloading, which may not provide a real opportunity for 
rest. CVSA added that the provision cannot be justified without further 
studies and data collection. A carrier claimed that the change in the 
definition would expand FMCSA' s authority beyond professional drivers 
and include driver-qualified dock laborers as well, which would 
encroach upon Department of Labor authority and result in confusion 
over compliance. Advocates et al. suggested the need for a 
clarification that drivers cannot use vehicles other than the CMV they 
are operating for these purposes.
    FMCSA Response. FMCSA disagrees that the rule should include a time 
limit in a parked CMV. Under the previous definition, a driver could be 
forced to spend time up to the 10-hour break out of the cab even if 
there were no safe place to do so or no shelter or facilities. It is 
surely better that the driver can rest in the cab in these 
circumstances. With the 14-hour limit, it is unlikely that either the 
carrier or driver will want the driver to spend extended periods off 
duty in a parked truck during the duty day because all of the time 
counts against the 14-hour period. Drivers are unlikely to tolerate 10 
hours at a stretch off-duty without a sleeper berth or provision of a 
place to sleep; any carrier compelling drivers to sleep in the cab for 
10 hours may have trouble retaining its drivers.
    The rule change is not complicated; it simply defines when a driver 
may log certain time as off duty rather than on duty, not driving. The 
change seems unlikely to lead to any more logbook falsification than 
already exists. The change in the definition does not alter FMCSA's 
authority. If a dock worker also drives a CMV in interstate commerce, 
he is subject to FMCSA rules when driving the vehicle and his other 
work is included in his on-duty not driving time and counted against 
his weekly limits.
    Other Comments on the On-Duty Definition. Two carriers asked why 
the two hours in the passenger seat must be immediately before or after 
the eight-hour period. One commenter suggested that the provision could 
increase CMV idling time if drivers who formerly rested outside their 
vehicles will now take ``off-duty'' time in a parked, but idling, CMV. 
Another carrier pointed out that redefining an activity as off-duty 
should not change the rule's health benefits.
    Although CVSA did not support the change in the definition of on-
duty time, it believed EOBRs will help compliance and enforcement 
efforts if this provision were to be adopted as proposed. In addition, 
it urged FMCSA to require specified supporting documents to be 
maintained on a CMV, with access available to roadside enforcement 
personnel, which would provide a means whereby duty status entries 
could be verified or refuted.
    FMCSA Response. ATA requested the proposed re-definition of on-duty 
time in September 2005 to allow a team driver to log off duty up to 2 
hours riding in the passenger seat immediately before or after the 8-
hour sleeper berth period. Many drivers told ATA and repeated in the 
listening sessions and in docket comments that they take 10 consecutive 
hours off duty in the sleeper berth to simplify their recordkeeping. 
This rule allows drivers to take 8 consecutive hours in the sleeper 
berth as required by the current rule, and to take an additional 2 
hours in the passenger seat when the vehicle is moving, without 
artificially confining them to the sleeper berth for the entire 10-hour 
    FMCSA also proposed excluding 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. This 
change to the on-duty definition to allow drivers resting in or on a 
parked vehicle may lead to more idling, but if the alternative is that 
a driver has to stand outside, without shelter, in bad weather or in an 
unsafe location, more idling is the lesser of the two evils. In any 
case, the proliferation of State and local anti-idling laws makes it 
questionable whether this amendment will increase idling time. The 
changes to the definition were not considered in evaluating the health 
benefits of the rule; at this time, there is no obvious way to evaluate 
the health effects of such a small change. The issue of supporting 
documents is beyond the scope of this rulemaking.

K. Penalties

    Comments on the Penalty Provision. Fewer than 100 commenters 
discussed the proposal to consider driving (or allowing a driver to 
drive) 3 or more hours beyond the driving-time limit to be an egregious 
violation and subject to the maximum civil penalties. Advocates et al. 
argued that the maximum penalties should be triggered by violations 
that exceed 2, rather than 3, hours over the daily and weekly driving 
limits. Another advocacy group argued that because the Agency devoted 
little attention to the issue in both the NPRM and the RIA, it is 
unclear why FMCSA considers a violation of 3 or more hours to be 
egregious whereas a violation for anything less is not. This commenter 
asserted that without more explanation, the selection of a 3-hour 
``trigger'' for maximum penalty eligibility appears entirely arbitrary.

[[Page 81162]]

    Carriers and drivers did not generally oppose the imposition of 
maximum penalties for egregious violations, but commented on the scope 
and applicability of such a provision. One carrier commented that the 
fact that the imposition of penalties would not be automatic is 
critically important for the fair administration of this provision. A 
driver similarly commented that there are situations caused by crashes, 
traffic congestion, or weather where additional driving time would 
minimize the possibility of an unsafe condition.
    Regarding applicability, one carrier argued that penalties should 
not apply to carriers unless there is proof that the carrier is 
complicit in the violation. A driver argued that the provision making 
both driver and companies responsible for violations is good because 
too often the carrier causes the driver to push his limits past good 
safety practices. Another carrier argued that shippers and receivers 
should be accountable for their actions in instances where shippers or 
consignees force carriers/drivers to leave shipper premises, even 
though the driver is over his/her hours. The carrier argued that 
because the unpredictable load and/or unload times are difficult to 
plan, such a situation is often out of its control. For similar 
reasons, a driver argued that duty time violations that occur while 
getting to a safe place to park (if the driver still has driving time) 
should not be considered violations. One carrier argued that it does 
not believe that an egregious violation concept similar to that 
proposed should apply to other provisions (e.g., duty time, driving 
window, weekly limits, and restart).
    FMCSA Response. The selection of 3 hours as the threshold for an 
egregious violation was intended to acknowledge the rapid increase in 
the risk of fatigue-related crashes as work and driving hours increase, 
and the consequent seriousness of the violation. While opinions may 
differ about the point at which a violation should be treated as 
egregious, the Agency made a reasonable policy choice that reserves the 
maximum penalties for violations that are unequivocally serious.
    FMCSA agrees that it is important not to impose the maximum penalty 
automatically, and to take into account special circumstances. It 
disagrees, however, that carriers should not be subject to such 
penalties unless there is proof of their complicity. Under 49 CFR 
390.11, motor carriers have long been required to ensure that their 
drivers comply with the FMCSRs. Carriers are responsible for scheduling 
and for oversight of drivers' HOS compliance. That includes scheduling 
runs that will not result in egregious driving-time violations and 
penalizing drivers who commit such violations despite company policy.
    FMCSA does not have the authority to act against shippers and 
receivers, although it recognizes that the practices of and pressures 
upon shippers and receivers often contribute to driver violations of 
the HOS limits. Regardless, it is still the responsibility of the 
driver and the carrier to stay within the limits. It is difficult to 
see how a driver who has reached his driving limit when he arrives at a 
receiver's or shipper's facility would, if forced to leave after 
loading or unloading, need to drive three hours more before stopping, 
which could trigger the maximum potential penalty. FMCSA did not 
propose to apply the provision to any requirement other than driving 
    Other Comments on Penalties. Another commenter asserted that 
FMCSA's operating statute does not authorize it to regulate the hours 
of service of self-employed truckers or instructors who are not 
employees of a motor carrier.
    FMCSA Response. Contrary to this assertion, the Motor Carrier 
Safety Act of 1984 gives FMCSA broad authority over both an 
``employee''--defined as ``an operator of a commercial motor vehicle 
(including an independent contractor when operating a commercial motor 
vehicle)''--and an ``employer''--defined as ``a person engaged in a 
business affecting interstate commerce that owns or leases a commercial 
motor vehicle in connection with that business, or assigns an employee 
to operate it'' (49 U.S.C. 31132(2) and (3), respectively). An owner-
operator could be either an ``employee'' or an ``employer'' and in both 
cases would be subject to FMCSA's jurisdiction.

L. Compliance Dates

    Comments. Commenters suggested compliance dates of 6 to 18 months 
from the date of publication. The Ohio Public Utilities Commission 
supported 6 months and stated that inspectors would require substantial 
retraining and that software modifications would be necessary. It also 
suggested that FMCSA should provide States with the training and 
software updates at least 3 months prior to the rule's effective date 
to allow sufficient time to test the software and complete training.
    Three carriers and a shippers' association argued that a compliance 
date should be no sooner than 1 year after publication because that 
much time would be necessary to train drivers and reprogram electronic 
log software. One carrier commented that, given the timing of the 
implementation of the EOBR regulations, it appears likely that 
programming changes necessary for HOS compliance will overlap and be 
significantly impacted by the necessary programming and installation of 
new EOBR-compliant hardware. A shippers' association commented that 
companies would need a year to transition to a 10-hour driving limit 
because they would be required to make extensive operational changes 
and acquire additional drivers and equipment, to adjust to the more 
restrictive requirements. Schneider National, which suggested a lead 
time of at least 18 months, stated that time would also be needed to 
test updated systems. It commented that training curriculum would need 
to be developed, contracts would have to be re-negotiated, and lanes 
would need to be re-engineered to ensure compliance. XATA Corporation, 
an EOBR developer, argued that FMCSA would need to allow between 4 and 
6 months for software/hardware development time, between 4 and 6 months 
testing, and between 4 and 6 months certifying and validating for 
    FMCSA Response. The compliance date, July 1, 2013, is the date on 
which motor carriers of property and drivers must begin to comply with 
specified provisions of this rule. Because this final rule is more 
stringent than the previous rule, drivers and motor carriers of 
property may comply with its provisions immediately if they wish, but 
they are not required to do so until the compliance date.
    Generally, when implementing safety rules, the Agency prefers to 
set shorter compliance dates. However, in this case, the Agency 
recognizes, as many commenters pointed out, that industry and law 
enforcement may need extra time to train personnel and to adjust 
schedules and automated systems. With the extended compliance date 
provided for relevant provisions of this rule, affected entities will 
have nearly 18 months in which to prepare for these changes. The motor 
carrier and associated industries and the law enforcement community are 
dynamic sectors; they have been able to adjust successfully to previous 
regulatory changes within shorter implementation periods. Based on the 
comments received to this rule and its experience with the industry and 
the law enforcement community, FMCSA is confident that an 
implementation date of July 1, 2013, is sufficient for affected 
entities to be able to adjust to this rule's requirements.

[[Page 81163]]

M. Other Comments

    Comments on Complexity. Commenters said that the proposed rule was 
too complicated for the average truck driver and would make compliance 
and enforcement by carriers and law enforcement much more difficult. 
The Pennsylvania Motor Truck Association said the complexity of the 
NPRM would discourage enforcement personnel from fully enforcing it. 
OOIDA said that the proposed rule would lead to inadvertent logging 
errors by drivers and enforcement errors by enforcement personnel.
    Advocates et al. said that claims that the proposed rule would make 
the HOS rule more complex to operate under or enforce were misguided. 
They said that the proposed rule contains ``simple, reasonable, common 
sense ideas'' that are not too complicated to understand. They also 
suggested that if the complexity of the HOS rules is a concern, then 
the 34-hour restart provision should be eliminated altogether. They 
added that FMCSA's companion proposal to require EOBRs would help 
simplify record-keeping and enforcement of the HOS rules.
    FMCSA Response. FMCSA has simplified the final rule (e.g., by 
eliminating the 13-hour provision and the two 16-hour periods). It 
should be noted, however, that before the NPRM was issued the Agency 
had, in fact, tested the proposed rule with a panel of its own 
inspectors, some of whom are former drivers or carrier employees 
responsible for safety. These inspectors were able to grasp the rule 
very quickly, and most thought the industry would adapt equally 
    Comments on Flexibility. A substantial number of commenters 
complained that the proposed rule (like the 2003 rule) did not provide 
drivers with the ability to rest when they need to. Commenters made 
this point particularly in the context of the duty period, but also 
raised it in relation to breaks, the restart, and sleeper berth 
periods. Many of the commenters stated that when they asked FMCSA for 
flexibility at the public listening sessions in 2010, what they meant 
was the flexibility provided by the pre-2003 rule, where off-duty time 
stopped the clock and did not count against daily limits.
    FMCSA Response. FMCSA has provided some flexibility in the final 
rule, but has no intention of returning to the pre-2003 standard. Under 
the rules the drivers are seeking, they could be on duty and drive well 
past 14 hours after they came on duty, when studies show that fatigue 
can become extreme. Drivers under the pre-2003 rule could change their 
sleeping time by several hours from day to day, disrupting their 
circadian clocks and further adding to their fatigue.
    Comments on the Oilfield Exemption. FMCSA proposed to revise the 
oilfield operations exception (Sec.  395.1(d)(2)) to clarify the 
language on waiting time and to state that waiting time would not be 
included in the calculation of the driving window. Some commenters 
supported the proposed revision. CVSA added that the change would allow 
enforcement personnel to properly identify when actual waiting time is 
being used at a natural gas or oil well site. However, it said that 
enforcement would still be difficult because of the lack of a 
definition for ``commercial motor vehicles which are specially 
constructed to service oil wells.'' CVSA asked FMCSA to clarify which 
specific types of equipment qualify for this exception by adding a 
definition to Sec.  395.1(d)(2). A transportation consultant said that 
the oilfield exemption would be helpful in some instances, but it would 
not help drivers on ``non-commercial driving days.'' She said that 
limiting the number of hours that a driver can work on such days ``just 
doesn't seem fair and would severely cripple the oilfield industry.''
    A carrier opposed the proposed language that would prohibit 
specially trained drivers of CMVs that are specially constructed to 
service oil wells from using the exemption for 100 air-mile radius 
drivers (Sec.  395.1(e)(1)). The carrier said that its past use of this 
exemption has not been a safety hazard, and that the proposed 
prohibition would be an unnecessary burden on the oil and gas industry. 
This carrier also requested that FMCSA modify the proposed language 
that specifies how drivers using this exemption should record their 
duty status. The carrier asked that FMCSA allow the separate ``waiting 
time'' line to be considered as an ``off duty'' entry without the 
driver having to make two entries.
    Other commenters argued that if drivers in oilfield operations are 
allowed to turn off the 14-hour clock, all other commercial drivers 
should also be allowed to do so. Three commenters, including NTSB, 
opposed the oilfield exemption itself. They argued that drivers in 
oilfield operations need rest and breaks from work as much as other 
drivers. NTSB said that such exemptions ``are likely to lead to 
increased risk for the exempted population and the driving public.'' A 
driver said that FMCSA should rewrite this provision so that it is 
clear that a driver cannot extend the 14-hour clock unless he or she 
has access to a sleeper berth or other sleeping quarters.
    FMCSA Response. The Agency did not propose substantial revisions 
to, or elimination of, the Sec.  395.1(d) oilfield exception. The 
revisions clarify existing regulatory language regarding the 
permissible methods of recording ``waiting time.'' They also affirm 
that ``waiting time'' does extend the 14-hour driving window, as FMCSA 
has stated in its Web site's Frequently Asked Questions and other 
public documents since the 14-hour rule was established in 2003 
(effective in January 2004).
    FMCSA did not propose any revisions to definitions of terms used in 
the Sec.  395.1(d) exception and cannot go beyond its proposals when 
publishing this final rule. The terms, such as ``specially constructed 
to service oil wells,'' have been in place for nearly 50 years and have 
been clarified in many documents and interpretations during that time.
    The Agency believes that the operational flexibility allowed by the 
Sec.  395.1(d) exception necessitates accurate recordkeeping for 
enforcement purposes. This is best accomplished through the use of RODS 
(``logs'') in accordance with Sec.  395.8, or electronic devices 
compliant with Sec.  395.15. Many drivers would not be eligible to use 
the 100 air-mile radius exception in Sec.  395.1(e) because their 
schedules would not meet the conditions of the exception (e.g., 
returning to the normal work reporting location within 12 hours); 
therefore, the Agency does not believe that the improved recordkeeping 
requirement will impose an unnecessary burden.
    Comments on State Issues. CVSA, California Trucking Association 
(CTA), and the Public Utilities Commission of Ohio (PUCO) commented on 
the impact of the NPRM on Federal and State law enforcement agencies. 
They expressed concerns about the costs that States would incur to 
implement the rule. PUCO and NPTC suggested that FMCSA work with State 
regulators to implement a pilot program to gather information on the 
proposed rule's effect on safety and feedback on State enforcement and 
industry compliance challenges. CTA said that the proposed rule would 
cause enforcement to suffer during the transition period, because 
enforcement officers would be taken away from their duties for training 
on the new rules. CVSA said that the proposed rule was confusing and 
would be more difficult to enforce at the roadside than the current 
rules, generating a lack of uniformity that would have a negative 
impact on FMCSA's CSA initiative.

[[Page 81164]]

    FMCSA Response. As noted above, FMCSA tested the proposed rule on 
its own inspectors and found that they had no trouble learning the 
changes quickly. Most thought the industry would adapt equally rapidly. 
The final rule is less complex, which should further reduce training 
time. The retention of the previous 11-hour driving-time limit also 
ensures that drivers will not need to revise their recordkeeping 
practices on this point. Any rule change requires some re-education, 
but that is not a reason to forgo needed changes.
    Comments on Fatigue Risk-Management Programs. ATA said that rather 
than implement the proposed rule, FMCSA should focus its expertise and 
resources on sleep-disorder issues, including training and screening, 
and promote (but not mandate) the use of fatigue risk-management 
programs as are promoted in other modes. CVSA also agreed that FMCSA 
should facilitate the implementation of fatigue management programs and 
driver health and wellness programs in the industry. Dart Transit 
Company said that FMCSA has failed to reasonably recognize legitimate 
fatigue management proposals, as demonstrated by its denial of the 
company's proposal in early 2010.
    FMCSA Response. The Agency continues to consider the role of sleep 
disorders among CMV drivers, but the issue is beyond the scope of this 
rulemaking. FMCSA understands that fatigue management programs may be 
helpful, but given the large number of active carriers, it is hard to 
imagine how such programs could be monitored by the Agency or enforced 
at roadside. Inspectors would have no way of determining whether the 
carrier had a plan or, if so, was operating in compliance with it. 
Other modes may promote their use, but only the Federal Aviation 
Administration (FAA) has proposed allowing these programs to substitute 
for some or all of the flight and duty time limits and then only with 
FAA approval and oversight of the specific plan. With the very limited 
number of air carriers and their highly computerized scheduling 
systems, FAA inspectors would be able to monitor compliance in a way 
that is simply not feasible in trucking.
    Comments on Consistency with Executive Order 13563. The U.S. 
Chamber of Commerce cited Executive Order 13563, ``Improving Regulation 
and Regulatory Review,'' which President Obama issued in January 2011. 
The Chamber said that the proposed rule is in ``direct contradiction'' 
to the Executive Order and that the rule would be a model of the type 
of regulation that ``actually produces lower safety standards while 
simultaneously hurting business productivity in the domestic and global 
supply chain.'' The National Turkey Federation requested that FMCSA 
carefully review the proposed rule in accordance with this Executive 
    FMCSA Response. The final rule is consistent with Executive Order 
13563. The rule will reduce fatigue and improve driver health, while 
having relatively small impacts on business productivity. As discussed 
at the beginning of this section, the claims of severe impacts made by 
some commenters were not supported by facts. ATA's own economic 
consultant stated that the Agency had overstated the use of certain 
rule provisions, which led to an overstatement of the costs. (See 
Section IV.''Discussion of All Comments'' B. ``Economic Impacts'' and 
Section VI. ``Required Analyses'' A. ``Executive Order 12866 and 
Executive Order 13563'' for discussions of Edgeworth.) In fact, 
Executive Order 12866, with its directive to use ``the least burdensome 
tools for achieving regulatory ends,'' thus reinforcing the statutory 
mandate to consider the ``cost and benefits'' of proposed rules [49 
U.S.C. 31136(c)(2)(A) and 31502(d)], was a major factor in FMCSA's 
decision not to adopt the 10-hour driving limit identified in the NPRM 
as the Agency's preferred option.
    Comments on Motor Carrier Safety Advisory Committee (MCSAC). ATA 
said that MCSAC has recommended that FMCSA conduct effectiveness 
reviews of a number of regulations, including Part 395: Hours of 
Service of Drivers. ATA called it ``regrettable'' that FMCSA did not 
conduct an effectiveness review before issuing a proposed rule. 
According to ATA, the review could have revealed whether changes are 
necessary and--if so--to which provisions of the rule. Further, it 
would have helped to provide meaningful justification of the changes 
that could be used in the Agency's regulatory impact analysis.
    FMCSA Response. As ATA is aware, the schedule for this rulemaking 
is constrained by legal agreements. The rulemaking could not be delayed 
for yet another review that would simply repeat the same research that 
the Agency had conducted and continues to conduct on issues related to 
    Comments on the Baseline for the Rulemaking. ATA and many industry 
commenters argued, either explicitly or implicitly, that FMCSA had to 
prove that the 2003 rule was increasing the risk of crashes before a 
change would be justified. Advocates et al., in contrast, stated that 
the 11th hour of driving and the 34-hour restart had never been 
adequately supported by evidence. They stated that unless the Agency 
can demonstrate that 2003 changes would improve safety and not 
adversely affect driver health, the 2003 provisions cannot stand. The 
baseline for the rulemaking, in their argument, should be the pre-2003 
10-hour driving limit and no restart.
    FMCSA Response. Arguments about what the Agency should have done in 
2003 have been overtaken by time and events. The 2003 rule was replaced 
by notice and comment rulemaking in 2005. In 2007, the DC Circuit 
vacated two requirements of that rule because of the Agency's failure, 
first, to provide an opportunity for comment on one part of the 
methodology of its driver fatigue model and, second, to explain another 
part of that methodology. OOIDA v. FMCSA, 494 F.3d 188 (DC Cir. 2007). 
FMCSA addressed both of those deficiencies in its 2007 interim final 
rule (IFR) (72 FR 71247, December 17, 2007) and adopted the IFR as 
final in 2008 (73 FR 69567, November 19, 2008). In 2009, Advocates, 
Public Citizen, and others petitioned the DC Circuit for review of that 
final rule, but the parties have agreed to hold the litigation in 
abeyance while FMCSA completes this rulemaking. The opposing views of 
the motor carrier industry and various safety groups, repeatedly 
expressed during this litigation, are opinions; no court has ruled on 
the merits of an 11-hour driving limit or a 34-hour restart. Both of 
those provisions, however, have governed motor carrier operations since 
the start of 2004. The proper baseline against which to evaluate this 
final rule is therefore the rule currently in effect. The Agency's 
obligation under the Administrative Procedure Act is to explain 
reasonably and persuasively why it has changed the rules in effect for 
the last 7 years. FMCSA believes that this rule does precisely that.
    Comments on One Size Fits All. Many commenters criticized the 
proposed rule for using a ``one-size-fits-all'' approach to regulating 
driver hours of service. In general, they said that the proposed rule 
is more appropriate for over-the-road trucking than for other types of 
operations. Commenters supported exemptions or separate rules for the 
following types of drivers or carriers. In some cases, such exemptions 
are already in place; others would be new:
     Construction companies.
     Transportation construction industry.
     Short-haul operations.
     Solid waste and recycling collection trucks.

[[Page 81165]]

     Equipment dealers providing parts, repairs, and service of 
planting and harvesting equipment.
     Propane deliveries within a 100-air-mile radius.
     Carriers hauling Department of Defense shipments of arms, 
ammunition, explosives, and other sensitive or classified cargo.
     Experienced drivers with few or no HOS violations.
     Drivers of support vehicles for firefighting helicopters.
     LTL drivers.
     Tow truck drivers responding to police-generated calls.
     ``On-call'' individuals responding to no-heat, crashes, 
and other situations that could potentially cause harm to person or 
     Railroad employees for whom driving a CMV is incidental to 
their main responsibilities.
    The Association of General Contractors (AGC) of America and a 
carrier wrote in support of the existing provision that allows 
construction drivers to reset their on-duty clocks after an off-duty 
period of at least 24 consecutive hours. However, AGC recommended that 
the air-mile radius coverage be expanded from 50 to 100 miles and that 
the time drivers are in line waiting to load materials or to dispense 
materials not be included in the calculation of the driving window. 
Agricultural Education Group defended the exemption for operators of 
vehicles transporting agricultural commodities and farm supplies.
    One carrier opposed all HOS exemptions or special provisions, 
claiming that they are politically motivated and do not promote highway 
safety. Another carrier objected to HOS rules being different for 
property carriers and for passenger carriers. In addition, the carrier 
argued in favor of having the same HOS rules for all drivers of 
commercial vehicles, not just holders of CDLs.
    FMCSA Response. As FMCSA stated in the NPRM, the HOS rules are not 
one-size-fits-all. There are multiple exemptions and exceptions, some 
statutory, some regulatory (many cited by the commenters themselves). 
This final rule does not change existing regulatory exemptions or 
exceptions, and it cannot change statutory exemptions. On the other 
hand, the Agency's unfavorable experience with segment-specific HOS 
proposals does not encourage further action along those lines. In the 
2000 NPRM, the Agency proposed different rules for different 
operational segments. That proposal was almost universally criticized. 
It was considered too complicated and too difficult given the number of 
carriers whose operations covered multiple segments and whose drivers 
may shift from one segment to another from day-to-day.

N. Beyond the Scope

    A number of commenters raised issues that were not addressed in the 
NPRM. Commenters noted the lack of parking areas for trucks. They 
complained about the practices of shippers and receivers that require 
the drivers to wait for long hours to load or unload. They stated that 
shippers press them to violate the rules to meet schedules that the 
shippers impose. Commenters objected to EOBRs and anti-idling laws. 
They also stated that other drivers cause most crashes, that traffic 
laws discriminate against trucks, and that enforcement, not more 
regulation, is the solution. Several commenters, including ATA, stated 
that FMCSA should act on recommendations of the Medical Review Board 
rather than revise the HOS rules. The Expedite Alliance of North 
America, the National Association of Small Trucking Companies, and Air 
& Expedited Motor Carrier Association jointly said that both the 
current and proposed HOS rules lack any real effort to address and 
monitor fatigue rather than to monitor and restrict hours of service 
based upon on-duty and driving time. They stated that modern science 
has developed a variety of cost-effective measures for measuring driver 
alertness, biorhythms, and fatigue. They urged FMCSA to commit to a 
``third millennium'' method for measuring actual fatigue.
    FMCSA Response. These issues are beyond the scope of this 
rulemaking and, in many cases, are beyond FMCSA's statutory authority.

V. Section-by-Section Analysis

    In part 385, Appendix B (explanation of safety rating process) is 
revised to update references to part 395. Revised references are added 
for paragraphs in Sec.  395.3. References to Sec.  395.3(c)(1) and (2) 
are deleted because a violation of the minimum restart period will 
constitute, and be cited as, a violation of the 60- or 70-hour rule. 
Providing separate violations for elements of the rule will allow FMCSA 
to determine what parts of the rule have been violated. Under the 
current method of citing violations, a driver who drives for 17 hours 
straight cannot be distinguished from the driver who drives 11 hours, 
takes a 9.5 hour break, then drives another 6 hours. Both are cited for 
violating the 11-hour driving rule.
    In part 386, Appendix B, (penalty schedule; violations and maximum 
civil penalties) paragraph (a) is revised to add a new paragraph (6) to 
state that any violation of the driving-time limit that is 3 or more 
hours above the driving limit could be considered an egregious 
violation that could trigger imposition of the maximum penalty.
    Section 390.23(c) (relief from regulations) is revised to reference 
Sec.  395.3 on the restart rather than to repeat the language on the 
    In Sec.  395.1, paragraph (b) (adverse driving conditions) is 
revised to remove paragraphs (1)(i)-(iv) and to clarify that drivers 
are allowed to drive no more than 2 hours above the driving limits set 
in Sec. Sec.  395.3 and 395.5. In Sec.  395.1, paragraph (d)(2) 
(oilfield operations) is revised to clarify the language on waiting 
time and to state that waiting time is not included in the calculation 
of the 14 consecutive-hour period.
    In Sec.  395.1, paragraph (e) (short-haul operations), paragraph 
(e)(1)(iv)(A) is revised to reference Sec.  395.3. Paragraph (e)(2) is 
revised to clarify that it exempts drivers from Sec.  395.3(a)(2) (duty 
time). This approach allows paragraph (e)(2) to focus on only those 
rules that are different for drivers using the exemption rather than 
repeating all of the provisions of Sec.  395.3.
    Section 395.1(g) (sleeper berths) is revised to change the driving 
time to a reference to Sec.  395.3 in Sec.  395.1 (g)(1)(i)(B). It is 
also revised 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-hour period in the 
sleeper berth.
    The previous language of Sec.  395.1(q) is removed and new text is 
added as paragraph (q). 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, Pub. L. 109-59, 119 Stat. 1144, 1749, 
August 10, 2005. New paragraph (q) sets forth rules specifically 
applicable to drivers of CMVs transporting Division 1.1, 1.2 or 1.3 
explosives. These drivers will be exempt from the requirement that the 
half-hour break must be off duty. They will be allowed to log a half 
hour or more of time spent attending the CMV, but performing no other 
work, as their break. They will have to annotate their record of duty 
status to indicate when the break was taken.
    In Sec.  395.2, the definition of ``on-duty time'' is 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

[[Page 81166]]

excluding from the definition of ``on duty,'' time spent resting in or 
on a parked CMV except as provided in Sec.  397.5 ``attendance and 
surveillance of motor vehicles'' by CMV drivers transporting Division 
1.1, 1.2, and 1.3 explosives.
    Section 395.3 is revised to place the individual requirements in 
separate paragraphs so that FMCSA will 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 rule will make it possible to cite drivers for violations 
of the daily off-duty break, the restart, the 2-night provision, and 
the 168-hour provision as well as driving time, weekly hours, and on-
duty time. This approach will provide useful information about the 
types of violations being committed. The revised section includes the 
provisions that apply through June 30, 2013, and the provisions adopted 
today, which will apply after that date.
    It should be noted that, although Sec.  395.3 is being restructured 
in the form proposed in the NPRM, the 11-hour driving limit in Sec.  
395.3(a)(3) is not a newly adopted provision, but simply a ministerial 
rearrangement of the 11-hour limit in the previous Sec.  395.3(a)(1).

VI. Required Analyses

A. Executive Order 12866 and Executive Order 13563

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) 
as supplemented by E.O. 13563 (76 FR 3821, January 18, 2011), FMCSA 
must determine whether a regulatory action is ``significant'' and, 
therefore, subject to Office of Management and Budget (OMB) 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 State, local, or tribal governments or 
    (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 
    (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.
    FMCSA developed a Regulatory Impact Analysis (RIA) for the proposed 
rule (available in the docket) and accepted comments on it. This 
section first summarizes the comments and responds to them, then 
presents the revised results of the RIA for the final rule.
Edgeworth Analysis
    Comments and Responses to the Edgeworth Analysis. Most commenters 
on the RIA were trade associations and large carriers. Nineteen 
commenters cited or submitted the study conducted for ATA by Edgeworth 
Economics. Besides that critique, the major issues raised were the 
     A perceived failure to analyze supply chain impacts.
     A failure to account for impacts on LTL networks.
     The estimates of training costs for drivers and 
    The Edgeworth study made the following points, cited by commenters:
     FMCSA's field study data overstate the use of long hours. 
Industry data from large carriers put the use of the 11th hour at 10.7 
to 10.8 percent, not 21 percent.
     The RIA assumes that drivers in the field study who were 
out of compliance would comply with the new rule.
     The RIA overstates the number of drivers who maximize 
hours. The RIA assumes that a driver who uses part of the 11th or 14th 
hour uses all it. This overstates costs and benefits.
     The change in methodology (no longer using the logistics 
model) reduced the estimate of productivity losses.
     The RIA assumes that each hour of driving lost can be 
seamlessly shifted to another day or driver, rather than modeling the 
impact of shifting hours as in previous RIAs.
     The RIA assumes that drivers in the moderate and high 
categories of work intensity never use the restart. The field study 
indicated that 84 percent of drivers used the restart, 85 percent when 
they had worked less than 65 hours in the previous week. The RIA 
understates the impact of the restart change.
     The RIA overstates fatigue by using data from FMCSA's 2006 
Large Truck Crash Causation Study (LTCCS), which were collected prior 
to the 2003 rule; the data should have been adjusted for fatigue-
reduction produced by the 2003 rule. The 13 percent fatigue figure was 
for ``associated factor'' not for the critical event. FMCSA also did 
not adjust for over-sampling of single-vehicle crashes. The RIA should 
have used 7 percent as the central estimate of crashes associated with 
     The RIA assumes that the risk of a crash is the same 
during a non-driving hour as during a driving hour and rounds up any 
reductions in work time to the whole hour. These two errors inflate 
benefits by $200 million.
     The RIA uses old crash data, rather than new data, showing 
34 percent fewer crashes. Using the older data thus overstates the 
number of crashes, and therefore overstates benefits.
     The RIA overstates net benefits by $700 million; the rule 
would have a net cost of $320 million, excluding health benefits. If 
the health benefits are included, the rule would still have a net cost 
of $20 million.
    FMCSA Response. Edgeworth, in criticizing FMCSA's use of the Field 
Survey data, stated that ``It is reasonable to consider that carriers 
targeted for review may use their drivers more intensely and may be 
more frequently up against current driving limits, if not over those 
    If a broad source of data that included information on weekly work, 
daily work, and daily driving for the same carriers and drivers was 
available, the Agency would have used it. The allegedly superior 
sources pointed out by Edgeworth, however, are fragmentary and partial. 
The field study, while not without its problems, covered a substantial 
number of carriers of different sizes and types. It could be that this 
analysis has overstated the frequency of the use of the 11th hour; if 
so, that overstatement would affect both costs and benefits in roughly 
equal measure, and should not change their relative relationship. 
Hence, it would only mean that FMCSA is being conservative, i.e., that 
the Agency is less likely to have understated the impacts on the 
industry of the options that would have limited driving time.
    Edgeworth also stated that FMCSA includes ``4.0 percent of tours 
that exceeded the current legal limit of 11 hours. FMCSA assumes that 
all of these trips would become compliant under the 10-hour restriction 
in Option 2. FMCSA offers no explanation for its assumption that 
drivers currently out of compliance with HOS rules would become 
compliant under the new rule.''
    As a preliminary matter, OMB requires that agencies estimate costs 
and benefits at full compliance. FMCSA did, in fact, explicitly discuss 
(in Section 1.3

[[Page 81167]]

of the RIA) why we assumed that the rule's limits would be observed by 
drivers who might currently be out of compliance: again, to avoid the 
appearance of understating the impacts of its rule by assuming that 
drivers would not comply with it. Certainly, drivers who currently 
exceed 11 hours would be unlikely to choose to drive less than 10 hours 
under a rule that limited driving to 10 hours, so their existence 
suggests a preference for long driving days; it would be unreasonable 
to assume they did not exist. Even if they are not complying with the 
existing driving limit, they could be influenced by it. A lower limit 
might cause them to reduce their driving hours to an extent so as not 
to be too far from the legal limit. To the extent that FMCSA overstated 
the effects of some options by treating current violators of the 11-
hour limit as though they will comply with a tighter limit, the Agency 
is overstating both costs and benefits of its options.
    Edgeworth also asserted that FMCSA has overstated the impacts of 
its options through its use of the Field Survey data, stating ``In its 
calculations of both costs and benefits, FMCSA assumes that one full 
hour of driving time would be affected under Option 2 for the share of 
drivers who are recorded as having used the 11th hour in the field 
survey. Similarly, FMCSA assumes that one full hour of work time would 
be affected for the share of drivers that are recorded as having used 
the 14th hour. Thus, FMCSA has overstated the number of affected hours 
and, as a result, overstated both the costs and benefits of the 
proposed rule.''
    First, FMCSA explicitly does not assume that one full hour of work 
time would always be affected for the share of drivers who are recorded 
as having used the 14th hour. In the RIA for the NPRM, FMCSA stated 
that only part of the 14th hour is affected by a 13-hour limit on on-
duty time: none of that hour for the moderate drivers, half of it for 
the high intensity drivers, three quarters of it for the very high 
intensity drivers, and all of it only for the extreme drivers. The 
analysis then assumes that most of these drivers will be able to shift 
some of the lost work time to another day, leading to an even lower 
    Second, though not exactly the same procedure is followed for the 
11th hour (because breaks will not necessarily affect the maximum 
possible hours of driving in a day), industry comments make clear that 
for many drivers the reason that they have stopped short of the 11th 
hour is that they do not schedule a trip for more than 10 hours and use 
the 11th hour to deal with unplanned events (crashes, weather delays, 
unexpected congestion). Thus, drivers have chosen to leave a cushion 
between their driving and the limit (stopping at a convenient point to 
avoid exceeding the limit). To the extent that this takes place, and 
the drivers chose to use the same cushion under Option 2 (10 hours), 
dropping the driving limit by 1 hour would affect driving on that day 
by the full 1 hour. For example, drivers who would stop at 10.5 or 
10.75 hours under an 11-hour limit could be expected to stop at 9.5 or 
9.75 hours under a 10-hour limit to maintain the same cushion. Finally, 
to the extent that FMCSA has overstated the effects of the options, the 
effects would apply to both costs and benefits, that is, both would be 
lower. The result would be that the actual impacts would be less costly 
than estimated and that much easier for the industry and the economy to 
absorb and adjust to, while not changing the relationship of benefits 
to costs.
Comments and Responses on Impacts of the Proposed Rule on Carrier 
    Edgeworth asserted that FMCSA's cost analysis is highly 
inconsistent with its previous RIAs: ``In the 2007 RIA * * * FMCSA 
tested the current rules against an option which reduced the maximum 
consecutive driving time to 10 hours and eliminated the restart 
provision--i.e., a policy similar to FMCSA's Option 2 in the proposed 
rule. FMCSA estimated that the restrictions would reduce industry 
productivity by 7.1 percent.''
    Edgeworth's assertion that reducing driving time to 10 hours and 
eliminating the restart position is a policy similar to FMCSA's Option 
2 in the proposed rule is incorrect. The option it refers to in the 
2007 analysis eliminated the restart, reverting to the old limits of 
60/7 or 70/8. Option 2 in the proposed rule allowed a 34-hour restart 
every single week for the vast majority of drivers and every second 
week for those driving maximum hours. Comparing the 2007 option with 
the 2010 option is invalid because the options produce very different 
effects on productivity. A better comparison is between the option that 
did nothing but limit driving to 10 hours in the 2007 analysis and 
FMCSA's current estimate of the impact of a 10-hour driving limit taken 
by itself. The 2007 analysis estimated the incremental cost of limiting 
driving hours to 10 at $686 million, or an increase of slightly over 2 

Elimination of the 11th Hour of Driving in Option 2

    In addition to Options 1 and 2, we also examined a more 
restrictive variant of Option 1. That option limited driving to 10 
hours in a tour of duty. This more restrictive option was found to 
provide more benefits than Option 1, but at substantially higher 
cost. Crash risks were originally found to be reduced by about 0.3 
percent relative to Option 1. As discussed in Sections 5.4.3, 5.4.4, 
6.4 and Appendix (V), this variant is now estimated to reduce LH 
[long-haul] crashes by 0.43 percent. This reduction is estimated, 
using the recent updates to the number of crashes, the damages 
caused by each crash, and the VSL described above, to be worth $146 
million per year.
    The projected costs, however, are much higher. They were 
originally estimated to be $586 million more per year than under 
Option 1, which has been updated for inflation, industry growth, and 
industry coverage to $686 million. This estimate was made by finding 
the average reduction in driver productivity in shifting between a 
case that assumed the characteristics of Option 1 and a variant that 
capped driving hours at 10. The average change in productivity, 
weighting by the fraction of all driving estimated to fall into each 
operational case, was just over 2.0 percent. (See 2007 Interim Final 
Rule RIA, pages 69-70, FMCSA-2004-19608-2529.)

    The 2010 NPRM analysis presents, in Exhibit C-7, an estimated cost 
of $680 million, which translates to an increase of slightly less than 
2 percent. These values, while not precisely the same, are entirely 
compatible and do not indicate any material inconsistencies between the 
complex and detailed approach used in 2007 and the approach FMCSA is 
currently using (which, as mentioned in Section 3.1 of the RIA, was 
designed to be simpler and more transparent than the previous analysis, 
and better able to focus on the particular changes made in this 
rulemaking). And again, to the extent that there are any differences in 
estimates of the magnitude of the effects on hours of driving and 
working, they would affect both costs and benefits in largely equal 
    Edgeworth also claimed that FMCSA's current approach could 
understate productivity impacts because it assumes that driving could 
be seamlessly reassigned to other drivers, and that ``In the previous 
RIA, FMCSA's carrier logistics model may have accounted for such issues 
(we are unable to confirm this without access to the detailed workings 
of the model). However, FMCSA's current methodology clearly does not. 
For this reason, FMCSA's assumptions may underestimate the productivity 
impacts of the proposed rule.''
    This concern is unwarranted, as demonstrated by the fact that the 
results generated by the current methodology closely track the results 
obtained from the 2007 model for the economically significant provision 
(i.e., the impacts of elimination of the 11th driving hour)

[[Page 81168]]

where a direct comparison of the analyses is possible.
    Edgeworth then claimed that FMCSA's approach understates the impact 
of the restart provisions because it assumes they will have no effect 
on drivers averaging 60 hours per week or fewer. Edgeworth argued that 
these drivers might occasionally exceed 70 hours and will be affected 
at those times. Because the restart provisions actually allow a restart 
every week, though, a driver who occasionally needed to work even as 
much as 81 hours in a single 7-day period would be able to comply with 
the rules (working 13.5 hours per day for 5 days, then taking a 
restart, and working another 13.5 hour day, for a total of 81 hours 
over that 7 day period). Only drivers who work intensely for 2 or more 
weeks in a row will be affected. Thus, occasional intense but brief 
periods of work would still not be affected by the rule. Furthermore, 
some drivers who occasionally work intensely will have the capacity to 
redistribute work from more intense weeks to weeks that do not come 
close to the weekly limits. Edgeworth also pointed to data from the 
2007 Field Survey showing that drivers frequently use the restart after 
weeks in which they work only 65 hours, asserting that these drivers 
(who fall into the less intense categories) would be affected by the 
restart provisions. This assertion confused the use of the restart as a 
bookkeeping convenience with the use of the restart for increasing 
productivity. Drivers who do not reach their weekly limit do not need 
the restart to maintain their productivity and will not lose 
productivity if they cannot use the restart.
Comments and Responses on the Analysis of Fatigue-Reduction Benefits
    Turning to the analysis of fatigue-reduction benefits, Edgeworth 
asserted that FMCSA's use of the estimated percentage of crashes 
related to fatigue overstates the potential to reduce crashes by 
reducing fatigue. Edgeworth pointed out that fatigue is, in many cases, 
only one of a number of associated crash factors, not the single cause 
of a given crash, and that therefore eliminating fatigue in a crash 
that had other risk-increasing factors would not be enough to prevent 
the crash. FMCSA believes, however, that in the absence of truck driver 
fatigue, the chances of avoiding any given crash (even crashes in which 
the critical responsibility lies with the driver of the other vehicle) 
would be much greater. Furthermore, given the difficulty of detecting 
driver fatigue in the aftermath of a crash, even the careful estimates 
from the Large Truck Crash Causation Study (LTCCS) could be 
substantially understated. For these reasons, FMCSA chose to stay with 
the general approach it used in previous rulemakings, changing only its 
baseline estimate of the prevalence of fatigue on the basis of LTCCS 
    Edgeworth offered no evidence for its assertion that an accurate 
estimate of the incremental effects of fatigue could be derived by 
dividing the number of fatigue-associated crashes by the total number 
of associated factors.
    The moderate benefits that were attributed in two of the options to 
tightening the daily driving limit, using FMCSA's Trucks Involved in 
Fatal Accidents (TIFA) analysis, accord well with, or are actually more 
modest than, the benefits implied by the two most recent studies of the 
decline of performance over long work days. Blanco and Jovanis (2011) 
were both conducted under the current HOS rules. The results do not 
support Edgeworth's contention that fatigue has fallen to the point 
where it is greatly overstated by FMCSA's use of the TIFA data, nor 
that reductions in fatigue effects need to be discounted before they 
are applied to reductions in crashes.
    Blanco's study provides clear evidence that there is a 
statistically significant rise in the risks related to crashes as 
driving hours increase. A strong trend is seen across all shifts. A 
somewhat weaker trend, but one that is similar and still significant 
using a one-tail test (which is the correct statistical approach to use 
if there are very strong reasons to believe that long hours of driving 
would not improve performance), is seen even for the smaller set of 
data that go into the 11th hour.\11\ That latter trend shows that risk 
in the 11th hour is about 36 percent higher than the risk in the first 
hour (i.e., (0.1379 + 11*0.0052)/0.1379 + 1 * 0.0052) = 1.36). That is 
actually a stronger effect than would be seen based on the baseline 
time-on-task function used in the RIA, scaling the fatigue crashes to 
13 percent (which is [(1 + 36.1 percent)/(1 + 7.4 percent)] = 1.27). 
Given that both of these functions are uncertain because they are based 
on statistical estimation, however, these values are entirely 
consistent. The results are not, however conclusive on whether the 11th 
hour is significantly different from the 10th, or on whether increases 
in risk over the day are more attributable to long hours of driving or 
long hours in the work shift. The Jovanis (2011) study shows risk 
increases (not fatigue increases) for the 11th hour of driving in both 
the TL and LTL segments that are clearly more substantial than the 
increases estimated and used by FMCSA for the RIA, though it does 
contain some results that are difficult to interpret.

    \11\ Tests of statistical significance are used to determine 
whether a parameter estimate could have taken a value at least as 
high as it appears to be, simply due to random variability in the 
data. A standard ``two tail'' test is used if the parameter could be 
either positive or negative, and takes account of both ``tails'' or 
extremes of the distribution of a random variable. A ``one-tail'' 
test is appropriate if there are strong reasons to think that the 
true value of the parameter cannot have one particular sign--e.g., 
if the true value cannot be negative. In this case, because there 
are good reasons to believe that, if time on task has any effect on 
driving performance that effect is deleterious, a one-tail test is 
appropriate for assessing whether the time-on-task effect found in 
the Blanco study is significant.

    Edgeworth claimed that the LTCCS overstates the prevalence of 
fatigue-related crashes because it contains too many single-vehicle 
crashes. In making this assertion they cite a previous submission to 
the docket by Knipling. Knipling's submission contended that LTCCS has 
an overrepresentation of single-vehicle crashes when compared to the 
proportion of single-vehicle crashes estimated by the National Highway 
Traffic Safety Administration's (NHTSA) General Estimates System (GES). 
These comments err in one basic fact, according to Agency analysis of 
the GES data. The Agency estimates that an average of roughly 20 
percent of serious injury and fatal crashes are single-vehicle crashes 
in the GES for the years in which LTCCS data were collected, not the 15 
percent cited in the Knipling submission to the docket. The estimate of 
the proportion of single-vehicle crashes in GES rises to 26-31 percent, 
depending on the year chosen, if all crashes--including those that are 
less severe--are included in the analysis. As Table 1 of the LTCCS 
Summary tables posted on the Agency's web site shows, single-vehicle 
crashes were 25 percent of all truck crashes sampled in LTCCS in the 
raw data. Using the weighted data the percentage increases to 31 
percent. Thus the LTCCS data are less biased with regard to sampling 
single-vehicle truck crashes than the comments claim.
    It is not clear whether GES or the LTCCS would have the more 
accurate estimate of the true single-vehicle crash representation. GES 
sampling methods were set up to get an accurate assessment of passenger 
vehicle crashes, not large truck crashes. It could be that the LTCCS, 
because it was focused exclusively on crashes involving large trucks, 
derived a more representative distribution of large-truck-involved 
crashes than that generated by the GES. In addition, LTCCS crash 
investigators were fairly conservative in coding crash

[[Page 81169]]

factors--roughly 12 percent of the crashes in the data were coded with 
unknown causes. It is reasonable to assume that some of these crashes 
were fatigue-involved, especially since evidence of fatigue is often 
difficult to find in the aftermath of a crash.
    Finally, the Knipling submission went to great lengths to show the 
effects that the overrepresentation of single-vehicle crashes would 
have on the portion of crashes where asleep-at-the-wheel was coded as a 
factor or critical reason. The Agency, however, did not use asleep-at-
the-wheel crashes in its analysis, but instead analyzed crashes where 
the truck driver was coded as fatigued. This is an important 
distinction because asleep-at-the-wheel overrepresentation in single-
vehicle crashes is significantly higher than fatigue 
overrepresentation. As a result, overrepresentation of single-vehicle 
crashes is a less significant problem when looking at fatigue 
involvement than when one is looking at crashes where the driver 
actually fell asleep. It is true that asleep-at-the-wheel crashes would 
be a subset of fatigue-involved crashes, but many fatigue-involved 
crashes are the result of impairments that fall short of actually 
falling asleep. If one carries out Knipling's calculations showing the 
effect of single-vehicle crash overrepresentation on asleep-at-the-
wheel representation for fatigue-involved crashes instead, the 
differences are far smaller. Looking at the single-vehicle involvement 
rate and multi-vehicle fatigue involvement rate for fatigue, and 
correcting for the weighting issue using 20 percent single-vehicle 
involvement from GES compared to 31 percent from LTCCS, a much smaller 
overestimation is derived. At worst, the LTCCS overweighting of single-
vehicle crashes would result in an overestimate of fatigue involvement 
in the neighborhood of 10-13 percent--i.e., at the worst, the Agency's 
baseline estimate of 13 percent would be reduced to somewhere between 
11 and 12 percent. However, given the variability inherent in any 
statistical sample or estimate and the fact that LTCCS crash 
investigators were conservative in coding crash factors, we feel that 
the estimate from LTCCS is as accurate as any other estimate available, 
and continue to use it as our baseline.
    Edgeworth also claimed that the baseline estimate of 13 percent for 
fatigue-related crashes is ``substantially higher than any measure 
previously used by the agency in its analysis of HOS rules or any other 
publicly-available measure.'' This claim is not correct. For example, 
the RIA for the 2000 NPRM used a 15 percent estimate and the RIAs for 
the 2003 and 2007 rules used 15 percent in the sensitivity analyses. In 
fact, estimates of fatigue-associated crashes run as high as NTSB's 31 
percent (though that figure is for truck crashes fatal to the driver) 
and their observation that ``truck driver fatigue may be a contributing 
factor in as many as 30 to 40 percent of all heavy truck accidents.'' 
FMCSA continues to use a range of baseline fatigue estimates, similar 
to that used in the past, giving a higher weight to the 13 percent 
estimate because of the care with which the LTCCS analysis was 
    On the subject of cumulative fatigue, Edgeworth brought up FMCSA's 
previous statements that the current rules provide enough time for 
sleep to allow recovery from cumulative fatigue, and claims that the 
introduction of a cumulative fatigue function represents a reversal. 
However, the DC Circuit explicitly faulted FMCSA's previous analyses 
for excluding the cumulative fatiguing effects of excessive work (as 
opposed to insufficient time to sleep). FMCSA has since developed and 
now applies a function relating work hours in the previous week to 
fatigue levels in the current week, using the LTCCS. This function 
shows that, for drivers pushing the outer limits of the on-duty hours 
allowed under current rules, fatigue could still be a serious problem. 
This problem might not show up in the nationwide data because of other 
factors (such as the increased rest period between daily shifts) and 
because maximum weekly hours are not the norm, but that does not mean 
that safety could not be improved for those drivers who are truly 
pushing the limits.
    Edgeworth pointed out that, in applying the cumulative fatigue 
function to the regulatory options, FMCSA used a step function that, 
essentially, rounded reductions in weekly hours up to the nearest hour. 
This is a fact that FMCSA itself noticed during the comment period and 
pointed out to ATA/Edgeworth.\12\ That approach did overstate estimated 
benefits somewhat, but this overstatement applied roughly equally to 
all options. We corrected for this in the regulatory analysis of the 
final rule, by using a much finer-grained analysis. The corrected 
analysis shows estimated benefits that are lower by a few percentage 
points, but does not significantly change the net benefits of Options 
2, 3, and 4 relative to each other.

    \12\ FMCSA sent this information to ATA in an email titled, 
``Supplemental Information on HOS NPRM.'' FMCSA docketed the 
contents of the attachments with the title ``Response to ATA Request 
for Further Information on the Cumulative Fatigue Function Used in 
the Regulatory Evaluation for the 2010 NPRM Proposing Revisions to 
the Hours of Service Rules,'' January 28, 2011. It is in the docket 
at FMCSA-2004-19608-6147.

    Edgeworth also asserted that FMCSA has ignored the likely 
interaction between different sources of fatigue (daily driving and 
weekly work hours), and that reductions in one will be likely to 
decrease the effectiveness of reductions in the other. This potential 
issue, however, cuts both ways: for options aimed at cutting work hours 
and driving hours for the hardest-working drivers, its total effects 
could well be even greater than its effects on each factor. For 
example, the limits on the use of the restart will have a 
disproportionate impact on the 11th hour of driving (because the 
hardest working drivers can be expected to drive the most hours), and 
these drivers will often be pushing into the 11th hour in a state of 
cumulative fatigue.
    Edgeworth noted that, in calculating the impact of changes in 
working hours, the benefits of redistributing hours to other drivers 
should be based on the value of crash damages per hour on duty, not per 
hour driving. We acknowledge that there is an inconsistency in this 
calculation and have corrected it for the final rule. The change is 
considerably smaller than estimated by Edgeworth. In the existing 
analysis, the single crash reduction value used to calculate the 
benefits of redistributing both driving and working hours was part-way 
between the correct value for driving hours and the correct value for 
working hours. Changing to a more specific value for each slightly 
raises the value of reducing the daily driving hours per day while 
slightly lowering the value of reducing weekly working hours.
    Edgeworth then claimed that the reduction in crashes since the 
crash cost analysis was conducted means that the benefits of reducing 
crash rates by a given percent has declined. We used the most up-to-
date comprehensive assessment of crash costs available. The substantial 
declines seen in recent years coincided with a sharp drop in the 
economy, which had a substantial effect on the number of trucks on the 
road at any time, the miles driven, and the loads moved; the Economic 
Census Service Sector Survey indicates that there were about 100,000 
fewer for-hire trucks on the road in 2009 than in 2007, an 8 percent 
decline.\13\ ATA's complete truckload-sector mileage index indicates 
that mileage fell roughly 19 percent from 2007 to 2009, using 

[[Page 81170]]

numbers. Reduced trucking activity implies reduced costs for any rule 
that imposes a limit on productivity; it would be invalid to take 
account of only one side of the equation. Furthermore, the recent 
recession affected not only truck traffic but also the volume of other 
vehicles on the road--and with fewer vehicles with which to collide, 
the crash rate per 100 million miles traveled fell as well. Compounding 
these effects, if the economic recession caused drivers to work fewer 
hours, the lower levels of effort by truck drivers could be expected to 
cut their levels of fatigue at the same time they cut the economic cost 
of any restrictions. While it would be possible to attempt to estimate 
the extent to which all of these transient conditions reduced both the 
benefits and the costs of a given rule, the conclusions would apply 
only to recessionary periods, which (fortunately) are relatively rare.

    \13\ http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf.

Comments and Responses on the Impact of the Proposed Rule on Driver 
    On the subject of the estimated benefits of the proposed rule for 
driver health, Edgeworth noted that previous RIAs concluded that 
insufficient evidence existed to support a connection between reduction 
of maximum work or driving time and health of drivers. While that 
remains true of many of the health factors discussed in the 2005 rule 
(exposure to diesel exhaust, noise, and vibration), in recent years the 
evidence has grown that excessive work and insufficient sleep (which 
tends to accompany excessive work) are damaging to health. These points 
are detailed in Chapter 5 and in Appendix B to the RIA. More recent 
data on driver sleep, collected since the 2003 rules have been in 
effect, prompted Agency concerns about the baseline average sleep 
levels experienced by drivers.
    Edgeworth then questioned whether increased work is likely to lead 
to reduced sleep, pointing to the fact that the drivers whose work and 
sleep patterns were used as the basis for the estimates of the changes 
in sleep per change in work hours were operating under somewhat 
different rules. The relationship between additional time working and 
the way that time cuts into the hours of sleep, though, is a general 
relationship, and would not be expected to appear only under a 
particular regulatory regime (especially if many of the drivers were 
not even pressing hard against the limits in effect at the time). 
Naturally, there will be some uncertainty in estimating exactly how 
much average sleep will decline when average work increases, but the 
risk of overstating the relationship is no greater than the risk of 
understating it; we believe the Agency's estimate is reasonable.
    Edgeworth also pointed to FMCSA's prior statement that ``[t]he 
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.'' That statement, however, is strictly true only 
insofar as both exercise and sleep are considered together, because 
FMCSA did not search for a relationship between work hours and exercise 
    The idea put forth by Edgeworth that changes in work hours do not 
necessarily affect average sleep time is inconsistent with the 
commonplace observation that workers sleep more on weekends than on 
week nights as documented in the American Time Use Survey, National 
Sleep Foundation surveys, and other research.
    Finally, Edgeworth also stated that FMCSA should have included the 
negative effects of excess sleep, but failed to recognize that these 
negative effects were included as an offset to the benefits of the 
rule. In both cases, FMCSA is commenting on the difficulty of 
predicting changes in sleep exactly, but nonetheless uses a consistent 
methodology in applying the changes in work hours to its health 
benefits method.
    Edgeworth also disputed FMCSA's use of Ferrie's findings of a U-
shaped relationship between sleep and mortality, offering several 
arguments: that the study populations were different, that FMCSA 
imputed too great a level of precision to the study, and that the very 
small extra hours of sleep for some driver categories are too small to 
make any real difference. Though one can raise questions about any 
particular study population, Ferrie's study is only one of many that 
find a U-shaped relationship--some stronger, some weaker--between sleep 
above and below an ideal point (e.g., Grandner & Patel (2009), 
Cappuccio (2010)). It is true that for some of the driver categories 
the changes in average sleep are very small--but those are also the 
categories for which FMCSA finds, and includes, a small negative 
benefit of restricting hours; leaving them out of the analysis would 
change the results very little. For the drivers in the more extreme 
categories, the changes in average sleep are considerably larger. In 
the real world not every driver will be exactly at the baseline sleep 
level and will not have exactly the average change in sleep. Given the 
wide variability in sleep across individuals, many drivers in a 
category that has (for example) 6.2 hours of sleep on average will 
actually be sleeping well below 6 hours, and for them the effects of 
the rule may well be substantial. Although Cappuccio (one of the 
authors of the study used by FMCSA for its quantitative analysis) 
raised questions about the way FMCSA applied the Ferrie study (of which 
he is a co-author) for its quantitative analysis, the lead author of 
the study, Jane Ferrie, is on record as approving of FMCSA's use, and 
even considered the Agency's approach conservative in terms of the 
benefits that could be derived from improved sleep. (See the detailed 
discussion of Cappuccio's criticism and Ferrie's response below under 
Comments on Health Benefits.)
Other Comments on the Cost/Benefit Analysis
    Comments on Impacts to Shippers, Brokers, or Consumers. Commenters, 
including ATA, National Association of Manufacturers, the Chamber of 
Commerce, shipper and trucking associations, and major carriers stated 
that FMCSA had not addressed the costs of the rule to shippers, 
brokers, or consumers. They stated that the supply chain would have to 
be re-engineered. A distributor association estimated costs for 
changing routes of one carrier at $20 million and cited Kraft Foods as 
saying that the number of routes that could be covered in one day would 
drop from 75 percent to 60 percent.
    FMCSA Response. The costs of the rule are measured by the cost to 
the carriers (which, in the case of private carriers, includes shippers 
because they are the same in that case). We assume that these costs are 
then shifted, largely, to the direct and indirect users of shipping 
services: shippers, receivers, and ultimately consumers. We have 
included costs for reprogramming routes, based on the clearest 
quantitative estimates provided in past comments in listening sessions; 
to the extent that the shippers do the work of altering the routes in 
light of the rule changes, that should reduce the costs to carriers. We 
have addressed costs to consumers in the RIA. Our cost estimates are 
for carriers providing the same, or essentially the same, service using 
more drivers and trucks each with slightly lower average productivity. 
The costs of changing routes will be mitigated by the time allowed for 
compliance. In a dynamic economy frequent changes in shipping and 
routing are necessary; any changes necessitated by the new rules can be 
phased in whenever they are most convenient. FMCSA believes that the 
cost factors provided by the commenters are not adequately justified, 
and they

[[Page 81171]]

are exaggerated compared to the averages.
    Comments on Impacts on LTL Carriers. ATA stated that the analysis 
did not account for impacts on LTL carriers; it estimated the 
productivity losses at 5 to 9 percent. Con-way said the rule would 
require network changes.
    FMCSA Response. The analysis of the impact of the different options 
did consider impacts on LTL carriers, as they were included in both the 
population of drivers and power units, and in a survey that was the 
basis for the estimates of the distribution of work effort. Though 
there might be some LTL routes that could lose this much productivity 
if driving were restricted to 10 hours per day, it is highly unlikely 
that the industry-wide average impact would be that high. Only a driver 
who drove 11 hours every day, and who was required to cut back to 10 
hours, would lose as much as 9 percent of baseline productivity, and 
ATA is on record stating that even FMCSA's estimate that the 11th hour 
is used on only about a fifth of trips is substantially overstated. Any 
segment that currently requires 10 hours or less, or more than 11 
hours, would be unaffected by a change in the daily driving limit, and 
any driver currently taking a full weekend off would be unaffected by 
the changes in the restart provisions. It is true, as Con-way stated, 
that some changes in networks might be necessary, and a cost has been 
assigned to those changes. It should be noted, however, that Con-way 
stated that its drivers averaged less than 8 hours of driving a day. In 
any case, the final rule leaves daily driving hours unchanged.
    Comments on Reduction in Productivity. Schneider stated that the 
rule would reduce its productivity by 4.72 percent. Drivers would get 
home 25 percent less; the average run would drop from 501.7 miles to 
478 miles, which would translate to $3,000 a year decrease in driver 
pay to offset the loss in productivity. Other carriers stated that 
those carriers that maximize hours would have an 8 to 10 percent 
reduction in productivity.
    FMCSA Response. FMCSA's estimate of the nationwide productivity 
impacts is close to an average of 1.2 percent; the Agency assumes there 
is substantial variability across operations and firms. The estimated 
reduction in productivity for the carriers allowing or requiring 
drivers to work the longest hours is quite consistent with our 
estimates--those working about 80 hours must cut back to something 
below 70, which is a reduction of more than 12 percent.
    Comments on Costs to Short Haul. Three shipper associations stated 
that FMCSA had ignored the costs to short-haul operations and that its 
statement that they would not be affected was without foundation, 
particularly as the provisions limited work time other than driving 
    FMCSA Response. The RIA for the 2003 HOS rules did calculate costs 
and benefits for short-haul and local drivers, and the analysis for the 
2005 HOS rules also looked at how longer driving windows could reduce 
impacts on that segment. For the final rule, however, FMCSA considers 
any potential impacts to be small. This conclusion is based largely on 
the nature of the HOS rule changes considered in this rulemaking, 
compared to the work patterns identified in previous rulemakings. The 
2003 rules increased the daily driving hours from 10 to 11, increased 
the required off-duty period from 8 to 10 hours, allowed restarting the 
multi-day count of on-duty hours after a 34-hour period off-duty, and 
limited driving to a 14-hour window after coming on duty. FMCSA's 
review of work by short-haul and local drivers, which included 
quantitative assessments of two driver surveys and discussions with 
industry sources, concluded that most of the changes in the rules would 
have essentially no effect on short-haul and local drivers. The ability 
to work the maximum numbers of hours per week (through the restart) was 
also considered unlikely to provide benefits to the short-haul and 
local drivers, because they were judged to work much more moderate and 
regular hours than longer-haul drivers, often with full weekends off.
    The only provision of the 2003 rule found to be likely to impose a 
significant cost on short-haul and local drivers was the fixed 14-hour 
limit on the driving window. FMCSA's data on the variability of daily 
work by short-haul and local drivers, however, found that work in 
excess of 14 hours was quite rare, even when drivers were permitted to 
work beyond a 14-hour window. Furthermore, the provisions that allow 
short-haul and local drivers to exceed the 14-hour driving window once 
or twice a week should provide enough flexibility to prevent any 
significant impact on the vast majority of these drivers. Finally, the 
final rule has dropped the 13-hour limit on daily on-duty hours, 
further reducing the chances that a short-haul or local driver's 
operations will be constrained.
    Comments on Costs of Training Enforcement Personnel. CVSA and the 
Oregon Department of Transportation stated that the RIA failed to take 
into account the cost of training 14,000 enforcement personnel, which 
they estimated to be between $2,682,680 (8-hour course) and $4,924,020 
(12-hour course), not including travel and per diem. According to the 
commenters, these costs will be an additional burden on State 
resources. Carriers, ATA, and other trucking associations also stated 
that the 2-hour estimate for training was too low.
    FMCSA Response. The proposed rule has been simplified, and the 11-
hour driving limit from the previous rule retained, which should 
mitigate the length of the training needed to familiarize inspectors 
and drivers with the new requirements. The Agency considered including 
these costs, but found that they did not change the total cost of the 
rule, which is rounded to the nearest $10 million. FMCSA also notes 
that the lead time provided before the rule takes effect will allow 
training to be incorporated into other on-going activities. For 
industry costs, we used the clearest quantitative estimate available 
from comments at listening sessions.
    Comments on Costs and Driver Additions. Advocates et al. stated 
that fatigue-related truck crashes cost between $5.5 and $13 billion 
annually. They also posited that the current HOS rule eliminated the 
need to hire 60,000 drivers; the proposed rule would add 44,000 driver 
jobs to the economy.
    FMCSA Response. This estimate is broadly consistent with FMCSA's 
estimates for fatigue-related crashes, though higher than its estimates 
for long-haul crashes alone. FMCSA's estimate of the number of new 
drivers is lower, because it anticipates a small shift from truck to 
rail, and leaves the daily driving limit at 11 hours.
    Comments on Cost Disaggregation. Another advocacy group stated that 
FMCSA should have disaggregated the costs for each key provision, not 
just driving time. The group also commented that FMCSA should estimate 
the effects of changes in congestion.
    FMCSA Response. FMCSA analyzed the costs and benefits of the 
provisions individually, as shown in RIA Appendix C, and summarized in 
Table 3 of this preamble. FMCSA does not expect any significant net 
effects on congestion. The requirement for two consecutive nighttime 
periods off to qualify for a restart, which might be anticipated to 
shift traffic into more crowded times of day, will affect only one day 
per week for the fraction of drivers who routinely work all night and 
routinely work very long hours per week. Any effect on congestion due 
to these small shifts will be counterbalanced by the small

[[Page 81172]]

anticipated shift from truck to rail due to the rule's effect on 
    Comments on Safety Benefits. Two trade associations and the 
Missouri Department of Transportation stated that the Agency has no 
basis for projecting safety benefits. ATA stated that there were no 
safety benefits. OOIDA stated that the analysis was flawed because it 
is based on data collected under the pre-2003 rule.
    FMCSA Response. FMCSA has shown that reducing working, and building 
in breaks in long days, will provide more time to rest and reduce the 
buildup of fatigue. Because fatigue is known to be an important cause 
of heavy-vehicle crashes, a regulation that reduces fatigue can be 
expected to reduce crash risks. Some of the analysis did use data from 
before 2003 along with more recent data, because the most recent data 
are not yet extensive enough to form the basis of an entirely new set 
of analyses. FMCSA has no reason to believe that basic relationships 
between work and sleep, and between excessive work and fatigue, have 
changed enough since 2003 to invalidate its analysis using data prior 
to the current rule change. There is no reason why the use of pre-2003 
data to examine time-on-task effects would produce spurious results. 
Furthermore, the time-on-task function used in the current RIA was 
incorporated into the RIAs accompanying the 2005 and 2008 rules and was 
used in those rulemaking actions to evaluate the differences in safety 
impacts between the various options considered. The use of that 
function in previous rulemakings was tacitly accepted by all 
    On March 17, 2008, ATA submitted comments on FMCSA's December 7, 
2007, Interim Final Rule's RIA.\14\ ATA commented ``that FMCSA had 
taken diligent and extraordinary steps to assure the comprehensiveness 
of the analysis and its parts. This included adequately explaining two 
critical elements of the model in the RIA accompanying the 2005 rule--
the analysis of time-on-task and the analysis of whether the 34-hour 
restart affects cumulative fatigue.'' FMCSA's 2007 RIA used the same 
TIFA function to estimate benefits as the RIA for this final rule.

    \14\ See document item FMCSA-2004-19608-3437 for ATA's comment 
on pages 13-14, and document item FMCSA-2004-19608-2924 for NERA's 
paragraph on page 2.

    ATA noted in its 2008 comments that ``The regression analysis 
(model) used by FMCSA to measure and project the effect on the risk of 
crashes associated with driver fatigue of driver's time on task (TOT) 
is reasonable and appropriate.'' In addition, a statistician hired by 
ATA as a consultant to examine the Agency's TIFA-based time on task 
function submitted the following comment: ``Based on my review of the 
2007 RIA and related docket materials as well as the considerations set 
forth in my September 2007 Declaration, it is my opinion that the form 
and implementation of FMCSA's revised logistic regression model are 
reasonable in the circumstances for the purpose for which FMCSA used 
this calculation in the 2007 RIA'' (Marais). In light of the fact that 
the function has been used twice in the past, and that even ATA and its 
consultants have stated that use of this function is appropriate, it 
seems reasonable for the Agency to have used it again for the December 
2010 NPRM and this final rule to estimate safety benefits associated 
with reducing allowed daily driving.
    More recent research has corroborated time-on-task and cumulative 
fatigue effects for driving occupations. Two new studies sponsored by 
the Agency and conducted with post-2003 data have found evidence of 
increasing crash risk or SCEs as driving time increases through the day 
(Blanco and Jovanis (2011)). In addition, other studies involving 
transit bus operators have shown evidence that longer weekly work hours 
are associated with an increase in crash risk for drivers working 45 
hours per week or more (Sando (2010a and 2010b)). While these drivers 
operate in a different setting than over-the-road truck drivers, the 
fact remains that the increase in risk begins appearing at weekly work-
effort levels well within the current and previous HOS rules. Taken 
together, these studies bolster the Agency's claim that limiting work 
would reduce crashes related to time on task and cumulative fatigue.
Comments on Health Benefits
    Although drivers who work fewer hours than the maximum allowed by 
the rule will experience only limited health benefits, those who 
currently work the longest schedules must curtail their weekly work 
hours--in some cases significantly--and will, therefore have additional 
time off duty to sleep or exercise, both of which are associated with 
improved health, lower medical costs and, ultimately, with longer life 
    Comments on the Use of the Ferrie Study. ATA submitted an opinion 
from Francesco Cappuccio that disputed the use of studies cited by 
FMCSA in the 2010 NPRM to estimate changes in mortality based on sleep. 
His points were the following:
     The studies used are based on epidemiological data, which 
do not imply a causal relationship.
     Sleep duration is self-reported and does not differentiate 
between naps and longer daily sleep. The studies also do not exclude 
people with sleep disorders.
     The description of a so-called U-shaped relationship 
between duration of sleep and risk of death is currently insufficient 
to justify an interpretation of a `graded and continuous' relationship 
between exposure (sleep duration) and outcome (death). There could be 
threshold effects.
     The mapping of sleep time is not supported by data.
     The RIA did not consider the impact of more than 8 hours 
of sleep.
     Sleep time between 6 and 8 hours is not associated with 
harm. Most drivers appear to fall into this range.
     There is no evidence that increasing sleep by 5.5 minutes 
per day would produce health benefits.
     FMCSA assumes that, if given extra time off, drivers would 
use it to sleep. This is not supported by data.
    Cappuccio concluded:

    In these studies reduced weekly work hours led to an increase in 
sleep time because other approaches were taken at the same time as 
the reduction in work hours to encourage and facilitate the workers 
to sleep longer and to recover better from previous shifts. These 
measures include important components based on well-established 
principles of sleep medicine and circadian biology: Limit 
consecutive night shifts to reduce the build-up of chronic partial 
sleep deprivation due to the limited sleep between night shifts; 
limit shift duration to minimize acute sleep deprivation; design the 
sequence of shifts to abolish `slam shifts'; instruct workers and 
facilitate naps; and also reduce the proportion of long work weeks. 
These approaches are effective on performance and reduce errors. No 
evidence of efficacy on health outcomes is yet available.

    Jane Ferrie, the lead author of the study in question on which 
Cappuccio collaborated, submitted a comment to the docket. She noted 
that the RIA acknowledged that epidemiological data do not prove 
causation. She cited a number of studies on self-reported sleep 
indicating that such reports overstate sleep. Ferrie cited other 
studies showing that self-reported sleep is strongly associated with 
health outcomes. The projections in the RIA were very close to the 
results derived from the data analysis of the Whitehall study. She 
described the mortality ratios used in Exhibit 3 as robust and added 
that the quadratic regression analysis used in the RIA is a relatively 
good approximation within the range of 5-9 hours sleep duration. 
Mortality rates in Exhibit 5-3 outside these ranges would be less

[[Page 81173]]

stable, but she noted that the Agency did not appear to have used them 
in the cost-benefit analyses. She stated that the problem of covariates 
appears to be quite minor. She also stated that the inferences in the 
RIA on increased mortality seem to be in rough agreement with estimates 
from her study. She noted that the RIA acknowledged that small changes 
in the amount of sleep make little difference for individuals, but 
``small changes at the population level, particularly in large 
populations, can have significant effects.''
    On the unquantified health benefits, Ferrie cited an increasing 
body of research documenting the effects of working more than 55 hours 
a week on heart disease, cognitive function, depression, and sleep 
disturbances. She stated that repeated exposure to long working hours 
has been shown to be associated with a 3-fold increased likelihood of 
shortened sleep, a nearly 7-fold increased likelihood of difficulty 
falling asleep, and a 2-fold increased likelihood of early morning 
waking. She noted that these effects are not related to shift work. 
Ferrie concluded that the methods of analysis FMCSA used appear to be 
robust and that the RIA takes a cautious approach to interpreting the 
health benefits.
    FMCSA Response. In every instance, Cappuccio appears to have drawn 
the narrowest possible conclusion from the available data, both in the 
study that he co-authored and in the RIA, with the result that he finds 
the connection between mortality and sleep duration tenuous or 
contingent on further research and better data. According to Cappuccio, 
some sleep scientists suggest that there may be an alternative 
``threshold'' hypothesis for the relationship between sleep and 
mortality. According to this hypothesis, individuals getting at least 
as much sleep at some threshold level (e.g., 5 hours a night) would 
gain nothing from small changes in sleep. Cappuccio, however, is on 
record as stating that research shows that sleeping less than 7 hours a 
night is likely to lead to greater mortality. In his comments (FMCSA-
2004-21675), Cappuccio mentioned his study Cappuccio (2010), which is 
docket item FMCSA-2004-19608-4041. That report includes the sentences, 
``Our study shows an unambiguous and consistent pattern of increased 
risk of dying on either end of the distribution of sleep duration. 
Pooled analyses indicate that short sleepers (commonly <7 h per night, 
often <5 h per night) have a 12% greater risk.'') Thus, granting for 
the sake of argument that there may be a threshold, even Cappuccio 
likely would place it above the levels at which we are estimating 
benefits. Ferrie, on the other hand, was more willing to trust the 
available research, and to draw real-world conclusions from it. She 
found FMCSA's use of her own research to be cautious and had no 
objection to the use of those results as a partial rationale for HOS 
policy. On the issue of fitting a continuous curve through data 
collected on an ordinal scale, her comments supported the Agency. As 
shown above, Ferrie thinks: ``Both the estimated increases in sleep 
duration and decreases in mortality that result from the RIA are very 
small, a point acknowledged by the FMCSA authors; the curvature of the 
relationship `means that changing average sleep makes very little 
difference for individuals.' However, small changes at the population 
level, particularly in large populations, can have significant 
effects.'' These comments show that the Agency's inferences regarding 
increases in sleep and mortality reductions were reasonable. In 
addition, both Ferrie and Cappuccio, along with other researchers on 
this topic, have referred to a U-shaped curve rather than a step 
function when discussing the relationship between sleep and mortality. 
A curve generally connotes a continuous function in the scientific 
literature, therefore references to a curve in the literature imply a 
continuous relationship rather than a threshold or step function. While 
FMCSA recognizes the need for improved data and is sponsoring a wide 
range of research projects on sleep and fatigue, we are not prepared to 
repudiate reasonable inferences from work already available because 
more perfect work might someday be completed. We agree with Ferrie's 
    FMCSA is, in fact, implementing three of Cappuccio's suggestions in 
this final rule. This final rule is: (1) Regulating time to abolish 
``slam shifts,'' which are shift schedules that cause sudden changes in 
the sleep/wake cycles; (2) Facilitating naps by providing a 30-minute 
break; and (3) Reducing the proportion of long work weeks.
    Other Comments on Health Benefits. An advocacy group noted that 
there are underlying medical conditions that lead to lower sleep, such 
as sleep apnea. A shipper association and a company stated that health 
benefits are inflated by the change in the on-duty definition.
    FMCSA Response. FMCSA recognizes that sleep conditions can reduce 
sleep, but many of these conditions are associated with obesity, which 
is linked to long work hours and a sedentary lifestyle. The direction 
of causality can be difficult to determine, but one likely sequence is 
that long work hours reduce sleep, which causes biochemical changes 
that facilitate obesity, which is associated with high blood pressure 
and diabetes, all of which are associated with an increased incidence 
of sleep apnea.
    The economic analysis did not look at the changes in the on-duty 
definition or use it to change estimates of sleep time; the revised 
definition is not expected to alter sleep time. The revision allowing 2 
hours in the passenger seat to be logged as off-duty time mainly 
affects team drivers, whose sleep is poor in any case according to 
those drivers. Local drivers may ``rest'' in the truck if they are off 
duty, but that rest will not necessarily include sleep, particularly as 
local drivers usually work during daylight hours when sleep is 
difficult even when someone is tired.
    Other Comments on Benefits. A trucking association stated that 
FMCSA should demonstrate that the safety benefit of the 2-night 
requirement for the restart provision outweighs the cost of increased 
congestion. An advocacy group stated that the RIA should analyze the 
costs and benefits of the 16-hour provision and the 30-minute break. It 
stated that FMCSA should monetize the health impacts beyond mortality. 
It noted that besides leading to premature death, the chronic diseases 
associated with lack of sleep impair both quality of life and 
productivity for a long period. The direct and indirect costs 
associated with these conditions are high.
    FMCSA Response. As discussed earlier in this preamble, it is not 
clear why commenters believed that the two-night requirement will lead 
to increased congestion. They seem to assume that nighttime deliveries 
will end, but they will in fact continue 5 nights a week for the 
hardest working drivers and 6 or 7 nights a week for drivers who do not 
need the restart. The final RIA does monetize the costs and benefits of 
the break; the 16-hour provision has been dropped.
    As explained in the RIA, it is difficult to monetize the costs of 
the chronic health impacts because to do so, FMCSA would need data that 
linked these conditions to specific amounts of sleep. There are, for 
example, data that indicate the increase in mortality associated with 
increases in body mass index (BMI), but these vary considerably by sex 
and race. To begin to monetize those costs we would need data that link 
specific levels of sleep to BMI and then data that linked the BMI to 
incidence of diseases.
    Comments on Fatigue Research. Thirteen commenters responded to the

[[Page 81174]]

WSU study on night drivers. ATA, OOIDA, CVSA, CHP, a State trucking 
association, and several carriers stated that the number of subjects 
was too small and the lab setting too artificial. Two drivers objected 
to using young healthy subjects instead of trained drivers. Another 
driver stated that the study did not consider drivers whose natural 
rhythms are suited for working at night. Advocates stated that previous 
research supported the findings of the WSU study. JB Hunt stated that 
it surveyed 249 drivers, 82 percent of whom regularly drove at night; 
79 percent of these drivers said they did not change their sleep 
schedules when at home, which is contrary to the WSU assumption. JB 
Hunt also stated that anyone who gets 10 hours of rest a day should not 
develop a sleep debt.
    FMCSA Response. FMCSA addressed most of these comments above, in 
Section IV. ``Discussion of All Comments'' G. ``Restart,'' under the 2-
night requirement heading. As for the assertion that 10 hours of rest a 
day is sufficient to eliminate sleep debt, the commenter is assuming 
that a driver with 10 hours off will use 7 to 8 hours of that time to 
sleep. Research has shown that night drivers who are trying to sleep 
during the day generally get less than 6 hours of poor quality sleep 
even when they have more than 10 hours off.
    Comments on the Impact of Long Hours. On the issue of long hours, 
Ferrie noted that a recent review concluded that work in excess of 8 
hours carries an increasing risk of crashes, with the risk in the 12th 
hour double that of the 8th. Sando reported that his study showed an 
increased risk of collisions as hours worked increased.
    NIOSH cited a number of studies that indicate that sleep 
deprivation produces performance deficits, including an inability to 
assess risk and an increase in risk taking. It also cited studies on 
fatigue and CMV crashes and sleep apnea. Advocates et al. stated that 
research indicates that performance degrades when drivers have less 
than 7 to 8 hours of sleep and that most drivers get less than 6 hours 
of sleep on work days. They also cited a number of studies that 
indicate people need 7 to 9 hours of sleep. They countered industry 
arguments that the rule was based on pre-2003 data by noting that the 
NIOSH study of drivers covered 2004-2006. They stated that the findings 
of the 2005 Fatigue Management Survey on sleepy drivers indicate that 
this problem is more common for CMV drivers than for other drivers.
    An association stated that fatigue literature does not address the 
relative risk of the 11th hour. The Missouri Department of 
Transportation cited the LTCCS as indicating that fatigue was the 10th 
highest associated factor.
    FMCSA Response. FMCSA agrees with the commenters that the great 
majority of research associates long hours of work with fatigue and 
increased crash risk. FMCSA also agrees that fatigue literature does 
not directly address the relative risk of the 11th hour of driving. The 
new VTTI study indicates that it is difficult to isolate the relative 
risk of any particular hour of driving because driving hours can occur 
at differing times during the work day. For example, the 11th hour 
cannot occur sooner than 11 hours into the work day, but it can occur 
anytime from 11 to 14 hours into the work day. The fifth hour of 
driving can occur anytime from 5 to 14 hours into the workday. This 
affects the relative risk of any particular hour of driving. As for the 
LTCCS, it may have found that fatigue was the 10th highest factor, but 
it still was associated with 13 percent of crashes.
    Comments on Health Research. Relatively few commenters discussed 
the health research reported in the NPRM and RIA. ATA and the Retail 
Industry Leaders Association (RILA) stated that FMCSA has argued in 
past HOS rulemakings that long hours do not affect health. RILA further 
stated that the 2000 Balkin study on the relation of work time to sleep 
time was not valid because the data were collected under the previous 
HOS rule. It also questioned the assumption that a reduction in driving 
time would lead to more sleep and exercise. Another State trucking 
association and a carrier argued that FMCSA had not proven that changes 
to the rule would have measurable positive impact on driver health. The 
Minnesota Trucking Association stated that the studies did not answer 
the question of whether long hours, shift work, or short sleep lead to 
obesity and diabetes.
    NIOSH submitted a number of studies that address health issues. 
NIOSH cited studies linking shift work to smoking and obesity, noting 
that research has found that short and poor quality sleep periods alter 
hormone levels and metabolic function and lead to insulin resistance. 
NIOSH cited research linking shift work to a higher risk of 
cardiovascular diseases, including studies of drivers. It noted that a 
study of unionized U.S. drivers found an elevated rate of mortality 
from ischemic heart disease. NIOSH stated that the International Agency 
for Research on Cancer has designated shift work with circadian 
disruption as a probable carcinogen. It also reported on studies 
linking long hours to depression and finding that working less than 12 
hours a day and 58 hours a week reduced depression and fatigue. It 
cited a 2010 study of truck drivers associating disrupted sleep 
patterns with increased obesity and several chronic diseases. Studies 
of verifiable sleep of truck drivers found daily averages well below 7 
to 8 hours (3.8 to 5.2 hours).
    Finally, Schneider National stated that FMCSA should address sleep 
apnea among drivers, which it said is a more important cause of fatigue 
than HOS. It also questioned the current rule allowing chiropractors to 
serve as medical examiners. A safety group stated that FMCSA should 
analyze the impact of diesel fumes.
    FMCSA Response. As FMCSA explained in the NPRM, the body of 
research that finds a connection between long hours of work and worker 
health has grown substantially in the past 6 years. Most of the health 
issues that FMCSA reviewed for the 2005 rule--exposure to diesel fumes, 
noise, and vibration--were not and still are not scientifically 
associated with long hours. The findings on noise and vibration 
indicated that the levels to which drivers are exposed were not great 
enough to cause health effects. With diesel exposure, drivers who are 
parked with trucks idling may be exposed to higher levels than when 
they are driving. Altering work hours would not necessarily reduce 
    These issues are not the basis of the health impacts discussed in 
the 2010 NPRM. As the studies submitted by NIOSH and others cited in 
the NPRM and RIA have reported, long hours of work, particularly work 
that is primarily sedentary, are associated with low sleep, obesity, 
and cardiovascular disease. With many factors linked, it is not 
possible to define a simple pathway for effects. There is, however, a 
substantial body of research that has identified the chemical changes 
caused by lack of sleep that can increase the likelihood of obesity and 
diabetes and increase blood pressure. CMV drivers have a markedly 
higher rate of obesity than adult male workers as a whole and have been 
shown to have an elevated risk of dying of some cardiovascular 
diseases. Interestingly, the commenters did not attempt to deny that 
drivers have a higher incidence of chronic health conditions, each of 
which is linked to higher mortality rates and higher on-going medical 
costs. As mentioned above, this rule is unlikely to improve the health 
of drivers who work moderate schedules. On the other hand, those 
currently working the longest schedules will be required to reduce

[[Page 81175]]

their work hours, which is likely to increase their opportunity for 
sleep and/or exercise, both of which are conducive to better health and 
lower medical costs.
Final Rule Regulatory Impact Analysis
    For the analysis of the final rule, FMCSA considered and assessed 
the consequences of four regulatory options. (A copy of the complete 
RIA is available in the docket.) Option 1 is the no-action alternative, 
which would retain the provisions of the current HOS rule. All costs 
are relative to Option 1. Options 2 through 4 require at least one 
break during the duty day (none is currently required), and limit the 
use of the 34-hour restart provision to once every 168 hours with at 
least 2 nights off duty. Options 2 through 4 differ only in driving 
time allowed between 10-hour breaks. Option 2 limits allowable daily 
driving to 10 hours, the driving limit that existed prior to the 2003 
rule. Option 3 retains the 11 hours of driving allowed under the 
current rule. Option 4 allows only 9 hours of driving, or 1 hour less 
than Option 2. This RIA compares the costs and benefits (in 2008 
dollars) of Options 2 through 4 relative to the current rule (i.e., 
Option 1) and assumes that there is full compliance with each of the 
    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 
rule; rather they would indicate the extent to which the supplementary 
rules ensured that the rule's costs and benefits were realized.
    To calculate the impact of the 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 lead them to schedules well within the current limits for 
reasons unrelated to those limits will not be affected by the rule 
    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 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 is 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.\15\ Companies and drivers were identified as operating 
within or beyond a 100-mile radius. The Economic Census, 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.

    \15\ The ``2007 Field Survey'' is an alternate title for the 
FMCSA, ``2007 Hours of Service Study,'' 2007. FMCSA-2004-19608-2538.

    To evaluate the impact of the 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 FMCSA's 2007 Field Survey to define intensity 
groups as shown in Table 6.
    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 

             Table 6--Driver Groups by Intensity of Schedule
                                     Average     Percent of    average
       Work intensity group        weekly work   workforce    hours per
                                       time                      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

    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 the average hours of work per week based on 
each group's share of the total population. 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.
    To estimate the costs of operational changes, the basic approach is 
to follow the chain of consequences from changes in HOS provisions to 
the way they

[[Page 81176]]

would impinge on existing work patterns in terms of work and (where 
relevant) driving hours per week, taking overlapping impacts of the 
rule provisions into account. Estimated changes in productivity are 
translated into changes in dollar costs using functions developed for 
the regulatory analyses of previous HOS rules. Summing the different 
cost components resulted in a total annualized cost of $1.00 billion 
for Option 2, $470 million for Option 3, and $2.29 billion for Option 
4. Though these costs are estimated using impacts on industry 
productivity, they would most likely be passed along as increases in 
freight transportation rates, and then ultimately to consumers in 
increased prices for the goods that are transported by truck.
Rule Benefits
    The primary goal of the final rule is to improve highway safety in 
the most cost-effective way by reducing driver fatigue and the 
associated increase in the probability that fatigued drivers will be 
involved in crashes. A second 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 
    To analyze the safety impacts of the 2010 NPRM and 2011 final rule, 
the Agency developed a series of functions that incorporate fatigue-
coded crashes to hours of daily driving and hours of weekly work. In 
the pre-2010 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 2005, 
2007, and 2008 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 2010 NPRM and the 2011 final rule analyses, FMCSA replaced 
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,'' $6 million when this rulemaking began); 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.\16\

    \16\ Average large truck crash costs were obtained from the 
report, ``Unit Costs of Medium and Heavy Truck Crashes,'' March 
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.

    The monetary value of each of the effects thought to affect the 
safety of drivers was estimated under three different assumptions of 
the baseline level of fatigue involvements in crashes: 7 percent, 13 
percent, and 18 percent. The total benefits resulting from improvements 
in the safety of long-haul (LH) drivers for Options 2 through 4 are 
shown below in Tables 7 through 9 below.\17\

    \17\ Truck driver fatigue was coded as a factor in 13 percent of 
all crashes in the Large Truck Crash Causation Study (LTCCS). As a 
sensitivity analysis, FMCSA also used a lower value of 7 percent 
involvement in fatigue-related crashes, based on the 8.15 percent 
value used in the RIA for the 2003 HOS rule. A higher value of 18 
percent involvement in fatigue-related crashes also was used as a 
sensitivity analysis, chosen to be roughly as far above the LTCCS 
value of 13 percent as the 8.15 percent pre-2003 estimate is below 
13 percent.

            Table 7--Estimated Safety Benefits by Fatigue Crash Rate for Option 2 (10 Hours Driving)
                                                [Millions 2008$]
                                                          Benefits due to    Benefits due to
                                                           reduced daily      reduced weekly     Total benefits
     Assumed percent of crashes due to fatigue \17\         time on task       time on task      due to reduced
                                                             effect \a\         effect \b\          crashes
7......................................................               $110               $210               $320
13.....................................................                210                390                600
18.....................................................                290                540                830
\a\ Acute fatigue from long hours in a day.

[[Page 81177]]

\b\ Cumulative fatigue from long hours over many days.

            Table 8--Estimated Safety Benefits by Fatigue Crash Rate for Option 3 (10 Hours Driving)
                                                [Millions 2008$]
                                                          Benefits due to    Benefits due to
                                                           reduced daily      reduced weekly     Total benefits
       Assumed percent of crashes due to fatigue            time on task       time on task      due to reduced
                                                             effect \a\         effect \b\          crashes
7......................................................                $10               $150               $150
13.....................................................                 10                270                280
18.....................................................                 10                380                390
\a\ Acute fatigue from long hours in a day.
\b\ Cumulative fatigue from long hours over many days.
Note: Totals do not add due to rounding.

            Table 9--Estimated Safety Benefits by Fatigue Crash Rate for Option 4 (10 Hours Driving)
                                                [Millions 2008$]
                                                          Benefits due to    Benefits due to
                                                           reduced daily      reduced weekly     Total benefits
       Assumed percent of crashes due to fatigue            time on task       time on task      due to reduced
                                                             effect \a\         effect \b\          crashes
7......................................................               $290               $320               $610
13.....................................................                550                590              1,130
18.....................................................                760                810              1,570
\a\ Acute fatigue from long hours in a day.
\b\ Cumulative fatigue from long hours over many days.
Note: Totals do not add due to rounding.

    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) crashes and mortality 
due to decrements in several health-related measures, such as an 
increase in the incidence of high blood pressure, obesity, diabetes, 
other cardiovascular disease (CVD), and other health problems. See 
Appendix B of the RIA for the references for this statement. The 
analysis attempted to model the workplace transportation crash 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 to 8 hours of sleep that studies generally show are required for 
optimal mortality. Cutting back somewhat on daily work hours and more 
significantly cutting back on weekly work hours 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. Results of this analysis indicate that the measurable 
health benefits of reducing the maximum hours of work allowed per week 
could well be as great as the costs, and other possible health benefits 
(which have not been included in the quantitative analysis) could add 
even further to these benefits. The health benefits of Options 2 
through 4 were estimated for three different levels of baseline sleep 
by drivers at 7 and 3 percent discounting of future health benefits 
(shown in Table 10). 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 (to a relatively minor extent for Option 2), indicating 
that it is not beneficial for individuals to get additional sleep if 
they are already getting adequate sleep.

[[Page 81178]]

                                         Table 10--Estimated Health Benefits by Amount of Sleep for All Options
                                                            [3 and 7 Percent discount rates]
                                                                    [Millions 2008$]
                                                                                       Total benefits due to increased sleep
        Assumed baseline amount of nightly sleep                       7 Percent discounting                           3 Percent discounting
                                                             Option 2        Option 3        Option 4        Option 2        Option 3        Option 4
Benefits with Low Sleep.................................            $810            $630          $1,110          $1,090            $850          $1,490
Benefits with Medium Sleep..............................             380             350             370             510             470             500
Benefits with High Sleep................................             -50              70            -370             -70              90            -500

    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 (Van Cauter). Obesity is in 
turn associated with higher incidences of diabetes, CVDs, hypertension, 
and obstructive sleep apnea (Mokdad). 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 (Katzmarzyk).
    Research on the health of drivers and health costs found that CMV 
drivers are both heavier for their height and less healthy than adult 
males as a whole. Drivers are far more likely than adult male workers 
as a whole to be obese. Table 11 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 (Martin). (The 
national statistics for the incidence of health conditions among adult 
males include men over 70, who may have higher incidences of some 
conditions than the younger working population.)

                              Table 11--Driver Health Conditions by Weight Category
                                    drivers in    Presence of at                                       High
            N = 2,950                 weight         least one     Hypertension      Diabetes       cholesterol
                                     category       health risk      (percent)       (percent)       (percent)
                                     (percent)        factor
Normal weight...................              13              26           21               5              11
Overweight......................              30              39           31              10              17
Obese...........................              55              59           51              21              26
Overall.........................  ..............              48           41              16              21
National adult male (CDC          ..............  ..............           31.80       \1\ 10.9            15.60
\1\ 7.4% 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, 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 an SCE, and at 1.99 times greater risk of being above the fatigue 
threshold as measured by eye closure when driving (Wiegand).
    Net benefits (i.e., benefits minus costs) are likely to be 
positive, but could range from a negative $730 million per year to more 
than a positive $630 million per year for Option 2 (a negative $750 
million to positive $920 million with 3 percent discounting), from a 
negative $250 million to more than a positive $550 million for Option 3 
(a negative $220 million to a positive $770 million with 3 percent 
discounting), and from a negative $2.05 billion to more than a positive 
$390 million for Option 4 (a negative $2.18 billion to a positive $780 
million), as shown in Tables 12 through 14 below. The wide ranges in 
estimates of benefits and net benefits are a consequence of the 
difficulty of measuring fatigue and fatigue reductions, which are 
complex and often subjective concepts, in an industry with diverse 
participants and diverse operational patterns. Still, it seems clear 
that the benefits could easily be substantial, and are on the same 
scale as the costs. The costs, for their part, are large in absolute 
terms but minor when compared to the size of the industry: $1.00 
billion per year (the total annualized cost for Option 2) is less than 
two thirds of 1 percent of revenues, $470 million per year (the total 
annualized cost for Option 3) is less than one third of 1 percent of 
revenues, and $2.29 billion per year (the total annualized cost for 
Option 4) is less than 1.5 percent of revenues in the for-hire LH 
segment of the industry. These total annual costs are an even smaller 
fraction of revenues of the LH segment as a whole. As an additional 
example, the costs of Option 3 are equivalent to about a $0.03 per 
gallon increase in long-haul industry fuel costs, which is a minimal 
increase in an industry used

[[Page 81179]]

to wide swings in fuel costs. Between 2006 and 2010, diesel fuel prices 
ranged from $2.09 a gallon to $4.70 a gallon.\18\

    \18\ U.S. Energy Information Administration, Gasoline and Diesel 
Fuel Update, http://www.eia.gov/oog/info/gdu/gasdiesel.asp#.

                                  Table 12--Net Benefits for Option 2 by Sleep Scenario, Crash Rate, and Discount Rate
                                                                    [Millions 2008$]
                                                                                          Assumed amount of nightly sleep
        Assumed percent of crashes due to fatigue                      7 Percent discounting                           3 Percent discounting
                                                             Low sleep     Medium sleep     High sleep       Low sleep     Medium sleep     High sleep
7.......................................................            $130           -$300           -$730            $410           -$170           -$750
13......................................................             400             -20            -450             690             110            -470
18......................................................             630             210            -220             920             340            -240

                                  Table 13--Net Benefits for Option 3 by Sleep Scenario, Crash Rate, and Discount Rate
                                                                    [Millions 2008$]
                                                                                          Assumed amount of nightly sleep
        Assumed percent of crashes due to fatigue                      7 Percent discounting                           3 Percent discounting
                                                             Low sleep     Medium sleep     High sleep       Low sleep     Medium sleep     High sleep
7.......................................................            $310             $30           -$250            $530            $150           -$220
13......................................................             440             160            -120             660             280             -90
18......................................................             550             270             -10             770             390              20

                                  Table 14--Net Benefits for Option 4 by Sleep Scenario, Crash Rate, and Discount Rate
                                                                    [Millions 2008$]
                                                                                          Assumed amount of nightly sleep
        Assumed percent of crashes due to fatigue                      7 Percent discounting                           3 Percent discounting
                                                             Low sleep     Medium sleep     High sleep       Low sleep     Medium sleep     High sleep
7.......................................................           -$570         -$1,310          $2,050           -$180         -$1,180         -$2,180
13......................................................             -50            -790          -1,520             340            -660          -1,650
18......................................................             390            -350          -1,090             780            -220          -1,220

    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). In keeping with their relative stringencies, Option 3 has 
lower, and Option 4 has higher, projected benefits than Option 2. 
Option 3's calculated net benefits appear likely to be somewhat higher 
than the net benefits of Option 2 under some assumptions about baseline 
conditions. Option 4's substantially larger costs, on the other hand, 
did not appear to be justified by its generally higher range of 
benefits. Based on the estimated net benefits of the options, FMCSA has 
selected Option 3 as the Final Rule. 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 the functional 
equivalent of Option 3--the final rule does not change a driving-time 
limit but retains the current 11-hour limit--the most reasonable 
Changes in the Analysis of HOS Options From the NPRM to the Final Rule
    There are two distinct categories of changes that result in 
different estimates of the costs and benefits of the HOS options 
between the NPRM and the Final Rule:
     Changes to the options, some of which change the cost/
benefit calculations for all of the options; and
     As recommended by commenters, refinements to the benefit 
analyses, which change the estimated benefits, and thus the estimated 
net benefits, for each of the options.
    The changes that fall into these two categories are discussed 
below, followed by a description of how they affect the estimated costs 
and benefits.
    After considering the comments received on the NPRM and new 
research, as well as the President's Executive Order 13563 on 
``Improving Regulation and Regulatory Review,'' FMCSA has made several 
changes to the HOS options considered in the NPRM, including the 
     Eliminating a driving-time limit from the final rule.
     Dropping the 13-hour limit on on-duty time between breaks 
of at least 10 hours, but keeping the provision requiring at least a 
half-hour break part-way through long days.
     Shortening the 2-night restart window from two periods 
including midnight and 6 a.m. to two periods including 1 a.m. through 5 

[[Page 81180]]

     Changing the break requirements to require a break of a 
half-hour (or more) within the past 8 hours of continuous work, rather 
than 7, to continue driving.
     Dropping the provision that would have allowed two 16-hour 
driving windows per week.
    Only the first three of these changes affect the cost/benefit 
calculations. The other two do not change the cost/benefit calculations 
because the analyses for the NPRM were not sensitive to the particular 
provisions involved: the effects of breaks were considered to be 
subsumed within the effect of the daily limit on duty hours, and the 
use of a 16-hour driving window was not modeled due to uncertainty 
about how and how much it would be used and the small expected 
magnitude of its effects.
    In response to comments and its own review of the analysis of 
safety benefits, FMCSA has made three refinements to its benefits 
analysis of the HOS options. First, as suggested by the Edgeworth 
study, the safety benefits of reductions in cumulative fatigue are 
being estimated using a finer-grained function. Because this change 
affects all of the options to about the same extent, it has no real 
effect on the relative rankings of the options. Similarly, in response 
to the Edgeworth study, FMCSA has also refined its estimate of the 
value of reducing crash damages per hour of effort reallocated from one 
driver to another. Because this refinement affects all of the options 
equally, it has no effect on their relative ranking. Third, the Agency 
has made technical adjustments in the way it calculated and discounted 
health benefits due to improvements in sleep duration. Careful re-
examination of the Ferrie study, occasioned by disagreements in docket 
comments submitted by Ferrie and Cappuccio on the applicability of 
their work to HOS rulemaking, suggested that a more refined estimate of 
the health benefits was possible and should be undertaken. This new 
analysis ultimately had minimal impact on the cost-benefit analysis, 
and did not impact the Agency's decision to choose option 3 in the 
final rule.
    Chapter 5 of the RIA presents in detail the methodology used to 
make these changes. These changes have the effect of moderately 
reducing benefits associated with improvements in driver health. The 
size of the reduction in benefits is affected by the discount rate, 
with a 3 percent discount rate having a smaller impact. Although the 
Agency norm is to present all impacts in the RIA--including driver 
health benefits--discounted at 7 percent, the Agency applies equal 
weight to results using the 3 percent discount rate. Using a 3 percent 
discount rate, the options rank the same with or without the 
methodological refinements--Option 3 (11 hours) would be the preferred 
option at medium sleep, but Option 2 (10 hours) would have higher net 
benefits at low sleep. Discounted at 7 percent, Option 3 would have 
higher net benefits at both low sleep and medium sleep than Option 2. 
Option 4 (9 hours) would be the least likely to have positive net 
benefits, and its net benefits would be lower than the other two 
options under any scenario.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
Federal agencies to determine whether rules subject to notice and 
comment could have a significant economic impact on a substantial 
number of small entities. FMCSA completed a Final Regulatory 
Flexibility Analysis (FRFA) to analyze the impact of the proposed 
changes to the HOS regulations on small entities.
1. A Statement of the Need for, and Objectives of, the Rule
    The objectives of the today's changes to the HOS rule are to 
improve safety in the most cost-effective manner while ensuring that 
the requirements do not have an adverse impact on driver health. 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 the required break during long days, and 
the limits on maximum weekly hours, coupled with FMCSA's many other 
safety initiatives and assisted by the actions of an increasingly 
safety-conscious motor carrier industry, will result in continued 
reductions in fatigue-related CMV crashes and fatalities. Furthermore, 
the changes in the rule are 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 Summary of the Significant Issues Raised by the Public Comments in 
Response to the RFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments
    Comments. Very few commenters directly addressed the Initial RFA 
analysis. Commenters generally stated that the rule would affect 
revenues of carriers, but these impacts were not specific to small 
entities. Shippers and receivers also argued that they would be 
affected, but these entities are not subject to FMCSA regulations and 
are not, therefore, considered in the RFA analysis. The Petroleum 
Marketers Association of America stated that the changes to the restart 
provision would have a serious impact on small heating oil and propane 
suppliers. They would need to hire extra drivers to cover emergency 
    FMCSA Response. As stated in previous responses, the restart 
provision will affect only drivers working the longest hours. Without 
information on the hours being worked by drivers for fuel retailers, it 
is difficult to assess whether they will be affected, but most local 
drivers do not work 60 to 70 hours a week and, therefore, are not 
limited by the restart provision. In any case, drivers of CMVs used 
primarily in the transportation of propane for winter heating are 
statutorily exempt from most of the regulations in the FMCSRs if 
compliance with those regulations would prevent the driver from 
responding to an emergency condition requiring immediate response (see 
49 CFR 390.3(f)(7)).
3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
Response to the Proposed Rule, and a Detailed Statement of Any Change 
Made to the Proposed Rule in the Final Rule as a Result of the Comments
    The Office of Advocacy at SBA filed comments that were a summary of 
concerns raised by industry at a roundtable that it hosted on February 
9, 2011. As SBA indicated, the comments are ``nearly identical to many 
of those expressed at FMCSA's public listening session on the proposed 
rule * * *.'' Summarized, the points are as follows:
     The proposed rule is not supported by existing safety and 
health data.
     The proposed rule would reduce flexibility and could 
actually impede safety and driver health by increasing the stress on 
drivers as they try to work within the limits.

[[Page 81181]]

     The proposed rule would be operationally disruptive and 
     Truck related crashes are decreasing under the current 
rules, even while truck miles driven have increased.
    FMCSA Response. As has been stated throughout this preamble, FMCSA 
disagrees strongly with these industry claims. The rule is supported by 
research on crashes and the health effects of long hours on health. 
Research on the effects of long work hours on crash rates, both for 
drivers and for other workers clearly indicate that risk rises after 8 
hours of work. The research on the health effects of sleep loss and 
long hours is also extensive.
    On the idea that the limits put stress on drivers, the Agency notes 
that any limit will do this for a driver who is working to the limits. 
The only way to remove this stress is to allow drivers and carriers to 
work as many hours as they want regardless of the safety consequences. 
Research has shown that drivers (and everyone else) have very little 
ability to accurately assess their own fatigue levels, as is also 
evidenced by the high percentage of CMV drivers who admit to falling 
asleep at the wheel. Today's rule allows the hardest working drivers to 
average 70 hours a week, which is surely enough.
    The claims of serious operational disruptions are unsupported by 
any data and contradicted by the industry's own statements that the 
provisions at issue are not used by most drivers. SBA noted that 
carriers are subject to factors beyond their control, such as loading 
dock availability. FMCSA recognizes that carriers cannot control 
shippers and receivers, but allowing drivers to regularly work maximum 
hours is not a reasonable solution to that problem. On SBA's final 
point, Section IV. ``Discussion of All Comments'' A. ``Safety'' of this 
preamble discusses the flaws in this argument at length.
    FMCSA has made changes to the final rule to reduce the complexity 
of the rule and provide some flexibility. The periods required under 
the 2-night restart provision are 2 hours shorter than proposed; this 
change will provide more flexibility for drivers who work at night 
irregularly. Most drivers who have regular nighttime schedules already 
take 2 nights off a week and do not need to use the restart provision. 
The final rule also changes the break requirement to make it easier for 
drivers using the sleeper berth provision. Finally, FMCSA has removed 
the 13-hour duty time limit to reduce the complexity of the final rule.
4. A Description and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
    The HOS regulations apply to both large and small motor carriers. 
The SBA 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 roughly $160,000 in annual revenue per truck for 
firms with multiple power units,\19\ suggesting that a typical carrier 
that qualifies as a small business would have fewer than 141 ($25.5 
million/$160,000) power units (i.e., trucks or tractors) in its fleet. 
From the 2007 Economic Census data on non-employer firms, sole 
proprietorships earn approximately $107,700 in annual revenue.

    \19\ See the RIA Appendix A for the revenue per power unit. A 
firm with one power unit and two drivers would have even higher 
revenues per truck because the two drivers could drive more hours 
than a firm with a single driver.

    To determine the number of affected small entities, we used the 
analysis conducted by FMCSA for the Unified Carrier Registration (UCR) 
rule.\20\ 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 15. 
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 
overstates the number of affected small entities for several reasons. 
First, 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 have other sources of revenue and fall 
under different NAICS codes; for example, one of the largest pharmacy 
chains has fewer than 141 power units, but is not a small entity. 
Second, the carriers are allowed to register by location so that a 
single firm may have multiple DOT registrations, each of which appears 
to be small, but which at the firm level represents a large entity. 
Third, the carrier numbers include firms that are not subject to this 
rule, such as passenger-carrying carriers and utilities, or are subject 
to only part of the rule (e.g., construction firms have a different 
restart provision).

    \20\ FMCSA, ``Regulatory Evaluation of the Fees for the Unified 
Carrier Registration Plan,'' February 19, 2010. Available in the 
docket: FMCSA-2009-0231-0181.

               Table 15--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+               292
    Total...........................  ................           426,078

    Table 16 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 

[[Page 81182]]

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 141 power units 
are actually large. For example, a wholesaler with 141 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 141 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 16, 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 qualify as small businesses.

                                                   Table 16--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, Quarrying, and Oil   500 FTE....................            29,900              4.17                10
                                           and Gas Extraction.
23......................................  Construction...............  $14 million to $33.5                  127,200              1.76                19
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 $29 million..           307,900              2.01                10
53......................................  Real Estate and Leasing....  $7 million to $25 million..            40,500               1.9                18
56......................................  Administrative and Support   $7 million to $35.3 million           132,300              1.64                46
                                           and 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

    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 the 
final rule are well below 1 percent of revenues, as are the average 
annual costs when spread 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 is 
designed to rein in the most high-intensity 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 
could 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 could incur the greatest costs will, therefore, be 
likely to have unusually large revenues per power unit as well.
5. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the 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 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 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 does 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 in the industry that operate in interstate 
commerce are subject to these rules. The type and classes of these 
small entities are described in the previous section of this analysis.
6. A Description of the Steps the Agency Has Taken To Minimize the 
Significant Adverse Economic Impact on Small Entities Consistent With 
the Stated Objectives of Applicable Statutes, Including a Statement of 
the Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each of the Other Significant 
Alternatives to the Rule Considered by the Agency Was Rejected
    The Agency did not identify any significant alternatives to the 
rule that could lessen the burden on small entities without 
compromising its goals. However, in response to docket comment from the 
motor carrier industry, in which small entities are very heavily 
represented, the Agency did modify the options proposed in the NPRM to 
reduce both the cost and complexity of the rule adopted today. These 
changes include retaining the 11-hour daily driving limit, and 
shortening the 2 nighttime periods required by the new restart 
provision by one-third, from 12 midnight-6 a.m. to 1 a.m.-5 a.m. 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

[[Page 81183]]

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 will 
also affect entities proportional to the number of drivers they employ, 
and therefore do 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 will 
therefore not place an undue recordkeeping or reporting burden on 
smaller entities.

C. Paperwork Reduction Act

    This 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 rule 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 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)). The Agency received no comments on the draft 
Environmental Assessment, published with the NPRM. 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 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 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 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 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 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.

L. Unfunded Mandates Reform Act

    The Unfunded Mandates 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 $143.1 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 rule have been analyzed in the 

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[[Page 81184]]

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Restart Break for Recycling with Optimal Performance Depends 
Critically on Circadian Timing,'' Sleep, Vol. 34, No. 7, July 1, 
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Carrier Practices to Achieve Optimal Commercial Motor Vehicle Driver 
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Dongen (2010a)].
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Sleepiness, Alertness, and Performance,'' Principles and Practice of 
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Effects on Neurobehavioral Functions and Sleep Physiology from 
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Crashes,'' March 2007. FMCSA 2004-19608-3995.

List of Subjects

49 CFR Part 385

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

49 CFR Part 386

    Administrative practice and procedure, Brokers, Freight forwarders,

[[Page 81186]]

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 

    In consideration of the foregoing, FMCSA is amending 49 CFR chapter 
III, parts 385, 386, 390, and 395 as set forth below:


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. Amend Appendix B to part 385, section VII, List of Acute and 
Critical Regulations, as follows:
a. Revise the entries for Sec.  395.3(a)(1) and Sec.  395.3(a)(2);
b. Add entries for Sec.  395.3(a)(3)(i) and Sec.  395.3(a)(3)(ii), in 
numerical order; and
c. Remove the entries for Sec.  395.3(c)(1) and Sec.  395.3(c)(2).

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 consecutive hours prior to driving (critical).
    Sec.  395.3(a)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after the end of the 14th 
hour after coming on duty (critical).
    Sec.  395.3(a)(3)(i) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 11 hours 
    Sec.  395.3(a)(3)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive if more than 8 
hours have passed since the end of the driver's last off-duty or 
sleeper-berth period of at least 30 minutes (critical).
* * * * *


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

    Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 
311, 313, and 315; 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; 
Sec. 206, Pub. L. 106-159, 113 Stat. 1763; subtitle B, title IV of 
Pub. L. 109-59; and 49 CFR 1.45 and 1.73.

4. Amend Appendix B to part 386 by adding paragraph (a)(6) to read as 

Appendix B to Part 386--Penalty Schedule; Violations and Monetary 

* * * * *
    (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 driving-time 
limit in 49 CFR 395.3(a) or 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.
* * * * *


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

    Authority:  49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; 
sec. 212 and 217, Pub. L. 106-159 (as transferred by sec. 4115 and 
amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 
1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49 
CFR 1.73.

6. Amend Sec.  390.23 by revising paragraph (c) to read as follows:

Sec.  390.23  Relief from regulations.

* * * * *
    (c) When the driver has been relieved of all duty and 
responsibilities upon termination of direct assistance to a regional or 
local emergency relief effort, no motor carrier shall permit or require 
any driver used by it to drive nor shall any such driver drive in 
commerce until the driver has met the requirements of Sec. Sec.  
395.3(a) and (c) and 395.5(a) of this chapter.


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

    Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432. 122 
Stat. 4860-4866; and 49 CFR 1.73.

8. Amend Sec.  395.1 as follows:
a. Revise the paragraph (b) heading and paragraph (b)(1) introductory 
b. Revise pargraph (d)(2);
c. Revise paragraphs (e)(1)(iv) and (e)(2);
d. Revise paragraphs (g)(1)and (g)(2)(ii); and
e. Revise paragraph (q).
    The revisions read as follows:

Sec.  395.1  Scope of rules in this part.

* * * * *
    (b) Driving conditions. (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 beyond the maximum time allowed under 
Sec. Sec.  395.3(a) or 395.5(a) to complete that run or to reach a 
place offering safety for the occupants of the commercial motor vehicle 
and security for the commercial motor vehicle and its cargo.
* * * * *
    (d) * * *
    (2) In the case of specially trained drivers of commercial motor 
vehicles that 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 and 395.15, 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 
calculating the 14-hour 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

[[Page 81187]]

not exceed the maximum driving time specified in Sec.  395.3(a)(3) 
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(a)(2) and Sec.  395.8 and ineligible to use the provisions of 
Sec.  395.1(e)(1), (g), and (o) if:
    (i) The driver operates a property-carrying commercial motor 
vehicle for which a commercial driver's license is not required under 
part 383 of this subchapter;
    (ii) The driver operates within a 150 air-mile radius of the 
location where the driver reports to and is released from work, i.e., 
the normal work reporting location;
    (iii) The driver returns to the normal work reporting location at 
the end of each duty tour;
    (iv) The driver does not drive:
    (A) After the 14th hour after coming on duty on 5 days of any 
period of 7 consecutive days; and
    (B) After the 16th hour after coming on duty on 2 days of any 
period of 7 consecutive days;
    (v) The motor carrier that employs the driver maintains and retains 
for a period of 6 months accurate and true time records showing:
    (A) The time the driver reports for duty each day;
    (B) The total number of hours the driver is on duty each day;
    (C) The time the driver is released from duty each day;
    (D) The total time for the preceding 7 days in accordance with 
Sec.  395.8(j)(2) for drivers used for the first time or 
* * * * *
    (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 the driving limit specified in Sec.  
395.3(a)(3)(i) following one of the 10-hour off-duty periods specified 
in paragraph (g)(1)(i)(A)(1) through (4) of this section. After June 
30, 2013, however, driving is permitted only if 8 hours or fewer have 
passed since the end of the driver's last off-duty break or sleeper-
berth period of at least 30 minutes; and
    (C) May not drive for more than the period specified 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-hour period 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 
    (B) Calculation of the 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-hour period 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 the limit 
specified in Sec.  395.3(a)(3);
* * * * *
    (q) Attendance on commercial motor vehicles containing Division 
1.1, 1.2, or 1.3 explosives. Operators who are required by 49 CFR 397.5 
to be in attendance on commercial motor vehicles containing Division 
1.1, 1.2, or 1.3 explosives are on duty at all times while performing 
attendance functions or any other work for a motor carrier. Operators 
of commercial motor vehicles containing Division 1.1, 1.2, or 1.3 
explosives subject to the requirements for a 30-minute rest break in 
Sec.  395.3(a)(3)(ii) may use 30 minutes or more of attendance time to 
meet the requirement for a rest break, providing they perform no other 
work during the break. Such drivers must record the rest break as on-
duty time in their record of duty status with remarks or annotations to 
indicate the specific on-duty periods that are used to meet the 
requirement for break.
* * * * *

9. 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:
    (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 
    (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, except as 
otherwise provided in Sec.  397.5 of this subchapter;
    (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;

[[Page 81188]]

    (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 
    (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 
* * * * *

10. 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) 14-hour period. A driver may drive only during a period of 14 
consecutive hours after coming on duty following 10 consecutive hours 
off duty. The driver may not drive after the end of the 14-consecutive-
hour period without first taking 10 consecutive hours off duty.
    (3) Driving time and rest breaks. (i) Driving time. A driver may 
drive a total of 11 hours during the 14-hour period specified in 
paragraph (a)(2) of this section.
    (ii) Rest breaks. After June 30, 2013, driving is not permitted if 
more than 8 hours have passed since the end of the driver's last off-
duty or sleeper-berth period of at least 30 minutes.
    (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) Through June 30, 2013, any period of 7 consecutive days may 
end with the beginning of an off-duty period of 34 or more consecutive 
hours. After June 30, 2013, 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 periods from 1 a.m. to 5 a.m.
    (2) Through June 30, 2013, any period of 8 consecutive days may end 
with the beginning of an off-duty period of 34 or more consecutive 
hours. After June 30, 2013, 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 periods from 1 a.m. to 5 a.m.
    (d) After June 30, 2013, 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 16, 2011.
Anne S. Ferro,
[FR Doc. 2011-32696 Filed 12-23-11; 8:45 am]